Five-Year Rule Not Tolled by an Unsigned Consent Order of Stay and Voluntary Involvement in Fight Bars Wrongful Death Claim

Plaintiffs’ son and his friends were gathered on the steps of a campus building when they learned of a fight nearby with other students. The son and others ran across the street and joined the fight. An unknown male struck the son on the back of the head with a glass bottle. He later died from his injuries. The parents claimed that the defendant college failed to implement adequate security measures despite its knowledge of a high potential for danger in the area of the attack. While the wrongful death case was pending in the trial court, the plaintiff father was called to active military duty. Defendants’ counsel agreed to a consent order staying the case while the father was in service. However, no order granting the stay was ever issued and no written order of any kind was entered in the parents' wrongful death action for over five years. Therefore, pursuant to O.C.G.A. § 9-2-60(b), the action was dismissed by operation of law.

The trial court entered an order confirming the dismissal and the parents appealed, arguing that the Federal Servicemembers Civil Relief Act, 50 U.S.C.S. Appx. § 526 preempted Georgia civil procedure law. The defendants cross-appealed a prior order denying a motion for summary judgment, which defendants had based upon the deceased’s voluntary entry into the fight.

The Court of Appeals affirmed the dismissal, holding that where no stay order is entered in a case, the Federal Statute did not preempt state law and prevent the operation of Georgia’s five-year rule. The court also reversed the trial court’s denial of summary judgment to the defendants on the merits, holding the son assumed the risk of injury by voluntarily confronting those who had begun the fight, and thus the college was entitled to summary judgment.

Cornelius v. Morris Brown College, 299 Ga. App. 83, 681 S.E.2d 730 (2009)

Counsel for Defendants: Diane Owens and Brad Wolff