Six Flags Over Georgia lost an attempt to persuade the trial court to toss a $35 million verdict—the biggest one in the state last year—for a teen who was attacked upon exiting the theme park.
Arguments in the nearly three-hour hearing Tuesday afternoon provided a preview of the appeal to come, with Six Flags’ lawyer pressing that her client couldn’t be liable for an attack that did not take place on its property.
Cobb County State Court Judge Kathryn Tanksley, who presided over the nine-day trial last year, rejected Six Flags’ motions for judgment notwithstanding the verdict, or in the alternative, a motion for a new trial.
At issue was Joshua Martin, then 19, who was attacked by a gang in 2007 outside the park entrance as he waited for a bus. Four Six Flags employees pleaded guilty or were convicted of aggravated assault and participating in gang activities in relation to Martin’s attack.
Evidence presented at the trial showed they randomly selected Martin, who was celebrating a friend’s acceptance to college, to attack while in the park. The gang followed Martin outside, and one assailant testified he hit Martin with brass knuckles that he hid in a flower bed while he was at work in the park. Martin was beaten into a coma and suffered permanent brain damage.
A Cobb County jury deliberated for two days before awarding $35 million in damages to the Martin family, including $7 million for his lifetime care. The jury apportioned 92 percent of the fault to Six Flags and 2 percent each to the attackers, the four other named defendants.
Arguing for Six Flags, Laurie Webb Daniel of Holland & Knight told Tanksley the case should never have been put before a jury because the park didn’t own the property where the crime took place. Daniel cited several cases in which she said courts have determined that businesses are not liable for injuries taking place nearby but off their premises. Daniel argued that as a matter of law, courts must determine property owners not liable for crimes off their property. And she argued that it was a random attack, not one that Six Flags management could have foreseen.
The judge disagreed. “I have no doubt that the court could decide whether this was Six Flags property. I don’t think Georgia law says I have to decide,” Tanksley said. Later, Tanksley said she believes it’s her role ‘to let the jury decide the case fairly.”
The judge asked Daniel, “You’re saying it’s an error to give it to a jury?”
Daniel replied, “Your honor, I am.”
Arguing for the plaintiffs, Michael Terry of Bondurant, Mixson & Elmore took the opposite position in interpreting the same cases.
Of the Six Flags argument that the judge should have determined the park wasn’t liable “as a matter of law,” Terry said, “That’s just not true.”
Terry argued that the plaintiffs presented evidence at trial to show that Six Flags was responsible for the area of the attack because it was near a bus stop used only by employees and customers coming to and from the park. Plus, the park maintained the property, barricaded it and patrolled it, Terry said.
“Their website says take the bus. If you induce people to use an approach, it becomes your approach,” Terry said. “It’s foreseeable because you told your customers to go that way. That’s what Six Flags has been doing for years. It was the final approach to the park. There’s no other business there.”
Terry also noted that the off-duty police officer Six Flags hired to patrol the area testified that he had asked for additional patrols to provide 24-hour security but had been denied. And Terry noted other violent crimes had already taken place outside the park’s entrance.
“They knew this was a dangerous area. They had ample opportunity to prevent this and they failed to do so,” Terry said. “The JNOV should be denied.”
On the motion for new trial, Daniel argued that the verdict should be set aside because it was improperly apportioned. Her basis for the argument was that the four named attacker defendants were not the only gang members participating in beating and kicking Martin. She noted trial testimony saying that nine people took part in the attack.
“At least nine people were kicking him,” Daniel said. She argued that Six Flags should have a new trial so that five more unnamed attackers could be added to the verdict form for apportionment of fault.
In questioning Daniel, Tanksley said, “Your position is that we would grant a new trial based on little evidence about someone quite unknown? For two percent at most? This is where it gets ludicrous.”
Daniel replied that “the evidence is very strong that there were more” people involved in the attack.
The judge disagreed, saying the evidence was not strong. “There just isn’t anything in Georgia law that can support a new trial based on John Does who may have had a role,” Tanksley said. “I don’t think Georgia courts are going to get bogged down in new trials based on that flimsy bit of information.”
After Terry handled the plaintiff’s argument against the judgment notwithstanding the verdict, he handed off the argument against the motion for new trial to Bondurant associate Naveen Ramachandrappa.
“That’s a big problem,” Ramachandrappa said of the apportionment argument, noting that Six Flags did not ask at trial to add more names to the verdict form. “They can’t just after the trial is over ask for something they didn’t ask for before.”
He said that if more names were added to the verdict form, “the jury would be guessing, with no way of knowing” the amount of fault to apportion to unknown assailants.
On that point, the judge said, “Apportionment of fault is not guesswork.” She added, “You cannot let the jury guess.”
Despite ruling against Six Flags on both motions, the judge offered compliments to the lawyer. “You have made excellent appellate arguments,” Tanksley told Daniel. The judge noted that Daniel has a track record of success at appellate level—adding that Terry shares a similar reputation.
Tanksley said that if her ruling is incorrect, “I would like an appellate court to tell me and give us more guidance.”
The case is Martin v. Six Flags, No. 09-A-55-4.