*1 guilt.5 of consciousness

Perhaps significantly, arrested, Den- at the time he was carrying attempting hide in cash and nard food was $149.28 $10 — stamps precisely almost the amount believed to have been robbery. extremely large in the The cash included an number stolen of coins — — pennies quarters, nickels, dimes, and very might expected register in cash but would be amount that carry pockets. individual to around in his The amount unusual for an stamps taken of food during was the exact amount Braddock testified was robbery. Although told an he won the Dennard officer that money stamps gambling, and food he no evidence of this at trial. — When all of the evidence is considered as a whole Dennard’s apprehension nearby early robber, hour resemblance to in his an and morning, attempt police his to hide from discard to. money, aggressive inculpa- child, his move toward Moore and her his tory money police, type statement to and the and amount of and food — stamps pockets found or discarded under the car we believe it Dennard was sufficient to enable a rational trier fact to conclude

guilty beyond robbery.6 a reasonable doubt of the Judgment Ellington, Andrews, J, J., P. concur. affirmed. January 12,

Decided 2000. appellant. Williams, Jr.,

Joel E. Attorney, Timothy Lumpkin, Durden, Jr.,

J. Thomas District B. Attorney, appellee.

Assistant District

A99A2040. v. WALDO MOORE. Presiding Judge. McMurray, guest Plaintiff Alice social the home of defendant Margaree brought Moore, this tort action to recover for the second degree burns she sustained from hot water in the shower. defendant, The trial court directed verdict favor of appeals. Held: (1) (“ ‘Any person, indicating See id. at 544 statement or conduct of a a consciousness guilt, is, thereafter, crime, person suspected where such at the time ”). upon against committing him admissible his trial for it.’ (1) (197 State, (affirming See Thomas v. 540-541 identification). although positive conviction victim not about is authorized to conclude that Moore’s inten-

Because the with her coupled negli- act of raising tional her social to this fact after the failing to alert gence wilful and wanton her intention to bathe amounted to reverse the direction of the verdict. on Moore’s we part, behavior *2 wrongful “When the defendant’s act was not a fail- or as to diligence grossly negligent ure but was wilful so reckless, plaintiff wanton and the mere failure of the servant of care will not defeat a ordinary the exercise Newman, 560, 2 [Central R. &c. Co. v. 94 Ga. hn. recovery.” (21 219).] SE (123 (1) Co., 438, Storage

Carr v. John J. Woodside 261). 217 Ga. 439 If the the as to amount negligence gross [defendant] of is so [sic],1 to wanton want and willful such of ordi- care the the nary by person injured killed to avoid conse- of it would be no bar to a for the quences recovery (11 1039)] Denson, Central R. Co. v. Ga. [84 774 SE and W. & (31 547)]. A. R. Co. v. Ga. 100 SE Bailey, [105 924). Payne, Lowe v. 156 Ga. SE These Supreme Georgia long Court of authorities have been by this Court in tort actions applied prem- occasioned on residential they applications ises because are fact of the identical legal duty of (licensee) care a homeowner owes a social under OCGA 51-3- § (b), to refrain namely inflicting from “willful or wanton injury.” licensee, To the [as as] well the no trespasser, duty arises of the . . . to . keeping premises up any . . standard of safety, except they must not contain man- pitfalls, Dale, of that traps, things type. Mandeville Mills v. [(58 1060)]. Ga. SE See Central R. Co. v. Ga. Led 81). better, 46 Ga. App. 500 . . . (Emphasis supplied.) (182 Jordan, MacKenna v. 550). case, the complaint alleges a violation of OCGA 51-3-2 by language employed Supreme subject We realize the the Court of the to oxymoron, opposites criticism that it is an “for wilfulness far and wantonness are so the expression misleading, though frequently employed by as to make the . . . it is Moore,

many jurists App. 562, of our best and law-writers.” Central R. Co. v. of Ga. 642). (2) (63 SE by intentionally a hidden knowing peril defendant’s creation of by use, the hot water for residential increasing temperature clothes, her social namely informing plaintiff, guest. to wash without was admitted light plaintiff, Viewed favorable to from the Plaintiff esti- by helped plaintiff as she bath. by seconds, she for 28 as a result of scalding mated was hit water her San- coming treating physician, which skin started off. Plaintiff’s Hawkins, safe for bath setting ford testified the maximum water is 120 Fahrenheit. from the little time it took for Judging degree to sustain the associated with second burn- plaintiff blistering Dr. water defend- ing, Hawkins estimated that at “[g]reater [degrees] ant’s residence was than 131 Fahrenheit.” Plain- tiff had previously bathed defendant’s residence incident. on the to question, And intention morning plaintiff defendant, bathe to who failed she plaintiff to warn had raised From the moment first turned on temperature. water, “[v]ery off, it felt hot.” tried it to “get Plaintiff turn but [she] water] . . . fell the tub and . . . get up [scalding couldn’t kept pouring [her].” down on Whether tempera- ture in the shower peril, mantrap, constituted a hidden pitfall Jordan, undoubtedly a jury determination. MacKenna v. *3 (2), 123 Ga. at App. supra. [is],

Then the question would the authorized to jury be find [defendant’s that intentional conduct in the increasing water temperature combined with negligent defendant’s in failing omission to mention this fact when her guest announced bathe, the intention to when in viewed the light to the verdict], favorable nonmovant for directed amounted to wilful and conduct], [or wanton which the defendant think liable? We this should be answered in the affirmative.

(Emphasis supplied.) 585, Humphries Co., v. Southern R. 51 Ga. App. 135). The correctly dissent the states that host must exercise ordinary care to warn of a peril. hidden But the dissent errs in concluding that, matter of applied as a law to undis- fact, puted plaintiff violated the common sense of mankind and failed to exercise such as prudence ordinarily the careful would person use in a like authority situation. Under the Kroger Co., Robinson v. (1) (493 735, 403), SE2d that in determination this routine residential premises liability case for the jury, and this Court. The trial in court erred verdict in directing the this case. J.,

Judgment J., Miller, J., Smith, Pope, reversed. P. and concur. Johnson, J., Andrews, J., concurs in the judgment only. C. P. J., Phipps, dissent.

Phipps, dissenting. Judge, lia- injury may impose who sustains invitee Although a business 51-3-1; on OCGA negligence, owner based § on a bility premises (243 SE2d Assoc., App. 145 Ga. Interstate North Jones v. recover for wilfulness may or licensee a social (b); Scott, Davis v. the (502 OCGA 51-3-2 causing in wantonness 332) (1998). of wilful concept 232 Ga. in Truelove v. Wil- disapproved rightfully was and wanton (1981), and has son, Court of ever Supreme from the received scant attention support is whether there is evidence The issue this case since. wilfully wantonly injured Moore that homeowner finding two What questions: we ask resolving question, Waldo. injury? wilful or wanton evidence show? What constitutes does the old, years spent that who was 63 The evidence shows morning, the next she Moore’s After breakfast house. night to take a shower. She entered going that she was knob, water to shower, begin and allowed the turned on hot water Because Moore had testing onto without it. flowing directly herself morning heater that the thermostat on her water earlier raised clothes, spout the shower emerging to wash from order had not informed Fahrenheit. Moore degrees approximately change temperature setting. Waldo of the once before had visited Moore’s home Waldo testified she occasion, Waldo taken incident. On this and had baths remained began hitting hot water her. She and fell when the slipped house heard her cries for assistance there until others showing any- no evidence came to her rescue. Waldo as a injuries in Moore’s house had received burn previously one a bath or shower. taking result of exper- who is both trained and attending physician,

Waldo’s maximum recom- victims, scald testified that treating ienced water is 120 Fahrenheit. mended safe for bath safe tem- the maximum recommended He testified also heaters, children residential water because perature setting But he acknowl- temperature. the home cannot differentiate *4 high heaters can be set as as 180 residential water edged is used for other being purposes Fahrenheit when the water degrees than or showering bathing. “ or an actual intent to do harm Wilful conduct is based on inflict (2) (c) (472 676 English, App. . . .’” Muller v. injury. 448) (1996). intentionally that Moore Because there is no claim SE2d from which there is evidence question is whether injured inflic- conduct amounted to wanton a could find Moore’s jury “ as ‘that which Wanton conduct has been described injury. tion of

801 consequences with as to so reckless or so indifference to the spirit [to equivalent harm inflict to actual intent’ do be the [Cit.]” injury]. imposition egregious it Id. It is so is nature that authorizes the the punitive damages, deprives 51-12-5.1, OCGA contributory Hopkins negligence. of the defense of v. First (2) (a) (387 144) (1989). &c., Bank Ga. Union SE2d majority The holds that a could find "that Moore’s inten- raising negli- temperature coupled act of tional her gence failing her to alert social to this fact after the announced her intention to amounted to wilful and bathe wanton part. my analysis opinion, behavior on Moore’s . . .”In this funda- mentally determining injury- In flawed. whether a defendant’s causing or wanton, conduct is wilful we look to the defendant’s state underlying injury mind to of such conduct as it relates both the conduct and the produces. questions The are this case not whether intentionally Moore raised the on thermostat negligent failing or was to to fact. The alert Waldo by doing things, injure whether, these Moore either intended to equivalent spirit Waldo intent to acted with a recklessness to an actual injure. (123 Storage Co., Carr v. John J. Woodside Ga. Banking Denson, and Central R. & Co. v. Ga. representa- 1039) (1890), majority opinion, cited in both are involving Carr,

tive of cases such conduct. In a drunk reckless driver operated speed at an vehicle rate of excessive and failed to slow although warning sign. down an intersection noticed a at. he Den- plaintiff’s walking son, track, decedent was a a deaf man on railroad company’s employees railroad could have seen him for yards they gave warning before reached him but no of the train’s approach any attempt nor made the train it to slow until was within Interestingly, a few feet of the deceased. Denson establishes that also person present where on a track railroad is an adult not known to laboring physical handicap, operators be mental under a of a train are entitled to assume that he will take action to avoid Liabil- ity operator for wantonness attaches where the train no makes attempt injury assumption proves to avoid even after this unfounded. dispute competent

The evidence shows without is a Waldo expert adult. Her own testified that residential water heaters should possibility injury set above 120 because children. Even if Moore’sfailure an to warn Waldo was omission con- stituting negligence, simply there is absence of evidence finding case sufficient to authorize a that her conduct rose to the level of wanton behavior. which case comes the closest to this case on its facts 96) (1964).

is Sarno v. Hoffman, There, *5 suddenly standing when the under a shower motel operators warning He hot. became and without among things, negligence because, other with the motel high water was too pressure of the and the was uneven stronger case bathing. much reasons, Sarno For two for for duty guest a liability its First, the motel owed this case. than does through negligence. could not injuring Second, the him to avoid by being anything Yet, it took a the water. scalded to avoid done have proceed to a in Sarno to to allow even divided court theory. negligence aon 403) Kroger does Co., 268 Ga. 735 v. Robinson grant require motion for of Moore’s the trial court’s us to reverse primarily the routine concerned with verdict. Robinson directed adjudication whether there here is issues. Ligon, v. Alterman Foods or wantonness. evidence of wilfulness summary judg- (1980), was decided because being granted slip too fall cases was issues ment on infrequently. swung oppo- pendulum far in the had too Because recognizes that Yet Robinson direction, was decided. Robinson site law, matter of that, held as a in which it can be are cases there invitee failed safety. my ordinary personal In care for to exercise competent opinion, shower, turns the hot water enters a adult who directly begin flowing herself onto the water to knob, and allows ordinary testing law, failed to exercise has, matter of it as a majority, refusing safety. rather hold, the to so for her own care swinging pendulum complying to the Robinson, back than pre-Alterman respectfully era. I dissent. Foods Presiding Judge that Chief Johnson I am authorized to state Judge join Andrews this dissent. 12, 2000 January

Decided Tuszynski, appellant.

David E. Hull, Taylor, Salley, Floyd Towill, Norman, M. Barrett & appellee. et al. CORPORATION DeLOACH et al. v. ROVEMA

A99A2431. (527 SE2d Judge. Phipps, product duty liability product seller of a case concerns This dangers product-related known after which become to warn of product. sale of the Tetley Company, employed by Tea DeLoach, a mechanic Robert