No Pre-Suit Notice Required to Sue Cities for Intentional Acts

In West v. City of Albany, 2017 WL 875033 (Ga. March 6, 2017), the Georgia Supreme Court addressed whether an injured party was required to provide notice of intent to sue a city when the alleged wrongdoing was intentional rather than negligent. In an historic decision, the Court unanimously held that the ante litem (pre-suit) notice required for bringing suit against a municipality applies only to allegations of negligence, not to intentional acts.

The case involved a lawsuit against the City of Albany by an individual who claimed to have been fired pursuant to the Georgia Whistleblower’s Act (O.C.G.A. § 45-1-4). The plaintiff, Ms. West, sued the city for money damages, alleging that she had been the victim of retaliation after she reported financial irregularities in the city’s utility department.

The City of Albany moved to dismiss the lawsuit because Ms. West failed to comply with the pre-suit requirements set forth in O.C.G.A. § 36-33-5 (b). In pertinent part, the statute requires that “[W]ithin six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating…the negligence which caused the injury.” The Court held that the six month pre-suit requirement does not apply to whistleblower cases, because a clear reading of the statute limits the notice prerequisite to negligence cases.

The holding in West is significant because historically, Georgia courts have applied this municipal six month pre-suit notice to claims alleging both negligent and intentional acts. In West, the Court held that the “statute’s plain language demonstrates it applies only to damages caused by negligence, not intentional acts.”

One of the purposes of the ante litem statute is to preserve public funds by limiting municipal exposure for monetary damages. Now that the Court has narrowly interpreted the statute, the Georgia legislature may move to amend O.C.G.A. § 36-33-5 (b) to comport with the manner in which it has long been interpreted: requiring notice for allegations of both negligent and intentional wrongdoing. Otherwise, going forward, plaintiffs need only provide the statutory ante litem notice to municipalities for allegations of negligence.

Six Flag $35 Million Verdict: Possible Expansion of Premises Liability

In 2007, Joshua Martin, then nineteen-years-old, was walking with his brother and a friend from Six Flags Over Georgia to a nearby bus stop, when they were brutally attacked, according to the Athens Banner-Herald. Martin was severely injured by one man who allegedly beat him with brass knuckles and put him in a coma for over a week. Although the bus stop was not on Six Flags property, the four males eventually convicted of the attack on Martin were all seasonal Six Flags employees.

In 2009, Martin sued Six Flags, alleging that the park negligently failed to provide adequate security and negligently failed to keep their premises safe. Six Flags Over Ga. II, L.P. v. Martin, 320 Ga. App. 52 (2013). After a nine-day trial and an interlocutory appeal on an apportionment issue, the Cobb County jury awarded Martin $35 million in damages. The jury apportioned 8% of the award to the four assailants, and the remaining 92%, or $32.2 million to Six Flags. “Six Flags Fights $35M Verdict in Attack Near Park,” Daily Report (July 17, 2015).

Six Flags appealed the case based on the fact that the attack did not occur on Six Flags’ property. Oral arguments in front of the Georgia Court of Appeals were held on July 15. The central issue, according to the Daily Report article, was whether Six Flags could be held liable for an off-site injury; specifically, whether the bus stop constituted an “approach” to the property and whether Six Flags took steps to exercise dominion over the bus stop area.

Georgia law describes an approach as “property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended.” Motel Properties v. Miller, 263 Ga. 484, 486 (1993). One exception to this rule is if the landowner has exerted some “positive exercise of dominion” over a public way (or private property), usually referring to a sidewalk or ramp which is directly connected to the approach.

The remarkably high verdict aside, the Appellate Court’s ruling is significant for its potential to extend a landowner’s liability beyond its physical premises and approaches, or the “the last few steps taken by invitees, as opposed to ‘mere pedestrians,’ as they enter or exit the premises,” to include crimes or injuries off its property. Id. at 486. Should the Court uphold Martin’s argument of off-property liability, this decision will have profound impact on all business owners, large and small.

No Summary Judgment When Defendant Can be Construed to Have "Set The Stage" for The Injury

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.