Mark Henkle

June 6^th, 2021

In retail businesses, premises liability issues can be a stumbling block for property owners or possessors.    In Draughon v. Evening Star Holiness Church of Dunn 374 N.C. 479 (2020), a funeral attendee brought action against a church after he tripped on the stairs, alleging failure to keep premises in a reasonably safe condition and failure to warn of a dangerous and defective condition. After the trial court granted summary judgment, the case climbed the appellate ladder, where it was decided by the North Carlina Supreme Court in June 2020.  The Court ultimately held that because the condition of the top step would be open and obvious to a reasonable person, defendant had no duty to warn plaintiff. Similarly, because plaintiff, after his previous descent of the steps, did not heed the risk obviously presented by the distinct appearance of the top step, and the Plaintiff failed to take reasonable care for his own safety, his own negligence contributed to his fall.

Some key takeaways from the North Carolina Supreme Court’s decision are:

• Distinctive appearance is an important factor – In Draughon the Plaintiff tripped over the top step of a six-step stairwell leading into a church.  The top step was made from red brick and gray concrete (as opposed to just gray concrete) and had a white wooden platform on the top.  The height of this top stair was greater than other steps by about four inches.  The Court applied an objective reasonableness standard and stated that the height differential of the step and the starkly different materials between the top step and others was obviously different. As such, the great differences would have been apparent to a reasonable person.

• Clear visibility of the condition – In Draughon, the step in question sat a few feet above the ground; thus, it was at a height plainly visible to someone walking towards the steps and then using them. The Court stated that “Common experience dictates that a reasonable person would recognize the starkly different condition of the top step and thus understand that he would have to step up higher when he arrived at it.”  Moreover, there were no obstructions to viewing the steps in question.

• Prior experience or traversal – In Draughon, the Plaintiff had traversed the stairway without issue prior to his fall.  The Court stated that Plaintiff had just walked down the set of stairs, experiencing the difference in the height of the steps firsthand. A reasonable person in Plaintiff’s position would have become aware of the approximately four-inch difference.

Applying these three (3) factors, the Court held that the condition of the  step at issue was an open and obvious condition under the objective reasonableness standard, and therefore the Defendant had no duty to warn the Plaintiff.  Simply put, due to the step’s distinctive height, appearance, clear visibility of the steps, and Plaintiff’s prior traversal, the Court held that the Plaintiff could not meet the elements of a premises liability negligence claim.  For businesses, making sure that access points and premises conditions are conspicuous, noticeable  and visible on the front end, can help them take advantage of an open and obvious defense should a premise liability case proceed to litigation.

By: Graham Newsome and Sara K. Blackwell

Goodman McGuffey LLP

The United States Court of Appeals for the Eleventh Circuit recently ruled that an employer is not precluded from taking an adverse employment action against an employee with disabilities for the purpose of protecting other employees, even if the behavior that caused the risk of safety was related to a disability.

On May 27, 2021, the Eleventh Circuit issued its decision in Jerri Todd v. Fayette County School District, Case No. 19-13821, which was on appeal from the United States District Court for the Northern District of Georgia. The Eleventh Circuit panel consisted of the honorable Judge Robin S. Rosenbaum, Judge Robert Luck, and Judge R. Lanier Anderson III.

            Plaintiff-Appellant Jerri Todd (“Ms. Todd”), suffered from major depressive disorder. Ms. Todd taught at Defendant-Appellee Fayette County School District (“Fayette”). In 2009, she began working at Whitewater Middle School as an art teacher. At the time, her father had recently committed suicide and she struggled with her mental health in the years that followed. In 2017, Ms. Todd was speaking with other teachers and threatened to kill herself and her son, who was a student at the school where she taught. Ms. Todd allegedly made threats against Fayette administrators. There were also allegations that Ms. Todd was over medicated with Xanax while at school. Based on the threats and the Xanax concern, Fayette did not renew Ms. Todd’s contract out of concern for student and staff safety.

            Ms. Todd filed suit against Fayette on April 18, 2017, alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act (the “ADA”); disability discrimination and retaliation in violation of the Rehabilitation Act (the “Rehab Act”); and interference and retaliation in violation of the Family and Medical Leave Act (“FMLA”). After discovery, Fayette moved for summary judgment. The magistrate judge entered a Report and Recommendation that found summary judgment should be granted on all claims. Ms. Todd objected to the report, but the district court judge adopted the Report and Recommendation over her objection.

            In a de novo review of the district court’s order, the Eleventh Circuit affirmed the decision of the lower court. First, the Court assessed Ms. Todd’s claims under the ADA and Rehab Act; although Ms. Todd claimed to have direct evidence of discrimination, the Court found that one line from a deposition transcript that was taken out of context did not constitute direct evidence. With regard to circumstantial evidence using the McDonnell Douglas burden-shifting framework, the Court assumed, like the district court, that Ms. Todd could make out her prima facie case of discrimination and instead focused on the legitimate non-discriminatory reason offered by Fayette and any evidence of pretext offered by Ms. Todd.

            Fayette proffered its determination that Ms. Todd could no longer be an effective teacher as its legitimate non-discriminatory reason. This conclusion was reached by a Fayette administrator and was based on the fact that Ms. Todd threatened to kill herself and her child; Ms. Todd took an excessive amount of Xanax while on school property; and also threatened school administrators. The Court reasoned that Ms. Todd’s behavior stemmed from her major depressive disorder. However, the Court found that this did not mean that Fayette’s proffered reason for Ms. Todd’s nonrenewal was discriminatory. The distinction is very important- Fayette did not decline to renew Ms. Todd’s contract based on her major depressive disorder. Indeed, school administrators discussed Ms. Todd’s mental health, medication, and treatment over the years. The record was clear that Fayette ended Ms. Todd’s employment because it reasonably believed she made threats against herself, other employees, and her son, who was also a student at the school where she taught. Part of Ms. Todd’s job as an educator was to be responsible for the welfare of her students and in agreeing with other circuits the Eleventh Circuit quoted the Second Circuit, which held that the ADA “does not require that employers countenance dangerous misconduct, even if that misconduct is the result of a disability.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 172-73 (2d. Cir. 2006). Based on Fayette’s reasonable belief, the Court found that Ms. Todd’s evidence of pretext failed for purposes of her disability discrimination claims under the ADA and Rehab Act.

            In addressing Ms. Todd’s retaliation claims under the ADA, Rehab Act, and FMLA, the Court again focused on Fayette’s legitimate non-discriminatory reason and the lack of any evidence to show that a genuine dispute of material fact existed as to Fayette’s reason for her contract nonrenewal. Ms. Todd relied heavily on temporal-proximity for her retaliation claims, which the Court found by itself generally could not prove than an employer’s proffered reasons are pretextual. In fact, the record showed that Fayette had already contemplated Ms. Todd’s termination prior to her assertion of any ADA and FMLA rights. The Court used a similar analysis in disposing of Ms. Todd’s FMLA interference claim.

            This ruling is important for employers, and especially schools, because it shows the line that the Eleventh Circuit is willing to draw in limiting the protections of the ADA. Here, that line was drawn at the point where the safety of other employees, and students in this case, was put at risk. Again, the distinction is important. If an employee makes a threat of violence against other employees, an employer is well within its right to investigate and remove that employee from the workplace in order to protect its other employees. Although caution should be used in doing so, along with consulting legal counsel, the employer’s motives remain key. The removal of the employee who made threats was not based on the employee’s disability; it was instead based on the perceived threat to the safety of other employees. The Eleventh Circuit’s holding in Todd is clear- just because the threats/other behavior stem from a disability, an employer is not precluded from taking action necessary to protect other employees based on the reasonable belief that their safety is at risk.

Published By: Paul Spann

June 3^rd, 2021

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.

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 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 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 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 at 11:30am.

Alston & Bird, LLP complained that the Court of Appeals’ “clever but torturous reading” of the law in O.C.G.A. § 51-12-33 “effectively guts the statute.” Alston & Bird argued that the Court’s recent decision in Atlanta Women’s Specialists, LLC v. Trabue, stood for the proposition that “The whole point of non-party fault is to flow through to reduce damages [against the defendant].” In that opinion, the Court stated that “requiring a defendant who wants to reduce a potential damages award against him based on the fault of a nonparty to identify the nonparty … makes eminent sense.” Atlanta Women’s Specialists, LLC v. Trabue, 310 Ga. 331, 340 (2020). Alston & Bird, LLP urged the Court not to interpret the statute in such a way as to lead to “an absurd result.”

HMH argued that the Court of Appeals correctly interpreted the plain language of the statute and urged the Court to allow the statute to trump prior case law supporting allocation of non-party fault in damages. Justice Namias retorted 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.

You can watch the full Oral Argument on the Georgia Supreme Court website here: https://www.gasupreme.us/oral-arguments-may-19-2021/. The Supreme Court’s ruling in this case will be pivotal for civil litigation in Georgia. The Supreme Court may finally confirm that contribution, and joint and several liability have been entirely repealed from Georgia law. Alternatively, if the Court upholds the Court of Appeals holding as to the plain language of O.C.G.A. § 51-12-33, Plaintiffs across the State may be emboldened to pursue select defendants with the deepest pockets to recover for tortious acts committed by multiple parties. If the latter is the case, courts across the state will find themselves needing to address questions in the future of how these Defendants are expected to recover contribution damages from their joint tort-feasors under the current statutory scheme. Either way, the Court’s opinion in this case is highly anticipated, and will be carefully analyzed by litigants upon its publication.

The North Carolina Industrial Commission has rolled out a couple of minor, but important, rules changes over the last several months.  These include:

Increased Threshold for “Medical Only” Claims and Filing of First Report of Injury (Rule 11 NCAC 23A.0104)

A Form 19, Employer’s Report of Employee’s Injury or Occupational Disease to the Industrial Commission, is now required in “medical only” claims (no absence from work for more than one day due to the work injury) when medical compensation paid reaches $4,000.  This is an increase from the prior threshold of $2,000.  The rule still requires the employer, carrier, or administrator to provide the employee with a copy of the completed Form 19 along with a blank Form 18, Notice of Accident to Employer and Claim of Employee, Representative, or Dependent, for the employee’s use in making a claim.

Email Addresses for Receipt of Claim-Related Documents (Rule 11 NCAC 23A.0109)

For claims in which the Commission does not have an individual email address for a representative assigned to a claim, all carriers, TPAs, and self-insured employers are required to provide the Commission with an email address for receipt of claim-related documents.  The email address may be provided to the Commission at contactinfo@ic.nc.gov.

The Commission’s Rules can be found at this link:  http://www.ic.nc.gov/abtrules.html.

Article written by Jamie Flynn, a partner in Goodman McGuffey LLP’s Columbia, SC office. He handles insurance coverage, alleged bad faith practices, civil litigation defense, and workers’ compensation matters. He is licensed to practice in all state and federal courts in both South Carolina and North Carolina, and also handles North Carolina matters from the firm’s Charlotte office. He is a member of the CLM and previous State Chair. He is also an active member of DRI.

Prior to the Coronavirus outbreak, calculating the statute of limitations in a regular tort case was easy arithmetic. For most torts, under Georgia law the statute of limitations to file a lawsuit is two years from the incident. For limited exceptions, the statute of limitations can be tolled or paused—think cases involving a minor or an incapacitated plaintiff. Just like with everything else, the Coronavirus pandemic has now thrown a wrench into calculating the statute of limitations.

O.C.G.A. §38-3-62 gives the Supreme Court of Georgia the power to issue a judicial emergency allowing them, among other things, to suspend, toll, and extend deadlines, including the statute of limitations. On March 14, 2020, the Supreme Court of Georgia issued Order Declaring Statewide Judicial Emergency where the court suspended, tolled, extended, and otherwise granted relief from any deadlines or other time schedules or filing requirements imposed by otherwise applicable statutes, rules, regulations, or court orders, whether in civil or criminal cases or administrative matters, including statute of limitations.

The Supreme Court of Georgia continued to issue orders extending the judicial emergency monthly. On July 10, 2020 the Supreme Court of Georgia issued its Fourth Order Extending Declaration of Statewide Judicial Emergency where it reimposed the deadlines affected by the initial Judicial Emergency Order. The Fourth Order specifically stated that in cases filed on or after July 14, 2020, litigants shall comply with the normal deadlines applicable to the case. Regarding the statute of limitations, the Supreme Court stated “[t]he 122 days between March 14 and July 14, 2020, or any portion of that period in which a statute of limitation would have run, shall be excluded from the calculation of that statute of limitation.”

This portion of the Fourth Judicial Emergency Order has caused confusion on how to calculate the statute of limitations. Parts of the Bar have interpreted the Order to automatically grant a 122-day extension to the statute of limitations.  So, for example, if an accident occurred on March 14, 2020, the proponents of this interpretation would argue the statute didn’t start running until July 14, 2020, and the two-year statute of limitations would expire on July 14, 2022. Other parts of the Bar interpret the Order to only grant an extension for claims whose statutes of limitations would expire between March 14 and July 14, 2020.

The Courts also appear conflicted on how to interpret the Judicial Emergency Order. On January 11, 2021 the Superior Court of Camden County entered an order stating that the 122-day extension was automatically granted for every claim.[1] It appears that this order focuses on the word “tolled,” and interpreted the Judicial Emergency Order as pausing all statutes of limitations during the judicial emergency period. (Click HERE for the Camden County Order).

The District Court for the Middle District of Georgia ruled on April 29, 2021 that the Judicial Emergency Order only extends statutes of limitation in cases where the statute of limitations would expire during the judicial emergency period.[2] The Middle District focused on the word “that” referring to the specific statute of limitations at issue. The Middle District specifically stated that the interpretation that “the Georgia Supreme Court granted every potential plaintiff a 122-day bonus extension to every applicable statute of limitations is simply unreasonable.” (Click HERE For the Middle District Order).    

Neither of the cases cited above are binding on the Georgia Appellate Court. Until a Georgia Appellate Court issues a ruling explaining the correct interpretation of the judicial emergency order, we are in limbo as to when the statute of limitations actually expires. So, what can you do to protect your file?  We find the best course of practice is to act like the deadlines were never affected at all. Plaintiffs that files actions within their normal two-year deadline cut off any statute of limitations arguments of the defendant. If the plaintiff opts to use the possible extension, the defendant should raise the statute of limitations defense in its Answer. 

[1] Cynthia Miranda v. W.F. Readdick, LLC, et. al., Case No. 2020-CV-866, (Superior Ct. Camden County, GA Jan. 11, 2021).

[2] Hans Owens v. Perdue Farms, Inc., et. al., Case No. 5:20-cv-00307-TES (M.D. Ga. April 29, 2021).

On May 21, 2021, in the case of White v. Cheek, 2021 WL 2024866 (Ga. App. 2021), the Georgia Court of Appeals affirmed the trial court’s denial of a carrier’s Motion to Enforce Settlement after a settlement demand was allegedly rejected by phone calls by the carrier to Plaintiff’s counsel seeking clarification. However, in a concurring opinion, Judge McFadden suggests that a subsequent bad faith action should fail at the summary judgment phase because the onerous 22 page demand letter was seemingly a set up.

On May 21, 2021, the Georgia Court of Appeals issued a ruling in the case of White v. Cheek, 2021 WL 2024866 (Ga. App. 2021).  This ruling’s majority opinion has seemingly less long-term significance for carriers than the implications of its concurring opinion by Judge McFadden.

The Cheek case, supra, is an appeal from a denial of a motion to enforce settlement. Cheek’s counsel sent White’s insurer, GEICO a demand letter containing an offer of settlement pursuant to O.C.G.A. § 9-11-67.1 (a). The demand letter, was twenty-two (22) pages single spaced and included sixteen (16) footnotes which the concurring opinion described as being “filled with warnings and threats on a wide variety of subjections.”  One of the terms of the offer was that GEICO was required to make all subsequent communication regarding the offer in writing, and if GEICO violated this requirement by communicating a response “in any form other than writing, that [would] be a rejection of [the] offer . . . .” Id. at *2.

Following receipt of the offer letter, a GEICO representative called Cheek’s counsel and left two separate voicemails regarding a possibility of conducting a recorded interview with Cheek in order to adequately determine White’s liability. Id. Cheek’s counsel interpreted these phone calls as a rejection of their initial offer and sent a letter to GEICO informing them of this understanding. Id. Following this, “GEICO’s counsel sent a letter stating that it was accepting Cheek’s . . . settlement demand letter and all of its terms.” Id. at *3. Cheek’s counsel responded again that the offer had been rejected due to GEICO’s oral communication, so White filed a motion to enforce the settlement, which the trial court eventually denied. Id.

In affirming the trial court’s decision, the Court of Appeals looked to language from O.C.G.A. § 9-11-67.1 (d), giving an offer’s recipient “the right to seek clarification” regarding a number of enumerated issues and assuring that seeking “reasonable clarification shall not be deemed a counteroffer.” O.C.G.A. § 9-11-67.1 (d). In applying this statutory language to White, the court concluded that “[n]othing in the plain language of OCGA § 9-11-67.1 . . . limited Cheek’s ability as the offeror to require that a request for clarification be in writing,” and thus, GEICO’s oral attempt to clarify constituted a rejection of the offer. 2021 WL 2024866 at *4.

Judge McFadden concurred with the majority’s opinion, but disagreed with its reasoning. He feared that the court’s holding would encourage plaintiffs to “set up a bad faith claim.” Id. at *5. First, Judge McFadden, also applying the relevant language of  O.C.G.A. § 9-11-67.1 (d), disagreed with the majority on its assertion that the voicemails constituted a counteroffer because “GEICO’s voicemails were reasonable clarifications of facts relevant to the offer” and “Cheek could not further limit the types of requests for clarification protected under” the statute. Id. at *6. Instead, Judge McFadden found no settlement agreement had been created because GEICO, by attempting to preserve White’s right to deny liability, “delivered a proposed release that differed from the offer’s requirements” that the release be free from denials or non-admissions of liability. Id.

Most significant, however, was Judge McFadden’s concern for the implications of the majority’s reasoning. Judge McFadden recognized that following a ruling like this, the case would then proceed to trial and would be followed by a bad faith action against the carrier.   Id. at *5.  The concurring opinion states that, “the language of the demand letter in this case directly implicates the question of the insurer’s reasonability.” Id. at *7. While these questions are normally left to a jury, there are some circumstances where the claims can be decided at a summary judgment stage. If it is shown that the offeror lacked intent to actually settle the claim, there is likely a lack of good faith. Id. In analyzing the merits of a potential bad faith claim on behalf of Cheek, Judge McFadden asserted that a claim here “would lack merit because of the onerous requirements” of the initial offer letter. Id. at *5. Judge McFadden was especially concerned with the “broad use” of the offer letter used by Cheek’s counsel, as “Cheek’s counsel represented at oral argument that [the letter] is a widely used form.” Id. at *5, *7. Its broad use and onerous requirements are made worse by the fact that the “requirements are buried in a 22-page, single-spaced letter that includes 16 footnotes and is filled with warnings and threats on a wide variety of subjects.” Id. Compliance with the offer “would require hours of work over and above the effort normally necessary to finalize a settlement,” and this lack of reasonability is bolstered by the letter’s assertion that Cheek’s counsel “was unwilling to work with GEICO to ensure that the release was compliant.” Id. at 7. “The 22-page offer letter is compelling, if not dispositive, evidence of a lack of intent to settle the claim and so of bad faith.” Id. at *8.

It is Judge McFadden’s view that the court’s decision should not give future actors, who are similarly situated to Cheek, carte blanche to pursue meritless bad faith claims where the demand letter is as obviously lacking as the one sent to GEICO. The letter’s mere length, number of footnotes, and resulting workload insinuate the lack of intent on behalf of its sender to actually settle the matter, and instead to pursue the potential bad faith claim.  

This article was written and published by GM Partner, Stephanie Glickauf, and summer clerk, Roby Jernigan.

Featured In This Article:

Stephanie F. Glickauf

Partner

Atlanta Office

On July 1, 2017, Plaintiff was walking into a convenience store when he slipped and fell on the exterior walkway.  It had just rained prior to Plaintiff’s visit to the premises. Plaintiff brought suit against the landlord who owned the property and the convenience store tenant.  Evidence brought to light in the case revealed that the landlord applied a slip resistant additive to the walkway surface approximately every year and including a couple months prior to the Plaintiff’s fall.  Representing the convenience store tenant, Mark Henkle argued that the landlord owed a duty to the Plaintiff not the tenant with respect to that area of the premises, that the walkway complied with applicable standards for walking surfaces, and that the Plaintiff had equal knowledge of the wet condition of the walkway because we testified that it had rained immediately prior to the fall. Mr. Henkle argued this Motion before North Carolina Superior Court Judge Craig Croom who held a special session in Pitt County to hear the motion. Judge Croom granted the convenience store’s motion for summary judgment. Click HERE to read the full order. 

Mark Henkle is an Associate Attorney working out of Goodman McGuffey LLP’s Charlotte, North Carolina office. Mark is an experienced attorney representing clients in a wide range of areas including insurance, auto-bodily injury, construction, and employment claims in North Carolina in both state and federal courts. Mark represents various companies with auto injury and property damage issues, construction matters, and employment related matters. Mark has experience in defending corporations and individuals in various complex litigation matters as well as experience in the areas of products liability, premises liability, professional negligence, and other matters.

On June 6, 2018 Russell Fackler was walking up the entrance ramp of Liberty Expressway in Albany, Georgia when he walked in to the path of Defendant Joel White’s truck. A collision occurred between Mr. White’s vehicle and Mr. Fackler, unfortunately killing Mr. Fackler. The investigating police officers found that Mr. Fackler had walked in to the path of Mr. White’s vehicle and found Mr. Fackler at fault for the collision. The father of the deceased brought a wrongful death suit against Mr. White, alleging that he was negligent for failing to yield the right of way to a pedestrian and maintain his lane.

Samantha Mullis moved summary judgment arguing that the plaintiff failed to produce any evidence that Mr. White had violated the rules of the road. In response, Plaintiff attempted to create a question of fact as to the deceased’s location at the time of the collision and that Mr. White had looked back to ensure there was no oncoming traffic at the yield sign to the entrance ramp failing to see the deceased.  In the Defendant’s Reply Brief, Katherine Barton continued to reiterate there was no evidence showing Mr. White was negligent except Plaintiff’s mere speculation. Ms. Barton further argued that the deceased failed to exercise due care for his own safety by being intoxicated and should not have been on any roadway under Georgia law. James Hankins argued Defendant’s Motion at oral argument before Judge Sizemore in Lee County Superior Court, who granted Defendant’s motion.

Click HERE to read the full order.

Featured In This Article:

James T. Hankins, III

Partner

Atlanta Office

Goodman McGuffey partner, Robert Luskin, will be a speaker at the 2021 Defense Research Institute (DRI) Employment and Labor Law Virtual Seminar on the topic of “The Latest on Dealing with COVID” on Thursday, May 27^th from 3:00 – 4:00 PM CST. The 44^th annual DRI Employment and Labor Law Virtual Seminar will take place on Thursday May27th – Friday, May 28^th and will provide attendees up to 6.25 hours of continuing legal education hours. If you want more information or interested in registering for this event, visit DRI’s website HERE.

Robert Luskin is a Partner of Goodman McGuffey LLP working out of the Atlanta office and is an experienced trial lawyer who represents clients in a wide range of insurance matters and employment litigation in Federal and State Courts across Georgia and the Southeast. Robert has experience in defending corporations and individuals in various complex litigation matters, as well as extensive experience in the areas of products liability, premises liability, professional negligence, questionable insurance claims and other insurance coverage matters. Robert also represents various companies with regard to employment related matters including discrimination and harassment issues.

He is a frequent presenter at the National PLRB Seminar, IASIU, NSPII, CLM, and many other national and regional seminars. He serves on the steering committee of DRI Employment Labor and Law committee and is a Member of the International Association of Defense Counsel (IADC), and Federation of Defense & Corporate Counsel (FDCC). He is a past president of the Atlanta Chapter of CLM.

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 Karen Bright v. Local Mechanical Networking, Inc. and Steve Moss, Ms. Bright alleged that Local Mechanical had negligently entrusted the vehicle to Mr. Moss and was vicariously liable for his conduct. Ms. Bright also alleged that Local Mechanical was negligent for hiring Mr. Moss, a veteran with a history of DUI and PTSD, and negligently supervising and training Mr. Moss on the day of the collision. Ms. Bright also alleged that Local Mechanical should be held liable for attorney’s fees under O.C.G.A. 13-6-11 and punitive damages. 

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. James Hankins 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