Exclusive Remedy Doctrine Bars Tort Suits Even After “No-Liability” Settlement in Workers’ Comp Claim

On February 13, 2009, John Ellis, an employee of The Knight Group, a homebuilder, accidentally shot his coworker, Joseph Smith, while the two were shooting the gun in an empty build site owned by the employer while on-the-clock. Smith v. Ellis, ___ Ga. ____, 2012 WL 3887670 (Sept. 10, 2012). Smith filed a workers’ compensation claim against the employer and eventually entered into a no-liability settlement regarding the injury for $6,000.00. Nine months later, Smith sued Ellis for negligence and, under the exclusive remedy provision, the trial court granted summary judgment to Ellis. In granting summary judgment, the trial court relied on Ridley v. Monroe, 256 Ga.App. 686 (2002), holding that a no-liability settlement has the same effect as a liability settlement. The Court of Appeals split evenly on whether Ridley should be overruled. The Supreme Court held that Ridley was correctly held and the exclusive remedy provision barred Smith from bringing an action for the same injury against anyone except a third-party tortfeasor. As such, Smith argued that Ellis was a third-party tortfeasor rather than a coworker. The Court found that there was enough fact alleged that Ellis was not acting as “an employee of the same employer” to preclude summary judgment since Ellis left his build site that day for “personal reasons” and hid his presence at Smith’s build site from a supervisor.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Trial Court Required to Take Remedial Action if Objection to Improper Closing Argument is Sustained.

The Supreme Court recently held that once an objection to improper argument has been sustained in a civil case, the trial court is required to employ some corrective measure to remedy the harm resulting from the impropriety even absent a specific request for such a measure; overruling Garner v. Victory Express, Inc., 264 Ga. 171 (1994), Dascombe v. Hanley, 270 Ga.App. 355 (2004), and Strickland v. Stubbs, 218 Ga.App. 279 (1995). In Stolte v. Fagan, ___ Ga. ____ (WL 3888219) (September 10, 2012), Stolte and her husband sued her dentist and his practice for malpractice claiming that Fagan negligently severed a nerve during a wisdom tooth extraction. The trial court returned a defense verdict. On appeal, Stolte argued that defense counsel improperly encouraged the jury in closing arguments to consider the impact of the claims on Fagan’s professional reputation. Once Stolte’s counsel properly objected, the trial court, as the Supreme Court held, “assumed an independent duty to take some remedial action—a curative instruction or rebuke of counsel, for example—without any additional requests from Stolte’s counsel.” The Court reversed the trial court and Court of Appeals on this issue and remanded regarding another issue related to juror qualifications.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Georgia’s Whistleblower Statute Constitutes Express Waiver of Sovereign Immunity

The Georgia Court of Appeals recently found that the cause of action for relief set forth in the Georgia Whistleblower Act unambiguously expresses a specific waiver of sovereign immunity and the extent of such waiver.  Fulton County v. Colon, Nos. A12A0529, A12A0530, 2012 WL 2866410, at *1 (Ga. Ct. App. July 13, 2012).  The court noted that “where a legislative act creates a right of action against the state which can result in a money judgment against the state treasury, and the state otherwise would have enjoyed sovereign immunity from the cause of action, the legislative act must be considered a waiver of the state’s sovereign immunity to the extent of the right of action—or the legislative act would have no meaning.”  Id. at *2 (citing Williamson v. Dept. of Human Res., 258 Ga. App. 113, 115 (2002)).  Thus, in Colon, to the extent that the plaintiffs/appellees asserted causes of action under O.C.G.A. §45-1-4, Fulton County’s sovereign immunity was waived.  Id.  Colon also addresses subsection (b) of the statute which provides that a public employer “may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.”  Id. at *2-4 (discussing O.C.G.A. §45-1-4 (b)).  Applying subsection (b), the court found that it acts as a limit on whistleblower protection in that “where the complaint about fraud, waste, and abuse is made to a public employer defined under OCGA § 45–1–4(a)(4) as a state-funded local governmental entity, whistle-blower protection is limited to a complaint related to a state-funded program or operation under the jurisdiction of the public employer.”

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Res Judicata Bars Plaintiff from Recasting Allegations from Professional Negligence to Simple Negligence Against Nursing Home

In Dove v. Ty Cobb Healthcare Sys., Inc., ___ Ga.App. ____, 2012 WL 1759979 (May 18, 2012), Plaintiff filed a medical malpractice action on behalf of her deceased mother’s estate against her mother’s former nursing home.  In a separate opinion (305 Ga.App. 13 (2010)), the Court of Appeals affirmed the trial court’s grant of the nursing home’s motion for partial summary judgment based on the statute of limitations.  Thereafter, Plaintiff amended her complaint by recasting the same facts as amounting to simple negligence, not professional negligence.  The trial court dismissed the amendment, holding that the majority of her claims were precluded by res judicata and the remaining still alleged professional negligence, albeit now without the support of an expert affidavit, which is improper.   The doctrine of “res judicata” prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action; the doctrine prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim.  Three prerequisites must be satisfied before res judicata applies-(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction. In affirming the trial court’s dismissal based on res judicata, the Court held that there was clearly identity of the parties and a previous adjudication and, further, that it was undisputed that Dove’s third amended complaint is based on the identical set of facts alleged in her previous complaints with the only difference being that she now has characterized those allegations as constituting simple negligence instead of professional negligence, so there was a clear identification of the cause of action.  Finally, however, the Court reversed the trial court on its decision that the remaining allegations must also be dismissed as without support of an expert affidavit, finding that the nursing home did not argue that Dove’s claims should also be dismissed because she failed to file an expert affidavit with her third amended complaint, and remanded for further proceedings on only those two remaining claims.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Constructive Knowledge Lands Storeowner in Puddle

On March 12, 2012, the Georgia Court of Appeals reversed a Glynn County Superior Court finding of summary judgment in favor of a storeowner where Plaintiff slipped and fell in a puddle of wine along the rear aisle of the store. Bradley v. Winn-Dixie Stores, Inc., 12 FCDR 878 (Ga.App. March 2, 2012). There, to prove Winn-Dixie had constructive knowledge of the spill, Plaintiff pointed to her own testimony that a store employee was in the immediate vicinity of the hazard at the time of the fall. The trial court, however, found that Plaintiff had given contradictory testimony about this alleged employee and, applying the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986) (Testimony of party who offers himself as witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal), viewed this testimony in an unfavorable light. Because of this position on the testimony, the trial court awarded summary judgment to the store. The Court of Appeals reversed the trial court as Plaintiff’s initial statement that store employee was “facing” her when she fell, and later statement that employee was “facing the side” of her, were not contradictory, and thus would not be construed against her. Because contradictory testimony, which may be construed against a party relying exclusively on that testimony in opposition to summary judgment, is not to be construed against a party if she offers a reasonable explanation for the contradiction, the Court found that there was at least a genuine issue of material fact as to whether the storeowner had constructive knowledge of the hazard and, therefore, summary judgment should have been precluded.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

At-Fault Driver Distracted by Cell Phone Not Liable for Punitive Damages Absent Evidence of Aggravating Circumstances

The Georgia Court of Appeals recently held that punitive damages are not necessarily warranted where a driver causes a motor vehicle accident while distracted by his or her cell phone. In Lindsey v. Clinch County Glass, Inc., 2011 WL 4057533 (Ga.App. Sep. 14, 2011), the plaintiff sued the defendant for injuries sustained in a collision and sought punitive damages because the defendant admitted that he was looking at his cell phone immediately before the impact. The trial court granted the defendant’s partial motion for summary judgment on the punitive damages claim and the plaintiff appealed. As an initial matter, punitive damages may be awarded only where the defendant’s actions show “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

On appeal, the plaintiff pointed to evidence that the defendant frequently used his cell phone while driving although he knew it was dangerous and cited several studies showing that talking on a cell phone while driving is more dangerous than driving while intoxicated. The plaintiff argued that the evidence established a pattern or policy of driving dangerously. The Georgia Court of Appeals disagreed, noting that in cases involving automobile collisions, punitive damages are typically authorized in instances such as excessive speeding or driving while intoxicated, but not when a driver simply violates a rule of the road. Moreover, although the defendant admitted he was distracted by his cell phone, mere negligence, even gross negligence, is not enough to support a claim for punitive damages. In this case, there was no evidence that the defendant was speeding, driving while intoxicated, or that he had a history of distraction-related accidents. The Georgia Court of Appeals clarified that cell phone use does not, without evidence of aggravating circumstances, establish a policy or pattern of dangerous driving. Therefore, the plaintiff was not entitled to punitive damages.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Recent Decisions Involving Waiver of Sovereign Immunity for Use of Motor Vehicles

The Georgia Court of Appeals recently addressed a county’s waiver of sovereign immunity for claims arising out of the use of a government vehicle.

In Strength v. Lovett, 2011 WL 2716018 (Ga.App. Jul. 14, 2011), the plaintiffs sued a county sheriff for wrongful death arising out of a fatal collision during a high speed chase involving a sheriff’s deputy. The plaintiffs alleged the deputy acted in reckless disregard of proper police procedures in choosing to pursue a fleeing a suspect at high speed and causing a collision. The trial court denied the sheriff’s motion for summary judgment on grounds of sovereign immunity and the sheriff appealed. Under O.C.G.A. § 36-92-2, a county’s sovereign immunity is waived “for a loss arising out of claims for the negligent use of a covered motor vehicle.” While the sheriff did not dispute that the deputy’s patrol car was a “covered motor vehicle,” he contended that the plaintiffs’ claim was not one for “the negligent use of” the vehicle. Specifically, the sheriff argued that a deputy makes a “negligent use of” a vehicle only when he operates the vehicle in a negligent manner, not when he makes a reckless decision while safely operating the vehicle. The Georgia Court of Appeals disagreed, holding that a claim that an officer acted in reckless disregard of proper procedures in pursuing a fleeing suspect falls within the scope of claims for negligent use of a county-owned motor vehicle. Therefore, the sheriff was not entitled to sovereign immunity.

In Glynn County v. Johnson, 2011 WL 4057437 (Ga.App. Sep. 14, 2011), the plaintiff sued the county alleging he sustained permanent lung injuries after breathing chemicals sprayed by the county’s mosquito control helicopter. The trial court denied the county’s motion to dismiss on grounds of sovereign immunity and the county appealed. The plaintiff argued that the county waived its immunity under O.C.G.A. § 33-24-51 by purchasing liability insurance for the helicopter. That statute provides that sovereign immunity is waived where a county purchases insurance to cover damages “arising by reason of ownership, maintenance, operation, or use of any motor vehicle.” The county argued that its helicopter did not constitute a “motor vehicle” within the meaning of the statute. The Georgia Court of Appeals agreed, holding that “any motor vehicle” refers to a vehicle that “is capable of being driven on the public roads.” Because a helicopter does not fit this definition, there could be no waiver of the county’s sovereign immunity, despite the purchase of insurance for the helicopter.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Entry of Default Judgment Does Not Bar Assertion of Official Immunity

In Cosby v. Lewis, 2011 WL 1018996 (Ga.App., 2011), the parents of a high school student who drowned in a hotel pool during a class trip brought a wrongful death action against the school district and several of its employees. The defendants, who were employees of the high school, served as chaperones for the trip and had left the hotel shortly after checking in to get something to eat. Meanwhile, several students decided to go swimming and one of the students drowned. The student’s parents sued the defendants in their official and individual capacities. As a result of some confusion regarding whether they had been served, the defendants failed to timely file answers. The defendants thereafter filed a motion to dismiss based upon sovereign and official immunity. The trial court dismissed the claims in their official capacities but granted a default judgment against them in their personal capacities, holding that they were not entitled to the “defense” of official immunity.

On appeal, the defendants argued the trial court lacked jurisdiction to enter a default judgment because they were entitled to official immunity. The doctrine of official immunity, also known as qualified immunity, shields public employees from suit when they negligently perform discretionary acts. Official immunity is not a mere defense but rather an entitlement not to be sued that must be addressed as a threshold matter before a lawsuit may proceed. In reversing the trial court, the Georgia Court of Appeals held that because the lawsuit arose from actions the defendants took in their official capacities as employees of the school, the entry of default judgment did not bar the defendants from asserting official immunity. The Court remanded the case back to the trial court to determine whether the defendants’ acts were ministerial or discretionary in nature.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Fraud Exception to Statute of Repose for Construction Defects Does Not Apply Where Injury Occurred Outside the Statutory Period

The Supreme Court of Georgia recently held that a homebuilder, who allegedly concealed a construction defect, was shielded by the statute of repose where the plaintiff’s injuries occurred more than eight years after the construction of a faulty deck. Rosenberg v. Falling Water, Inc., 2011 WL 977816 (Ga., 2011).

On March 28, 2002, Rosenberg purchased a home built by Falling Water in 1994. On August 31, 2005, Rosenberg fell and sustained serious injuries when the back deck collapsed. Rosenberg sued Falling Water, alleging it had negligently constructed the deck and committed fraud by hiding the defective construction by using certain bolts that made it appear that the deck was properly attached to the house. Falling Water moved for summary judgment, asserting that Rosenberg’s claims were barred by O.C.G.A. § 9-3-51(a), which prohibits recovery for personal injuries resulting from a construction defect of an improvement to real property more than eight years after “substantial completion of such an improvement.” Rosenberg argued that because Falling Water committed fraud, it should not be allowed to assert the statute of repose defense.

The statute of repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the plaintiff by the defendant’s fraud. In other words, the defendant is not allowed to cause the plaintiff to miss the deadline imposed by the statute or repose and then use that same statute to defeat the plaintiff’s otherwise viable action. The Supreme Court of Georgia declined to extend this exception in Rosenberg because the plaintiff was injured years after the statute had expired. Therefore, Rosenberg never had a viable cause of action to pursue. Additionally, Falling Water had taken no action to prevent Rosenberg from discovering a cause of action or to discourage Rosenberg from filing a lawsuit. Under the plain language of the statute, the Court held, Rosenberg’s claims were barred because they accrued more than eight years after the construction was completed.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Attorney General Proposes Bill Overhauling Open Records and Open Meetings Acts

Attorney General Sam Olens recently filed legislation (H.B. 397) to revise state laws on public access to government records and meetings. Changes to the Open Meetings Acts would define gatherings of more than two members but less than a quorum of a public body as a public meeting, require public votes on land purchases and hirings, and mandate the recording of minutes in executive sessions so that they could be viewed in camera by a judge if a violation of the Act is alleged. Access to executive sessions is currently closed to the public. A change to the Open Records Act would require an agency facing a voluminous document request to provide what records it can in three days while continuing to work on the remainder of the request.

Fines for violations of either Act would increase to $1,000.00 for the first violation and $2,500.00 for subsequent violations within one year. The current fines are $100.00 for a violation of the Open Records Act and $500.00 for a violation of the Open Meetings Act. Another proposed change to the Open Records Act would allow agencies to collect payment in advance for public records costing $500.00 or more to produce and take away the option of making requests orally. There is also a provision that allows agencies to charge requesters for redaction of documents.

Perhaps the most significant proposed amendment would prohibit the use of the Open Records Act to obtain documents in civil or administrative litigation. Currently, many attorneys rely on the Open Records Act to obtain public records instead of the formal discovery process because it is more efficient. This amendment would protect government entities from potential harassment and unchecked and overbroad requests in the event they are dismissed as a defendant in a lawsuit.

Overall, the proposed amendments to both Acts favor government entities. Olens said revisions of the bill would continue as he engages in more discussions with media, legal, and government representatives. In order to survive, the bill must pass out of committee by Wednesday, March 16, 2011.

UPDATE (3/18/2011): The bill did not pass out of the House Judiciary Committee, as Olens decided to halt the proposed legislation in order to give government agencies, attorneys, and media representatives more time to render their opinions. Olens also plans to call hearings on the bill this summer when the General Assembly reconvenes to discuss redistricting and reapportionment.

For more information, please contact T.K. Haff at (404) 633-9230.