Atlanta Injury Lawyer Blog

Articles Posted in Premises Liability

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photo_7843_20081107Evidence is of undeniable importance in every legal action. Indeed, one would find it difficult to succeed in a breach of contract case if he or she were unable to produce the contract at issue. Although parties can typically be trusted to not tamper with the sharing of possible evidence during the discovery process, arguments regarding misconduct during discovery  are not uncommon. In fact, a federal magistrate judge for the South District of Georgia recently had to resolve a dispute involving alleged spoliation in an ongoing premises liability case, Pinkney v. Winn-Dixie Stores, Inc.

Pinkney arose from a slip-and-fall incident at a Winn-Dixie Supermarket in Southern Georgia. Having sustained injuries from this fall, the plaintiff brought a premises liability suit against Winn-Dixie. During the course of discovery, the plaintiff made a motion to compel production, which included a demand for photographs taken at the scene of the incident, which were allegedly in the defendant’s possession. The magistrate judge dismissed this motion as moot, finding the defendant’s explanation that no such photos were in its possession as dispositive. However, following denial of this motion, the plaintiff acquired additional evidence, which included deposition testimony of one of the defendant’s employees who averred that it is store policy to photograph the scene of a slip-and-fall immediately following the incident, upload those photographs to the store computer, email them to a claim management company, and then deliver hardcopies to Winn Dixie’s main office. The plaintiff also deposed a former employee who stated that he prepared the incident report for the plaintiff’s fall and followed the protocol for disseminating the photographs outlined above. After acquiring this evidence, the plaintiff made a motion alleging that the defendant’s failure to preserve the photographs constitutes spoliation that warrants judicial sanctions, including instruction to the jury on spoliation, and a finding against defendant on the issues of negligence and causation that the defendant would be precluded from contesting.

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photo_5592_20080409A common issue that arises in slip-and-fall litigation is whether the business owner had knowledge of the foreign substance on which a plaintiff slipped and fell. Given that employees are generally not inclined to acknowledge their actual knowledge of the dangerous condition, plaintiffs must typically use direct or circumstantial evidence to show “constructive knowledge” of the foreign substance. Thus, many cases turn on what evidence the plaintiff and the defendant present to show or rebut constructive knowledge of the foreign substance. This battle is pointedly illustrated in Alatrista v. Publix Super Markets, Inc., a recent decision from the Atlanta Division of the U.S. District Court for the Northern District of Georgia.

This case arose from a slip-and-fall at a local Publix Supermarket. The plaintiff in this case and her boyfriend were shopping at the supermarket when the plaintiff slipped and fell on a puddle of clear liquid on the floor of the main aisle just beyond the cash registers at the store. The plaintiff testified that she had not seen the puddle prior to falling, and that, even after the fall, the puddle was not visible from a standing position. The plaintiff’s boyfriend also testified that he inspected the area after the fall and stated that the puddle was difficult to see. Publix has a stated “Don’t Pass It Up — Pick It Up” policy, and four employees testified that they, in accordance with this policy, inspected the area shortly before the incident. Each employee testified that he or she did not see any foreign substance when he or she passed the area and that he or she would have cleared the substance had he or she noticed it. The plaintiff brought suit against Publix for injuries associated with the fall, and, following discovery, the Publix moved for summary judgment, arguing that there was no issue of material fact for a jury to determine with respect to Publix’s constructive knowledge of the alleged puddle such that it was entitled to judgment as a matter of law.

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Park in winterIt is quite common for modern businesses to contract out maintenance or cleaning responsibilities to third-party entities that specialize in providing those services. Although this outsourcing of responsibility may help make business function more efficiently, the wide array of possible contractual relationships can create confusion when a person is injured as a result of the negligence one or more of the contracting parties. This possible muddling of responsibility is addressed in a recent opinion from the Georgia Court of Appeals, Davidson v. Meticulously Clean Sweepers, LLC.

The Davidson case arose from a slip and fall accident at a Dollar Tree store in Macon, Georgia. As a winter storm approached in January 2011, “Rivergate,” which is composed of three corporate entitles that own the shopping center in which the Dollar Tree is located, asked Meticulously Clean Sweepers to perform de-icing services at the shopping center pursuant to a contract to perform sweeping services at the site. The storm arrived on January 10, and Meticulously Clean performed de-icing services on January 9th, 11th, 12th, and 13th. On the morning of January 12, a customer who would become one of the plaintiffs in this case arrived at the shopping center and, while navigating her way to the entrance of the Dollar Store, fell on a patch of black ice. The customer photographed the black ice patch and later testified that she had both taken care to avoid other puddles and that the black ice patch on which she slipped was not obvious and would not have been reasonably seen by someone who was attentive to where he or she was going. In October 2012, more than a year following the accident, the customer and her husband brought a premises liability suit against Rivergate, Rivergate’s property management company, Dollar Tree, the manager of Dollar Tree, and Meticulously Clean Sweepers. In May of the following year, the plaintiffs settled with all the defendants except Meticulously Clean. Following further discovery, Meticulously Clean moved for summary judgment, contending that it could not be held liable as a matter of law because the injured plaintiff was not an intended third-party beneficiary of the contract between Meticulously Clean and Rivergate, no evidence showed that it breached a duty of ordinary care, and no evidence showed it had superior knowledge of the hazardous black ice to the plaintiff. The trial court granted the motion for summary judgment, and the plaintiffs appealed.

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photo_2780_20070814The decision that is the subject of today’s entry, Board of Regents of University System of Georgia v. Myers, was actually discussed in an earlier post. Following our discussion of the Court of Appeals decision, the case was appealed to the Supreme Court of Georgia, which granted the petition for certiorari. Given that the Supreme Court of Georgia has reversed the decision of the Court of Appeals, we think it is appropriate to take another look at this case. Myers addresses how sufficiently a litigant must specify the amount of loss suffered in his or her ex-ante notice of claim to comply with the requirements of O.C.G.A. § 50-21-26 (a)(2).

Prior to passage of the Georgia Tort Claims Act (“GTCA”), tort suits against the state were barred by the doctrine of sovereign immunity. Although the GTCA waived the state’s sovereign immunity to such suits, the state still placed a variety of limitations on the right to sue, including a requirement that the party provide the state with sufficient ex-ante notice of his or her claim prior to bringing legal action. In the current case, the plaintiff was injured on June 28, 2010 after stepping into an unrepaired pothole on the campus of Dalton State College, an institution within the University System of Georgia. The plaintiff received emergency medical treatment the day of her injury and follow-up physical therapy for four months after the incident. She continued to receive medical treatment thereafter because she had not fully recovered from her injury.

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photo_4085_20071113As Vis v. Harris, a recent decision from the Court of Appeals of Georgia, demonstrates, even a standard trip and fall case can lead to protracted litigation. The plaintiff in this case was staying as guest at a Sheraton Hotel in Atlanta in 2008, when she allegedly tripped on a non-visible rise in the hotel carpeting and fell. Following her fall, the plaintiff brought suit against an employee at Sheraton, Starwood Hotels & Resorts Worldwide, the owner of the Sheraton, and Amerimar Courtland Management Co., Inc., a hotel management company that managed the Sheraton.

During the course of discovery, the counsel for the plaintiff had served Amerimar with requests for admissions, to which Amerimar never responded. The issue of Amerimar’s failure to respond to the requests for admissions was raised on numerous occasions during the remainder of pre-trial discovery. At the beginning of trial, following opening statements, counsel for the plaintiff stated that counsel had admissions to read and began listing the various admissions to which Amerimar had not responded regarding its liability in the suit. Counsel for the defendants never objected, and the trial proceeded. After both parties rested their cases, the court dismissed the jury for the day but directed the parties to remain for the charge conference to narrow the issues to be given to the jury to decide. At this conference, the trial judge noted issues regarding the admissions having been read into the record at the beginning of the trial, despite no request from the defendants having been made about the propriety of reading the admissions. After some discussion on the issue, the trial judge ruled that the admissions would be withdrawn from the record for the jury’s consideration but permitted the plaintiff’s counsel to make his objection to the decision part of the record. Afterward, the parties gave closing arguments, and the case was then given to the jury. Finding the jury’s ultimate decision in favor of the defendants unsatisfactory, the plaintiff’s counsel appealed, arguing that the trial court’s independent decision to withdraw Amerimar’s admission from jury consideration after the close of evidence was reversible error.

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photo_3959_20071030Although falling from a horse is not among the sources of injury one would typically contemplate if he or she were asked to consider Atlanta-area personal injury litigation, the facts of a recent federal case, Brit UW Limited v. Hallister Property Development, LLC, are unlike those associated with most personal injury actions.

Brit is actually the second lawsuit filed regarding the incident at hand. The first case followed an accident at Goat Farm, a living and workspace community for artists located in Atlanta, where the plaintiff in the first suit, a resident on the property, was paralyzed after being thrown from a horse. The defendant in the original suit is a limited liability corporation that purchased the property in 2008. The corporation is composed of two members who hoped to eventually develop the land into large-scale residential and commercial space. However, at the time of the accident, the majority of the land was underdeveloped and served as a site for both animals and small residential studios and working spaces for artists. One of the two members of the corporation actively manages the property and agreed to have a friend store a horse on Goat Farm. On the day of the horse’s arrival, the property manager and the horse’s owner agreed to let the plaintiff sit on a horse and helped him mount the animal. Although the plaintiff did not expect to ride, the horse jolted after he was mounted and threw the plaintiff into a flagpole, leading to back injuries and paralysis. Following the accident, the plaintiff brought suit in Fulton County State Court, arguing various theories of premises liability and negligence that made the Goat Farm owners liable for his serious injuries. The defendant then requested defense and immunity from its insurance provider, the plaintiff in the second lawsuit. The insurance provider and the defendants reached an impasse in negotiations about obligations pursuant to the insurance agreement, and the insurance provider brought a declaratory action suit against both the defendant and the plaintiff in the original lawsuit in federal court to determine what rights existed under the insurance contract.

Following limited necessary discovery, the insurance provider moved for summary judgment, arguing that the injury was not covered by the terms of the contract, and, even if it was, the members of the corporation failed to provide reasonable notice as required by the insurance agreement. Under Georgia law, an insurance agreement is interpreted using the same rules that apply in standard contract interpretation. SawHorse, Inc. v. S. Guar. Ins. Co. of Georgia, 269 Ga. App. 493, 494-95 (2004). Accordingly, the parties to an insurance agreement are bound by the agreement’s plain and unambiguous terms, but ambiguities are construed against the insurance provider since it is the drafter of the contract. Id. at 494. With respect to this case, two issues needed to be resolved:  whether the insurer had a duty to defend the insured in this action, and whether the insured gave timely notice of the action as required by the agreement.
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People boarding busWhen initially pleading a case, attorneys will typically maintain a litigant’s injury is compensable under several distinct theories of liability. However, as the Georgia Court of Appeals recent decision in Demott v. Old Town Trolley Tours of Savannah, Inc. demonstrates, alternative pleading, although often efficacious, does not assure recovery.

The plaintiff in Demott was injured in Savannah on November 17, 2008. On that day, the plaintiff and several family members went to the Savannah Visitor Center in order to procure tickets and take the Savannah Old Town Trolley Tour. After parking and entering the Visitor Center to purchase tickets, the plaintiff walked across the parking lot to a kiosk to inquire about where she and her family should board the trolley. The kiosk attendant informed her that she and her family could board back at the entrance to the Visitor Center. While making her way back across the parking lot, the plaintiff tripped in a pothole and fell.

The plaintiff originally brought a premises liability suit on March 16, 2010 against the City of Savannah. However, after realizing that Old Town, not the City of Savannah, owned the parking lot, the plaintiff amended the complaint on November 16, 2011 to include a premises liability claim against Old Town. However, Old Town argued that this claim fell beyond the two-year statute of limitations period for personal injury actions, see O.C.G.A. § 9-3-33, and moved for summary judgment. In response, the plaintiff again amended the complaint to assert a breach of contract claim based on Old Town’s duty to its riders as a common carrier. While the trial court acknowledged that this is a distinct claim, the court found that the injury did not occur based on a breach of the contractual duty to safely carry and transport the plaintiff and granted the motion for summary judgment.
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photo_2006_20061006When it comes to negligence, not even a church is beyond the reach of the law. In a recent case brought before the Georgia Court of Appeals, Henderson v. St. Paul Baptist Church, the court needed to determine whether the district court had properly granted summary judgment in favor of St. Paul Baptist Church, which had been sued in a premises liability action. Although the trial court had originally granted summary judgment in favor of St. Paul, the appellate court reversed, finding that questions of material fact existed, which precluded granting the motion for summary judgment.

The plaintiffs in this action were visiting pastors to St. Paul who were invited by the lead pastor to conduct a revival service. Upon arriving at the church, where there is no designated parking area, the plaintiffs saw the lead pastor, who motioned to them and indicated that they should park behind his car, which was situated next to recently planted shrubbery. The plaintiffs parked behind the lead pastor’s vehicle. While exiting the vehicle, one of the plaintiffs noticed that the ground between the shrubs and the car was entirely covered in pine straw. Although the ground was concealed, the plaintiff nonetheless decided to exit the vehicle because she had just seen the lead pastor and his wife exit their vehicle without injury. After walking only a few steps, the plaintiff fell into a trench that was obscured by the pine straw and had been dug only a month earlier in order to keep the newly planted shrubs hydrated. As a result of her fall, the plaintiff suffered a spiral fracture of her leg.

Following the accident, the plaintiffs, the injured visiting pastor and her husband, the other visiting pastor, brought premises liability and loss of consortium claims against St. Paul. After discovery, St. Paul moved for summary judgment, arguing that the church could not as a matter of law be held liable because the injured plaintiff had deviated from the designated route to the front of the church and, instead, fell while taking a shortcut through a flower bed to a side entrance. The trial court agreed with this view of the facts and granted the motion for summary judgment. The appeals court, however, disagreed and unanimously reversed.
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file0001472960139A key complication that arises in many personal injury suits, especially premises liability suits, is the existence of a franchise relationship. Although many consumers do not see the functional difference between a business that is directly run by the larger corporate entity and those that are run pursuant to a franchise agreement, the existence of a franchise relationship has significant implications for determining legal liability. In a recent premises liability case, Bright v. Sandstone Hospitality, LLC, the Georgia Court of Appeals addressed some of the commonplace liability limitations that are implicated when a franchise relationship exists.

The plaintiff in Bright was a guest at a Wingate Inn in August 2008. Although the inn carried Wingate’s name, the facility was actually owned and operated by Sandstone Hospitality, LLC and merely franchised by Wingate International Inns, Inc.. The plaintiff took a bath the morning after his arrival at the inn, and when he attempted to hoist himself from the tub with the aid of a grab bar, the bar detached from the wall and struck him in the head and injured his lower back. The resulting injuries required surgery, and the plaintiff brought suit against Wingate International Inns, Inc. and Sandstone Hospitality, LLC for recovery. Following some discovery, both defendants made separate motions for summary judgment, which the trial court granted in their favor. On appeal, the Georgia Court of Appeals reversed the grant of summary judgment with respect to Sandstone Hospitality but affirmed the grant of summary judgment with respect to Wingate. This division in judgment reflects the limitations that exist when one attempts to impose liability on a franchisor for injuries sustained at a site operated by a franchisee.

The plaintiff first argued that Wingate should be held liable because there was apparent agency relationship between Wingate (the principal) and Sandstone (the agent). In support of this argument, the plaintiff first relied on evidence of common signage at all Wingate sites, whether or not they are run by a franchisee. However, under Georgia law, merely displaying signs or trademarks symbols is insufficient to establish that an apparent agency relationship exists. While the plaintiff did cite one case that placed liability on a franchisor when common signage was used and the franchisee failed to provide notice it was independently owned and operated, the court distinguished that case from the one at hand because a sign at the front desk of this particular Wingate specifically noted that it was owned and operated by Sandstone Hospitality, LLC. Accordingly, as a matter of law, no apparent agency relationship could exist.
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NYUWork-009Although discussions involving negligence and medical facilities are often focused on medical malpractice, some injuries in the medical setting happen to be disassociated from medical judgment and thus subject to a different standard of review. This distinction is at the heart of the Georgia Court of Appeals’ recent decision in Emory Healthcare, Inc. v. Pardue, a case that required the court to resolve when negligent conduct on the part of medical professionals constitutes medical malpractice rather than ordinary negligence.

The plaintiff in Pardue was a patient at the Wesley Woods inpatient psychiatric unit in Atlanta. She had been admitted to the facility so that the dosage of her previously prescribed medications could be modified in a controlled setting. Wesley Wood is a facility that specializes in geriatric psychiatry, and a fall-risk assessment was taken when the plaintiff was admitted. The risk assessment and other admission documents noted that the plaintiff had “several sensory and cognitive impairments, including cataracts, hearing loss, weakness, an unsteady gait, and a history of dementia.” In light of these issues, the plaintiff was deemed a fall risk, and orders were placed that required she be assisted to the bathroom. On the morning of April 19, 2007, the plaintiff attempted to leave her bed in order to go the restroom, and an alarm sounded notifying staff of her movements. A nurse and a nursing assistant responded and assisted the plaintiff to the restroom, but as they walked to the restroom, the plaintiff urinated on the floor. They finished their journey to the bathroom, where they told the plaintiff to wait while they attended to the urine. While a nurse was cleaning the floor, the plaintiff left the bathroom and then fell on the wet floor outside the bathroom where she had urinated. The nurse who was cleaning the floor testified that she had not seen the plaintiff get off the toilet or leave the bathroom. Following this accident, the plaintiff brought suit against Emory for negligence. The suit eventually went to the jury, which found in the plaintiff’s favor.

One of the defendant’s principal arguments on appeal was that the plaintiff’s negligence claim sounded in medical negligence and not ordinary negligence. Accordingly, the rules associated with medical malpractice liability, including the requirement that a plaintiff provide expert testimony to establish her claim, should apply. The Georgia Court of Appeals, however, found this argument unavailing. The court relied on its prior decision in Brown v. Tift County Hosp. Auth., which held “the distinction between ordinary and professional negligence turns on whether the decision on how to monitor, assist or care for the patient was based on a professional assessment of whether the patient, based on the patient’s medical condition, required assistance of some sort.” 280 Ga. App. 847, 849 (635 SE2d 184) (2006). In other words, when the alleged negligence involves “the exercise of professional skill and judgment to comply with a standard of conduct within the professional’s area of expertise, the action states professional negligence. But where the allegations of negligence do not involve professional skill and judgment, the action states ordinary negligence.” Bardo v. Liss, 273 Ga. App. 103, 104 (1) (614 SE2d 101) (2005).
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