Articles Posted in Premises Liability

The first few decisions a Georgia personal injury plaintiff makes can be critical to the ultimate success of their case. In a recent Georgia premises liability case before the Court of Appeals of Georgia, the court dismissed the plaintiff’s case as untimely because the plaintiff originally named the wrong party as a defendant. By the time the plaintiff voluntarily dismissed her initial complaint and refiled a complaint naming the correct defendant, the statute of limitations had expired.

The Facts of the Case

According to the court’s written opinion, the plaintiff was injured at a water park. Just a few days before the statute of limitations expired the plaintiff filed a premises liability lawsuit naming “Georgia Department of Natural Resources d/b/a Summer Waves Water Park” as a defendant. Later, the plaintiff voluntarily withdrew that case and refiled a case naming “Jekyll Island State Park Authority, a/k/a Jekyll Island Authority, d/b/a Summer Waves Water Park” as the defendant. The two claims were based on the same injuries. The plaintiff claimed that the subsequent case was a renewal action and that it related back to the date of her original complaint.

The defendant argued that the plaintiff’s case was filed after the statute of limitations, and should be dismissed. The defendant argued that the plaintiff’s second case was not a renewal action because it named a different defendant. The trial court agreed with the defendant, and the plaintiff appealed.

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In a recent Georgia premises liability case before a Georgia appeals court, the plaintiff filed a premises liability claim after she fell at a medical office. Evidently, she was walking next to the lobby desk inside the medical office as she felt something grab her pant leg, causing her to fall. After her fall, the plaintiff saw that a wheelchair was sitting next to the lobby desk.

A desk attendant who helped her up testified that she also saw the wheelchair there when the plaintiff fell, but that it had not been there a few moments earlier when she had walked away from the desk. The medical office argued that the plaintiff failed to present evidence showing that she had tripped over the wheelchair or that the medical office had superior knowledge of that hazard.

Actual and Constructive Knowledge

Under OCGA § 51-3-1, a landowner who invites others onto the property for a lawful purpose is liable for injuries caused by the owner’s “failure to exercise ordinary care in keeping the premises and approaches safe.” In a slip-and-fall case, a plaintiff must prove that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff lacked knowledge of the hazard despite having exercised ordinary care because of the actions or conditions within the owner’s control.

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It is a tough lesson to learn but in Georgia you don’t have a claim for a slip and fall if there are wet floor signs and you still slip and fall. Remember the law does not require stores to be perfect, you just have to give customers a head’s up when there is a hazard like a wet floor. The Court of Appeal recently reaffirmed that when the ruled on a fall at Home Depot. Recently, a state appellate court issued a written opinion in a Georgia slip-and-fall case discussing the state’s distraction doctrine. Ultimately, the court rejected the plaintiff’s claim against the defendant hardware store because the plaintiff failed to notice a hazard that the court determined to be open and obvious.

In Georgia personal injury lawsuits, the plaintiff must prove that the defendant had superior knowledge of the hazard that caused the plaintiff’s injury. This requires the court to determine each party’s relative awareness of the hazard. A plaintiff, however, cannot benefit from exercising ordinary care while on another’s property. Thus, if a hazard is open and obvious and the plaintiff fails to notice it, the plaintiff may be precluded from pursuing a claim against the landowner.

The Facts of the Case

According to the court’s recitation of the facts of the case, the plaintiff was a customer at the defendant hardware store. The plaintiff entered the garden section of the store, and approached an employee to ask where a specific part was located. The employee instructed the plaintiff to follow him, and headed off toward the aisle where the part was located. The plaintiff stepped immediately behind the employee and began to follow him. After a few steps, the plaintiff slipped on pavement that was wet due to the recent watering of the store’s plants. It was undisputed that there were “Caution: Wet Floor” signs in the area.

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Georgia slip and fall cases are all about knowledge. To win one of these cases, the store has to know more about the spill than you do, either because it has been there for a while or because they had employees in the area. The corollary is, if you have reason to know about it, you cannot blame them when you fall. Therefore,  one of the most challenging issues plaintiffs in Georgia slip-and-fall cases encounter is the burden to establish that the defendant’s knowledge of the hazard that caused the plaintiff’s injuries was greater than their own. A recent appellate decision issued by the Court of Appeals of Georgia illustrates the difficulties a plaintiff may face when attempting to establish not only a defendant’s knowledge of the hazard, but also their own lack of knowledge.

The Facts of the Case

The plaintiff was running an errand for her employer, which required her to pick up an item at the defendant’s shop. It was a cold day, and when she arrived, she noticed that there was a patch of partially frozen water at the base of the steps leading up to the front door of the shop. Upon closer inspection, the plaintiff realized that the water was coming from a spigot that had been left open so that it would not freeze in the cold weather.

The plaintiff made her way around the ice and up the stairs into the shop, where she encountered an employee. She notified the employee of the ice, and he suggested she leave out of a different door. However, the employee told the plaintiff not to let anyone else know he had given her permission to exit through the alternate door, because it could get him fired.

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A hunter went out on a piece of rural property and fell down a well and died and then his family tried to sue the land owner because of the hidden well. The Court of Appeals took a hard look at the immunity for hunting statute and rendered an opinion that squarely rebuffs any attempts like this. The Court of Appeals of Georgia issued the opinion in a Georgia premises liability lawsuit discussing the applicability of the state’s recreational-use statute to the plaintiff’s case. The court ultimately held that the defendant landowner was entitled to immunity because the plaintiff’s husband was on his land for the purposes of hunting, which was covered under the recreational-use statute.

The Recreational-Use Statute

Under OCGA § 51-3-20 and OCGA § 27-3-1 (e), a landowner who “gives permission to another person to hunt, fish, or take wildlife upon the land with or without charge” “may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises.”

The Facts of the Case

The defendant leased land to another man who planned on starting up a hunting club. The lease limited the hunting club’s use of the land to hunting purposes only, and, while the lease did not name anyone else in the document itself, the lease did contemplate that there would be others entering the land to hunt.

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In most Georgia personal injury lawsuits, a party is asked for their version of the events several times before the case proceeds to trial. This may be through police investigations, pre-trial interrogatories, or depositions, or even through casual conversations with bystanders. Given the effect that time has on one’s memory, it is not uncommon for a party’s version of events to change slightly over time.

When a party’s story changes, however, courts can be presented with a difficult situation. For example, sometimes under one set of facts, a plaintiff has a strong case, but under another set of facts, the plaintiff’s case is much weaker. This puts the court in the position of determining which version of the events to credit. A recent Georgia premises liability decision issued by the Court of Appeals of Georgia sheds some light on how courts handle these conflicts.

The Facts of the Case

The plaintiff was an office manager at a business that was located in a building owned by the defendant. One day, the plaintiff, who was the first to arrive at the office, slipped on a puddle that had formed near the rear office. As a result of her fall, the plaintiff sustained serious injuries to her back and wrist. The plaintiff filed a premises liability lawsuit against the defendant, claiming that the property was negligently maintained.

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Can I sue a hotel if I slipped and fell in the bath? It used to be that Slip and Fall in hotel bathtub cases were thrown out of court on summary judgment almost every time. In this recent Georgia premises liability case, the court considered a slip and fall and again reiterated that these cases were very weak under the old law. The good news is, any fall after the 2014 law went into effect is analyzed differently. The Statute requires hotels to have a non-slip surface and if they don’t, there is strict liability if the guest slips in the tub. There are still many ways that these cases can fall apart, but the statute has made it much more workable. Here is the analysis under the old case law and example facts.

A hotel guest sustained injuries when she slipped in the shower and fell. She was 65 years old, and she and her adult daughter had come to a hotel in Georgia that the daughter had pre-booked. On the following day, they were planning to visit family. The plaintiff had rheumatoid arthritis, and during check-in she asked for a handicap accessible room or a first floor room. There weren’t rooms like this available, so the woman and her daughter accepted adjacent rooms that were two stories up. It was late, and they couldn’t imagine trying to find a motel at that hour.

The next morning, the woman stepped into the bathtub, which seemed dry and clean. She went in and turned on the water and began lathering herself with the soap. Suddenly, her feet went out from under her, and she fell down. She crawled out of the tub and called her daughter. Her daughter came in to help her dress. They checked out of their rooms and left the hotel to go visit family.

The woman sued the owner and operator of the hotel. During her deposition, she was only able to say that she’d fallen because the tub was slippery. She didn’t know why the tub was slippery. She was standing, and suddenly her feet slipped out, but she didn’t know what had caused it. Her daughter had gone to look at the condition of the tub afterward, but she hadn’t. The daughter testified about what she’d seen and said that the tub was very slick, and it wasn’t because there was a lot of soap. She didn’t know what made the tub so slick.

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A recent Georgia wrongful death decision arose from a lawsuit that involved the drowning of a small child. Our firm is currently handling a sad case involving a five year old who climbed the fence of a closed pool because the fence had improper handholds available to allow it to be climbed. Our case is in litigation which will hopefully result in changes to the pool fence and the way management assesses danger. Sadly in the case below, the tragedy could not be averted and there was no legal liability.

On the Fourth of July in 2014, a four-year-old boy drowned in a community swimming pool that was for the people who lived in a particular residential community and their guests. The child was at the pool with his mother and relatives, none of whom lived there. His aunt had given them her pool key card so that they could go to that pool, but she wasn’t present.

The pool was crowded, and the four-year-old was underwater for almost five minutes before someone found him. His mother and a nurse tried to resuscitate him. It took emergency personnel 20 minutes to get there. The boy died.

His father sued the Homeowners’ Association, its management company, and the property manager. He asserted that the boy’s death was a result of negligent pool management. Summary judgment was granted for the defendants. The lower court found the boy was a trespasser, so the only duty owed to him was of not willfully or wantonly hurting him, and they hadn’t breached that duty. The father appealed.

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In a recent Georgia appellate case, the plaintiff sued the defendant for damages after slipping and falling in the chain restaurant that he owned and operated. He moved for summary judgment under OCGA § 9-11-56, which was granted.

The case arose when the plaintiff went to the defendant’s restaurant for dinner in 2013. She ate and then went to the restroom, where she used the handicap stall. She used it and stayed in the stall for 5-10 minutes before leaving. After two steps, she fell and twisted her ankle and hurt her back. She testified at deposition that she’d slipped on water, but she also testified there wasn’t water on the floor when she went into the restroom and went into the bathroom stall.

The appellate court explained that simply falling wasn’t enough to hold a property owner liable. Instead, to show liability in a premises liability claim, the plaintiff needs to demonstrate superior knowledge by the property owner or occupier. This superior knowledge can be actual or constructive. In this case, the plaintiff didn’t claim that the defendant had actual knowledge of the water on the floor but only that there were factual questions about whether the restaurant owner had constructive knowledge.

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Last month the United States District Court for the Middle District of Georgia rendered a highly relevant opinion concerning a personal injury claim. The opinion in S.G. v. TJX Companies, Inc., et al., (M.D. Ga 2017) is instructive because in it the court interpreted how the Federal Rules of Civil Procedure section regarding amended complaints filed after the statute of limitations has run applies, with regard to Georgia’s statute of limitations, as well as rules relating to amending back for personal injury cases.

The complaint arose out of an incident where the plaintiff alleged that she slipped and fell inside of a retail store in Columbus Georgia in June of 2014. The plaintiff brought a personal injury action against the defendant store’s parent corporation in May of 2016. The plaintiff then filed an amended complaint attempting to add an additional defendant corporation in October of 2016. The defendant corporation filed a motion to dismiss, asserting that the plaintiff’s claim was untimely. According to the court, the plaintiff failed to respond to the motion to dismiss.

The issue at hand was that the plaintiff was attempting to add an additional defendant after the relevant statute of limitations had passed. Under Georgia law, personal injury actions must be brought within two years after the time of the incident. O.C.G.A. § 9-3-33 (2010). Here, the plaintiff had until two years after her alleged slip and fall to file her complaint. She did file her original complaint before the relevant time period had passed. However, her original complaint had only named the initial defendant parent corporation, and did not include the subsequent corporation. The issue, then, was whether the plaintiff was entitled to any legal exception allowing her to add in the second defendant.

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