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Posts Tagged ‘Georgia’

Something Rotten: Spoliation Claims Against a Plaintiff

Posted on: June 15th, 2018

By: Sean Ryan

The Georgia Supreme Court recently clarified that same duty and standard applies to a plaintiff as to a defendant in assessing potential spoliation claims. In Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336 (2018), the Georgia Supreme Court stressed that the duty to preserve relevant evidence is “defined the same for plaintiffs and defendants” and “arises when the alleged spoliator actually or reasonably should have anticipated litigation.” While a plaintiff’s duty to preserve relevant evidence may more often revolve around the actual knowledge of litigation because a plaintiff largely controls when to bring a lawsuit, a plaintiff still “must act reasonably in anticipating whether litigation arising from an injury will occur.” In addressing reasonableness, a court should consider a non-exhaustive list of factors such as the type and extent of the injury, whether fault for the injury is clear, the level of sophistication of the party and familiarity with the likelihood of litigation is similar situations, and whether the party has hired an attorney, expert, or investigator.

In Koch, plaintiff’s husband died following a car accident where a tire tread, manufactured by Cooper Tire, separated from the left rear tire of the husband’s vehicle, allegedly causing the vehicle to strike a guardrail and overturn. The plaintiff allowed the vehicle and three tires without tread separation to be destroyed, saving only the allegedly defective tire. In the ensuing litigation, Cooper Tire moved to dismiss the lawsuit or impose sanctions against the plaintiff for spoliation of evidence.

Using the standard outlined above, the Supreme Court held the trial court did not err in finding the plaintiff did not actually contemplate litigation at the time the car was destroyed and should not reasonably have contemplated litigation. The Court cited the plaintiff’s lack of previous litigation experience, the belief by plaintiff and her husband that he would recover from his injuries, the plaintiff’s lack of investigation into the accident, and the plaintiff’s decision to retain counsel after the vehicle was destroyed. The Supreme Court also credited the fact that plaintiff’s counsel took steps to preserve evidence, albeit fruitless, once hired several weeks later.

What does this mean for defendants in tort cases moving forward? While the Court in Koch did not find the plaintiff’s conduct sanctionable, the case clarifies that a plaintiff must conform to the same standard as a defendant in preserving evidence relevant to their case and that this duty arises independent of the defendant’s duty. The case also sends a clear signal that a plaintiff will be expected to preserve evidence following consultation with an attorney or expert. Such consultation is a fair indicator that plaintiff anticipated or reasonably should have anticipated litigation. Armed with this case law, defendants are in a strong position to demand preservation of relevant evidence, including data from vehicles, cell phone data, and social media data.

If you have any questions or need more information, please contact Sean Ryan at [email protected].

Georgia’s Making a List and Long-Term Care Organizations Must Check It Twice

Posted on: May 24th, 2018

By: Will Collins

This month, Georgia’s Governor signed into effect a law implementing a comprehensive background check system in an effort to target and curb elder abuse, placing additional screening, notice, and retention requirements on long-term care organizations as well as presenting liability landmines and safe-harbors that these organizations should be cognizant of moving forward.

Effective October 1, 2019, the Georgia Long-term Care Background Check Program, requires that certain personnel are subject to both a “records check” and a “registry check,” allowing until January 1, 2021 for organizations to either submit a records check application or evidence showing satisfactory completion of a records check within the last twelve months for these personnel to the Department of Community Health (“DCH”).

The records check and registry check take substantial steps beyond Georgia’s current name-based single state criminal background check, expanding required screenings to include checks of the GCIS and FBI fingerprint databases, Georgia Nurse’s Aide Registry, Sexual Offender Registry, and the Federal List of Excluded Individuals and Entities. The Background Check Program goes further, expanding the registry check to any state where an individual resided for the previous two years when the individual has been a Georgia resident for less than two years.

Covered Organizations

The Background Check Program applies to Assisted Living Communities, Personal Care Homes, Home Health Organizations, Intermediate Care Homes, Hospice Providers, Nursing Homes, Skilled Nursing Facilities, and Adult Day Care Facilities.

Covered Personnel

The Background Check Program covers both owners active in operations as well as any applicant or current employee with direct access, which is defined as any position that will routinely:

  • Have contact with patients, residents, or clients including face to face interactions, hands-on physical assistance, and monitoring, reminding, or other stand-by activities;
  • Require the person to be alone with patient, resident, or client property; or
  • Have access to patient financial information, ranging from check books and debit cards to bank records and brokerage accounts

This includes housekeepers, maintenance personnel, dietitians, as well as any volunteer with similar access. Though the Background Check Program excludes certain types of contractors, it covers personnel that are contracted for a role “directly related to providing services to a patient, resident, or client of the facility.”

Record Retention and Notice Requirements

The Background Check Program requires that covered organizations maintain a personnel file for each employee, which shall be available for inspection and review by “appropriate enforcement agencies,” and at a minimum must include “evidence of each employee’s satisfactory determination, registry check, and licensure check.”

Organizations must also include a conspicuous notification on an application form that a state and national background check is required as a condition of employment and comply with the notification process established for denial of employment or adverse employment action based on unsatisfactory determination during the screening, including providing individuals the right to appeal the determination.

Liability and Safe Harbors

The good news for organizations covered by the Background Check Program is that when a denial of employment or an adverse employment action is based on a good faith attempt to comply with the screening requirements, the Program offers protection from damages or a claim, demand, cause of action, or proceeding of any nature.

Compliance with the Background Check Program similarly offers organizations both a “rebuttable presumption of due care” in negligent hiring or negligent retention claims or immunity from negligent hiring claims if certain conditions are met.

However, failure to comply with the Background Check Program’s requirements not only will subject an organization to civil monetary penalties, but may also act as evidence that the organization fell below the standard of care in negligence-based claims.

Take Away

We will closely monitor this issue as DCH develops regulations implementing the Background Check Program and can help you ensure your organization is prepared for these changes in Georgia law. For those with employees outside of Georgia, the attorneys in our Labor and Employment National Practice Section are well versed in state and industry specific screening requirements and regulations, so let us know if we can assist you assess compliance or litigate claims arising in this area.

If you have any questions or would like more information, please contact Will Collins at [email protected].

Shortening the Statutory Limitations Period in a Residential Lease

Posted on: May 23rd, 2018

By: Jake Daly

Every state has statutes or rules governing the time within which various types of claims must be filed.  In Georgia, the general rule is that a personal injury claim must be brought within 2 years of the date the injury occurred.  Is this an immutable rule, or can it be changed by contract?  Thanks to a recent decision by the Georgia Court of Appeals, we know that a statutory limitations period may be shortened by a provision in a residential lease and that a contractual limitations period of 1 year is valid and enforceable.

The plaintiff in Langley v. MP Spring Lake, LLC allegedly tripped and fell on a crumbling portion of a curb in the parking lot of the apartment complex where she lived.  The incident occurred on March 3, 2014, and the plaintiff filed the lawsuit on March 3, 2016.  Under Georgia’s statute of limitations for personal injuries, the lawsuit would have been timely filed.  However, the lease contained a provision that required any lawsuit against the owner and/or manager to be filed within 1 year of the occurrence giving rise to the claim.  Based on this contractual limitations provision, the trial court granted summary judgment for the defendant, which was represented by Sun Choy and Jake Daly of Freeman Mathis & Gary, LLP.

The Georgia Court of Appeals affirmed the trial court’s decision on May 1, 2018.  The plaintiff’s sole argument on appeal was that a contractual limitations provision should not apply to claims that do not arise out of the contract.  Because the plaintiff’s claim was based on Georgia’s premises liability statute, not the lease, she contended that her claim was subject to the statutory limitations period of two years.  The Court of Appeals disagreed, holding that the absence of a relationship between the lease and the claim was irrelevant because the contractual limitations provision in the lease applied by its own terms to “any legal action.”  There being no statute or public policy prohibiting the shortening of a statutory limitations provision in a contract, the Court of Appeals concluded that the contractual limitations provision in the lease was valid and enforceable and that, therefore, the plaintiff’s claim was time-barred.

We know from this decision that a contractual limitations provision of 1 year is valid and enforceable, but the Court of Appeals did not address the limit of how short such a provision can be.  However, we believe that a contractual limitations provision of 6 months could be valid and enforceable because that is the statutory deadline in Georgia for providing ante litem notice of a claim for money damages to a municipality.  Regardless of where the limit will be drawn by future cases, owners and managers of residential rental property should consider including in their leases a contractual limitations provision of no longer than 1 year.  For assistance with drafting such a provision that will withstand scrutiny by the courts, as well as other provisions that may help limit liability, please contact Jake Daly at [email protected] or (770) 818-1431.

Cybersecurity in Georgia Hits a Roadblock

Posted on: May 14th, 2018

By: Ze’eva Kushner

On May 8, 2018, Georgia’s Governor Nathan Deal made a controversial decision to veto a cybersecurity bill.  Issued in the wake of the massive data breach of Atlanta-based Equifax, among other data breaches across the country, the cybersecurity bill would have made logging into a computer without permission illegal, even if no information was stolen.  The recent ransomware attack on the City of Atlanta serves as a reminder of the potential significant costs of not having computer systems protected adequately.

However, the bill included multiple exemptions, one of which would have permitted individuals to engage in active defense measures aimed at preventing or detecting unauthorized computer access.  In the industry, this is often referred to as “hacking back.”  The defensive actions could have included techniques such as using beaconing technology to determine the location of a hacker or leaving one’s network to track down stolen data.  The legality of these cyber defense measures is murky.

Google and Microsoft both urged Governor Deal to veto the bill, explaining that the active defense exemption would have authorized the hacking of other networks and systems under the pretext of cybersecurity and potentially lead to anticompetitive behavior.  According to Governor Deal, the end result of the bill would have hurt organizations’ ability to secure their computer systems.

If you have any questions or would like more information, please contact Ze’eva Kushner at [email protected].