Legally Speaking
Volume 2, Issue 3
Fall 2000
McLain & Merritt Joins The Dot Com World
McLain & Merritt is now available to the world on our new web site located at http://mclain-merritt.lawoffice.com. As this newsletter goes to press, the site is being registered with over 500 search engines.
While we are still adding some finishing touches, it is ready for viewing and we invite you to visit often.
Our site has been designed to provide information about our firm and its services. We include a copy of our current newsletter, as well as recent back issues. You will also find substantial resource information, including some of our publications and past seminar materials.
In addition you will see an overview of McLain & Merritt, it’s services and goals; descriptions of all of our practice areas; brief biographies of our attorneys; a list of representative clients; maps to our three offices; and a listing of e-mail addresses for all of our attorneys.
Our goal is to continue improving our site and to make it a valuable source of information for our prospective and existing clients. If you have any suggestions for material you would like to see on our site, please e-mail cconnor@mclain-merritt.com.
Visit often to see the changes and be sure to bookmark it so it will be easy to find.
2000 Fruit Basket Turnover Postponed
After the success of last year’s Fruit Basket Turnover Seminar and the positive comments we received from many of those attending, we had planned on having a second seminar this October or November. As part of our plans, we wanted to have new materials approved for presentation. We did not want to simply repeat the materials used last year. Unfortunately, because of time constraints required for getting approval from the Georgia Insurance Commissioners Office for presentation of materials, we were unable to meet our self-imposed deadline of October 1 for the submission of materials. As a consequence, we decided to postpone the 2000 Fruit Basket Turnover Seminar for a few months so that we can have new materials prepared and approved for presentation. At present, we are attempting to target a date during the spring of 2001, which will not conflict with the Atlanta Claims Convention activities. We apologize if any of you had planned on attending our seminar and are now inconvenienced. If anyone has any suggestions or wishes concerning topics for presentation during the upcoming seminar, please feel free to submit e-mail suggestions to: bsutton@mclain-merritt.com.
Coverage Issues
Atlanta Casualty Co. v. Boatwright, ______ Ga. App. ______, Case No. A00A0201 (5/4/00). A notice of intent to cancel, when sent by an automobile liability insurance company to its insured before the policy is actually past due, is not effective and will not support a cancellation. The policy must be past due before a notice of intent to cancel is sent.
Employment Law Issues
Kirkland v. High & Near Mach., Inc., _____ Ga. App. _____, Case No. A00A0389 (4/25/00). Even where an employer tells an employee that he is not going to be fired, there is no fraud if the employee is later fired, so long as the employee is an employee at will. This is true even where the employer knowingly misrepresents the employee’s future status. Eli v. Stratoflex, 132 Ga. App. 569, 571, 208 S.E.2d 583 (1974).
Premises Liability Issues
Bartlett v. Holder Construction Co., ______ Ga. App. ______, Case No. A00A0484 (6/9/00). Where a general contractor is in control of property for the purpose of a construction project, the general contractor assumes the status of "occupier" so that he has a non-delegable duty under O.C.G.A. § 51-3-1 to exercise ordinary care in keeping the premises and approaches safe. The same rule applies when an owner surrenders only a portion of his premises to a contractor. As to that portion, the contractor incurs a duty to exercise ordinary care for the safety of others.
West v. Briggs & Stratton Corp., ____ Ga. App. ____, Case No. A00A0407 (7/7/00). Although property owners owe a duty to exercise ordinary care for the safety of invitees on their property, they have no duty to employees of an independent contractor, or others invited upon their property by an independent contractor, who has been hired to do work on the property if (1) the owner has relinquished "total" possession of the property in whole or in part; and (2) the owner does not have the right and does not actually control or direct the work being done. There is a caveat to this principle. The caveat is that where an owner is having work done on his property by an independent contractor, and the owner has actual or constructive knowledge of a potential danger on the property, of which the contractor is not aware, the owner has a duty to notify the contractor and his employees of the potential danger.
Hunter v. Cabe Group, ____ Ga. App. ____ Case No. A00A0357 (5/24/00). A property owner may not be liable for a sudden and unprovoked attack by one customer on another. Even where the attacker may have been loud, rowdy, and drunk, this may not be sufficient to put the proprietor on notice of an impending physical attack on another customer. See, W.D. Enterprises v. Barton, 218 Ga. App. 857, 463 S.E.2d 529 (1995); and Knudson v. Lenny’s, Inc., 202 Ga. App. 85, 413 S.E.2d 258 (1991).
Slip and Fall
Pickering Corp. v. Goodwin, ______ Ga. App. ______, Case No. A00A0100 (5/5/00). A mall cannot be held liable for a slip and fall, which occurs less than 90 seconds after a customer spills water on the floor and before the spill has been cleaned up. In this case, an employee saw a customer spill water on the floor of the mall, and immediately reached for a phone to call security to have the spill cleaned up. After making his call, the employee looked back at the spill where the plaintiff had already slipped and fallen. Another mall employee testified that he had walked through the area no more than two minutes before the fall, and the floor had been clean, dry, etc. "Under theunusual circumstances of this case, Goodwin cannot establish that Pickering failed to exercise ordinary care in meeting its duty, and there is thus no factual issue requiring jury determination."
Lee v. Food Lion, ______ Ga.App. ______, Case No. A00A0205 (5/4/00). A plaintiff, who trips and falls while walking across a mat in the entrance of a store, cannot recover where she is unable to testify that the mat was defective or misplaced at the time she fell. In this case, the plaintiff entered a Food Lion and suddenly fell. Because the plaintiff had not looked down, she was unable to describe the condition of the mat before she fell. After the fall, the plaintiff noticed that about an inch of the mat was not completely under the foyer door. Otherwise, the mat was flat and its edges were not curling up. A store employee testified that 10-15 minutes before the fall, he had exited the store and the mat had been in its proper place. "Even assuming arguendo that the mat was slightly askew, Lee did not sustain her burden of producing some evidence that the alleged hazard existed for a sufficient amount of time that Food Lion could have discovered and corrected it."
Jackson v. Waffle House, Inc., _____ Ga. App. ______ Case No. A00A0453 (7/12/00). The Court of Appeals found an issue of fact for a jury where a customer went to a Waffle House, where she had been previously, and tripped while walking across the parking lot. A jury question existed despite the customer’s knowledge that the parking lot was not very level and was slanted and sloped and had holes in it. The Court found "some evidence" that the customer had exercised ordinary care for her own safety to see where she was going and to avoid hazards. The customer had even admitted that she could have seen the hole, which caused her fall, had she looked at it.
Gillian v. Fletcher Bright Co., ______ Ga. App. _____ Case No. A00A0593 (6/1/00). A plaintiff, who slips and falls in a parking lot of a store may be deemed to have equal knowledge of icy conditions, where she ad-mits knowledge that the air temperature was near freezing, that she had seen ice on her car, and that she saw ice and snow in the parking lot before getting out of her car. With these facts the plaintiff had actual or constructive knowledge of the presence of icy conditions before she left her car to walk across the parking lot, and cannot recover.
General Issues
Owens v. American Rufe Systems, Inc., _______ Ga. App. ________ Case No. A00A0851 (6/30/00). Georgia does not recognize a separate tort of spoilation. Gardner v. Blackston, 185 Ga. App. 754, 755, 365 S.E.2d 545 (1998) (physical precedent only). Spoilation occurs where one party does an act, such as destroy evidence, which may prevent another from filing suit or presenting a defense.
Saltis v. Daimler Benz, ____ Ga. App. ____, Case No. A00A0482 (4/14/00). A common carrier, which includes the operator of public conveyances, i.e., shuttle buses, elevators, and escalators, must exercise extraordinary care for the safety of its passengers. In this particular case, the Court of Appeals held that a shuttle train, which operated through the terminals and concourses of the airport in Atlanta, was a public conveyance and was obligated to exercise extraordinary care for the safety of passengers despite the fact that passengers are not charged a fee. "A carrier of passengers is one that undertakes the transportation of persons; a person or corporation who undertakes to transport or convey persons from one place to another, gratuitously or for hire. Such a carrier may be either a special or a private carrier, or a public or common carrier." Darlington Corp. v. Finch, 113 Ga. App. 825, 828, 149 S.E.2d 861 (1966).
Cornelius v. Macon-Bibb County Hosp. Auth, ______ Ga. App. ______, Case No. A99A1639 (3/30/00). O.C.G.A. § 51-4-2 provides that the surviving spouse in a wrongful death action may recover the full value of the life of the deceased spouse. Earlier authority held that marital problems do not reduce the measure of damages that can be recovered. Wright v. Dilbeck, 122 Ga. App. 214, 216, 176 S.E.2d 715 (1970).
Uninsured Motorist Issues
Yates v. Dean, _______ Ga. App. ______ Case No. A00A0008 (6/7/00) A verdict against an uninsured motorist carrier may be reduced to the extent that the uninsured motorist carrier has already paid Med Pay benefits to the insured for whom the verdict is rendered. To do otherwise would allow a double recovery. Johnson v. State Farm Mut. Ins. Co., 216 Ga. App. 541, 544, 455 S.E.2d 91 (1995).
Professional Malpractice
Cornelius v. Macon-Bibb County Hosp. Auth, ______ Ga.App. ______, Case No. A99A1639 (3/30/00). While it is true that an expert witness is not permitted to give his opinion to a hypothetical question based on facts not in evidence, this requirement is not applicable where the witness is a defendant in the case and not merely an expert testifying as to the proper standard of conduct. Cambron v. Canal Ins. Co., 246 Ga. 147, 150, 269 S.E.2d 426(1980). The right to a thorough and sifting cross-examination belongs to every party and is especially applicable where the witness is the opposite party to the cause on trial. In this case, the defendant/doctor had been asked whether a patient who has pain out of proportion to the physical findings should be admitted to the hospital. The court did not allow the question on the grounds that there was no evidence in the record on which to base the question, specifically, no evidence that the deceased had "pain out of proportion to the physical findings." Because of this error, a judgment in favor of the defendant was reversed.
Caution
The above case summaries are provided as a service by this firm but in no way should be used as a substitute for case by case analysis. We have tried, where appropriate, to indicate "cert. granted" or "cert. pending". It should be understood, however, that this newsletter is published once each quarter and is based on decisions by the Georgia Supreme Court and Georgia Court of Appeals which have been published in time to be included. The newsletter does not reflect opinions which may have been decided but not published as of our cut-off date for mailing the newsletter. For that reason, you should not rely on a case note published in the newsletter without first verifying that the pertinent decision has not been reversed, modified, etc
Humor Page
Things To Do On An Elevator
CRACK open your briefcase or handbag, peer inside and ask, "Got enough air in here?"
STAND silent and motionless in the corner facing the wall without getting off.
WHEN arriving at your floor, grunt and strain to yank the doors open, then act as if you're embarrassed when they open themselves.
GREET everyone with a warm handshake and ask him or her to call you Admiral.
MEOW occasionally.
STARE at another passenger for a while. Then announce in horror: "You're one of THEM" - and back away slowly
SAY DING at each floor.
SAY "I wonder what all these do?" And push all the red buttons.
MAKE explosion noises when anyone presses a button,
STARE, grinning at another passenger for a while, then announce: "I have new socks on."
WHEN the elevator is silent, look around and ask: "Is that your beeper?"
TRY to make personal calls on the emergency phone.
DRAW a little square on the floor with chalk and announce to the other passengers: "This is my personal space."
WHEN there's only one other person in the elevator, tap them on the shoulder, then pretend it wasn't you.
PUSH the buttons and pretend they give you a shock. Smile, and go back for more.
ASK if you can push the button for other people but push the wrong ones.
HOLD the doors open and say you're waiting for your friend. After a while, let the doors close and say "Hi Greg, How's your day been?"
DROP a pen and wait until someone reaches to help pick it up, then scream: "That's mine!"
BRING a camera and take pictures of everyone in the lift.
PRETEND you're a flight attendant and review emergency procedures and exits with the Passengers.
SWAT at flies that don't exist.
CALL out "Group hug" then enforce it
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