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Forbes v. Auld

Court of Appeals of Georgia, Fifth Division

June 26, 2019

FORBES et al.
v.
AULD et al.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          MCFADDEN, PRESIDING JUDGE.

         The question before us is whether this action for wrongful death and personal injury is time barred. That question turns on choice of law. As for the wrongful death claim, if we apply the law of the country of Belize, where the death occurred, the claim is barred. If we apply the law of Georgia, the forum where this action was filed, it is timely. We hold that the law of Georgia applies to the wrongful death claim because the Belizean law governing wrongful death claims violates Georgia public policy. So we reverse the dismissal of the wrongful death claim.

         The personal injury claim is based on the common law. Therefore, the personal injury claim is governed by the general rule that the statute of limitation of the forum state applies. So we also reverse the dismissal of the personal injury claim.

         1. Factual background.

         The facts relevant to this appeal are largely undisputed. On February 13, 2016, 14-year-old Tomari Jackson drowned while swimming in a river on a school trip to Monkey Bay Wildlife Sanctuary in the country of Belize. His mother, Adell Forbes, filed this action on March 24, 2017, against Monkey Bay, its owner, Cobb County Government, Cobb County School District, and the chaperones, some of whom were employed by the school district at the time 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. 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). (The pertinent provisions of Belize's Law of Torts Act are reproduced in the margin.[1])

         Forbes filed this appeal, challenging the ruling that both claims are time barred.

         2. Wrongful death.

         The trial court's choice of law was a legal question, Gentry v. Volkswagen of America, 238 Ga.App. 785, 786 (521 S.E.2d 13) (1999), which we review de novo. Gateway Community Svc. Bd. v. Bonati, 346 Ga.App. 653 (816 S.E.2d 743) (2018).

         The general choice-of-law rule in Georgia is that "a tort action is governed by the substantive law of the state [or country] where the tort was committed," Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809 (621 S.E.2d 413) (2005) (citation omitted), but that "statutes of limitation are procedural in nature and are therefore governed by the law of the forum state." Butts v. Thomas, 300 Ga.App. 639, 640 (686 S.E.2d 262) (2009) (citations omitted) (physical precedent only). See Taylor v. Murray, 231 Ga. 852, 853 (204 S.E.2d 747) (1974) ("[I]t is well settled that the [s]tatute of [l]imitation[] 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 statutes of limitation."); Gray v. Armstrong, 222 Ga.App. 392 (1) (474 S.E.2d 280) (1996) ("Under the rule of lex loci delicti, tort cases are governed by the substantive law of the state where the tort was committed. Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought.") (punctuation and citation omitted). So under the general rule, this action would be governed by the substantive law of Belize and the Georgia statute of limitation.

         But "where the limitation is established as a condition precedent to the action by the statute which creates the cause of action . . . the limitation is substantive, not procedural, and is governed by the law of the state where the tort was committed." Griffin v. Hunt Refining Co., 292 Ga.App. 451, 453 (1) (664 S.E.2d 823) (2008) (citations and punctuation omitted). Such is the case here because the Law of Torts Act of Belize, which creates the wrongful death cause of action, includes a 12-month limitation period. Law of Torts Act, Chapter 172, § 10.

         That is still not the end of our analysis, however. Our legislature has enacted a public-policy exception to the enforcement of foreign laws:

The laws of other states and foreign nations shall have no force and effect of themselves within this state further than is provided by the Constitution of the United States and is recognized by the comity of states. The courts shall enforce this comity, unless restrained by the General Assembly, so long as its ...

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