This page discusses some of the most significant cases issued by the Georgia Court of Appeals and Georgia Supreme Court in 2016. The cases discussed here are organized by the primary subject matter for which they are notable: Evidence, Venue, Uninsured Motorist Coverage, Immunity/Governmental Torts, Attorney Advertising, Civil Practice/Trials, and Animal Law. Cases from 2016 are identified in bold and include the date of decision.
Hernandez v. State, 299 Ga. 796 (October 17, 2016): Although the Evidence Code allows for witnesses to be questioned by the judge, O.C.G.A. § 24-6-614, it does not provide for questioning by the jury. Nevertheless, pre-2013 case law allowed for a judge to examine witnesses based on questions submitted by jurors. In Hernandez, the Supreme Court reiterated that, so long as the questions are not otherwise objectionable, this procedure remains viable under the revised Evidence Code.
Glispie v. State, 300 Ga. 128 (November 7, 2016): The Supreme Court ruled that outgoing text messages from a defendant's phone were not hearsay because they were party admissions under O.C.G.A. § 24-8-801(d). But incoming messages were hearsay, and therefore subject to a hearsay analysis. Nevertheless, the court held that any error in admission of the incoming messages was harmless, given the incriminating nature of the outgoing messages sent by the defendant that were correctly admitted. It should be noted, however, that the Court of Appeals, addressing a similar situation where the state sought to introduce a telephone recording that included the defendant's statements as well as the other caller's, recently held that the other caller's statements were not hearsay, because they were not offered to prove the truth of the matter asserted, but rather to provide context to the defendant's statements. Jones v. State, 339 Ga. App. 95 (October 13, 2016).
Evans-Glodowski v. State, 335 Ga. App. 484 (January 14, 2016): O.C.G.A. § 24-4-406 provides for the admission of evidence of habit (or, in the case of an organization, a “routine practice”):
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with such habit or routine practice.
In the first case to address this rule under the 2013 Evidence Code, the Court of Appeals considered whether evidence that the defendant had successfully negotiated a road curve in the past constituted a “habit” that the driver could introduce in her defense. The Court of Appeals followed the “narrow” interpretation of the corresponding Federal Rule of Evidence, as discussed by the Eleventh Circuit:
Character and habit are close akin. Character is a generalized description of one's disposition, or one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.
Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519, 1524 (11th Cir.1985) (citations and punctuation omitted). Finding that a party's driving behavior on other occasions, which necessarily involved numerous variables of speed, road conditions, etc., the court found that the defendant's past behavior did not rise to the “semi-automatic” nature required for admission of habit evidence.
Hood v. State, 299 Ga. 95 (May 23, 2016): Cases under the pre-2013 Evidence Code made clear that extrinsic evidence of prior inconsistent statements could not be introduced if the matter was irrelevant or collateral to the subject matter of the case. See Wynn v. State, 272 Ga. 861 (2000). The Supreme Court confirmed that this rule continues to apply under O.C.G.A. § 24-6-613(b), following federal authorities, but nevertheless held that, even if the excluded extrinsic evidence (which the defendant sought to introduce) was material and not collateral, the exclusion was harmless error.
Blake v. KES, Inc., 336 Ga. App. 43 (March 2, 2016): O.C.G.A. § 24-7-702 governs testimony of expert witnesses generally, and subsection (c) addresses such testimony in professional malpractice cases. Despite the plain language of the statute limiting this subsection's application to professional malpractice matters, some trial courts have applied it more expansively. In Blake, the Court of Appeals affirmed that the requirements of the subsection are limited to cases asserting claims for professional malpractice and do not apply to cases alleging simple negligence, even if the claims touch on issues involving medical care. The Court of Appeals reiterated that not all injuries occurring in hospitals, nursing homes, or other health care facilities are the result of professional negligence, and held that, since the plaintiffs' claims raised issues of simple negligence rather than professional negligence, O.C.G.A. § 24-7-702(c) was inapplicable and did not bar the expert's testimony.
D'Agnese v. Wells Fargo Bank, N.A., 335 Ga. App. 659 (February 10, 2016): In D'Agnese, the Court of Appeals illustrated an important distinction between business records (under O.C.G.A. § 24-803(6)) and summaries (under O.C.G.A. § 24-10-1006). Although both may be admitted upon proper evidentiary foundation, those foundations are distinct. The court held that an account summary screenshot presented in an affidavit connected with a bank's motion for summary judgment was not a business record subject to that exception, citing another recent case, Roberts v. Community & Southern Bank, 331 Ga. App 364 (2015), that had disapproved of admission of a printout merely showing the current debt at the time of litigation. Although the evidence may well have been admissible as a summary under O.C.G.A. § 24-10-1006, the court found in D'Agnese that the bank had failed to lay a sufficient foundation to show that the underlying records were too voluminous to be examined in court conveniently, and therefore the trial court erred in considering it.
Sneiderman v. State, 336 Ga. App. 153 (March 11, 2016); The “Residual Exception” for hearsay (formerly known as the “Necessity Exception”), O.C.G.A. § 24-8-807, applies where no exception under O.C.G.A. § 24-8-803 or -804 applies, but the evidence has the equivalent circumstantial guarantees of trustworthiness, and
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.
As noted in Sneiderman, although the Evidence Code does not expressly require a showing that a declarant is unavailable to testify to the matters sought to be introduced under this exception, the second prong of the test implicitly establishes this requirement, since an available declarant would necessarily be more probative than the hearsay that could be introduced. In this case, the declarant, Hemy Neuman, was in prison and deemed “unavailable”; therefore, finding that the other prongs of the test were satisfied, the court held that the exception applied.
Patch v. State, 337 Ga. App. 233 (May 26, 2016): Generally, under the “Best Evidence Rule,” O.C.G.A. § 24-10-1002 and -1003 provide that original evidence or an appropriate duplicate must be used at trial or in a hearing. But other evidence of the contents of such evidence may be introduced in any of the following situations:
(1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(2) No original can be obtained by any available judicial process or procedure;
(3) At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(4) The writing, recording, or photograph is not closely related to a controlling issue.
O.C.G.A. § 24-10-1004. In Patch, the Court of Appeals held that an investigator's identification of the defendant as being involved in a similar incident prior to the one he was charged with was admissible, notwithstanding the fact that the identification was based upon photos and videos of a prior investigation that were lost during a hard drive failure. The court found that the secondary identification was sufficient, as the original “best evidence” was lost, and the state's loss of the evidence was not the result of bad faith actions.
Pandora Franchising, LLC v. Kingdom Retail Group, LLP, 299 Ga. 723 (October 3, 2016): O.C.G.A. § 14-2-510 governs corporate venue in claims against both foreign in domestic entities. Subsection (4) states, in pertinent part, that venue lies, “[i]n actions for damages because of torts, wrong, or injury done, in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business.”
The question raised in Pandora Franchising was whether the right to remove to a “principal place of business” applied to a foreign entity that did not have its actual principal place of business in Georgia. The defendant, a foreign entity seeking to transfer an action from the location of the tort to the county of its registered agent, argued that the rule should be interpreted to mean “principal place of business in Georgia,” in this case the location of its registered agent, rather than its worldwide principal place of business. The Supreme Court disagreed. It held that the legislature meant for the right to transfer to be limited to the entity's worldwide principal place of business, and that if that place was not in Georgia, the action was not subject to transfer. It should also be noted that under subsection (3) of the statute, if the tort arises in a county where the entity has an office and transacts business, it is also not subject to transfer from that venue.
Hankook Tire Co., Ltd. v. White, 335 Ga. App. 453 (January 4, 2016): In Hankook Tire, the Court of Appeals considered the issue of whether a consent judgment between Georgia plaintiff and defendant was collusive so as to entitle the remaining non-resident defendant to transfer the case to another venue. The remaining defendant argued that the consent judgment was collusive and intended to deprive the remaining defendant of the right to transfer venue due to “vanishing venue” under O.C.G.A. § 9-10-31(d). The Supreme Court has held that the vanishing venue rule does not apply in the case of a consent judgment because the defendant against which the judgment is entered is not “discharged from liability” as provided by this Code section. It has, however, held that an exception applies where the remaining defendant can prove collusion.
Here, the appellate court did not see definitive evidence of collusion, particularly given that the defendant taking the consent judgment paid a substantial sum in settlement, and therefore it rejected the remaining defendant's argument seeking transfer, noting that “[w]hile it is true that the [plaintiffs] entered into the consent judgment with the goal of retaining venue in Clayton County, if this were collusive, then arguably all consent judgments would be collusive.”
Uninsured Motorist Coverage
Sentinel Insurance Company/The Hartford v. USAA Insurance Company, 335 Ga. App. 664 (February 10, 2016): Priority of uninsured motorist coverage (UM) is usually governed by either the “receipt of premium” test, providing for first-level coverage by policies paid for by the claimant, or the “more closely identified with” test, which requires an analysis of the claimant's connection with the policies at issue to determine priority. This latter test often results in disagreements with respect to the proper analysis due to the arguably less obvious and objective nature of the inquiry. In Sentinel Insurance, two UM policies applied: one issued to a company the claimant owned, which covered the vehicle involved in the wreck (the vehicle being owned by the company), and one issued to the claimant's spouse. The Court of Appeals, reversing the trial court, held that the “more closely identified with” test established that the spouse's policy (issued by USAA) was first in line of priority. It concluded that even though the company was closely held by the claimant, it was nevertheless a separate legal entity, and therefore the family policy issued to her spouse was more closely identified with her. Aside from resolving the priority dispute under the fact presented, the case offers a good analysis of UM priority issues generally.
Progressive Mountain Insurance Company v. Bishop, 338 Ga. App. 115 (June 30, 2016): A virtually universal term in UM policies requires the claimant to provide notice to the insurer of a collision. Policy terms vary, sometimes including a specific time requirement, and other times simply requiring the notice to be made “promptly” or “as soon as practicable/as soon as possible.” Courts have held these provisions to be enforceable, and failure to adhere to them may bar a claim. But the lapse of time that will preclude a claim varies. In Bishop, the claimant failed to notify the insurer of the collision until almost 11 months after the fact. The policy required that notification be made “promptly.”
Considering the facts of the case, the Court of Appeals held that a jury question remained as to whether the notice was too late. It noted that, to explain the delay, the claimant explained that he did not initially believe the UM coverage would be invoked because he thought that the at-fault driver's liability coverage would be sufficient, and only later realized that the liability coverage would be insufficient. The court also acknowledged that the law with respect to notice is “not easily harmonized” and that “some of our prior decisions are difficult to reconcile with each other.” It ultimately focused on the insurer's use of the term “promptly,” which it held established an inherently fact-specific question best left to a jury.
GEICO Indemnity Company v. Smith, 338 Ga. App. 455 (July 12, 2016) (physical precedent only; see Court of Appeals Rule 33(a)): Two weeks after the Court of Appeals' decision in Bishop, the court in Smith, involving similar facts, reached the opposite result. The claimant in Smith failed to give notice to the UM insurer until 6 months after the collision, and the Court of Appeals concluded that the insurer was entitled to summary judgment due to the delay. A comparison of the facts of the two cases, however, demonstrates why UM notice questions generally involve a fact-specific inquiry. Unlike the language of the Bishop policy requiring that notice be made “promptly,” the Smith policy required that notice be given “[a]s soon as possible after an accident.” And, as the court noticed in its ruling denying the Smith plaintiff's motion for reconsideration based on the Bishop opinion, notice in Bishop was given before the claimant underwent surgery, whereas in Smith the plaintiff waited until after she had undergone significant additional treatment. Ultimately, these two cases demonstrate the importance of giving prompt notice, since failure to do so will likely result in litigation, regardless of the ultimate outcome.
McHugh Fuller Law Group, PLLC v. PruittHealth, Inc., 300 Ga. 140 (November 21, 2016): PruittHealth operates nursing home facilities in Georgia. In 2015, McHugh Fuller, a Mississippi law firm, placed advertisements in newspapers throughout Georgia advertising its services to family members of PruittHealth residents, seeking to pursue claims involving residents neglected or abused at PruittHealth facilities. The advertisements included the names and photographs of the facilities. PruittHealth obtained an injunction against the use of its trademarks from the trial court. Rejecting PruittHealth's arguments and reversing the injunction, the Supreme Court held that PruittHealth's contentions, if accepted, “would raise profound First Amendment issues,” although the court left open the possibility of a remedy if the company could prove that the advertisements were “untruthful or deceptive.” The case has significant implications for law firm advertisements that target specific companies or manufacturers, as is common in products liability/mass tort matters.
Rivera v. Washington, 298 Ga. 770 (March 25, 2016): The denial of a motion to dismiss is generally an interlocutory ruling, not subject to an immediate appeal. The Court of Appeals, however, long held that the Collateral Order Doctrine establishes an exception to this rule, allowing for the immediate appeal of an order denying a motion to dismiss or motion for summary judgment based upon a governmental entity or employee's claim of sovereign or official/qualified immunity. See, e.g., Board of Regents v. Canas, 295 Ga. App. 505 (2009). In Rivera, the Supreme Court overruled this long line of authorities and held that such denials are not subject to immediate appeal – the denial could be appealed at the conclusion of the case, through the interlocutory appeal procedures of O.C.G.A. § 5-6-34, or under the pendent appellate jurisdiction rule where the ruling is appealed as part of another ruling that is subject to immediate appeal.
Garden City v. Harris, 339 Ga. App. 452 (November 15, 2016): The Recreational Property Act (RPA), O.C.G.A. § 51-3-20 et seq., establishes immunity for landowners who make property available to the public for recreational use. O.C.G.A. § 51-3-25 establishes exceptions to this rule, including for landowners who charge the public to enter the property. In some cases, fees charged in connection with the use of recreational property has been deemed not to abrogate the landowner's immunity, such as in the case of fees to use a vehicle on the property (Hogue v. Stone Mountain Memorial Association, 183 Ga. App. 378 (1987)), fees charged to a sports team in connection with providing umpires and uniforms, in the context of an uncharged spectator who was injured (South Gwinnett Athletic Association v. Nash, 220 Ga. App. 116 (1996)), or fees charged for use of certain facilities within the property, where general entry was nevertheless allowed free of charge (Quick v. Stone Mountain Memorial Association, 204 Ga. App. 598 (1992)). In Harris, the claimant was injured on bleachers owned by the municipality of Garden City. A “nominal” fee was charged to anyone over the age of 6, but, as the claimant was 6 years old, no fee was charged to her. The Court of Appeals held that the exception to the RPA's immunity nevertheless applied so long as anyone was charged for entry to the property, and therefore the municipality was not entitled to immunity under the RPA.
Civil Practice and Trials
Harrison v. McAfee, 338 Ga. App. 393 (July 7, 2016): O.C.G.A. § 9-3-99 provides that
The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.
The Supreme Court has held that this provision applies to traffic citations. Beneke v. Parker, 285 Ga. 733 (2009).
The Court of Appeals previously held that the tolling provided by this section applied only to the party criminally charged. See, e.g., Mays v. Target Corp., 322 Ga. App. 44 (2013). In Harrison, however, the Court of Appeals overturned Mays and other precedents on this point, finding that the statutory language does not support those holdings. In a case involving a criminal charge or traffic citation, therefore, the statute is now tolled for all defendants until the ultimate disposition of any charge or citation.
Forbes v. Smith, 338 Ga. App. 546 (August 18, 2016): In Forbes, the Court of Appeals considered the question of when a prosecution is terminated in the context of the tolling provisions of O.C.G.A. § 9-3-99. The case involved an automobile collision in which the defendant received a traffic citation. The issuing officer, however, never filed the citation with the court, and therefore, one month after the collision, the prosecuting court sent a notice to the defendant that the defendant was “free to go,” although it also noted that the officer could re-issue a citation at any time within 2 years of the offense.
The officer never re-issued a citation, and therefore the Court of Appeals held that the prosecution was terminated, and the statute of limitation began to run, on the date of the letter to the defendant announcing that she was “free to go.” Because the lawsuit against the defendant was filed more than two years after that date, it was dismissed on statute of limitation grounds. The court expressly rejected the argument that the statute was tolled until 2 years after the wreck, when the statute of limitation would have run on potential criminal charges, since the letter from the court to the defendant “terminated” the charge for purposes of O.C.G.A. § 9-3-99.
Richardson v. Locklyn, 339 Ga. App. 457 (November 15, 2016): O.C.G.A. § 9-11-68, the Offer of Judgment/Settlement statute, allows parties to recover attorneys' fees incurred from the time of rejection if the verdict received is not at least 75% of an offer made by a defendant, or is more than 125% of an offer made by a plaintiff. In Richardson, the defendant offered to settle the plaintiff's claims for $12,500, in a case where medical bills totaled almost $19,000. After the jury returned a verdict for $6,948.25, the defendant moved for an award of fees. Without a hearing, the trial court denied the request, finding that it had not been made in good faith, a requirement of the statute.
Reversing the trial court, the Court of Appeals first held that a hearing is required under O.C.G.A. § 9-11-68 unless affirmatively waived. It then surveyed Florida law, because Georgia's statute is based upon Florida's similar rule, and discussed the proper analysis for whether an offer was made in good faith. Under Florida law, “[s]o long as the offeror has a basis in known or reasonably believed fact to conclude that the offer is justifiable, the good faith requirement has been satisfied.” The analysis must be based on the subjective motivations and beliefs of the offeror, although the court's inquiry is not limited to the offeror's testimony and may consider objective facts.
The court did not announce a bright-line test for good faith, and agreed that any hearing could also include evidence regarding whether the amount of fees sought was reasonable. Nevertheless, the court's substantial reference to numerous Florida authorities should be considered when the issue of good faith in an O.C.G.A. § 9-11-68 offer arises.
Chrysler Group, LLC v. Walden, 339 Ga. App. 733 (November 15, 2016): This case involved a products liability claim arising from a collision leading to the death of a young child, with the claims based on theories of defective design and failure to warn. The jury returned a verdict of $150,000,000. The defendant's motion for new trial was denied when the plaintiffs accepted a remittitur for $40,000,000, divided between wrongful death and pain-and-suffering claims. Chrysler appealed based upon numerous theories, all of which were rejected by the Court of Appeals. A few of these rejected arguments are discussed below.
Chrysler argued that the trial court incorrectly allowed the introduction of other incidents involving its vehicles related to fuel tank location. In this case, the fuel tank was located at the rear of the vehicle, in a location the plaintiffs alleged was dangerous because of its exposure during rear-end collisions. Although at least some of the other incidents involved differently-designed fuel systems and structural designs, the Court of Appeals found that the evidence was proper, since it was offered to show the danger of rear fuel tanks, common to all incidents.
The plaintiffs also offered evidence of the compensation of Chrysler's CEO at trial, which was argued by the plaintiffs as a basis for calculating the wrongful death award. The defendant argued that this information improperly introduced prohibited evidence of the financial circumstances of a party. The Court of Appeals disagreed, noting that the CEO was not a party and that the compensation evidence was admissible to show bias. It furthermore held that, given the wide latitude permitted in closing argument, it was not error to allow the plaintiffs to use the compensation numbers to guide the jury toward a verdict.
Finally, the Court of Appeals rejected Chrysler's argument that the verdict, following remittitur, was excessive. Given that “no two cases are exactly alike” and that “the value of a child's life must be established by the enlightened conscience” of the jury, the court found that the wrongful death damages did not demonstrate an abuse of discretion by the trial court, nor did the damages allowed for pain and suffering.
Barking Hound Village, LLC v. Monyak, 299 Ga. 144 (June 6, 2016): In this widely-publicized case, the Supreme Court considered the damages available for the loss of a pet due to the negligence of another party. The plaintiffs sued a kennel and its owner after their dachshund died following a stay at the facility, alleging that the animal was administered lethal doses of an anti-inflammatory drug while there. Raising claims of fraud and deceit along with various claims of negligence, the plaintiffs sought compensatory and punitive damages as well as expenses of litigation. The trial court denied the defendants' motion for summary judgment, except as to the fraud claims, and rejected the defense's argument that damages were capped at the animal's fair market value, which the defendants claimed the plaintiffs failed to prove. The trial court ruled that the plaintiffs were permitted to present evidence of the dachshund's actual value to them, based upon veterinary and other expenses incurred in treatment, as well as non-economic factors reflecting her intrinsic value. The Court of Appeals affirmed, though on different grounds, and certiorari was granted.
The Supreme Court held that pets are personal property, and therefore an owner may have a claim against a party negligently or intentionally causing injury or death. The court then turned to the measure of damages. Referencing authorities over 100 years old, the court found that damages were not limited to the fair market value of an animal (although a claim for loss of use, such as in the case of a horse, is so limited), but rather that the damages may also include the actual costs incurred in treatment, regardless of whether the treatment is successful. But the court rejected the plaintiffs' claim of damages for intrinsic or sentimental value. Instead, it noted that the standard rules governing fair market value apply, see O.C.G.A. § 24-7-701, under which the jury may take into account opinion evidence of an animal's particular attributes such as breed, age, training, temperament, and use in reaching its verdict.