Articles Posted in Premises Liability

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In Georgia, if a bar, restaurant or other business that serves liquor over-serves a customer and that customer gets into their car and kills someone, the establishment can be held liable for punitive damages. If there was any doubt, the Supreme Court of Georgia reaffirmed in a unanimous decision, this in a recent decision. In other words, someone (i.e., a bar, restaurant, etc.) who helped cause a drunk-driving accident but was not the actual DUI driver, could still be liable for uncapped punitive damages as an “active tortfeasor” in the wreck.

To be sure that the ruling is not limited to a certain set of facts, the case that the Georgia Supreme decided involved a man who had been drinking and loaned his car to his friend who he had been drinking with. So, the punitive damages liability would apply to individuals and businesses alike. This broad case ruling changes the landscape on liability in these situations. Someone who serves somebody — a restaurant, bartender, or even a private host holding a party– who serves someone who is obviously too drunk to drive is subject to punitive damages. In the case decided by the Court, the one defendant asked his friend to drive his car and give him the keys to it, even though his friend was obviously too drunk to drive and he knew it. The friend, as it turns out, did not have a valid driver’s license and the court determined he had a habit of recklessness. Of course, his friend drove drunk and caused a wreck while DUI. In a situation like this, it is common for the DUI driver to be sued for negligence and the person who gave him the car to be sued for negligent entrustment, which is what happened in this case. Both were found liable for the injuries caused by the DUI driver who caused the wreck. The trial judge found that both defendants (the DUI driver and his friend who loaned him the car while knowing he was drunk) “acted in a manner that showed willful misconduct, malice, wantonness, and that entire want of care which would raise the presumption of conscious indifference to consequences.” Normally, this would give rise to punitive damages liability, but the trial judge, while awarding punitive damages agains the driver, would not award them agains the friend who had been found guilty of negligent entrustment.

In reversing the trial court, the Supreme Court of Georgia ruled that there is no limit to punitive damages in cases where the defendant is found to have acted or failed to act with the specific intent to cause harm and that, pursuant to Georgia law amended in 1997, a defendant under the influence of alcohol or drugs “to the degree that his or her judgment is substantially impaired” could be subjected to unlimited punitive damages as an active tortfeasor.” This couple with the ruling that the party guilty of negligent entrustment was an active tortfeasor was the impetus for the Court to hold that the negligent entrustor was liable for punitive damages, as well as the DUI driver.

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The owners and management companies of Georgia Apartment complexes have what is referred to under Georgia law as a non-delegable duty to make sure that their apartments and the entire complex are safe and do not have any unsafe conditions that can cause injury or death to the occupants, their guests or anyone else who is lawfully on the premises. This duty would extend to workers who are delivering packages for UPS, Federal Express and Amazon during the busy holiday season in Atlanta, as well as others who come onto the property for lawful purposes. In their wrongful death lawsuit filed in Fulton County State Court a toddler’s parents allege that their apartment complex in the Lindbergh area of Atlanta was negligent by not having any safety features in the window, as required by building codes, and that this lack of safety features was the proximate cause of their son’s tragic death. The toddler was curious, looked down through the windows and was able to squeeze through and feel to his death.

As mandated by the International Building Code, which has been adopted by the state of Georgia and which sets the standard for safety in apartment complexes, an exterior wall window within 3 feet of the floor must have safety devices if opening the window would allow an object 4 inches in diameter or larger to otherwise pass through.

In response to the lawsuit, the complex’s owner, ignored a request for comment on the lawsuit. However, lawyers have indicated that after the toddler’s death, the complex installed safety features on the windows that would have avoided the death.

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The #metoo movement is on everyone’s mind. It is real and it is a problem that everyone in our society must take seriously, address and come up with a solution. One way to do this is to expose all of the ways that unwanted touching, unwanted sexual advances, and other types of violations are perpetrated in our society. A few years ago, a popular massage company that had aggressively expanded into Atlanta was in the news for instances of unwanted touching. The most common scenario: females being massaged by male employees of the massage company were being touched on parts of their body that were: (1) not what they wanted; (2) too intimate for a massage; (3) sexual in nature; and (4) beyond what they consented to when they agreed to the massage. The message that can be taken from this is: while this is the most common scenario, many types of unwanted sexual advances take place today. Many go unreported, others are reported but not taken seriously by the organization through which the sexual aggressor work, and still others are covered up by the organization (the very same organization that is responsible under the legal theories of agency, respondeat superior or joint venture for the acts of the perpetrator). While the act of unwanted touching is a crime in and of itself, putting someone in the position to commit this act (such as a massage therapist) when they are not sufficiently vetted and or trained, is an act of negligence on the part of the company and gives rise to a claim against that company for allowing this to happen.

Wide scale sexual abuse has been in the news seemingly all the time during this decade. The boy scouts, the catholic church, and national massage chains have all been associated with these claims of allowing sexual predators to operate within their organizations. However, the prevalence of these crimes is not restricted by any stretch of the imagination to these organizations. The following is an example of how unwanted touching can affect almost anyone in our society. How it can occur via a slippery slope and how the victim, many times remains quiet and “suffers in silence” because they somehow blame themselves, at least in part, for either allowing the unwanted touching to happen; or not stopping it once it happens; or not standing up for themselves and reporting it immediately; or not reporting it at all. Then again, this example exemplifies the suffering after the fact that is almost inevitable. The facts have been changed to protect the victim, but the moral of the situation is clear: This can happen to anyone, at any time. It does not matter if you are a woman, man, young boy, young girl, teenager, retiree, child, etc. It can happen to anyone and it can affect anyone. Just because we seemingly hear and read about woman and young boys being the victim of this crime, it is not limited to them. Here is one example that may be an eye-opener to many:

I took a vacation with my family. We were all excited to be headed to the beach and have a few well-deserved days off from the grind. My wife and I decided to spend the day together and we saw a popular massage place in the area. We wandered in and scheduled massages. They happily took us right away and we were in separate rooms. I lay on the massage table and the lady came in. I was getting a full body massage, and was naked under the sheet and towel on the massage table. I have gotten many massaged before and have always felt more comfortable removing all my clothes. Perhaps this was a mistake, I don’t know. The massage therapist came in and whispered “Hi Honey,” a bit unusual, but I did not think much of it as massage therapists usually talk very low and serene, as does everyone in a massage parlor, at least that is my impression. Was this a signal of things to come? I don’t know, perhaps it was, but I had no idea at the time.

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If you live or work in or around Atlanta, you have undoubtedly seen uncovered holes like the one below. Far too often, the City of Atlanta workers will not cover make the necessary repairs on these hazards, even after being  repeatedly notified of the dangerous condition (Full disclosure: the picture below is from DeKalb County and was in the section of the AJC entitled “What’s not working around Metro Atlanta”).

Dangerous conditions like this are a hazardous condition. When an innocent person is injured by this hazard, they can sue the city of Atlanta or DeKalb County for negligence. However, once a city of county is made aware of the dangerous condition, the injured person can sue the city of county under and additional basis of negligence called nuisance. Nuisance, is essentially when a city of county is aware of a dangerous condition and allows it to continue to be unsafe instead of simply correcting the problem and eliminating the nuisance.

My firm recently tried a case in DeKalb County against the City of Decatur for a serious injury that was caused by the failure of the City of Decatur to properly maintain and repair its sidewalks. The fall occurred right outside the courthouse square. During the trial, my partners were able to establish that the City of Decatur did not proactively inspect and fix it sidewalks, but apparently just waited until someone reported an unsafe sidewalk condition (or, as in the lawsuit, was injured) before they would make repairs. The jury sided with our client and awarded an almost $200,000 verdict against the City.

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The following was recently received by a colleague from an Atlanta insurance defense firm regarding a personal injury case that he was pursuing on behalf of the plaintiff:

“if any surgery is contemplated for any of the injuries he alleges we demand an IME [Independent Medical Exam]prior to the performance of such surgery. We have a right to see the alleged injuries in an unaltered state for the purpose of ascertaining their existence and causation. If you fail to properly secure and preserve this evidence and alter it prior to the requested IME, we will pursue a spoliation of evidence claim and seek all sanctions available under the applicable law.”

The law in Georgia is:

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The initial inquiry by trial courts in Georgia in slip and fall cases can result in summary judgment and end Plaintiff’s case before the jury has a chance to render a verdict.  However, attempts by the defendant stores to move for summary judgment and escape liability for the injuries caused by their negligence are substantially hampered by Georgia case law from the 1960’s. In fact other jurisdictions have cited a 1967 Georgia case as precedent for the evolving principle that a store’s “mode of operation” can fulfill the superior knowledge or constructive notice requirement in a premises liability case. Colonial Stores, Inc. v. Donovan, 154 S.E.2d 659 (Ga. App. 1967), addresses hazards created by the manner of displaying merchandise in a retail store. Pursuant to the Colonial Stores, Inc. decision:

“A person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care.  A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which he should have anticipated. Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect.  Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached.”

Citing Colonial Stores, Inc., in Keaton v. A.B.C. Drug Co., 467 S.E.2d 558, 561 (Ga. 1996), the Georgia Supreme Court affirmed a reversal of summary judgment for the defendant premises owner.  Importantly, the Supreme Court of Georgia focused on the manner in which the merchant/store owner displayed merchandise which created the likelihood that a spill would occur rather than the spill itself and held: the merchant had constructive knowledge of a hazard, superior to the knowledge of the plaintiff, under the following circumstances. The jury was authorized to find that by placing a caustic substance contained in a package without some sort of leakage preventer, such as a protective wrap, at a level above the eyes of an average adult, ABC should have anticipated that in the event of a leakage, injury would result. Further, by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person’s ability to exercise caution by checking to see if the cap was loose.  Clearly, had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level.  Also, the ability of a plaintiff to avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level.” (internal citations omitted)

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Several adults, and at least one teenager face charges arising out of a fatal drunk driving accident that killed a 16-year-old Villa Rica boy. The adults include fathers of some of the teenagers involved, as well as a liquor store owner.

The accident occurred over the weekend when a car full of teenagers crashed in Douglas County. According to the Georgia State Patrol, when the at-fault driver lost control of his SUV, and the resulting accident killed 16-year-old passenger. The SUV drivers was on bond for drug and alcohol charges at the time of the accident. Not surprisingly, the judge has denied his bond application this time around.

Investigations have been tracing the at-fault driver’s actions just before the accident. According to them, he first made a stop at a party being hosted by the teenage grandson of a Villa Rica man, who has now been charged in the accident for allowing underage drinking in his house. There, the at-fault SUV driver consumed an undetermined amount of alcohol, and then went on to his next stop, another party that was being hosted by another teenager. In that case too, the teenager had been allowed by his father to drink with his minor friends. This teenager purchased alcohol at a Douglasville liquor store, and the liquor store owner now faces charges. The at-fault SUV driver consumed more alcohol at the second party, and then drove on, resulting in the accident.
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A lawsuit filed by plaintiffs against MARTA concluded last week with a $1.4 million verdict in Fulton County Superior Court. Two years ago, Patricia Weeks missed a football game because a MARTA escalator abruptly switched directions, causing most of its riders to fall. Now Weeks, after suing MARTA, has been compensated for her injuries.
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As an experienced Georgia lawyer, I represent many clients who have been seriously injured or who have complex legal needs. This entry is one of a series of blog posts which address frequently asked questions. Knowing the answers to these common questions will allow those who need to hire a Georgia lawyer to make a more informed decision.

What should I look for in choosing a lawyer in Georgia to represent me?

Before hiring a lawyer in Georgia, you should conduct some basic background research to determine if the lawyer you are considering hiring is the right lawyer for the job. Many times the best marketer gets hired by the client, and this is a shame, because you deserve to have an experienced and dedicated lawyer representing you. As a general rule, staying away from the “heavy advertisers” such as those lawyers who advertise on daytime T.V., on the back of city busses, and on the front pages of the Yellow Pages is advisable. Many of these lawyers simply spend a lot of money on advertising and refer most of their cases to other lawyers who actually do the work.

Some factors which should be considered before hiring your lawyer are: (1) education–from which law school did the lawyer graduate. Law school educations vary greatly. Make sure your Georgia lawyer graduated from a top law school; (2) how much experience does this lawyer have. The practice of law is one of those professions that, with few exceptions, the more experience a lawyer has, the better. Lawyers often draw upon prior cases and situations in which they were involved to successfully prosecute current cases. The more experienced your lawyer is, the more prior experiences to draw from. Experience matters; (3) ask about courtroom experience and results. Many lawyers are vague about this. Many call themselves “litigators” yet have no direct trial experience. If you have an important case and go to trial, you will want an experienced trial lawyer (i.e., one who has ample “first chair” trial experiences and results to share with you) on your side at the courthouse. Ask specific questions and expect direct answers; (4) try to hire a lawyer that you like. I realize that, many times, you must make a fairly quick decision, and you have little chance to really get to know a lawyer before you hire them. But, try to get to know the lawyer you are considering hiring. Then, use your instincts and ask yourself, “is this someone who is trustworthy, likeable and easy to get along with?” You can usually answer this question. If the answer is, “no” or “I don’t know”, then keep searching and hire a different lawyer. A good trial lawyer is someone who can be trusted by all (by you, by opposing counsel and by the judges and courtroom staff). A good trial lawyer has a personality that people genuinely like and respect. A good trial lawyer instills confidence and competency in everyone involved. You should have these good feelings about your lawyer, or you should continue your search. “Why,” you may ask. Because your lawyer will need all of these skills to successfully prosecute your case, whether it involves negotiating with the other side’s insurance company, working with you, or trying your case in a court of law.
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On July 4, 2006, a family was traveling along Rte 29 when the limb from an oak tree fell on their car. Due to the fallen tree limb, the husband suffered a broken neck and permanently lost the use of his right arm. The driver lost control of the SUV after the tree limb landed on the car, which caused the SUV to hit the guard rail on the opposite side of the road.

The verdict was against the State for failing to properly maintain the roadway, as the oak tree had apparently been weakened by flooding and showed signs of rot, yet the State failed to take appropriate action to ensure the roadway was safe. $6 Million Article. While this wreck did not happen inside the City of Atlanta city limits, it is interesting to note how the City’s tree ordinance addresses potentially hazardous tree conditions.

According to the code, Hazardous tree means a tree with uncorrectable defects severe enough to pose present danger to people or buildings under normal conditions, as determined by the city arborist or city forester. Sec. 158-26 of the Code.

The City code addresses dead or diseased trees being a hazard in Sec. 158-110 as follows:

The provisions of this section shall apply to all property in the city, as follows:
(1) Generally. Any dead or diseased tree or part of a tree is a nuisance when, by reason of such condition, natural forces may, more readily than if such tree or part thereof were live or not diseased, fell or blow such tree or part thereof onto public ways or public property, off of the property of the owner of such tree, and thereby imperil life or property or impede traffic. When a dead or diseased tree which is alleged to constitute a nuisance is brought to the attention of the parks arboricultural manager or city arborist, the parks arboricultural manager or city arborist, in their discretion, may submit through the director, bureau of parks a written opinion to the director, bureau of buildings. Upon receiving a written opinion from the director, bureau of parks that any tree or part thereof is a nuisance as defined in this section, the director, bureau of buildings shall commence nuisance abatement proceedings.
(2) Notice to owner to remedy conditions; failure to comply. The director, bureau of buildings shall give written notice to the owner or the person in possession, charge or control of the

property where a tree nuisance as defined in this section exists, stating that in the city arborist’s opinion the tree or part of a tree does constitute a nuisance that shall be removed, and requesting that such removal be done within a reasonable time to be specified in such notice. In no event shall such reasonable time exceed ten working days. Such notice shall further state that unless the tree or part thereof is voluntarily removed within the time specified, the director may cause summons to be issued requiring the party notified to appear in the municipal court to have there determined whether the tree or part of a tree involved constitute a nuisance and should be abated. If the tree is not removed within the time specified by the director, the director may cause the owner of such tree, or the person in possession, charge or control thereof, to be summoned to appear before the judge of the municipal court to determine whether or not the tree or part of a tree involved constitutes a nuisance.

If the above situation applies, the owner (even if a governmental entity) is on notice of the hazard and is liable for all damages that flow from the hazard, such as falling limbs onto houses and cars or into the roadway which causes damages. If a private property owner in Georgia has prior knowledge that their tree is unsafe they will likely be liable for damages that stem from the tree throwing off limbs or falling. “Prior knowledge” can be established by a letter sent to the property owner putting them on notice or by obvious conditions that would indicate that the tree is unsafe such as falling limbs, rot or decay.
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