Articles Tagged with premises liability

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A recent opinion by the The Georgia Court of Appeals, our Intermediate Appellate Court in Georgia, regarding Georgia’s obsolete “impact rule” certainly caused an impact, and not a good one.  In Holt v. Rickman, A23A0612, 2023 WL 3858619 (Ga. Ct. App. June 7, 2023) an apartment guest brought action against owners and manager of apartment complex, asserting claims for premises liability and negligent hiring, retention, and supervision after she awakened to discover maintenance worker in her bed.

The facts of Holt are startling, to say the least.  A guest of a resident staying in one of the apartments woke up to find an intruder lying next to her on top of the covers on the bed. The intruder was actually a maintenance employee of the apartment complex. He pulled the covers down saying he wanted to “see what she looked like under there.” As he did so, he touched the top of her head. The woman pretended to reach for a weapon and that caused the intruder to flee. As you can imagine, this bizarre incident had to have been frightening. During litigation it was discovered that the apartment complex hired the intruder/maintenance employee in 2016 despite a background check showing he had two pending child molestation charges. He had pled guilty to lesser charges of sexual battery against a child under the age of 16. He was on the Georgia Sexual Offender Registry. The Defendant, with this knowledge in hand,  continued to employ him as a maintenance worker with access to a master key, which led to his ability to break into the apartment and to attempt to sexually assault the plaintiff.

The Georgia Court of Appeals held that Georgia’s antiquated “impact rule” applied to the situation and affirmed the grant of summary judgment to the apartment complex. Case dismissed. The “impact rule” is not state-of-the-art science about how an event can affect someone emotionally or psychologically. In fact, it was created in 1892, when there was very little understanding, if any, of psychological trauma. The “impact rule” says that when a person suffers no physical injury as a result of the  incident that forms the basis of the claim, there is no recovery for emotional distress. Georgia’s “impact rule” provides that “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Ryckeley v. Callaway, 261 Ga. 828, 828, 412 S.E.2d 826 (1992). To satisfy the rule, a plaintiff must show that she (1) suffered a physical impact that (2) resulted in a physical injury which (3) caused her mental suffering or emotional distress. Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (I), 533 S.E.2d 82 (2000). A plaintiff’s failure to meet any one of the three requirements of the impact rule bars recovery even in cases “in which the circumstances portend a claim of emotional distress.” Id.

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Let’s say you have been injured in a car wreck, or in a fall at a store, and the insurance adjuster for the insurance company of the at-fault driver or of the store owner calls you after your injury. They often want to take a recorded statement (which you should NOT give unless you have your lawyer present) about what happened, how you were injured and what your injuries are. Then they might reassure you that they “are there for you,”  and will be looking forward to resolving your claim with you, “don’t worry, everything will be okay,”  or “we’ll take care of you, just let us know when you have finished your medical treatment.”  Makes you feel better, right? So comforting and reassuring. You might even be thinking you can settle your personal injury claim without even having to hire a trial lawyer.  After all,  a trial lawyer will have to be paid for her work and if you can just handle this on your own with this very nice, concerned insurance adjuster, that’s more money for you, right?

WRONG.

One thing that is patently clear that I have come to understand in practicing personal injury law for 30 years in Georgia:  insurance adjusters are not your friends. They are trying to prevent you from being successful on a personal injury claim. They may even resort to trickery, subterfuge, and downright lies.

As many of you may know, the summer is peak time for music festivals. These events draw eclectic crowds of all ages, and cater to a wide range of musical and cultural interests. Recently there was Bonnaroo in Manchester, Tennessee, Firefly in Dover, Delaware, Electric Daisy Carnival in Las Vegas, and many more happening all over the country. These events attract massive crowds by the hundreds of thousands, and unfortunately, they’re no Woodstock. Every year people die at major music festivals, accompanied by hundreds of arrests and injuries. Considering the mass drug and alcohol use that typically takes place, this is not entirely surprising. Some people are beginning to point the finger at the electronic dance music community (EDM) as a whole, as there seems to be more drug related deaths at those festivals. One major electronic festival, Electric Zoo in New York City, was forced to cancel their final day this year due to deaths involving MDMA. Often in these circumstances, it is difficult to allocate responsibility. It is entirely foreseeable that in that large of a crowd, something will go wrong. Police presence and safety measures are not, unfortunately proving up to the task of reasonable safety for such a large crowd.  Families of several victims of an incident at the South by Southwest music festival in Austin, Texas, however, are attempting to hold the festival corporations accountable for wrongful death.

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