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Appeals Court says Albany not liable for bar death
Similar suit against Statesboro still pending in local court
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Michael J. Gatto - photo by Special to the Herald

Overturning a county court’s verdict, the Georgia Court of Appeals recently ruled that the city of Albany is not liable for more than $10 million in damages for a young man’s death at a not-quite-legal nightclub in 2010.

The original lawsuit parallels one still pending against the city of Statesboro for the death of Michael J. Gatto, 18, at a nightclub here in August 2014.

Like most Georgia Court of Appeals decisions, the June 26 ruling in City of Albany v. Stanford was made by a division, or panel, of three of the court’s 15 judges. In this case it was the Third Division, and the decision was 2-1, with the panel’s Presiding Judge John J. Ellington dissenting.

The panel’s majority, made up of Judge Charles J. Bethel and Judge Elizabeth Gobeil, ruled that contrary to the Dougherty County Superior Court’s verdict, the city of Albany was protected by sovereign immunity for failing to shut down the night club, called Brick City.

“Plaintiffs argue that an ‘exception’ to sovereign immunity exists for nuisance actions. However, there is no such ‘exception’ applicable to the facts of this case,” Bethel wrote in a central paragraph of the majority opinion.

Court of Appeals Rule 33.2, which can be read on the court’s website,, states that panel decisions with a dissenting vote establish only “physical precedent,” meaning that it can be cited as “persuasive but not binding authority” in other cases. The written opinion in Albany v. Stanford contains a “physical precedent only” note citing the rule.

The court’s index entry also notes that a motion for reconsideration has been filed.


Brick City killing

Sheryl Stanford and Wilfred Foster sued the city of Albany after LeSheldon Stanford, 20, was shot and killed outside Brick City. Albany news organizations described the mayhem surrounding his death in February 2010 as a brawl, after which multiple people were charged with gang participation and assault.

Shenard Dontavious Smith was eventually convicted of Stanford’s murder and sentenced to life imprisonment without parole.

Apparently nicknamed “Brick City,” the business was identified in Albany media reports as Brick House Productions. Issued only a business license, or occupational tax certificate, “to operate as a recording studio and multi-purpose entertainment facility, the business was actually operating as a night club and was serving alcohol without a license,” the Appeals Court’s summary states.

Despite police becoming aware of this and “several fights” and “numerous incidents of drug use and sex involving minors” at Brick City, the city of Albany continued to re-license the business, the summary notes. This continued licensing became a basis for the claim that the city created a nuisance leading to LeSheldon Stanford’s death. The business owners were also defendants in the lawsuit.

In October 2016, a Dougherty County jury found for Stanford’s family members, awarding them $15.2 million in damages and placing 70 percent of the fault on the city, making its share $10.64 million.


Sovereign immunity

But in the appeal, attorneys for the city argued that “crime is not a legal nuisance” and that the city could not be held liable for “discretionary nonfeasance,” in other words, for failing to take action. This was part of the city’s claim that it was protected by sovereign immunity, which shields governments from liability for official acts.

The plaintiffs had argued that “sovereign immunity does not apply because cities have always been responsible for damages caused by nuisances maintained by the city that endanger life,” as the Appeals Court summarized.

However, the two-judge majority cited other decisions in ruling that a “nuisance exception” applied to damage to private property in things a city does in providing services but not to “governmental functions” such as issuing a permit or license. The Court of Appeals decision also states that the trial court erred “by denying the City’s motion for judgment notwithstanding the verdict” meaning that the court should have dismissed the nuisance claim in a summary judgment.

Ellington began his dissent, “While a municipality enjoys sovereign immunity from liability for negligent acts done in the exercise of a governmental function, it may be liable for damages it causes to a third part from the creation or maintenance of a nuisance.”

He cited different previous rulings before concluding, “the majority’s opinion applies an inapplicable line of precedent and thereby writes this longstanding and important exception to the protection of sovereign immunity out of Georgia law.”


Statesboro’s suit

Meanwhile, the lawsuit brought by the parents of Michael J. Gatto against the city of Statesboro and City Clerk Sue Starling in October 2016 continues in late phases of the discovery process in Bulloch County State Court. Judge Gary L. Mikell has held multiple hearings, but the final trial could involve a jury.

The paperwork in the clerk of courts’ digitized file now exceeds 3,000 pages. Many of the more recent documents concern things such as scheduling sworn, videotaped statements from witnesses. One of these was slated for next week.

No trial date has been set. An April 25 case management order signed by Mikell gave July 23 as the deadline for motions, with opposing parties having until Aug. 23 to respond.

However, John C. Stivarius, lead attorney in the city and Starling’s defense, said when phoned Thursday that the latest deadline for motions is Sept. 1. Opposing parties would then have 30 days to file a response.

“The defendants anticipate filing a motion for summary judgment,” Stivarius said.

He declined to discuss the possible impact of the Albany ruling. But multiple sources with the Statesboro city government, aware of the parallels, had brought it to the newspaper’s attention.


At Rude Rudy’s

Gatto, 18, had recently arrived in Statesboro as a Georgia Southern University freshman when he died after Grant James Spencer, using his fists, struck Gatto at the Rude Rudy’s nightclub the night of Aug. 27, 2014. Spencer, then 20 and also a Georgia Southern student, worked as a bouncer at the club but was purported to be off-duty.

Carried or dragged outside the club, Gatto was unconscious when Statesboro Police Department officers and an ambulance arrived. He died in a Savannah hospital later on Aug. 28 of a fractured skull and other injuries.

Club owner Jonathan Earl Starkey surrendered his alcohol license to the city in September 2014, and Rude Rudy’s never reopened.

Initially charged with felony murder and aggravated battery, Spencer remained in jail awaiting trial two years before pleading guilty to manslaughter in an agreement with prosecutors in October 2016. Bulloch County Superior Court Judge William Woodum sentenced him to 20 years in prison, including time served.


Alleged negligence

In their civil suit, Gatto’s parents alleged that the city of Statesboro was negligent in enforcing alcohol laws and for licensing Rude Rudy's and allowing Spencer to work there despite earlier violations involving alcohol. Starling was named as a defendant on the grounds that she issued the licenses.

Assertions of sovereign immunity by the city, and of official immunity for Starling in her role as city clerk, have been part of their defense claims from the first.

In a partial summary judgment in January 2017, Mikell dismissed, as having no legal basis, the Gattos’ claim that the city created a nuisance by weakening its alcohol ordinance with a 2011 amendment. The judge also dismissed claims for punitive damages against the city, but left open the question of other damages, including compensation for the value of Michael Gatto’s life and his medical and burial expenses. No dollar amount was stated in the Gattos’ formal complaint, but a pre-suit notice to the city originally cited potential damages totaling more than $11 million.


Herald reporter Al Hackle may be reached at (912) 489-9458.









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