Slip and Fall Personal Injuries Part Two

Robinson v. Kroger: Surviving Summary Judgment

Following up on our previous blog, the Georgia Supreme Court in 1997 changed the slip and fall landscape. The Court ruled that “an [injured party’s] failure to exercise ordinary care for personal safety is not established as a matter of law by the [injured party’s] admission that she did not look at the site on which she subsequently placed her foot”).

After Robinson, an injured party need only prove (1) that the landowner had actual or constructive knowledge of the hazard, and (2) that the injured party lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner.

Robinson is important because it shifts the focus from the injured party’s conduct to the landowner’s conduct. After Robinson, if the injured party shows the landowner knew about the hazard, then the burden shifts to the landowner to show the injury was caused by the injured party’s negligence (intentional disregard of a known risk or failure to exercise ordinary care for one’s personal safety). This makes it much easier for injured parties to survive summary judgment and get their cases in front of a jury.

Robinson remains good law today.

Slip and Fall Personal Injuries Part One

Previous Georgia Law

Under Georgia law, a landowner has a nondelegable statutory duty to keep its premises and approaches safe for a customer or guest (lawyers refer to such persons as “invitees”). OCGA § 51-3-1. Georgia law states: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

Analysis of Georgia premises liability law begins with Alterman Foods v. Ligon, 240 Ga. 620 (1980). Alterman Foods established a two-prong test. To recover, injured parties had to show (1) the landowner had actual or constructive knowledge of hazard, and (2) the injured party was without knowledge of the hazard (or for some reason attributable to landowner was prevented from discovering the hazard). After Alterman and for the next 17 years, the conduct of the injured party was the focus. Few slip and fall cases injury cases survived summary judgment. A summary judgment is when a court rules as a matter of law for the landowner; this means the judge and not a jury decides the case.

Recognizing that the pendulum had swung too far in favor of landowners, the Georgia Supreme Court, in Robinson v. Kroger, found that “routine issues of premises liability, i.e., negligence, and the plaintiff’s lack of ordinary care for personal safety[,] are generally not susceptible of summary adjudication.” 268 Ga. 735,748 (1997) (“an invitee’s failure to exercise ordinary care for personal safety is not established as a matter of law by the invitee’s admission that she did not look at the site on which she subsequently placed her foot”).

In part two, we will discuss current current slip and fall law in Georgia.

In Georgia: What To Do When Your Tenant Files for Bankruptcy?

Over the years, we’ve learned that for landlords, time is money. A three-day delay to file an eviction can mean losing a month’s rent. Similarly, when a delinquent tenant files bankruptcy, this can cause a two or three month delay, during which time most tenants pay no rent. For a landlord, dealing with a non-paying tenant, and trying to navigate the rules and laws of bankruptcy court, is a challenge. To make things worse, this is not an easy area of law, even for practicing bankruptcy lawyers.  “Executory contracts” have been described as the most “psychedelic” law in bankruptcy. Jay Lawrence Westbrook, Article: A Functional Analysis of Executory Contracts, 74 Minn. L. Rev. 227, 228 (1989)

While there are many issues you can handle without a lawyer, this is one in which you are most likely best served by getting professional advice. This blog only scratches the surface. Please call us for a free consultation if you find yourself in this situation.

Examples of executory contracts are long-term purchase agreements; service contracts; settlement agreements; insurance contracts; employment contracts; and construction contracts. When a party to an executory contract files a bankruptcy, an “automatic stay” of all collection and enforcement proceedings goes into effect at the time of filing. The automatic stay prevents eviction proceedings or other legal action – either for possession or for money damages. As a general rule, if this happens, approval from the bankruptcy court is required to proceed in the underlying action. This means moving for relief from stay. But sometimes filing a motion for relief from stay is unnecessary.

Section 365 is the place in the bankruptcy code that provides guidance on these issues. The rationale behind section 365 is to give the debtor and/or the trustee ample opportunity to decide which prepetition contracts and unexpired leases are beneficial to the bankruptcy estate and should be assumed and retained or assigned, and which are detrimental and should be rejected. Different executory contracts and unexpired leases receive different treatment and are subject to different requirements under section 365.

1. Unexpired Residential Real Property Leases and Unexpired Personal Property Leases in Chapter 7: Under section 365(d)(1), if the trustee does not assume or reject an executory contract or lease within 60 days after the order for relief (or within such additional time as the court may fix for cause), then the contract or lease is deemed rejected. This can be helpful to a landlord, especially if the 60 days is approaching.

2. Unexpired Residential Real Property Leases and Unexpired Personal Property Leases in Chapter 11 or 13: Under section 365(d)(2), executory contracts and unexpired residential real property and personal property leases can be assumed or rejected prior to, and including, plan confirmation. However, 365(d)(2) provides that the nondebtor party may request the court to order the trustee of debtor-in-possession either accept or reject within a specified time period.

3. Unexpired Non-Residential Real Property Leases Sections 365(d)(3) and (d)(4) provide extensive protection for nondebtor parties to non-residential real property leases: Upon filing the petition (the original bankruptcy filing), the Code requires the debtor or the trustee in Chapter 7 cases to timely perform all obligations of the lease from that date until the lease is assumed or rejected. If the debtor or trustee fails in that duty, the landlord may seek relief from the automatic stay and proceed with its remedies, which include an action for possession of the premises. The trustee or debtor-in-possession cannot retain possession of the nonresidential real property without paying rent or incurring an administrative expense claim for the payment of rent in the amount called for under the lease that accrues after the order for relief. Section 365(d)(4) provides that if a lease of non-residential real property (where the debtor is the lessee) is not assumed by the earlier of (a) 120 days from the order of relief, or (b) the entry of the confirmation order – it is deemed rejected and the property must be immediately surrendered to the lessor.

Rape and Assault Cases in Georgia

In 2011, U.S. residents age 12 or older experienced an estimated 5.8 million violent victimizations, according to a report released by the Justice Department’s Bureau of Justice Statistics. These estimates are based on data from the annual National Crime Victimization Survey, which has collected information from victims of crime since 1973. Between 2010 and 2011, the rate of violent victimization increased 17 percent, from 19.3 to 22.5 victimizations per 1,000 persons age 12 or older. The increase in total violence was due to a 22 percent increase in the number of aggravated and simple assaults.

Many of these crimes are the result of inadequate security provided by a landlord or provided by a commercial establishment like a hotel. In these situations, the crime should never have happened and, in Georgia, a victim is entitled to make a claim for injuries.

To establish liability in Georgia for inadequate security, an injured party must show that the defendant has breached a duty “to exercise ordinary care in keeping the premises and approaches safe.”

With regard to third-party criminal attacks, such duty extends only to foreseeable criminal acts. In Sturbridge Partners v. Walker, 267 Ga. 785 (1997), the Supreme Court of Georgia “laid to rest the artificial notion that a crime against a person could never be foreseen by previous crimes against property” and, instead, endorsed more flexible guidelines for determining foreseeability.

To determine whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature, and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the [defendant’s] attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination.

For example, does knowledge of two previous burglaries by a landlord create the foreseeability of a rape and aggravated sodomy that occurred in one of its apartments? Sturbridge concluded that the previous burglaries did create foreseeability because, although the burglaries “were committed when the apartments were vacant, it was reasonable to anticipate that an unauthorized entry might occur while an apartment was occupied and personal harm to a tenant could result.”

In rape and assault cases in Atlanta and all of Georgia, it is critical to obtain records from all prior crimes that occurred at the location where the crime took place. At Gomez & Golomb LLC, we have been handling these types of cases for almost 20 years. Please call us for a free consultation if you have been the victim of a rape or an assault.

If you are the victim of a crime, here are some links to organizations that will help you free of cost. This is not something you want to go through alone – so please call !!!

http://www.safehorizon.org/index.php

http://www.summitadvocates.org/

http://www.callforhelpinc.org/

http://www.victimsofcrime.org/home

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.