CASES DUE FOR ORAL ARGUMENT

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1 Supreme Court of Georgia Jane Hansen, Public Information Officer 244 Washington Street, Suite 572 Atlanta, Georgia CASES DUE FOR ORAL ARGUMENT Summaries of Facts and Issues Please note: These summaries are prepared by the Office of Public Information to help news reporters determine if they want to cover the arguments and to inform the public of upcoming cases. The summaries are not part of the case record and are not considered by the Court at any point during its deliberations. For additional information, we encourage you to review the case file available in the Supreme Court Clerk s Office ( ), or to contact the attorneys involved in the case. Under the Georgia Constitution s two-term rule, all cases must be decided within two Court terms, or about six months from the time they are filed here. 10:00 A.M. Session Monday, July 9, 2012 ELLINGTON V. THE STATE (S12P0870) In this direct appeal in a death penalty case, Clayton Jerrod Ellington is appealing the three death sentences he was given by a DeKalb County court for the 2006 murder of his wife and their 2-year-old twin sons. FACTS: Berna and Clayton Ellington married in The couple had identical twin sons, Christian and Cameron, and the family lived in a house on Rambling Way in Lithonia. Both college graduates from South Carolina, Berna, 31, had a degree in biology and was a biologist for the state Department of Natural Resources. Clayton, 29, had a degree in criminal justice and was a manager at the Atlanta Steakhouse where he met and began an affair in early 2006 with Tomeka Patillo, who also worked at the restaurant. Patillo testified Clayton had told her he was separated from his wife and in the process of divorcing her. Sean Fennell, a 19-yearold student at Morehouse, also worked at the steakhouse and was friends with Clayton. On May 17, 2006, Clayton made plans with Fennell to watch a basketball game that night after Fennell got off work. Shortly after Fennell arrived at his apartment, he said Clayton showed up, asking him for a pair of shoes and a trash bag. The two then went on to Patillo s place to watch the game. Fennell was not yet at home, but Clayton let himself in. Fennell knew about the 1

2 affair. After watching the game for about 10 minutes, Clayton said something was wrong because he d been texting Berna and she had not responded. Clayton asked Fennell to go with him to his house to check on his wife and kids. When they arrived, Clayton told Fennell to stay in the car, went inside, then came back outside yelling to Fennell to come with him. Inside, Berna was lying face down in a pool of blood at the bottom of the stairs in the foyer. Clayton expressed concern for his children and ran upstairs where they too were found dead. Clayton then called 911. Investigators with the DeKalb County police found Berna, dressed in a tank top and underwear, covered in blood. There was blood spatter on the walls, the stairwell was bloody, and there was blood on the stair railing and carpet. At the top of the stairs, in the first bedroom to the right, three sets of clothes had been laid out for the next day on the bed: one set for Berna and two matching sets for two children. The detective went to the second bedroom on the right where there were two cribs along opposite walls. Each had a dead baby in it, dressed in matching red pajamas. They were lying on their backs, with blood spatter on the wall near each crib and on the bedding, although they were covered in less blood than their mother. According to medical examiners, all three died from blunt force trauma caused by the claw end of a claw hammer. It was unclear whether Cameron was awake when he received his injuries. According to the blood spatter patterns, Berna was attacked first while she was in bed, then as she ran down the stairs and where she finally collapsed at the bottom of the stairs. The twins were murdered in their cribs. Clayton was arrested the next day. Initially Clayton claimed his family was killed by an intruder while he was away, but later that day, he told an officer that he found Berna beating the twins to death with a hammer in a fit of rage, that he took the hammer from her and beat her with it, that she fell down the stairs, and that he lost control, continued to hit her and killed her. In October 2008, a jury found him guilty of the three murders. Jurors found nine aggravating circumstances, only one of which was necessary to make him eligible for the death penalty. The jury recommended the death sentence, and the court sentenced him to death on each count of murder. Ellington now appeals to the state Supreme Court. ARGUMENTS: In a 121-page brief, attorneys with the Office of the Georgia Capital Defender lay out 21 errors they claim were made during the trial. Among the many errors, they contend the trial court was wrong to limit any questions during jury selection that would reveal the most explosive aspect of this case, which was that two of the victims were twin babies. Given the fact that the most dominant and unusual feature of this case was that it involved the killing of two young children, the most important issue for voir dire was to select a jury that could be fair and impartial in a case involving the killing of children, without any undue bias, prejudice, or emotion, they argue in briefs. The trial court also erred in allowing in the statement Ellington made the day of his arrest in which he admitted killing his wife. This was a repetition of an earlier statement he had made after almost 12 hours of abusive and improper questioning by police officers, which the trial court found had been obtained in violation of Ellington s rights and was inadmissible. And Ellington s convictions and death sentences must be reversed, his attorneys argue, because the prosecution engaged in numerous improper arguments during both the guilt-innocence and punishment phases of the trial, at one point calling Ellington a monster that everyone fears. Among many other errors, they argue the trial court committed reversible error by allowing the jury to see highly inflammatory photographs of the dead babies and their mother, violating Ellington s right to a fair trial. And they contend 2

3 that Georgia s death penalty statutes are unconstitutional and have resulted in an arbitrary application of the death penalty. The State argues the trial court s ruling regarding voir dire was in regards to a specific question related to the killing of a child because it would have impermissibly required jurors to prejudge the facts of the case. The trial court also correctly allowed in Ellington s later statement because he initiated the contact with the officer who had come to the jail to interview another inmate unrelated to his case. The court was right to find that Ellington s later statement was a voluntary, spontaneous statement that was not the product of interrogation. The prosecutor s statements were proper in both phases of the trial, the State contends, and it was not improper for the prosecutor to call Ellington a monster during the guilt-innocence phase of his trial. The prosecutor also did not improperly show photos of the murder victims as they had been admitted into evidence, nor was it improper for him to use a prop hammer. And Georgia s death penalty statute is not unconstitutional for any reason argued by Ellington s attorneys. The state Supreme Court s proportionality review is sufficient and proper, the State contends. Attorneys for Appellant (Ellington): Carl Greenberg, Gladys Pollard, David DeBruin Attorneys for Appellee (State): Robert James, District Attorney, Don Geary, Chief Asst. D.A., Daniel Quinn, Asst. D.A., Samuel Olens, Attorney General, Patricia Burton, Sr. Asst. A.G., Theresa Schiefer, Asst. A.G. EVERETT V. NORFOLK SOUTHERN RAILWAY COMPANY (S12G0729) A train engineer is appealing a Georgia Court of Appeals decision that reversed a trial court s ruling in his favor involving his lawsuit against the railroad after his train derailed. FACTS: The incident occurred in the early morning of March 6, 2006 at the Ford Motor Company plant in Hapeville, GA. Michael B. Everett was an engineer for Norfolk Southern Railway and was assigned to move a six-car train filled with auto parts down an incline into the Ford plant. Assisted by two other railroad employees, who were standing, Everett operated the locomotive engine, which was the last car on the train. One of the employees misinformed Everett that the train derailment device was in the off position when in fact it was in the on position. Everett moved the train forward and due to the position of the derailment device, the cars began derailing. As the cars continued toward the plant, Everett quickly applied the engine brakes while the train s emergency brakes activated. Before stopping, the train traveled another 300 feet, with two of the three cars that derailed crashing into the Ford plant and setting off a fire alarm light and the building s fire sprinklers. Everett suffered no physical injury. Following the derailment, Everett went home and later that day told his wife he wasn t feeling well and was having suicidal thoughts. She took him to a local hospital which transferred him to a psychiatric facility where he remained for about a month. He has not been able to return to work. In August 2006, Everett sued Norfolk Southern under the Federal Employers Liability Act, seeking damages for emotional injuries he claimed he suffered as a result of the derailment. In 1994, the U.S. Supreme Court ruled in Consolidated Rail Corporation v. Gottshall that a railroad has a duty under [the Federal Employers Liability Act] to avoid subjecting its workers to negligently inflicted emotional injury. Because that duty is not self-defining, the Supreme Court adopted a zone of danger test to define the scope of the duty the federal statute places on employers to avoid imposing emotional distress on their employees. Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused 3

4 by fear of physical injury to himself, whereas a worker outside the zone will not, the opinion says. A worker is considered within the zone of danger when he sustains a physical impact as a result of a defendant s negligent conduct, or [is] placed in immediate risk of physical harm by that conduct. One of the issues in this case is whether Everett was within the zone of danger. In response to Everett s lawsuit, the railroad filed a motion for summary judgment on the ground that the undisputed facts showed it owed no legal duty to Everett because he was outside the zone of danger as a matter of law. (A judge grants summary judgment when he/she determines there is no need for a jury trial because the facts are undisputed and the law falls squarely on the side of one of the parties.) A Fulton County state court judge, however, denied the railroad s motion, and the Court of Appeals affirmed that decision, finding that whether an employee s claim satisfies the zone of danger test is a legal question that a judge, rather than a jury, must determine. And the Court of Appeals held that the trial court correctly found that Everett presented sufficient evidence from which a reasonable fact finder might conclude that he was within the zone of danger, a legal prerequisite for a finding of liability in a negligent infliction of emotional distress case. Prior to trial, Everett filed a motion seeking to bar the railroad from arguing at trial that Everett was outside the zone of danger because, Everett contended, the Court of Appeals had determined he was within the zone. The railroad disagrees that that is what the Court of Appeals ruled. The trial judge granted the motion. During the trial, the railroad twice moved for a directed verdict on the ground that Everett was outside the zone of danger as a matter of law, and both times, the trial judge denied the motion. Ultimately, the jury ruled in favor of Everett, awarding him $750,000 in damages. On appeal, however, this time the Court of Appeals reversed the trial court s decision. It found that the trial court improperly removed from the jury s consideration an essential element of Everett s case, when it granted his motion to bar the railroad from bringing up the zone of danger issue. The Court of Appeals explained that the trial court had misunderstood its earlier decision as holding that Everett was within the zone of danger. Rather that question remained for jury resolution and it was incumbent upon Everett to prove that element of his case by a preponderance of the evidence. Everett now appeals to the state Supreme Court, which has agreed to review the case to determine whether the Court of Appeals erred in holding that the question of whether Everett was in the zone of danger was one for the jury, rather than the judge, to decide. In their arguments, both parties agree the Court of Appeals erred in ruling that whether someone is within the zone of danger could sometimes be a question of fact for the jury to decide, rather than always be a question of law that a judge must decide. They disagree, however, over whether Everett was within the zone or not. ARGUMENTS: Everett s lawyers begin by pointing out that both parties agree that the Court of Appeals erred in holding that this was a question for the jury to decide. Because the question of whether Everett was in the zone of danger was for the court, and had been decided by the trial court in Everett s favor no less than four times, the Court of Appeals erred in reversing the jury verdict in Plaintiff s favor on the ground that the question had been improperly removed from the jury s consideration, the attorneys argue in briefs. Thus this Court should reverse the decision of the Court of Appeals and reinstate the judgment of the trial court. Everett has been diagnosed with chronic post-traumatic stress disorder with major depression, he remains disabled from returning to work as a train engineer, and his disability is permanent, his lawyers argue. The Court of Appeals even stated in its first decision that the trial court correctly concluded that 4

5 Everett was within the zone of danger caused by the derailment. It is never up to a jury to determine issues of law, rather it s up to the judge. The Court of Appeals decision creates a legal conundrum that makes no sense because if the facts are indeed undisputed as they are in this case, and the trial court is to decide questions of law, the Court of Appeals has placed a burden on Plaintiff that has not previously existed in the law and seems impossible to meet, Everett s attorneys argue. In essence, the Court of Appeals opinion requires plaintiffs to have juries consider undisputed facts to decide the legal reach of statutes that define causes of action. This case involved a question of law. Jurors have the task of deciding disputed facts such as whether the railroad was careless. The railroad agrees the Court of Appeals ruling was wrong. Because it always is a question of law for the court, and in view of the fully-developed record and undisputed facts presented at trial, this Court can and should hold that plaintiff Michael Everett was not within the zone of danger and so cannot prevail under the Federal Employers Liability Act, attorneys for the railroad argue in briefs. Everett did not suffer any physical injuries whatsoever; he was never in any immediate risk of physical harm, and he never even perceived himself to be in any risk of harm. They urge the state Supreme Court to hold that whether a plaintiff within the zone of danger under the [federal statute] is always a question of law for the court, and that, based on the disputed facts and as a matter of law, Everett was not within the zone of danger and thus cannot recover under the [Federal Employers Liability Act]. Attorneys for Appellant (Everett): Michael Warshauer, Lyle Warshauer Attorneys for Appellee (Norfolk): William Thompson, Laura Morris, Ralph Wellington, Nancy Winkelman ARCHER WESTERN CONTRACTORS, LTD ET AL. V. ESTATE OF MACK PITTS (S12G0517) CITY OF ATLANTA ET AL. V. ESTATE OF MACK PITTS (S12G0526) HOLDER CONSTRUCTION COMPANY ET AL. V. ESTATE OF MACK PITTS (S12G0527) The City of Atlanta and various construction companies are appealing a Georgia Court of Appeals ruling against them in a lawsuit brought by the family of a man who was killed during construction of Atlanta airport s international terminal. FACTS: In 2004, the City of Atlanta contracted with a joint venture comprised of Holder Construction Company and a number of other construction companies to build a new international terminal at Atlanta Hartsfield-Jackson International Airport. They subcontracted with a joint venture comprised of Archer Western Contractors and Capitol Contracting, Inc. to perform work on the project. The subcontractor in turn entered into a sub-subcontract with A&G Trucking to provide hauling and dump-trucking work. In June 2007, Mack Pitts, an employee of Archer Western who was working on the project, was struck on site and killed by a truck operated by A&G Trucking. The City of Atlanta paid $250,000 in Workers Compensation benefits to Pitts family and estate. The estate later filed a wrongful death lawsuit against the driver and A&G, which had a $1 million automobile liability insurance policy. In response to that lawsuit, a DeKalb County jury awarded Pitts estate and minor dependents a judgment of $5.47 million, which exceeded A&G s coverage. 5

6 In June 2009, Pitts estate filed another lawsuit in Fulton County Superior Court against the City of Atlanta and the construction companies, alleging breach of contract. They argued that under the Owner Controlled Insurance Program outlined in the contracts, Pitts was a third party beneficiary because he was a participant in the project and that all of the defendants had breached a contractual duty to require that A&G Trucking carry a minimum of $10 million in automobile liability insurance to work on the project. Both sides filed motions for summary judgment. (A court grants summary judgment when it determines there is no need for a jury trial because the facts are undisputed and the law falls squarely on the side of one of the parties.) In October 2010, the trial court ruled in favor of the City and companies, finding that Georgia law awarded third-party beneficiary status only where there was a clear intent in the contract to benefit that specific party directly, and the Owner Controlled Insurance provisions regarding insurance did not show a clear intent to benefit individuals such as Pitts a construction worker hired by a subcontractor. On appeal, however, the Georgia Court of appeals reversed the trial court s judgment and instead granted summary judgment to the Pitts estate. That court ruled that Pitts was a participant in the project and as a result was an intended third-party beneficiary of the contract which required contractors to maintain $10 million in auto insurance. It also ruled that the Workers Compensation Act did not bar the Pitts breach of contract claims because the Act did not apply; that the defendants breached their duty under the contracts by allowing A&G Trucking to work on the project without the minimum coverage; and that the breach harmed the Pitts estate because A&G otherwise would have had enough insurance to satisfy the judgment against it. The City and construction companies now appeal to the state Supreme Court, which has agreed to review the case to determine whether the Court of Appeals erred in reversing the trial court s grant of summary judgment to the City and companies. ARGUMENTS: Briefs filed by the defendants essentially argue the same points. Their lawyers contend the Court of Appeals erred in ruling that the contract expressed a clear intent to benefit Pitts by the requirement that subcontractors obtain $10 million in automobile liability insurance. The appellate court incorrectly found that every worker on the project was an intended beneficiary of the Owner Controlled Insurance Program, which it based on a single snippet of language in the summary of that program. That summary stated that the coverage provided under the master insurance program will benefit all participants involved in the project. But the Court of Appeals ignored the substantive provisions of the contract that specifically stated the insurance program would provide six types of insurance coverage not including automobile coverage for the named insureds, which the contract identified as the Owner, Contractors and Subcontractors of any tier (excluding suppliers) for whom the Owner has agreed to furnish an [Owner Controlled Insurance Program]. The Court of Appeals also erred in ruling that the Georgia Workers Compensation Act did not bar the Pitts estate claims. Georgia law does not afford employees who accept workers compensation benefits to pursue a direct action for personal injury against a statutory employer, the City s lawyers argue in briefs. Specifically, the act states; The rights and the remedies granted to an employee by the workers compensation laws shall exclude all other rights and remedies of such employee on account of such injury, loss of service or death. Employers are obligated to pay benefits for workers injured on the job, regardless of fault, the defendants attorneys argue. In return, the employer is immune from all other rights and remedies of the employee on account of the injury. The Court of Appeals unprecedented decision improperly expands the extent of the obligations of contracting 6

7 parties to non-contracting parties by seizing on a single isolated, out-of-context sentence in a comprehensive contract, rather than reading it as a whole, the City and companies argue. Attorneys for the Pitts estate argue that the Court of Appeals correctly ruled that Pitts was a third-party beneficiary to the contracts and the estate had standing to enforce the contracts minimum $10 million insurance provision. The [Owner Controlled Insurance Program] specifically states that it and the minimum subcontractor insurance requirements are intended to benefit all participants involved in the project, the attorneys argue in briefs. It is difficult to be much clearer about one s purpose. The Court of Appeals also correctly reversed the trial court s grant of summary judgment to the defendants, based on the trial court s finding that the Workers Compensation Act bars further remedies. That Act precludes claims by an employee against his employer which arise on account of an on-the-job injury or death, the attorneys argue. Plaintiffs claims in this action, however, arise against defendants on account of breaches of contract, not on account of Mack Pitts injury or death. The asserted breach of contract claims existed prior to and continue to exist separate and apart from Mack Pitts death. Attorneys for Appellants (City, companies): Stephen Schatz, Bradley Wolff, Steven DeFrank, R. Patrick White, Casey Gilson, Sylvia Walbolt, E. Kelly Bittick, Jr., Walter Bush, Christopher Freeman Attorneys for Appellees (Pitts): James Butler, Jr., Joel Wooten, Jr., Kate Cook, Matthew Cook, Patrick Sneed 7

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