Georgia Court of Appeals this week

There have not been any Georgia Supreme Court opinions since April 24, and no Eleventh Circuit opinions since the Skop case issued last Thursday. The Georgia Court of Appeals has had a slow trickle of opinions in the last week, though.

Another in a series of recent cases demonstrating the dangers of the construction business (and the difficulty in obtaining damages against anyone for construction-related injuries), in Golden v. Vickery, 2007 WL 1266861, the Georgia Court of Appeals affirmed summary judgment in favor of Vickery and the City of Calhoun, for injuries Golden suffered when his lift came into contact with electrical wires while installing siding on the roof of a building, on the basis of qualified immunity. Golden had notified Vickery that the siding work would be done, requesting the electrical lines be de-electrified for the work. Vickery decided it would be better to install protective coverings, which failed, and resulted in Golden's electrocution, resulting in severe burns.

Because the decision to install protective coverings was a discretionary one, rather than a ministerial act, Vickery was entitled to qualified immunity. In other words, the law protects only against stupidity that is reduced to written policy, and not individual incompetence.

In J&E Builders, Inc. v. R C Development, Inc., 2007 WL 1276880, the Georgia Court of Appeals reversed a decision in favor of the developer-seller and against the builder-purchaser of lots. The purchase and sale agreement stated that "Seller will record a set of covenants, selected by the Purchaser for the subdivision, before the close of any lot." The builder presented covenants to the developer a week before closing, but the developer rejected those covenants. The parties proceeded to closing, however, and the developer then refused to close on the ground that the builder did not provide the developer with covenants to record, or alternatively because the builder used a lender other than the one in the contract. The Georgia Court of Appeals reversed summary judgment for the builder, determining that the contract was unambiguous in not requiring that the purchaser have covenants if it so chose (and in any event, any requirement was waived), and it rejected the alternative ground regarding the lender because the provisions in a purchase and sale agreement regarding financing are for the benefit of the purchaser, not the seller, and cannot be a basis for the seller to refuse to close.

In criminal cases, the Georgia Court of Appeals reversed two convictions on Fourth Amendment grounds.

In Foster v. State, 2007 WL 1266837, the Georgia Court of Appeals reversed a conviction for drug possession due to a faulty search. The officer approached the defendant, who then "appeared nervous" and kept putting his hands in his pockets in spite of the officers' requests not to. The officer then asked, "for my safety, is it okay if I search your pockets?" The defendant consented, and the officer found, shockingly, not weapons, but baggies of marijuana and crack. The Court of Appeals reviewed the doctrines relating to warrantless searches of persons stopped on the street, and concluded that it was unlawful for the officer to obtain consent to search (instead of pat down) the defendant for weapons, thereby locating the drugs instead.

The court reversed another conviction on Fourth Amendment grounds in Young v. State, 2007 WL 1266902, finding an officer did not have reasonable articulable suspicion to stop a driver who turned out to be a habitual offender. Apparently the only basis for the stop was that there had been some thefts of lawn equipment in the area, and Mr. Young was driving a car with a lawn mower in the trunk. The Georgia Court of Appeals held the officer had to do better than that in articulating his reasonable suspicion.

The Court of Appeals also issued decisions affirming termination of parental rights in In the Interest of J.M. N., J.L. N., and T.A. J., 2007 WL 1248135, and affirming a conviction for spitting in an officer's face (clearly a bad idea) over claims for mistrial and ineffective assistance in Dixon v. State, 2007 WL 1266868.