Heard v. City of Villa Rica, 701 S.E.2d 915 (Ga. Ct. App. 2010). · Go Syfert
Heard v. City of Villa Rica, 701 S.E.2d 915 (Ga. Ct. App. 2010). Cases Citing This Book View Copy Cite
75 citation events (75 in the last 25 years) across 5 distinct courts.
Strongest positive: P-D Valmiera Glass USA Corp. (ganb, 2025-08-29)
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Top citers, strongest first. 29 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) P-D Valmiera Glass USA Corp. (2×) also: Cited as authority (quoted)
Bankr. N.D. Ga. · 2025 · quote attribution · 2 verbatim quotes · confidence high
gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care.
discussed Cited as authority (quoted) Sanderwala, LLC v. Douglas A. Biles (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2023 · quote attribution · 1 verbatim quote · confidence low
ur appellate courts are courts for the correction of errors of law committed in the trial court. routinely, this court refuses to review issues not raised in the trial court.
discussed Cited as authority (rule) Ryan Michael Jones v. Dho, Inc.
Ga. Ct. App. · 2025 · confidence medium
See generally Ga.-Pac. v. Fields, 293 Ga. 499, 504 (2) ( 748 SE2d 407 ) (2013) (holding that we cannot affirm a grant of summary judgment as right for any reason for a reason not raised before the trial court); Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 (1) ( 701 SE2d 915 ) (2010) (holding that we cannot apply a “wrong for any reason” rule to reverse a trial court ruling on an issue not raised before that court).
discussed Cited as authority (rule) STERLING SEACREST PRITCHARD, INC. v. KAYLA HOLDERFIELD
Ga. Ct. App. · 2025 · confidence medium
Pretermitting any possible merit to a modification argument, this Court will not reverse a grant of summary judgment as “wrong for any reason.” Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 (1) ( 701 SE2d 915 ) (2010).
examined Cited as authority (rule) Kennestone Hospital, Inc. v. Gregory P. Turner (3×)
Ga. Ct. App. · 2025 · confidence medium
Heard v. City of Villa Rica, 306 Ga. App. 291, 294 (1) ( 701 SE2d 915 ) (2010) (citations and punctuation omitted); accord OCGA § 51-1-4. “[M]erely acting in a way that no prudent person would is negligence, but absent a greater deviation from ordinary care beyond that which even careless people observe, the conduct does not meet the gross 2 The parties do not appear to dispute that Turner’s complaint asserts a “COVID-19 liability claim,” which is defined as a cause of action for “[a]cts or omissions by a healthcare facility or healthcare provider in arranging for or providing healt…
discussed Cited as authority (rule) A.H., ex rel. v. CALLAWAY GARDENS RESORT, INC. (2×)
M.D. Ga. · 2021 · confidence medium
“In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care.” Newton v. Jacobs, 854 S.E.2d 359 , 364 (Ga. Ct. App. 2021) (emphasis added) (quoting Heard v. City of Villa Rica, 701 S.E.2d 915, 919 (Ga. Ct. App. 2010)).
discussed Cited as authority (rule) OMNITECH INSTITUTE, INC. v. JASMINE NORWOOD
Ga. Ct. App. · 2021 · confidence medium
So even if the trial court did not consider these provisions in her ruling, and even if her ruling was incorrect as a result, “we do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.” Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 (1) ( 704 SE2d 915 ) (2010) (citations and punctuation omitted).
discussed Cited as authority (rule) Two Rivers Holding Company, Inc. v. Cecilia M. Rogers
Ga. Ct. App. · 2021 · confidence medium
Nevertheless, with respect to this contention, “gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care[.]” (Citation and punctuation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 294 (1) ( 701 SE2d 915 ) (2010).
discussed Cited as authority (rule) Ronald Newton v. Travis Jacobs
Ga. Ct. App. · 2021 · confidence medium
The absence of such care is termed gross negligence.”) “In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care[.]” Heard v. City of Villa Rica, 306 Ga. App. 291, 294 (1) ( 701 SE2d 915 ) (2010) (citation and punctuation omitted). 10 Generally, when facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable people as to whether or not negligence can be inferred, and, if so, whether in degree the negligence amounts to gross negligence, the right to draw the inferenc…
discussed Cited as authority (rule) Stephen Spirnak, Jr. v. Kathryn Westberry Meadows (2×)
Ga. Ct. App. · 2020 · confidence medium
There is nothing in the record to show that the affidavits were admitted at the final hearing. 12 “[W]e do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 ( 701 SE2d 915 ) (2010). 26 or expanding the litigation); 19-6-15 (k) (5) (awarding fees in petition to modify support “as the interests of justice may require”); and 19-9-3 (g) (except in cases of fees awarded due to financial circumstances, trial court may award reasonable attor…
discussed Cited as authority (rule) Morgan County, Georgia v. Jimmy A. Gay
Ga. Ct. App. · 2019 · confidence medium
Lastly, we affirm the superior court’s denial of Gay’s motion for injunction to stay the condemnation proceeding, but reverse its finding that Gay’s motion to enjoin the County from contaminating his property is moot, and we remand that portion of the case to the superior court for further proceedings consistent with this opinion. 14 “Although under the ‘right for any reason’ rule this court will affirm the correct ruling of a trial court on grounds not addressed below, we do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon…
discussed Cited as authority (rule) NORRIS GRESHAM, JR. v. CLIFFORD HARRIS, JR., A/K/A \TI\""
Ga. Ct. App. · 2019 · confidence medium
To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, ‘He must stand or fall upon the position taken in the trial court.’ Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court.” (emphasis supplied) (citations & punctuation omitted)); Heard v. City of Villa Rica, 306 Ga. App. 291, 293-94 (1) ( 701 SE2d 915 ) (2010) (same); see also Lowery v. Atlanta Heart Assocs., P.C., 266 Ga. App. 402, 404-05 (2) ( 597 SE2d 494 ) (2004) (“Although under the ‘right for any reason…
cited Cited as authority (rule) Patton v. Cumberland Corporation.
Ga. Ct. App. · 2018 · confidence medium
Wolfe , supra, 314 Ga. App. at 859 (2) (b), 726 S.E.2d 122 ; Heard , supra, 306 Ga. App. at 294 (1), 701 S.E.2d 915 .
discussed Cited as authority (rule) J. Thomas Connolly III v. Jeffrey D. Smock
Ga. Ct. App. · 2016 · confidence medium
Appellants do not raise this argument here, and “we do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.” Heard v. City of Villa Rica, 306 Ga. App. 291, 293-94 (1) ( 701 SE2d 915 ) (2010) (citation omitted). 11 15-14(b), a prevailing party must prove both their actual cost and their reasonableness.” Bankston v. Warbington, 319 Ga. App. 821, 823 (2) ( 738 SE2d 656 ) (2013) (citation and punctuation omitted).
discussed Cited as authority (rule) Connolly v. Smock
Ga. Ct. App. · 2016 · confidence medium
Appellants do not raise this argument here, and “we do not apply a ‘wrong for any reason’ rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.” Heard v. City of Villa Rica, 306 Ga. App. 291, 293-94 (1) ( 701 SE2d 915 ) (2010) (citations omitted).
discussed Cited as authority (rule) Goldstein, Garber & Salama, LLC v. J. B. (2×)
Ga. Ct. App. · 2015 · confidence medium
Routinely, this Court refuses to review issues not raised in the trial court.” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 293 (1) ( 701 SE2d 915 ) (2010).
cited Cited as authority (rule) Goldstein, Garber & Salama, LLC v. J. B.
Ga. Ct. App. · 2015 · confidence medium
Routinely, this Court refuses to review issues not raised in the trial court.” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 293 (1) ( 701 SE2d 915 ) (2010).
discussed Cited as authority (rule) 2010-1 Sfg Venture LLC v. Lee Bank & Trust Company
Ga. Ct. App. · 2015 · confidence medium
“In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care.” (Citation and punctuation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 294 (1) ( 701 SE2d 915 ) (2010).
discussed Cited as authority (rule) Roger F. Kahn v. Daniel Lamar Britt, Jr.
Ga. Ct. App. · 2014 · confidence medium
In granting summary judgment to Gwaltney on the fiduciary duty claim, the trial court ruled that Gwaltney was entitled to rely on Section 8.5 of the trust instrument, which limited a trustee’s liability to instances of “wilfull default, wrongdoing, or gross negligence, but not for honest errors of judgment,” because there was “no evidence giving rise to even an inference that Gwaltney acted in anything other than good faith[.]” *383 “[G]ross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of the diligence that even careless …
discussed Cited as authority (rule) Roger F. Kahn v. Daniel Lamar Britt, Jr.
Ga. Ct. App. · 2014 · confidence medium
In granting summary judgment to Gwaltney on the fiduciary duty claim, the trial court ruled that Gwaltney was entitled to rely on Section 8.5 of the trust instrument, which limited a trustee’s liability to instances of “wilfull default, wrongdoing, or gross negligence, but not for honest errors of judgment,” because there was “no evidence giving rise to even an inference that Gwaltney acted in anything other than good faith[.]” “[G]ross negligence has been defined as equivalent to the failure to exercise even a slight degree of care or lack of the diligence that even careless men a…
discussed Cited as authority (rule) Don Anthony Whitfield v. Tequila Mexican Restaurant No. 1
Ga. Ct. App. · 2013 · confidence medium
“In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care.” (Citation and punctuation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 294 ( 701 SE2d 915 ) (2010).
discussed Cited as authority (rule) Whitfield v. Tequila Mexican Restaurant No. 1, Inc.
Ga. Ct. App. · 2013 · confidence medium
“In other words, gross negligence has been defined as equivalent to the failure to exercise even a slight degree of care.” (Citation and punctuation omitted.) Heard v. City of Villa Rica, 306 Ga.App. 291, 294 ( 701 SE2d 915 ) (2010).
examined Cited as authority (rule) Morgan v. Horton (4×) also: Cited "see"
Ga. Ct. App. · 2011 · confidence medium
Heard v. City of Villa Rica, 306 Ga. App. 291, 295 (1) ( 701 SE2d 915 ) (2010). (a) In support of their argument that jury questions exist as to whether Morgan was grossly negligent in this case, the plaintiffs rely, in part, on their expert witness’ affidavit.
discussed Cited as authority (rule) Textile Rubber & Chemical Co. v. Thermo-Flex Technologies, Inc.
Ga. Ct. App. · 2011 · confidence medium
“To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, ‘[A party] must stand or fall upon the position taken in the trial court.’ ” (Citation omitted.) Heard v. City of Villa Rica, 306 Ga. App. 291, 293 (1) ( 701 SE2d 915 ) (2010).
cited Cited "see" Bank of North Georgia v. 280 Partners, LLC
Ga. Ct. App. · 2019 · signal: see · confidence high
See Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 (1) ( 704 SE2d 915 ) 7 they argue that the parties modified the note to extend the maturity date.
discussed Cited "see" Frazier v. Mylan Inc. (2×)
N.D. Ga. · 2012 · signal: see · confidence high
See Heard v. City of Villa Rica, 306 Ga.App. 291, 294 , 701 S.E.2d 915 (2010) (defining gross negligence as the failure to exercise even a slight degree of care or lack of diligence that even careless men are accustomed to exercise).
examined Cited "see" Sheldon Johnson v. Price Omondi (3×)
Ga. Ct. App. · 2012 · signal: accord · confidence high
In this case, however, Omondi not only considered a pulmonary embolism, but concluded that this was not the cause of 14 Id. at 629 . 15 Id.; accord Heard v. City of Villa Rica, 306 Ga. App. 291, 295 (1) ( 701 SE2d 915 ) (2010) (finding that a coach was immune from liability because parents could not prove he was grossly negligent for a child’s injuries). 16 __ Ga. App. __ (Case Nos.
examined Cited "see" Johnson v. Omondi (3×)
Ga. Ct. App. · 2012 · signal: accord · confidence high
Id.; accord Heard v. City of Villa Rica, 306 Ga.App. 291, 295 (1) ( 701 SE2d 915 ) (2010) (finding that a coach was immune from liability because parents could not prove he was grossly negligent for a child’s injuries). 316 Ga.App. 599 ( 730 SE2d 78 ) (2012).
discussed Cited "see, e.g." Procter v. Gwinnett Pulmonary Group & Associates, P.C. (2×)
Ga. Ct. App. · 2011 · signal: compare · confidence medium
Compare with Heard v. City of Villa Rica, 306 Ga. App. 291, 293-294 ( 701 SE2d 915 ) (2010).
Retrieving the full opinion text from the archive…
HEARD
v.
CITY OF VILLA RICA Et Al.
A10A1032.
Court of Appeals of Georgia.
Oct 1, 2010.
701 S.E.2d 915
Donald W. Singleton, Charles M. Cork III, for appellant., James R. Westbury, Jr., Matthew H. Bennett, for appellees.
Adams, Smith, Mikell.
Cited by 32 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 91%
Citer courts: Court of Appeals of Georgia (1) · N.D. Georgia (1)
Adams, Judge.

Shonvorreo Heard, by his next friend Sheila Heard, brought an action for negligence against the City of Villa Rica [1] (the City) and Bryant Cash, a volunteer track and field coach for the City of Villa Rica Parks and Recreation Department, seeking damages for injuries Shonvorreo suffered during a training session conducted by Cash. Defendants answered, asserting among other things that Cash was acting as an unpaid volunteer and thus entitled to immunity pursuant to OCGA § 51-1-41 and that the claims against the City were barred by governmental immunity. Defendants subsequently moved for summary judgment. Heard responded, acknowledging that under OCGA § 51-1-41, volunteer coaches Eire generally immune from liability, but arguing that Cash’s conduct here fell within subsection (c), which provides an exception to immunity when injury or damage is caused “by actions or inactions which are intentional, willful, wanton, reckless, malicious, or grossly negligent.” The trial court granted summary judgment to defendants finding that Cash was immune from suit under OCGA § 51-1-41 (a) and that the record did not support a finding that Cash was grossly negligent so as to invoke the exception to immunity found in subsection (c). Further, the trial court found, as to the City, that there was no evidence of a master-servant relationship and that the City could not be found liable under a theory of respondeat superior. The trial court also found that there was no evidence to show that Cash was negligently selected, retained or supervised. Heard now appeals from that order.

1. Heard first contends that Cash was not entitled to immunity under OCGA § 51-1-41, which provides in pertinent part as follows:

(a) Sports officials who officiate amateur athletic contests at any level of competition in this state shedl not be liable to any person or entity in any civil action for injuries or damages claimed to have arisen by virtue of actions or inactions related in any manner to officiating duties within[*292] the confines of the athletic facility at which the athletic contest is played. . . .

However, subsection (c) further provides:

Nothing in this Code section shall be deemed to grant the protection set forth in subsection (a) of this Code section to sports officials who cause injury or damage to a person or entity by actions or inactions which are intentional, willful, wanton, reckless, malicious, or grossly negligent.

As is pertinent here, the mostly undisputed facts show that at the time Shonvorreo [2] was injured,' Cash was teaching Shonvorreo and other children the proper way to run down the runway and then perform a long jump into a sand pit. The specific instruction on that day was designed to teach the children how to stand up straight, use good posture, and drive their knees far up into the air. Cash testified that he critiqued everyone after an initial try, and then in keeping with how he had taught in previous years, [3] he placed an object at the mouth of the sandpit for them to jump over. Cash testified that the purpose of having them jump over the object “was to get them to subconsciously stand up straight and jump as high as they possibly can.” Although Cash testified he had used different objects for this in the past, during this session he was using a makeshift plastic hurdle, which apparently was in the shape of a sawhorse. [4] Cash, testified that the cross bar of the hurdle was set at the lowest position, which was “below his knees.” Cash testified that Shonvorreo was one of the first to volunteer to jump over the hurdle and that he had attempted one jump over the hurdle but had broken that jump off before it was completed. He testified he knew Shonvorreo had a difficult time running “straight up” because he normally ran leaning “really far forward,” and that he told Shonvorreo to make a second attempt and he would instruct him when to stand up. It was during this second attempt that Shonvorreo was injured.

As noted above, in response to defendants’ motion for summary judgment, Heard argued that Cash’s conduct fell within subsection (c), specifically that he was grossly negligent by using a hard plastic object as a hurdle, especially in light of the fact he knew that Shonvorreo had trouble running straight up and had aborted his[*293] first try. Now, for the first time on appeal, she also argues that Cash does not have immunity under OCGA § 51-1-41 because Cash was not “officiating” an “athletic contest at any level of competition” as those terms are used in the statute. Although not argued below, Heard contends she should nevertheless be allowed to make this argument on appeal, citing cases involving situations where we have allowed arguments to be asserted for the first time on appeal. However, we find none of those cases to be applicable here. [5] Moreover, in this case, there is more than just the failure to raise the issue below; Heard affirmatively acknowledged the applicability of the immunity granted by OCGA § 51-1-41 to volunteer coaches, before going on to argue that the present case fell within the exception codified in subsection (c) for injuries resulting from gross negligence. [6] Thus, we will not address the issue of whether Cash was “officiating” an “athletic contest at any level of competition” as those terms are used in the statute. As we have said on numerous occasions,

[o]ur appellate courts are courts for the correction of errors of law committed in the trial court. Routinely, this Court refuses to review issues not raised in the trial court. To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.” Fairness to the trial court and to the parties demands that legal issues be asserted in the trial court. (Punctuation and footnotes omitted.) Pfeiffer [v. Ga. Dept. of Transp., 275 Ga. 827, 829 (573 SE2d 389) (2002)]. Although under the “right for any reason” rule this court will affirm the correct ruling of a trial court on grounds not addressed below, we do not apply a “wrong for any reason”[*294] rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002).

(Punctuation omitted.) Lowery v. Atlanta Heart Assoc., P.C., 266 Ga. App. 402, 404-405 (2) (597 SE2d 494) (2004).

Moreover, it would be unfair to now find that Cash failed to prove the applicability of that section given that Heard acknowledged that it was applicable to volunteer coaches generally and appeared to acknowledge that it was applicable to Cash, who undisputedly occupied the position of a volunteer coach. [7] Further, it would be unfair to force Cash to respond to Heard’s belated argument and address this issue for the first time “within the narrow time frame of appellate practice rules.” Pfeiffer, 275 Ga. at 829 (2).

We now turn to Heard’s argument that Cash’s actions were grossly negligent. “Gross negligence is defined as the failure to exercise that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances; or lack of the diligence that even careless men are accustomed to exercise.” (Punctuation and footnote omitted.) Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 707 (2) (618 SE2d 621) (2005). “In other words, gross negligence has been defined as ‘equivalent to (the) failure to exercise even a slight degree of care’ [cits.] or ‘lack of the diligence that even careless men are accustomed to exercise.’ [Cit.]” Pottinger v. Smith, 293 Ga. App. 626, 628 (667 SE2d 659) (2008). Although in the trial court Heard relied primarily on the affidavit of her expert in which the expert opined that “Cash had failed to exercise even the slightest degree of common sense or diligence,” the trial court properly discounted that portion of the affidavit. “A mere conclusory expert opinion with respect to the existence of gross negligence does not create a jury issue; rather, there must be facts sufficient for a jury to find gross negligence.” Id. at 629, n. 3. Thus, to the extent Heard relied on the opinion of her expert to establish gross negligence, the trial court correctly held that Heard had not met her burden of showing that Cash was not immune under the statute. [8]

In addition to the expert’s affidavit, Heard also points to the following facts to show Cash was grossly negligent: Cash placed a[*295] relatively hard, relatively immobile sawhorse-type hurdle for the trainees to jump over, while running at high speeds, although they may have lacked prior experience in jumping hurdles. Further, as to Shonvorreo in particular, the evidence showed that he failed to complete his first run at the hurdle and that he had difficulty running “straight up.”

We do not believe, however, that these facts were sufficient to establish Cash acted with gross negligence and thus without immunity under the statute. Cash testified that he had first learned this training technique many years ago from another coach, and that he had used this technique for several years. Moreover, Heard’s own expert had written a book that included a section on this training technique, although he went on to add a caution to “never use real hurdles, benches, or something that might cause athletes to trip.” Cash testified that through the years he had used a number of objects for this exercise, including getting on all fours and using his own body for this purpose. In this particular case, he testified that he set the makeshift hurdle at its lowest placement, which he estimated was about level to his knee, and Cash testified that he always tried to avoid injuries in his training methods. And the evidence showed that Cash did not allow Shonvorreo to attempt the second jump without instruction; Cash told him to give it another try and he would tell him when he needed to stand up straight.

“(Q)uestions of negligence and diligence, even of gross negligence and slight diligence, usually are matters to be determined by the jury(, but) in plain and indisputable cases . . . the court may solve the question as a matter of law.” (Punctuation omitted.) Lewis v. Wilson, 111 Ga. App. 666, 670 (142 SE2d 852) (1965). On the present record, this is such a plain and indisputable case. Even assuming there was evidence sufficient to create a jury issue as to whether [Cash’s] actions were negligent, there is no evidence ... by which a jury could reasonably conclude that [Cash] failed to exercise even slight care and was therefore grossly negligent.

Pottinger, 293 Ga. App. at 629.

2. Having reviewed the record, we also agree with the trial court that the City was entitled to summary judgment on Heard’s claim that the City was liable under a theory of respondeat superior. See, e.g., Feggans v. Kroger Co., 223 Ga. App. 47 (1) (476 SE2d 822) (1996); Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746 (449[*296] SE2d 141) (1994) (no precedential value). The order granting summary judgment to defendants is accordingly affirmed. [9]

Decided October 1, 2010. Donald W. Singleton, Charles M. Cork III, for appellant. James R. Westbury, Jr., Matthew H. Bennett, for appellees.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.
1

Although suit was brought against the City of Villa Rica Parks and Recreation Department, it is undisputed that the real defendant here is the City of Villa Rica.

2

Shonvorreo was 13 years old at the time he was injured. The Villa Rica Track and Field Program was for children ages six through fourteen.

3

The injury here occurred in 2006, and Cash had been a volunteer coach for the City of Villa Rica since 2000.

4

Although Cash testified during his deposition that he did not know what a sawhorse looked like, he was asked to draw a picture of what he used.

5

For example, in McCombs v. Synthes, 277 Ga. 252 (587 SE2d 594) (2003), we found that although the issue asserted on appeal had not been specifically asserted below, a finding on that issue was implicit in the trial court’s order. However, in the present case, Heard acknowledges in her brief on appeal that counsel for the parties and the trial court “succumbed to the same blind spot” of, in essence, assuming the applicability of the section to volunteer coaches “generally” without looking further. And in Falanga v. Kirschner & Venker, P.C., 286 Ga. App. 92 (648 SE2d 690) (2007), the issue raised on appeal concerned the factual basis to support an affirmative defense, whereas in this case the argument raised implicates issues of first impression involving statutory construction. And the last case Heard cites is clearly not instructive here since it involved the reversal of a jury award based on an appellate decision that had been issued between the time of trial and the subsequent appeal. Hopkinson v. Hopkinson, 239 Ga. App. 518, 519 (1) (521 SE2d 453) (1999).

6

In her brief in response to defendants’ motion for summary judgment, Heard stated: “Defendants are correct that under OCGA § 51-1-41 volunteer coaches are immune from liability, generally!,]” before going on to argue the applicability of the exception stated in subsection (c).

7

“Sports official” is defined in OCGA § 51-1-41 (b) (2) as “Those individuals who render service without compensation as a manager, coach, instructor, or assistant manager, coach, or instructor in any system of supervised recreation established pursuant to Chapter 64 of Title 36.” Heard does not challenge that Cash was a sports official as defined in the statute.

8

As the party seeking to establish a wavier of the statutory immunity provided by OCGA § 51-1-41, the burden was on Heard to establish the waiver. Doss v. City of Savannah, 290 Ga. App. 670, 675 (3) (660 SE2d 457) (2008).

9

Heard does not challenge the grant of summary judgment on the claims for negligent supervision, hiring and retention.