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Protection of the Elderly from Neglect or Mistreatment in Georgia |
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Georgia law contains provisions for the protection of the elderly from neglect or mistreatment. A statute adopted by the General Assembly provides that “[i]n addition to any other provision of law, the abuse, neglect, or exploitation of any disabled adult or elder person shall be unlawful.” O.C.G.A. § 30-5-8. A relative or survivor of an abuse claim may recover damages in a civil suit for a violation of this statute through neglect or abuse of an elderly person under a theory of negligence or breach of legal duty. Generally, a plaintiff may assert a claim of negligence per se arising from violations of federal or state statutes as long as (1) that plaintiff falls within the class of persons the statute was intended to protect; (2) the harm complained of was the same harm the statute was intended to guard against; and (3) the violation of the statute proximately caused the plaintiff's injury. The violation of a regulation, no less than that of a statute, can likewise establish that a defendant breached a duty owed to a plaintiff as a matter of law. (Footnotes omitted.)
McLain v. Mariner Health Care, 279 Ga. App. 410, 411(2) (2006) (considering negligence per se claim based on violation of Medicare and Medicaid regulations). An elderly person also has a cause of action for exploitation against any person that takes the elderly person’s money through deception, fraud, or forgery. O.C.G.A. § 30-5-8. Exploitation is broadly defined. Section 30-5-3 of the Georgia Code Annotated provides as follows: (9) “Exploitation” means the illegal or improper use of a disabled adult or elder person or that person's resources through undue influence, coercion, harassment, duress, deception, false representation, false pretense, or other similar means for another's profit or advantage.
Ga. Code Ann., § 30-5-3.
The time for bringing a claim for elder abuse or neglect is governed by one or more statutes of limitations ranging from two to four years. Circumstances may cause a tolling or stay of a statute of limitations. For example, a statute of limitations against or by an unrepresented estate is tolled for up to a period of five years until the date of appointment of the personal representative, also known as the executor or administrator. See O.C.G.A. §§ 9-3-92 (tolling of claims by estate), § 9-3-93 (tolling of claims by creditors) & § 9-3-98 (application to tort actions). Also, the concealment of theft or conversion against an elderly person may toll the statute of limitations. O.C.G.A. § 9-3-96. In addition, the incompetency of the elderly person against whom the abuse is directed may toll a statute of limitations. Moore v. Louis Smith Memorial Hosp., Inc., 216 Ga. App. 299, 299 (1995). The issue of competency is a question of fact. Id. Also, in the case of action against an estate of a person that may have engaged in elderly abuse, “[n]o action to recover a debt due by the decedent shall be commenced against the personal representative until the expiration of six months from the date of qualification of the first personal representative to serve.” O.C.G.A. § 53-7-42. The application of these tolling statutes depends on the circumstances of each case of elderly abuse, the person bringing the claim, and the identity of the defendant against whom the claim is brought. Not all of these principles will apply to every case. |
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Recent Case Regarding Coverage Under Insurance Policies |
Hathaway Development Co., Inc. v. American Empire Surplus Lines Ins. Co., 2009 WL 3807175 (Ga.App., Nov. 16, 2009)
The recent opinion of the Georgia Court of Appeals in Hathaway Development Co., Inc. v. American Empire Surplus Lines Ins. Co., 2009 WL 3807175 (Ga.App., Nov. 16, 2009), is a reminder that anyone seeking to hold an insurance company to its obligations must make sure that the terms of the insurance policy are satisfied. In Hathaway Development Co., supra, a plaintiff contractor obtained a judgment against an insured subcontractor. The contractor then stepped into the shoes of the subcontractor and sued the subcontractor's insurer for coverage under the subcontractor's Commercial General Liability policy. In reversing the decision of the trial court that granted judgment to the insurance company, the Georgia Court of Appeals reemphasized that the plaintiff must comply with the conditions of coverage in the policy regardless of its status as the plaintiff stepping into the shoes of the subcontractor.
The Court also reviewed other rules that provide hints as to how to frame a case for a plaintiff seeking to assert a claim that would be covered under the insured's policy. The Court noted:
[W]hile construction defects constituting a breach of contract are not covered by CGL policies, Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga.App. 220, 355 S.E.2d 130 (1987), negligently performed faulty workmanship that damages other property may constitute an “occurrence” under a CGL policy. SawHorse, Inc. v. Southern Guaranty Ins., 269 Ga.App. 493, 498(2), 604 S.E.2d 541 (2004). “An accident is an unexpected happening rather than one occurring through intention or design. [Cit.]” Custom Planning & Dev. v. American Nat. Fire Ins., 270 Ga.App. 8, 10, 606 S.E.2d 39 (2004). In this case, Hathaway's default judgment was based on its claim of negligence against Whisnant, and American Empire cannot now argue that Hathaway's claim was actually for breach of contract. Cf. Custom Planning & Development, supra, 270 Ga.App. at 10, 606 S.E.2d 39 (arbitrator's award based on breach of contract; thus negligence was excluded as basis for liability); McDonald Construction Co. v. Bituminous Cas. Corp., 279 Ga.App. 757, 762, 632 S.E.2d 420 (2006) (case involved only contract claims, not negligence claims).
Accordingly, a plaintiff seeking to make a claim that will be covered under a policy should be careful and consider theories such as negligence in addition to breach of contract in order to make out a claim of coverage once and if the plaintiff prevails on its claim against the insured defendant. |
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RESPONSIBILITY FOR DETENTION POND MAINTENANCE IN NORTH GEORGIA SUBDIVISIONS |
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The overwhelming expansion of residential subdivisions in Georgia in North Atlanta, Forsyth County, Gwinnett County, Cherokee County, and DeKalb County in the 1980’s and 1990’s has made the legal status and rules applicable to associations particularly important as subdivision infrastructure, including detention ponds, pools and swimming courts, age and deteriorate. Residential subdivision developers in Georgia have recorded deed covenants in the form of a declaration of covenants and deed restrictions that govern the operation and responsibility of associations. Associations are thus an extension of the local governments with regard to many maintenance responsibilities historically exercised by local municipalities and counties. The purpose of deed covenants is to preserve community aesthetics and to accommodate the need for a legal structure that will maintain community infrastructure. The deed declarations that developers recorded since the 1980’s contain provisions that are designed to market the community to homeowners and to turn over control of the subdivision infrastructure to a homeowners association. Turnover typically follows sale of a certain percentage of lots after the developer has completed the work of installing streets, curbs, gutters and other utilities. In reviewing and interpreting a property owner association’s legal responsibilities, one must understand the subdivision regulations and development ordinances in effect at the time a community was developed and permitted. Developers in the region have used attorneys who drafted deed covenants for the purpose of serving the developer’s interest in marketing and complying with local Subdivision Regulations while minimizing the developer’s long term legal liability. The Subdivision Regulations in larger metropolitan counties in effect since the 1980’s regulate the infrastructure maintenance. The Declarations that developers in the area have recorded require community maintenance of private detention facilities and storm drains not owned outright by the public. While local governments in the area often accept dedication of streets in subdivisions, for liability reasons they often try to prevent developers from turning over drainage systems to public ownership, which include storm water pipes and detention ponds. Accordingly, the Subdivision Regulations often require, for example, that a developer assign a homeowners association the responsibility of owning and maintaining such facilities. Ownership can occur in the form of the association’s ownership of an easement in the facility. The 2003 Fulton County Subdivision Regulations, Section 8.5.3.A.2 contain an example of the requirements for developers to assign detention pond maintenance to the homeowners associations. The language of legal forms used for association declarations vary depending on the attorney that the developer hired to draft and record them. However, many of the forms used by real estate attorneys contain common boilerplate regarding private infrastructure liability. An example of a Declaration recorded in the 1980’s for the Waters Mill Homeowners Association in Roswell, Georgia that pertained to subdivision maintenance of drainage easements and detention ponds stated as follows: Section 3. Easements for Utilities. There is hereby reserved to the Declarant and the Association blanket easements upon, across, above and under all property within the Community for access, ingress, egress, installation, repairing, replacing, and maintaining all utilities serving the Community or any portion thereof, including, but not limited to, gas, water, sanitary sewer, telephone and electricity, as well as storm drainage and any other service. . . which the Declarant or the Association might decide to have installed to serve the Community. (Emphasis added).) The Declaration further provided: Section 11. Drainage. Catch basins and drainage areas are for the purpose of natural flow of water only. . . . No Owner of occupant of a Lot may obstruct or rechannel the drainage flows after location and installation of drainage swales, storm sewers, or storm drains. Declarant hereby reserves a perpetual easement across all Community property for the purpose of altering drainage and water flow. Rights exercised pursuant to such reserved easement shall be exercised with a minimum of interference to the quiet enjoyment of affected property . . . . (Emphasis added)). In this example, the developer created the association for this Declaration, filed a Declaration reserving easements and maintenance responsibilities, and filed a Final Plat with the Fulton County Department of Community Development and the Clerk of the Superior Court of Fulton County showing easements on the Final Plat for storm water drainage. The purpose for creating associations over the last 25 years was not just to permit associations regulate architectural aspects of a community but to create an entity to bear the expenses of common maintenance of the community as well as storm drainage. New storm water and drainage ordinances are now being adopted in the North Georgia area to implement a new phase of the Clean Water Act of 1972 as amended in 1987 that will further require association responsibility for detention pond maintenance. Associations and neighborhoods that attempt to avoid responsibility may face liability from persons that are affected by deteriorating detention ponds. Where the local governments will not enforce the ordinances and laws in effect regarding detention pond maintenance, it will be left to homeowners to force their associations to take the actions required under their deed covenants. One of the firms that undertakes such representation is the law firm of Teague & Zeliff, LLC. |
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BOARD OF COMMISSIONERS VOTES TO LOCATE RELIGIOUS MOSQUE IN SOUTH FORSYTH COUNTY |
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Lack of Leadership on Water Issues |
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The area north of Atlanta along Georgia 400 has developed rapidly in the last 25 years. There are residential subdivisions along the corridor in North Fulton County and South Forsyth County that are now maturing in age. These older subdivisions are now beginning to experience the consequences of poor planning associated with their storm sewers and infrastructure. The developers have turned over the common areas of the subdivisions to associations. Associations are doing everything they can to avoid the financial and legal responsibility associated with storm sewer management leading to an unanswered question: Who is responsible for private association infrastructure maintenance when the developer is gone? Local governments are refusing the financial burden of managing the systems in these private developments because they do not want to increase taxes. This theme is repeating itself in the relatively young North Fulton municipalities of Alpharetta, Milton, and Johns Creek as well as in Cumming in Forsyth County. The problem that homeowners, associations, counties and municipalities face is the problem cannot be ignored. Federal laws, as well as Georgia state laws, place the burden of watershed management on local jurisdictions. The affected local jurisdictions in this area have responded by implementing storm water maintenance requirements that place the burden on associations. |
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Read more... [Lack of Leadership on Water Issues]
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