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Archive for the ‘Tort and Catastrophic Loss’ Category

Georgia Supreme Court holds “Gang Statute” does not apply to landlord

Posted on: July 26th, 2021

By: Wes Jackson

On June 21, 2021, the Georgia Supreme Court held that a statutory cause of action designed to provide “treble damages” to victims of gang violence does not apply to the owner or occupier of the property where the violence occurred if the owner or occupier did not participate in the criminal activity.

The question arises when an innocent person is injured by a violent attack on private property: who pays the damages? One might first think that the criminal perpetrator should pay—but such criminals are often judgment proof. Thus, in Georgia, crime victims will bring civil claims against the owner or occupier of the premises where the crime occurred, usually under a theory that the premises owner/occupier did not have adequate security measures in place or otherwise failed to take reasonable measures to keep the premises safe. Such a claim can arise under O.C.G.A. § 51-3-1, which provides a cause of action to persons injured on an owner or occupier’s property “caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

However, there is another Georgia statute addressing civil liability for certain injuries caused by “gang violence.” The “Georgia Street Gang Terrorism and Prevention Act” (O.C.G.A. § 16-15-1 et seq.) contains a provision stating that any property “erected, established, maintained, owned, leased, or used by any criminal street gang for the purpose of conducting criminal gang activity shall constitute a public nuisance…” Another section of the statute creates a civil cause of action for injuries caused “by reason of criminal gang activity,” and allows for three times a victim’s actual damages for such injuries. O.C.G.A. § 16-15-7.

Recently, some claimants have attempted to argue that in addition to standard liability under the general premises liability statute (O.C.G.A. § 51-3-1), property owners and occupiers should be subject to “treble damages” and attorney’s fees for injuries related to criminal gang activity under the Gang Act (O.C.G.A. § 16-15-17) that might constitute a “nuisance.” However, the Georgia Supreme Court has now put an end to such claims in its June 21, 2021 decision. There, the Court analyzed the text of the Gang Act and concluded that while the Gang Act allows the government to initiate an abatement action against the owner or occupier for the nuisance, it does not permit an injured party to bring a civil nuisance claim unless the owner or occupier himself engaged in the criminal activity causing the plaintiff’s injuries.

The case is Star Residential v. Hernandez, S20G1214 (June 21, 2021) (available here). Freeman Mathis & Gary attorney Jake Daly authored an amicus brief in this action on behalf of the Georgia Defense Lawyers Association. If you have any questions about this case or premises liability claims in general, please contact attorneys Jake Daly at [email protected] or Wes Jackson at [email protected].

New Jersey Supreme Court Throws Support behind Ongoing Storm Rule (with Limited Exceptions)

Posted on: July 9th, 2021

By: Josh Ferguson and Michelle Yee

The New Jersey Supreme Court has re-affirmed Defendants’ ability to use the Ongoing Storm Rule to support the defense of a snow/ice slip and fall claim.

In Pareja v. Princeton International Properties, 463 N.J. Super. 231, 235 (App. Div. 2020), Plaintiff was walking to work in the early morning hours when he slipped and fell on ice. It was precipitating that morning and was below freezing temperatures. Id. The Appellate Court initially reversed the summary judgment that was found in favor of the commercial property owner defendant and found that there are genuine issues of material fact as to whether the defendant acted reasonably under all circumstances by not doing anything to remove or prevent the black ice hazard during the precipitation.

The matter was recently appealed to the New Jersey Supreme Court on June 10, 2021, in Pareja v. Princeton International Properties, Inc., 2021 N.J. LEXIS 549 (2021). The court held that “. . .under the ongoing storm rule, commercial landowners do not have a duty to remove the accumulation of ice until the conclusion of the storm, but that unusual circumstances may give rise to a duty before then.” Id. at 17-18. The exceptions include that: “[f]irst, commercial landowners may be liable if their actions increase the risk to pedestrians and invitees on their property. Second, a commercial landowner may be liable where there was a pre-existing risk on the premises before the storm.” Id.

In Pareja, the parties do not dispute that there was a wintry mix and that the temperature was below freezing. There was a dispute as to the location of the fall. Plaintiff argues that he fell at an isolated patch of icy condition while defendant argued that the condition was found in an area that was caused by ongoing freezing rain. The Supreme Court ultimately held that “[a]pplying our precedent to a situation where a storm is ongoing, we hold that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm. We find instead that the limiting principles established in our precedent warrant the adoption of the ongoing storm rule.” Id. at 15. The court found that defendant did not owe Plaintiff a duty to clear the snow and ice during a storm, that there were no unusual circumstances that would create such duty, that defendant took no action to increase Plaintiff’s risk, and that the record shows that the ice on the sidewalk was not a pre-existing condition.

Originally, the common law provided no liability for landowners for the condition of a sidewalk and no duty to keep the sidewalk free of snow and ice. As time goes by, the law carves out more exceptions to impose liability on landowners to keep the sidewalks clear of snow and ice for pedestrians. Overall, Pareja provides a significant defense that bars Plaintiff from recovery in matters involving a slip and fall during an ongoing snow event. Yet, exceptions still apply to this Rule. Notably, landowners are not to increase the risk to pedestrians, and that landowners should ensure that there is no pre-existing risk on the premises before the storm. Regardless, commercial landowners should continue to reevaluate their contractual agreements with vendors for snow and ice removal to ensure that they address providing snow and ice removal to their properties during an ongoing snowstorm in order to protect them from any liability for snow and ice-related injuries.

If you have any questions, please contact Josh Ferguson at [email protected] and Michelle Yee at [email protected].

Certiorari in the Georgia Supreme Court by the Numbers

Posted on: June 22nd, 2021

By: Jacob Daly

The Georgia Court of Appeals has just ruled against your client, and so you’re considering whether you should file a petition for a writ of certiorari in the Georgia Supreme Court. Your client wants to know the likelihood of your petition being granted and, if it is granted, what the possible outcomes are likely to be. You have a vague understanding that most petitions are denied and that the odds of reversal are good when a petition is granted, but you do not know the exact numbers to tell your client. Now you do.

Between 2017 and 2020, the Georgia Supreme Court ruled on 1,883 petitions, 1,166 of which were filed in civil cases. It granted only 174 of all petitions and only 119 that were filed in civil cases.[1] In 2017, the Court ruled on 516 petitions (289 in civil cases) and granted 52 (35 in civil cases). In 2018, the Court ruled on 407 petitions (251 in civil cases) and granted 47 (33 in civil cases). In 2019, the Court ruled on 464 petitions (300 in civil cases) and granted 43 (31 in civil cases). In 2020, the Court ruled on 496 petitions (326 in civil cases) and granted 32 (20 in civil cases). Thus, the overall odds of a petition being granted were 10.08% in 2017, 11.55% in 2018, 9.27% in 2019, and 6.45% in 2020, for a 4-year rate of 9.24%. In civil cases, the odds of a petition being granted were 12.11% in 2017, 13.15% in 2018, 10.33% in 2019, and 6.13% in 2020, for a 4-year rate of 10.21%. Until the numbers for future years are available, it is impossible to know whether the down numbers for 2020 represent a shift in the Court’s (un) willingness to grant petitions or just an anomaly related to COVID-19.

Once you tell your client the odds of a petition being granted are only about 10%, the next question is likely to be about the expected outcome if your petition happens to be among the lucky few that are granted. In the 174 total cases in which the Court granted a petition between 2017 and 2020, there were 12 different outcomes.  And in the 119 civil cases in which the Court granted a petition between 2017 and 2020, there were 10 different outcomes. These various outcomes are reflected in the chart below.

From the standpoint of the petitioner, the goal is to obtain a change to the ruling of the lower court. An outright reversal is the best possible outcome for the petitioner, and it is also the most frequent outcome (this is not surprising because the Court can “affirm” the lower court’s decision by denying the petition. If the Court wants to reverse the lower court’s decision, it must first grant the petition). An outright reversal was the outcome in 65 of 174 cases (37.36%) in which the Court granted a petition, including 50 of 119 civil cases (42.02%). But an outright reversal is not the only favorable outcome for the petitioner. The outcomes listed in the chart above that would be at least partially favorable for the petitioner are reversed, vacated, vacated and reversed, affirmed in part and reversed in part, reversed in part and vacated in part, affirmed in part and vacated in part, reversed summarily, and vacated summarily. Including all of these outcomes together yields a favorable outcome rate for the petitioner of 64.37% in all cases (112 of 174 cases decided wholly or partially in favor of the petitioner) and 66.39% in civil cases (79 of 119 cases decided wholly or partially in favor of the petitioner).

In contrast, the outcomes that would be completely negative for the petitioner are affirmed and dismissed as improvidently granted. Combining these outcomes yields a completely negative outcome rate for the petitioner of 29.89% in all cases (52 of 174) and 29.41% in civil cases (35 of 119). The only other outcomes are cert dismissed on motion and no decision yet, which represent only 5.75% of all cases (10 of 174) and 4.20% of civil cases (5 of 119). These outcomes cannot be characterized as favorable or unfavorable for the petitioner because (1) a petition that is dismissed pursuant to a motion probably means that the case settled, and (2) a case that has not yet been decided can still be decided either way. When the Court decides the 5 undecided cases (4 criminal and 1 civil), these numbers will change slightly, but not enough to alter any conclusions that may be drawn from them.

In conclusion, an analysis of the petitions decided by the Court between 2017 and 2020 and the outcomes in the cases in which the petition was granted confirms what most attorneys probably assume. That is, there is a very low chance of the Court granting a petition and a very good chance of at least a partially favorable outcome for the petitioner in those few cases. For attorneys handling civil cases, the odds of the Court granting your petition are only 10.21%, but once your petition has been granted, the odds of success greatly increase, depending on how you define success. If you define success as nothing less than an outright reversal, you have a 42.02% chance of achieving that goal. However, if you define success as any outcome that has some negative impact on the lower court’s decision, then you have a 66.39% chance of success.

For questions, please contact Jake Daly at [email protected] or (770) 818-1431.

[1] There was one civil case in 2018 and one civil case in 2019 in which a petition was filed and granted with a note indicating that the case would be treated as a direct appeal rather than as a cert case. Those two cases are not included in this analysis.

Automobile Dealer Protection under the Connecticut Dealer Plate Statute, C.G.S. §14-60, Upheld

Posted on: June 7th, 2021

By: Edward Storck

In Kyle McCall v. Gina Sopneski, et al, 202 Conn. App. 616 (2021), the appellant, Kyle McCall, sought review of the trial court’s decision granting the Motion for Summary Judgment filed by appellee, Reynold’s Garage & Marine, Inc. on the grounds that Reynold’s Garage was immune from suit pursuant to the dealer plate statute, Connecticut General Statutes §14-60.

The underlying lawsuit involved a claim by McCall against Reynold’s Garage and Gina Sopneski, a customer who was loaned a motor vehicle by Reynold’s Garage while her vehicle was in for repairs. Sopneski struck plaintiff while he was riding his motorcycle, caus­ing significant injuries with damages well in excess of Sopneski’s personal auto policy. McCall brought suit against Reynold’s Garage pursuant to Connecticut General Statutes § 14-154a, which creates vicarious liability for motor vehicle lessors. At the trial court, summary judgment was obtained on behalf of the dealership pursuant to Connecticut General Statutes § 14-60, which grants immunity for dealers who loan motor vehicles or dealer plates to customers while the customer’s vehicle is being repaired and the dealership obtains proof of insurance from the customer.

On appeal, the plaintiff argued the trial court got it wrong by con­cluding that there was no question of fact that the transaction was a loan and not a rental. He argued that the agreement between the dealer and its customer was titled “Rental Agreement” and used the word “rental” approximately 27 times throughout the document, the document itself was titled “Rental Agreement.” McCall argued that a jury should have been allowed to decide what type of transaction was involved. Reynold’s Garage argued that Connecticut General Statutes §14-60, as interpreted by the Connecticut Supreme Court in Cook v. Collins Chevrolet, Inc., 199 Conn. 245 (1986), provided immunity from such suits under the facts of the case.

In affirming the trial court’s decision, Judge Nina Elgo, held that the trial court properly concluded there was no genuine issue of mate­rial fact as to whether the dealership was entitled to the immunity provided by § 14-60. Judge Elgo held that the plaintiff’s position that § 14-60 applies only to the lending of motor vehicles that have dealer plates affixed was untenable in light of the plain language of the statute encompassing situations in which a dealer lends either a dealer vehicle, a dealer plate, or a dealer vehicle containing a dealer plate. Thus, the fact that the motor vehicle operated by the tortfeasor had a vanity plate rather than a dealer plate did not operate to preclude the application of § 14-60. Moreover, the court held that regardless of the label on the agreement between the dealership and the tortfeasor, the essence of the transaction was a loan, as the motor vehicle was given to the tortfeasor for temporary use and the tortfeasor was not charged a fee for the use of the motor vehicle. In the decision, Judge Elgo found that the decision in Cook v. Collins Chevrolet, Inc., to be instructive in resolving the claim. The under­lying facts in Cook involved the lending of a dealer plate and not a vehicle. Judge Elgo’s decision expands on the decision in Cook, by finding that §14-60 did not only apply when a dealer plate was loaned to a customer, but also when a vehicle is loaned to the customer. The court further found that despite the agreement being labeled a rental agreement, the essence of the transaction made it clear that the transaction involved a loan and not a rental. The court found that the title of the document was not what determined the type of transaction involved.

Since Cook, there have been a number of superior court decisions interpreting Cook which either granted Motions for Summary Judgment pursuant to Cook or found differences between the specific facts of the case and the facts in Cook, such that they denied similar Motions. The decision of the Court of Appeals in McCall, has essentially consolidated many of those superior court cases which found there was immunity into one succinct decision.

Moreover, this decision has now extended immunity to dealerships in cases where the dealer vehicle loaned to the customer bears a vanity plate rather than a dealer plate. There does not appear to have been any case law on this particular issue. Further, the Appellate Court’s decision makes it clear that the title of the document used by the dealership was not necessarily determinative of the transaction. While this issue was raised in a prior superior court case, there was no appellate level decisions on this point. This is significant where many dealerships are required to use form documents created by the automobile manufacturers and the dealerships do not have a say on the language used in the agreement. In this case, there would have probably been little issue had the agreement used not have been called a “Rental Agreement.”

For more information, please contact Edward Storck at [email protected].

Georgia Federal Court Among the First to Restrict Applicability of Georgia COVID Emergency Orders Extending Statutes of Limitations

Posted on: June 4th, 2021

By: Wayne Melnick and Carlos Fernandez

The COVID-19 pandemic slowed the roll of most, if not all, cases. Now that the brakes are being slowly eased-off, questions are arising about the Georgia Supreme Court’s Emergency Orders that extended the statute of limitations deadlines. A new case from the Middle District of Georgia interpreted the Emergency Orders finding the 122-day stay of statutes of limitations only applied to cases whose limitations deadline fell during that 122-day period.  As a result, the Court dismissed the plaintiff’s case as barred by the statute of limitations.

On November 1, 2018, the plaintiff was cleaning a machine when it suddenly restarted, and the blades mangled his left hand. Plaintiff timely filed suit against one party and then after the statute of limitations ran, without objection and with the Court’s leave, the plaintiff filed his Amended Complaint on January 19, 2021 naming a new party defendant.  In its motion to dismiss, the new defendant argued that the complaint could not be amended as the statute of limitations ran on November 1, 2020. Although the plaintiff argued that the Emergency Orders added 122 days to all statutes of limitations and the amended complaint was filed within 122 days of the expiration of the limitation, the District Court disagreed, finding the Emergency Orders did not grant a 122-day bonus extension to all cases, but rather only applied to deadlines that ran in the period between March 14 through July 14, 2020.  Determining that the Emergency Orders only applied to extend time for cases whose statute of limitations ran during that 122-day period, the Court held it was “simply unreasonable” to grant every plaintiff an extension regardless of when their statute of limitations ran.

This ruling is important for all attorneys and claims representatives handling claims and cases in Georgia. Now, at least one court has made clear that not all claims or cases may benefit from the 122 extra days provided by the Emergency Orders. Rather, those Emergency Orders only apply to cases whose deadlines fell within that time period.  Defense attorneys should be mindful of this ruling and seek to dismiss any case attempting to take advantage of these Emergency Orders when otherwise not entitled.  We will continue to monitor developments and rulings related to the interpretation of the Emergency Orders as we expect this ruling to be appealed.

Update: June 21, 2021 – On June 6, 2021, the order in this case was vacated because the parties stipulated to substitute the relevant parties from the Motion to Dismiss. While this order can no longer be relied on as authority, it should also be looked at as a measuring stick for the Middle District of Georgia’s, and potentially other districts, outlook on adding 122 days to all statute of limitation deadlines. Most importantly, the rationale presented in the order is still valid and practitioners should consider advancing the same arguments if the proper case presents itself.

If you would like a copy of this case, Owens v. Perdue Farms, Inc., please contact Wayne S. Melnick at [email protected] or Carlos A. Fernandez at [email protected] directly.