Immunity

November 21, 2016

Georgia Court of Appeals Addresses Scope of Firearm-Related Tort Immunity

by Christopher Simon

In 2008, the Georgia legislature enacted the “Business Security and Employee Privacy Act,” O.C.G.A. § 16-11-135, which generally prohibits an employer from restricting an employee from bringing a licensed firearm onto the employer’s parking lot. In addition to protecting employees’ right to bring firearms onto business property under certain circumstances, the law immunizes businesses from criminal or civil liability arising from “the transportation, storage, possession, or use” of such firearms. O.C.G.A. § 16-11-135 (e). Although there are numerous exceptions under the Act, liability associated with employee firearm injuries is far more circumscribed than it was previously. For instance, in a recent decision, Lucas v. Beckman Coulter, Inc., the Georgia Court of Appeals affirmed the dismissal of claims against an employer whose employee shot someone else while making a delivery.

The shooting at issue in Lucas occurred on July 10, 2013. On that day, a field-service engineer employed by Beckman Coulter, Inc. (“BCI”), a biomedical testing equipment company, arrived at Albany Area Primary Healthcare (“AAPH”), where the engineer was scheduled to perform maintenance work on BCI equipment located at the facility. Upon his arrival at the facility, which was around 10:00 a.m., the field-service agent observed that the equipment on which he was supposed to perform maintenance was in use and returned to the parking lot to wait. When he returned to the parking lot, the field-service agent saw an AAPH lab technician with whom he was familiar taking a break. The two chatted for a few minutes, and while they were returning inside AAPH, the lab technician mentioned that there had been a spate of car burglaries in the parking lot. This news concerned the field-service engineer, for although it violated BCI policy, he often carried his personal firearm in the company vehicle while making service stops and was worried that it might be stolen. Accordingly, upon hearing this information, the field-service engineer returned to the BCI vehicle to retrieve his gun. Shortly after entering the building, the field-service engineer attempted to clear his weapon, but as he was doing so, the gun discharged, which resulted in a bullet striking the field-service engineer in the hand and the lab technician in the abdomen.

September 2, 2016

Court Reverses Dismissal of Auto Accident Case Against Georgia Forestry Commission

by Christopher Simon

In many of the rural parts of our state, it’s not uncommon for property owners to burn vegetation or other materials on their property. Although these burnings are regulated and are typically performed without incident, they do pose some hazards. Indeed, in a recent decision, Grant v. Georgia Forestry Comm., the Georgia Court of Appeals needed to determine what, if any, liability existed against the Georgia Forestry Commission for an auto accident caused, in part, by smoke from a regulated burning.

The accident at issue in this case occurred in the early morning of March 17, 2011. On the day before, the Georgia Forestry Commission (“GFC”) issued a burn permit to a property owner who lived near Interstate 16 and wished to burn vegetation on his land. At around 3 p.m. that day, the local Chief Ranger of the Bulloch County GFC fire protection unit received notice of a fire on that property. When he arrived, the ranger observed the fire burning out of control and initiated measures to contain and monitor the fire. Among these measures were the posting of smoke/fog warning signs and the placement of local deputies to handle traffic issues. At around 7 p.m. that day, the Chief Ranger determined that the blaze had been contained, although the burned area continued to smoke. The Chief Ranger saw the smoke drifting toward the southeast away from I-16, which was about three-quarters of a mile to the north of the closest part of the burn area, and he reported seeing no visibility issues on either I-16 or another local thoroughfare. The Chief Ranger nevertheless called 911 to provide notice of smoke in the area and directed the the local county sheriff to continue to monitor the situation. At around 5 p.m. that day, a local official for the Georgia Department of Transportation (“GDOT”) also responded to notice of the fire and placed warning signs in both directions on a local state road. The GDOT official returned to the area at 7:45 and reported no visibility issues but left the signs in place.

April 18, 2016

Georgia Court of Appeals Discusses Ante Litem Notice Compliance in Recent Ruling

by Christopher Simon

Lawsuits against the government, either state or federal, often come with a variety of specialized procedural hurdles. In Georgia, among these particular requirements that catch hapless litigants by surprise are the many special notice requirements that preclude a litigant from bringing suit against a state entity unless he or she gives proper notice of the suit. For instance, in a recent decision, Estate of Leonard, the Georgia Court of Appeals affirmed a trial court ruling holding that one unfortunate plaintiff was barred from bringing a tort suit against a county government for failing to adhere to the notice requirements under O.C.G.A. § 36-11-1.

Leonard arose from a collision on January 30, 2012. The plaintiff, an 82-year-old man, was riding on a bus owned by Whitfield County, Georgia. The plaintiff, who was sitting in a wheelchair that was secured by straps specifically designed to hold wheelchair-bound passengers, alleged that when the driver of the bus made a high speed turn, it caused the straps to detach, which, in turn, caused his wheelchair to tip over. As a result of the fall, the plaintiff sustained two broken legs that required surgery. Thereafter, the plaintiff was confined to a managed care facility. The plaintiff’s attorney sent notice to the County Attorney for Whitfield County and then filed suit on January 21, 2014. The county answered the complaint, asserting, inter alia, a defense that the plaintiff did not comply with the ante litem notice requirements provided under O.C.G.A. § 36-11-1. Following discovery, the county moved for summary judgment. The trial court denied this motion for summary judgment, finding that issues of fact precluded a finding that notice had not been accomplished. Following the denial of the motion for summary judgment, counsel for the plaintiff served a copy of the complaint on several of the county commissioners. Nevertheless, the county filed a second motion for summary judgment and included an affidavit from the county attorney stating that at all times material to this action, he had not been authorized by the county commissioners to accept notice of suit on behalf of the county. The trial court granted the motion for summary judgment, and the current appeal followed. During the course of the litigation, the plaintiff died, and the executor of his estate was substituted as the plaintiff.

January 29, 2016

Georgia Court of Appeals Reverses in Auto Accident Decision

by Christopher Simon

Obtaining recovery for physical injuries or property damage resulting from a car accident is often not a straightforward endeavor. Indeed, many drivers involved in car accidents expect to deal with some amount of insurance wrangling or, in more complex situations, litigation. However, as the plaintiff in a recent case before the Georgia Court of Appeals, Guice v. Brown, now realizes, the task can be even more complicated, simply depending on the identity of the other driver.

Guice started with a motor vehicle accident that occurred in Rockmart, Georgia. The plaintiff was driving westbound along Georgia 278 West. At that time, the driver of the other vehicle, a truck owned by the city of Rockmart, was leaving a shopping plaza located near where the driver of that vehicle had been installing stop signs. The driver of the truck had decided to go through the parking lot of the shopping plaza rather than navigating the roads around it. While leaving the plaza, the driver attempted to cut across several lanes of traffic in order to get into the left lane of Georgia 278 West. While attempting to do so, however, the truck driver collided with the plaintiff’s vehicle. The truck driver stated that he did not see the plaintiff’s vehicle prior to the impact and did not know which lane the plaintiff had been using.

September 4, 2015

Georgia Court of Appeals Reverses Trial Court and Dismisses Personal Injury Case against Officer

by Christopher Simon

The scope of police authority in interactions with citizens has been a commonly discussed topic in media coverage in recent months. Although at the forefront of the modern discussion, the use of force is not a novel concept in the law. Indeed, law enforcement use of force is among the more commonly litigated issues in both state and federal court, and as many lawyers know, officers have some immunity from suit. This immunity, official immunity, is an affirmative defense, and the scope of the immunity is almost invariably at issue in cases brought against law enforcement. As demonstrated in the Georgia Court of Appeals’ recent decision in Vidal v. Leavell, the scope of official immunity is quite broad under Georgia law, a reality for which potential litigants should be prepared.

The facts at issue in Vidal occurred on April 23, 2011. On that day, the plaintiff in this case was at an IHOP in Buckhead with a friend. Shortly after being seated, the plaintiff noticed that the defendant in this case, an off-duty police officer hired by IHOP to provide security, approached a booth occupied by a group of young women. The plaintiff said she could not hear what words were being exchanged between the officer and the women but that she did see the officer force himself into the booth and push two of the women into the wall. The officer was attempting to arrest the patrons in the booth, and the plaintiff began to videotape the incident because she believed the officer was acting too aggressively. Another officer arrived and apparently engaged the defendant to halt his interaction with the patrons. The plaintiff testified that she touched the officer so that he would realize she was recording him. The officer then slapped the plaintiff, and the video shows that the plaintiff then took retaliatory swings at the officer. While the second officer held her arms back, the officer punched the plaintiff in the head and then threw her to the floor, dragged her to the door, and handcuffed her. The plaintiff was arrested for obstruction and assault. Other patrons at the IHOP videotaped the incident.

July 14, 2015

Supreme Court of Georgia Rules in K-9 Negligence Suit

by Christopher Simon

In a recent and highly anticipated decision, Eshleman v. Key, the Supreme Court of Georgia addressed an interesting issue regarding the breadth of official immunity doctrine. Specifically at issue in Eshleman was whether official immunity shielded a police officer from liability when her K-9 dog escaped from her yard and allegedly attacked a child. In an unanimous decision, the Supreme Court of Georgia concluded that official immunity did in fact shield the officer from liability.

The police officer at issue in this case is employed by an Atlanta area law enforcement agency as both a police officer and dog handler. As part of her job, the officer is responsible for the care of a police dog. When not on duty, the officer keeps the dog at her home, which is near the home of the plaintiff. The alleged attack at issue occurred in 2011. One day in November of that year, the officer placed the dog in a kennel outside her home but did not adequately secure the kennel. Consequently, the dog absconded from the yard and encountered the plaintiff’s then 11-year-old son. The plaintiff alleged that the dog attacked his son, which caused serious injury to the child. The plaintiff sued the officer, who moved for summary judgment, arguing that official immunity shielded her from liability. The trial court denied the motion, and the Georgia Court of Appeals affirmed the trial court’s denial. The Supreme Court of Georgia, however, reversed.

March 1, 2015

Atlanta Federal Court Rules Officer Immune From Suit Under Discretionary Analysis

by Christopher Simon

Although the courthouse typically serves as a venue for resolving legal disputes, occasionally it can be the setting for their creation. For instance, the Atlanta Division of the United States District Court for the Northern District of Georgia recently addressed liability arising from a scuffle between an attorney and a Fulton County Sheriff’s Deputy at the entrance to the Fulton County Courthouse in its ruling in West v. Davis.

The events leading to this litigation occurred on December 9, 2010, when the plaintiff in this case, an attorney, arrived at the Fulton County Courthouse to represent a client in a domestic relations status conference. When the plaintiff arrived, she placed her belonging in a bin and proceeded through the metal detector, which sounded as she passed through. A security officer, the defendant in this action, approached the plaintiff and told her to remove her jacket. The plaintiff objected, saying that the jacket was part of her suit and that removing it would expose her undergarments. The Fulton County Sheriff’s Office, which provides security to the courthouse, has an unwritten policy that members of the public need not remove jackets at the metal detector and that officers are to use discretion in determining whom to ask to remove their jackets.

The defendant told the plaintiff that if she failed to comply and remained in the courthouse, she would be arrested. Thereafter, the plaintiff asked to speak to a supervisor and stated that the defendant put his hands on his handcuffs and glared at her menacingly. The plaintiff took out her cellphone and called her husband and the client with whom she was supposed to meet. The defendant then approached the plaintiff and told her to get off her phone. Rules do prohibit cellphone use in the area near the magnetometer and x-ray machines at the courthouse. The plaintiff states that when she refused to comply, the officer “grabbed her hand, squeezed it, jerked it towards him, wrenched it back and forth, and then forcibly removed the cell phone and flung it into her purse.” The defendant, however, maintains that he took her phone without grabbing her hand or using force. Shortly thereafter, the supervisor arrived and permitted the plaintiff to enter the courthouse after directing the defendant to use a metal wand detector in lieu of having the plaintiff remove her jacket.