*1 Simply any stated, defendant who receives less than an absolute any given representation that, minimum level of case such representation effect, he has received no at all should be entitled to a presumption prejudice. of While the absolute minimum level of assis- requires capital noncapital tance more assistance in a case than in a presumption prejudice apply case, the in both contexts. Oth- must purpose right erwise, the of the Sixth Amendment to effective coun- every to sel ensure a fair trial for each and defendant circum- will be vented.
Applying case, these rules to this it is clear that Heath’s counsel subject meaningful testing. failed to the State’s case to adversarial presumed such, As it should be that the lack of effective assistance of prejudicial, counsel was and Heath should have been allowed to guilty plea. withdraw his
Judgment Andrews, J., Johnson, J., J., Smith, reversed. P. P. P. Phipps Miller, Mikell, JJ., and concur.
Decided November
Gary appellant. Jones, W. for Attorney, Osborne, Henrickson, James R. District Aaron S. Assis- Attorney, appellee. tant District for Rundlet,
Alexander T. amicus curiae. A02A0909. BASS LANDSCAPES, CUSTOM INC. v. CUNARD.
Phipps, Judge. Landscapes, per- Judith L. Cunard sued Bass Custom Inc. for injuries sonal incurred when she fell down ice-covered stairs located place employment. alleged neg- outside her Cunard that Bass had ligently performed by failing properly its service contract maintain operate sprinkler system prevent system the outdoor discharging grounds, walkways, parking water onto the surfaces during freezing resulting weather, in the creation of a hazardous con- sought summary judgment, primarily contending dition. Bass injury. Cunard had assumed the risk of The trial court denied the granted application interlocutory motion. We Bass’s review and now affirm.
Summary judgment granted only moving should be when the party any genuine demonstrates the absence of issue of material fact undisputed light facts, establishes that the viewed in the most nonmoving party judgment favorable to the warrant as a matter of considered, 5, 1999, January law.1 When so the record shows that on work, her children at school and driving while off dropping But, bank, did not see ice. her arrival at the at upon about 8:15 a.m., “a grounds she noticed lot of ice” around the bank whose resem- bled a “winter wonderland.” Cunard recalled careful being pro- as she trying ceeded toward the bank and avoid the Despite ice. the haz- *2 conditions, managed ardous to walk ten up steps the from her inside, without incident. When parking spot she was almost she saw tellers, Colbert, one of the Elaine fall suddenly help and receive teller. After on some of the working night deposits, Cunard to check on Colbert’s which “was stopped leg swelling.” As teller coor- dinator and Cunard was supervisor, Colbert’s immediate boss. Crusan,
The manager, branch Keith thought sprinkler sys- tem had been disconnected but it apparently had discharged during Crusan night. began undertaking prophylactic measures to rem- edy danger. He testified that he looking was for salt to on place the ice and was in contact with the property management company. Although no one that thought injury Colbert’s was a life-threatening emergency, several employees bank suggested she have it examined. Burnham,
Crusan and Cindy the customer manager, service were Cunard’s supervisors. immediate Crusan testified that “when I came in knee], and looked at it more, [her was we swelling decided we needed to ahead and take her to the hospital get to checked.” asked, When “[w]ho is we?” he responded, “[p]robably Cindy [Bum- Ultimately ham] and I. it guess was decision.” Cunard testified that Crusan told her that he stay had to at the bank “to the situa- tion cleared as up possible best before our got customers to the center, banking Cindy [Burnham] stay to because she was on the with phone testified, workman’s “I comp.” was asked — I was told that a supervisor had to take Elaine [Colbert] to the hospital.” asked, When “So when told that a supervisor needed to take Elaine to get treatment, [Colbert] medical did he tell you you’re asked, it?” she responded, “[y]es.” “[w]hat When your response [Crusan to when he told to take Colbert to the hospi- said, “I tal]?” she asked him if he then, wanted me to take her and he added, said yes.” She “he told me to go get my car and her pick up.” Cunard testified that when Crusan told her to take Colbert to hospital, she believed the situation was an “she was hurt. genuinely leg swelling. me,. [H]er To . . that’s an emergency. She was hurting.” According Cunard, after he told her go get car, her he told me “just to be careful.” She admitted that Mayhue Auth., v. Middle Ga. Coliseum dangerous she knew it was to cross the ice and conceded that she did protest hospital. supervisor’s her to take not the instruction Colbert halfway steps, car,
While down the Cunard sud- injured denly slipped, stairwell, landed at the bottom of the and neck. She testified that when she fell down the concrete back steps, using steps icy she was the handrail and knew that the were surgery. fall, and slick. As a result of her she underwent neck fusion seeking summary judgment, In claimed Bass that Cunard “knew icy again,” about the conditions before she elected to risk them ordinary safety. argued failed to exercise care for her own Bass prem- her fall “resulted from a defective and unsafe condition of ises of which she was aware.” disputed The trial court determined that material fact issues jury Specifically,
remained for trial rily resolution and denied the motion. jury that a court found should decide “whether volunta- injured hospital acted to take her co-worker to the and whether injury.” or not she assumed the risk of
1. Bass contends that the trial court misconstrued law on argues essence, doctrine assumed the risk of of risk. Bass that Cunard
injury, by knowingly walking law, aas matter of *3 upon slippery, stairway, assumption ice-covered and that her of by manager telling that risk was not excused the branch her to injured employee hospital. her car and take the But, to the when the controlling straightforward. applied undisputed facts, law is to the the result is not so
“Generally, plaintiff injury whether a assumed the risk of is an jury. [Cit.]”2 Moreover, issue for the
[i]ssues negligence, including of the related issues of assumption safety, ordinary risk, of lack of cafe for one’s own ordinary avoiding consequences
lack of care in of negligence comparative negligence, another’s and are ordi- narily susceptible summary adjudication not but must be ordinary except manner, in the resolved a trial where the plain palpable they finding are facts so demand a by the court a matter of law.3
This is not such a case. prevail assumption risk, To on the affirmative defense of (1) knowledge
defendant “must establish that the had actual 2 (507 159) (1998). Centers, 573, App. Henderson v. Lowe’s Home 234 Ga. 574 SE2d 3 (Citations omitted.) Hiers, 105, punctuation App. Gen. Tel. Co. &c. v. 179 Ga. 107 (345 SE2d (2) danger; appreciated understood and the risks associated (3) danger; voluntarily exposed [her]
with such self to those “Exposure voluntary, to the known risk must risks.”4 be the result of “[assumption And, a deliberate choice.”5 the defense of of risk actor, that the circumstances, assumes course of action with full without coerción of chooses a
knowledge of its and while exercis- ing engage a free choice ... whether to in the act or not.”6 Superior employee Svc.,7
In Russell v. K-9 an volunteered to undertake a task outside of her normal request. duties and at her own doing, injured. In so she was This Court found that jury charge light defendant was entitled to a of the uncontroverted evidence that the on of risk in
injured employee had volun- dog pen night teered to let a trained attack out of his she was Rocky guard dog pet.8 attacked and that she knew York v. employee was a and not a In jury Winn-Dixie, we found that issues remained whether an activity had exercised his free choice to undertake the injury resulted his or whether that choice was restricted coercion of combined circumstances.9 injured plain-
Absent the here, combination of circumstances safety tiff had no And, reason to leave the of the bank. unlike the injured employee supra, Russell, who asked her if she guard dog pen, could let the out of his Cunard did not ask to encoun- danger.10 ter fact, testified, In “I would not have chosen to building my telling leave the bank at that time but for boss me to do hurting.” so and the fact that co-worker Bass, who bears the proving burden of defense, this affirmative has offered no evidence to contrary.11 manager, supervisor, The branch Cunard’s testified that hospital decision “we needed to ahead and take her to the ultimately checked,” was circumstances, his. these we find that a jury should determine whether Cunard chose a course of action with 4 (Footnote omitted.) 866) Pleasent, (1996). Vaughn 862, SE2d 5 (Citations omitted.) Atlanta, York v. Winn-Dixie *4 (1995). 6 (Citation omitted.) (2) (426 punctuation Anderson, 760, App. Mann v. 206 Ga. 763 583) (1992). SE2d 7 (531 770) (2000). App. 242 Ga. 896 SE2d 8 (2). at 898 Id. 9 York, supra See at 841. 10Russell, supra at 896. 11 (1) defense). Vaughn, supra (assumption See, See at 864 e.g., of risk is an affirmative (1) (540 623) (2000) (defendant Smith, 643, App. v. relying Clemmons 246 Ga. 644 SE2d upon assumption jury charge of risk defense entitled to where evidence showed that park busy highway, bridge, following curve, chose to his car in the left lane of a on a a blind driver). protect stopped vehicle and its
621 exercising knowledge choice and while a free full of its engage in the act or not.12 whether to jury finding that a that the trial court erred
2. Bass asserts walking across Cunard assumed the risk of determine whether -must despite parking that she did not lot her admission an ice-covered against employment her if action would be taken adverse think supervisor’s questioned that evi- her instruction. Bass claims she dence lacking circumstances” is when element of “coercion of Rossignol, applied. Prophecy Corp. not Inc.13 is We do v. Charles agree. Corp. party Prophecy rule, a must offer “a reasonable
Under the testimony self-contradictory, vague, equivocal explanation” for her strongly against opposing most her.14But the or it will be construed self-contradictory party testimony judgment only party’s when the is entitled right her is the sole evidence of her to recover or of explanation testimony for the has defense.15Whether a reasonable presents an issue of law for the trial court whose deci- been offered clearly upheld will unless it is erroneous.16 sion be argues testimony Here, that Cunard’s affidavit contradicts Bass deposition testimony on the issue of whether she was coerced walking complains that the circumstances to risk on the ice. Bass explanation no reasonable for her inconsistent testi- Cunard offered mony comply did not whether she believed that she would be fired supervisor’s
with her instruction. manager “[a]s By affidavit, Cunard testified that Mr. Crusan was challenging branch, I did not feel comfortable his order to only “[a]t my added, time, I car.” She had concern not injured leg, my employment Elaine Colbert and but also that by my obey jeopardized my supervi- with the bank would be failure to injury.” sor in the situation created Elaine Colbert’s upon deposition, again expressed Later, concern about her job performance. During colloquy transpired. cross-examination, this
DEFENSE COUNSEL: At the time were afraid if you? did not take her that he would fire CUNARD: He was direct and he told me I her, needed to take so did.. Were afraid he would fire
DEFENSE COUNSEL:
take her?
did not
12
(523
566) (1999).
(2)
McEachern,
805,
Compare Muldovan v.
271 Ga.
807-808
SE2d
13
(343
680) (1986).
CUNARD: I am not sure how to answer that. DEFENSE COUNSEL: And I don’t know how to make that question any straightforward. more directly CUNARD: When he told me I needed to take her — my supervisor my job perfor-
and he was I mean, that’s mance. you
DEFENSE COUNSEL: Were you you afraid that he would fire proffered legitimate did not take her and excuse your for reason not to take her? my job performance.
CUNARD:Just that it was I don’t know thought, going that if I don’t, had the if I I am fired. exchange place. Later, this took DEFENSE . COUNSEL: . . when Keith said to hospital, you actually need to take her to the thought your
never had a in mind that if I it, don’t do I am thought your fired; never mind, crossed did it? just thought telling
CUNARD: he was it, me to do Iso did. thought DEFENSE COUNSEL: And the that if didn’t do it, employment he would fire or take some adverse against you action CUNARD: never mind, entered did it?
No, I don’t believe so. obviously compound, But tion between blurring the final is the distinc- being having employment fired and some adverse action taken. Cunard never in testified her affidavit that she feared contrary, she would be fired. On the in both her affidavit and in her deposition, expressed cooperate concern that a failure to would negatively impact job performance. words, other Cunard con- sistently testified that she did not believe she would be fired and also consistently expressed negative concern about the effect on her performance. point, meaning phrase At this “some adverse employment merely action” affords fodder for additional cross- voluntarily examination.17 Whether Cunard and “without coercion of exposed circumstances” herself to the risk and how much “free proceeding icy steps choice” she had in back down the remain mate- disputed Having rial issues of fact. considered all of Cunard’s testi- mony including depositions both in which she was cross-examined lawyers, four different defense find, we court, as did the trial that her — subjective response i.e., to the situation whether “without coercion Hutto, See Cornelius v. of circumstances” “exercising a free choice . . . whether engage the act or not” should be resolved the factfinder.18 matter, As a final we note that the dissent has cast Cunard’s tes- timony But, in a light. rule, different as a general conflicts testi- mony, except unexplained contradictory testimony, simply create questions better left for jury resolution. Where reasonable can minds disagree interpreting meaning here, of a party’s testimony, as adjudication by summary judgment is inappropriate. *6 Blackburn, J., Judgment Johnson, J., Smith, J., C. P. P. affirmed. Mikell, JJ., Andrews,
Miller and J., concur. P. dissents. Presiding Judge, dissenting. Andrews, Because believe Bass Custom Landscapes, Inc. was entitled to summary judgment based on Cunard’s assumption of the risk of across walking lot, an ice-covered parking I respectfully dissent. In addition to the facts stated in majority opinion, the follow- ing facts important. are
The record was, shows that Cunard is, and still employed as a teller coordinator at a bank Forsyth. When Cunard arrived for work on January 5, 1999, she noticed a “lot of ice” on the bank’s grounds, which looked like a “winter wonderland.” After parking her usual spot the lower parking lot, Cunard saw ice on the asphalt as soon as she exited her car. She surmised that the bank’s sprinkler system, which Bass, is maintained by must have come on during the and night the water must have frozen.
Cunard walked across the icy, slippery parking sidewalk, lot to a which also was covered with ice. According Cunard, to ice was every- where and was impossible to avoid. At the end of the sidewalk, Cunard climbed ten steps to a driveway which led to the bank’s entrance. At the top of the steps, Cunard saw Colbert, Elaine a bank teller, walking the drive-up window. Cunard and Colbert talked briefly about the ice and how “everybody had to be careful.” Colbert then and slipped fell on the ice. Another employee arriving work helped Colbert into the building. told,
Once inside, Cunard the bank’s senior manager, Keith Crusan, injured. Colbert was Crusan and another manager were that the “discussing sprinkler system gone off overnight and had frozen.” Cunard then Colbert, checked on whose leg swelling was and bleeding slightly. Cunard and other bank employees told Colbert that “might she want it checked out.” Colbert testified that she “didn’t feel like it anything, but better safe than sorry.” Cunard Russell, supra. See situa- faced an
testified that she did not believe Colbert attention. tion immediate requiring Cunard, to the hos- Crusan told her to take Colbert
According then, her to do it and he said She asked Crusan he wanted pital. knew it was to return to dangerous Cunard admitted that she yes. Crusan’s ice, car across the she did not protest but and she never hinted or hospital, instruction to take Colbert she not want to comply. did suggested she had taken along path Cunard returned to her car same . descending parking As to the lower steps into the bank. fell, neck and lot, injuring and back. slipped risk precludes defense of of the The affirmative shows that the without coercion recovery plaintiff, when the evidénce action with full circumstances, knowledge chose a course of freely Machurick, Auth. v. danger. Jekyll of its Island State Park The defendant is entitled to sum- on the of the risk mary judgment plaintiff’s assumption based (1) undisputed evidence shows that plain, palpable, (2) appreci- had actual understood knowledge (3) danger, yet voluntarily exposed ated the risks associated with the herself to those risks. Id. at 700-701. ice and deny
Cunard does not that she knew about under- *7 appreciated danger traversing argues, stood and the of it. She how- ever, element its assumption that Bass cannot establish the third of there factual as to whether dispute of the risk defense because is a facing she was coerced into the risk. on series of in which this Court recognized
Cunard relies a cases the of a can constitute coer- person’s employment that circumstances cion sufficient to defeat an of the risk defense. Kitch- assumption (289 807) Builders, (1982), ens v. Winter Co. 161 Ga. 701 SE2d a App. a general personal injuries construction worker sued contractor he when he fell from a ladder at the site. The slippery incurred summary contractor on the basis of of sought judgment judgment the risk. This Court held that was not summary appropri- ate, dangerous, even the worker knew the ladder was because though was no safer alternative” to the ladder and “there ascending “[t]here whereby repair collaps- was an . . . the need for haste to without for a required process forms immediate action allowance ing risks and benefits on the of the Id. at 703 weighing part plaintiff.” (1). (459 Atlanta,
In York v. Winn-Dixie SE2d App. him (1995), a worker whose had told to deliver load of fish employer that the dock was seven “immediately” loading to Winn-Dixie found complained feet than the bed of his truck. The worker higher to ten said, you. “I don’t talk to Just the warehouse who want to supervisor, omitted.) (Punctuation the damn fish truck and leave.” Id. get off the the place The also said that there was no other to unload supervisor, fish, injured, fish. While the worker was and he sued unloading Winn-Dixie and defendant. that We held the defendants summary judgment were not entitled to on their assumption risk because was a whether “the jury question defense there circum- presented a stances choice” to the worker. Id. at 840. practical Finally, Mobil Oil Styles Corp.,
578) (1995), a worker he injuries construction sued for sustained falling after from an beam. claimed icy steel The defendant that worker, worker assumed the on The how- walking risk the beam. ever, testified that he his who supervisor, discussed with said, “I cannot you go up there, somebody tell but we’ll who (Punctuation omitted.) (1). can.” Id. at 49 The worker interpreted supervisor’s comment as a threat to walk fired. on beam or be The worker also testified that he knew of employees other who omitted.) (Punctuation been fired for a little too safe.” “being Id. circumstances, Under these this Court correctly held that there a factual dispute whether worker exercised a free walk choice to beam, on unrestricted coercion or intimidation.
Cunard asserts she was into ice coerced traversing the bank outside a second time supervisor because her directed her to take Colbert to the She submitted an hospital. opposi- affidavit tion to summary judgment averring that she “did not feel comforta- ble challenging [Crusan’s] order to car” and that she concerned her “employment with the bank would be jeopard- ized” if did not do so.
Cunard’s subsequent deposition testimony, however, paints picture: different
Q. At the time were afraid if not [Colbert] did take you? would fire A. He was my direct and he told me I needed to her, take so did.
Q. Were he afraid that would fire did not také her?
I amA. not sure how to answer that.
Q. And I don’t know how to make that any moré straightforward.
A. When he me I directly told needed to take her and he was — my supervisor mean, I my job that’s performance.
Q. you Were afraid he if you that would fire did not take you proffered your her and a legitimate excuse for reason not to her? take my job performance. if I I don’t know that
A. Just that it was going thought, fired. don’t, if I I am had . . said to Q. And I understand that when . you actually hospital, [Colbert] to the that never going need to take thought your it, if I do I am mind that don’t a your thought mind, did fired; that never crossed it? telling just thought it, me to do so did.
A. I he was thought it, if he would fire And the that didn’t do Q. or take some adverse employment against action never your mind, entered did it? No, I
A. don’t believe so. Crusan, addition, was not afraid of Cunard testified she suggestions manager, open that she had made that he was working relationship suggestions past, to him in the that their good, any employ- threatened to take adverse and that he had never against promoted fact, ment action teller to teller coordinator about six months before the her. In Crusan had Cunard from
morning in Finally, nothing prevented question. Cunard admitted that her that morning telling Crusan that she was afraid of back out on the ice.
Despite majority’s attempt otherwise, to demonstrate there conflict Cunard’s statement in her affidavit that is clear between jeopardized employment she felt her with the bank would be she obey deposition testimony and her did not Crusan’s command against thought employment she never he would take adverse action comply. explain her if did not Because Cunard has failed to this against by “eliminating] conflict, it must resolved her favor- be (Citation, portions contradictory testimony.” punctuation able omitted.) Wright emphasis Finance, JDN Structured App. 685, 686 Eliminating testimony any removes Cunard’s favorable affidavit argues supervisor. depo- evidence of coercion sition her that her hospital testimony thought taking to the Colbert “job part performance” felt Without of her shows that she coerced. “jobperformance” more, however, Cunard’s unelaborated reference to negatively does not establish that she believed her would be questioning supervisor’s request. refusing And affected testimony collapses light deposition of her that she such inference did against employment action not believe her would take adverse request. she refused his *9 that her would be subjectively job Even Cunard did believe ice, if she back no facts jeopardized objective did not across the here, Styles, this belief. is no evidence as there in support There 48, or indirectly that Crusan ever threatened supra directly at evidence, comply. Cunard’s she did not Nor was there York, 839, pointed there was at that Cunard out supra the hostility. Rather, met with the evidence but was with enjoyed working relationship here shows that Cunard a good and was to voice to him. Crusan not afraid concerns 701, Finally, Kitchens, supra unlike at there is no evidence by that Cunard was an situation required coerced Instead, immediate action. evidence that a showed co-worker a Thus, suffered minor and was not in acute distress. injury had the to assess were opportunity alternatives safer than the icy back across to her car. path
Because the facts show undisputed do not that Cunard was coerced into risk of assuming ice, that the traversing believe trial court erred denying summary judgment Bass. 7,
Decided November Reconsideration denied November
Jones, Miller, Cork & Kerry Howell, W. for appellant. McKenney, & Carey, Carey, Jordan John D. for appellee. THE
A02A0913. STATE v. HUCKEBA. Judge.
Eldridge, granted We application State’s for a discretionary appeal trial denying court’s order its petition to revoke Orin Huck- probation. that, eba’s The trial court determined under 42-8- OCGA § (a), only probation violation that occurs within the probationary term can be the matter subject probation revocation For petition. follow, the reasons that disagree we and vacate the trial court’s order. facts in The this were stipulated by case of a parties lieu (i). under 5-6-41 transcript, OCGA The relevant facts are stipulated § pled guilty Huckeba to three Geor- felony violating counts gia Controlled Act in Substances 1996. He was a ten- sentenced year term: split years five serve five years followed probation. Approximately four months before release for the start proba- tionary paroled. Huckeba was period, immediately, Almost in March 2001, he was Georgia arrested for violation of felony