Negligence

Published on: May 6, 2021

Mall Liability for Negligent Security in Georgia

A property owner who has notice of substantially similar prior crimes on his or her property may be held accountable in an Atlanta premises liability lawsuit. In a recent Georgia appellate decision, the court considered an appeal arising out of a car accident that occurred at a mall.

The plaintiffs, a mother and daughter, were driving into the mall when another driver’s SUV hit them. The daughter and the other driver got out of their cars and shouted at each other. The parties used profanities, but did not threaten each other. A mall security officer who was a retired policeman witnessed the fight. He noticed finger-pointing. He tried to ensure that everybody had calmed down and then asked the women to drive into an adjacent parking lot to settle the dispute.

When the officer was speaking with the other driver, the daughter walked over. She believed the situation was hostile, though she didn’t fear for her life. The officer finished talking to the other driver and told her she could go; she got into her vehicle to leave. Meanwhile, the officer began talking to the mother and daughter who were leaning on the back of the daughter’s vehicle. Suddenly, the other driver reversed at high speed and crushed the mother’s left leg.

Published on: April 9, 2021

Duty to Use Reasonable Care in Another’s House in Georgia

By Stephen M. Ozcomert

In a recent Georgia personal injury action, the plaintiff sued the defendant, who worked for an electrical services company, when she fell on her as they walked down a staircase in her home. The plaintiff had asked the company for electrical services. Its two employees, one of whom was the defendant, met her to inspect her water heater and heater in her basement. There were windows in the basement that provided some lighting, but there was no direct lighting on the stairs.

The plaintiff was wearing clogs with two and a half inch heels. The staircase had a preconstruction step and a split platform. The plaintiff told the electric company employees to take care because there wasn’t a handrail. The defendant wasn’t worried about the lack of handrail and used her left hand to sweep the wall and keep balance. The plaintiff walked down first, the defendant walked behind her, with another electric company employee bringing up the rear. However, as the defendant came to the split platform, she fell and knocked the plaintiff down. She fell on top of the plaintiff on the concrete floor of the basement.

The plaintiff was taken to the hospital. The defendant testified she didn’t know what caused her fall, but later she told the plaintiff she fell simply because she lost her balance. The defendant completed an accident report that stated she fell because of the design of the premises and she hadn’t paid attention to footing. She photographed the scene later and decided she’d lost her balance because her shoe heel had passed through a gap in the staircase. However, the staircase passed the County’s inspection.

Published on: February 11, 2020

Property Manager’s Liability After Sexual Assault at Georgia Apartment Building

By Stephen M. Ozcomert

When a property owner in Atlanta has reason to foresee there will be an injury-producing crime against certain visitors on his or her property, that property owner may be held accountable for the damages arising out of that crime in an Atlanta premises liability claim. In a recent Georgia appellate case, the court considered the sexual assault of a 12-year-old in an apartment building. Her conservator sued the apartment’s management company for its negligence, as well as negligent security. The court denied the company’s motion for summary judgment. The company appealed.

The case arose at a 9-story apartment building that provided Section 8 housing. The defendant company had taken some steps towards security. Visitors needed to sign in and there was a list of visitors banned from the building. The residents needed key fobs to come into the building, and there were security cameras as well as a security guard. The police were called, and the perpetrator pled guilty to child molestation and rape. Additionally, the plaintiff filed a premises liability action based on the theory that the defendants had negligently failed to keep the apartment safe and to adequately protect invitees, as well as negligent security under OCGA section 51-3-1.

The defendants asked for summary judgment on the grounds that the perpetrator’s intervening criminal act wasn’t foreseeable because there wasn’t proof of prior substantially similar criminal acts on or near the apartment complex. The lower court heard oral arguments on motions. It denied the motion for summary judgment on the premises liability claim. It found there was a jury question on whether the defendants should’ve foreseen the particular risk presented by the perpetrator.

Published on: August 22, 2019

Can Georgia Parents Be Held Responsible For Their Daughter’s Accident?

By Stephen M. Ozcomert

There are different theories under which parents can be held vicariously (indirectly) liable for their child’s negligence while driving including the family purpose doctrine and respondeat superior. In a recent Georgia appellate decision, the court considered a Georgia car accident in which one driver sued a second driver for negligence and her parents for vicarious liability. The drivers crashed into each other when the defendant was 28 and living with her parents. The defendant co-owned the car she’d been operating with her mother. Her mother had co-signed for a loan so that the defendant could get the car.

The car insurance policy was in the names of the parents, but the defendant provided the father with the money for the loan payments and reimbursed her father for the insurance premiums. She paid for gas and maintenance and had sole possession of the vehicle’s keys. Her parents didn’t have any say in whether she operated the vehicle. She worked for her father’s company, but at the time of the accident she was driving to go volunteer and wasn’t acting as her father’s agent.

The mother and father filed a motion for summary judgment on the vicarious liability issue. The father argued he didn’t have any ownership of the car, and the mother argued she didn’t have authority or control. The plaintiff argued that there were issues of material fact on whether the parents could be held responsible under respondeat superior or the family purpose doctrine. The parents’ motions were denied.

Published on: July 25, 2019

Injury from a Defective Ladder at a Georgia Jobsite

By Stephen M. Ozcomert

It can be difficult to trace and prove liability if you are injured while using someone else’s tools on another’s property in Atlanta. Sometimes a defendant brings a motion for summary judgment and it is crucial to retain an experienced attorney soon after being injured so that all appropriate evidence can be gathered to build your case. In a recent Georgia appellate case, a plaintiff sued a contractor after falling from a ladder that was allegedly defective. The lower court denied the contractor’s motion for summary judgment, in which it claimed the plaintiff hadn’t come forward with proof to generate a jury question about whether it had actual or constructive knowledge of the ladder’s supposedly defective condition or that it owed the contractor a duty to give a safe working environment. The contractor also argued that undisputed proof showed the plaintiff hadn’t used ordinary care for his own safety.

The contractor reportedly had a single owner and no other employees. The owner would subcontract most jobs his company had been hired to perform. The case arose when a company hired the contractor to repair a damaged wall at a cell phone store. This job was contracted to another, and that subcontractor hired the plaintiff and another man to help him. At their depositions, the plaintiff and other man testified that before they went to the job at the cell phone store, they stopped at the subcontractor’s workshop to pick up materials to do the job. The subcontractor put items into the trailer. These items included the ladder; there were no other ladders inside the trailer. They all drove with the trailer for 3 hours to get to the job site.

The men started work at the Verizon store at night once the store closed. The men took the ladder into the store from the trailer. Two of the men used the ladder without a problem, but neither went higher than the second run. One of the men checked to make sure the braces on the ladder were locked. He thought the ladder looked old but not dangerous.

Published on: January 3, 2019

Georgia Appellate Court Allows Plaintiff to Proceed Against a Maintenance Company

By Stephen M. Ozcomert

Generally, a business owner owes a nondelegable duty of care to an invitee for the purposes of a Georgia premises liability case. However, this nondelegable duty is inapplicable to an independent contractor. In a recent Georgia appellate decision, the plaintiff claimed that a company was responsible for reporting dangers in a common area where he fell in an open water meter and thereby spilled hot oil on himself. The plaintiff was told to drain hot oil from a fryer at the restaurant where he worked. There was a problem with the filtration system inside the restaurant, and so the plaintiff drained the oil into a vessel and took it out of the restaurant and into the shopping mall where the restaurant was located.

In the back lot, he stepped into an uncovered water meter opening. He spilled the oil onto himself and suffered third degree burns on his body and face. He sued the restaurant, its owners, and the property owners on a theory that the defendants had failed to appropriately inspect and maintain the premises. One of the property owners filed a third party complaint against another company claiming it was responsible for maintaining the common area of the shopping center based on a service agreement. The plaintiff amended his complaint to add a claim against the company.

The lower court granted summary judgment to the plaintiff’s employers since workers’ compensation barred his lawsuit. His claims against the property owner stayed pending. The property owner had entered into a contract with a company to sweep the grounds of the shopping mall and report problems. The agreement specified that even if the company adhered to special instructions, they wouldn’t relieve him of the sole responsibility to keep safe and efficient conditions at the property. The company agreed it was familiar with performing all the work necessary to fully adhere to the agreement and would assume responsibility and liability for all services.

Published on: November 15, 2017

Georgia Court of Appeals Finds City Did not Have Constructive Knowledge of Road Defect

By Stephen M. Ozcomert

While many accidents are caused by negligent or reckless drivers who fail to take adequate precautions on the road, this is not the only reason that accidents occur. Foreign objects, obstructions, dangerous weather, and other unanticipated conditions can also cause automobile accidents. While many of these may be chance mistakes, occasionally defects in road conditions or signage arise that could have been properly addressed and prevented had the proper parties had notice of these defects. A recent case before the Georgia Court of Appeals considers whether a city had just such a defect in its roads, and whether it had sufficient knowledge of the defect such that it should have previously addressed it.

In this Georgia car accident case, J.B. was driving in the city when his car hit an area of broken pavement over a manhole. According to J.B., the hole in the pavement was so large that it caused his vehicle to veer out of control and into oncoming traffic. J.B. struck a vehicle headed in the other direction head-on, causing severe injuries. J.B. sued the City of Macon for his injuries and damages resulting from the collision, alleging that the City should have known about the damaged road around the manhole and should have addressed it, and that their negligent failure to do so caused his injuries. The City responded by filing a motion for summary judgment, arguing that J.B. had failed to provide actual evidence that the City had notice of the damaged road and could have repaired it prior to his accident. In response to this motion, J.B. produced pictures of the damage, taken two weeks after his accident, and argued that the damage to the road was such that the City should have had constructive notice of it. The trial court agreed and denied the motion. The City appealed.

On appeal, the City argued that the photographs produced by J.B. were not sufficient evidence of constructive notice because they did not provide any indication as to how long the road had been damaged. Under Tennessee law, the City has constructive knowledge of damage or a defect when the defect has existed for a long enough period of time that notice of the defect can be inferred. Evidence of constructive knowledge must be such that a jury could reasonably believe that the defect had been around long enough that the City should have had notice of it.

Published on: October 16, 2017

Georgia Court of Appeals Upholds Fireman Rule to Dismiss Claim

By Stephen M. Ozcomert

Public officers such as firemen, police men, and emergency responders must frequently put themselves in a position of possible danger to do their job. While protecting the public, they may encounter dangerous conditions that they must address, and they may be injured in doing so. Under Georgia law, these public officers cannot sue other individuals for injuries they incur while dealing with obviously dangerous or negligent situations. For instance, a fireman cannot sue a homeowner if he is injured due to the homeowner’s negligence while fighting a fire. These are risks that are part of the job. Sometimes this situation arises in an Atlanta car accident case as well.

A recent case illustrates this point. T.K. was a police officer with the Baker County Sheriff’s office. He was called out to deal with a wreck that had occurred on the road. Earlier that day, an employee of Watson Used Cars (“Watson”) was mowing the lawn when he accidentally blew grass clippings out onto the road. Later, it started to rain, and while R.L. was driving down the wet road and over the clippings, his vehicle spun out of control and landed in a ditch. He called 911, and T.K. responded.

T.K. and another officer quickly drove to the scene. As they were approaching, they began to slow down. T.K. did not notice the clippings as he came up to the scene of the accident, and when he began to brake, his own vehicle slipped on the grass clippings and spun out of control, striking a tree. T.K. was severely injured and placed on disability leave. T.K. sued Watson for negligence, alleging that the grass clippings that were negligently blown onto the road caused his injuries.

Published on: August 15, 2017

Georgia Court Finds Sufficient Evidence of Constructive Knowledge To Survive Summary Judgment

By Stephen M. Ozcomert

Many negligence cases turn on the question of whether a defendant, like a property owner, had sufficient actual knowledge of a hazard on his or her property, such that something should have been done to correct it. For instance, a plaintiff may allege that the defendant saw the hazard or that the hazard was reported directly to the property owner. While evidence often focuses on actual notice, it is important to remember that actual notice is not the only standard for liability. Property owners can also be held liable if they had constructive notice, or should have known that a hazard existed. A recent case in the Georgia Court of Appeals illustrates this standard.

In this Georgia personal injury case, P.D. sued Rainbow Stores, USA, after she stepped on an anti-theft sensor pin while visiting a store in Georgia. The pin was on the floor while P.D. was shopping and pierced her sandal when she stepped on it, leading to nerve damage in her foot. At the time of the injury, there were multiple employees on the store floor, some of whom were attaching sensor pins to pieces of clothing. The evidence uncovered during discovery showed that neither P.D. nor the other employees noticed the sensor pin at the time that P.D. stepped on it, so they did not have actual knowledge of the hazard. Based on these facts, the trial court granted Rainbow’s motion for summary judgment and dismissed the case. P.D. appealed.

On appeal, P.D. argued that while Rainbow did not have actual knowledge of the hazard, it did have constructive knowledge. P.D. pointed to testimony establishing that shoplifting was a very serious problem at Rainbow and that sensor pins were regularly attached to all clothing at the store. Employees were permitted to attach sensor pins in the back stockroom or on the store floor, and the company was aware that sensor pins falling on the floor of the store, where they could pose a danger to customers, was a problem. This happened due to employee errors and efforts by potential shoplifters to pry the sensors off clothes and discard them on the ground. To try to protect against this problem, Rainbow instructed its employees to sweep the floors each morning and each evening at closing.

Published on: July 13, 2017

Georgia Defendant’s Request for Change of Venue Denied By Appeals Court

By Stephen M. Ozcomert

One of the fundamental questions that must be resolved at the start of every lawsuit is where is the proper forum for a lawsuit to be brought. Plaintiffs may not simply bring a case anywhere they choose. Instead, the court hearing a lawsuit must have some logical connection to it, most often that the incidents giving rise to the lawsuit occurred there or that the defendants reside in that jurisdiction. A recent case before the Georgia Court of Appeals considered whether a defendant may request a change of venue to the county where he resides, when the lawsuit is brought in the place of the accident.