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Posts Tagged ‘Supreme Court of Georgia’

Let the Music Play On: The Supreme Court of Georgia’s New Test Regarding Immunity Under the Recreational Property Act

Posted on: August 22nd, 2019

By: Jake Loken

Inviting individuals onto your property can lead to the invitation of a lawsuit. Generally, an individual injured on a landowner’s property could file a lawsuit against the landowner.

In Georgia, the legislature has carved out an exception to this general rule and granted immunity to a landowner when the property is being used without charge for recreational purposes. This immunity comes from the Recreational Property Act, and the Supreme Court of Georgia recently clarified the test to determine if this Act applies.

In Mercer Univ. v. Stofer, No. S18G1022, decided June 24, 2019, the Supreme Court explained the two-part test that should be used to determine if the Recreational Property Act applies. The facts of this case surround the injury and then death of Sally Stofer, who attended a free concert hosted by Mercer University at Washington Park in Macon, Georgia. Sally Stofer slipped while ascending stairs at the park and fell, hitting her head.

Under the Act, “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes.” Prior case law, and the lower courts in Mercer Univ. v. Stofer, said the subjective motivation of the landowner when inviting individuals onto their land must be considered when determining whether the invite was for “recreational purposes,” along with whether the landowner would receive an indirect benefit from that invitation.

The Supreme Court stated that those considerations were improper and “the key teachings of our cases can be distilled into a test that is more connected to the statutory text: the true scope and nature of the landowner’s invitation to use its property must be determined, and this determination properly is informed by two related considerations: (1) the nature of the activity that constitutes the use of the property in which people have been invited to engage, and (2) the nature of the property that people have been invited to use.”

The Supreme Court then clarified: “In other words, the first asks whether the activity in which the public was invited to engage was of a kind that qualifies as recreational under the Act, and the second asks whether at the relevant time the property was of a sort that is used primarily for recreational purposes or primarily for commercial activity.”

Any language in prior cases “suggesting that property owners’ subjective motivations may be relevant , . . . [or that the] landowner was motivated by the possibility that it would obtain indirect financial benefits” is relevant, “is disapproved.”

The Supreme Court did not rule on whether Mercer should receive immunity under the Act, but instead, returned the case to the lower court so that court could conduct the newly established two-part test to see if the Act applies to Mercer. Moving forward, the newly established two-part test will be used when determining if the Act applies to grant immunity to a landowner.

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

Murphy’s Law and The Exception to Georgia’s Impact Rule

Posted on: September 17th, 2018

By: Jason Kamp

Claims for negligent infliction of emotional distress are limited by the Impact Rule in Georgia.  In a recent attempt to keep the sole exception from swallowing the Impact Rule, the Supreme Court of Georgia may have done exactly what it sought to prevent.

The Impact Rule states: “In a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.”  Lee v. State Farm Mut. Ins. Co. et al., 272 Ga. 583, 584 (2000).

The Impact Rule has one exception for the death of a child:

When, as here, a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent.

Lee v. State Farm Mut. Ins. Co. et al., 272 Ga. 583, 588 (2000).

The Supreme Court of Georgia recently decided a case concerning the exception to the Impact Rule for the death of a child.  In Coon v. Med. Ctr., Inc., the plaintiff learned during a routine prenatal examination that her unborn baby no longer had a heartbeat. Coon v. Med. Ctr., Inc., 300 Ga. 722, 723 (2017). After labor was induced, the plaintiff’s stillborn child was mixed up with another stillborn at the hospital.  Id. at 724.  The hospital then released the wrong remains to the plaintiff and her family, who unknowingly held services and buried the wrong remains as a result.  Id.  The hospital later realized its mistake and informed the plaintiff.  Id. at 725.  A claim for negligent infliction of emotional harm under the exception followed.

The Supreme Court of Georgia declined to extend the exception, reasoning, “[the plaintiff] did not suffer any physical impact that resulted in physical injury from the hospital’s negligent mishandling of her stillborn child’s remains, nor did the child suffer any physical impact or injury.” Id. at 734-735.

By focusing on the impact element, the Supreme Court implicitly assumed the answer to a threshold question: whether an unborn child is a child capable of dying under the exception.  The court’s reasoning appears to open the exception to all tort cases with a physical impact that results in a failed pregnancy.  This could result in a growth in negligent infliction of emotional distress claims in bodily injury and medical malpractice cases.

Before Coon, the exception to the impact rule assumed the dead child had already been born.  After Coon, that assumption is either gone or open to question.  In its attempt to limit the exception, the Supreme Court of Georgia incidentally expanded it to include a debate on when life begins.  At the end of the Coon opinion, the court remarked, “If we do not insist on a workable limiting principle as a prerequisite to recognition of new exceptions to the physical impact rule, the exceptions will soon will soon swallow the rule.”  Id. at 735.  Unfortunately, Murphy’s Law knows no exceptions.

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

Construction Defects Can In Fact Be Accidents

Posted on: July 24th, 2013

By: Jonathan Kandel  

The Supreme Court of Georgia has further clarified the scope of coverage for construction defect claims under commercial general liability (CGL) insurance policies.  In Taylor Morrison Services, Inc. v. HDI-Gerling America Insurance Company, No. S13Q0462 (Ga. July 12, 2013), the court clarified that a construction defect claim constitutes an “occurrence,” as defined in a standard CGL policy, when the only damage alleged is to the work of the insured contractor.  While the court’s decision does not change the substantive scope of insurance coverage for construction defect claims, it shifts the focus of coverage.

In Taylor, a home builder’s insurance company filed a declaratory judgment action, seeking a declaration that there was no coverage for a class action lawsuit filed against the home builder.  The insured home builder had been sued by numerous homeowners, alleging that they suffered property damage to their houses, including water intrusion, cracked concrete slabs, and broken floors, due to the home builder’s alleged failure to include sufficient gravel under the homes’ foundations.  On appeal of the declaratory judgment action, the U.S. Court of Appeals for the Eleventh Circuit asked the Supreme Court of Georgia to clarify whether Georgia law requires damage to property other than the insured’s completed work for an “occurrence” to exist.  The Eleventh Circuit’s request appears to be based on the Supreme Court of Georgia’s decision in American Empire Surplus Lines Insurance Company v. Hathaway Development Company, 288 Ga. 749, 707 S.E.2d 369 (2011), which held that “an occurrence can arise where faulty workmanship causes unforeseen or unexpected damage to other property.”

The Supreme Court analyzed the usual and common meaning of “accident” – the operative term in the definition of “occurrence” – and concluded that the term refers to whether an event was intended or expected, not the nature or extent of the injury caused by the event or the identity of the person injured.  Based on its conclusion, the court held that an “occurrence,” as defined in a standard CGL policy, “does not require damage to the property or work of someone other than the insured.”

Recognizing that CGL coverage is not intended to insure against liabilities for the repair or correction of the insured’s faulty workmanship, the court explained that other provisions in a standard CGL policy account for that limitation.  For example, the court explained that coverage under a standard CGL policy is trigged by an “occurrence” that causes “property damage,” and a claim for the repair or replacement of faulty workmanship usually will not be for “property damage.”  The court also noted that claims for faulty workmanship may fall within the scope of certain “business risk” exclusions.

Finally, the court addressed whether the legal theory (or claim) asserted impacts the “occurrence” analysis.  Prior to Taylor, many Georgia courts found that there was no coverage when the only claim asserted against the insured was for breach of contract (not negligence).  The Supreme Court concluded that the legal theory (or claim) asserted usually will not determine whether the incident constitutes an “occurrence,” with one notable exception.  That being, when a “theory of liability is absolutely and necessarily inconsistent with the notion of an ‘accident’ – that is, when the theory of liability and the idea of an ‘accident’ are mutually exclusive – a claim premised upon such a theory of liability” cannot possibly constitute an “occurrence.”  The court identified fraud claims as an example of a theory of liability that is necessarily inconsistent with meaning of “accident.”   Moving forward, the availability of insurance coverage for construction defect claims will turn on whether there is “property damage,” as defined in a standard CGL policy, and whether exclusions to coverage apply.  The court’s decision brings Georgia law in line with the strong recent trend in other jurisdictions, including Florida, Maryland, South Carolina, Texas, and Virginia, among others.