Digital Commons Network^™

Georgia County Liability: Nuisance Or Not?, R. Perry Sentell Jr.

Mercer Law Review

It is both historical and undeniable that local government law does not expose all "local governments" to the same "law." At various junctures, and for various reasons, applicable legal precepts may differ according to the nature of the governmental beast. Moreover, those differences may appear, disappear, converge, and diverge in seeming disorderliness, rendering the law's proverbial seamless web a forbidding fortress of analytical frustration. On occasion, the distinctions are admittedly minor; on occasion, they are of profoundly pivotal prominence.

Primarily, but not exclusively, the focused governmental entities will be municipalities and counties. Belying popular modern perceptions of assimilation, history's approach …

Handicap Legislation, Todd J. Sanders

Mercer Law Review

On July 26, 1990, amid both a great deal of celebration and predictions of disaster, President Bush signed into law the Americans with Disabilities Act of 1990 ("ADA"). Although many commentators have written about the ADA's employment discrimination provisions, they have given relatively little attention to Title III of the ADA. Title III concerns public accommodations and transportation systems such as railroads, buses, and demand responsive forms of transportation. The ADA's purpose is to make public accommodations more accessible to persons whom the ADA defines as disabled. Title III requires more than reserving handicapped parking spaces and building ramps for …

Products Liability Law In Georgia Including Recent Developments, Robert M. Travis, Edward C. Brewer Iii

Mercer Law Review

This Article contains both a summary of products liability law in Georgia and a general overview of recent significant decisions in the products liability area. The authors' objective is to acquaint the reader with products liability law in Georgia and to review important new decisions which affect this rapidly evolving area.

• Theories of Recovery
• Parties in Product Liability Actions
• Defenses
• Damages

Appellate Practice And Procedure, Marion T. Pope Jr., Ann H. Kelley

Mercer Law Review

Practitioners in Georgia's state appellate courts recognize that the most important step in the appellate process is to first ascertain the proper procedure to insure that their appeal is properly before the court, Because the statutory and decisional law governing appellate practice and procedure is not immutable, the appellate practitioner must consistently strive to stay abreast of the law in this area. With these thoughts in mind, this Article will survey selected opinions of Georgia's state appellate courts pertaining to appellate practice and procedure rendered during the period from June 1, 1988 to May 31, 1991. The Article will also …

Business Associations, Paul A. Quirós, Lynn Scott Magruder

Mercer Law Review

This Article surveys noteworthy cases that Georgia appellate courts, the United States District Courts in Georgia, and the Eleventh Circuit Court of Appeals decided during the survey period as they relate to Georgia corporate, partnership, securities, and banking law. It also reviews important acts of the Georgia General Assembly concerning the areas of corporations, partnerships, securities, and banking law.

Commercial Law, James C. Marshall

Mercer Law Review

On November 18, 1991, less than one week before the scheduled printing of this Article, a panel of the Georgia Court of Appeals ruled that Georgia's version of the Uniform Commercial Code ("U.C.C.") grants certain judgment creditors priority over later purchase money secured creditors. Given the obvious importance of this development, the editors of Mercer Law Review were kind enough to permit the author to append a hastily prepared discussion of the court's decision to the end of this Article. The reader consequently may wish to begin at the end.

Domestic Relations, Barry B. Mcgough, Andrea G. Alpern

Mercer Law Review

In this survey period, the supreme court stretched its long-arm to overrule two earlier cases and to hold that compliance by a nonresident with a Georgia divorce decree does not insulate the nonresident from jurisdiction in Georgia. With a strong arm, the supreme court held that the child support guidelines are an optional "computational reference" and that trial courts lack the authority to award the federal income tax dependency exemption to noncustodial parents. Overruling a recent decision, the supreme court held that the interlocutory-application subsection, section 5- 6-34(b) of the Official Code of Georgia Annotated ("O.C.G.A."), must be followed in …

Criminal Law, Frank C. Mills Iii

Mercer Law Review

In the hundreds of cases reviewed for this survey, there were few earthshaking decisions. DNA evidence has arrived in Georgia, and the year and- a-day rule has left. Nevertheless, there are more noteworthy cases than can be adequately addressed in this survey. There are plenty of pitfalls for the unwary. In fact the most notable trend is the ever-increasing number of challenges to former counsel. Prosecutors, defense counsel, and courts are well-advised to use the Checklist for Unified Appeals as a guide in any criminal case.

Due to the significance of the Checklist for Unified Appeal, the author uses a …

Evidence, Marc T. Treadwell

Mercer Law Review

The most significant development in Georgia evidence law during the survey period, as in the past two survey periods, was the continued effort to adopt a new Georgia evidence code based upon the Federal Rules of Evidence. The State Bar of Georgia is firmly committed to the adoption of the Georgia Rules of Evidence and has vigorously lobbied for the proposed rules in each of the past two sessions of the Georgia General Assembly. Although no organized opposition has arisen to the proposed rules, the rules have yet to be adopted. In the 1991 session of the General Assembly, as …

Insurance, Maximilian A. Pock

Mercer Law Review

The big news for 1991 is the repeal of Georgia's No-Fault Act. The Dawkins/Taylor Bill,1 which became law in- April 1991 and effective on October 1, 1991, surgically exscinded all no-fault provisions from the Georgia Motor Vehicle Accident Reparations Act and replaced them with an extensively revamped compulsory automobile liability insurance system. During its sixteen-year reign, Georgia's no-fault regime, embroidered by numerous amendments, has spawned an amount of litigation that rivals or surpasses that of the Uninsured Motorist Act. At least ten percent of all appellate judge-time was devoured by no-fault cases. Accordingly, the purveyors of no-fault, who captured our …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

In a year dusted by destiny, local government law seized undisputed leadership in a new legal world order. Deploying dazzling analytical force in a gulf of litigational dissipation, and deftly defusing primitive land mines of mediocrity, the subject drew a line of liberating enlightenment in the sands of juristic history. With illustrative cases positioned as defensive missiles, and selected statutes marshalled with bomb sight precision, this survey advances to quench the flaming wells of desperation torched by other disciplines. It is the mother of all surveys.

Real Property, Robert L. Foreman Jr., T. Daniel Brannan, Stephen M. Lamastra

Mercer Law Review

During the survey period, many cases addressed real property issues in Georgia. Georgia courts were most active in the areas of zoning, condemnation, and landlord-tenant law. In the following pages, the authors review certain cases that signal developing trends or provide guidance in a specific area of the law.

• Mineral Rights
• Easements
• Construction of Document
• Mortgages and Security Deeds
• Foreclosure
• Dispossession
• Landlord and Tenant
• Liens
• Sales Contracts
• Vendors and Purchasers
• Real Estate Brokers
• Trespass on Realty
• Zoning
• Eminent Domain and Condemnation
• Transfer Tax
• Legislation

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

This survey period saw the enactment of Georgia's first comprehensive trust code, the enactment of less sweeping but still significant amendments affecting wills and administration of estates, and the usual number of judicial decisions in these areas.

Table Of Cases

Mercer Law Review

No abstract provided.

Worker's Compensation, H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon Jr.

Mercer Law Review

Having experienced substantial legislative changes in 1990, the workers' compensation pendulum swung back to the appellate courts during the most recent survey period, resulting in equally far-reaching developments. The flurry of appellate decisions is notable for the efforts of Georgia's appellate courts to strike a balance between the humane purposes of the Workers' Compensation Act (the "Act") and the ever-increasing economic burdens placed upon society by both the workers' compensation system and health care in general.

The decisions concerning the parameters of suitable employment, the all-issues statute of limitations, and the exclusive remedy doctrine typify the ebb and flow of …

Construction Law, Brian J. Morrissey, Matthew W. Wallace

Mercer Law Review

Transactions within the construction industry are becoming increasingly complex as lawyers are required to consider intricate questions concerning such diverse areas as lender liability, insurance, and environmental law, along with the more traditional tort and contract principles. The recent economic downturn in the construction industry has changed the nature of the relationships between contractor, subcontractor, and developer, complicating the lawyer's task. This economic downturn has also sharpened the conflict in the Georgia Court of Appeals between age-old principles of contract and banking law and newer principles that may better reflect the increasingly complex legal environment. For example, Georgia courts have …

Torts, Cynthia Trimboli Adams, Charles R. Adams Iii

Mercer Law Review

It was a survey period marked by the lack of reconciliation. As always, the victims of civil wrongs other than breaches of contract, unreconciled to the perpetrators of those wrongs, sought redress instead 'in the courts, especially, for present purposes, the appellate courts. Plaintiffs remained unreconciled to the limitations on their rights in malpractice cases and prosecuted more appeals than ever in this burgeoning legal field. Defendants of many stripes, and some plaintiffs, too, unreconciled to the litigational tactics of their adversaries, continued to flood the courts with allegations of abusive litigation. The courts themselves, apparently unreconciled to some of …

Free Exercise: A "Hollow Promise" For The Native American In Employment Division, Department Of Human Resources Of Oregon V. Smith, Debra Ann Mermann

Mercer Law Review

In Employment Division, Department of Human Resources of Oregon v. Smith, the United States Supreme Court held that a state criminal prohibition of the use of peyote by bona fide members of the Native American Church and a subsequent denial of unemployment benefits upon their discharge for such use does not violate the free exercise clause of the first amendment of the United States Constitution. The Court determined that Oregon's prohibition of the sacramental use of peyote was a "generally applicable criminal law" and ruled that the "compelling interest" test which ordinarily applies when a state imposes a substantial …

Admiralty, Roy E. Paul, Grace W. Shelton

Mercer Law Review

The Mercer Law Review last surveyed admiralty in its 1990 summer edition. Consistent with the last five articles on this topic, this survey does not attempt to include all opinions that touch on admiralty and maritime practice. Instead, this survey will focus on significant decisions that reflect some real change in, or explication of, existing law in certain specific categories. The present survey begins with cases dealing with issues of maritime jurisdiction and procedure. The Article then turns to recent developments relating to the Carriage of Goods by Sea Act ("COGSA") and to personal injury actions. The Article next addresses …

Antitrust, Michael Eric Ross

Mercer Law Review

The antitrust docket of the Eleventh Circuit last year mirrored the general state of antitrust law in several respects. It included only five full blown decisions, three involved health care, and defendants had won below in all five cases. On the other hand, the Eleventh Circuit went against the antitrust grain in 1990 by finding for plaintiffs in three of its five opinions and again refusing to be mesmerized by contemporary economic arguments. Moreover, a few of the Eleventh Circuit's specific antitrust holdings rendered last term might fairly be questioned.

This Article discusses each of the Eleventh Circuit's 1990 antitrust …

Bankruptcy, W. Homer Drake, James W. Dilz

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit decided numerous cases arising under the Bankruptcy Code (the "Code"), during 1990 that covered a wide spectrum of topics. The court adopted a test for analyzing the bankruptcy nexus of noncore litigation to help define the bounds of the bankruptcy court's subject matter jurisdiction. The court quelled concern over preferences in the retail automobile industry by holding that security interests perfected in accordance with state law may not be set aside in bankruptcy. The Chapter 13 practice has been changed in many bankruptcy courts in the aftermath of two appellate …

Constitutional Law—Civil, Albert Sidney Johnson, Susan Cole Mullis

Mercer Law Review

During the 1990 survey period, the United States Court of Appeals for the Eleventh Circuit applied recent precedent from the United States Supreme Court in important areas of constitutional civil law such as due process and the measure of damages in fifth amendment just compensation cases. Additionally, the court attempted to resolve issues not yet addressed by the higher court in the areas of qualified immunity of government officials from civil damages, subject matter jurisdiction, and appellate jurisdiction. The court's conflicting panel opinions on the issues of qualified immunity, appellate jurisdiction, and frivolity determinations during 1990 indicate important evolutionary activity …

Constitutional Criminal Procedure, John L. Carroll

Mercer Law Review

In 1990 the United States Court of Appeals for the Eleventh Circuit was a court in transition. In the Fall of 1989, Judges Roney and Hill took senior status. Then in December of 1989, Judge Vance fell victim to a mail bomb which had been sent to his house. The court then entered 1990 with three vacancies and a tremendous workload. President Bush made appointments to fill two of those vacancies. Judge Birch joined the court on June 12, 1990, and Judge Dubina moved up from the district court of the Middle District of Alabama on October 5, 1990. Despite …

Employment Discrimination, Peter Reed Corbin, John E. Duvall

Mercer Law Review

In what no doubt will prove to be the calm before the storm, the number of cases decided in the area of employment discrimination during the 1990 survey period decreased significantly, both in the United States Supreme Court and in the United States Court of Appeals for the Eleventh Circuit. The decline in the number of Supreme Court pronouncements is not surprising, since the succession of landmark cases decided in the previous two years was truly remarkable, and such a pace realistically could not have continued. It also appears as if the Eleventh Circuit held back, waiting to see whether …

Environmental Law, Edward A. Kazmarek, W. Scott Laseter

Mercer Law Review

Environmental law matured during the last decade to occupy a leading role in American jurisprudence. News of the dominance of environmental issues will come as no surprise to anyone practicing law today. At least one attorney in almost every private law firm specializes in environmental law, and most larger law firms devote entire departments to the field. As environmental law grows more and more complex, staying abreast of its sometimes shocking developments becomes increasingly difficult.

Evidence, Marc T. Treadwell

Mercer Law Review

The Georgia lawyers among the readers of this Article likely are somewhat familiar with efforts over the past several years to adopt a new Georgia Evidence Code based upon the Federal Rules of Evidence (the "Rules"). The Georgia Evidence Code is Sorely in need of revision. It can be argued that there is no Georgia Evidence Code as such. Indeed, Georgia lawyers must grapple with an amorphous amalgam of disjointed statutes and thousands of judicial decisions that constitute our body of evidence law.

Federal Taxation, Steven C. Evans

Mercer Law Review

The federal tax cases decided by the Eleventh Circuit during 1990 were surprising in several respects. First, the number of procedural tax cases decided by the Eleventh Circuit was surprisingly low when compared to the number of procedural cases decided in previous years. Second, and more importantly, cases decided under the Employment Retirement Income Security Act of 1974 ("ERISA") constituted the vast majority of substantive tax cases decided by the Eleventh Circuit.during 1990. This trend is evidence of the increasing amount of litigation under ERISA and the importance of ERISA to the tax practitioner.

Labor Law, Diane L. Prucino, Glen P. Brock

Mercer Law Review

This Article examines certain noteworthy decisions issued by the United States Court of Appeals for the Eleventh Circuit during 1990 in the areas of traditional labor law and employee benefits. More specifically, the decisions addressed constitute the Eleventh Circuit's most recent interpretations of the National Labor Relations Act ("NLRA"), the Labor-Management Reporting and Disclosure Act of 1959 ("LMRDA"), the Railway Labor Act ("RLA"), the Fair Labor Standards Act of 1938 ("FLSA"), the Employee Retirement Income Security Act of 1974 ("ERISA"), and the Occupational Safety and Health Act of 1970 ("OSHA"). Certain other labor-related cases are also discussed.

Securities Regulation, John L. Latham, Lynn Scott Magruder

Mercer Law Review

This Article reports on significant decisions by the Court of Appeals for the Eleventh Circuit during 1989 and 1990 in the area of securities regulation. This Article also surveys decisions by the United States Supreme Court during the period that affect Eleventh Circuit precedent.

Trial Practice And Procedure, Molly Townes O'Brien

Mercer Law Review

If "[t]he history of liberty has largely been the history of the observance of procedural safeguards," then 1990 should be regarded as a fine year in the history of liberty. In this year's rulings, the Eleventh Circuit required the district courts to scrutinize in forma pauperis complaints carefully before dismissing them as frivolous and demanded that pro se parties receive express written notice that they must file affidavits in response to a motion for summary judgment. The Eleventh Circuit was also unusually receptive this year to claims by nonresident defendants that the court's exercise of personal jurisdiction over them would …