Georgia Trails & Rentals, Inc. v. Rogers

• Decision Date: 11 March 2021
• Docket Number: A20A1705, A20A1706, A20A1707, A20A1708, A20A1709, A20A1710
• Citation: 359 Ga.App. 207,855 S.E.2d 103
• Parties: GEORGIA TRAILS & RENTALS, INC. v. ROGERS et al. Durhamtown Plantation Sportsman's Resort, LLC. v. Rogers et al. Two Rivers Irrevocable Trust v. Rogers et al. McCommons v. Rogers et al. Lassen v. Rogers et al. Two Rivers Holding Company, Inc. v. Rogers.
• Court: Georgia Court of Appeals

359 Ga.App. 207

855 S.E.2d 103

GEORGIA TRAILS & RENTALS, INC.

v.ROGERS et al.

Durhamtown Plantation Sportsman's Resort, LLC.

v.Rogers et al.

Two Rivers Irrevocable Trust

v.Rogers et al.

McCommons

v.Rogers et al.

Lassen

v.Rogers et al.

Two Rivers Holding Company, Inc.

v.Rogers.

A20A1705, A20A1706, A20A1707, A20A1708, A20A1709, A20A1710

Court of Appeals of Georgia.

March 11, 2021

Reconsideration Denied March 30, 2021

Certiorari Denied September 8, 2021

Martin L. Fierman, Eatonton, Ben Durant Fierman, for Appellant.

John Christopher Clark, William Gregory Dobson, Richard Lamar Sizemore, Michael Morgan Smith, Macon, for Appellee.

Barnes, Presiding Judge.

Coleman Rogers ("Cole") was severely injured while participating in a motorbike competition. These related appeals arise from the jury verdict awarding Cole, individually, and his parents, individually and as his guardians, $15 million in damages resulting from his injuries. In Case Nos. A20A1705, A20A1708, A20A1709, A20A1710, which were consolidated in the appellate briefing, the appellants – Georgia Trails and Rentals, Inc., Two Rivers Holding Company, Inc., Robert M. McCommons, and Joseph Lassen – contend that the trial court erred in denying their motion to disqualify the appellees’ attorneys, in denying their motion for mistrial, in denying their motions for directed verdict and judgment notwithstanding the verdict ("JNOV"), and in submitting the special verdict form to the jury over appellants’ objection. The appellants also contend that the damages award was excessive.

In Case Nos. A20A1706 and A20A1707, the appellants, Durhamtown Plantation Sportsman's Resort, LLC and Two Rivers Irrevocable Trust, through its trustee, Mike McCommons, challenge the trial court's denial of their directed verdict motions and motions JNOV and the special verdict form. The appellants in both appeals assert that the evidence adduced at trial failed to establish that they were the owners or occupiers of the recreational facility, that they had any legal or supervisory control of the facility, or that they had any legal duty to Cole and had breached such duty.

On appeal from a jury verdict, we affirm if any evidence supports the jury's verdict, construing the evidence in the light most favorable to the prevailing party. In order to prevail, [the appellants] must show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought. [The] standards of review for directed verdict and [JNOV] are the same.

(Citations and punctuation omitted.) Norton v. Holcomb , 299 Ga. App. 207, 208, 682 S.E.2d 336 (2009).

Applying that standard, the evidence reveals that on December 13, 2014, Cole, the then fifteen year old son of Cecilia and Barry Rogers, was participating in a motorbike race and collided with the metal edge of an exposed culvert pipe located approximately three feet from the side of the track. The racing track is situated on land occupied by an "off-road recreational facility," collectively referred to as "Durhamtown," and out of which operate the appellants, Georgia Trails and Rentals and Durhamtown Plantation Sportsman's Resort. In 2014 the land was owned by appellant Two Rivers Holding Company, and was later transferred to appellant Two Rivers Irrevocable Trust.

The 6,000 acre facility is collectively identified by its website as "Durhamtown.com," although there are, or were, several other entities utilizing some form of that moniker, including Durhamtown Off Road, Durhamtown Farms, Durhamtown Trails and Rentals, and Durhamtown Sportsman's Plantation Resort.¹ Appellant McCommon is the CEO of each of the corporate entities, including the individual appellants in these appeals. The facility charges to use the 150 miles of trails and 15 motorbike tracks located on the property. There are also motorbike races held on the tracks. The construction of the track at issue was paid for by Durhamtown Plantation Sportsman's Resort in 2010, but the culvert that caused Cole's injury was added approximately a year later to address drainage issues.

Appellant Lassen coordinated the races, which included the "authority and responsibility to set the rules for the races," and through a fee arrangement paid "Durhamtown" "fifty percent of the [race] revenue to provide that location and maintain the [race] course." He described that to participate in a race, the rider "would fill out the registration, sign the waiver, ... pay for the riding fee or the racing fee and the spectator fee depending on how many family members were with them."²

Lassen testified that his "person" who worked at the race entrance gate would check the rider to ensure that they had certain safety equipment, which included helmet straps, goggles, long sleeve shirts, and boots. According to Lassen, on the morning of the race, McCommons’ "crew" would prepare the track and "till the dirt up, kind of rake it up ... so it wasn't just a slick ... hard packed surface." He testified that he rode the track the night before Cole's accident and did not notice that the culvert in the area Cole was injured was unguarded and unmarked, and that he did not notice it from his vantage point on the morning of the accident.

McCommons testified that he supervised the maintenance on the tracks, that maintenance was done before the tracks opened and after hours, and that "[a]nybody that works on my property outside on any track or trail is paid for through [Georgia] Tracks and Trails Companies." He explained that equipment owned by Durhamtown Farm would ready the track the morning of a race, that he would inspect the track, and after Lassen also inspected the track and gave him the "okay," he would authorize the use of the track.

Lauren Clifton, who was also identified as a "race coordinator" at the time of Cole's accident, testified that during that time she also worked in various capacities at Durhamtown. Clifton testified that her roles were "all blended together," and that she may have been paid by Georgia Trails and Rentals, but knew that she was paid by "McCommons ... [t]hrough one of his companies" and she was under his exclusive control as an employee on the day of Cole's accident. Clifton agreed that the "lodge," which was located on the property, was the "nerve center" for all of the activities involving the various businesses. On race day, Clifton shared the responsibility with Lassen of organizing the race, including ensuring that the racers were lined up and in the right place. On the day of Cole's accident Clifton was "doing scoring and registration" for the race.

Clifton's mother, Joni Roberts, worked as operations manager for Durhamtown and reported exclusively to McCommons. In that capacity, she handled complaints related to the facilities, including the racing tracks. She testified that McCommons would have known the most about the construction, upkeep and inspections of the track, and that Georgia Trails and Rentals employed the people who inspected the track before the races. Roberts testified that she was employed by Durhamtown Plantation Sportsman's Resort "the whole time," and that to her knowledge she was employed by the company at the time of the accident. She recalled that the property was once known as Durhamtown Plantation but, "that company ... was no longer in business and changed to Durhamtown Off Road." Roberts was not sure if Durhamtown Plantation Sportman's Resort had become Durhamtown Off Road Park. Roberts was responsible for investigating Cole's accident, including taking photographs of the accident scene and gathering paperwork.

On the day of the accident, Barry Rogers accompanied his son to Durhamtown for the race. Cole testified about the circumstances leading up to his collision with the open culvert.

I was on lap two of the race. I was coming around on the left-hand side. There was individuals behind me riding and we kind of were all coming around the turn at the same time. So when I went around the turn, I went to the left side because they were holding the right side. And when I jumped over the jump, ... when we come off the jump side, they had pushed ... me over a little bit. And when I had landed on the left-hand side, I hit the ground and then it was just over with.... I was trying to get up and move and just couldn't.

When Cole did not reappear from the jump, his father noticed a race "flagger" waving frantically and "went directly to him." Cole was lying in the area near the culvert, he was conscious, but in "[p]retty bad shape." The father observed that Cole's "right leg was separated at the kneecap ... and his leg was laying up beside him." Clifton and two EMTs arrived shortly afterward, and Clifton used her belt to create a tourniquet

to tie off Cole's leg, which she testified was attached to his by only three tendons. Although doctors were able to save his leg, he suffered extensive and permanent injuries.

McCommons testified that, as is their ordinary practice for the riders’ safety, the metal culvert would have been covered and protected by tires and bales of hay. Roberts who, as part of her investigation, took pictures of the accident site on behalf of Durhamtown, also testified that there would have been tires in place to protect the riders from the metal culvert. Roberts testified that the pictures she took of the culvert that day after Cole's accident showed that the culvert was covered by hay and tires. However, photographs and video taken with a GoPro camera attached to Cole's helmet revealed that when Cole crashed the culvert was exposed and uncovered.

Durhamtown's expert on track design and safety testified that outdoor tracks commonly use culverts to drain and divert water from the track surface. He also testified that the culverts are sometimes covered, but that there are no national racing standards governing the construction of the Durhamtown track.³ According to the expert, tires and hay bales are used...