Lee Welborn’s defendant, who rerouted a small stream without a permit to do so, obtained an order on January 4, 2012 granting summary judgment in a Clean Water Act case. The co-defendant sold the adjoining downstream parcel of land to the plaintiffs, who used the building next to the stream as a warehouse. In September 2009, the building flooded when the stream came out of its banks, and the plaintiffs sued in federal court. In an unusual procedural move, the plaintiffs moved for summary judgment on the Clean Water Act violation. In response, Lee obtained an expert hydrologist who concluded that the 500 year flood would have flooded the plaintiffs’ building whether the stream was in its original channel or in its new location. The co-defendant filed its motion for summary judgment in response. Prior to the expiration of time for the defendants to file their dispositive motions, Judge Harold Murphy considered the expert hydrologist’s undisputed affidavit and entered an Order granting summary judgment to all defendants. Plaintiffs have appealed the court’s ruling to the Eleventh Circuit Court of Appeals.
Court of Appeals Affirms Summary Judgment and Trial Court Awards Fees Under Offer of Judgment Statute
By Order filed February 28, 2012, the Superior Court of Bartow County granted Lee Welborn’s motion for attorney’s fees and expenses, after the plaintiff refused the defendants’ offer of judgment made pursuant to O.C.G.A. § 9-11-68(a). The plaintiff, a driver for UPS, suffered a severe hand injury when her glove became caught in a conveyor belt serviced several weeks earlier by the defendants. After deposing every UPS worker who had any contact with the belt, defense counsel was able to establish that no one from UPS observed or reported a protruding wire in the lacing of the conveyor belt after the defendants serviced the facility. Defendants tendered their contract with UPS into evidence, which proved that defendants could only work at the facility when specifically called out by UPS, and that there was no ongoing contractual obligation to inspect and maintain the facility. Defendants’ motion for summary judgment was granted by the trial court, which was upheld by the Court of Appeals in Dempsey v. Southeastern Industrial Contracting Co., Inc., 309 Ga. App. 140 (2011). In ruling upon defendants’ motion for attorney’s fees and expenses, Judge Carey Nelson found that defendants had made a good faith offer of $60,000, which was rejected by the plaintiff, and that defendants’ $14,359.05 in attorney’s fees and expenses incurred after plaintiff rejected the settlement offer were reasonable and necessary.
Lee Welborn tried his 100th jury trial recently, a week-long jury trial in Clayton State Court before Judge John Carbo the week of February 27, 2012. The Plaintiff, who had slipped and fallen off of the front steps of a motel, alleged that the welcome mat was defective and not securely fastened. Plaintiff's attorneys presented the Clayton County Fire Chief who testified that the Fire Code required all mats to be securely fastened, as well as an expert engineer who testified that the tile on the front entrance was an unsuitable building material due to being too slippery, in addition to testifying that welcome mats must be attached to the floor surface underneath. The Plaintiff fractured her right ankle, which required surgery with plates and screws. Plaintiff sought recovery for her $54,000 in medical bills as well as pain and suffering.
For the defense, Lee proved that the Plaintiff only came to the motel to find her ex-husband and get her past due alimony payments. This relegated her to the status of a licensee rather than an invitee, which meant that the motel owner only owed her the duty not to willfully and wantonly allow her to encounter a hidden peril. The jury learned that the mats outside of the Fire Chief's office and outside of the Plaintiff's expert's office were merely laid down on the surface underneath without being attached, which was also consistent with the mats outside of the metal detectors at the entrance to the courthouse. The Plaintiff's expert admitted that he had not measured the surface roughness coefficient of friction necessary to determine whether the tile met Code. He further admitted that the authoritative treatise he referenced in his deposition supported the defense position, and not the Plaintiff's position. Just prior to the close of evidence, the Plaintiff's attorneys dismissed the individual motel owner, and proceeded only against the corporation. Plaintiff asked the jury to award $2.5 million in closing argument.
After two days of deliberations, the jury deadlocked with 10 jurors in favor of the defense, and 2 jurors holding out for the Plaintiff. As a result, a mistrial was declared. The case will appear on the May 2012 calendar for the retrial. Lorraine Merrow v. Dahyahai Patel and Punit, Inc. d/b/a Budget Inn, Civil Action File No. 2009CV11621C