In a recent pair of companion cases, Avis Rent A Car System v. Johnson, 352 Ga.App. 858 (2019) and Avis Rent A Car System v. Smith, 353 Ga.App. 24 (2019), the Georgia Court of Appeals reversed massive jury verdicts totaling $54M on the grounds that an Avis employee’s theft of a rental vehicle cut off Avis’s liability for the employee’s subsequent crash that injured the bystander plaintiffs.

The two plaintiffs’ respective cases arose from the same incident where an Avis employee stole a rental SUV after hours from a downtown Atlanta branch and then later fled from the police before crashing into a brick wall where both plaintiffs were sitting. The plaintiffs suffered significant injuries and filed suit against Avis, a regional security manager, the operator of the Avis location, the operator’s owner, and the operator’s employee who stole the vehicle.

At the trial court level, the juries found that Avis was vicariously liable for the employee’s negligence in causing the crash and, in the Smith case, found that Avis was also vicariously liable for the fault that was apportioned to the operator and its owner. Avis filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial; the trial court denied the motions.

Avis appealed the holdings and last year the Georgia Court of Appeals reversed the verdicts and held that only the car thief employee could be held liable for the plaintiffs’ injuries. In both appeals cases, the Court of Appeals held that the at-fault employee’s criminal acts – namely, his after hours theft of the vehicle and high-speed flight from the police some five hours later – were intervening acts that severed Avis’s liability for the incident. The Court further recognized Georgia’s long line of appellate decisions holding that a car thief’s criminal acts were the sole proximate cause of plaintiffs’ injuries in those cases 

Further, in the Smith case, the Court found that Avis, the operator, and its owner could not be liable for negligent hiring and retention of the car thief employee because the employee was not acting under the color of his employment when the theft and subsequent accident occurred.

However, the two cases did not end at the Court of Appeals, as the Georgia Supreme Court granted certiorari and heard oral argument last December. The Supreme Court’s pending holding could very well dramatically alter the landscape of vicarious liability law in Georgia, so we encourage you to keep an eye on this space for further analysis once the Supreme Court issues its ruling.

Property owners and their insureds take note: a Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building.

In Duff v. Bd. Of Regents of the Univ. Sys. Of Georgia, (hereafter, the “Trial Court Order”), the Plaintiff, a student at Georgia Perimeter College (“GPC”), exited a classroom and slipped and fell on rainwater tracked in by hundreds of students entering the building. It was undisputed that it had not been raining when Plaintiff first entered the building or that she had seen any rain on the floor on her way to class.

the Plaintiff testified that she slipped on “standing water,” but could not describe the depth, width, or quantity of water. She also testified that her clothing was wet when she got up.  A professor who assisted her after the fall testified that Plaintiff fell on a very thin layer of water analogous to the amount of water left after you take “a wet paper towel and wiped it across a surface.” The professor also testified that at the time she fell, students were standing outside of the classroom waiting to get in wearing wet clothes and carrying dripping umbrellas.

The trial court granted GPC’s motion for summary judgment, relying on Georgia precedent that rainwater is not in and of itself a hazardous condition unless plaintiff can demonstrate that there is an “unreasonable accumulation of water.”  Relying on a 2013 Court of Appeals’ case (Season All Flower Shop, Inc. v. Rorie, 323 Ga. App. 529), the trial court also held that summary judgment was appropriate even though the Plaintiff fell in an interior hallway as opposed to an entrance. Specifically, quoting the Appeals Court in Season All Flower, the trial court held that “‘water is apt to be found in any area frequented by people coming in from the rain outside, and not just at the ‘threshold’ of an entrance door.’” 

In a decision that must not be taken lightly by property owners and their insureds, the Court of Appeals reversed. The Court held that Plaintiff’s self-serving testimony regarding “standing water” (despite her inability to describe the dimensions of that water) created a question of fact and precluded summary judgment. Relying on Dickerson v. Guest Svcs. Co., 282 Ga. 771 (2007), the Court of Appeals wrote that although it is “common knowledge that the ground outside gets wet on rainy days, it cannot properly be applied to a portion of an interior space where [people] have no reason to expect water to accumulate on the floor.”

Our insured property owners and managers must take note of the Court of Appeals’ decision in Duff, as it appears to create a duty to continuously monitor during rain, particularly in buildings with heavy foot traffic. As the trial court warned, “[a] departure from the rainy day case law here [could] result in premises owners having to ‘continuously mop during a shower’ each time it rains simply because it is possible that one [person] does not know it is raining outside. This result would essentially eviscerate the protections that are afforded to premises owners on rainy days.” 

At the very least, the Court of Appeals’ decision will make it much more difficult for property owners to get summary judgment in cases where plaintiffs slip in rain tracked into a building, regardless of whether management places mats at the entrance. It all comes down to location. Business owners may feel pretty confident in his/her chances of getting out on a motion for summary judgment when a plaintiff’s slip and fall occurs at the entrance of the premises on a rainy day.  However, after Duff, plaintiffs will have an easier time creating a question of fact when they slip and fall on rain tracked into the interior of the building, which would preclude summary judgment.

In Hughes v. First Acceptance Ins. Co. of Georgia, Case No. A17A0735 (Ga. Ct. App., Nov. 2, 2017), the Georgia Court of Appeals held that a jury must decide whether two inexplicit letters sent simultaneously to the defendant insurance company’s counsel constituted a 30-day settlement demand for liability coverage limits. The result of this case underscores the extreme caution and diligence a liability insurance carrier must exercise in reviewing any communications whatsoever from Plaintiff’s attorneys.

The case arose from a five-vehicle accident in which the insured driver was killed and others injured, including Jina Hong, a minor who sustained a traumatic brain injury. Evidently, liability on the part of the insured driver was clear. The driver was insured by First Acceptance with minimum limits of $25,000 per person, $50,000 per accident. The attorney for the minor and the minor’s mother contacted First Acceptance and stated that “he looked forward to working with the insurer to resolve the matter and that he would forward a settlement demand when his clients had finished treatment.” Some months later, the attorney for First Acceptance wrote the attorneys for all of the injured parties, including Jina Hong, stating that he wanted to schedule a settlement conference.

Four months later, Jina Hong’s attorney faxed two letters dated June 2, 2009, to the attorney for First Acceptance. The first letter stated they “were ‘interested in having their claims resolved within your insured’s policy limits, and in attending a settlement conference.’” (Emphasis added.) The letter mentioned the plaintiffs’ uninsured motorist coverage, that the amount paid from available liability coverage must be determined, and “[o]nce that is determined,” they would need to execute a limited liability release. The letter went on to state:

In fact, if you would rather settle within your insured’s policy limits now, you can do that by providing that release document with all the insurance information as requested in the attached [second letter], along with your insured’s available bodily injury liability insurance proceeds.

The second letter simply asked that First Acceptance provide the insurance coverage information within 30 days, and that “’any settlement will be conditioned upon the receipt of all the requested insurance information.”

On July 10, 2009, thirty-eight days after the two letters, the plaintiffs filed suit against the estate of the deceased insured driver. The plaintiffs’ attorney then wrote the attorney for First Acceptance to inform him that a clear 30-day offer to settle within policy limits had been made, there had been no response, and now the offer to settle was withdrawn. Now scrambling, the attorney for First Acceptance quickly scheduled a settlement conference, but counsel for the minor plaintiff did not participate. The case went to a jury trial, and the court entered judgment in favor of the minor plaintiff for $5,334,220.

Robert Hughes, the administrator of the insured’s estate, subsequently sued First Acceptance for negligent and bad faith refusal to settle. Hughes sought the excess amount of the underlying judgment, attorney’s fees, and punitive damages. Both sides moved for summary judgment. The trial court granted summary judgment in favor of First Acceptance and against Hughes. The Court of Appeals affirmed the denial of Hughes’ motion, and affirmed the grant of summary judgment in favor of First Acceptance as to the claims for attorney’s fees and punitive damages. The Court held that, although liability for attorney’s fees and punitive damages are generally questions for the jury, Hughes essentially abandoned his claim for attorney’s fees, and there was an absence of evidence that First Acceptance engaged in willful or wanton conduct which would authorize punitive damages.

Incredibly, however, the Court also held that a jury must decide whether the two letters sent by the plaintiffs’ attorney constituted a time-limited settlement offer, and whether First Acceptance reasonably responded to it. Quoting Cotton States Mutual Ins. Co. v. Brightman, 276 Ga. 683 (2003), the Court laid out the familiar legal standard applicable in these cases: “’An insurance company may be liable for the excess judgment entered against its insured based on the insurer’s bad faith or negligent refusal to settle a personal claim within the policy limits,’” and ‘”the insurer is negligent in failing to settle if the ordinarily prudent insurer would consider choosing to try the case created an unreasonable risk.’” The Court noted that whether the insurer was in fact “ordinarily prudent” or took an “unreasonable risk” is usually a question for the jury. The Court further noted that it was immaterial that First Acceptance was faced with multiple claims and could not know whether the claims could be settled within its limits, because a liability insurer may in good faith settle with one or more claimants to the detriment of the others. With no further analysis, however, the Court simply concludes that “[i]t is apparent from a review of those letters that they, at the very least, create genuine issues of material fact as to whether Hong offered to settle her claims within the insured’s policy limits and to release the insured from further liability, and whether the offer included a 30-day deadline for a response.”

The clear lesson from this unfortunate result is that claims professionals and counsel for insurers must carefully scrutinize every communication received from plaintiffs’ attorneys. Any mention of a deadline should immediately raise a red flag. Where any ambiguity exists, get clarification. A timely response, even if it is just a request for the attorney to say what he means, is better than no response at all.

On July 28, 2015, the Georgia Court of Appeals reversed itself on the issue of whether lay testimony as to speed, based only on the experience of impact, constituted admissible evidence to defeat summary judgment.Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015).

On May 3, 2011, Plaintiffs were driving on Custer Avenue, attempting to cross Moreland Avenue, when they crashed into the front of a DeKalb County fire truck entering the intersection on Moreland Avenue, en route to an emergency call, with lights and sirens activated, and the air horn sounding.

DeKalb County, represented by Levy & Pruett, filed a Motion for Summary Judgment on the grounds that there was no evidence that the firefighters breached any duty or that any alleged breach constituted the proximate cause of this collision. The trial court agreed and entered summary judgment for DeKalb County on April 1, 2014. Plaintiffs then appealed the trial court’s Order. Surprisingly, on June 17, 2015, the Court of Appeals reversed the trial court’s grant of summary judgment because “a genuine issue of material fact exists as to whether the fire truck proceeded past the red signal ‘only after slowing down as may be necessary for safe operation’ OCGA § 40-6-6 (2), and ‘with due regard for the safety of all persons.'” Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015)

Specifically, the Court relied on the Plaintiff passenger’s “guesstimate” that the fire truck was traveling 60-70 mph at the time of impact, based only on how the impact felt, and reasoned that there was a question of fact as to whether the fire truck slowed down before entering the intersection.

On June 25, 2015, we filed a Motion for Reconsideration on behalf of the County, arguing that the Court of Appeals’ opinion that an individual can testify to the speed of a vehicle based only her subjective experience of the collision was without precedent. Moreover, we argued that the Court failed to address the case of Boatner v. Sims, 115 Ga. App. 284 (1967), which specifically found that evidence of speed with nothing more than the witness’s self-serving testimony based on experiencing the impact, was inadmissible.

A month later, on July 28, 2015, the Court of Appeals issued a second opinion granting in full DeKalb County’s Motion for Reconsideration, a rarity in appellate procedure. In a complete reversal, the Court found that Plaintiff’s “testimony that the car was traveling 60 to 70 mph could not be rationally based [only] on her perception of how the impact felt” because she was not an accident reconstructionist and had never before been hit by a car traveling at that speed. Brown v. DeKalb County, et al., A15A0265 and Little et al. v. DeKalb County et al.,A15A0267, 1-9, 7 (Ga. App. July 28, 2015). On reconsideration, the Court of Appeals relied on Boatner v. Sims, emphasizing the lack of a rational link between Plaintiff’s opinion based only on experiencing the impact and the speed of a vehicle she never saw.

The Georgia Court of Appeals has recently decided that the statements contained within a police report are admissible as a business record, even without the officer’s personal testimony. Maloof v. MARTA, 330 Ga. App. 763 (2015). The facts underlying this case are that an elderly woman, who was riding in a wheelchair in a MARTA para-transit bus, fell out of her wheelchair and fractured her leg when the bus came to a sudden stop. Although she died a few months later, her Estate sued MARTA for negligence. MARTA introduced the police accident report as part of its case. Plaintiff objected on the grounds that the report contained inadmissible hearsay-namely the police officer’s statements.

Surprisingly, the Court of Appeals reversed course and allowed the officer’s statements into evidence. Specifically, the Court in Maloof found that as long as the statements contained in the report were observations made by the officer him or herself, the report was admissible.

Opinions or observations of witnesses contained in the accident report, for example, an eyewitness who tells the officer that the defendant ran the red light, still constitute inadmissible hearsay. However, anything contained in the report that constitutes a personal observation of the officer, for example, whether he or she observed skid marks, the weather conditions, etc. will now be admissible even if the officer is not present in Court.

The Maloof decision appears to cut both ways. It is now easier for parties to introduce police accident reports into evidence as business records. Practically speaking, however, these reports often contain errors that will need to be corrected by the party opposing its admissibility and the investigating officer may still be subpoenaed to appear and defend the report.

The Court of Appeals recently reversed a trial court’s ruling granting summary judgment on the grounds that a question of material fact existed where defendant-church may have “set the stage” for the accident. In Henderson v. St. Paul Baptist Church, 328 Ga. App 123 (2014), Plaintiff, a visitor of St. Paul Baptist Church fell into a hole while walking from her car to the Church and suffered a fractured leg. Despite Plaintiff’s knowledge that cars were typically parked across the street (though there was no designated parking lot), she and her husband parked beside the Church property: The Church’s pastor motioned for them to park there, behind his own vehicle. In walking towards the church building, Plaintiff chose to take a shortcut and enter through the side entrance. The ground between her car and the entrance was completely covered with pine straw, covering the hole in which she fell.

The trial court granted summary judgment in favor of the Church based on the voluntary departure rule, i.e., the guest deviated from the designated route to the front of the Church and therefore, did not exercise ordinary care for her own safety. However, the appellate court reversed, holding: 1) The pastor who invited them to park behind his own car knew of the hole covered by pine straw but nevertheless, invited them to park there, and 2) The entire area between Plaintiff’s car and the side entrance to the Church was covered by pine straw, leaving her with no other choice but to walk on it. More specifically, the appellate court pointed out that the Plaintiff had satisfied her burden of proving that the Church had actual knowledge of the hole, and thus, the burden shifted to the Church to show that the injury was caused by the Plaintiff’s own negligence. The Church presented evidence that Plaintiff took a shortcut rather than the prescribed route to the front of the building, shifting the burden back to Plaintiff to raise a question as to whether her negligence resulted from the Defendant’s actions.

The Court of Appeals concluded that the pastor’s invitation to Plaintiff and her husband to park closest to the side entrance of the building with knowledge of the hole, as well as the fact that the entire area was covered in pine straw, raised a sufficient question of fact to defeat summary judgment. Analogizing to a case in which a hotel guest suffered injury after walking down uneven steps from a side entrance with a sign that was not illuminated properly, the Court concluded that there may be some evidence that the Church “set the stage” for this accident.

The take-away: property owners should be aware that even when there is evidence of plaintiff’s own negligence, such as deviation from a prescribed path, defendants may still need to prove that they did not set the stage, i.e., in some way entice the guest to the hazard.

In the recent case Pirkle v. QuikTrip Corp., 2014 Ga. App. Lexis 34, the Court of Appeals upheld summary judgment in favor of the Defendant QuikTrip on the grounds that Plaintiff’s evidence of the Defendant’s actual or constructive knowledge of liquid on the floor was speculative at best.

In this case, Plaintiff, Carlos Pirkle, claimed that he slipped and fell on water located next to the checkout counter of the store. Plaintiff’s evidence as to QuikTrip’s actual knowledge of the liquid consisted of witness testimony stating (1) that a store employee placed a bucket and mop to the right side of the checkout counter shortly before Pirkle’s fall, and (2) that another customer had dropped a package of bottled water near the area where Pirkle fell shortly before the incident. However, there were no reports of any spills or liquid on the floor prior to Pirkle’s fall and Plaintiff even testified that he did not recall seeing any water in the area of his fall when he entered the store. The video from QuikTrip’s security camera showed Pirkle walk into the store and several other customers walk in the same area where Pirkle’s fall occurred.

The Court held that Plaintiff’s evidence was speculative, at best, as to what caused Pirkle’s fall and, therefore, did not establish actual knowledge. To rebut Plaintiff’s claims as to constructive notice, QuikTrip produced inspection logs which showed that an employee performed an inspection of the floors every 30 minutes, one having been performed in the specific area of Pirkle’s fall just 8 minutes prior to the incident. The Court held that where the property owner can prove that an inspection occurred “within a brief period” before an invitee’s fall, the inspection procedure will be deemed adequate and reasonable.

The defense of this case was helped in large part by the maintenance of routine inspection records and video surveillance. We should continue to advise our property owner clients of the importance of maintaining such records and how doing so can defeat a plaintiff’s claim that the owner had knowledge of a dangerous condition.

In July, 2013, the Georgia Supreme Court heard oral arguments in Johnson v. Omondi. 318 Ga. App. 787 (2012). Johnson is a medical malpractice case where plaintiffs, the parents of a hospital patient, sued multiple defendants when the patient died after receiving care in the emergency room. The patient had knee surgery and presented to the emergency room eight days later complaining of chest pain. The doctors performed many tests and the patient was sent home after the pain resolved. Two weeks later, the symptoms resurfaced and the patient returned to the emergency room. He later died from a bilateral pulmonary embolism. The trial court granted summary judgment to the doctor on the plaintiffs’ professional negligence claim and plaintiffs appealed.

The Court of Appeals applied a “gross negligence” standard, given that the doctor was providing emergency care at the time of the patient’s death and affirmed the grant of summary judgment to the doctor based on the fact that Plaintiffs could not prove “by clear and convincing evidence that [the doctor] failed to exercise even slight care in treating [the patient].” The Georgia Supreme Court granted certiorari to determine whether “the Court of Appeals err[ed] in its application of the gross negligence standard for emergency room malpractice under OCGA § 51-1-29.5(c).” The Supreme Court is expected to make a decision by the end of the year. The Court’s ruling could narrow the circumstances under which a medical professional is considered to be providing emergency medical services, in which case, the “gross negligence” standard of care may apply in fewer cases in the future. This will be detrimental to healthcare providers, as it would hold them to a higher standard of care in situations that are arguably emergent.