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OLYMPUS DIGITAL CAMERAAlthough many organizations seek and openly welcome volunteer support, a recent decision from the Georgia Court of Appeals, Allen v. Zion Baptist Church of Braselton, shows that one should always be cautious about those who offer their time. In Allen, the Court of Appeals needed to determine whether it was appropriate for the trial court to grant summary judgment in favor of Zion Baptist Church in a suit involving the alleged sexual assault of a minor by one of the church’s volunteers.

The alleged act of sexual assault occurred on the afternoon of October 24, 2010 following the church’s homecoming festival. The volunteer, who became a member of the church only weeks before requesting to volunteer, gave in an application to participate in the church’s youth ministry on September 15, 2010. The application detailed Zion’s child protection policy, which required that all aspiring volunteers set to work with preschool, children, or youth were required to maintain church membership for three months prior to volunteering and submit two reference forms and written consent to a background check. An administrative assistant at Zion Baptist found the application suspicious, sensed that something was odd about the volunteer, and voiced these concerns to the youth pastor. However, the youth pastor took no further action with the application, although the youth pastor maintains that he did not receive the application until October 20, 2010.

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guyfauxOne important detail that often gets overlooked when many people think about a lawsuit is the public nature of legal proceedings. Admittedly, most cases garner little in the way of public attention. However, depending on the parties or issues involved, some are likely to pique the interest of others and consequently usher the parties into the public light. In a recent decision, Doe v. Archdiocese of Atlanta, the Georgia Court of Appeals examined issues related to anonymity raised in a personal injury lawsuit brought against a local religious institution.

The plaintiff in Doe filed a complaint on September 4, 2012, alleging that she had endured sexual abuse as a minor at the hands of an employee of the Church. In the complaint filed, the plaintiff’s actual name is never used, only a pseudonym. However, in a letter that was later sent to opposing counsel when the complaint was being served, the plaintiff was identified. In addition, 10 days following the filing of the complaint, the plaintiff also filed a notice of disclosure under court seal that identified her identity. All these acts happened before expiration of the five-year statute of limitations that applies to civil actions brought to recover damages for childhood sexual abuse. See OCGA § 9-3-33.1 (b) (requiring that action must be filed within five years of reaching the age of majority). The defendant answered the complaint and also filed a motion to dismiss, arguing that the initial complaint was a procedural nullity because it had not been filed under a real name. In addition, the defendant further argued that since the statute of limitations had elapsed by that point and the complaint could not be amended and relate back to the improper complaint originally filed, the case should be dismissed. The trial court concurred and granted the motion to dismiss.

The Court of Appeals, however, unanimously reversed the trial court’s decision. There is a general requirement under Georgia law that an action be prosecuted in the real name of the party of interest, see OCGA § 9-11-17 (a). In addition, the Supreme Court of Georgia has held that a lawsuit “brought in a name which is neither that of a natural person, a corporation, nor a partnership, it is a mere nullity” and, accordingly, cannot be amended by inserting the name of the proper party in interest, “there being nothing to amend.” W. & A.R. Co. v. Dalton Marble Works, 122 Ga. 774, 775 (50 SE 978) (1905). However, the Court of Appeals noted that this decision predated Georgia’s passage of the Civil Practice Act, which expressly provides that “no matter shall be dismissed on the ground that it is not prosecuted in the name of the real party of interest until a reasonable time has been allowed ….” OCGA § 9-11-17 (a). Following passage of the Act, the Supreme Court of Georgia reexamined the issue presented in Dalton Marble Works and held that when “the party plaintiff named in a complaint is not a legal entity but is reasonably recognizable as a misnomer for a legal entity which is the real party plaintiff, the misnomer may be corrected by amendment.” Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983). Accordingly, the court held that the trial court erred by holding that the original complaint was a nullity that could not be amended.
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gun isolated on white As Judge McMillian mentioned at the beginning of his opinion, the Georgia Court of Appeals is very familiar with the facts of Graham v. City of Duluth. This opinion was the third that the court has rendered related to an incident that occurred on February 1, 2008. On that day, an inebriated, off-duty police officer attacked a woman and another off-duty police officer who came to give aid. In earlier decisions, the Court of Appeals upheld the criminal convictions of the off-duty police officer and affirmed a trial court decision addressing civil claims brought by the second off-duty police officer. Now, more than six years after the incident, the Court of Appeals examines the civil claims brought by the woman who was attacked.

On appeal, the court needed to determine whether it was appropriate for the trial court to grant summary judgment for several claims in favor of the defendant, the City of Duluth. Although the officer was off duty when the incident occurred, the plaintiff argued that the city was nonetheless liable for the serious injuries caused by the officer’s conduct. Specifically, the plaintiff contended that the city was liable based on theories of respondeat superior, negligent hiring, and negligent retention. The trial court granted summary judgment in favor of the city on all these claims, and the Court of Appeals agreed with the trial court with respect to the respondeat superior and negligent retention claims. However, the appeals court reversed the grant of summary judgment with respect to the negligent hiring claim.

Pursuant to Georgia law, an employer “is bound to exercise ordinary care in the selection of employees and not to retain them after knowledge of incompetency.” OCGA § 34-7-20. Accordingly, it is well settled that an employer will be liable “for hiring or retaining an employee the employer knows or in the course of ordinary care should have known was not suited for the particular employment.” Munroe v. Universal Health Svcs., Inc., 277 Ga. 861, 862 (596 SE2d 604) (2004). In this case, the Court of Appeals noted that determining whether an employer exercised reasonable care in hiring an employee depends on the position for which the employee is hired. Thus, given the power associated with being a police officer, an employer must exercise a higher degree of care in selection in order for that exercise of care to be considered reasonable.
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glock-29-replica-1-1249005-mInsurance coverage can be challenging in personal injury cases. While car accident coverage is often relatively straightforward, coverage for other claims such as claims for intentional conduct or premises liability can be complicated. Although a judgment may be obtained, it doesn’t mean very much if the defendant’s insurer refuses to defend a valid claim. One way this issue is sometimes handled is for a defendant to assign its rights against an insurer to a plaintiff. A recent case arose from a dispute about whether shooting damages were covered by insurance.

A man was shot with a gun in a nightclub parking lot. He filed a lawsuit against the business that operated the nightclub. He claimed he was shot by or at the direction of an employee that was acting in the course and scope of the business. The business asked its insurer to give a defense based on the policy.

Unfortunately, the policy expressly excluded bodily injury claims that arose from assault or battery, unless they were committed by employees who were trying to protect a person or property. The insurer denied coverage and the business did not answer discovery. Khan got a default judgment and was awarded more than $2 million in damages. Continue reading →

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forced-entry-657836-mIn a 2013 case a woman was sexually assaulted by someone who broke into her house while she was at work and stayed there, although she triggered the alarm system. She sued the company that she had paid to monitor the security system on the grounds of negligence. The company moved for judgment notwithstanding the verdict and new trial. These were denied by the trial court.

The company appealed, arguing that the trial court should have found that there were no issues of material fact on the negligence claim and that the limitation of liability clause was enforceable, and that the court should have instructed the jury on assumption of risk, among other things.

The woman had purchased her security system from Tel-Star Alarms. It installed the system. She gave the company her work phone and designated her older sister as an emergency contract. A clause limited the company’s liability to $250. Less than a month after the purchase, Tel-Star assigned her contract to Monitronics, the defendant. It had the responsibility of monitoring her security. Continue reading →

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fence-726216-mThe Georgia Workers’ Compensation Act contains a provision that makes it an exclusive remedy for workers injured at work. This means that workers may not bring a separate tort action against their employer for injuries caused by employment-related accidents. This includes in many instances a felonious assault upon an employee by a third-party.

In a recent case, a woman filed a lawsuit alleging negligence against Wal-Mart based on an attack and kidnapping she suffered at the Georgia store where she worked. She was a department manager at Wal-Mart and was scheduled to start work at 5:00 a.m. in January 2010. A man previously convicted of rape had been drinking in the parking lot waiting for his own work shift to begin elsewhere.

Before the woman could go inside the store, the man drove a Jeep into the woman, kidnapped her, and drove her 2 miles away. The woman’s coworker saw the kidnapping and told their manager, who in turn told the authorities. The man and woman struggled and he physically and sexually assaulted her. Continue reading →