Archive for the ‘Georgia’ Category

Rough Neighborhood

September 24, 2012

Landings Association, Inc. v. Williams (Georgia) (The estate of a victim fatally injured during an alligator attack brought an action against the association that owned the property were the attack occurred; the Supreme Court of Georgia ultimately held that the victim assumed the risk of harm or failed to exercise ordinary care.)

The 83-year-old decedent was house sitting for her daughter and son-in-law at a planned residential development with a golf course.  Prior to the construction of the development, the land was largely marsh, where indigenous alligators lives and thrived.  As part of the development, the defendant association installed a lagoon system which allowed enough drainage to create an area suitable for residential development.  Alligators inhabited the area both before and after the development, although no person had ever previously been attacked.  The decedent went for a walk near one of the lagoons one evening in 2007 and was attacked and killed.

Under Georgia’s premises liability law, the estate of the decedent argued that the association failed to take reasonable steps to protect the decedent from being attacked.  The defendant filed a motion for summary judgment, which was denied by the trial court.  The defendant filed an interlocutory appeal, and the Court of Appeal affirmed the denial.  The defendant then filed a petition for a writ of certiorari with the Supreme Court of Georgia, which was granted.

The Supreme Court reversed the ruling finding that the decedent “had equal knowledge of the threat of alligators within the community.”  The Court explained that decedent “either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so.”  According to the Court,

“The record shows that, prior to the attack, [decedent] was aware that the property was inhabited by alligators. [Decedent’s] son-in-law testified that, on at least one occasion, he was driving with [decedent] on property in [the development] when he stopped the car to allow [decedent] to look at an alligator. [Decedent’s] son-in-law also testified that [decedent] was, in fact, aware that there were alligators in the lagoons at [the development] and that he believed that [decedent] had a ‘normal’ respect for wild animals.”

Like the Court of Appeal, the dissent from the Supreme Court questioned the extent of the knowledge of the danger by the decedent arguing that there was “no ‘competent evidence that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which [decedent’s] body was found.’”  However, the majority countered by stating that “A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.” The dissent also questioned the published policies of the defendant association and the effectiveness of its patrols, inspections, and security.  The dissent expressed that reasonable minds could differ, and that the issue of negligence, contributory negligence, and lack of care for one’s own safety should have been resolved by trial.

NOTE: Considering the discussion in the dissent, the significance of the claim, and the court’s tendency to allow matters of negligence to be determined by a jury as a matter of fact, this is a pretty bold decision.

Coverage Denied for Injury to Motorsports “Participant”

January 19, 2011

T.H.E. Insurance v. Cochran Motor Speedway (Georgia)
(Minor in the pit area of a racetrack deemed to be a participant; insurance coverage denied due to a participant exclusion.)

A stepfather and his minor daughter attended a racing event at the defendant’s racing facility.  The stepfather purchased pit passes for himself and the minor, and he signed a waiver and release from liability and indemnity agreement on their behalf.  The stepfather had some sort of affiliation with one of the racing team’s that happened to be crowned the winner of the local points championship on the evening in question.  The team decided to celebrate the championship by driving the racecar back onto the racetrack to the front straightaway.  The minor daughter was placed on top of the car and it began to drive onto the racetrack.  While it was moving, she fell from the car and was injured.  The minor daughter then filed a lawsuit against the racetrack, its owner, and the driver of the race car to recover for her personal injuries.  The racetrack submitted the claim to its insurance company, which denied coverage and filed a claim for declaratory relief.  Eventually, the plaintiff insurer filed a motion for summary judgment based upon exclusions in the policy, and the Court granted the motion. (more…)

The Wrong “Approach”

June 26, 2007

Robinson v. Kroger (Georgia)
(Woman Falls Due to Hole in Parking Lot and Sues Grocery Store; Court Finds Store Not Liable for Parking Lot Area Under Lease Agreement and Applicable Statute)

Plaintiff had gone to the bank inside the defendant Kroger grocery store, and she was walking back to her car when the accident occurred. Plaintiff stepped over a concrete bumper in the parking space next to the space in which she had parked. the bumper obscured a hole in the pavement, and when plaintiff stepped over it, her foot went into the hole and she fell to the ground.

Plaintiff sued Kroger, and Kroger filed a motion for summary judgment contending that it was responsible only for the leased premises and approaches to the store. Kroger pointed out that its lease does not extend to the parking lot, which is designated a “Common Area” for the use of all the tenants and their customers. Further, Kroger stated that it was the landlord’s responsibility to maintain those common areas. The trial court ruled in favor of Kroger, and the plaintiff appealed.

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