In addition to denying most of the allegations in a wrongful-death suit brought by the parents of Michael J. Gatto, 18, attorneys for the city of Statesboro and City Clerk Sue Starling filed a motion Nov. 23 asking to have some claims against the city and all claims against Starling dismissed on the basis of law and the way the claims were filed.
“The city and Mrs. Starling are defending the case,” their lead attorney, John C. Stivarius, said this week.
He declined to comment further on the response to the lawsuit.
A crime occurred
One proposed defense, as stated in the response filed with the clerk of court, is an assertion that the city cannot be held responsible for the criminal actions of others. Grant Joseph Spencer, 22, pleaded guilty Oct. 11 to a manslaughter charge for the beating that led to Gatto’s death. The attorneys for the city and Starling are, in effect, asserting that Gatto’s own actions also played a part.
Both Gatto and Spencer, then 20, were Georgia Southern University students when their paths met at Rude Rudy’s nightclub in University Plaza, near campus, the night of Aug. 27, 2014. Gatto was a recently arrived freshman, while Spencer worked as bouncer at the club.
Police and a prosecutor described Spencer’s use of his fists against Gatto as an unprovoked attack. Spencer was purportedly off-duty at the time, but documents in the criminal case cited a witness statement that club management asked him to remove Gatto after being told he had taken tip money.
Carried or dragged outside the club, Gatto was unconscious when police and an ambulance arrived at Rude Rudy’s shortly before 1 a.m. Aug. 28, 2014. He died in a Savannah hospital later that day 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 two years before his scheduled trial date in October. On that day, an agreement with prosecutors was announced in which Spencer pleaded guilty to voluntary manslaughter and was sentenced by Bulloch County Superior Court Judge William Woodum to 20 years in prison, including time served. If convicted of murder, Spencer could have received a life sentence, perhaps without the possibility of parole.
City rejects blame
The city’s and Starling’s answer in the civil suit states: “Plaintiffs’ claims are barred in whole or in part because their injuries were caused by one or more intervening and superseding causes, including the criminal conduct of both third parties and the decedent, Michael Joseph Gatto.”
Attorneys for his parents, Michael S. and Katherine Gatto of Cumming, filed the civil complaint Oct. 26 in Bulloch County State Court alleging that the city, Starling as city clerk and up to 10 additional defendants, identified so far only as “John Doe Nos. 1-10,” bear some responsibility.
No dollar amounts were stated in the complaint. But in February 2015, the Gattos served the city an ante litem notice – a warning required before suing a local government – that asserted potential claims totaling more than $11 million. This included $10 million for wrongful death damages, $1 million for pain and suffering and $163,801 for medical and burial expenses.
Stivarius and other attorneys from the Atlanta firm Elarbee, Thompson, Sapp & Wilson, representing the city and Starling, filed their formal response the day before Thanksgiving. They also filed the motion asking State Court Judge Gary Mikell for a partial judgment dismissing some of the claims, including those against Starling.
The Gattos’ complaint, brought by attorneys from four Atlanta firms, with Gilbert H. Deitch as lead counsel, asserted that city officials neglected to enforce the city’s Alcoholic Beverages Ordinance and also consciously weakened it, allowing bars to remain open that catered to college students under the legal drinking age of 21.
The plaintiffs have also asserted that city officials allowed Rude Rudy’s to remain open through Aug. 28, 2014, despite “numerous instances of criminal activity” and allowed Spencer to work as a bouncer despite arrests that should have disqualified him.
At that time the clerk alone issued the licenses, without a City Council vote. Starling, acting on behalf of the city, issued Rude Rudy’s an alcohol license in 2009 and renewed it each year through 2014. This is one point that the defense’s formal answer admits.
But the Gattos’ suit also alleges that Starling failed to schedule administrative due process hearings against Rude Rudy’s license despite repeated violations there. In their response, the defendants’ attorneys admit the existence of a provision in the city legal code requiring the clerk to schedule the hearings, but deny the plaintiffs’ conclusions.
Sovereign immunity shielded the city in its official actions, and Starling is similarly shielded by official immunity, their attorneys assert. Sovereign immunity exempts governments from liability for official acts, while official immunity protects government employees carrying out their duties.
“Starling is entitled to official immunity, in whole or in part, from the claims asserted by Plaintiffs against her in her individual capacity,” the defense answer states. “Any and all actions or omissions allegedly taken by Starling were within the scope of her discretionary authority and without willfulness, malice or corruption.”
In the Gattos’ complaint, their legal team asserted that the city waived its sovereign immunity by buying liability insurance.
The complaint also alleged that changes Statesboro City Council approved to its alcohol ordinance on Dec. 6, 2011, combined with a lack of enforcement, created a nuisance. The changes abolished the Alcohol Control Board, which had stopped functioning in 2009, eliminated a requirement for bouncers to obtain an alcohol service permit after a criminal background check, and reduced potential penalties for businesses with alcohol licenses.
The defendants’ response admits that the control board and the service permit requirement were eliminated. It also admits that administrative hearings against alcoholic licenses were never held in regard to 42 citations issued to various businesses in July 2011, including seven citations issued to individuals employed by Rudy Rudy’s. But six of those seven tickets were for hours-of-sale violations, and the seventh was for allegedly charging a cover charge that discriminated by gender, according to the defense document.
The defendants’ attorneys assert that they have insufficient information on some allegations about events, but deny all asserted legal conclusions or claims of liability.
Motion to dismiss
Separate from the formal answer to the lawsuit, the motion for partial judgment asks Mikell to dismiss certain claims on the basis of law and procedure without the need for a discovery of facts.
Stivarius and his team assert that all of the claims against Starling, acting in her official capacity, should be thrown about because she wasn’t mentioned in the February 2015 ante litem notice.
Further, the motion requests that any claims that the city created a nuisance through the council’s vote changing the alcohol ordinance be dismissed. Among other points, the defendants’ attorneys have cited two Georgia Supreme Court rulings, in 2008 and 2009, that to become responsible for creating a nuisance, a city must “actively take control over the property in question or accept a dedication of that property.”
Rude Rudy’s, they point out, was “neither owned, controlled nor maintained by the City.”
The defendants’ attorneys requested a hearing on their motion, but a date has not been set, and the plaintiffs have 30 days to respond.
Starling said in October that, as a city employee, she cannot comment on pending litigation.
“Right now there are legal proceedings going on, and I cannot comment on those,” Mayor Jan Moore said last week.
Herald reporter Al Hackle may be reached at (912) 489-9458.