Articles Posted in Georgia Laws

In 2018, the Supreme Court of Georgia in Cooper Tire & Rubber Company v. Koch, 339 Ga. App. 357 (793 SE2d 564), advised that the plaintiff has a duty to preserve relevant evidence when plaintiff actually anticipates or reasonably should anticipate litigation.   The above cited case involved a tire tread (manufactured by Cooper Tire) that separated from the left rear tire in 2012 which caused a Ford Explorer to strike a guardrail.  The driver suffered serious and permanent injuries and subsequently died from those injuries.

The left rear tire was the only part of the car that was saved from the Ford Explorer.  In 2014, the estate of the deceased filed a product liability claim against Cooper Tire & Rubber Co. which alleged catastrophic tread separation and resultant collision due to negligent design and manufacture, strict liability, and failure to warn. Cooper Tire filed a motion to dismiss the complaint due to spoliation of evidence.  The trail court denied that motion inasmuch as litigation was not reasonably foreseeable or reasonably contemplated by the plaintiff.

The Georgia Court of Appeals affirmed the order of the trial court and rejected Cooper Tire’s argument that the trial court focused exclusively on whether plaintiff subjectively knew that a lawsuit over the incident and tire tread allegation was likely. The Appellate Court held that there was a distinct difference between whether defendant “actually or reasonably should have foreseen litigation” versus the plaintiff.  The Court of Appeals held that the trial court did not abuse any discretion in relying upon Phillips v. Harmon, 297 Ga. 386 (774 SE2d 596)(2015), which applied an objective standard for spoliation.  Yet, the Court of Appeals did note that reasonable foreseeability of litigation involved both objective and subjective criteria.

In wrongful death actions, as well as in civil tort cases in general, an injured plaintiff must prove that his injury was “caused by” the defendant in order to recover for his or her injuries. This doctrine, known as the “chain of causation,” stands for the preposition that a plaintiff should only be able to recover for harms which are a proximate result of the defendant’s acts. Thus a defendant will not be liable if the causal chain is broken by some intervening or superseding factor. To that point, the Supreme Court of Georgia recently reversed a lower court ruling regarding superseding acts in Jordan v. Everson.

Ben Everson was attended by Brian Jordan, an emergency room physician, two days before his death because Everson was hearing voices and hallucinating. Dr. Jordan diagnosed Everson with obsessive-compulsive disorder, ordered that he be discharged, and gave instructions that Everson should make an appointment to be evaluated at a mental health facility. Emergency room staff made an appointment for Everson at a local facility, but due to family contacts at Duke University, the Eversons decided to take Ben to Durham rather than a nearby facility. However, on the way to the facility, Ben took off his seat belt, jumped out of the moving car and was subsequently struck by a vehicle and killed as he ran down the highway.

Dr. Jordan moved for summary judgment as to a lack of causation for Everson’s death, but the trial court denied the his motion, ruling that a jury would have to determine that the action of driving Ben to Durham was wrongful or negligent before it could determine that such action broke any causal chain between Jordan’s conduct and Ben’s death. But, the Supreme Court of Georgia found this to be in error, as there is no requirement in Georgia that an intervening act be “wrongful or negligent” to break the causal chain. Rather than wrongful or negligent, an intervening act need only be foreseeable by Dr. Jordan, or if it was triggered by his conduct. In other words, it must have been foreseeable that Dr. Jordan’s actions would cause Ben Everson to exit the vehicle on the highway and perish in that manner for the chain of causation to remain unbroken. Additionally, the chain of causation would remain unbroken if Everson’s death were somehow triggered by Dr. Jordan’s conduct.

When an individual seeks compensation from a county for injuries or harm suffered arising from some county action or on a premises controlled by a county, the plaintiff must fulfill greater procedural requirements than are required in a civil action against another individual. One of these such requirements is presentment, or that “all claims against counties must be presented within 12 months after they accrue or become payable” or such claims will be barred by the statute. (OCGA § 36-11-1). The statute operates as a statute of limitations, restricting the time period in which a plaintiff will be entitled to seek compensation through a civil action against a county. Thus, in the context a physical injury, an injured plaintiff must provide the county with notice of any alleged claims within the proscribed one-year period.

In January 2012, Joe Leonard, Jr. allegedly sustained injuries while riding as a passenger aboard a Whitfield County Transit Services bus, and subsequently hired a lawyer to assist him in recovering from the county for the harms caused on the county-owned transit system. In June 2012, Mr. Leonard’s lawyer sent a letter to Robert Smalley, a private attorney and County Attorney for Whitfield County, in an attempt to fulfill the presentment requirements set forth in OCGA § 36-11-1, as Mr. Leonard asked in that letter that Mr. Smalley accept the letter as presentment of Mr. Leonard’s claims against the county. Then, in January 2014, Mr. Leonard filed a lawsuit against the County, and the County filed for Summary Judgment (a motion seeking dismissal of the claim) on the grounds that Mr. Leonard never properly presented the claim, and that his recovery was thus barred. The trial court granted the County’s motion, which was affirmed by the Court of Appeals, relying upon the precedent established in Coweta County v. Cooper, which holds that presentment may be made to the county attorney, but only if the county attorney is employed “in-house.”  Generally speaking, an in-house attorney would be an employee of the county.

In a win for plaintiffs, the Supreme Court overturned the Court of Appeals decision, based in part upon the purpose and object of the presentment statute. The Supreme Court asserted that the primary purpose of the statute was to provide the county officials with timely notice of all demands against the county. Numerous precedent established that presentment could be made to some officers of the county, as well as to the members of the governing authority itself, so the Court found it inconsistent with the purpose of the statute to prevent the county attorney from also being a party to whom presentment could be made. The Court of Appeals’ attempt to draw a distinction between in-house and outside attorneys was rejected by the Supreme Court, holding that the precedent relied upon by the Court of Appeals was inapplicable to a county attorney.

Following Governor Nathan Deal’s veto of a 2016 bill that, if signed, would have authorized prospective suits challenging the constitutionally of states or local laws, the Georgia Supreme Court affirmed a trial court ruling that in effect bars the sort of suits the 2016 bill would have authorized. Generally, state governments, departments, agencies and officers acting in their official capacity are protected from prospective legal action by the doctrine of sovereign immunity. However, when state officials act under an unconstitutional statute, they can be held individually liable, even for acts done in their official capacity. The rationale underlying this theory of personal liability for state officials is as follows: an act or statute that is unconstitutional confers no lawful authority upon an officer; so an official act performed pursuant to an unconstitutional statute is the equivalent of an official act performed in the absence of a statute altogether.  Thus, where a state official performs an official function, even where he may believe he is acting pursuant to a lawfully enacted statute, he may nonetheless be held liable for those acts if the statute turns out to be unconstitutional.

Interestingly, the opinion thoroughly examines the doctrine of sovereign immunity, but concludes with the assertion that a plaintiff need only bring suit against state officials in their individual capacity, rather than their official capacities. But, even where state officials have been found individually liable for monetary damages, “the legislature should, and doubtless will, reimburse the defendant . . .” Through this opinion, the Georgia Supreme Court re-affirms a somewhat bizarre legal fiction; while the state cannot be named as a party to a constitutional challenge, it will likely still be on the hook for the monetary damages imposed on state officials for actions taken in the course of the performance of their official duties.

The opinion denied injunctive relief to several physicians who challenged, under the State Constitution, an abortion statute requiring physicians who perform abortions to file a report of the procedure with the Department of Public Health, and a clause that imposes criminal penalties to violations of other statutory requirements. So, in the case of these physicians, they need only re-file against the state officials within the Department of Public Health in their individual capacity, and allege state constitutional violations. Then, if the court finds that the statute was in fact unconstitutional, the plaintiff-physicians would be awarded either prospective or retrospective relief, depending on the nature of the action. Importantly, the opinion does not wholly eliminate individual citizens’ ability to challenge state action on a constitutional basis; it simply modifies the avenue through which such challenges must travel.