*1 as a matter law beyond ordinary care unreasonable and should defects, defendants, attempt any in an to detect impose duty to on doors, stall to mechanism on rest room hinge disassemble the hinge pin in a way to have detected defect apparent Palagano, supra, falling. Compare as the door manifestation such in- find that the from which the could where there was evidence bed, defect and that such strumentality question, “was defective inspection.” Id. have been discovered a reasonable could at 506.
c) allega- Lastly, support plaintiffs trial did not the evidence at whatsoever any precautions to take tion that defendants failed the mail’s rest rooms. prevent using to invitees injury proving alleged negligence Plaintiff had the burden of defendants; any of theories part this she not do under did Therefore, jury’s on recovery advanced. verdict should not stand. Deen and Presid- Presiding Judge
I am authorized to state Judge Birdsong join in dissent. ing this 5, Decided December
Rehearing December denied Larsen, appellants.
Hendley Napier, V. William H. New, appellee.
Walter H. ASSOCIATES, P.A. 72385. GRABOWSKI et al. RADIOLOGY (352 SE2d Judge.
Beasley, injury of a head Appellants’ decedent died from the effects Claiming Benning, Georgia. Fort suffered while stationed at Hospital failed at Medical Center Columbus personnel medical decedent, thereby his causing adequately diagnose and treat their death, the dece- malpractice against a medical action appellants filed authority, hospital treating physician, radiologist, dent’s his Upon appellants’ appellee Radiology Associates. the close of for and were hospital authority moved grant of motion the granted Radiology’s From the verdicts. plaintiffs-appellants bring appeal. During trial, Radiology
1.
for a directed
moved
connection between
ground there was
a causal
reading
arteriogram
Taylor’s alleged negligent
Dr.
sides, the
from both
argument
After much
death of decedent.
give
“I
but
a directed
anything
can do
court ruled:
don’t see
Radiology.”
granted
May
the motion was
and orally
made
meantime,
May
order was not filed until
appeared
May
tinued with
other defendants to
what
until
plaintiffs’
plaintiffs
the close of the
elected
case-in-chief
(a).
voluntarily
pursuant
their suit
OCGA 9-11-41
Had
dismiss
*2
order,
dismissal been
to
of the
the latter would
filing
nullity
have
a
it
been
would have been entered after
case
because
had been
altogether.
having
withdrawn
been entered
the course
It
trial,
thus,
reversed,
it was final
Radiology
to
will
unless
judicata
serve as res
new
The
suit.
order would have to be
a judgment
deemed
as to
. . .
Radiology
“adjudged
because it
that
hereby
Plaintiffs said
is
action
merits
dismissed on its
as Defend-
Steele
v. Cincinnati Ins.
Radiology.”
ant
See
this connection
(311
470) (1984).
2. The sole for directed verdict below and ruled asserted on below was that there of a causal connection be- was Dr. Taylor’s tween alleged as the negligence radiologist who misread the arteriogram, agreed and the death. The trial with Radiology, is and that question we are examine. called Appellee briefly now alludes to the absence evidence of em- ployer/employee relationship, Radiology would hold which liable theory of respondeat under superior, is but raised here, first time and is not even the focus appellate enumera- tion. The fact an employee was of Radiology not con- trial, why tested at else Radiology gone through would have place? the first Taylor was not a defendant. named, he represented filed no answer and was not at other than trail by Radiology, vigorously which defended his actions and moved for directed verdict on the lack causal connection theme. did object hypothetical not to the placed Taylor as an em- ployee of Radiology because that an issue the case.
It is too late to evidentiary raise this “A motion ground. for a directed verdict shall specific grounds state the therefor.” OCGA 9- § (a). 11-50 “A ground not mentioned in a motion for directed verdict Smith, cannot Adams v. appeal. thereafter be raised Davis, Inc., Co. 639); Penney J. C. v. Davis & SE2d 461).” Ga. App. 169 Fidelity, &c. Ins. v. Massey, Co. 97) Omni (1982); Express Cleve land (341 Express, 178 Ga. App.
While these four cases deal with denials of directed appeals, such applies held the rule Supreme Court Co., Phelps Constr. Ga. 83 v. Hensel Johnson granted. (1982), when directed verdict is apply also the rule should 2536, do not & Civil Miller, Federal Practice Procedure: Wright & grant, it is from a appellate rule of review apply a different The function of denial, verdict. of a motion rather than be stated “is assure requirement specific grounds that the 5A decision.” Moore’s adequate an basis for its the trial court has Fed. Practice Par. 50.04. ruling is on that scope. judge its The
The statute does not limit review, our role is to deter- principles ground, and under did, considering ruling as it mine whether the trial court erred Knight, 143 Redwing Carriers v. it what was asked decide.1 apply rule when the good is for the same There reason from taking It it grant of directed verdict. ends it, merely conclusively denial sends the jury deciding whereas a open remedy judg- of a motion for and still leaves requirement should be en- notwithstanding ment the verdict. granted, the absence of because forced where directed verdict have been mere an element which the motion based *3 in oversight offer which can be cured the discretion evidentiary Af- the merits. injustice promote court to a decision on avoid all, secure the just Civil “shall construed to ter Practice Act action,” every speedy . . as the and inex- . determination of as well party permit pensive resolution. OCGA 9-11-1. The court available, reopen possibly at fault to its case for the submission of absent, Yarbrough, Ga. yet App. v. 155 thus far evidence. Wallace Co., &c. 184, (1980); v. Ga. Farm Ins. 174 Worth 1) (1985). the same concern ex- reasoning reaches down to Johnson here, first time on isting surfacing the matter plainly level. The statute states the airing never had an the clearest no- requirement, giving the movant for directed verdict surprise. as grounds he of his should come tice. That must state all grounds apply regardless as raising The same rule justification There is discernable the outcome motion. preserve holding only grounds, all order to that one need state denied but not when where the motion is thereafter them instances granted. it is 657) (1980), Knight, where movant stated Cf. Green However, specific grounds. was covered
grounds of evidence cause-in-fact but not lack Further, ground negligence.” cured which could it involved lack “no plaintiff’s reopening case. raised, radiolo- As to there is some evidence that Taylor’s
gist misreading expert to causation because wit- contributed if Taylor interpreted ness the arteri- radiologist Newton said that had he known its would ogram correctly, negative showing would have Adams. duty report neurosurgeon have been this to the under incorrectly arteriogram had also several Adams read the a.m.) (around hours earlier 2:30 a.m.-3:00 and embarked on a course scan, Taylor’s misreading which did not a CT about include report hours His negative reading four later. failure to of the arteri- precluded time, ogram ordering Adams’ a CT CT scan at scan would lesion surgical necessity oper- have shown the morning ate same the decedent came into the rather hospital than when his condition had day. evolved to near death the next
If duty report had no a negative reading (which evident) he missed but was to the neurosurgeon, why did he place? read the arteriogram purpose first What was the of his it, reading report if if not to neurosurgeon negative found a reading, so neurosurgeon that the could take in pre- that into account scribing the further course of treatment?
“A directed verdict is proper only where there is no conflict the evidence as issue material and the to- evidence introduced gether with all reasonable deductions or inferences therefrom de- particular Jones, mands a verdict.” Carver v. “slight” Even evidence was regarded prevent
sufficient to devastations in Worth v. Ga. Farm &c. Ins. supra. evidence,” Where there “some “any evidence” supporting respondent’s assertions, disputed is- sues are created which are Savings resolution. United Fed. Connell, &c. Assn. v. 166 Ga. App. reverse,
We as there was some evidence of a causal connection. Judgment J., Banke, Deen, J., reversed. C. J., McMurray, P. P. Birdsong, J., Pope, J., J., P. Carley, concur. judg- concurs in the only. Sognier Benham, JJ., ment dissent. Judge, dissenting.
Benham, *4 decision, 1. In its majority the new appellate announces rules the State of Georgia: “right neither the “harmless error” rule nor the any applicable for reason” rule is in cases the judgment where grant is the result of the of a for past, motion directed verdict. In the this court has held “while some of for the court’s reasons di recting incorrect, the as to this issue were the nevertheless if right court any Jones, reason it will be Paul v. 160 affirmed.” for 673 (288 App. 671, (Emphasis supplied.) SE2d In Dal Stop ton &c. Truck v. ADBE Distrib. App. 146 Ga. 346) (1978), SE2d the trial court directed a verdict favor the any by defendant. plaintiff prior to the introduction for authority to direct a verdict Noting the trial court had evidence, defendant’s plaintiff presentation of the prior any that, nevertheless, be rea judgment right “if the stated Mullis, Ford Co. v. In Cordell son, App. 121 Ga. it will be affirmed.” (6) 120) (1970), a (173 labelled the direction of this court right “a where the result in favor of the defendant as proceeded and affirm wrong for the reasons” been reached Atlanta, Gleaton v. judgment. See also (1974): 46) excepted grant “If of a directed judgment a [the reason, right any by it will be affirmed verdict] (1) Knight, v. Green 153 Ga. courts.” verdict, (1980), but had failed party had made motion for directed specify premised. which the motion was Never grounds to theless, court, concluding This
the trial court directed the verdict. law, a matter moving party judgment entitled en judgment of harmless error and affirmed the cited the doctrine both the of a directed verdict. Since doctrine grant tered applied by have been right any error and the reason rule harmless grant brought this court to cases which an bar, applied to the case at and those rules should Wright may, & affirmed. While Miller of the trial court espouse practice procedure, principle in their and tome on federal Georgia case put precedential forth value of law majority, practice. a treatise on outweigh federal By reviewing present means of the record in the have as- appellants appellee potentially certained that believe liable under malpractice of the theory respondeat superior alleged for the However, radiologist presented no evidence of appellants involved. appellee, if relationship, any, radiologist between the appellee diagnosis with the there was evidence that was involved way appellee neg- was in appellants’ and care of decedent or appellee’s proof In the absence of rela- ligent towards decedent. decedent, tionship appellee appellee appellants’ between decedent, appellee could not radiologist appellants’ who treated of the decedent. Clanton Von held negligent liable for treatment Haam, Strickland v. ITT 627) (1986); App. 177 Ga. Rayonier, where, transcript they places to several in the
Appellants maintain, relationship employer-employee there exists instance, However, in radiologist. between and the each hypothetical question expert in which an “proof’ consists of a employee was an asked to assume that the evi- proved competent never had done some act. fact was hypothetical question assumption unproven dence. The of an fact *5 fact, proof appellee’s object not of failure to does constitute hypothetical question in which such a fact was assumed is a of hypothetical questioner’s waiver of and not a waiver the the of the which proving hypothetical question burden facts the assumptions give probative unproven based. It does value to the not proof appellee’s ap- made therein. In absence of of role vis-a-vis the decedent, proof part or pellants’ negligence appellee, of of responsible anyone allegedly for the of actions I in negligent, granting appellee’s believe the trial court did not err motion for verdict. dicta,
2. I majority opinion Division is mere compelled pronouncement am the trial oral out that court’s precluded voluntary of the directed verdict the filing dismissal against by appellee. the announcement a trial of a judge “[T]he decision that will terminate though a civil decision formally entered, been preclude reduced to writing filing will the voluntary judg dismissal after the announcement but before the Paul, ment is actually judge. Bytell [Cits.]” Trinity See also Mixon v. Svcs., 362) (1985). Thus, contrary to assertion, majority’s filing appellant’s voluntary dismissal filing granting order the directed verdict in favor of nullity would not have rendered the latter a since the oral pronouncement preceded of the intent filing direct voluntary dismissal.
3. I Finally, with majority differ factual matters in opinion. tained Contrary main in the assertion contained majority opinion, Taylor, Dr. alleged employee appellee, was a defendant the lawsuit. While the record before us does not contain answer, Taylor’s Dr. appellants that is because did not designate pleading for inclusion See record. OCGA 5-6-43. Appellee went through trial because it was also named a defendant I complaint, can find nowhere record transcript anything from conclusion be drawn that represented at trial Radiology Associates.
Because believe the trial court was correct it directed a appellee, favor of I would affirm judgment. the trial court’s I am Judge joins authorized state that Sognier this dissent. Decided December Rehearing denied December Jr.,
B. Seth Harp, Mincey, appellants. J. Roxanne Bradley, appellee. Y. Allison, Richard Ray L. v. GRANT et al. COUNTY GWINNETT
Benham, Judge. proceedings involving land condemnation Appellant instituted ap- The trial court 22-1-102. *6 appellee Grant. OCGA owned § $350,093 April 18, on who awarded special master pointed a The was day. same award made the award that and who filed 25, 1984, filed on an April of the court judgment On Decem- May court on appeal the award to trial from ap- the condemnee’s 4, 1985, filed a motion to dismiss appellant ber timely See OCGA 22-2-112. it was not filed. peal trial was had on the jury the motion and The trial court denied resulting a verdict and compensation, of just adequate issue $542,879.50 county’s compensation. appeal, On sole of is the denial of its motion dismiss enumeration error appeal special master’s award. demnee’s any party is dissatisfied with provides: 22-2-112 “In case OCGA § master], special may, within ten the amount of the award [of filed, appeal an from days writing is enter after award county superior where award filed award to the court 2May appeal was not undisputed . . .” the condemnee’s It filed award was on days special filed ten after the master’s within Atlanta, Enterprises April Howell 18. See (1971). Hodges &c. Gas v. South Ga. Relying contends, 182) (1965), appellee by appellee held, jury for a trial made the trial court that a demand jury allow special master’s award existed was sufficient to before the compensation. In adequate so just determination of the issue trial doing, implicitly equated jury a demand with the trial court appeal special from master. an the award May Hodges, was 7 but filed
In the assessors’ award dated 8,May filed the award May appeal jury until 9. The was after appeal to dismiss the but before it was filed. motion signed Hodges, denied, untimely upheld denial. Hodges, In an award however, distinguishable from the case at bar. bar, filed; in the case at was in existence when the special master’s award jury preceded for a trial two demand fact, special had not hearing before the master weeks. special appellee sought trial of issue yet been held Hodges initially. distinguishes master was to The factor decide by a tribu- bar, of an award “rendered the case at the existence