To read the full decision, click here

While on a job site in Dahlonega, Georgia, Steve Moss took a Local Mechanical vehicle without permission causing a multivehicle collision. It was believed that at the time of the incident, Mr. Moss was undergoing some sort of psychotic episode and may have been attempting to commit suicide by vehicle. Along with criminal charges against Mr. Moss, several civil lawsuits arose out of the collision against both Mr. Moss and Local Mechanical Networking, Inc.

In Mildred Lawson and Larry Lawson v. Local Mechanical Networking, Inc. and Steve Moss, the Lawsons alleged negligence, negligence per se, vicarious liability, negligent entrustment, loss of consortium, and attorney’s fees under O.C.G.A. 13-6-11. James Hankins and Samantha Mullis moved for summary on all claims, arguing Mr. Moss was not in the course and scope of his employment at the time of the collision and that he was not entrusted with the vehicle. Defense Counsel further argued there was no evidence of similar behavior from Mr. Moss that would have made them aware he was likely to steal a work van and cause an accident. In response to the Motion, Plaintiffs argued negligent supervision and negligent retention; however, neither of the claims were pled in the Complaint. The Court found that the evidence did not show Mr. Moss’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiffs.

Samantha Mullis argued the case before Judge Bowers in Cobb County State Court, who granted summary judgment in its entirety.

Click HERE to read the full Order.

Featured In This Article:

James T. Hankins, III

Partner

Atlanta Office

In the underlying case of West et. al v. Provident Group – Creekside Properties, LLC, et. al the Plaintiffs brought a lawsuit against Provident Village claiming that a Provident Village employee shoved Mr. Ronald West, causing injuries that ultimately lead to his death. In response to the Complaint, Provident Village filed a motion to dismiss and compel arbitration based upon an arbitration agreement that was executed by Mr. Ronald West’s conservator at the time he entered the facility. In response, Plaintiffs mainly argued that the Letter of Guardianship/Conservatorship obtained by Mr. Jobe West did not provide express authority for Mr. Jobe West to enter into an arbitration agreement on behalf of his father. The trial court found that Mr. Jobe West assented to the Arbitration Agreement as the legal guardian and conservator of Mr. Ronald West, and that Plaintiffs are required to submit their claims to arbitration. The trial court granted a certificate of immediate review, and Plaintiff applied for interlocutory appeal, which was granted by the Court of Appeals.

Before, this case could be briefed at the Court of Appeals, the Court of Appeals ruled in a similar case that court-appointed guardian does not have authority to sign an arbitration agreement on behalf of a ward. Specifically, the Court of Appeals held that Georgia adult guardianship statutes do not authorize a guardian to sign a pre-dispute arbitration agreement. CL SNF, LLC v. Fountain, 355 Ga. App. 176, 843 S.E. 2d 605 (2020). The Court of Appeals then applied its holding in Fountain to this case, ultimately reversing the trial court’s ruling that the Plaintiffs were required to submit their claims to arbitration.

Partner Robert Luskin, Associate Samantha Mullis, and former associate Bert Noble filed a Petition for Certiorari requesting the Georgia Supreme Court overturn the ruling in Fountain and find that the conservator has authority to sign arbitration agreements on behalf of their ward. Recently the Georgia Supreme Court did in fact overturn the ruling in Fountain, holding that a conservator has authority to sign arbitration agreements on behalf of their ward.

On November 1st, the Georgia Supreme Court granted Provident Village’s Petition for Certiorari and remanded the case back to the Georgia Court of Appeals for reconsideration in light of the Fountain ruling.

Way to Go Team!

We are right in the middle of hurricane season for the southeast. It runs from June 1st through November 30th with the height of hurricane activity being from mid-August to mid-October. As Georgians know, a hurricane or tropical storm does not have to directly hit us for us to feel its affects – just look outside. With hurricane season comes rain and with rain comes the potential for slip and falls.

We all know that in order to recover for injuries from a slip-and-fall, a person must prove (1) that the owner/occupier had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

The first question asked is whether the plaintiff was exposed to a hazard. Stores are not liable to customers who slip and fall on floors made wet by rain conditions unless there has been an unusual accumulation of water and there were no reasonable inspection/cleaning procedures. This is because it is common knowledge that some water would be present where shoppers enter and exit a store during rainy weather. In rainy day slip-and-fall cases plaintiffs are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside. The store is not under a duty to staff extra moppers to wipe up the rain as fast as it blows in.

Here are four practice pointers to help avoid a rainy-day slip and fall or provide you with the best defenses should one occur.

1)         maintain reasonable inspection procedures of areas rainwater is likely to be tracked in to ensure there is no unusual accumulation of water

2)        although a wet floor sign is not required under Georgia law, best practices are to have one out when it is raining

3)        should an incident occur, maintain any surveillance footage that would have capture the incident for at least the hour before the incident and hour after.

4)        take photographs from different angles to capture how the scene looked at the time of the incident.

In Rhonda Borders v. Apple Georgia LLC, Ms. Borders filed a trip and fall case against Apple Georgia, contending that Apple Georgia was liable for her injuries.  Ms. Borders contended that she tripped and fell on a transition strip between the carpet and the tile floor, and she claimed the strip constituted a hazardous condition.  After completing discovery in the case, James Hankins filed summary judgment on behalf of Apple Georgia, arguing that Ms. Borders failed to establish the transition strip constituted a hazard. 

The trial court agreed with James’ arguments.  The trial court found that Ms. Borders failed to present competent evidence of a hazard by citing to evidence of a code violation or evidence of other falls in the area.  The trial court further found that even assuming a hazard existed, she had successfully negotiated the alleged hazard on her way into the restaurant, and thus, she did not encounter a new hazard.

Based on its findings, the trial court granted Apple Georgia’s motion for summary judgment.

You can see the judgment here.       

Featured In This Article:

James T. Hankins, III

Partner

Atlanta Office

OCGA § 51-12-33 DOES NOT ALLOW A REDUCTION OF DAMAGES AGAINST A DEFENDANT BASED ON THE JURY’S ALLOCATION OF FAULT TO A NON-PARTY IN A CASE BROUGHT AGAINST ONLY ONE DEFENDANT

This rule of law in the Georgia Supreme Court’s recent opinion in Alston & Bird LLP v. Hatcher Management Holdings, LLC is a tremendous windfall to Plaintiffs across the State.

In Alston & Bird LLP v. Hatcher Management Holdings, LLC, both parties appealed trial court rulings in a malpractice action by Hatcher Management Holdings, LLC (hereinafter “HMH”) against Alston & Bird, after a jury found in favor of HMH and awarded them $2.1 million dollars. Alston & Bird LLP v. Hatcher Management Holdings, LLC, 355 Ga. App. 525, 526 (2020). Alston & Bird presented evidence at trial of non-party negligence, on the part of HMH’s former manager, and the jury found this non-party to be 60% at fault for HMH’s damages in the case. Id. The trial court reduced HMH’s award against Alston & Bird to $683,522.07 based on the jury’s apportionment of 32% fault to Alston & Bird. Id. After Alston & Bird raised issues as to proximate cause and jury instructions, HMH filed a cross-appeal, arguing that the reduction of damages was erroneous. Id.

With regards to HMH’s cross-appeal, the Court of Appeals analyzed subsections a, b, c, f (1), f (2), and g, of O.C.G.A. § 51-12-33 in its opinion. Id, at 532. Succinctly, subsection (a) applies to actions brought against one or more persons, subsection (b) applies to actions brought against “more than one person,” subsection (c) permits consideration of non-party fault, subsection (f) limits the scope of how non-party fault may be considered, and subsection (g) states that a plaintiff who is 50% or more responsible for his/her injuries may not recover. O.C.G.A. § 51-12-33.

Because HMH’s action was brought only against Alston & Bird, LLP, the Court of Appeals applied O.C.G.A. § 51-12-33(a). Id. “[This subsection] states that the trial court ‘shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.’” Id, at 534. This language is distinct from the operative language in subsection (b) which states that the trial court “shall, after a reduction of damages pursuant to subsection (a) of this Code section … apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” O.C.G.A. § 51-12-33(b). The Court of Appeals applied basic tenants of statutory construction, and read the statute to mean that, because HMH only brought suit against one party, the damages against that party could only be reduced by the percentage of fault apportioned to HMH, not by the percentage of fault apportioned to any other non-parties found to be at fault. Id. Therefore, the Court of Appeals ruled that the $2.1 million award should have only been reduced by 8% rather than 68%. Id, at 535. Effectively, the Court of Appeals held that, even though Alston & Bird was only 32% at fault, they should be responsible for 92% of the damages.

Alston & Bird, LLP, appealed this decision to the Georgia Supreme Court, which granted certiorari on February 1^st, 2021, and heard oral arguments from the parties on May 19^th, 2021. During oral arguments, Justice Namias acknowledged that it is “a nonsensical scheme” to have comparative fault in every area except for single defendant cases, which is why the Court has thus far not described it as such in their opinions.

However, on August 10, 2021, in a unanimous decision[1], the Georgia Supreme Court upheld the Court of Appeals’ analysis of the operative language in O.C.G.A. § 51-12-33.[2] The Court noted that “subsection (b) is the only provision in the statutory apportionment scheme that authorizes apportioning damages based on the fault of persons other than the plaintiff and a single defendant…” Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 2021 WL 3501075 (Ga. 2021). “The General Assembly chose to exclude single-defendant cases from the scope of subsection (b). And ‘we must presume that the General Assembly meant what it said and said what it meant.’” Id. Citing Deal v Coleman, 294 Ga. 170, 172 (2013).

With this decision Plaintiffs across the State will undoubtedly be emboldened to pursue select defendants with the deepest pockets to recover for tortious acts committed by multiple parties. The General Assembly of the State of Georgia now faces a critical need to change the language in the apportionment statute. As it stands, despite the original intention of the Tort Reform Act: to reduce the necessity for Defendants to seek recovery through contribution from non-party tortfeasors; Plaintiffs can now strategically select their Defendants to recover the greatest sum possible irrespective of the true liability of the party they choose to sue. The Court acknowledged that “[a]pplying subsection (b) to single-defendant cases may well advance some of the intentions behind the Tort Reform Act better than the statute as we interpret it today.” Id. But the Court opined that the limitations on Judicial Power to interpret statutes rather than enact them “does not permit us to make a different choice.” Id.[3]

In a footnote to their decision, the Supreme Court stated that “a single defendant is [not] without remedy against its joint tortfeasors.” Id, n.2. The Court refers to O.C.G.A. § 51-12-32 (a) which states that the right of contribution “shall continue unabated.” Id, citing O.C.G.A. § 51-12-32 (a). This effectively forces single defendants in the State of Georgia to return to the burdensome practice of third-party complaints for contribution. Under O.C.G.A. § 9-11-14 (a), “at any time after commencement of the action a defendant, as a third-party plaintiff” may serve a summons and complaint “upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Defendants will be wise to implead their joint tortfeasors early to maximize their chances of recovery from parties that the Plaintiff already assumed could not support their expected recovery. This creates substantial risk for single party defendants, especially in cases such as premises liability where the primary tortfeasor is often an unknown assailant who has committed violent acts against the Plaintiff. Even when the identity of the assailant is known, they are often penniless, and the third-party Plaintiff is hopeless to recover their share of the cost.

[1] “All the Justices concur, except Boggs, P. J., not participating, and McMillian and Colvin, J.J., disqualified.” Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 2021 WL 3501075 (Ga. 2021).

[2] Although the Court affirmed the Court of Appeal’s holding as it pertained to O.C.G.A. § 51-12-33, it reversed the Court of Appeal’s holding as it pertained to the apportionment of the expenses-of-litigation and remanded the case for further proceedings consistent with their opinion.

[3] You can read the entire opinion here https://www.gasupreme.us/wp-content/uploads/2021/08/s20g1419.pdf.

Historically, Georgia drivers had no affirmative duty to “move over” when overtaking a bicyclist, but with the enactment of O.C.G.A. § 40-6-56, this is no longer the case. The statute governs motor vehicles traveling in the same direction as the bicycle on a shared roadway. In practice, the law applies to bicyclists riding both on an open roadway and in a bicycle lane.

If possible, given the current traffic and road conditions, Georgia drivers now have an affirmative duty to change lanes into a lane not adjacent to the bicycle when passing. While no case law has yet explored what parameters will govern the “if possible” standard, it is likely an area ripe for contest.

The statute goes on to provide alternatives for Georgia drivers if changing lanes is impossible, prohibited by law, or unsafe. If unable to change lanes, the motor vehicle operator is tasked instead with the affirmative duty of reducing their speed to ten miles per hour less than the posted speed limit or to 25 miles per hour, whichever is more. Once the driver has reduced speed, they may pass the bicycle, but the driver is further charged with maintaining a distance of at least three feet from the bicycle at all relevant times.

In another historic pen stroke, Georgia lawmakers gave teeth to this new requirement for motorists by punishing noncompliance as a misdemeanor carrying up to a $250 fine. While the punishment is steep, the likely impact of the law remains unknown. While outlining more clear requirements for interactions between bicyclists and motorists aligns with other states throughout the country, the implementation of such will likely be highly fact-sensitive and contentious.  

Authored by: Robert Luskin with Summer Associate Avery M. 

In the case of Crebs et. al. v. Bass Pro Outdoor World et. al., plaintiff Amanda Crebs injured her knee when she tripped and fell over a decorative fence that protruded into the walkway. 2021 WL 2621431 (G.A. App. June 25, 2021).

Ms. Crebs and her family visited Bass Pro Shops in order for her son to take a picture with Santa. Ms. Crebs testified that that after conducting some shopping, she proceeded to get in line for Santa. Ms. Crebs parked her cart to the side of an aisle, picked her son out of the seat, and while carrying the child walked through the aisle to hand him to her husband. As she walked down the aisle, Ms. Crebs struck her leg on a portion of the decorative fencing that protruded about three inches into the aisle.

Ms. Crebs also testified that she was aware of the fence, nothing obstructed her view, and the lighting was sufficient. Ms. Crebs thought she could navigate the aisle with her child but knew her shopping cart was too large to fit. Ms. Crebs stated that she was paying attention but not looking down as she walked, so the protrusion was not obvious to her.

The Court of Appeals reasoned that a plaintiff is not required to maintain a constant lookout, but at the same time they are required to navigate floors, steps, and doorways every day. Defendants are not responsible for hazards that are open and obvious and could have been avoided by the use of ordinary care.

In this case, the Court of Appeals found that the fence was an open and obvious condition because it was visible, with sufficient lighting, and did not blend into its surroundings. The defendants did not have a duty to warn of the protrusion.

Notably, the Court of Appeals dismissed the plaintiff’s contention that because the protrusion was not obvious to Ms. Crebs there is a question of fact regarding whether it was obvious. The Court stated that this argument misconstrues the legal standard and ignores the evidence. Ultimately, the Court affirmed the trial court’s grant of summary judgment in favor the Defendants.

So often in depositions, we hear from the plaintiff that they did not see [insert hazard here]. This is despite their contentions they were paying attention, not distracted, and nothing obscured their vision from seeing the hazard. This portion of their testimony is frequently used in an attempt to create a question of fact that the plaintiff lacked knowledge of the hazard. This case confirms that a plaintiff cannot simply bury his/her head in the sand claiming ignorance of a hazard that was visible and able to be avoided.

Click HERE to read the full opinion.

In, Metropolitan Atlanta Rapid Transit Authority v. Tyler, the Court of Appeals overturned a civil jury verdict from 2018 that was in favor of the estate of Jaccolah Johnson for $25,000,000.0o based on an erroneous jury charge on spoliation. Metropolitan Atlanta Rapid Transit Authority v. Tyler, 2021 WL 2765952 (Ga. App. 2021). The trial related to an incident occurring on January 24, 2016, where Johnson fell down the steps of a MARTA Mobility bus. Although she was conscious and responsive at the scene after the accident, she suffered a serious brain bleed later that day which required surgery and left her in a vegetative state.

Johnson’s fall was caught on video by the mobility bus’s surveillance cameras. Id. While the video of her fall was preserved and played repeatedly at the trial, the video of Johnson boarding the bus prior to her fall was not preserved. Id. This evidence was material to the case because the Plaintiff’s argued at trial that MARTA employees were on notice that Johnson required assistance getting on and off the bus. Id. The video of her ascending the steps initially may have shown whether she had apparent trouble doing so, or whether her fall was completely unpredictable. Id.

At the charging conference after the trial, over MARTA’s objection, the court agreed to charge the jury with the following:

When a party has evidence that rejects or disproves a claim or charge made against the party, if he or she fails to produce it or having more certain and satisfactory evidence relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded. This presumption may be rebutted, however. The surveillance video presented captures Johnson’s tragic fall and the minutes leading up to it.

The jury found in favor of the Plaintiff and awarded her $25,000,000.00 and attributed 75% fault to MARTA and 25% fault to Ms. Johnson.

On appeal, MARTA argued that the trial court erred by giving the spoliation instruction when there had been no motion for sanctions or hearing by the trial court to determine whether spoliation of the evidence had occurred. Id. The Court of Appeals agreed with MARTA.

The Court noted that “spoliation of evidence is not a fact the jury is empowered to find by inference. Instead, whether spoliation occurred is a question of fact, to be decided by the court prior to trial.” Id, citing Hillman v. ALDI, Inc., 349 Ga. App. 432, 443-444 (3), 825 S.E.2d 870 (2019). This is crucial because the law is clear that sanctions for spoliation of evidence, such as a jury instruction as to the inference that follows, has been held to be “severe” and “generally reserved for intentional destruction of material evidence.” Id, citing Cooper Tire & Rubber Co. v. Koch, 303 ga. 336, 343 (2), 812 S.E.2d 256 (2018).

In this case, the Trial Court did not have an evidentiary hearing prior to the trial to determine whether spoliation of evidence occurred, nor did the trial court weigh the relevant factors regarding whether sanctions for such spoliation are appropriate in response. Id. Therefore, it was improper for the trial court to instruct the jury on spoliation. The Court rejected Johnson’s argument that the error was harmless because the charge was not specifically directed at either party in the case. Id. “Here, the charge was not an ‘abstract proposition’ and we cannot reasonably say that any rational juror would believe the inference applied equally to both parties when there was no suggestion that Appellee destroyed evidence.” Id.

As such, the Court of Appeals held that instructing the jury on the inferences to be drawn from the spoliation of evidence was reversible error and remanded the case for a new trial. Id.

The Court of Appeals decision in Tyler confirms the importance of getting a pre-trial ruling on the issue spoliation. Moreover, a practical pointer is to get the ruling in writing so that you know what you can argue or cannot argue to the jury. 

You can access this article written by GM Associate, Paul Spann by clicking HERE.

In Star Residential, LLC, v. Hernandez, Hernandez was shot in an unprovoked attack and robbery at his apartment complex. Hernandez sued the owners and managers of the property asserting claims of negligent security/premises liability; a nuisance claim under the Georgia Street Gang Terrorism and Prevention Act (“GSGTPA”); and negligence per se for local public nuisance ordinances. Star Residential, LLC v. Hernandez, 354 Ga.App. 629, 629, (2020).

Hernandez alleged in his complaint,

“criminal activity and numerous shootings were the result of gang activity at his apartment complex; the complex was used by criminal street gangs for the purpose of conducting gang activity; lack of adequate security provided by the complex’s operator and owner ‘enabled criminal street gangs to overtake the property to the point that residents were exposed to living in an environment that was equivalent to a ‘war zone’ and as a proximate result of the dangerous conditions maintained by Defendants at his apartment complex, Hernandez was injured by criminal street gang activity.”

Star Residential, LLC, at 634 (2020).

The Defendants argued on a motion to dismiss that Plaintiffs could not support a cause of action for treble damages under the GSGTPA. The trial court disagreed, and the Court of Appeals affirmed the trial court’s decision.  The Georgia Supreme Court granted certiorari on November 2nd, 2020 and heard oral arguments from the parties on March 25, 2021 at 10:00am. The Court published its opinion on the issue June 21^st, 2021.

The statute at issue in the case is O.C.G.A. § 16-15-7. “Read as a whole, O.C.G.A. § 16-15-7 provides different causes of action for different remedies with different plaintiffs and defendants.” Star Residential, LLC et al. v. Hernandez, 2021 WL 2518654, (Ga. 2021). Subsection (a) states “Any real property which is … used by any criminal street gang for the purpose of conducting criminal gang activity shall constitute a public nuisance and may be abated as provided by Title 41 relating to nuisances.” O.C.G.A. § 16-15-7(a). Subsection (b) identifies the plaintiffs who may pursue such an action.

As in subsection (a), there is no mention in subsection (b) of the availability of civil damages. And, with respect to the remedy that is available under subsection (a) – abatement – private individuals are not listed as proper parties under subsection (b) to pursue such a remedy under the Gang Act.

Star Residential.

The Court held that subsection (c) creates an entirely separate cause of action. Id. “Any person who is injured by reason of criminal gang activity shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages….” O.C.G.A. § 16-15-7(c). The language in subsection (c) makes it clear that it creates a cause of action against those alleged to have committed acts of street gang terrorism only. Star Residential. Therefore, it is entirely separate from subsections (a) and (b), and there is no basis for a cause of action based on injuries consistent with subsection (c) to be brought against a property owner otherwise not alleged to have “itself committed, attempted to commit, conspired to commit, or solicited, coerced, or intimidated another person to commit any of the criminal gang activity” that caused the injuries.  Star Residential. As a result, the Court held that the damages provision in subsection (c) has no effect on the cause of action created by subsection (a) and (b), regardless of whether a private individual may seek to abate such a nuisance under these subsections. Id. 

This unanimous opinion by the Georgia Supreme Court is a huge win for the Defense bar and for property owners across the State.

You can access this article written by GM Associate, Paul Spann by clicking HERE.