Auld v. Forbes

• Decision Date: 28 September 2020
• Docket Number: S20G0020,S20G0021
• Court: Georgia Supreme Court
• Parties: AULD et al. v. FORBES et al. Auld et al. v. Forbes et al.

309 Ga. 893

848 S.E.2d 876

AULD et al.

v.FORBES et al.

Auld et al.

v.Forbes et al.

S20G0020

S20G0021

Supreme Court of Georgia.

Decided: September 28, 2020

Douglas Lee Clayton, Jennifer Lauren Nichols, Swift, Currie, McGhee & Hiers, LLP, The Peachtree, Suite 300, 1355 Peachtree Street, N.E., Atlanta, Georgia 30309-3231, Leigh Martin Wilco, Weissman PC, One Alliance Center, 3500 Lenox Road, 4th Floor, Atlanta, Georgia 30326, Attorneys for the Appellant.

Latif Oduola-Owoo, Robert Louis Arrington, Jr., Arrington Owoo, PC, 1230 Peachtree St NE, Ste 1900, Atlanta, Georgia 30309, Katrenia R. Collins, Katrenia R. Collins, LLC, PO Box 55167, Atlanta, Georgia 30308, Michael Brian Terry, Amanda Kay Seals, Bondurant, Mixson & Elmore, LLP, 1201 West Peachtree Street, N.W., Suite 3900, Atlanta, Georgia 30309-3417, Tricia Purks Hoffler, The CK Hoffler Firm, 23 Lenox Pointe, NE, Atlanta, Georgia 30324, Attorneys for the Appellee.

Todd Emory Hatcher, Gregory, Doyle, Calhoun & Rogers LLC, 49 Atlanta Street, Marietta, Georgia 30060, Steven Stein, Brady Law Group, 1015 Irwin Street, San Rafael, California 64901, Attorneys for the Other Party.

Bethel, Justice.

Following Tomari Jackson's drowning death while on a school trip in Belize, his mother, Adell Forbes, individually and as administrator of Jackson's estate (collectively, "Forbes"), filed a wrongful death action in Georgia. Because Forbes filed the action outside the applicable limitation period provided for under Belize law but within the period that would be applicable under Georgia law, whether Georgia's or Belize's limitation period applies to that wrongful death action is of critical importance. In Forbes v. Auld , 351 Ga. App. 555, 557-560 (2), 830 S.E.2d 770 (2019), the Court of Appeals held that Georgia law, and not Belize law, controlled the limitation period governing the wrongful death claim. Because we hold instead that Belize's limitation period applies to Forbes's wrongful death action, we reverse the Court of Appeals’ decision as to that issue.

1. Background

The facts, as set forth by the Court of Appeals, are as follows:

On February 13, 2016, 14-year-old [Jackson] drowned while swimming in a river on a school trip to Monkey Bay Wildlife Sanctuary in the country of Belize. [Forbes] filed this action on March 24, 2017, against Monkey Bay, its owner [Matthew Miller], Cobb County Government, Cobb County School District, and the chaperones, some of whom were employed by the school district at the time [including James Auld] and some of whom were volunteers. Forbes asserted claims for her son's personal injuries before his death and for his wrongful death.

Forbes dismissed her claims against Cobb County Government, and the trial court granted Cobb County School District's motion to dismiss on the ground that it was immune from liability on the basis of sovereign immunity.^[1] The trial court then granted the remaining defendants’ motions to dismiss, finding that the teacher chaperones were entitled to official immunity and that the one-year limitation period in the Belize Law of Torts Act barred all of Forbes's claims against all defendants. Law of Torts Act, Chapter 172, § 10 (2011).

Forbes , 351 Ga. App. at 556 (1), 830 S.E.2d 770.

Forbes appealed, challenging the trial court's ruling that her claims were time-barred.

See id. at 557 (1), 830 S.E.2d 770. The Court of Appeals reversed, holding that Georgia's two-year statute of limitations on wrongful death claims, and not Belize's one-year limitation period under the Law of Torts Act of Belize, applied to Forbes's claim.² See id. at 557-560 (2), 830 S.E.2d 770. We granted the defendants’ petition for certiorari to consider whether the Court of Appeals correctly determined that Georgia law applies to the wrongful death claim. Because we hold that Belize's limitation period applies, we reverse the decision of the Court of Appeals with respect to the wrongful death claim.

2. Determining the Law Applicable to an Extraterritorial Harm

When a civil tort action is brought in a Georgia court for a harm that was sustained in an out-of-state jurisdiction, the Georgia court must determine which jurisdiction's laws apply to the claim. Georgia law differentiates between substantive and procedural law in such instances and determines which law will apply to the case through the doctrines of lex loci delicti (the law of the place where the injury was sustained) and lex fori (the law of the forum state).

a. Lex Loci Delicti and Lex Fori

"[F]or over 100 years, the state of Georgia has followed the doctrine of lex loci delicti in tort cases, pursuant to which ‘a tort action is governed by the substantive law of the state where the tort was committed.’ " Bullard v. MRA Holding, LLC , 292 Ga. 748, 750 (1), 740 S.E.2d 622 (2013) (quoting Dowis v. Mud Slingers, Inc. , 279 Ga. 808, 809, 621 S.E.2d 413 (2005) ).

The place where the tort was committed, or, the locus delicti, is the place where the injury sustained was suffered rather than the place where the act was committed, or, as it is sometimes more generally put, it is the place where the last event necessary to make an actor liable for an alleged tort takes place.

(Citation and punctuation omitted.) Id. at 750-751 (1), 740 S.E.2d 622.

At oral argument before this Court, Forbes argued that because she alleged that the school trip, including swimming at the wildlife sanctuary where Jackson drowned, was planned in Georgia and sufficient safety precautions were not considered or implemented, her wrongful death claim can be brought under Georgia law. However, it is clear that the "last event necessary" to make the defendants liable for the alleged tort of wrongful death – that is, Jackson's drowning – took place in Belize, and that Belize was the where the injury was suffered. See, e.g., Risdon Enter., Inc. v. Colemill Enter., Inc. , 172 Ga. App. 902, 904, 324 S.E.2d 738 (1984) (although plaintiffs alleged defendants’ negligent conduct in Georgia caused employee's death in a plane crash in South Carolina, "the last event necessary to make defendants liable for the alleged tort, i.e., the airplane crash, occurred in South Carolina," so South Carolina law controlled).

More pertinent to the case before us, we have held that statutes of limitations are generally procedural and are therefore governed by the "lex fori" or the law of the forum state. See Taylor v. Murray , 231 Ga. 852, 853, 204 S.E.2d 747 (1974) ("It is well settled that the Statute of Limitations of the country, or state, where the action is brought and the remedy is sought to be enforced, controls, in the event of the conflict of laws. In other words, the lex fori determines the time within which a cause of action may be enforced[.]"). See also Hunter v. Johnson , 259 Ga. 21, 22, 376 S.E.2d 371 (1989). However, we have also held that

where the foreign statute creating a cause of action not known to the common law prescribes a shorter period in which action may be commenced than that prescribed by the law of the place where the action is brought, the former, the lex loci, governs, and no action can be maintained in any jurisdiction, foreign or domestic, after the expiration of such period, since the limitation is, in such case, a qualification or condition upon the cause of action itself, imposed by the power creating the right, and not only is action barred, but the cause of action itself is extinguished upon the expiration of the limitation period.

Taylor , 231 Ga. at 853, 204 S.E.2d 747. See also Indon Indus. Inc. v. Charles S. Martin Distrib. Co., Inc. , 234 Ga. 845, 846, 218 S.E.2d 562 (1975). Thus, when the applicable foreign law creates a cause of action that is not recognized in the common law and includes a specific limitation period, that limitation period is a substantive provision of the foreign law that governs, and it applies when it is shorter than the period provided for under Georgia law. "There is no common law right to file a claim for wrongful death; the claim is entirely a statutory creation." Tolbert v. Maner , 271 Ga. 207, 208 (1), 518 S.E.2d 423 (1999). Belize's Law of Torts Act creates a cause of action for wrongful deaths occurring in Belize and imposes a one-year limitation period in which to bring such claims. Accordingly, the doctrine of lex loci delicti requires application of Belize's substantive limitation period, unless doing so would violate Georgia public policy. We turn next to that inquiry.

b. Georgia's Public Policy Exception to Lex Loci Delicti

Forbes correctly asserts that Georgia recognizes a public policy exception to lex loci delicti, whereby "the Georgia court will not apply the law of the place where the injury was sustained if it would conflict with Georgia's public policy." (Citation and punctuation omitted.) Coon v. Med. Center, Inc. , 300 Ga. 722, 727, 797 S.E.2d 828 (2017). See also OCGA § 1-3-9.³ However, the public policy exception applies only if the out-of-state law is so "radically dissimilar to anything existing in our own system of jurisprudence" that it would "seriously contravene" the policy embodied in Georgia law. Southern R. Co. v. Decker , 5 Ga. App. 21, 25 (1), 29 (2), 62 S.E. 678 (1908). See also Alexander v. GMC, 219 Ga. App. 660, 660-661, 466 S.E.2d 607 (1995) (same), reversed, 267 Ga. 339, 340, 478 S.E.2d 123 (1996) (despite reversing, noting that "[t]he opinion by the Court of Appeals correctly states the choice of law principles applicable to this case, including the public policy exception to the rule of lex loci delicti."). A mere difference in law is not sufficient to justify this exception. We hereby disapprove of cases where the public policy exception has been construed more liberally. See, e.g., Coon v. Medical Center, Inc. , 335 Ga. App. 278, 283, 780 S.E.2d 118 (2015) (using public policy exception to apply Georgia law where there was a "significant difference" on the impact rule from Alabama law), affirmed on other grounds, 300 Ga. 722, 797 S.E.2d 828 ; ...