Joshua Martin v. Six Flags: A Landowner’s Nondelegable Duty to Keep Its Property Safe


The case of Joshua Martin v. Six Flags Over Georgia is being tried this week in Cobb County State Court before the Honorable Kathryn Tanksley. You may recall the sad incident in which a gang beat Joshua severely to the point of putting him into a coma at Six Flags of Georgia. Joshua suffered a traumatic brain injury from the beating but survived. Unfortunately, he will never be the same as he was before the beating. Joshua is very ably being represented by trial attorneys Mike Neff, Gil Deitch and Andy Rogers.

The case is being tried because Six Flags Over Georgia has refused to accept any responsibility for the beating. In a written statement, Six Flags officials say the attack did not happen on their property but they are helping authorities in the matter and they strive to keep visitors safe. So Six Flags is denying any responsibility. This is true even though one of the gang members who ultimately pled guilty to aggravated assault, Brad Johnson, was an employee of Six Flags at the time. I was in court yesterday when Mr. Johnson testified after I had ridden up to the third floor of the Courthouse with him in the elevator. He testified under oath yesterday that he had stored a pair of brass knuckles in a flower bed at Six Flags as he came to work that day and retrieved them when he left with several other gang members. He gave the brass knuckles to another individual who used them in the beating of Joshua Martin. One of Mr. Johnson’s jobs at Six Flags was to maintain that particular flower bed so he knew, apparently, that his brass knuckles would be safe until he wanted to use them. So for his role he plead guilty to aggravated assault, received a sentence of 10 years to serve two, which means he spent less than two years in prison and now is on probation for 8 years.

Other startling testimony from the trial yesterday was that this gang intended to beat a man who was in the parking lot with his family, and then, as a whim, just decided to beat Joshua instead. The former President of Six Flags Over Georgia also testified yesterday and said the beating of Joshua occurred on a corner of an a dirt walkway that both patrons and employees used to walk from the CCT and MARTA bus stops to the Six Flags entrance way. Yet Six Flags still maintains it’s defense that it’s not responsible because it didn’t happen on Six Flags property. The Six Flags President also remarkably testified that Six Flags didn’t try to warn or alert the public that this had occurred right at the mouth of Six Flags because “she didn’t see the need for that.” I was watching jurors’ reactions to her testimony and several jurors showed outright disbelief at this testimony.

Under Georgia law, O.C.G.A. Section 51-3-1, a landowner has a nondelegable duty to keep its premises and approaches safe for people who have business on the property. A Six Flags patron would be called an “invitee” under Georgia premises safety law and the landowner, here Six Flags, would owe that invitee the highest duty owned to someone on your property, a duty of ordinary care to keep the person safe. This is why Six Flags claims the dirt path from the bus stops to its entrance way is “not their property” even though their customers and their own employees use it on a daily basis to go to the park.

It will be interesting to see what the Cobb County jury does with that defense. From my personal observations yesterday, it didn’t seem like the jury was buying it to me. But after trying cases in Georgia for 25 years now I am through trying to predict what juries will do. jurydrawing.jpg

It has taken a long time for this case to make it to a jury because it had a detour to the Georgia Court of Appeals on this issue of apportionment. “Apportionment” under Georgia law refers to the ability of the defendant to blame others for the incident, even if those others are not defendants in the lawsuit. Unfortunately, our Georgia Supreme Court has already ruled that it is proper to include in apportionment for “fault” even someone who was a criminal defendant who intentionally committed a crime and even in a premises liability lawsuit like this one where the landowner under the statute quoted above has a nondelegable duty to keep the premises safe against the very risk of a criminal act. How could that be? It seems inherently unfair to me, but that is how the Georgia Supreme Court interpreted that statute. So that will be another interesting thing to watch in this trial, who the trial court will allow the jury to consider apportioning fault to and whether the jury will bite, that is, the jury may decide the criminals who beat Joshua should have no civil liability at all. Said another way, the jury might very well decide that Six Flags Over Georgia shouldn’t be allowed to get off the hook because four of the gang members pled guilty in connection with the beating of Joshua Martin.

The jury should get the case this afternoon and then it will be solely in their hands. I’ll be watching.

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