Recover punitive damages in Georgia (even without injuries)

Punitive Damages: Generally

If you’re involved in an car wreck and the conduct of the party who caused the collision was reckless and intentional, you may be entitled to punitive damages. The two most common examples of misconduct that warrant punitive damages are hit and run and drunk driving. Also, whether the offending party has a history of reckless driving is an important factor. The purpose of of punitive damages isn’t to make the injured party whole, but rather to send a forceful message to the offending party and the public that reckless driving won’t be tolerated. Probably everyone can agree that limiting reckless driving is a worthwhile undertaking.

O.C.G.A. § 51-12-5.1(b) provides that “[p]unitive damages may be awarded in such actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”  O.C.G.A. § 51-12-5.1(c) further states that punitive damages “shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.”

Leaving the scene and driving under the influence are examples of of wilful misconduct, wantonness, and that want of care that shows conscious indifference to the consequences. According to O.C.G.A. § 51-12-5.1(f), in these situations, a jury is entitled to award the injured party unlimited punitive damages:

In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm . . . there shall be no limitation regarding the amount which may be awarded as punitive damages . . .”

Punitive Damages: Property Damage Claims

In Georgia, punitive damages are recoverable in a property damage claim even if there are no injuries. Bowen v. Waters, 170 Ga. App. 65 (1984), aff’d, 175 Ga. App. 884 (1985) (“While an award of punitive damages is authorized only where a tortfeasor’s conduct is of an aggravated nature, such an award may properly be based upon an aggravated tort involving only property rights.”).

At Gomez & Golomb, unlike some others, we’re not a cookie cutter personal injury law firm. We devote our full attention to each case so that we maximize your recovery. If you’re in a collision, please call us to discuss whether your case is the type that might justify punitive damages, and what other damages you might be entitled to.

Redeem a (Non-Judicial) Tax Deed

In Georgia, when property taxes are unpaid, a county is entitled to auction the property to the highest bidder to recover the unpaid property taxes. There are two types of auctions: non-judicial and judicial. This post only covers redeeming a property following a non-judicial tax sale, which includes most tax sales in Georgia.

Following a non-judicial tax sale, the taxpayer or any person who holds right, title, interest in, or a lien on the property may redeem the property within 12 months from the date of sale by paying the redemption amount. OCGA § 48-4-40. Redeeming means paying the tax deed purchaser to get the property back. The property may be redeemed at any time after the initial 12 months until the tax sale buyer forecloses (or terminates) the right to do so by giving proper notice.

To redeem a property following a tax sale, the redeeming party must pay the amount paid for the property at the tax sale, plus any taxes paid on the property by the purchaser after the sale for taxes, plus any special assessments on the property, plus a premium of 20 percent of the amount for the first year, plus 10 percent for each year after that. OCGA § 48-4-2.

After 12 months from the date of the tax sale, the purchaser can forever bar redemption of the property by giving notice to the delinquent taxpayer, the occupant, if any, and upon all persons having recorded any right, title, interest in, or lien on the property. OCGA § 48-4-5.

Suppose the property is not redeemed within the initial 12 month period or within the time allowed under the notice of the right of foreclosure. In that case, redemption is no longer allowed. OCGA § 48-4-47.

Whether you’re buying a tax deed or seeking to redeem a tax deed, please call us at 404-382-9994 to discuss your options.

Serving a Lawsuit in Georgia: Understanding the Sheriff’s Entry of Service Form

In Georgia, with some exceptions, the opposing party a/k/a the defendant must be “personally” served before a lawsuit can go forward. This means the lawsuit must be physically handed to the defendant. If the defendant is a corporation, service is made on the corporation’s registered agent. (Every corporation in Georgia is required to appoint a registered agent—this information can be found on the Georgia Secretary of State’s website.)

Service usually begins by providing the sheriff a copy of the complaint, summons, and sheriff’s entry of service form. Service by the sheriff typically takes two to three weeks, during which time a sheriff’s deputy will complete the form and mail it back to the filing party. What does this form mean? Below is the relevant part of the form and how we address the various types of service in our office:

If the “personal” box is completed (box # 1 above), almost always, the sheriff has handed the paperwork to the opposing party and service is complete. Now we can get to work on the case.

If the “notorious” box is checked (box # 2 above)  this means the sheriff has handed the paperwork to someone over 18 years old who lives the opposing party. Georgia law allows notorious service, but, in our experience, we should be cautious in these situations because notorious service is sometimes unreliable and can challenged. Fortunately, an answer is due from the opposing party 30 days after service. If service isn’t contested in the answer, we no longer need to worry about service. If service is contested in the answer and seems reasonable, we will discuss with you the merits of repeating service. Ultimately, getting proper service is important because if we don’t have proper service, any judgment we obtain might be overturned.

The “corporation” box  (box # 3 above) obviously applies to serving a corporation. If this is checked, generally, this ends up being successful service.

If the “better address” box is checked (box # 5 above)  this means the person living at the address provided has told the sheriff that opposing party has moved.

Finally, the dreaded “non-est” box  box # 5 above): this means the sheriff has gone to the address provided but was unable to serve the defendant. Most importantly, this means the lawsuit can’t continue. At this point, we need to determine if we have a good address for the opposing party. A defendant can be served at home, work, church, etc. If we are confident we have a good address despite the sheriff being unsuccessful, we recommend hiring a private process server. Unlike the sheriff, a private process server will work with us and has a much better chance of successfully serving the defendant. The cost for a private process server is about $100, but goes up depending on difficulty. If we aren’t confident that we have a good address, we recommend hiring an investigator to find a good address for the defendant. This is more expensive and will cost $250 and upwards.

If we still can’t find the defendant or believe the defendant is avoiding service, we’re entitled to ask the court to allow us to serve the opposing party by publication. We’ll address service by publication in a separate blog.

We hope this gives you a better idea regarding service of a lawsuit in Georgia. If you have any questions, please don’t hesitate to call us at 404-382-9994.

Foreclosure Confirmations: True Market Value Revisited

Conyers 138, LLC et al. v. ONH1, LLC, A17A0145, June 2, 2017, concerns the unique Georgia proceeding that allows foreclosures to be retroactively confirmed by petition in Superior Court. The purpose of a confirmation is to verify the property sold at foreclosure for the fair market value, thereby permitting the lender to sue the borrower to recover the difference between the loan amount and the amount at foreclosure. If the property sells for less than fair market value at the foreclosure, then the lender can’t pursue a deficiency claim against the borrower.

In Conyers 138, LLC, the lender’s appraiser testified the market value of the property was $2,510,000, but to arrive at the fair market value, he subtracted $765,000 for demolition because he contended the best use of the property was as raw, vacant land. The borrower argued that estimate of the demolition cost was inflated because the demolition company used a faulty methodology. The Court of Appeals rejected this argument, stating disputes such as which methodology to apply are factual disputes best evaluated and decided by the trial judge. “The trial judge is the judge of credibility of the witnesses and of the weights to be given to the evidence.” (citations and punctuation omitted).

Since there was some evidence presented that supported the trial court’s decision, the Court of Appeals refused to disturb the trial court’s ruling. The takeaway is that the trial court has a lot of leeway and that it’s an uphill battle to successfully appeal a trial court’s decision in a foreclosure confirmation proceeding.

Slip and Fall Personal Injuries Part Three

Current Law

In 2009, American Multi-Cinema, Inc. et al. v. Brown et al., the Supreme Court reaffirmed Robinson. Taking note of Robinson’s admonition that “routine” issues of premises liability are not subject to summary adjudication unless plain, palpable, and undisputed evidenced shows otherwise,” the Court affirmed the lower court’s finding that the trial court erred in granting summary judgment to the defendant. 285 Ga. 442, 445, 448.

The decision whether to recognize the [invitees] theory of recovery as valid under Georgia premises liability law is precisely the type of legal policy judgment we instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances. It is one of the ‘routine’ issues of premises liability—’the negligence of the defendant’—that is “generally not susceptible of summary adjudication” unless the “plain, palpable, and undisputed” evidence requires otherwise. (citations omitted). At 446.

A hazard has been defined as “[a] danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm.” Gresham v. Bell’s Food Mkt, 244 Ga. App. 240, 241 (2000) (quoting Black’s Law Dictionary). Either actual or constructive knowledge of the hazard by a defendant will satisfy the first prong. Robinson, at 748. Here, there is both. Defendant admits traversing the stairway, including on the date in question. Defendant therefore has actual knowledge of the alleged hazard.

In analyzing an injured party’s knowledge of a hazard, “Robinson reminded all courts that the plaintiff’s lack of ordinary care for personal safety is generally not susceptible of summary adjudication and that only when the evidence is plain, palpable, and undisputed is summary judgment authorized.” Mac Intern.-Savannah Hotel, Inc. v. Hallman, 265 Ga. App. 727 (2004) (referencing Robinson at 748).

This quick three-part series on Georgia slip and fall law is just the tip of the iceberg. Please call us to discuss your specific situation.

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

Criminal Attacks are Happening More Frequently and Many Perpetrators Are Not Prosecuted or Go to Jail

In 2011, U.S. residents age 12 or older experienced an estimated 5.8 million violent criminal attacks, 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. Even worse, many of these criminals committing rape and assault do not go to jail. In fact, out of 1,000 sexual assaults, 975 perpetrators will walk free. And out of 1000 assault and battery crimes, 959 will never be charged with a felony. 

Criminal Attacks are Preventable

Rape and assault attacks often occur at apartment complexes, restaurants, hotels, and other businesses. These businesses, which invite you onto their property and profit accordingly, have a legal responsibility to provide a safe environment for their customers. And a responsibility to prevent crimes that are predictable. 

Inadequate Security

Many crimes result from business owners providing inadequate security for their customers. In these situations, a crime victim has a civil claim for damages against the business.

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

Concerning criminal attacks, the business owner’s 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, provided more flexible guidelines for determining whether a crime is foreseeable. A crime is foreseeable if there have been similar prior crimes and the business owner has failed to act to prevent such crimes. 

Prior Criminal Attacks

To determine whether previous criminal acts are similar, the court must inquire into the location, nature, and extent of the prior criminal activities. 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 crime is sufficient to attract the business owner’s attention to crime. 

For example, are two previous burglaries enough to create the foreseeability of a rape at an apartment complex? 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.”

Rape and Assault Resources

If you are the victim of rape or assault, you are not alone. Here are some links to organizations that will help you free of cost. This is not something you want to go through without help–so please call!!!

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

http://www.summitadvocates.org/

http://www.callforhelpinc.org/

http://www.victimsofcrime.org/home

Georgia Crime Victims Compensation: See post.

Call Us!

In rape and assault cases in Atlanta and Georgia, it is critical to obtain records from all prior crimes that occurred where the crime occurred. At Gomez & Golomb LLC, we have been handling these cases for over 20 years. Please call 404-382-9994 to speak with an attorney.

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.