Articles Posted in Appellate Law

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The Georgia Supreme Court today issued an opinion that makes it clear the age-old rule of “one free bite” for a dog before an owner can be held responsible is no longer Georgia law.  The Court’s opinion in Steagald v. Eason, S16G0293 (Ga. Sup. Ct. March 6, 2017) overturned prior case law that held the opposite. (“To the extent that the Court of Appeals held otherwise in Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998) (a 4-3 decision), when it said that “the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action,” id. at 635 (citations omitted), the Court of Appeals misconstrued its own precedent, and that decision is disapproved.”). In Steagald, the dog at issue, “Rocks,”  had twice before “snapped” at neighbors, without actually biting them. Then, in a third incident, when the neighbor  approached the dog and extended her arm, Rocks jumped at her, bit her arm, and latched onto it. The neighbor attempted to run away, and when she did, she slipped and fell. At that point, Rocks bit and latched onto her right leg. The woman sustained serious injuries as a result of the attack.

The time-worn “one bite rule” refers to this:  A rule that says that the owner of a domesticated animal (e.g., a dog) will be held strictly liable for injuries caused by the animal only if the owner knew or should have known about the animal’s dangerous or vicious propensities, which have been manifested in the past. The burden of proof is on the injured party to show that the animal owner possessed this knowledge. The “one-bite” rule originated in common law and has been rejected or modified by most states, either by statute or by case law, with regard to dogs.  Many states, including Georgia, have long followed this rule, holding that a dog owner has no liability as a matter of law to a person who his dog bites and injures unless the owner was aware of a previous bite by his dog. But today the Georgia Supreme Court acknowledged that the two prior “snaps” by Rocks at the neighbors were really just “unsuccessful bites.”  The two prior “unsuccessful bites” were enough to put the owner on notice that his dog may have a vicious propensity, which is part of what a plaintiff must prove to prevail in a dog bit case. Justice Keith Blackwell authored the opinion of the Court. Known for his sense of humor, Justice Blackwell apparently found the serious injuries of the Plaintiff no laughing matter and wrote:  “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation. And as the Court of Appeals correctly recognized in earlier decisions, when the evidence shows that an owner or keeper knows of such an attempted bite — that a dog has snapped at someone, nicked someone with its teeth, or otherwise used its mouth to attack someone without injuring her — it may well be sufficient to establish knowledge of a propensity to bite.”  The opinion was unanimous by the Court.

I think the Georgia Supreme Court has fashioned a fair and common sense rule here. The “one free bite” rule let the owners of vicious dogs off the hook, or off the “leash” so to speak, too easily.  We all know a pit bull who barks at someone and snaps and jumps at someone but doesn’t actually bite, is just one leash-break away from a horrific mauling. Dogsbite.org reports in the 12-year period of 2005 through 2016, canines killed 392 Americans. Pit bulls contributed to 65% (254) of these deaths. Combined, pit bulls and rottweilers contributed to 76% of the total recorded deaths. Family dogs inflicted 45% (14) of all deaths in 2016; family pit bulls accounted for 86% (12) of these deaths, up from an 11-year average of 63%. Of the 22 fatal pit bull attacks, 55% (12) involved a family or household member vs. 45% (10) non-family. Many Georgia counties and cities have in place specific ordinances about dogs with vicious propensities, especially pit bulls.  And who can  forget the tragedy of the death of a little boy and mauling of a little girl this January as they walked to their bus stop in Southwest Atlanta by pit bull?  These ordinances are created with the policy in mind of encouraging owners to have better control over their dogs.  And the Georgia Supreme Court’s opinion in Steagald will help hold negligent dog owners responsible for the havoc created by their vicious dogs.  Dog owners should take notice and act accordingly.

 

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As I work in my office, I often have livestreaming a trial or appellate arguments occurring in the Georgia Court of Appeals or the Georgia Supreme Court.  I have previously blogged about the meaning of open courts and the value in being able to watch our judicial branch at work. It is your government in action and every citizen has the right to watch it and should be able to watch it.  I firmly believe in it. Today I am glad to see others get on my bandwagon.  CNN published an article today online that essentially agrees with my position. Given the current state of affairs with the attempted ban on Muslims by Executive Order and given the President’s attempt to “blame” the Courts for simply upholding the United States Constitution, there has never been a more important time in our Country’s history than for the people to have total access to the courts through livestreaming or video.   Interestingly, oral arguments Washington v. Trump were broadcast on youtube.com although there was no video portion to watch, just audio.  When our own President is attacking the independence of the judiciary, livestreaming oral arguments would be the very proof needed to show he simply does not know what he is talking about.  Livestreaming oral arguments dealing with unconstitutional executive orders would dispel any absurd suggestion that courts or judges are political and are making decisions based on political pressures. It is ridiculous that our President would even suggest such a thing, when it is absolutely not true, but for any American who might for a minute believe it, they could simply watch for themselves and realize that our judges are making their decisions based on the facts, the law and the Constitution. Increased transparency promotes public participation, open government, access to information, efficiency, higher quality decision- making, and accountability. Further, transparency  reduces the opportunity for corruption.

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

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As many of you know, I often watch oral arguments in the Georgia Supreme Court via its livestreaming capability on its website.   I encourage you to watch, as well. If you are reading my blog it means you must be interested in Georgia law, and what better way to gain some insight than to watch arguments before the State’s highest court? Having available online the live streaming of oral arguments really is a public service to Georgia citizens and a nod to open and transparent government from the Judicial Branch of Georgia government.

I wanted to let you know that tomorrow, February 7, 2016, an interesting and very sad case will be argued before the Georgia Supreme Court, City of Richmond, GA v. Maia.  I blogged about the Maia case when it was before the Georgia Court of Appeals.  My blog then asked “Who is legally responsible for suicide?”  Suicide and suicide prevention has been an interest of mine since one of my dear friends committed suicide in 2012, when I was President of the State Bar of Georgia. His suicide led me to form the State Bar’s Suicide Prevention Campaign “How To Save a Life.”  The issue of who is to blame for suicide is squarely before the Georgia Supreme Court now.  The City of Richmond argues you can never blame a third party for someone’s suicide because suicide is also an independent, intervening act.  This is based on years of rather old Georgia case law.  But we know now, after suicide prevention has become more of the public conversation and as open discussion about suicide is helping to remove the stigma associated with suicide, that sometimes it seems suicide can often be traced directly back to bullying of the victim by third parties.  It will be an interesting case to watch. My good friend Carl Varnedoe will be arguing for the Plaintiff and my good friend Pat O’Connor will be arguing for the City of Richmond.  Below is the Supreme Court’s case summary. I’ll keep you posted, as promised.

Tuesday, February 7, 2017 10:00 A.M. Session

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Many of you know that as President of the State Bar of Georgia I began a statewide effort to reduce suicides among attorneys, which was occurring at an alarming rate. I created the State Bar’s “How To Save a Life” program and we set about educating our members about the warning signs of suicide, what to say and what not to say to a colleague or friend who you suspect may be contemplating suicide and the steps to take to help prevent suicide.  In the process, I learned a lot myself and suicide prevention has become a movement I hold dear, although I had certainly never even given it a second thought before I was faced with it in our membership as President of the State Bar. As a result of this learning process for me, I read just about everything I can on suicide.

Which brings me to the subject of this post: who is legally responsible for the suicide of someone else?  The recent Georgia Court of Appeals opinion in Mayor and City Council of The City of Richmond Hill v. Maia, No. A15A2334 (Ga. Ct. App. March 20, 2016), which may very well be one of the saddest cases I have ever read, answers that question in the context of city police officer and suicide victim and held the victim’s suicide was a reasonably forseeable consequence of the police officer’s negligent conduct where the police officer had a specific duty not to disclose the suicide victim’s confidential information.  The appellate court held that issue was one for the jury to decide and the case was remanded to the trial court for a trial. It is my understanding, however, that the City of Richmond has appealed to the Georgia Supreme Court and the case is on the Supreme Court’s July docket. 

The facts of City of Richmond Hill are heartbreaking and very difficult to read and even imagine.  A young high school teenager attempted suicide by cutting her neck and stabbing herself.  Her mother placed her in a mental health hospital after the attempt.  The child stayed there for 9 days and then returned to her school.  As such things are with teenagers, the child’s suicide attempt became the talk of the school. According to her boyfriend’s testimony in the case “everybody knew after a couple of days what happened.” The City of Richmond Hill police department investigated the suicide attempt and as part of their official police investigation took photographs of the child’s injuries from the suicide attempt.  In what appears to be a horrific irony, one of the investigating police officers had a child who attended the same high school as the victim. The police officer became concerned  that his child did not appreciate the seriousness of the suicide attempt and so, in clear violation of the police department’s written policy entitled “Duty to Refrain from Disclosing any Information Relating to Police Activities,” showed the photographs of the victim to his daughter by accessing them through the police department’s computers. The police officer swore that he did not give them to his daughter or print them, but within days his daughter was showing these photographs of the victim on her cell phone to other students in the high school.

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Can a County Police Officer be held liable for failing to prevent the suicide of an inmate under his custody?  That is the interesting question in the case below, which was argued before the Georgia Supreme Court this week. Below is the Court’s summary of the case. It gives you some of the pertinent facts and then a synopsis of the arguments and positions of both sides in the case. For court watchers and trial junkies this is a helpful tool provided by the Court (presumably written by one of the Court’s clerks;  I did not write it) to be able to follow along in oral argument.  By the way, the Georgia Supreme Court’s oral arguments all can be viewed through their livestreaming capability found on its website. 
And if you can’t catch them live, the arguments are taped and available for your leisure viewing on the website, as well.
Pearce v. Tucker will be a case I’ll be watching as it turns on the old “discretionary v. ministerial” argument trap that really needs to be abolished in favor of including all such claims against counties as part of the Georgia Tort Claims Act. This would give this area law the predictably it desperately needs.  Hopefully, the Georgia Legislature will address that one day. In the meantime, every time there is a case against a county employee, like the one below, the Court must go through this time-worn analysis  of whether the employee’s conduct was discretionary, for which the employee has immunity, or whether it was ministerial, for which the employee does not have immunity.  Stay tuned. Should be interesting.