Georgia Ports Authority v. Hutchinson

Pope, Chief Judge,

concurring specially.

Although I agree with the holding in Division 13 of the majority opinion that the trial court erred in denying Georgia Ports Authority’s motion for punitive damages, I write separately to state how my analysis of this issue differs from the majority opinion.

1. There are additional cases concerning the issue of punitive damages against authorities not mentioned in the majority opinion that are important to the analysis of this issue. Prior to our Supreme Court’s decision in MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) (1991), the appellate courts of this state allowed punitive damages to be assessed against “authorities.” In Hodges v. Effingham County Hosp. Auth., 182 Ga. App. 173 (355 SE2d 104) (1987), this court allowed a hospital authority to be sued for punitive damages on the basis that the statutory “sue or be sued” language in the statute creating the authority imposed the same tort liability upon a “public body corporate and politic as is imposed upon a private corporation.” Id. at 175. Although in MARTA v. Boswell, supra, our Supreme Court did not expressly overrule Hodges, by adopting the rationale set forth *732in City of Newport v. Fact Concerts, 453 U. S. 247 (101 SC 2748, 69 LE2d 616) (1981) and holding that punitive damages may not be assessed against governmental entities because such awards punish the taxpayers through either an increase in taxes or a reduction in the public services available to the citizens, our Supreme Court made it clear that governmental entities will no longer be held liable for punitive damages.1 Interestingly approximately three months after Boswell was decided, our Supreme Court issued an opinion sustaining a punitive damage award against the Hospital Authority of Gwinnett County. Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613 (409 SE2d 501) (1991), cert. den.,_U. S__(112 SC 1175, 117 LE2d 420) (1992). In a footnote, however, the court noted that the issue of whether punitive damages are appropriately awarded against a hospital authority had not been raised in that case and cited the Boswell decision, apparently signalling that if that issue had been raised it would have reversed the imposition of punitive damages against the hospital authority. Accord City of Columbus v. Myszka, 246 Ga. 571, 573 (272 SE2d 302) (1980) (holding that absent explicit statutory authority a municipality cannot be held liable for punitive damages).

2. I agree with the majority’s conclusion that there is a substantial possibility that the verdict was affected by the trial court’s erroneous denial of the Ports Authority’s motion for directed verdict on the issue of punitive damages. Because punitive damages are not authorized against the Ports Authority, I must also concur in the majority’s conclusion that the award of damages in this case must be struck and a new trial on damages must be conducted upon remand. We would not have to engage in speculation about the kind of damages comprising the general verdict rendered in this case if a proper verdict form had been submitted to the jury. See Clarke v. Cox, 197 Ga. App. 83, 84 (397 SE2d 598) (1990) (suggesting in cases seeking punitive damages pursuant to OCGA § 51-12-5 “the form of the verdict should provide the jury with guidelines to separately determine the issue of punitive damages for each tort.”)

For that reason, I am uncomfortable with seemingly “rewarding” the Ports Authority’s conduct concerning the form of the verdict. The record reflects that the plaintiff rather than the Ports Authority objected to the trial court’s ruling concerning the form of the verdict to be submitted to the jury. The plaintiff pleaded with the court to allow a special verdict form to be submitted to the jury which would allow the jury to specify an amount for punitive damages, the trial court refused to allow such a form to be submitted to the jury and *733ruled “[i]f [the jury] want[s] to award any [punitive damages], they can award them in the sum that is awarded in the general verdict, we the jury, find ... in favor [of the plaintiff] and against the defendant in the amount of blank dollars, of which we include the amount of blank dollars for medical expenses.” Thus, the trial court’s ruling made it impossible for the jury to specify the amount of punitive damages if they found punitive damages were appropriate.

Decided July 16, 1993 — Reconsideration denied July 28, 1993 — Michael J. Bowers, Attorney General, John B. Ballard, Jr., Roland F. Matson, Senior Assistant Attorneys General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Thomas J. Ma-honey III, R. Stephen Flagler, for appellants. David H. Fritts, Billy E. Moore, Shari S. Miltiades, for appellee.

Throughout this colloquy about the proper form of the verdict which consists of approximately eight pages of the transcript, the Ports Authority acquiesced in the court’s ruling. Finally, after the jury was charged, the plaintiff withdrew its objection to the form of the verdict. After the verdict was returned neither the plaintiff nor the Ports Authority objected to the form of the verdict. At one point during the colloquy the plaintiff suggested that the reason the Ports Authority was willing to acquiesce in the trial court’s ruling on the form of the verdict is because it would invite error on appeal. I am inclined to agree. It is well-settled that a party may not acquiesce in a ruling of the trial court and then complain of that ruling on appeal. Blaxton v. Clemens, 202 Ga. App. 668, 669 (415 SE2d 304) (1992). For that reason, to the extent that this decision and our decision in Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860 (389 SE2d 355) (1989) allow parties to benefit from rulings they acquiesced in at trial those cases should be specifically limited to their facts and only be followed when the ruling of the trial court constitutes substantial error and is harmful as a matter of law. See Ray v. Stinson, 254 Ga. 375 (329 SE2d 502) (1985).

In Cox Enterprises v. Carroll City/County Hosp. Auth., 247 Ga. 39, 46 (273 SE2d 841) (1981), our Supreme Court held that the Carroll City/County Hospital Authority was a governmental entity.