Recently in General GA law Category
Bedbug Problem in Georgia? Find Out How You Can Get Rid of These Unwelcome Pests in Your Bed for Good.
Bedbugs are still a problem in Georgia. Fortunately, there are legal measures you can take before the problem gets worse. Everyone deserves a good night's sleep free from unwelcome critters.
Don't let bedbugs bug you and your loved ones anymore. Contact an experienced Georgia attorney to discuss any legal options you may have to protect your bed and you health from these uninvited critters.
Landlord's Options When Tenant Abandons Premises Prior to Lease Expiration
Unlike in some jurisdictions, Georgia does not require mitigation of damages in lease contracts. This gives landlords several options when a tenant abandons the premises before the lease term is up. First, the landlord may enter and obtain another tenant holding the original tenant liable for any deficiency. Alternatively, the landlord may leave the premises vacant and collect the agreed upon rent each month. Or, the landlord may terminate the lease under the terms of the lease. Lamb v. Decatur Fed. S & L Assn., 201 Ga.App. 583, 587(2) (1991). Note that in the event the landlord chooses this third option and terminates the lease, then he will be required to mitigate damages and make reasonable efforts to re-lease the premises. However, a landlord presumably can avoid triggering this duty to mitigate where the landlord terminates only the tenant's right of possession without terminating the lease. Georgia Color Farms v. K.K.L., Ltd. P'ship, 234 Ga. App. 849 (Ga. Ct. App. 1998).
Recovery of Rent
Landlords have two methods to recover future rent: (1) the landlord may accept the abandonment and sue at once for the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach; or, (2) may elect not to accept the abandonment and to treat the lease as remaining in full force and effect. If pursuing the latter method, then landlord may either permit the premises to remain vacant while collecting the agreed upon rent from the original tenant or obtain another tenant while holding the original tenant liable for any deficiency that may occur.
Rent Acceleration Clauses
Many leases contain rent acceleration clauses which are treated like liquidated damages by Georgia courts. Provided the lease contains an express acceleration clause, and upon tenant default, the landlord may accelerate rent for the balance of the lease term. Such clauses are generally enforceable if reasonable. A rent acceleration clause will be enforceable if it meets the three-part test in Southeastern Land Fund, Inc. v. Real Estate World, Inc., 237 Ga. 227 (1976) ("First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than for a penalty; and third, the sum stipulated must be a reasonable pre-estimate of the probable loss.") Thus, landlords wanting to enforce a rent acceleration clause should be careful in crafting the language of the provision to sound in liquidated damages rather than in penalty. For instance, provisions that reduce accelerated rent to present value and deduct from this amount the reasonable rental value for the premises for the remainder of the lease term are more likely to be enforced than provisions that otherwise make no attempt to take the future rental value and the likelihood of re-letting into account. See Peterson v. P.C. Towers, L.P., 206 Ga. App. 591 (1992).
Note that a landlord may pursue a handful of consistent or inconsistent remedies against a defaulting tenant. For instance, a landlord may seek specific performance of a lease or recover additional sums owed under contracts including default interest, late charges, or other monies. Special Georgia rules and statutes may govern these proceedings. Contact an experienced Georgia contract attorney to discuss your options.
Parties to a contract may stipulate damages or contain a method for fixing damages but generally the contract cannot provide a penalty. However, a penalty provision will be valid and enforceable if, at the time of the contract, (1) damages are difficult to estimate, and (2) the provision is a reasonable forecast of possible damages. Whether a party suffers actual damages is irrelevant so long as the penalty is a reasonable forecast at the time the contract was entered into.
The general measure of damages for breach of an ordinary contract is expectation damages. This means that the injured party is entitled to recover an amount that would put him in as good a position as if the contract had been performed.
The measure of damages in employment contracts depends on whether the breaching party is the employee or the employer. Let's say Matt Ryan contracts to work for the Georgia World Congress Center Authority as a spokesperson for 12 months for $85,000 to promote the building of a new Georgia Dome. If Matt Ryan quits after 4 days, and the Authority pays Joe Average $90,000 to replace him, then the Authority can recover $5,000 - the extra cost to replace Matt Ryan.
If however, the Authority wrongfully terminates Matt Ryan after he has worked for only four days, Matt Ryan could recover from the Authority the full contract price of $85,000 (minus any avoidable damages) for being Matty Iced out.
Land Sale Contracts
For land sale contracts, a party can elect to have specific performance and/or money damages. Let's assume for now that money damages are sought. If a seller who has contracted with a buyer to sell land breaches, then the buyer's damages are calculated by the difference between fair market value ("FMV") and the contract price. Thus, if a piece of land has a FMV of $100,000 and a seller breaches a contract to sell the land to a buyer for $80,000, then the buyer's damages are $20,000, the difference between FMV and the contract price.
Let's say a seller contracts to sell land to a buyer for $80,000 and the land has FMV of $75,000. If it is the buyer who breaches, then the seller's damages are measured by the difference between the contract price and FMV, or $5,000. This makes sense because if the contract had been performed, then the buyer would have paid $5,000 for the $75,000 piece of land; so, the seller would have the expectation of $5,000.
Keep reading below to find out how to calculate money damages for construction contracts and for more information.
Even if you can make out the elements for a claim of premises liability (that is, you are an invitee, an owner/occupier owed you a duty to keep premises safe and/or to inspect and that such duty was breached because the owner/occupier knew or should have known of the danger, and that breach of duty was the direct and proximate cause of your injury), there may still be another hurdle for you to recover...
The most common defense owners/occupiers raise in claims of negligence based on premises liability is the defense of assumption of the risk. In order to establish the defense of assumption of risk, defendants must show that a plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself or herself to those risks. Admiral Ins. Co. v. State Broad. Corp., 314 Ga. App. 648, 650, 725 S.E.2d 789, 791 (2012), cert. denied (July 2, 2012).
Often patrons at amusement parks are said to have assumed the risk when they understand and appreciate risks associated with park rides and voluntarily expose themselves to the risk by going on the ride. However, this defense cannot overcome situations in which there are static conditions on the ride or premises nor can a judge grant summary judgment on issues such as how closely a particular retailer should monitor its premises and approaches.
Many questions regarding the defense of assumption of risk must be heard by a jury because of the factual issues involved. "[W]hat retailers should know about the property's condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law." Williams v. GK Mahavir, Inc., 314 Ga. App. 758, 762 (2012), cert. denied (June 25, 2012), reconsideration denied (Mar. 13, 2012) quoting American Multi-Cinema v. Brown, 285 Ga. 442, 445(2) (2009).
Contact an experienced Georgia attorney to discuss any possible claims you may have.
First, we hope everyone is keeping safe from the slick, rainy conditions outside! Today, we will continue our discussion on Premises Liability in Georgia by talking about the types of knowledge an owner/occupier must have to be liable in negligence.
How Can I Prove Premises Liability for Hazardous/Dangerous Conditions?
An invitee can recover damages in a slip and fall if she proves two things: (1) that the owner/occupier had actual or constructive knowledge of the hazard, and (2) that despite the exercise of ordinary care, the invitee lacked knowledge of the hazard due to actions or conditions within the owner/occupier's control. Cocklin v. JC Penney Corp., 674 S.E.2d 48 (Ga. Ct. App. 2009). Absent knowledge of the dangerous condition, there can be no causation (an essential element to make out a claim in negligence).
Failing to use reasonable care in inspecting premises can give rise to constructive knowledge where the owner or occupier had an opportunity to discover the dangerous condition and to remedy it. This was the case in Valentin v. Six Flags Over Georgia, L.P., 286 Ga. App. 508, 510-11 (2007) where the appellate court found that Six Flags breached its duty by failing to conduct a reasonable inspection that would have allowed for discovery and remedy of an alleged unsecured mat and mildew hazard.
Thus, when the owner/occupier knows or should know about a dangerous condition on the premises, a plaintiff may likely have an actionable claim despite the defense of assumption of risk (which will be discussed in tomorrow's post).
Contact an experienced Georgia attorney to discuss any possible claims you may have.
Let's say you've recently suffered from a slip and fall accident at a Georgia business. Then, you're probably wondering how and what you can recover for your injuries. During the next few days, this blog will uncover the basics of Georgia premises liability.
Trespasser, Licensee, or Invitee?
Whether you can recover from an owner or occupier of land in Georgia depends on your classification as a trespasser, licensee or invitee. Landowners and occupiers of land owe different duties of care to each respective class; thus, it is important to establish your classification in any premises liability case.
A licensee is a person who (1) is neither a customer, servant, nor trespasser; (2) does not stand in any contractual relation with the owner of the premises; and (3) is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification. O.C.G.A. § 51-3-2(a); Sands v. Lindsey, 314 Ga. App. 160, 723 S.E.2d 471 (2012).
An invitee is one who is induced by express or implied invitation to come onto an owner's property. The typical invitee is a customer at a store but can also include employees of the owner to perform work on the property. Invitees may lose their status as invitees and become licensees if they exceed the scope of their invitation on the premises.
Let's say you're an invitee - what duty is owed to you by the owner/occupier on the premises?
In Georgia, an owner or occupier of land is liable to its invitees for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe. Anderson v. Canup, 731 S.E.2d 786 (Ga. Ct. App. 2012).
This is basically a duty of ordinary care. And, though an owner or occupier is not an insurer of an invitee's safety; the law does require that he use such diligence toward making the premises safe as an ordinary prudent person would in such ways as he or she would be accustomed to use the premises. O.C.G.A. § 51-3-1. Kouche v. Farr, 730 S.E.2d 45 (Ga. Ct. App. 2012).
Common carriers and innkeepers owe a duty of utmost care, higher than the duty of ordinary care, to protect their passengers and patrons from injury. Hotel chains, bus, elevator and escalator companies fit into this category.
Stay tuned to find out more about premises liability basics or contact an experienced Georgia attorney to discuss any possible claims you may have.
Georgia Staffing Agency Job Turns Nasty For Employment Hopefuls: How to Spot Job-Duping Before It's Too Late
Fraud & Deceit in Georgia: Employment Hopefuls Lured From Georgia By "Job," Get Stranded In Missouri
WSB-TV and The Associated Press reported yesterday that dozens of workers had been scammed by a Georgia staffing agency through a Craigslist post promising two-year construction job positions in locations across the country. According to their stories, a new Marietta-based employment company called Everything Staffing assembled a group of prospective workers for subcontractor Black Sparta LLC on construction sites outside of Georgia. Black Sparta agreed to provide food, gas and lodging for all employees but when the workers started showing up for a job in Missouri, they were told they were no longer needed and forced to foot the bill. As a result, dozens of Georgians are stranded without hope and without the job they were promised; some do not have the means to make it back home to Georgia.
Everything Staffing intends to file a lawsuit against Black Sparta, but that won't ease the immediate pain felt by these adventurous job seekers duped by what appeared to be a promising opportunity but turned out to be a fraud stranding these people in an unfamiliar city.
Make Sure You Have a Valid Employment Contract
There are ways to protect yourself against job-duping if you find yourself in a similar situation whether you are a Georgia job-seeker looking for a construction job or a Georgia business or contractor looking for a sub-contractor. First, check to see whether the employer or business or other authorized person has promised you something in exchange for your performance at a job site. If the promise purports to be an employment agreement for work on a project that will take more than one year to complete performance, i.e., a 2-year construction contract, then the Georgia Statute of Frauds will apply to that promise. Georgia's Statute of Frauds requires that certain contracts be in writing and signed by the party to be charged in order to be enforceable. Specifically, O.C.G.A.§ 13-5-30 says that contracts that cannot be performed within one year at the time they are made must be in writing and signed by the party to be charged or his agent in order for you to bind them to the promise.
If you are a Georgia business or Georgia contractor worried about job-duping by a sub-contractor, agent or other harmful business relation, then you can, with the help of an experienced Georgia contract lawyer, come up with a standardized business contract to address your business needs and withstand new challenges to Georgia business practices. Have your business contracts reviewed by your lawyer to incorporate new terms reflecting important changes in the law, recent court decisions, and changes in Georgia business practices.
Fraud and Deceit in Georgia
Job-duping can affect both job-seekers and businesses in Georgia and its practice could amount to actionable fraud and deceit under Georgia law. Stay tuned to find out about pursuing these claims or contact an experienced Georgia contract lawyer at Betts & Associates about your matter.
What can I do when my business relationship with another goes sour through no fault of my own? This is a question that many of our clients ask us.
Fortunately, there are at least two actionable tort claims available in Georgia for a plaintiff who has been injured by wrongful interference with a business relationship: tortious interference with contractual rights and tortious interference with business relations.
These two distinct yet related torts require a plaintiff to show four common elements: that the defendant (1) acted improperly and without privilege, (2) acted purposefully and with malice with the intent to injure, (3) induced a third party or parties not to enter into or continue a business relationship with the plaintiff; and (4) for which the plaintiff suffered some financial injury. Chaney v. Harrison & Lynam, LLC, 308 Ga. App. 808, (2011); Gordon Document Products, Inc. v. Service Technologies, Inc., 308 Ga. App. 445 (2011). In Georgia, without privilege means that the defendant must be a stranger to the contract and the underlying business in order to be liable. See Carey Station Village Home Owners Ass'n, Inc. v. Carey Station Village, Inc., 268 Ga. App. 461 (2004) (homeowners association not stranger to contract between developer and certain purchasers of subdivision lots).
Although these torts share common elements, there are a couple of subtle differences to keep in mind when deciding a theory of liability. First, a plaintiff asserting a cause of action for tortious interference with business relations must show that absent the interference, those relations were reasonably likely to develop down the road. Wilson v. City of Sardis, 264 Ga. App. 178 (2003). And, a plaintiff asserting a cause of action for wrongful interference with contractual rights must show the existence of a valid and enforceable contract. Wachovia Ins. Services, Inc. v. Fallon, 299 Ga. App. 440 (2009). Proof of a valid and enforceable contract need not be proved for interference of business relations.
A plaintiff need not wait to show that an interference resulted in breach to pursue tortious interference - he need only show interference that, because of the defendant's interference, a third party's performance of a contract was made more difficult, more expensive or actually caused the party not to perform the contract. St. Mary's Hosp. of Athens, Inc. v. Radiology Professional Corp., 205 Ga. App. 121 (1992).
In cases where a defendant's interference was not to an already existing business relationship or contract but to an anticipated business relationship, or economic expectancy, of plaintiff's, then, to make out a claim for tortious interference, the plaintiff must show that the defendant acted with malice and fraud, and present evidence that as a result of those malicious and fraudulent actions, the economic benefit or gift which would have flowed to him was diverted to the defendant. Ford v. Reynolds, 726 S.E.2d 687 (Ga. Ct. App. 2012).
If you feel like you have been a victim of wrongful interference of business relations or contract rights, then you should consult an experienced business attorney at Betts & Associates to ensure that your rights are protected.
Students are back in school after Christmas break and many parents are eager to see changes in their schools. Since the passage of the charter schools amendment Georgia voters approved last November and talks of new legislation that could give parents the option of having their schools changed from traditional public schools to charter schools, Georgia parents will no doubt want to get their legislators involved by taking action this session.
But will parent-driven changes actually lead to good outcomes for Georgia students? An article in today's Atlanta Journal Constitution reported that an advocacy group rated Georgia's school choice policies a D+, a low score compared to other states.
Talk to an experienced education lawyer at Betts & Associates to see how you can make a difference in a Georgia school.
See this video of Cobb County Commissioner Gail Downing about some important changes going into effect on March 1, 2013 regarding your vehicle tag and title taxes.
Please contact an experienced attorney at Betts & Associates if you have questions about these new laws and how they can affect you starting March 1st.
The Eleventh Circuit Court of Appeals is set to hear oral arguments in early December over the wrongful death civil lawsuit filed on behalf of the family of Melvin Williams, a man who was fatally shot by an East Dublin police officer on May 14, 2010.
The incident happened after Williams was stopped and confronted by East Dublin police officer, Jeffrey Deal, after he allegedly ran a stop sign. There is no visual evidence of this moving violation though despite the presence of a police video that has been released to the public. Moreover, it was revealed after the shooting that Officer Deal had not attended the state's mandatory training on use of deadly force and therefore had lost his power to arrest when the incident occurred.
What the video does show is Officer Deal driving his police car to an East Dublin residence and aggressively approaching Williams who was standing next to his parked vehicle. A fight ensued between Williams and Deal, with Williams asking the officer repeatedly, "What's wrong with you?!" As the fight escalated, Deal drew his side arm and shot and killed Williams who was unarmed.
Upon further investigation by the Georgia Bureau of Investigation (GBI), it was revealed that over half of East Dublin's entire police department, including East Dublin Police Chief William Luecke, also lacked the power to make arrests throughout 2010 because they too had not undergone the training required by the Georgia Peace Officer Standards and Training Council to keep their certification active.
Even though the East Dublin police department does not dispute that Deal has lost his power of arrest Laurens County Magistrate Judge, Donald Gillis, decided he would not approve a warrant for Deal's arrest in September of 2011, claiming that he arrested Williams under a citizens' arrest. The Laurens County District Attorney has also refused to take the case to a grand jury hearing. Jeffrey Deal remains employed on the East Dublin police force.
The Williams' family has since filed a wrongful death lawsuit against Officer Deal, East Dublin police supervisory officers, and the city of East Dublin. That case, however, has also run into hurdles as the East Dublin police department has not allowed their officers to provide testimony in any deposition, citing "qualified immunity" as the reason. Qualified immunity is used to protect government officials from liability for the violation of an individual's federal constitutional rights. It can be cited by state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate clearly established law.
Williams' family attorney, Mario Williams (no relation) challenged the police department's right to claim qualified immunity by bringing the matter before a United District Court Judge in Augusta, GA. The judge ruled that the department could not cite qualified immunity so the East Dublin defense attorneys have appealed that decision to the Eleventh Circuit Court of Appeals. The Eleventh Circuit will ultimately decide how this case will move forward.
Given the lack of a thorough criminal investigation and subsequent prosecution, many questions remain unanswered in this case. Therefore any evidence gathered during these civil proceedings will go a long way in determining whether the federal government will pursue criminal prosecution against Officer Deal under the Civil Rights Act.
Federal and state authorities are still conducting an investigation over widespread reports of abuse and violence in various Georgia prisons. One case in particular focuses on an inmate, Terrance Dean, who was beaten while handcuffed on December 16, 2010 by seven prison guards at Macon State Prison and had to be hospitalized with life threatening injuries as a result.
The beating ensued after a fight broke out on December 16 between Dean and a guard during an inmate protest over better prison conditions. This resulted in an emergency response team being called in to diffuse the situation. However, after the officers broke up the fight they then handcuffed Dean and led him into the prison gymnasium where they allegedly beat him to the point where he fell into a coma.
Macon State Prison authorities also have been accused of covering up the incident after it happened. For example, Dean's family was not notified by the Georgia Department of Corrections that Terrance was in the hospital until nearly two weeks after the assault occurred. The family initially found out what happened through an illegal cell phone call that came from inside the prison to Dean's brother. And Dean's mother did not get to actually visit her son until January of 2011.
The Georgia Bureau of Investigation (GBI) has pressed charges against the seven officers involved for aggravated battery. So far three of the seven guards have pleaded guilty to federal civil rights and conspiracy charges related to the beating of Dean and other inmates.
Dean is still suffering today from sustained brain injuries and physical problems as a result of this vicious beating. He has filed a federal lawsuit against the seven officers who assaulted him, along with their supervisors, who Dean says had direct knowledge of the incident.
Dean's attorney, Mario Williams, has stated that he hopes the FBI's inquiry closely examines what role senior officials at the prison had with respect to their simultaneous knowledge and more importantly, approval, of the beating.
Homicides and violence in Georgia prisons have reached an unprecedented level in recent years due to overcrowding and short staffing. The Southern Center for Human Rights filed a lawsuit in July of 2011 against the state of Georgia that also alleged systemic abuse by prison guards at Hays State Prison.
Prisoners do not forfeit their basic human rights while serving out their sentences, and abuse is a serious issue that occurs nationwide. Any prisoner who believes he or she has been a victim of abuse by a prison official can pursue legal recourse in both criminal and civil courts.
When a manufacturer makes a product, they must consider the risks and harms that the product could cause. They do this because if a person is injured because of a defective product, the manufacturer will have to pay for the injury.
This has not always been the case. For a very long time, the "general rule" was that a manufacturer could not be sued, even for negligence, by someone with whom he had no contract. This was called the "rule of privity," and it was most famously set forth in an 1842 case Winterbottom v. Wright. This rule existed for many decades. See this article for more information about the history of product liability.
The law and its assumptions began to change in the middle of the 20th century. Many people consider Ralph Nader the true pioneer of Product Liability. According to his bio, "The crusading attorney first made headlines in 1965 with his book Unsafe at Any Speed, a scathing indictment that lambasted the auto industry for producing unsafe vehicles. The book led to congressional hearings and a series of automobile safety laws passed in 1966. Since 1966, Nader has been responsible for: at least eight major federal consumer protection laws such as the motor vehicle safety laws, Safe Drinking Water Act; the launching of federal regulatory agencies such as the Occupational Safety and Health Administration (OSHA), Environment Protection Agency (EPA), and Consumer Product Safety Administration; the recall of millions of defective motor vehicles; access to government through the Freedom of Information Act of 1974; and for many lives saved."
In Georgia, the following four part test must be meet for actions involving bodily injury to human beings. In any products liability case, the plaintiff has to prove: (1) that the product was defective, (2) that he or she actually was injured, (3) that that there was a connection between the product defect and the injury, and (4) that the defendant (manufacturer) was responsible for the defect. See Products Liability, Second Edition, Madden, §12.1, p. 487.
Upcoming: Part 2: Product liability - STRICT LIABILITY: O.C.G.A. §51-1-11