Hancock v. Bryan County Board of Education

522 S.E.2d 661, 240 Ga. App. 622, 99 Fulton County D. Rep. 3501, 1999 Ga. App. LEXIS 1445
CourtCourt of Appeals of Georgia
DecidedSeptember 14, 1999
DocketA99A1572
StatusPublished
Cited by7 cases

This text of 522 S.E.2d 661 (Hancock v. Bryan County Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hancock v. Bryan County Board of Education, 522 S.E.2d 661, 240 Ga. App. 622, 99 Fulton County D. Rep. 3501, 1999 Ga. App. LEXIS 1445 (Ga. Ct. App. 1999).

Opinions

Eldridge, Judge.

Because of abusive behavior, plaintiff-appellant Shirley Hancock’s grandson was suspended from riding the school bus. The next morning, Hancock boarded the school bus on one of its regularly scheduled stops and attempted to talk to the school bus driver, defendant Emmanuel Sarbee, about the suspension. Sarbee asked Hancock to leave the bus, since school policy precluded the discussion of discipline problems while the bus was en route and also prohibited parents and other adults from boarding the bus. Hancock fell as she disembarked. Seeking recovery for a back injury she allegedly sustained during the fall, Hancock filed a negligence action against Sarbee, the Bryan County Board of Education, and the defendants’ [623]*623insurance carrier. A Bryan County jury found for defendants. Hancock appeals the verdict. Finding no error, we affirm.

1. Hancock first contends that the trial court violated the “best evidence” rule by permitting defense witness Dr. Bobby Rahn to testify that Sarbee’s actions were in compliance with the Rules & Policies of the Bryan County Board of Education without first requiring that a copy of said Rules be placed into evidence. However, Hancock did not raise a “best evidence” objection to Rahn’s testimony regarding the Rules & Policies. Such specific objection must be made at trial, or it is waived. Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). Further, prior to Rahn’s testimony, the substance of the relevant Rules & Policies was put before the jury — without objection — through the testimony of another defense witness. A copy of the Rules themselves would be merely cumulative of such testimony. See, e.g., Adams v. State, 217 Ga. App. 706, 707 (1) (459 SE2d 182) (1995).

2. In enumerations of error 2 and 3, Hancock contends that the trial court erred in charging the jury (a) that, upon her entry onto the school bus, Hancock was either a licensee or a trespasser; and (b) regarding the standard of care owed to each, i.e., the duty not to wilfully or wantonly injure. However, Hancock’s counsel specifically requested that the trial court charge the jury on the law regarding trespassers and the “wilful and wanton” standard of care. Also, during a colloquy with the trial court, Hancock’s counsel specifically suggested that Hancock’s status might be that of a licensee. “A defendant cannot complain of a verdict which was brought about by a charge which he had requested. One cannot complain of a . . . charge that is aided by his own trial tactics, procedures, and conduct.” (Citations and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).

Further, Hancock’s alternative contention that, upon boarding the school bus, she was a “passenger” on a “common carrier” is incorrect as a matter of law. A school bus is not a motor common carrier. OCGA § 46-1-1 (9) (C) (i); see also Division 5, infra. Hancock’s unauthorized boarding of the school bus did not make her a “passenger” thereon. White v. Boyd, 58 Ga. App. 219 (198 SE 81) (1938); see also OCGA § 46-1-1 (10). Accordingly, Hancock’s enumerated allegations are without merit.

3. We find no error in the trial court’s denial of Hancock’s belated oral request to charge that a person intends the natural and probable consequences of his or her acts.1 “It is never error to deny an oral [624]*624request to charge.” (Citations and punctuation omitted.) Shilliday v. Dunaway, 220 Ga. App. 406, 409 (5) (469 SE2d 485) (1996).

4. In her fifth enumeration of error, Hancock contends that the trial court erred in charging the jury on the legal principle of “assumption of the risk.” However, following the trial court’s charge, there was no objection to charging the jury on assumption of the risk. Hancock’s only objection with regard thereto was in the trial court’s failure to define two legal terms used in the charge. “An objection to a charge in a civil case must be made after the court instructs the jury and before the jury returns a verdict; an objection made only at a charge conference is insufficient to preserve an issue for appeal.” (Citation and emphasis omitted.) Bruno v. Evans, 200 Ga. App. 437, 441 (4) (408 SE2d 458) (1991).

Moreover, we reject Hancock’s contention that, even in the absence of an objection, the trial court’s charge on assumption of the risk requires review pursuant to OCGA § 5-5-24 (c). OCGA § 5-5-24 (c) must be strictly construed “to prevent emasculation of subsection (a),” which requires specific objection to the charge. (Citations omitted.) Moore v. Sinclair, 196 Ga. App. 667, 672 (6) (396 SE2d 557) (1990). The instances in which the subsection applies are extremely rare and are applicable only to those cases in which an erroneous charge or failure to charge results in a “gross injustice.” Gray v. Elias, 236 Ga. App. 799, 802 (513 SE2d 539) (1999). Here, the defense presented evidence that Hancock fell because she attempted to exit the bus by “stepp [ing] backwards, blindly, not seeing where [her] foot was gonna land” and that she knowingly assumed the risk of falling by engaging in such dangerous action. This issue presented a question of fact for the jury to decide and was supported by the evidence. Wade v. Mitchell, 206 Ga. App. 265, 270 (424 SE2d 810) (1992). Accordingly, Hancock has failed to demonstrate that the court’s charge represented a “gross injustice” upon the trial of this case so as to warrant review pursuant to OCGA § 5-5-24 (c). Gray v. Elias, supra at 802.

5. The evidence was undisputed that the school bus in the instant case was engaged solely in transporting schoolchildren and teachers to and from public schools. Thus, contrary to Hancock’s assertion, the bus was not a “motor common carrier” as a matter of law. OCGA § 46-1-1 (9) (C) (i); see also Division 2. The trial court did not err in so finding. Hancock’s reliance upon case law which precedes the 1993 enactment of the above-referenced statute is misplaced. See Ga. L. 1993, p. 579, § l.2

6. At Hancock’s request, the trial court charged the jury on the [625]*625law regarding a licensee, a trespasser, and the duty of care owed to each. As to the duty of care owed to a licensee, the trial court charged the jury that, “A licensee enters on the property at her own risk, and the owner owes the licensee no duty as to the conditions of the property, except that the owner should not knowingly let the licensee run into a hidden peril or wilfully or wantonly cause her injury.”

Hancock contends that there was no evidence of a “hidden peril” and that portion of the charge is completely inapplicable.

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Hancock v. Bryan County Board of Education
522 S.E.2d 661 (Court of Appeals of Georgia, 1999)

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Bluebook (online)
522 S.E.2d 661, 240 Ga. App. 622, 99 Fulton County D. Rep. 3501, 1999 Ga. App. LEXIS 1445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hancock-v-bryan-county-board-of-education-gactapp-1999.