Articles Posted in Premises Liability

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Last year a two-year old boy was playing in one foot of water in a small lagoon at a Disney resort in Florida. The boy was not far into the water, but was standing on the shoreline. There were no fences, no signs warning of alligators, but only a “no swimming” sign nearby. The boy’s parents were standing close to where their son was playing. Seemingly out of nowhere an alligator attacked the boy. His father immediately tried to get the alligator to let go of his son, but the strength of the animal was too great for human hands.  The bereaved parents of the little boy said early on that they did not plan to take legal action against Disney. Instead, they turned their attention to healing and began the Lane Thomas Foundation to support families whose children are in need of organ transplant. Disney built a small lighthouse statue on the property to memorialize Lane and to bring awareness to the work of the Foundation.

For some time now it has been uncertain whether Disney knew about alligators on the property where the little boy lost his life. According to a recent Washington Post article, Disney knew a great deal. Hundreds of alligators had been removed from that resort over the years and several only a short time before the boy was attacked. Had the family brought a lawsuit for the boy’s fatal injuries, it is very likely that Disney would have been held liable for the death of their son given their prior and superior knowledge of the premises and their failure to warn guests of the danger. Disney likely would have settled the litigation in any event, since the publicity would have been, and was, harmful to Disney and damaging to its reputation.

But the question remains, what is the duty of a property owner to warn and to protect against such injuries or death? In Georgia, the case of Landings Association, Inc. v. Williams, 291 Ga. 397, 397-98, 728 S.E.2d 577, 579 (2012) dealt with an alligator attack in a residential development on the Georgia coast. The area had been inhabited by alligators prior to the building of the development. An elderly mother staying at her children’s home, went for a walk one evening and was later found dead, with catastrophic injuries to her body. The alligator that killed her was also found later. In that case, the Georgia Supreme Court determined that the property was so well-known by the public to have had alligators on site for years, the land owner could not be held liable for the death of the woman.

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iStock_000001983354XSmall-300x199The Georgia Supreme Court recently issued an opinion that has clarified the liability of property owners for serious injuries sustained by invitees to their property. About ten years ago, a man was departing Cobb County Six Flags Over Georgia when he was severely beaten. His injuries resulted in permanent brain damage. A jury awarded the victim $35 million in damages, but the Georgia Court of Appeals ruled that the damage award was not apportioned properly between the defendants and sent it back to the trial court for a new trial. This ruling was appealed and the case went to the Georgia Supreme Court. The high court’s decision held that Six Flags could be held liable for the injuries and that the apportionment of damages various defendants will pay did not require a full retrial of the case.

The case clarifies certain aspects of Georgia law with regard to property owner liability. The victim in this case was an invitee under Georgia law. Official Code of Georgia section 53-3-1 states that when an owner or occupier of land, effectively invites others on the premises for a lawful purpose, the property owner is liable for damages to those harmed by the owner’s “failure to exercise ordinary care in keeping the premises and approaches safe.” In this case, the plaintiff was brutally beaten by some seasonal employees and others who planned an attack on him as he left the park and waited for a bus.

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Old dead spruce lying in the woods

Last week, on a late spring evening, families gathered for a baseball tournament in Tupelo, Mississippi. As weather changed and a storm came in, a group of youth baseball players were told to stop play. As they walked off the field, a tree limb broke off and struck the head of a 10-year old boy. It is difficult to imagine the pain and chaos of these circumstances — as family and friends were present and other children were also injured. The boy’s injuries were the most serious and he was taken to the hospital. He did not survive his injuries.

Every year, trees cause serious injury and death. Unfortunately, a falling tree or tree limb comes with little or no warning. The tragedy in Mississippi gives pause, not only for the tragic circumstances, but concerns for our own families in what should be the most benign settings. During these spring and summer months when we spend so much time outside with our kids and families, we need to think about all aspects of safety. It is a good idea to also take a look around our own yards and gardens, to check on the health of trees around us. Any trees that look like they could have disease or could fall in a storm should be noted and considered for trimming or removal.

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Thumbnail image for iStock_000006258480Small.jpgIn my last post, I shared several concerns about the recent murder of Karen Pearce near a Decatur parking garage. I raised the question about whether the crime could have been avoided or solved sooner had there been surveillance cameras. As noted in that post, the City Manager and I exchanged emails regarding this issue. In that discussion, Ms. Merris mentioned that the city was considering requiring property owners to have minimum lighting and security standards for their properties. I am not sure what that would involve. It sounds like a good start, but the city also needs to take responsibility for having its own security cameras to intercept and track criminals after they leave a private property, not only to aid in apprehension but to prevent other crimes from occurring. MARTA has security cameras, and these were apparently instrumental in later placing Presley near Decatur around the time of the murders.

As mentioned in my prior post, the suspect in the case was picked up at a MARTA station after he tried to get in without a ticket. But what if he had not tried to jump the turnstile? It is possible that someone else could have been killed, because the authorities were not able to identify his likeness as he walked through the Decatur Square after allegedly murdering Ms. Pearce. There were no cameras to help solve this horrific crime.

And what about the property owner? What is the owner’s obligation to ensure that crime does not occur on the premises? Under Georgia law, a property owner has a duty to protect those lawfully on its premises from unreasonable risks of harm. Generally though, the property owner or operator in Georgia is not liable for the criminal acts of others on his property. However, there are exceptions. The true legal test is the superior knowledge of the landowner vis-à-vis the injured victim. If the owner or operator of the property has greater knowledge of the danger of criminal acts than the potential victim on the premises, the owner/operator can be held liable.

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iStock_000006258480Small.jpgFor a small town adjacent to the much larger city of Atlanta, Decatur is a relatively secure city with a relatively low crime rate. Although there are isolated instances of street crimes, including muggings and robberies, these generally do not involve loss of life. But for the past week local residents, including my family and myself, have been shaken and concerned about their safety. The recent shooting death of a Smyrna hairstylist and nursing student, Karen Pearce, less than a block of the Decatur Square, caused confusion and fear within a normally relaxed community.

Before going further, we want to express our sympathies to Ms. Pearce’s family and friends. It is truly a human tragedy for her loved ones. On behalf of our firm, we extend our deepest condolences.

Immediately after her murder, there was little known by the public about the crime. Initial reports indicated a lack of camera surveillance on the property or even near the property on which Ms. Pearce was killed. I will get to this issue, but first the background on this crime. What is known is that the victim was enjoying time with friends, that she left her friends on her own and was on her way to the parking deck where her car was parked. She never made it there. Her body was found later near One Decatur Town Center along a driveway separating the office building from the parking deck.

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