Negligent Probation Supervision: Guidance from Peterson v. Reeves, 315 Ga.App. 370 (2012)

We are currently involved in a wrongful death case against a Georgia private probation company for negligent probation supervision. The probation company knew our client was a severe alcoholic, a type-1 diabetic, and had three DUI convictions. Despite this and contrary to the court’s order and Georgia law, the probation company failed to reasonably monitor our client for alcohol consumption. For example, our client violated court-ordered home alcohol monitoring testing 183 times, but this was never reported to the court. The probation company’s lenient supervision gave our client the opportunity to drink heavily for weeks on end, ultimately resulting in her death from a diabetic coma.

There are no Georgia appellate decisions directly on point. But, there is a similar case, at least with respect to claims for professional negligence. Peterson v. Reeves, 315 Ga.App. 370 (2012). In Peterson, a plaintiff sued her psychiatrist for failing to prevent injuries sustained when she attempted suicide. The psychiatrist moved for summary judgment, arguing he had no duty to involuntarily commit Plaintiff, who at the time of the suicide attempt was in an outpatient mental health care. The trial court denied the psychiatrist’s summary judgment motion. Judge McFadden, writing for the Georgia Court of Appeals, agreed with the trial court, finding that

whether [the psychiatrist] breached duties arising from the psychiatrist-patient relationship is an issue of fact . . . [t]he evidence would authorize a jury to find that [the psychiatrist] shares in the responsibility for a negligent failure to subject [the plaintiff] to a suicide or self-injury risk assessment, and adequate psychiatric evaluation, and consideration for hospitalization; that he shares in responsibility for the failure to stabilize [the plaintiff]; and that he was negligent in failing to be available for consultation, or to have another psychiatrist available . . . [a]nd the evidence would authorize a jury to find that those negligent omissions were a proximate cause of the defendant’s lack of control  over [the plaintiff] at the time of her attempted suicide as well as of the attempted suicide as well.

The underlying facts show that the psychiatrist was aware of plaintiff’s history of severe mental illness and high risk to attempt suicide, but, nonetheless, he allowed her to be discharged from a mental hospital without being subjected to a suicide assessment or considered for involuntary hospitalization. Two days later, plaintiff poured gasoline over herself and set herself on fire.

The psychiatrist argued that he was not liable because he never had control over the plaintiff. The court disagreed, finding that “control over the plaintiff” is not relevant because the psychiatrist had a duty to provide a minimum level of medical care to the plaintiff. The appellate court ruled that whether the psychiatrist’s care of the patient fell below that minimum level is up to a jury to decide.

The psychiatrist also argued that even if he has a duty, that duty does not include taking affirmative action to protect a patient. Again the court rejected that argument, finding the duty at issue is not strictly a duty to involuntarily commit the patient, but, rather, is “a duty to exercise the applicable degree of care and skill in the treatment” of the patient.

The take home is that in a doctor-patient or in a probation officer-probationee relationships, the doctor or probation officer have a duty to do their job with a minimum level of competency. What the minimum level of competency varies from situation to situation, and is a question to be resolved by a jury.

Cozy: New Internet Service Makes Renting Easier

Cozy, which launched on June 6, 2013, is a new company hoping to make day-to-day issues facing landlords and tenants easier. The company is financed by Google Ventures, among others, meaning odds are in favor of this company succeeding.

Owning rental property is a great long-term investment; likewise, renting is a convenient solution for many who can’t afford or don’t want to buy property. However, as everyone knows, being a landlord or a tenant can come with some headaches.

To start with, for a tenant, finding a place to rent requires filling out several applications, which results in tenants having to provide personal and confidential information to complete strangers. For a landlord, finding a reliable tenant involves chasing down references, expensive background checks, and oftentimes guess work. Cozy aims to solve these issues. Renters create a profile in Cozy containing the personal information required on rental applications (e.g., references and job information). This information is verified through LinkedIn. Landlords can quickly and easily access this data. Once a tenant finds a place (or stops looking), he or she is able to remove access to his or her personal information. This provides greater security than filling out an old-school paper form or online application.

Likewise, landlords are able to create a profile and list of available properties, creating a central repository for tenants looking for rentals.

An important back-end feature offered by Cozy is online payments. No more the “check got lost in the mail” excuses. Using ACH direct debit payments, a renter is able to send money directly to a landlord’s account.

The fee to use this service is borne by the landlords, who are required to pay $9/month for every unit listed. But, if this service works as advertised, we suspect landlords will be glad to pay $9/month for the convenience provided. In order to become a viable option going forward, lots of landlords and tenants will need to sign up for the service. We wish Cozy luck and hope for its success.

At Gomez & Golomb LLC, we’ve been drafting leases, negotiating landlord-tenant disputes, and filing evictions for twenty years. Please call us for a free initial consultation to discuss your commercial or residential landlord-tenant issues.

O.C.G.A. 9-11-67.1: New Law Regarding “Holt” Bad Faith Demands in Georgia

Our last blog post covered the origins of the Holt case, which for the past 20 years has protected injury victims from insurance companies who unreasonably and untimely refuse to settle straight forward injury claims.

Because Holt exposes insurance companies who act in bad faith to potentially large penalties, insurance companies have been pushing the Georgia legislature to repeal Holt time-limit settlement demands.

On March 22, 2013, the Georgia legislature passed House Bill 336, which is a compromise between plaintiffs’ lawyers and insurance companies. The new law, signed by Governor Nathan Deal, codifies the Holt settlement demand process. Fortunately, the new settlement process leaves in place the requirement that insurance companies negotiate claims in good faith.

The new law will be known as O.C.G.A. Sec. 9-11-67.1 and will apply to all automobile wrecks after July 1, 2013. Some of the highlights of the new law are: settlement demand letters now must be sent prior to filing a lawsuit, the claim must involve injuries arising out of the use of a motor vehicle, the demand must be prepared by an attorney, the demand must allow the insurance company 30 days to accept the offer, and the demand must be sent by certified or overnight mail.

The changes will give both sides a fair opportunity to fairly and timely resolve serious car wreck injury cases.

Please call us at (404) 835-8075 if you have any questions regarding the new law.

Origin of “Holt” Bad Faith, Time-Limit Demands in Georgia

At this point in time, Georgia law favors bad faith claims against insurance companies who fail to reasonably settle personal injury claims. In the current era of tort reform, this is a welcome relief for injury victims.

The favorable law stems from the 1989 case of Holt v. Southern General Insurance Company, SC89CV13484 (Muscogee State Court). In that case, Southern General was successfully sued for negligently failing to timely settle an automobile injury claim.

In Holt, the plaintiff offered to settle her injury claim for the other driver’s $15,000 policy limits with Southern General. Importantly, the offer was good for only 10 days (subsequently five more days were added to the deadline). Southern General never told its policy holder about the proposal and deadline, and did not respond within the time set by the plaintiff.

Three days after the settlement period expired, Southern General offered to pay the policy limit. The plaintiff rejected the proposal as not being timely and sued. Southern General made two more offers before trial to pay the $15,000. The plaintiff again turned Southern General down, saying she would no longer settle for the policy limits.

On July 19, 1988, a jury returned a verdict of $82,000.00 against the responsible driver.  After Southern General paid its policy limits of $15,000, the responsible driver was left personally liable to the plaintiff for $67,078.00 plus 12% interest. The responsible driver assigned her right to the plaintiff to sue Southern General for failure to settle.

 On July 18, 1990, a jury awarded $208,000.00 to the plaintiff, including $100,000.00 in punitive damages. The jury award was upheld by Georgia appellate courts, insuring insurance companies have a duty to exercise due care in settling claims.

Since Holt, our firm has been successfully making time-limit demands on insurance companies. We will continue to use Holt and other strategies to maximize our clients’ recoveries in every case.

On July 1, 2013, a new law will take effect that will modify the use of Holt demands. In our next blog, we will discuss these modifications and the impact they will have on future injury cases.

Landlords’ Responsibility For Injured Third-Parties in Georgia

A recent Georgia Court of Appeals case examines the issue of a landlords’ liability for injuries to a third-party. The case, Forsh v. Williams, A12A2248 (3/20/2013), involved a non-tenant injured by a tenant’s dogs.

The injured party alleged the landlord was negligent and reckless in failing to adequately screen his tenants, failing to enter into an agreement whereby the tenants were prohibited from having and keeping vicious dogs, failing to adequately inspect the premises, and failing to comply with legal requirements under state and federal law for ownership of rental property. The injured party also alleged the landlord failed to keep the premises in repair – as required under OCGA § 44-7-14 – by not installing an appropriate gate on the deck from which the dogs escaped, and failing to install fencing in the yard after knowing of the presence the dogs.

Under Georgia law, to be liable for injuries to third-parties, out-of-possession landlords are responsible to third-parties for defective construction or for failure to keep the premises in repair.

OCGA § 44-7-14, entitled “Tort liability of landlord,” provides: “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.”

As long as landlord fixes defective construction and keeps the property in repair, presumably, the landlord is immune from claims from the third parties. The allegations referenced above, which include screening tenants and taking other proactive steps, go beyond a landlord’s responsibility in OCGA § 44-7-14.

So what did the court of appeals do? The court focused mostly on procedural issues, reversing the trial court and finding the landlord was not entitled to an outright dismissal at an early stage of the litigation. In favor of the landlord, the court ruled against the injured party on her claim under 42 USCS § 1437 et. seq., commonly referred to as Section 8. The injured party alleged landlord failed to comply with Housing Quality Standards requiring adequate infrastructure to keep the dogs confined either on the deck, in a suitable fence, or otherwise. The court of appeals found this federal statute couldn’t be a basis for liability, and an injured party’s claim is limited to OCGA § 44-7-14.

If you have any questions about Georgia landlord liability for injuries, please call us at 404-835-8075 ext. 1. We have twenty years of experience handling these cases.