The Georgia Supreme Court recently held in Georgia Farm Bureau Mutual Insurance Co. v. Smith et al., No. S15G1177 (Ga. March 21, 2016), that lead paint unambiguously qualifies as a pollutant and that personal injuries from ingesting the paint were excluded from coverage by the plain language of the commercial general liability (CGL) policy’s absolute pollution clause.

In this case, Amy Smith, individually and as next friend of her daughter, sued her landlord, Bobby Chupp, for injuries her daughter sustained after ingesting lead paint. The rental home was insured by Chupp under a CGL policy issued by Georgia Farm Bureau Mutual insurance Company. Georgia Farm Bureau argued the policy’s absolute pollution exclusion clause excepted coverage.

Pollution exclusion clauses were originally developed by insurers as a response to environmental regulations enacted by Congress in the 60’s and 70’s and were directed specifically at environmental pollutants. These clauses were later broadened to exclude pollution beyond the natural environment to pollutants originating from places such as the rental property at issue in this case. The broadened clauses are known as “absolute exclusion clauses.”

Georgia courts have repeatedly upheld such clauses and found they extend beyond traditional environmental pollution to include for instance, carbon monoxide leaking from a furnace in a rental home, asbestos released from floor tiles during renovation, and smoke emanating from the premises. Importantly, Georgia courts enforced absolute pollution exclusion clauses without requiring the specific pollutant to be explicitly identified in the policy.

In the Smith case, the Georgia Supreme Court looked to the plain language of the policy and found lead paint to be unambiguously qualified as a pollutant as defined in the policy, even though it was not specifically named in the policy. The policy language upheld by the Georgia Supreme Court and which should be kept in mind when drafting absolute pollution exclusion clauses is as follows:

This insurance does not apply to:
(f) Pollution (1) “Bodily injury” or “property damage” arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants: (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured

Pollution was defined as “any solid, liquid, gaseous or thermal, irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.”

The Smith case was a big win for Georgia insurers and further fortified that the plain language of the policy controls policy coverage.

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.

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.

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 early 90’s, the Georgia General Assembly recognized that because of the scope of the State government’s responsibilities, it could potentially face tremendous financial exposure if subjected to unlimited tort liability. Consequently, the General Assembly enacted the Georgia Tort Claims Act (“GTCA”) which struck a balance between the two: a limited waiver of sovereign immunity. “The stated intent of the [GTCA] is to balance strict application of the doctrine of sovereign immunity, which may produce ‘inherently unfair and inequitable results,’ against the need for limited ‘exposure of the state treasury to tort liability.'” Norris v. Ga. Dept. of Transp., 268 Ga. 192, 192 (1997). 

As a prerequisite to filing suit, the GTCA provides that no tort action can be filed against the State without first providing ante-litem notice within one year after the underlying incident. O.C.G.A. §50-21-26(a). The pre-suit notice must include the name of the state entity the claim will be asserted against, the time and place of the event from which the claim arose, the nature and amount of the loss suffered, and the acts or omissions that allegedly caused the loss. O.C.G.A. §50-21-26(a). The purpose of the ante-litem notice requirement is to give the State the opportunity to investigate the claim, evaluate the claim, and hopefully, facilitate settlement before a lawsuit is filed.

In July, we blogged about recent Georgia appellate rulings interpreting the ante-litem notice requirement. SeeSusan J. Levy, Esq. and Linda Yu, Esq., Georgia Supreme Court to Weigh in on Amount of Loss Requirement for Ante-Litem Notices to the State, Georgia Insurance Defense Lawyer, July 2, 2014, https://www.georgiainsurancedefenselawyer.com. Specifically, we discussed the 2013 ruling of the Georgia Court of Appeals which upheld the validity of an ante-litem notice despite the claimant’s failure to include the amount of the loss claimed. Myers v. Board of Regents, 324 Ga. App 685 (2013). In Myers, the plaintiff stepped on the edge of a pothole in a parking lot at Dalton State College and sustained left ankle injuries for which she received emergency medical treatment, orthopedic treatment, and physical therapy.

Myers sent ante-litem notice to the State approximately three months after the incident. In her notice, Myers stated that the amount of her loss was “yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” Lawyers for the State challenged the adequacy of the notice. The Georgia Court of Appeals refused to dismiss the case, however, finding that since Myers was still treating at the time her ante-litem notice was sent, she could not reasonably quantify the amount of her damages. In doing so, the Court of Appeals reasoned that a hyper-technical adherence to the statutory language would have barred the plaintiff’s recovery, and therefore, would not have advanced the purpose of the GTCA. The Georgia Supreme Court disagreed. Bd. of Regents of the Univ. Sys. of Ga. v. Myers, 2014 Ga. LEXIS 768 (Oct. 6, 2014).

In the 6-1 decision penned by Justice Carol Hunstein earlier this month, the High Court found that Myers could have provided the amount of her medical expenses known at the time of her ante-litem notice and simply stated that she was still undergoing treatment. Justice Hunstein further wrote that “[t]he function of the ante-litem notice is not to ‘bind’ a plaintiff to a certain amount, but to provide notice to the State of the magnitude of the claim, as practicable and to the extent of the claimant’s knowledge and belief” at the time of the notice.”

In Myers, Supreme Court upheld the legislative mandate that claimants include the amount of loss they have allegedly suffered in their ante-litem notice prior to filing suit against the State. Simply put, the Court held that the GTCA means what it says.

The topic of apportionment is no stranger to our blog; we have written about the subject on several occasions. The Court of Appeals’ July, 2014 decision on the issue of apportionment, Zaldivar v. Prickett, flatly denies defendants the opportunity to ask the jury to apportion damages to a plaintiff’s employer when the employer allegedly negligently entrusted a company vehicle to plaintiff. 2014 Ga. App. Lexis 552, No. A14A0113, July 16, 2014.

In Zaldivar, plaintiff and defendant got into a left-turn accident in an intersection and both parties blamed each other for causing the accident. Plaintiff was driving his company vehicle at the time of the accident and defendant alleged that the plaintiff’s employer had negligently entrusted that vehicle to plaintiff, given that it had received three anonymous phone calls complaining about plaintiff’s driving. Before trial, defendant filed a notice of non-party fault, alerting plaintiff and the court that it would ask the jury to consider the fault of plaintiff’s employer –in addition to any fault on the part of defendant– when determining who was responsible for plaintiff’s damages. Plaintiff filed a partial motion for summary judgment on the issue, arguing that the jury should not be allowed to consider plaintiff’s employer’s fault at all. The trial court agreed and defendant appealed before the trial began.

The trial court’s decision was affirmed in the Court of Appeals. The Court explained that under the facts of the case, plaintiff’s employer did nothing to contribute to plaintiff’s damages; it did not breach any duty to plaintiff or proximately cause his injures. Thus, the jury would not be permitted to consider the fault of the employer. The Court’s reasoning seemed to leave open the possibility of apportioning damages to a plaintiff’s employer for negligent entrustment under a different set of facts, yet the Court went on to announce a blanket rule: “[W]e conclude that [the apportionment statute] does not permit the defendant in a motor vehicle personal injury case to include the plaintiff’s employer as a non-party against whom fault can be assessed under the theory of negligent entrustment.” Id. at *8. The Court ultimately concluded that plaintiff’s own negligence would break any causal connection between the employer’s negligence and plaintiff’s damages, therefore making it inappropriate for the jury to consider any fault on behalf of the employer.

Judge Branch wrote a strong dissent, drawing attention to the plain language of the apportionment statute, which discusses the “fault” of a non-party, and specifically separates “liability” as an entirely different legal concept. O.C.G.A. § 51-12-33(f). The statute allows the jury to assign a percentage of fault to a non-party without imposing any legal liability. Id. The dissent also points out the inequity of the majority rule: if the employee had been sued by the other driver, the employee would be permitted to include this employer on the verdict form to reduce his personal liability. Similarly, if the other driver had sued the employee, that driver could also add the employer as a defendant and sue the employer for negligent entrustment. Under the majority rule, although the case involves the same accident and same parties, the fault of the employer cannot always be considered by the jury.

It is foreseeable that a defendant in a similar case may challenge the Zaldivar decision if there are significant facts to support the allegation that a plaintiff’s employer contributed to plaintiff’s damages by negligently entrusting the vehicle to him (e.g. employer was aware of employee’s multiple prior DUI convictions, but still allowed him to drive the company vehicle). However, for the time being, a jury cannot consider whether a plaintiff’s employer was partially at fault for plaintiff’s damages due to its negligent entrustment of the company vehicle to plaintiff.

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 Georgia, front seat passengers are required to use a seatbelt under most circumstances. O.C.G.A. §§ 40-8-76.1(b) and (c). Even so, under current Georgia law, when an individual is injured during an automobile accident, the fact that he was not wearing a seatbelt is not admissible to show that he caused or contributed to his own injuries. O.C.G.A. § 40-8-76.1(d). From the defense perspective, the law creates an “unfair” burden on the driver responsible for the accident by not allowing him to show the jury that the plaintiff may have made his injuries worse by choosing not to wear a seatbelt, even though it is required by law.

Consider the following example:

John and Jessica, both healthy individuals in their mid 20’s, are riding in the front seat of John’s Toyota Camry. John is wearing his seatbelt and Jessica is not. John slows down to stop at a red light. Unfortunately, Erica, the driver of the vehicle behind John, does not see that the light has turned red and hits John’s car square in the rear while driving about 45 mph. John walks away from the accident with muscle soreness and a couple of cuts and bruises. On the other hand, Jessica was thrown forward out of her seat and hit her head very hard on the front windshield. Jessica has serious injuries, including two fractured vertebra in her neck, a broken wrist and a deep facial laceration. John and Jessica both go to the emergency room by ambulance. John is released the same day and ends up with about $2,500 in medical expenses. Due to her serious injuries, Jessica remains in the hospital for approximately three weeks. During this time, she undergoes neck surgery, wrist surgery and plastic surgery to repair the cut on her face. Jessica also requires several weeks of physical therapy for her neck and wrist and will continue to experience pain for many years to come. Jessica will also be at a higher risk for getting arthritis in the future. Jessica’s medical expenses total $250,000 – one hundred times the amount of John’s medical bills.

What if Jessica had been wearing her seatbelt? Would her head have struck the windshield? Would she have broken her neck? Would she have required surgery? Would she have incurred $250,000 in medical bills? Or, would her injuries have been similar to John’s injuries? These are all questions the jury would not be able to consider under current Georgia law. The jury would not hear any evidence that Jessica was not wearing her seatbelt, even though Jessica’s decision likely contributed to the extent of her injuries.

In the upcoming legislative session, the House of Representatives will consider two bills that would modify the current seatbelt statute; HB 504 and HB 532. Each bill allows a party to introduce evidence of an individual’s failure to use a seatbelt if the court finds that (1) the defense was pled before the entry of a pre-trial order, and (2) the front seat passenger is at least 14 years of age. There are a few minor differences in the bills, however. HB 532 requires expert testimony to establish that failure to use a seatbelt contributed to the individual’s injuries, while HB 502 allows the court to make such a finding without the introduction of expert testimony. Additionally, while both bills provide for a reduction of damages to the extent that the failure to wear a seatbelt contributed to the individual’s injury, HB 532 allows the injured individual to recover all of the damages attributable to other parties even if the individual is 50% or more responsible for his own injuries. Typically, this type of claim would be barred by Georgia’s apportionment statute, O.C.G.A. § 51-12-33.

Needless to say, if either HB 504 or HB 532 are signed into law, it would be a great victory for the defense bar. Even so, it is likely that the new law would apply only to accidents that occur after the law’s effective date; therefore, it will take some time for the law to have a real effect on litigation matters.