Torts
| Publication year | 2020 |
Torts
Jarome E. Gautreaux
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This Article addresses recent cases decided during the survey period in the area of torts.1 This survey period is especially remarkable for a couple of cases decided by the Georgia Supreme court that overruled prior precedents.
A jury returned a verdict for over a million dollars but declined to award anything for pain and suffering in Rockdale Hospital, LLC v. Evans.2 This oddity resulted in the plaintiff seeking additur or a new trial on damages on the grounds that the verdict was clearly inadequate and inconsistent with the preponderance of the evidence.3 The trial court denied the motion and the Georgia Court of Appeals reversed the trial court's denial of that motion and ordered a new trial of the entire case.4 In reaching its decision, the court of appeals concluded that the verdict was "so clearly inadequate under a preponderance of the evidence as to shock the conscience and necessitate a new trial under OCGA § 51-12-12 (b)."5
The Georgia Supreme Court reversed, holding that the court of appeals wrongly applied a preponderance of the evidence standard rather than an abuse of discretion standard to its review of the trial court's
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decision.6 The court of appeals decision was therefore vacated and the case was remanded.7
A trial court granted a directed verdict on the issue of proof of negligence in Rhoades v. McCormack.8 The case involved a facial burn during a dental procedure, apparently from an overheated saw.9 At trial, the plaintiff's expert could not offer an opinion about the specific measures that the doctor performing the surgery should have undertaken to prevent the burn.10 Thus, the trial court granted a directed verdict because the plaintiff had failed to prove an act of negligence.11 The court of appeals affirmed the trial court, agreeing that there was no showing of any specific act of negligence proved, and thus the expert was simply relying on an inference of negligence because of an unintended result.12 In reaching this result, the court reiterated the well-established rule that the doctrine of res ipsa loquitor does not apply in medical negligence cases.13
The Georgia Supreme Court reversed the court of appeals on the issue of a jury instruction on assumption of the risk in Daly v. Berryhill.14 At trial, the evidence showed that a man fainted and fell from a deer stand five days after undergoing heart surgery.15 The plaintiff alleged that the physician prescribed too much blood pressure medication following the surgery.16 The trial court instructed the jury on assumption of the risk, and the court of appeals reversed.17
The Georgia Supreme Court reversed the court of appeals.18 The plaintiff argued evidence had to show knowledge of an actual, specific risk, such as knowledge that the plaintiff knew the specific risk of fainting because of his blood pressure medicine.19 But, based on evidence that the physician instructed the plaintiff not to engage in strenuous activity and not to lift more than ten pounds or bend or stoop over for at least seven days post-surgery, the court found that the assumption of the
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risk instruction was properly given by the trial court.20 Thus, it appears that the supreme court is not requiring specific subjective knowledge of the plaintiff to support a charge on assumption of the risk, and may now be using an objective "reasonable person" standard, or something very akin to it, on this issue.21
The topic of qualified immunity and its evolution into a nearly all-powerful defense to claims against governmental malfeasance is getting much-needed attention these days.22 As is true in most survey periods, the Georgia courts also continue to address immunity of governmental actors involved in tort actions.
The scope of the parties who must receive an ante litem notice was at issue in Moats v. Mendez.23 The underlying case involved a car wreck between the plaintiff and a deputy sheriff. The ante litem notice was sent to the County Commissioners but not to the Sheriffs Office. The complaint was eventually filed and motions to dismiss were filed based on the failure of the plaintiff to send an ante litem notice to the Sheriff's Office. The trial court denied the motion to dismiss, and interlocutory review was sought and granted.24
A majority of the court of appeals reversed the trial court's denial of the motion to dismiss.25 The majority opinion held that an ante litem notice must be provided to the Sheriff's Office when the claim involves conduct for which the Sheriff can be held vicariously liable.26 Apparently, the Sheriff is enough "like" a county that it can be treated as a county for ante litem purposes.27 Thus, despite the plain text of the statute that a claim against a county should be presented to the county, the majority reasons that a county presentment statute morphs into a Sheriff presentment statute, all while the statute never mentions sheriffs at all.28
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The dissent rejected the "county-like" theory and noted that the language of O.C.G.A. § 36-11-129 does not specifically mention any entities other than counties and the text specifically only applies to "claims against counties."30 The dissent also concluded that if the claim is treated as a claim against a county, the presentment of the claim to the county should suffice.31
Certiorari has been granted, so the Georgia Supreme Court should be issuing an opinion soon that resolves the debate.32
City immunity also received appellate scrutiny during the survey period. In City of Lafayette v. Chandler,33 the court of appeals dealt with the recurring issue of how specific the demand for damages must be in an ante litem notice.34 The case involved a serious motor vehicle wreck between the plaintiff and a city firefighter.35 The ante litem notice, sent pursuant to O.C.G.A. § 36-33-5(e),36 advised the city that the injured person was seeking over $100,000 in damages for treatment of several broken bones and corresponding hospitalizations and would seek to recover $1,000,000 at trial.37
The City argued that this general statement of the amount of damages was not specific enough to satisfy the statute.38 The court rejected that argument and held that the statement of the amount of damages was sufficient.39 In reaching this conclusion, the court noted that the $1,000,000 figure was specific enough to constitute an offer of compromise under the statute.40 A note of caution, however, is important, as it seems the court also would not find the mere statement that damages "may exceed" a certain amount to be sufficient; it was the $1,000,000 amount that appeared to be an offer of compromise (or close to it) that tipped the scales from an impermissibly unclear amount of damages to a sufficiently definite statement of damages under the statute.41
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County immunity was at issue in Gwinnett County v. Ashby.42 In Ashby, a mom attended her son's football practice, and while there, she stepped or slipped into an uncovered drain, sustaining serious injuries. The County asserted that the claims against it should be dismissed on grounds of sovereign immunity. The trial court denied the motion but granted an interlocutory appeal.43
The court of appeals reversed.44 In so doing, it rejected the injured person's arguments regarding waiver of sovereign immunity.45 Specifically, the court rejected the plaintiff's arguments that the purchase of liability insurance waived sovereign immunity of the county and that the state Tort Claims Act somehow applied to counties as well.46 Finally, the court rejected the plaintiff's contention that the Recreational Property Act waived the county's immunity.47
Whether a lease provision containing a one-year limitation period for filing a lawsuit is enforceable was at issue in Langley v. MP Spring Lake, LLC.48 In that case, Langley, the tenant, was hurt when she slid on a crumbling curb in a common area of the apartment complex. Both the trial court and the court of appeals enforced the one-year limitation period. The court of appeals noted that the lease provided that the one-year period applied to "any legal action" even though it did not specifically state that it applied to personal injury actions. In so doing, the court of appeals purported to be relying on the plain language of the lease.49
The supreme court reversed.50 The court noted that there were two main interpretations of the scope of the phrase "any legal action": an expansive one based on just the words themselves and a more narrow one based on the words plus the context of the lease.51 Even textualists normally say that the context of words is important, but it appears that both the court of appeals and the trial court failed to take into account the context of the one-year limitation phrase.52
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The supreme court also noted that it seemed unlikely, for example, that the limitation provision would apply to such legal matters as a car wreck between the plaintiff and one of the apartment managers, or to a claim involving an intentional attack by an apartment manager.53 The court left open the possibility that a differently-worded limitation period would be enforceable, but did not specifically address that broader issue.54
The knowledge required to sustain a claim for a slip and fall was at issue in Ermert v. Wildwood at Meadow Gate Homeowners Association.55 In that case, the plaintiff stepped in a hole in a grassy common area near a pond on the property and fractured her foot. The plaintiff's son notified the management company and pictures were taken of the area, but no hole was located in the area where the fall was alleged to have occurred.56
The trial court granted summary judgment. In its order, the trial court noted that there was no evidence supporting any actual or constructive notice of the...
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