Trial Practice and Procedure

• Publication year: 2017

Trial Practice and Procedure

Brandon L. Peak

Tedra L. Cannella

Robert H. Snyder

David T. Rohwedder

Joseph M. Colwell

Christopher B. McDaniel

Rory A. Weeks

Ramsey B. Prather

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Trial Practice and Procedure

by Brandon L. Peak,^* Tedra L. Cannella,^** Robert H. Snyder,^*** David T. Rohwedder,^**** Joseph M. Colwell,^***** Christopher B. McDaniel,^****** Rory A. Weeks,^******* and Ramsey B. Prather^{undefined content="********">}

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I. Introduction

This Article addresses several significant opinions and legislation of interest to the Georgia civil trial practitioner issued during the June 1, 2016 to May 31, 2017 survey period.¹

II. Legislation

This year, the Georgia General Assembly considered several significant bills. Trial practitioners should pay close attention to two bills in particular that were passed and signed into law.

The first is House Bill 192,² which modified the "business judgment rule" applicable to directors and officers of banks, trust companies, and corporations in shareholders' derivative suits or suits on behalf of bank depositors. For example, section 7-1-490³ of the Official Code of Georgia Annotated (O.C.G.A.), which codifies the common law business judgment rule, was amended to provide that:

There shall be a presumption that the process directors and officers followed in arriving at decisions was done in good faith and that such directors and officers have exercised ordinary care; provided, however, that this presumption may be rebutted by evidence that such process constitutes gross negligence by being a gross deviation of the standard of care of a director or officer in a like position under similar circumstances.⁴

Sections 14-2-830⁵ and 14-2-842⁶ of the O.C.G.A. were amended to provide an identical presumption and burden on the plaintiff to prove gross negligence in order to overcome the presumption.⁷ These standards apply to causes of action arising on or after July 1, 2017.⁸

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The second bill is Senate Bill 126,⁹ which modifies the venue provision for suits brought under the Georgia Tort Claims Act (GTCA).¹⁰ In the 2016 decision Board of Regents v. Jordan,¹¹ the Georgia Court of Appeals held that, under the GTCA, "[I]t is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred."¹² In Jordan, the alleged negligent act occurred in Richmond County, but the plaintiff filed suit in DeKalb County, where he received medical treatment for his injuries.¹³ The court of appeals held that the trial court did not err in denying the defendants' motion to transfer venue to Richmond County under the GTCA.¹⁴

Senate Bill 126 was a reaction to the court's holding in Jordan. Senate Bill 126 amended O.C.G.A. § 50-21-28¹⁵ to provide for causes of action arising on or after July 1, 2017:

All tort actions against the state under this article shall be brought in the state or superior court of the county wherein the tort giving rise to the loss occurred; provided, however, that wrongful death actions may be brought in the county wherein the tort giving rise to the loss occurred or the county wherein the decedent died.¹⁶

III. Case Law

A. Apportionment

In Brown v. Tucker,¹⁷ the Georgia Court of Appeals clarified Georgia law and held that a defendant seeking to apportion fault to a nonparty has the burden of proving, by a preponderance of the evidence, the nonparty's negligence caused some or all of the plaintiff's damages.¹⁸ The plaintiff, Tisha Tucker, was a passenger in a truck driven by the defendant, Tammy Brown, whose truck collided into the rear of a tractor-trailer rig parked by the side of the road. Tucker was injured in the wreck and the subject lawsuit ensued. The plaintiff opted not to sue the driver of the tractor-trailer, despite evidence that the tractor-trailer driver was

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negligent. Prior to trial, the defendant identified the tractor-trailer driver as a nonparty defendant to whom the jury should apportion fault.¹⁹ At trial, the defendant "asked the court to charge the jury that she had the burden of showing [only] a rational basis for apportioning fault to the nonparty [truck driver]."²⁰ The court, however, charged the jury that the defendant must prove the nonparty's negligence caused the plaintiff's injuries by a preponderance of the evidence.²¹

Relying upon language in Levine v. Suntrust Robinson Humphrey,²² the defendant took issue with the burden of proof required by the trial court's jury charge and argued she need only show a rational basis for apportioning fault to a nonparty.²³ The court noted that Levine was inapplicable,²⁴ and explained that the defendant's rational basis charge would offer "the jury no guidance about how much evidence the defendant must produce to meet her burden of assigning fault to a nonparty."²⁵

Affirming the trial court's jury charge, the court of appeals explained that the defendant's attempt to apportion fault to a nonparty "is an assertion of fact . . . essential to the defense. As an affirmative defense, the defendant bears the burden of proving her assertion of fact."²⁶ As with other affirmative defenses, the court held that it is the defendant's burden to prove her defense by a preponderance of the evidence.²⁷

The court of appeals' holding is in line with cases where the affirmative defense of contributory negligence is asserted.²⁸ In cases where the defendant asserts contributory negligence, the defendant has the burden

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of proving that defense by a preponderance of the evidence.²⁹ In both instances, whether a defendant is attempting to establish a contributory negligence defense or attempting to apportion fault to a nonparty, the defendant is seeking to have another person bear responsibility for the plaintiff's damages.³⁰ Thus, the court reasoned that the defendant's burden should be the same.³¹ The standard is now clear: the defendant must prove by a preponderance of the evidence that the nonparty's fault was a proximate cause of the plaintiff's injuries.

B. Arbitration Clauses

In United Health Services of Georgia, Inc. v. Norton,³² a unanimous Georgia Supreme Court reversed the Georgia Court of Appeals and held that an arbitration agreement between a nursing home and a patient was enforceable against the patient's husband in a wrongful death action.³³ Lola Norton's power of attorney signed an arbitration agreement on her behalf, requiring arbitration of any disputes arising from her stay at the nursing home. The Federal Arbitration Act governed the agreement, and specifically applied to wrongful death claims brought by her beneficiaries after her death.³⁴ The court reasoned that the case was "controlled by the longstanding precedent that a wrongful death action is wholly derivative of a decedent's right of action."³⁵ If the deceased has done something that operates as a bar against his recovery, then that bar will apply equally to his personal representative after death.³⁶ For example, a waiver or release that would bar a decedent's recovery would also bar recovery by his personal representative.³⁷

Citing Turner v. Walker County,³⁸ the court noted that a defense available against a decedent in life is also available against his beneficiaries in a wrongful death action.³⁹ Because the duty to arbitrate is an affirmative defense and because "any wrongful death claims are

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wholly derivative of claims Lola could have pursued, the requirement to arbitrate [was] also a viable defense against Lola's wrongful death beneficiaries."⁴⁰ Although the court used broad language to declare that a wrongful death case is derivative of the decedent's own personal injury claim, it is unclear how far that principle extends.⁴¹ The court specifically declined to address whether wrongful death beneficiaries would be barred by "procedural defenses" available against the decedent or barred only by "substantive defenses."⁴²

C. Choice of Law

In Coon v. Medical Center, Inc.,⁴³ the Georgia Supreme Court held that "where a claim in a Georgia lawsuit is governed by the common law, and the common law is also in force in the other state [where the tort was committed], the common law as determined by Georgia's courts will control."⁴⁴ Explaining the origin of this "approach" to common law choice-of-law questions (which is sometimes referred to as the "presumption of identity"),⁴⁵ the court explained that "the prevailing view at the time the doctrine was established [by the court] was that there is one common law that can be properly discerned by wise judges, not multiple common laws by which judges make law for their various jurisdictions."⁴⁶ While acknowledging that this approach "may seem anachronistic to lawyers and judges trained and professionally steeped in relativist theories of legal realism,"⁴⁷ the court, citing Georgia decisions dating as far back as the 1880s, emphasized that "[u]ntil it becomes clear that a better rule exists, we will adhere to our traditional approach."⁴⁸

Coon involves a tragic set of facts. Coon, an Alabama resident, was pregnant. She traveled to a hospital in Georgia for a checkup and learned that her unborn baby did not have a heartbeat. She delivered the stillborn baby at the Georgia hospital. Another stillborn baby had also recently been delivered at the hospital. During the process of preparing the two babies' remains to be sent to the hospital morgue, hospital

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workers placed the wrong identifying information on the babies. Coon eventually returned to Alabama and had a funeral for her baby; however, the baby she buried was not hers. The Georgia hospital notified Coon of the hospital's mistake by telephone two weeks after the funeral.⁴⁹ Coon received the telephone call in Alabama.⁵⁰

Coon asserted a claim for negligent infliction of emotional distress against the Georgia hospital in a Georgia court. The hospital moved for summary...