In Cavalier Convenience, Inc. v. Sarvis, Case No. A10A0538 (Ga. Ct. App., July 9, 2010), the Georgia Court of Appeals looked to legislative intent to render a no-nonsense reading of O.C.G.A. § 51-12-33, which, as amended in 2005, ostensibly eliminated joint and several liability among multiple defendants. See [previous blogs on this statute]. The issue in Cavalier was whether the jury was obligated to apportion liability among the defendants when the plaintiff was without fault. The case arose out of vehicle accident in which Defendant Jeremi Bath collided with the plaintiff. In the subsequent lawsuit, the plaintiff also named as defendants two stores which allegedly sold alcohol to Bath prior to the accident. The trial court granted the plaintiff’s motion to preclude application of the apportionment statute because there was no allegation that the plaintiff was to any degree at fault.

The Court rejected the plaintiff’s argument that such an interpretation renders O.C.G.A. §§ 51-12-31 and 51-12-32 “meaningless” because no case would now be covered by those two statutes. The Court declined to construe the three statutes together in an attempt to harmonize them. When the statute is clear, the Court said, the court is forbidden to attempt such a judicial construction. The Court also rejected policy arguments against apportionment put forth by the Georgia Trial Lawyers Association and the DeKalb Rape Crisis Center. Without further discussion, the Court stated that it simply had no authority to ignore “the General Assembly’s intent as plainly codified.”

Effective July 1, 2010, it is illegal to text while driving or stopped at a traffic light in the State of Georgia. Drivers caught breaking this law face a $150 fine and one point on their driver’s license.

While this law has received a lot of publicity lately, there was already a law on the books that regulated texting by drivers. The old law prohibited drivers from performing any action that would distract from driving carefully. The legislature created this generic statute in 1990 as an attempt to limit the increased use of mobile telephones while driving. Primarily, the law was used by police officers when investigating accidents as an additional charge if they believed the improper cell phone use caused an automobile accident. Further, some local governments, like DeKalb County took the stronger stance by imposing an additional $500 fine if the driver causing the accident was talking on the phone at the time of the accident. See OCGA § 40-6-241.

While these laws address important safety issues on the road, both have enforceability issues. The original law required the police officer to show what type of communication device was in use and how that use was improper at the time of an accident. The new law faces the same challenges and creates new ones by providing broad exceptions. The problem is that while the legislature tried to make it easier to ticket someone for texting, it has also made it easier to defend against. The new law has built in exceptions to forms of distracting communication. The exceptions include the use of citizen band radios, commercial two-way radio device, subscription-based emergency communication, in vehicle security, navigation, remote diagnostic systems or amateur ham radios. As such, a driver can merely claim they were looking at navigation on their iPhone rather than sending a text. Therefore, while the legislature attempted to prevent more accidents by expanding the law against distracted driving, they also widened the loopholes.

Answering certified questions from the U.S. Court of Appeals for the Eleventh Circuit, the Georgia Supreme Court recently ruled that when an insurer enters into a defense of its insured without effectively reserving its right to deny coverage, prejudice to the insured is presumed, and the insurer is estopped from asserting noncoverage. In World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., Case No. S10Q0341 (Ga. S. Ct., May 3, 2010), GuideOne insured the church under a general liability policy. The Securities and Exchange Commission sued the church for fraudulent transfer and unjust enrichment stemming from donations to the church from two men who had pled guilty to securities fraud. The action was first brought in federal court in Illinois, and a sister company of GuideOne sent a written reservation of rights to the church and ultimately denied coverage. After dismissal of the Illinois action for lack of jurisdiction, the SEC filed suit in the U.S. District Court for the Northern District of Georgia.

The first question was whether the insurer effectively reserves its right to deny coverage when it informs the insured it does “not see coverage,” and a sister company had previously sent a written reservation of rights in a similar lawsuit, or whether the reservation must be in writing or more unequivocal. The Georgia Supreme Court answered that, although the reservation of rights does not have to be in writing, it must “fairly inform” the insured that the insurer was not waiving any policy defenses even though it was defending the insured, and the reservation must state the basis for the doubts about coverage. Here, the adjuster’s statement that GuideOne did “not see coverage” was not enough. The Court further ruled that the prior written reservation of rights and denial of coverage by the sister company in a similar case did not overcome the deficiencies in the instant case.

The second question was whether the insured must show prejudice. The Georgia Supreme Court held that “where, as here, an insurer assumes and conducts an initial defense without effectively notifying the insured that it is doing so with a reservation of rights, the insurer is deemed estopped from asserting the defense of noncoverage regardless of whether the insured can show prejudice.” It appears from the Court’s analysis of the issue that prejudice is actually presumed. Citing numerous cases from the Georgia Court of Appeals, the Court agreed that prejudice is conclusively established because the insured has given gave up the right to control the defense, choose counsel, negotiate a settlement, and assert defenses. In such cases, there may be no coverage, but “the insurer will not be heard to say so.”

Jean Benton slipped and fell at the Southeast Georgia Medical Center after leaving her Doctor’s appointment. The accident occurred in the lobby of the Medical Center. She stated it was only at the time of her fall that she felt the floor was slick. As a result of her slip and fall, she suffered a serious injury to her right shoulder.

The issue in this case was whether the Medical Center failed to protect Ms. Benton from a dangerous condition. A business owner has a statutory duty to protect its invitees or guests from dangerous conditions by keeping its building or land in a reasonably safe condition. In this case, like other slip and fall cases, Ms. Benton, as the invitee, had the burden to show that a dangerous condition existed and what that condition was which caused her to fall. The Medical Center moved for summary judgment, arguing that Ms. Benton failed to provide evidence showing that her injury was a result of a dangerous condition. The trial court denied the motion and the medical center appealed to the Georgia Court of Appeals. Glynn-Brunswick Mem’l Hosp. Auth. v. Benton, 2010 Ga. App. LEXIS 344; 2010 Fulton County D. Rep. 1222 (2010).

This case is an important guide for property owners to keep in mind when attempting to evaluate potential liability regarding maintenance and inspection plans for their property. While it may be difficult for a claimant to establish that a dangerous condition existed at the time that caused the slip and fall and prove what that condition was, a property owner should be vigilant in keeping their property in a safe condition. It is beneficial to the owner where they can show that they have met their burden by keeping the premises in reasonably safe condition through regularly scheduled inspections. The Medical Center in this case met its burden through documented visual inspections by employees three (3) times a day. To minimize their potential liability in slip and fall cases, each property owner should decide an appropriate inspection plan for their property and be diligent in following that plan.

Recently, I have seen a steady flow of preservation letters, demanding our clients preserve everything from the damaged vehicle itself to any scrap of paper ever mentioning anyone or anything even tangentially involved in the alleged tort. While I recognize that prospective plaintiffs have a right to inspect evidence before it is altered or repaired, plaintiffs’ counsel have, in my opinion, gone too far. The rules against spoliation do not require that individuals or businesses retain documents or correspondence in the regular course of business just because someday, someone may file a lawsuit against them. Rather, the rules against spoliation apply only to the destruction or altering of evidence when litigation regarding an event is anticipated.

The rules against spoliation and the imposition of sanctions for the failure to preserve evidence must, therefore, be triggered by something more than the simple knowledge that someone may decide to file suit. Georgia courts have recognized that in the litigious society we live in, to hold otherwise would be tantamount to requiring that every piece of paper – regardless of how insignificant- be retained forever. While I encourage my clients to maintain good records and to be careful about their retention policies (regarding both paper and electronic information), I also want my clients to understand that the ability to impose sanctions for spoliation are, at least in some ways, limited. Where the courts will draw the line has yet to be determined. To be safe, I tell my clients that after an injury, preserve everything they reasonably suspect may be related. Certainly, once we have notice that the party is represented by counsel, the burden to preserve is heightened. Even then, however, the opposing party must prove (1) the destruction or failure to preserve evidence, (2) that the evidence is necessary, (3) to contemplated or pending litigation, before they are entitled to the presumption that the evidence would have been harmful to the spoliator. Baxley v. Hakiel Industries, Inc., et al., 282 Ga. 312, 313 (2007).

The facts giving rise to this wrongful death action are as follows: Janet Weston was driving eastbound on Cut Off Road in Glynn County towards its intersection with SR 303, where Cut Off Road deadends. Weston, et al. v. Dun Transp. & Stringer, Inc., et al., 2010 Ga. App. LEXIS 404 (2010). The intersection was controlled only by a stop sign for traffic on Cut Off Road, giving through traffic on SR 303 the right of way. As Mrs. Weston approached the stop sign, there was a stalled, yellow, front-end loader parked westbound on Cut Off Road, with its back end blocking the southbound deceleration lane on SR 303. The loader blocked the view from Cut Off Road, left toward southbound traffic approaching the intersection on SR 303. When Mrs. Weston began to turn left to travel north on SR 303, she was struck and killed by a tractor-trailer traveling south on SR 303. Id.

The Court of Appeals affirmed the trial court’s order granting defendants’ motions for summary judgment pursuant to the doctrine of avoidable consequences, which provides that “[i]f the Plaintiff by ordinary care could have avoided the consequences to [herself] caused by the Defendant’s negligence, [the Plaintiff] is not entitled to recover." O.C.G.A. § 51-11-7. Specifically, the Court stated:

The plaintiff must exercise ordinary care for [her] own safety, and must by the same degree of care avoid the effect of the defendants’ negligence after it becomes apparent to [her] or in the exercise of ordinary care [she] should have learned of it. [The plaintiff] must make use of all of [her] senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to [her].

Weston at *7. (quoting Lowery’s Tavern v. Dudukovich, 234 GA. App. 687, 690 (1998)). Recognizing that the issue of whether Plaintiff’s decedent exercised due diligence for her own safety is typically reserved for the jury, the Court nevertheless found that the issue could be resolved on summary judgment when the Plaintiff’s knowledge of the risk is “clear & palpable.” Weston at *8. Because Plaintiff Weston failed to produce evidence that his wife lacked knowledge of the obvious risk posed by the front-end loader, the Court affirmed defendants’ motion for summary judgment pursuant to the doctrine of avoidable consequences. O.C.G.A. § 51-11-7.

The Court’s decision in Weston signals an opportunity for defendants to prevail on summary judgment when in the past, we typically had to persuade juries that “if you can’t see, don’t go!”

Last May, the Georgia Court of Appeals decided Hicks v. Heard, Case No. A09A0874 (Ga. Ct. App., May 5, 2009), affirming summary judgment in favor of a defendant employer on the issue of respondeat superior liability. See our May 18, 2009 blog post, “Georgia Court of Appeals Renders Sensible Ruling on Employer Liability and Negligent Entrustment.” In this case, while driving a company car, the daughter of an officer and owner of Mark Heard Fuel Company caused a rear-end collision which injured the plaintiff.

The Georgia Supreme Court granted cert and instructed the parties to submit briefs on the issue of whether the Court of Appeals had given “proper weight to an employee's ‘on call’ status during the final step of the burden shifting framework laid out in Allen Kane's Major Dodge, Inc. v. Barnes, 243 Ga. 776, 257 S.E.2d 186 (1979).” Hicks v. Heard, Case No. S09G1508 (Ga. S. Ct., March 29, 2010). Under this framework, the court must consider the following: If an employee is involved in an accident while driving the employer’s vehicle, a presumption arises that the employee was acting within the course and scope of her employment. The employer can overcome the presumption by presenting uncontradicted evidence that the employee was not acting within the scope of her employment. The burden then shifts to the plaintiff to show some other fact that indicates the employee was acting within the scope of employment at the time of the accident.

In a 4-3 decision, the Court affirmed the grant of summary judgment in favor of the defendant company. With an exhaustive review of the pertinent case law, the Court considered whether the “other fact” of the employee being on call would be direct or circumstantial evidence of respondeat superior liability. If the “other fact” is direct evidence, the issue goes to the jury. If it is circumstantial evidence, however, “it must be evidence sufficient to support a verdict in order to withstand the defendant’s motion for summary judgment.” Such evidence must “tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions.” Here, when the burden shifted to the plaintiff, the plaintiff could offer only the circumstantial evidence of the employee’s on call status. The “inferences to be drawn” from this evidence, however, “cannot, as a matter of law, support a verdict against the Company in the face of direct testimony that Jessica was on the purely personal mission of driving home after a school exam and that she had not performed any work for the Company in a month.” The defendant company, therefore, was entitled to summary judgment.

The dissent argued that the employer’s ownership of the vehicle, coupled with the employee’s on call status, was sufficient evidence for the issue of vicarious liability to go to the jury. Despite the close decision, however, the majority’s opinion is now the law of the land. Employers can rest a bit easier, knowing an employee’s “on call” status alone will not subject the employer to potential liability.

In a landmark decision, the Georgia Supreme Court unanimously held that a statutory cap on non-economic damages in medical malpractice cases is unconstitutional.

The case of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 2010 Ga. LEXIS 272 (March 22, 2010) arose after the plaintiff suffered permanent disfigurement following cosmetic procedures. The plaintiff brought a medical malpractice suit against the health care provider seeking compensatory damages of medical expenses and non-economic damages for pain and suffering.

At trial, in addition to economic damages (future and past medical expenses), the jury awarded the non-economic damages of $900,000 for plaintiff’s pain and suffering. The award of non-economic damages in excess of $350,000 triggered O.C.G.A. § 51-13-1 which mandated that the non-economic damages award be reduced to $350,000. However, the plaintiff successfully argued to the trial court that the damages caps in O.C.G.A § 51-13-1 were unconstitutional.

The statute at issue, O.C.G.A. § 51-13-1, provides, in pertinent part:

In any verdict returned or judgment entered in a medical malpractice action, including an action for wrongful death, against one or more health care providers, the total amount recoverable by a claimant for noneconomic damages in such action shall be limited to an amount not to exceed $350,000, regardless of the number of defendant health care providers against whom the claim assert or the number of separate causes of action on which the claim is based.

Non-economic damages are defined as:

Damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature.

To reach its holding, the Court first analyzed O.C.G.A. § 51-13-1 within the context of the Georgia Constitution, and concluded that medical malpractice claims were encompassed in the Constitution’s protection of “trial by jury,” and that a determination of damages, including non-economic damages, by the jury was an “attendant right” of the “trial by jury.” Nestlehutt, at *11.

Specifically, the Georgia Constitution provides that “[t]he right to trial by jury shall remain inviolate.” Ga. Const. of 1983, Art. I, Sec. I, par. XI (a). However, the Constitution only protects “cases as to which there existed a right to jury trial at common law or by statute at the time of the adoption of the Georgia Constitution in 1798.” Id., at *5 (quoting Benton v. Georgia Marble Co., 258 Ga. 58, 66 (1848)). A review of historical references demonstrated the “clear existence of medical negligence claims as of the adoption of the Georgia Constitution of 1798.” Id. at *7. Accordingly, the Court concluded that the Constitution’s “trial by jury” encompassed medical malpractice causes of action and, therefore, protected such causes of actions from any infringement.

The Court next found that the right to a determination of damages by a jury is included in the right to a trial by jury. Here, the Court primarily relied on the Supreme Court’s holding that “the right to a jury trial includes the right to have a jury determine the amount of damages, if any, awarded to the [plaintiff].” Id. at *9 (quoting Feltner v. Columbia Pictures Tele., Inc., 523 U.S. 340, 353 (III) (1998) (Emphasis in original)).

Additionally, citing historical references, the Court concluded that non-economic damages have “long been recognized as an element of total damages in tort cases, including those involving medical negligence.” Id. at *10. Accordingly, it held that the right to a jury trial includes the right to a determination of non-economic damages.

Having found that Georgia Constitution protected these rights, the Court considered whether the damage caps on non-economic damages in O.C.G.A. § 51-13-1 infringed on these rights. In determining that it did, the Court held that the cap “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function.” Id. at *12. Therefore, the caps on non-economic damages in O.C.G.A. § 51-13-1 were unconstitutional. The Court observed that other states, Oregon, Alabama, Washington and Florida, had reached similar conclusions.

In reaching its holding, the Court rejected a number of arguments. Specifically, the Court refused to compare punitive damage caps to non-economic damage caps on the basis that punitive damages are not awarded based on a finding of fact of “actual damages suffered” by the plaintiff; rather, they are to punish the defendant. The Court also distinguished a court’s authority to reduce a damages award, remittitur, from non-economic damages caps. The court reasoned that “[u]nlike damage caps, which are automatically triggered, when a damages award exceeds the threshold amount . . . judicial remittitur is a carefully circumscribed power, the exercise of which is authorized only in the limited circumstance where the ‘jury’s award of damages is clearly so . . . excessive as to any party as to be inconsistent with preponderance of the evidence.’ ” Id. at *16.

Having found that O.C.G.A. § 51-13-1 was unconstitutional, the Court held that its ruling applied retroactively from enactment. The general rule in Georgia is that “an unconstitutional statute is wholly void and of no force and effect from the date it was enacted.” Id. at *18 (quoting City of Atlanta v. Barnes, 276 Ga. 449, 452 (2003)). The Court found that none of the three exceptions to the general rule were applicable to this statute. First, the relatively brief existence of damage caps in Georgia, the “considerable litigation” in other states of similar caps, and the voiced concerns over the constitutionality of caps at the time of enactment weighed against a surprise factor over the Court’s ruling. Id. at *19. Second, retroactive application would “advance the operation of [its] holding” by giving no effect to the constitutional statute for any period of time. Id. at *20. Third, the Court “did not find that retroactive application will result in substantial inequitable results” under the facts of the case. Id. at *21.

The Supreme Court’s decision in this case puts a damper on tort reform and may send Georgia legislators back to the drawing board.

Plaintiff’s decedent was arrested by the Pike County Sheriff’s Department for simple battery after an episode of domestic violence. At the Pike County Jail, officials determined that plaintiff's decedent, Brandon Gish, was suicidal. Because Pike County lacked appropriate staff and medical personnel to handle detainees with mental health problems, they decided to transfer Gish to the Clayton County Jail. On December 10, 2003, Deputy William Gilmer transported Gish to the Clayton County Jail in his marked patrol car. At the time of the transfer, Deputy Gilmer was aware that Gish was being transferred to Clayton County specifically because officials thought he might be suicidal. Deputy Gilmer handcuffed Gish behind his back, placed him in the rear of his patrol car, fastened Gish’s seatbelt and drove to the Clayton County Jail. The front and back seats of the patrol car were separated by a partition bolted into place with a sliding Plexiglas window. When the deputy opened the door to unbuckle Gish upon arrival at the Clayton County Jail, Deputy Gilmer saw that Gish had managed to maneuver his hands, while cuffed, to the front of his body and unbuckle his seatbelt himself.

The threshold issue in this case was whether Pike County and the individual law enforcement officers were protected from suit by the doctrines of sovereign and official immunity. The Court concluded that the defendants were entitled to immunity and granted summary judgment in their favor.

The doctrine of official or qualified immunity does not protect law enforcement officers from personal liability for negligence in the performance of ministerial functions, or for discretionary acts taken within the scope of their official authority with willfulness, malice, or corruption. Gish, et al. v. Thomas, et al., 2010 Ga. App. LEXIS 254 (March 17, 2010). “The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.” Id. (quoting Daley v. Clark, 282 Ga. App. 235, 238 (2006)).

In this case, plaintiff argued that Deputy Gilmer committed two negligent ministerial acts when he handcuffed Gish improperly and when he left his loaded service pistol on the front seat of the vehicle. The Court disagreed. The decision hinged on the Court’s distinction between ministerial and discretionary acts:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions and acting on them in a way not specifically directed. Procedures or instructions adequate to cause an act to become merely ministerial must be so clear, definite and certain as merely to require the execution of a relatively simple, specific duty.” Gish at *9 (quoting Golden v. Vickery, 285 Ga. App. 216, 217-218 (2007))

Because the Pike County Sheriff’s Office did not have written departmental policies or procedures governing either the handcuffing of inmates during transport or the securing of weapons in a patrol car, the Court found that the deputy was performing a discretionary act, and in the absence of any malice, granted the individual law enforcement officers’ motions for summary judgment.

The Court also affirmed the officers’ motion for summary judgment in their official capacities on the grounds that sovereign immunity barred all claims. The County’s purchase of automobile liability insurance did not result in a waiver of that immunity since the act giving rise to liability did not relate to the use of the patrol car as a vehicle. Gish at *13. Finally, the Court found that O.C.G.A. § 42-5-2, which outlines the responsibility of governmental entities to provide inmates with medical care, did not provide for a waiver of sovereign immunity for claims brought pursuant to that section against the County for failure to provide such care.

This recent Georgia Court of Appeals decision constitutes a clear victory for governmental employees in general and law enforcement officials specifically.

Justice David Nahmias, the newest member of the Georgia Supreme Court, recently authored an opinion which ruled in favor of the insurer in an important case that sought to determine the meaning of “accident”—and the resulting limits of coverage—when the word is undefined in the policy. Answering a certified question from the U.S. District Court for the Middle District of Georgia, the majority in State Auto Property and Casualty Co. v. Matty, Case No. S09Q1846 (Ga. S. Ct., Mar. 1, 2010), held that when a liability policy leaves “accident” undefined, the court must apply the “cause theory” to determine whether there was more than one accident under the policy. In other words, the court will look to the cause of the injuries, regardless of whether each injury occurred in the same moment of time, rather than the number of resulting injuries. Thus, a limit of liability for one “accident” would apply to all injuries resulting from one proximate cause, and would not be extended to each individual injury.

The Georgia Court considered three theories nationwide and held that it would follow the majority of states in applying the “cause” theory: “the number of accidents is determined by the number of causes of the injuries,” in other words, the proximate cause.

In the context of vehicle accidents involving multiple collisions that do not occur simultaneously (recognizing that it is almost impossible that such collisions can occur without any difference in time and place), courts look to whether, after the cause of the initial collision, the driver regained control of the vehicle before a subsequent collision, so that it can be said there was a second intervening cause and therefore a second accident.

The Court rejected the “effect” theory in which each individual injury would constitute a separate “accident.” The Court left it to the U.S. District Court to apply the cause theory to the facts at issue.

This was a close case, the Georgia Court splitting 4-3. The dissent argued the policy terms were ambiguous and that the majority had ignored the long-standing rule that any ambiguities must be construed against the insurer. Both the dissent and the majority opinion, however, underscore the importance of insurers providing clear definitions in their policies.

As the world knows by now, the 2010 Olympics began on a tragic note with the death of 21-year- old Nodar Kumaritashvili, from the Republic of Georgia. Recently, the athlete’s father was quoted in The Wall Street Journal (Feb 15, 2010, “Georgia Seeks Return of Luger’s Body”) dismissing the notion of filing a lawsuit: "What lawsuit? What kind of a person would do that?" he asked. "My son is dead and that wouldn't bring him back."

As a compassionate human being and avid sports fan, I was horrified by Kumaritashvili’s death, and moved by the fact that his father was grieving, not out looking for a lawyer. However, as a lawyer myself, I, unfortunately, could not help thinking about a lawsuit. And as a defense lawyer, (who knows nothing about Canadian law on immunity or evidence) I imagined the problems the Olympics would face defending a wrongful death lawsuit in my State of Georgia.

The law in the State of Georgia is clear: as a general rule, evidence of subsequent remedial repairs following an injury is not admissible at trial since the usual purpose of such evidence is to give the jury “a basis for drawing the inference that the defendant thereby impliedly admitted his realization of negligence.” Chastain v. Fuqua Indus., 156 Ga. App. 719 (1980). See also DOT v. Cannady, 270 Ga. 427 (1999); Studard v. DOT, 219 Ga. App. 643 (1995). “The reason for excluding such evidence lies in sound public policy ‘that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers.’ [Cits].” Georgia Department of Transportation v. Cannady, 270 Ga. App. 427, 428 (quoting Studard, 219 Ga. App. 643, 644); Wynn v. City of Warner Robins, 279 Ga. App. 42, 49 (2006). There are, of course, several exceptions to the general rule of exclusion, but in my hypothetical trial, they would not apply.

My client, the Olympic Committee, may, however, have shot itself in the foot and thwarted any attempt to exclude the evidence of its subsequent repairs through its failure to admit that the improvements they made to the track in Vancouver were, in fact, to improve the safety of the athletes. Instead, as The New York Times reported on February 13, 2010, “[m]embers of the Olympic organizing committee and the International Luge Federation said the changes were made not because of safety concerns but rather to satisfy the emotional state of the athletes.” Consequently, with that very public statement and unwillingness to own that the changes constituted remedial repairs, the Olympic Committee would be left having to argue that the track was safe before the fatality and that none of the subsequent changes really had anything to do with improving the safety of the facility. That would be a tough row to hoe. Good thing this is only a hypothetical – at least for now.

Hard cases make bad law, as the saying goes. The Georgia Court of Appeals recently resisted that outcome, however, in a dram shop case where an intoxicated guest left the defendant’s home, ran a red light and struck another car, killing a mother and injuring her minor son. In Shin v. Estate of Camacho, Case No. A10A0244 (Ga. Ct. App., January 21, 2010), the Court held that, because the plaintiff had failed to show the defendant host served alcohol to the guest after he became noticeably intoxicated, the host was not liable for the subsequent actions of the guest.

Strictly construing Georgia’s Dram Shop Act, O.C.G.A. § 51-1-40, the Court held that there was an absence of evidence to support the first element of the plaintiff’s case: that the defendant had served alcohol to the guest when he was in an intoxicated state. The Court noted that the Act first provides a general immunity of liability for the person who sells or furnishes alcohol to someone who in turn causes injury to another because of his intoxication. The limited exception is when the person “knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle.” O.C.G.A. § 51-1-40(b). In this case, the defendant knew Park would be driving a vehicle, and Park had two more drinks after he was noticeably intoxicated, but it was undisputed that neither the host nor his wife provided the drinks or saw him drink them. Thus, although the host had provided alcohol to Park to the point he was noticeably intoxicated, the host did not serve him after that. The host, therefore, could not be liable to the unfortunate third person injured by the drunk driver.