Georgia Homeowner Possibly Liable for Fireworks Injuries

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In a recent appeal, fireworks at an annual Fourth of July party injured an eight-year-old girl. The young girl’s parents sued the homeowners for the resulting injuries from the fireworks display. Harbin v. Ritch, A22A0670 (2022). The trial court threw the case out. The trial court believed that the child should have known of and avoided the danger. The child’s parents appealed, and the Court of Appeals reversed (meaning they disagreed with the trial court).

Homeowner’s Responsibilities

At issue was whether the parents who threw the Fourth of July party could be held responsible for the injuries caused by the fireworks.

The Georgia Court of Appeals explained a homeowner might be responsible if: (1) they knew of the dangerous condition, (2) the guest was unaware of the dangerous condition, and (3) they failed to make the condition safe.

In this situation, there was a history of prior problems with fireworks injuries during the Fourth of July parties. In addition to prior issues, the testimony was that most of the adults at the party were drinking, including the homeowners. Finally, the homeowners had not made any effort to supervise the fireworks.

Most often a Court will not hold a homeowner liable if the injury was an accident. But if the homeowner was intoxicated and was acting irresponsibly, then a Court can hold such a homeowner liable.

A Jury Must Decide on Damages for the Fireworks Injuries

Because of the history of drinking and lack of supervision, the Georgia Court of Appeals ruled that a jury must decide if the homeowner was responsible the fireworks and the young girl’s injuries. Even though the young girl and her parents knew of the fireworks at the party, the Court decided that an eight-year-old girl could not understand the risk of being injured.

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If you or a family member are injured, call us at 404-382-9994 to make an appointment to discuss your case.   

Boundary Disputes in Georgia

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Unfortunately, neighbor disputes over boundary lines are common. These disputes often involve the placement of driveways, garages, and fences. These disputes are serious because they create uncertainty, expose property owners to potentially adverse outcomes, and falling out with your neighbor is unpleasant and stressful.

Legal Descriptions

When boundary disputes arise, a property owner must first determine what property belongs to them and what property belongs to their neighbor. Each time a property is sold, the seller gives the buyer a deed. The deed is supposed to include a “legal description” that describes the property’s boundaries. Unfortunately, sometimes legal descriptions lack enough detail to accurately know where the boundaries are. And even when the legal description is sufficient, unless the property already has surveyor pins or other permeant markers, it is not easy to know the exact boundaries.

Surveys

Usually, a boundary survey from a licensed surveyor is required when a boundary dispute occurs. In these situations, a licensed surveyor reviews the real estate deeds, comes out to the property, physically measures the property, and installs pins to mark the boundaries. Based on the surveyor’s research and physical examination, the surveyor creates a written diagram that visually shows boundaries, property improvements, and encroachments. On rare occasions, if the real estate deeds are unclear, a surveyor may be unable to generate an accurate survey. Also on rare occasions, one surveyor may disagree with another surveyor.

Encroachments

When there is disagreement regarding an encroachment or an alleged encroachment, you should consider calling an attorney. If a property owner does not resolve these disputes, they may lose land or be liable for damages for trespass, including punitive damages and attorneys’ fees. And, an owner may be forced to incur the expense of removing a fence or tearing down an improvement. All of these outcomes are expensive and often preventable with good legal representation.

What to Do If You Have a Boundary Dispute

1. First and foremost, regardless of whether you think you know where the boundaries are, get a surveyor to check and confirm. This is especially true when you buy a property or make improvements (for example, installing a fence).

2. If the surveyor cannot establish the boundaries (because the legal description is insufficient) or there are two surveyors who disagree, you should attempt to enter into a written boundary agreement with your neighbor.

3. If you still do not see eye to eye with your neighbor, consult with an experienced real estate attorney. There are many nuances to boundary disputes, such as adverse possession, whether a prior fence has established a new boundary line by acquiescence, oral agreements, and other agreements by prior owners that may be binding (“run with the land”). An experienced real estate attorney can guide you through these issues, ultimately saving you money, improving your odds of a positive outcome, and alleviating unnecessary stress.

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We are available at 404-382-9994 to discuss any questions you may have concerning a boundary dispute.

Georgia Tax Deed Foreclosures

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Who Gets Notice of a Tax Deed Foreclosure?

To determine who to serve with a Notice of Foreclosure to Redeem (also called a “barment”), the first place to look is the statutes dealing with tax sales. OCGA § 48-4-45 says that after 12 months from the date of a tax sale, the purchaser may start a tax deed foreclosure (foreclosure of the right to redeem) by sending notices to the owner of the property at the time of the tax sale, the occupant of the property, and all persons with a recorded right, title, interest, or lien upon the property.

Two additional parts of OCGA § 48-4-45 are important to understand. First, notice does not need to be provided to a person with no recorded interest in the property. And second, if the owner of the property at the time of the tax sale is deceased, the tax deed purchaser must serve the deceased’s heirs.

What is a Recordable Interest?

You may have heard the expression “title to property.”  Georgia counties maintain real estate records for each property in the county. Accordingly, paperwork related to the property is “recorded” with the county when a property is purchased or sold. This paperwork helps determine who owns the property.

Similarly, a creditor will record a lien on the real estate records against the property if a person borrows money or owes a debt. These records are available to the public. Tax deed purchasers are responsible for notifying all persons with a recorded interest in the property.

Tyner v. Edge

The above seems simple enough, but as is often the case with most laws, there are gray areas. Including tax deed foreclosures. Tyner v. Edge, 843 S.E.2d 632 (2020), is a good example of a case that is in the grey area. In that case, Robert Tyner purchased a property from Frances Cowart without any paperwork. Tyner paid in full for the property, but Cowart died before transferring title to Tyner.

Tyner failed to pay taxes year, and the county sold the property to The Edge Company Family LLC at a tax sale. A year after the tax sale, Edge sent out barment notices in compliance with OCGA § 48-4-45. When Edge sent the barment notices, Tyner did not have a recorded interest in the property.

A lawsuit resulted. Tyner claimed he should have received the barment notice. In hindsight, this was a pretty straightforward case. OCGA § 48-4-45 does not require notice to a party with no recorded interest, and therefore the Georgia Court of Appeals ruled that Edge did not have to send a barment notice to Tyner.

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Please call (404) 382-9994 to speak with an attorney about your tax deed questions.

Children’s Medicaid Reimbursement

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Wrongful Death

As personal injury lawyers, our primary duty to our clients is to maximize each client’s net recovery. So, while it’s great to get a significant settlement on behalf of a child, such a settlement is much smaller when a large portion must be repaid to a health insurance company or Medicaid. At Gomez & Golomb, we work hard dealing with and extinguishing any Children’s Medicaid Reimbursement claims not allowed under Georgia law.

An example is when a minor is injured. PeachCare/Medicaid often pays the medical bills and claims a lien against future settlements in these situations. After careful review, we interpret Georgia and federal law to hold that PeachCare has no right to reimbursement for any settlement with a minor. We, therefore, fight these reimbursement claims tooth and nail.

In Georgia, an injured child only has a claim for pain and suffering. Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386 (1997) discusses this concept. In that case, the Court held that a minor has no claim for medical expenses because that obligation rests with the child’s parents. This reasoning makes sense because until a minor child reaches the age of 18, they cannot be bound under contract. Therefore, in a Children’s Medicaid Reimbursement situation, a child cannot be liable for medical expenses nor claim reimbursement of medical expenses.

The United States Supreme Court held that Medicaid/PeachCare can only reach settlement monies paid to reimburse medical bills following an injury. Thus, PeachCare/Medicaid can claim a lien against that part of an injured person’s recovery only for money received for medical expenses. Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268; 126 S. Ct. 1752 (2006).

Reading Sinclair and Ahlborn together, Medicaid/PeachCare cannot claim a lien against a minor child’s settlement proceeds. To shield a settlement from Peachcare/Medicaid, we structure the settlement between the wrongdoing party and the minor child. The settlement clarifies it only covers pain and suffering.

If you have a question about these issues, please call Gomez & Golomb LLC at 404-382-9994. 

Judicial In Rem Tax Sales

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Recently, we have seen more judicial tax sales in Georgia. This type of sale is much different than a non-judicial tax sale. OCGA § 48-4-75. Both the procedures and the deadlines differ.

When a taxpayer fails to property taxes, a county may file a judicial-in-rem tax sale. OCGA § 48-4-78. When the county employs this type of tax sale, it files a “Petition” in the superior court. The Petition is against the property itself and anyone with an interest in the property, including the owner.

Once the county files the Petition, the county gives notice to the interested parties. OCGA § 48-4-78. The county posts the property with copies of the summons and Petition, notice to interested parties, and notice of hearing. The county also sends the documents by regular and certified mail to all interested parties. Lastly, the county publishes a legal notice in the county newspaper alerting the public. The notice runs for two weeks).

Following notice, the court holds a hearing. Any interested party has the right to be heard and to contest the allegations in the Petition at the hearing. If the superior court determines that the information in the Petition is accurate and that the county gave proper notice, the court will order the county to sell the property at an auction. OCGA § 48-4-79.

The county then advertises the sale of the property in the county’s legal newspaper for four weeks. The advertisement will show the owner’s name, a description of the property to be sold, and the amount of the tax due OCGA §§ 9-13-140-142.

Before judicial tax sale auction, an interested party may redeem the property by paying the redemption amount to the county tax commissioner. If an interested party pays the redemption amount, the county dismisses the Petition. OCGA § 48-4-80.

One of the main differences between judicial and non-judicial tax sales is that a judicial tax sale allows only 60 days to redeem (buy back the property). In a non-judicial tax sale, the owner has at least one year to redeem. OCGA § 48-4-81.

The other major difference is judicial tax sales vest title absolutely into the purchaser. In theory, this eliminates the need for post-sale barment procedures and quiet title actions. There is little case law to provide guidance, but we expect the courts to consider these issues in the future.