Georgia case law updates are constantly happening. Here are some of the major court decisions that occurred in 2023.
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Here, we have compiled a summary of major court decisions and Georgia case law updates for 2023.
Year-End Case Law Update 2023
SERVICE OF PROCESS
When a case is dismissed for lack of service of process, the dismissal should always be without prejudice. The question of whether a refiled case is barred by the statute of limitations does not come up until the case is refiled. Stanaland v. McCrimmon, 369 Ga. App. 44, 892 S.E.2d 64 (2023).
Plaintiff did not perfect service under the Non-Resident Motorist Act when he sent notice to the defendant’s attorney instead of the defendant’s last known address as required by the statute. Fuller v. Hendsbee, 367 Ga. App. 624, 887 S.E.2d 683 (2023).
Failure to serve defendant within 4 months after filing of the complaint will warrant a court dismissing a case for lack of diligence in making service even if the trial court entered an order sua sponte that the plaintiff had an additional 30 days to perfect service. Suratt v. MARTA, 369 Ga. App. 411 (2023).
Company can be served through Secretary of State if its registered agent or office cannot be located, and its managers refuse to be served at the company’s business address. Williams v. Abebe Sandy Ventures, LLC, 366 GA. App. 883, 884 S.E.2d 576 (2023).
STATUTE OF LIMITATIONS
Contractual limitation on filing actions contained in home inspection contract was valid and enforceable and required injury to occur within one year of inspection to be actionable. BPG Inspection, LLC v. Omstead, 367 Ga. App. 128, 883 S.E.2d 593 (2023).
PARTIES
Defendant cannot force a plaintiff to add defendants to a lawsuit. Deaton Holdings, Inc. v. Reid, 367 Ga. App. 746, 888 S.E.2d 333 (2023)
180-day period to substitute representative of estate for deceased defendant after suggestion of death is filed in pending case does not start running until the representative of the estate is served with the suggestion of death by the defendant. Woodruff v. Jones, 366 Ga. App. 393, 883 S.E.2d 70 (2023).
DISMISSAL AND RENEWAL OF COMPLAINT
The two dismissal rule will bar any claims against the same defendant or any entity that is in privity with the defendant such as a subsidiary and parent company. Hines Interests Limited Partnership v. Wright, 369 Ga. App. 174, 892 S.E.2d 808 (2023).
DISCOVERY
Hearing notice on a motion to compel against a nonparty must be personally served on the nonparty. Georgia Pain & Wellness Center v. Hatchett, 368 Ga. App. 215, 888 S.E.2d 650 (2023).
DEFAULT JUDGMENTS
Even if a motion to set aside a default judgment is filed during the same term of court that the default is entered, the defendant bears the burden of proving some good reason why he did not file his answer in time and that there is a meritorious defense to plaintiff’s claim. Samsung Electronics America, Inc. v. Brewer, 368 Ga. App. 608, 890 S.E.2d 498 (2023).
ADMISSIBILITY OF EVIDENCE AT TRIAL
A certified copy of a police report is admissible as a business record as to any observations made by the police officer himself but not for hearsay statements of witnesses. Arnold v. Liggins, 368 Ga. App. 544, 890 S.E.2d 446 (2023).
A health insurance form from a medical funding company qualifies as a medical bill that can be authenticated by the plaintiff. Arnold v. Liggins, 368 Ga. App. 544, 890 S.E.2d 446 (2023).
JURY TRIALS
Pattern charge on preponderance of evidence charge is confusing, and jury should be charged that the burden of preponderance of the evidence is simply rather or not the evidence proves something is more likely true or not. White v. Stanley, 369 Ga. App. 330, 893 S.E.2d 466 (2023).
SETTLEMENTS
When Plaintiff’s counsel makes obvious clerical error in the amount of a demand, the court can set aside the demand after accepted by defense counsel if the court finds that there exists good cause to set aside the settlement. Miller v. Evans, 366 Ga. App. 798, 884 S.E.2d 398 (2023).
OFFER OF SETTLEMENT STATUTE
An offer of settlement must be made by certified mail or statutory overnight delivery and cannot be made by facsimile or e-mail. Arnold v. Liggins, 368 Ga. App. 544, 890 S.E.2d 446 (2023).
An offer of settlement made in original case will not apply if the original action is dismissed and a renewal action is filed. Carr v. Yim, 369 Ga. App. 389 (2023).
EXPERTS
Although an expert may lack direct evidence of the cause of a fire and cannot state his opinion to a reasonable degree of scientific certainty, he can rely on circumstantial evidence to support his theory as long as the theory has a scientific basis and is not complete speculation and conjecture. Early v. Morgan Fleet Services, Inc., 368 Ga. App. 175, 888 S.E.2d 193 (2023).
An expert who tries to give an opinion on medical causation but has no experience with the type of condition involved cannot base his opinion on internet searches. Humphrey v. Emory Clinic, Inc., 369 Ga. App. 131, 892 S.E.2d 569 (2023).
Police officers are subject to the same Daubert requirements as other experts in deciding if their onions are admissible. Miller v. Golden Peanurt Co., LLC, 317 Ga. 22, 891 S.E.2d 776 (2023).
Expert who is criticizing actions taken by defendant’s employees must have some standard or guide or basis for claiming that employee should have done more. National Emergency Medical Services v. Smith, 368 Ga. App. 18, 889 S.E.2d 162 (2023)
If the expert utilizes an acceptable methodology on causation, his opinions do not have to be to any level of reasonable certainty and just need to show that more likely than not something occurred as a result of the defendant’s conduct. Sampson v. The Medical Center, Inc., 369 Ga. App. 627 (2023)
An expert can rely on peer-reviewed literature and studies to make up for any lack of experience in dealing with a specific causation opinion. Preferred Women’s Healthcare, LLC v. Sain, 367 Ga. App. 821, 888 S.E.2d 599 (2023).
NEGLIGENCE CLAIMS
Mother could not be held responsible for negligent entrustment of vehicle to her daughter since her daughter was required to ask permission to drive the vehicle and did not do so on the day of the incident. Bassett v. Winfield Farm, Inc., 369 Ga. App. 208, 891 S.E.2d 547 (2023)
Company who did not own vehicle could not be held responsible for negligently entrusting vehicle to driver. Bassett v. Winfield Farm, Inc., 369 Ga. App. 208, 891 S.E.2d 547 (2023)
In order to have a claim for negligent entrustment, the owner of the car must have knowledge of the driver’s incompetence or habit to drive recklessly. Riley v. Barreras, 368 Ga. App. 320, 890 S.E.2d 36 (2023).
Failure to follow HUD standards and regulations for Section 8 housing can be considered as negligence per se. Mercy Housing Georgia III, L.P. v. Kaepa, 368 Ga. App. 270, 888 S.E.2d 346 (2023).
Testimony that lead car stopped suddenly creates a jury issue as to negligence when following car rear-ends the stopped vehicle. Jackson v. Jack, 367 Ga. App. 622, 887 S.E.2d 687 (2023).
Tractor-trailer driver who swerved left and left his lane of travel striking car that turned left in front of him presented evidence of negligence that a jury would have to determine who was at fault. Wang v. Dukes, 368 Ga. App. 661, 890 S.E.2d 283 (2023).
DEFENSES TO NEGLIGENCE CLAIMS
Where driver suffered gastrointestinal bleeding that led to medical emergency causing accident, employer was not entitled to summary judgment on Act of God defense since employee’s medical records indicated that he was at risk for bleeding and should be looking for it for years and was told not to drive for a period of time and no record indicated he was cleared to return to driving by his doctor. ABM Aviation v. Prince, 366 Ga. App. 592, 884 S.E.2d 8 (2023).
Mitigation of damages defense is not available when the claim is that plaintiff failed to get initial treatment because he did not recognize the severity of his injury and is only applicable if the plaintiff failed to continue treatment or follow the doctor’s advice after seeking treatment. North Fulton County Charities v. Goodstein, 367 Ga. App. 576, 887 S.E.2d 646 (2023).
Summary judgment was not appropriate on assumption of risk when worker was building fence near dead tree since worker testified that he knew tree was dead and needed to be removed but thought the tree would not fall if he built fence away from the tree’s root system. Worth v. First Key Homes, LLC, 367 Ga. App. 762, 888 S.E.2d 360 (2023).
VICARIOUS LIABILITY
Employee’s decision to dare a customer to do something dangerous is not in furtherance of his employer’s business and is outside the scope of his employment as a matter of law. Friendship Enterprises v. Hasty, 368 Ga. App. 7, 889 S.E.2d 137 (2023).
An employee commuting to his usual place of work is outside the scope of his employment even if he is coming in on a holiday. Graham v. Hospice Savannah, Inc., 368 Ga. App. 91, 889 S.E.2d 212 (2023).
Employee was within the scope of his employment when he had auto accident in employer owned parking lot reporting to work in the morning. Odom v. Franklin, 368 Ga. App. 246, 889 S.E.2d 405 (2023).
While an employee is generally not within the scope of his employment during a lunch break or going to or from work, if there is evidence that the employee is acting in furtherance of the employer’s business at the time then he is within the scope of his employment regardless of being on a personal mission. Prodigies Child Care Management, LLC v. Cotton, 317 Ga. 371, 893 S.E.2d 640 (2023).
Employee’s taking of van without permission from his employer cut off the employer’s liability for subsequent accident given that there was no indication that employee was going to steal van and had never taken van without permission in the past. Self v. Local Mechanical Networking, Inc., 369 Ga. App. 153, 892 S.E.2d (2023).
Employee was not within scope of employment when driving a company-owned vehicle after leaving work and going to restaurant and then heading home at time of collision. Campbell v. Courtesy Ford, Inc., 367 Ga. App. 24, 884 S.E.2d 617 (2023).
APPORTIONMENT
Apportionment of fault cannot be allocated between an employee and an employer when the claim of liability for the employer is solely vicarious liability, and an employee and employer are treated as one person under the apportionment statutes O.C.G.A.§ 51-12-33. Eliezer v. Mosley, 369 Ga. App. 102, 891 S.E.2d 555 (2023).
Verdict that awards damages to plaintiff but allocates 50% or more of fault to plaintiff can be corrected by entering a defense verdict and is not contradictory or invalid. Cruz v. Patel, 367 Ga. App. 429, 886 S.E.2d 386 (2023).
SPOLIATION OF EVIDENCE
In ruling on a spoliation motion, the court must conduct an evidentiary hearing or rule on a motion for summary judgment supported by the factual record presented by the parties. UPS v. Whitlock, 366 Ga. App. 542, 883 S.E.2d 556 (2023).
UNDERINSURED MOTORIST COVERAGE
Failure to pay insurance premium when policy is first issued will void UM policy from its inception. Ball-Rodriguez v. Progressive Premier Insurance Company of Illinois, 367 Ga. App. 481, 887 S.E.2d 74 (2023).
WRONGFUL DEATH
Georgia will usually adopt the wrongful death statute of the state in which the accident occurred unless the wrongful death statute is in direct conflict and repugnant to the public policy of Georgia’s wrongful death statute. UPS v. Whitlock, 366 Ga. App. 542, 883 S.E.2d 556 (2023).
Under equitable principles, adult daughter can bring wrongful death claim if spouse is unwilling or unable to bring it. Hamon v. Connell, 315 Ga. 760, 883 S.E.2d 785 (2023).
PUNITIVE DAMAGES
A failure to know the existence of an internal safety policy or to be trained on that policy can give rise to a claim for punitive damages. Atlantic Star Foods, LLC v. Burwell, 368 Ga. App. 79, 889 S.E.2d 202 (2023).
Statutory caps on the amount of punitive damages that can be recovered are constitutional. Taylor v. Devereux Foundation, Inc., 316 Ga. 44, 885 S.E.2d 671 (2023).
ANTE LITEM NOTICE FOR GOVERNMENTAL CLAIMS
As part of ante litem notice, claimant must make a specific monetary demand and cannot use language such as “not less than” an amount because it does not contain a specific amount to settle the case for. Payton v. City of College Park, 368 Ga. App 396, 890 S.E.2d 278 (2023).
Ante litem notice does not apply to public water authority. Thomas v. Henry County Water Authority, 367 Ga. App. 469, 886 S.E.2d 857 (2023).
Claim against sheriff in official capacity had to comply with ante litem requirements for sending notice to county. Morney v. Kiker, 367 Ga. App. 194, 885 S.E.2d 229 (2023).
Ante litem notice which alleged negligence of school led to death of student did not put city on notice of claim since nothing in the notice alleged that the city was negligent. Wallace v. City of Atlanta, 368 Ga. App. 260, 889 S.E.2d 438 (2023).
SOVEREIGN IMMUNITY
Housing authorities do not have sovereign immunity because they are not a state entity. Files v. Housing Authority of City of Douglas, 368 Ga. App. 455, 890 S.E.2d 356 (2023); Pass v. Athens Housing Authority, 368 Ga. App. 445, 890 S.E.2d 342 (2023).
There is no waiver of sovereign immunity for design of a roadway if the roadway complied with the design standards at the time it was constructed. However, a claim for negligent inspection is still viable to the extent that the DOT was required to inspect for the roadway for hazards. Munro v. DOT, 368 Ga. App, 785, 890 S.E.2d 349 (2023).
City’s knowledge of prior complaints of fall in pothole around water valve box required them to repair condition before plaintiff fell in pothole. Tucker v. City of Thomasville, 367 Ga. App. 700, 888 S.E.2d 265 (2023).
LIABILITY FOR INJURY ON PREMISES
Business had actual knowledge of mat because employees regularly picked up mat from floor and put it back down allowing them to be held liable for fall on raised mat. Johnson v. LT Energy, LLC, 366 Ga. App. 439, 890 S.E.2d 320 (2023).
Plaintiff cannot recover for fall on paper towels on floor from overflowing trash can in bathroom given that plaintiff admitted he saw them on the floor when he went into bathroom and fell on the way out. P&P Ole Times v. McCray, 369 Ga. App. 270, 893 S.E.2d 171 (2023).
Slip and fall on leaves on a front steps will be barred by equal knowledge absent some defect with the steps themselves or problem with the lighting in the area. Suddarth v. Lounsbrough, 369 Ga. App. 158, 892 S.E.2d 582 (2023).
Plaintiff who was aware of location of pit from having visited property numerous times cannot recover for walking backwards and falling into pit. Howard v. CTW Enterprises, Inc., 367 Ga. App. 494, 885 S.E.2d 828 (2023).
NEGLIGENT SECURITY
Prior complaints of sexual assault and touching that occurred at a hospital made summary judgment improper for a claim that a patient on a ventilator was sexually assaulted by unknown men even though the prior instances were not identical. D.L. v. St. Francis Health, LLC, 369 Ga. App. 314 (2023).
In determining if a third-party criminal act is foreseeable, the question is whether the totality of the circumstances relevant to the premises gave the owner sufficient reason to anticipate the criminal act giving rise to the plaintiff’s injury. Reasonable foreseeability can be established by evidence showing that the owner had knowledge of prior criminal activities that occurred on or near premises so that a reasonable person would take ordinary precautions to protect his customers against the risk posed by that type of activity. It is not required that there be substantially similar prior crimes and identical crimes are not necessary to show foreseeability. Georgia CVS Pharmacy, LLC v. Carmichael, 316 Ga. App. 718, 890 S.E.2d 209 (2023).
DOG BITES
Prior instance where dog jumped on and scratched plaintiff showed dog’s vicious propensity rendering owner responsible for subsequent incident where dog charged at plaintiff, and plaintiff fell trying to escape attack. Cornejo v. Allen, 367 Ga. App. 618, 887 S.E.2d 679 (2023).
Placing dog on tether to single line in back yard without fence in violation of leash law subjects owner of dog to liability for any attack done by dog. Espinoza v. Morel, 367 Ga. App. 184, 885 S.E.2d 188 (2023).
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