Premises Liability

Driver Shot at Georgia Post Office Can Not Sue Federal Government for Damages

October 25, 2015 | Benjamin S. Persons, IV

If you are injured on someone else’s property, you can normally bring a premises liability claim if there is evidence the owner was somehow negligent. Unfortunately, the rules are much different for injury victims if they are injured on government property. Both the federal and Georgia governments are normally immune from lawsuits unless they consent to be sued. With respect to the federal government, Congress adopted the Federal Tort Claims Act (FTCA), which authorizes individuals to bring personal injury lawsuits against the government under state law in certain circumstances.

What do we mean by “certain circumstances”? The FTCA does contain a number of exceptions, which courts are required to strictly construe in favor of the federal government, as it is presumed to have immunity unless expressly waived. One of the most common exceptions applies to “discretionary” actions by government employees. This exception holds that a person may not file a personal injury claim against the government based on an employee’s “failure to exercise or perform a discretionary function.” In other words, if an employee fails to carry out a duty mandated by law, a person can file a claim under the FTCA. But if the employee has any discretion to act (or not act), the government cannot be held liable.

Fagg v. United States

Store Owner Not Liable for Hazard Created by Child Running in the Aisles

October 27, 2014 | Benjamin S. Persons, IV

What is the liability of a store owner for a potential tort committed by members of the public? The Georgia Court of Appeals recently addressed this question. The case involved a woman who claimed she was injured as the result of a collision with an unsupervised child.

Ingles Markets, Inc. v. Carroll

According to the plaintiff, she visited a grocery store in Villa Roca, Georgia, one afternoon in February 2012. As she walked down a store aisle, the plaintiff said a boy—about 11- or 12-years old—ran down the aisle, knocked into her, and caused her to fall. The plaintiff then filed a personal injury lawsuit against the child’s parents and the store.

Georgia Supreme Court Dismisses Lawsuit Against State College Over a Technicality

October 20, 2014 | Benjamin S. Persons, IV

The Georgia Supreme Court recently dismissed a personal injury lawsuit brought by a woman who fell into a pothole in a parking lot. The woman sued the property owner for maintaining unsafe conditions in the parking lot. In this case, the property owner was Dalton State College, part of the University System of Georgia. As the named defendant, the Board of Regents of the University System of Georgia is immune from civil lawsuits unless certain conditions specified by Georgia law are met. Unfortunately, the Supreme Court found the plaintiff failed to meet one of those technical conditions.

Board of Regents v. Myers

There was no question the woman suffered serious injuries. After falling in the pothole at Dalton State’s parking lot, she required emergency treatment, extended orthopedic care, and several months of physical therapy. While still receiving treatment, the woman notified the Board of Regents of her intention to sue. Georgia law requires such notice be given in order to effect a waiver of the Board’s sovereign immunity.

Georgia Appeals Court Orders New Trial in Personal Injury Case Where Defendant Admitted Liability

October 4, 2014 | Benjamin S. Persons, IV

Personal injury litigation is often complicated, but there are some simple rules that everyone should understand. For example, when a lawsuit enters pre-trial discovery, each party may serve written requests for admission on the opposing party or parties. Oftentimes, requests for admission simply help establish basic facts about a case—e.g., “The defendant was driving a red Honda Accord.” The other party can file a written response admitting or denying each request. But if a party declines to file a response within a specified time period, either 30 or 45 days under Georgia law, then the statement is deemed admitted by the non-responsive party.

Vis v. Harris

Here is a recent case where requests for admission played a critical role. This is a slip-and-fall case. The plaintiff said she was injured when she tripped on a defective piece of carpet at an Atlanta hotel. She named a hotel employee, the hotel’s owner, and its management company as defendants.

Appeals Court Finds “Passenger” Was Not Really a Passenger

August 29, 2014 | Benjamin S. Persons, IV

A “common carrier” is a person or company that furnishes transportation to the general public in exchange for money. Georgia law requires all common carriers, such as bus operators, to “exercise extraordinary diligence” to protect its passengers in order to avoid liability for negligence. This is a higher standard than applies in most negligence cases, where an owner need only demonstrate “ordinary care” in keeping his or her premises safe.

Recently, a divided Georgia Court of Appeals addressed the applicability of the “extraordinary diligence” standard in the case of a ticketed passenger who tripped and fell on her way to board a bus. A majority of the court found she was not actually a passenger at that point, and therefore could only pursue a claim under the “ordinary care” standard for premises liability—which, unfortunately, was not available to her because of procedural issues.

DeMott v. Old Town Trolley Tours of Savannah, Inc.

Can a Jury Rule for a Plaintiff but Award Zero Damages?

April 24, 2014 | Benjamin S. Persons, IV

In civil cases, such as personal injury or wrongful death lawsuits, a jury must determine the defendant’s liability and what damages, if any, are owed the plaintiff. Juries must reach a unanimous verdict on both issues. And while unanimity may require a certain level of bargaining among jurors, there are cases where a “compromise verdict” must be rejected by trial judges and appellate courts. In particular, a court will not allow a jury to hold a defendant liable while deliberately awarding “inadequate damages” to compensate a plaintiff.

A federal appeals court in Atlanta recently ordered a new trial in a negligence lawsuit because of just such a compromise verdict. The appellate panel found the trial judge improperly instructed the jury, which in turn led to a verdict where the plaintiff “won” but received zero damages.

Collins v. Marriott International, Inc.

Wal-Mart Faces Trial in Pair of Georgia “Slip and Fall” Cases

February 13, 2014 | Benjamin S. Persons, IV

“Slip and fall” cases are among the most common types of personal injury lawsuits brought against retailers. It’s no surprise then that Wal-Mart, the nation’s largest retailer, is currently facing at least two such lawsuits in Georgia alone. Recently, separate federal courts denied Wal-Mart’s motions for summary judgment, finding in each case that there was substantial evidence the retailer had direct knowledge of hazards that led to the plaintiff’s accident.

Ali v. Wal-Mart Stores East, LP

The first case involves a 2010 incident at a Wal-Mart in Snellville. The plaintiff was buying groceries in the afternoon and stopped at the dairy aisle to pick up butter. At the same time, according to court records, “a Wal-Mart employee pulled a pallet jack right behind plaintiff’s feet.” When the plaintiff turned to place the butter in his cart, he said he tripped over the pallet jack and suffered serious injuries.

Georgia Appeals Court Upholds $2.6M Award In “Slip and Fall” Case

November 16, 2013 | Benjamin S. Persons, IV

The Georgia Court of Appeals recently upheld an award of over $2.6 million to a Fayetteville woman who suffered personal injuries while shopping at a local grocery store. By a 6-1 vote, the appeals judges rejected the store’s claim it lacked “actual or constructive knowledge” of the hazard that caused the woman’s injuries. The court also upheld a $150,000 award to the woman’s husband for “loss of consortium.”

The Georgia Supreme Court has said that in any “slip and fall” case against a property owner, the plaintiff must prove two things: First, that the owner had actual or constructive knowledge of a hazard; and second, that the plaintiff lacked knowledge of the hazard despite “exercising ordinary care” for her own safety.

The Kroger Company v. Schoenhoff

Federal Judge Denies Bank Receiver’s Motion for Summary Judgment In Parking Lot Accident Case

October 25, 2013 | Benjamin S. Persons, IV

Under Georgia law, a property owner must exercise “ordinary care” in maintaining safe conditions for persons invited onto the premises. If an invited person subsequently alleges he or she suffered an accident or injury due to the owner’s failure in this regard–a premises liability claim–then the burden is on the accuser to first prove the owner “had actual or constructive knowledge of the hazard that caused the accident.” Once the accuser meets this burden, then the onus shifts to the owner to prove that it was the accuser’s action or inaction that caused the injury.

Daugharty v. FDIC

A pending case before a federal judge in Valdosta illustrates how premises liability law works in practice. The plaintiff here visited a local bank in 2011 to close an account. This was her first time visiting this particular branch of the bank. She entered and exited the bank through a walkway leading from the parking lot to the bank’s doors. On her return trip after exiting the bank, the woman “tripped over a protruding lip of concrete in the walkway, fell to the ground, and injured herself.”

Court Rejects Lawsuit Against Wal-Mart Over “Slip-and-Fall”

October 18, 2013 | Benjamin S. Persons, IV

In a typical premises liability lawsuit–such as a “slip-and-fall” case–the plaintiff must prove the property owner had “actual or constructive” knowledge of a hazardous condition on the property. But the property owner may attempt to defend itself by showing the plaintiff had “equal knowledge” of the hazard. If the plaintiff failed to exercise “ordinary care,” then the property owner won’t be held liable.

A recent Georgia Court of Appeals decision illustrates these principles. In Houston v. Wal-Mart Stores East, L.P., the plaintiff was shopping early one morning at a Wal-Mart in Clayton County. The plaintiff pushed a shopping car through the store’s meat department. He walked over some flattened cardboard boxes left on the floor by an employee. When he turned the cart around and walked over those same boxes a second time, he slipped on the boxes and fell to the ground.

The plaintiff sued Wal-Mart and two of its employees for damages related to injuries he suffered in the fall. During discovery, Wal-Mart produced security camera footage showing the plaintiff had crossed the cardboard boxes once without incident before falling the second time. The plaintiff conceded this point in his own deposition. Based on this, the trial judge concluded the plaintiff had “equal knowledge” of the hazard posed by the cardboard boxes and granted summary judgment to Wal-Mart and the two employees. The plaintiff appealed.