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Released Opinions

October 6, 2014

This morning, in addition to hearing argument, the Supreme Court of Georgia released opinions in 18 cases, six of which are within the scope of our coverage. Summaries of the cases and opinions are below.

S13G1843 Ambling Management Co., LLC et al. v. MillerS13G1852 City Views at Rosa Burney Park GP, LLC et al. v. Miller

This case began when Tramaine Miller arrived at City Views apartments to assist his disabled aunt with her medications. After parking in a handicapped space without the proper permit, Miller was approached by an off-duty police officer working security at the complex. When Miller failed to heed the officers’ instructions and placed what the officer believed was drugs in his mouth, the officer broke the window of the vehicle. The officer testified that he saw Miller reach for what the officer believed was a weapon and so he fired, hitting Miller in the face. Miller sued the apartment complex, the management company, the off-duty officer, and the apartment manager. The trial court granted summary judgment to the apartment complex on the issues of vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. Miller appealed.

A seven-judge panel of the Court of Appeals affirmed in part and reversed in part in a 5-2 vote (Doyle, Phipps, Barnes, Ellington, McFadden; Boggs and Branch, concurring in part and dissenting in part). Writing for the Court of Appeals majority, Judge Doyle explained that the trial court first improperly granted summary judgment on the vicarious liability issue. Liability for the torts of an off-duty officer does not automatically attach to the private company, because the officer may be exercising functions for the public at the time. Because there was some evidence supporting a finding that the officer was performing a security function instead of a police function prior to the shooting, the trial court should not have granted summary judgment. Because the vicarious liability portion of the case remains active, the majority found the trial court’s finding on punitive damages must be reversed as well. But the majority also found the trial court correctly determined that summary judgment was proper regarding Miller’s premises liability claim. Judges Boggs and Branch would have affirmed the trial court decision on the vicarious liability and punitive damages issues because the undisputed testimony showed the officer was trying to arrest Miller when he was shot.

On January 27, 2014, the Supreme Court of Georgia granted the petitions for certiorari in a 5-2 vote (Benham and Hunstein dissenting) to consider the following question:

  1. Did the Court of Appeals’s majority opinion err in focusing on the evidence of whether Officer Fisher was performing police duties not directed by his private employer at the time he approached and engaged Miller, instead of at the time the alleged causes of action arose?

The cases was heard on April 18, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the Court of Appeals’ decision. Writing for the Court, Justice Benham explained that the proper focus of the analysis was the capacity in which the officer was acting at the time the tort arose. But the Court of Appeals determined summary judgment was not appropriate because a jury could conclude that, when Fisher engaged Miller, he was acting as an officer to enforce regulation of handicap spaces. Instead, the Court of Appeals should have focused on Fisher’s actions at the time the cause of action arose, i.e., stopping the vehicle, breaking the window, drawing his weapon, and firing. While the initial reasons for approaching Miller are relevant, the factual analysis must go beyond those initial events. In spite of these shortcomings, the ultimate conclusion of the Court of Appeals was correct and summary judgment is inappropriate, because there is a dispute of fact regarding Fisher’s testimony and whether City Views directed arrests.

S14G0431 Board of Regents of the University System of Georgia v. Myers

This case began when Kimberly Myers stepped on the edge of an unrepaired pothole at the Dalton State College campus. She was injured and had to receive emergency medical attention, including additional doctor visits and physical therapy. Three and a half months after the injury, Myers sent an ante litem notice under the Georgia Tort Claims Act (GTCA), asserting a negligence claim against the Board of Regents based on the conditions in the parking lot. The notice did not state the total amount of her damages, because Myers said she was still incurring medical bills. The Board’s response requested verification of losses, and Myers’ attorney did not respond for nearly a year. After another request from the Board for a settlement demand in August 2011, Myers’ attorney responded in April 2012 seeking $110,000. In May 2012, the Board offered the actual amount of Myers’ medical expenses, $10,128.24, to settle and Myers sued. The Board moved to dismiss the case because of the lack of an effective ante litem notice, depriving the court of jurisdiction. The trial court granted the motion and Myers appealed.

The Court of Appeals reversed the trial court decision in a 5-2 vote (Doyle, Phipps, Barnes, Ellington, concurring; McFadden, concurring specially; Boggs and Branch, dissenting). The majority explained that the key issue was whether the language in the ante litem notice was sufficient to state the amount of the loss. Because the Torts Claims Act only requires a statement of loss to the extent of the claimant’s knowledge and belief, Myers’ notice was sufficient.

On March 3, 2014, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals majority correctly interpret the ante litem notice requirements of OCGA § 50-21-26 (a) (5) (E)?

The case was heard on May 5, 2014.

On October 6, 2014, the Supreme Court reversed the Court of Appeals in a 6-1 decision (Benham, dissenting). Writing for the Court, Justice Hunstein explained that strict compliance with the terms of the GTCA is required to obtain the limited waiver of sovereign immunity it offers. While Myers did not yet know what her total amount of loss would be at the time of her ante litem notice, the statute requires a statement of the amount of the loss claimed “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.” The statute does not require a notice of the entire loss or total loss. Instead, it requires notice of the amount of the loss claimed at the time. Because Myers failed to give proper notice, the state did not waive sovereign immunity and the trial court lacked jurisdiction.

S14A0728 Jansen-Nichols v. Kinder Morgan Southeast Terminals, LLC et al.

This case involves helicopter flights over the home of Ms. Jansen-Nichols. Ms. Jansen-Nichols owns a house across the street from two of Colonial Pipeline’s pipes that carry gasoline and diesel fuel. Colonial owns easements that allow it to construct, operate, and repair the pipelines. On two occasions in May and June 2013, Colonial’s leak detection systems triggered and Colonial dispatched an inspector in a helicopter to visually inspect the pipeline. Ms. Jansen-Nichols claimed that the helicopters hovered low over her house, causing alarm to those inside. The inspector and pilots testified that helicopters flew at an altitude of 150 feet, staying along the edge of the easement for the length of the line. The trial court denied Ms. Jansen-Nichols’ motion for a preliminary injunction and she appealed.

The case was heard on April 7, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the trial court. Writing for the Court, Justice Blackwell explained that the trial court did not abuse its discretion in finding that Jansen-Nichols did not show any of the four factors required for an interlocutory injunction. In addition, the denial of an interlocutory injunction is not an endorsement of low overflights of her home, because a wrongful act is a tort regardless of whether a court enjoined it.

S14A0779 Heiskell, Comr., et al. v. Roberts

This case involves the salary of a former judge on the State Court of Walker County. When Bruce Roberts was appointed by the Governor to the State Court, he met with the sole commissioner of Walker County, Bebe Heiskell, to discuss his salary. Commissioner Heiskell claims they agreed to $100,000 annually, while Roberts claims he expected to earn $172,102.80, the salary of the former judge, because he was filling an unexpired term. After Roberts lost the election in 2012, he sued the county for the difference in what it paid the former judge and what he was paid. The trial court granted mandamus against the county in Roberts’ favor and awarded him $78,878.55 in salary plus his legal fees. The county appealed.

The case was heard on May 5, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed in part and reversed in part. Writing for the Court, Justice Nahmias explained that the Georgia Constitution creates an entirely new and shortened initial term of office for an appointed judge. Appointees to judgeships (other than magistrate court judgeships) do not serve out the unexpired term of their predecessors and, as a result, there was no decrease in Roberts’ salary during his term of office. The trial court erred in awarding Roberts the difference in his salary and the salary of the former judge. In addition, the trial court properly dismissed counterclaims based on Roberts’ conduct, but erred in dismissing the county’s counterclaims to recover salary overpayments, because receiving an incorrectly-calculated paycheck is not a judicial function. Based on the Court’s determinations on the substantive claims, the award of attorney’s fees must be modified, but Roberts is entitled to some fees for defense of the counterclaims involving his conduct as a judge.

S14A0931 Trop, Inc., d/b/a Pink Pony et al. v. City of Brookhaven et al.

This case involves the constitutionality of a Brookhaven ordinance prohibiting nude dancing combined with the sale of alcohol. The Pink Pony is located in the new City of Brookhaven. In January 2013, the city passed an ordinance banning the consumption of alcohol in establishments where nude dancing takes place. The Pink Pony sued, claiming its prior settlement regarding a similar ordinance from DeKalb County exempted it from the City’s ordinance and that the ordinance was unconstitutional. The trial court granted the City’s motion to dismiss, finding the ordinance constitutional and that the Pink Pony did not have standing to challenge other provisions of the Brookhaven Code. The Pink Pony appealed.

The case was heard on June 2, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the trial court decision. Writing for the Court, Justice Melton explained that the main question raised by the Pink Pony was that the City’s sexually-oriented business code violated its free speech rights. But the trial court ruled correctly that the ordinance was constitutional because it meets the content-neutral test. The prior settlement agreement does not change that result, because the prior agreement with the county cannot be used to bind the later-incorporated city.

S14A0932 Unified Government of Athens-Clarke Co. v. Stiles Apartments, Inc.

This case is making its second appearance before the Supreme Court, involving a parking lot in Athens.

This case began with a 1954 agreement between Stiles Apartments and Athens regarding parking spaces along Lumpkin Street. Stiles paid the construction costs to relocate the sidewalk to private property and create a parking lot with 22 spaces. The lot was to be maintained by Athens as if it was public property. In 2003, Stiles attempted to remove several cars that remained parked in the lot for days but was told by the county attorney that the parking area was public and Stiles could not control who parked there. Stiles sued, claiming it had ownership of the parking lot and the trial court issued an interlocutory injunction prohibiting Athens from asserting any control over the parking area.

Athens-Clarke County appealed in 2012 and the Supreme Court affirmed, finding that there was evidence to authorize the grant of interlocutory injunctive relief, but leaving the question of whether the 1954 agreement intended to preserve public property rights in the land. After a trial, the lower court entered final judgment, finding that the agreement did not make the parking area available to the public. Athens-Clarke County appealed.

The case was heard on June 2, 2014.

On October 6, 2014, the Supreme Court unanimously affirmed the trial court decision. Writing for the Court, Justice Benham explained that the contract shows the parties intended to relieve traffic congestion on South Lumpkin Street and creating a parking area was the means to achieve that goal. The different treatment between the parking area and the sidewalk shows that the parties never intended for the parking area to be kept open for the public. The remaining claims asserted by Athens-Clarke County did not provide a basis for changing the trial court’s ruling.


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