Atlanta Injury Lawyer Blog

Articles Posted in Municipal Liability

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man holeIn order to successfully assert negligence, a plaintiff must generally prove four elements:  duty, breach of duty, causation, and damages. However, certain evidentiary and negligence doctrines allow a plaintiff, in certain circumscribed situations, to win on a negligence claim without proving all or some of the aforementioned factors. Among these doctrines is res ipsa loquitur, a evidentiary rule that generally provides that a plaintiff can create a rebuttable presumption of negligence when he or she is harmed and proves that the harm suffered does not generally occur in the absence of negligence, that the instrumentality causing the harm was under the control of the defendant, and that no other conceivable reason for the occurrence of the harm exists. This doctrine was raised in a recent opinion from the Georgia Court of Appeals, Battlefield Investments, Inc. v. City of Lafayette (PDF-embedded link), which involved a municipal defendant’s liability for a sewage backup that damaged property owned by the plaintiff.

The sewage backup at issue in this case occurred on September 21, 2009. On that day, the City of Lafayette, Georgia was experiencing torrential rainfall. This unprecedented rainfall caused flooding that the National Weather Service described as “historic” in proportion. Given the extent of the rainfall, the city’s sewer system was overwhelmed, and the manholes near the property where the sewage backup occurred were completely submerged in water, which would prevent the city from taking any corrective action to avoid possible sewage backups. This infiltration of rainwater into the sewer lines can create back flow into toilets in residential and commercial properties, and such a backup happened at a building owned by Battlefield Investments, Inc., the plaintiff in this action. However, and fortunately, there were no other complaints of sewage backups at any other property within the city.

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Interchange sectionThose experienced with the law know that courts are institutions of procedure. Although many associate this exacting adherence to process with the rules to which the parties in litigation must abide, the court itself is also bound to procedural requirements. Indeed, a court’s failure to adhere to necessary process can create as much needless work for litigants as the litigants’ own failures. This dynamic is illustrated in a recent decision from the Georgia Court of Appeals, Gonzalez v. Georgia Department of Transportation, in which the Court of Appeals reversed a trial court for failing to make a decision on a predicate issue before getting to the merits of the case.

This case started with a motor vehicle accident on a section of Interstate 16 in Candler County, Georgia. While navigating in rainy weather, the driver of the vehicle lost control and crashed into a tree. A passenger in the vehicle who was injured as a result of the accident brought suit against the Georgia Department of Transportation, alleging that the driver of the vehicle lost control because the vehicle hydroplaned on a pool of rain water and that the Department of Transportation caused this event by negligently breaching its duty to construct, maintain, and inspect the cross-slope design of Interstate 16 in order to assure that rainwater properly flowed away from the road. In response, the Department of Transportation answered the complaint and then filed two motions.

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photo_12054_20090622Successfully asserting negligence claims against the State or a municipality can be a difficult task. However, success is possible. In a recent decision, City of Atlanta v. Kovalcik (PDF-embedded link), the Georgia Court of Appeals affirmed the denial of summary judgment in a negligence suit brought against the City of Atlanta for its failure to maintain adequate lighting at a newly redesigned intersection where the daughter of the plaintiffs was involved in a fatal car accident.

The car accident at issue in this case occurred on a night in March 2008. However, the events leading to this accident began four years earlier. In February 2004, the Georgia Department of Transportation and the City of Atlanta entered into an agreement to undertake certain improvements, including a project to redesign a portion of Peachtree Road in Atlanta. In pertinent part, the agreement provided that the city would accomplish the design activities in accordance with Georgia Department of Transportation (“DOT”) guidelines and that the DOT would “review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement.” Pursuant to a separate agreement between the City of Atlanta and the Buckhead Community Improvement District (“BCID”), BCID retained URS Corporation to develop construction plans, including road design, signage, pavement markings, curbs, traffic signals, and landscaping. These plans were ultimately approved by the DOT. Following approval of the plans, the DOT awarded a construction contract to Infrasource Paving and Concrete Services and contracted with Parsons Brinkerhoff Shuh & Jernigan for other construction, engineering, and inspection services. Active construction on this project ended in October 2007, and a final inspection was performed in January 2008.

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photo_21759_20120610Although employers are not liable for every injury caused by an employee, the doctrine of respondeat superior does make an employer liable for certain injuries caused by an employee acting within the scope of his or her employment. As to be expected, however, there are certain exceptions to application of respondeat superior doctrine that will shield an employer from liability even when the employee is negligent and acting within the scope of employment. Among these various exceptions is the borrowed-servant rule, which insulates an employer from liability when the employer lends the employee to another, and the employee commits a negligent act while engaged in work for the other party. In a recent decision, Garden City v. Herrera , the Georgia Court of Appeals examined the applicability of the borrowed-servant rule to a motor vehicle accident involving a police officer.

The motor vehicle collision at issue in this case occurred in July 2010, when a car being driven by a police officer employed by the Garden City Police Department collided with a car being driven by another. The officer had been employed with the city since 2007 and since the nascent period of his employment was part of a multi-jurisdictional narcotics task force. The task force was created in 1994, when Chatham County entered into agreements with various municipal law enforcement agencies. Per these agreements, local law enforcement agencies assigned officers to a 27-month tour with the countywide Counter Narcotics Team, which was run by a commanding officer employed by the county. At the time of the accident, the officer was driving from the location of one task force operation to another, under the orders of a supervising task force officer. Following the accident, a lawsuit was brought on behalf of the seriously injured driver against Garden City, Chatham County, and several other defendants. Following the close of discovery, Garden City moved for summary judgment, arguing that it could not be held liable because the accident occurred when the employee was a borrowed-servant of the county. The trial court denied the motion for summary judgment, finding that there was an issue of material fact concerning whether the county retained exclusive authority to fire the officer. If the county did not retain such authority, the borrowed-servant doctrine would not apply.

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photo_6322_20080613Although it’s sensible to believe a city may be held liable to failing to act when such failure results in the injury to one of its citizens, cities are often not as accountable for the injuries of citizens as many may think they are. Issues regarding municipal liability at the center of a recent decision from the Georgia Court of Appeals, City of Atlanta v. Demita, in which the court addressed a somewhat novel question regarding when a municipality may be held liable for maintaining a nuisance in the construction or upkeep of a municipal storm water drainage system.

The alleged nuisance at dispute in this litigation was located on a low-lying stretch of Oakridge Avenue in Atlanta, Georgia. In 2002, the plaintiff in this case purchased a newly constructed home located at this part of Oakridge Avenue. The street is owned and maintained by the city. The home was part of new fill-in construction in the area, and prior to this construction, water would run east to west across the street, which runs north to south. However, following construction, this home and the home across the street are at the thoroughfare’s low point, and water has pooled in the area during the duration of the plaintiff’s occupancy. There is no storm drain, sewer grate, manhole, retention pond, or catch basin on the street into which runoff water can drain. On days of heavy rainfall, water pools above the curb and overflows onto the plaintiff’s property, which has caused the property to sustain erosion, soil saturation, garage and crawlspace flooding, and other damage.

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file0001080745110Anyone who routinely watches the evening news is well aware that high-speed police chases are not uncommon. While considerable reporting time is spent discussing these events, one wrinkle that is sometimes overlooked in these discussions is the risk for pedestrians and other motorists occasioned by the decision to give chase. Indeed, given the risk of third-party injury, many law enforcement agencies, including the City of Atlanta Police Department, have developed guidelines for high-speed pursuits designed to minimize the danger they create for the general public. However, the existence of a chase protocol does not always mean adequate compliance with that protocol, which is the key subject addressed in a recent decision from the Georgia Court of Appeals, City of Atlanta v. McCrary (PDF File).

McCrary involved the death of two people who were hit by a fleeing suspect on the night of January 28, 2008. On that day, an officer noticed a car with an improperly completed drive-out tag. When the officer turned on his siren and lights, the driver of the vehicle accelerated, and the officer began to give chase. There is some factual dispute about what happened afterwards. In his deposition testimony, the officer stated that he soon realized he lacked a sufficient legal basis for either starting or continuing the chase and that he consequently terminated the pursuit and turned off his lights and siren. The officer further stated that about a mile after he had ceased following the suspect, he once again happened upon the vehicle, which had collided head-on with another car that was occupied by the two deceased victims. The fleeing suspect, however, stated in an affidavit that he never lost sight of the police cruiser or its flashing lights.

The estates of both deceased parties brought wrongful death suits against the City of Atlanta, alleging that the officer and the city were negligent, that the officer’s decision to initiate a high-speed chase violated the department’s high-speed pursuit policy, and that the city had maintained a nuisance that endangered the public by failing to enforce its pursuit policy and by failing to train and supervise its officers pursuant to the policy. The city moved for summary judgment, arguing that its liability was limited to $700,000, but the trial court, finding a question of material fact with respect to the nuisance claim, declined the motion.
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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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photo_29313_20131028It is an ordinary impulse to think that the government, state or federal, should be subject to the same rules of accountability as ordinary businesses and citizens when it comes to injuries associated with the conduct of its agents. However, the common law doctrine of sovereign immunity drastically alters the landscape of liability for government actors and limits when a person injured by a government actor may bring suit to recover for his or her injury. On May 19, the Supreme Court of Georgia granted certiorari to review a decision of the Georgia Court of Appeals regarding the applicability of sovereign immunity to the conduct of the Atlanta Police Department.

The decision to be reviewed by the Supreme Court of Georgia, City of Atlanta v. Mitcham (PDF downloadable file), involves the injury of a person being held in custody by the Atlanta Police Department. The plaintiff in this action had been arrested in connection with a hit-and-run accident. While detained, the plaintiff, who suffers from diabetes, became ill and needed to be taken to the hospital. Following treatment, the hospital released the plaintiff back into the custody of the police and informed the police that the plaintiff needed to have his blood sugar regularly checked and to be provided insulin on a consistent schedule. Despite the hospital’s instruction, the police failed to monitor the plaintiff’s blood sugar and regularly provide him with insulin, which resulted in illness and further serious and permanent injury.

Following this episode, the detainee brought suit against the City of Atlanta and George Turner, the Police Chief for the City of Atlanta. The defendants moved to have the case dismissed, arguing that sovereign immunity applied and thus the plaintiff could not recover for the injuries sustained as a result of the police’s negligence. The trial court denied the motion to dismiss and the Georgia Court of Appeals affirmed the trial court decision. Now, following its grant of discretionary review, the Supreme Court of Georgia will weigh in on whether the City of Atlanta can avoid liability.
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