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Judge: City not liable in 2014 bar death
GS freshman’s death brought changes; parents could still appeal
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More than four years after 18-year-old Michael Joseph Gatto died of injuries received from the fists of a 20-year-old bouncer at a nightclub called Rude Rudy’s, a judge has ruled that the city of Statesboro and City Clerk Sue Starling bear no liability for his death.

More than four years after 18-year-old Michael Joseph Gatto died of injuries received from the fists of a 20-year-old bouncer at a nightclub called Rude Rudy’s, a judge has ruled that the city of Statesboro and City Clerk Sue Starling bear no liability for his death.

Gatto’s parents filed suit Oct. 26, 2016, alleging that the city had been negligent in enforcement of alcohol licensing and underage drinking laws and had created a nuisance by licensing Rude Rudy’s and letting it stay in business after multiple  violations. Starling, “in her individual and official capacity,” was included for having issued the licenses and for allegedly failing to bring hearings that could have resulted in a license revocation.

Bulloch County State Court Judge Gary L. Mikell’s summary judgment Tuesday came just days before the two-year anniversary of the original complaint. Mikell had dismissed some of the claims in a partial summary judgment in January 2017, but attorneys for Gatto’s family attempted to keep nuisance as well as negligence claims active through three amended complaints, the latest filed July 27.

While preparations for a jury trial inched forward, attorneys for the city and Starling filed a new motion for a summary judgment Aug. 30. This followed a June 26 Georgia Court of Appeals ruling that overturned a Dougherty County jury’s verdict holding the city of Albany was partly liable for the shooting death of  LeSheldon Stanford outside a bar – which was licensed as a business but not as a bar – called Brick City.

 “Concerning whether a failure to set due process hearings for revocation of city licenses and/or renewing of alcohol and business licenses created an atmosphere and for which a city could be held liable, further guidance was provided on June 26, 2018 in a ruling by a panel of the Court of Appeals of Georgia issued in City of Albany v. Stanford et al.” Mikell wrote.

 

Albany parallel


That first reference to Albany ruling Came 23 pages into Mikell’s 34-page order.  But he observed that the ruling had presented “a situation remarkably similar to the instant case.” The three-judge Appeals Court panel’s ruling in the Albany case was 2-1, with one judge dissenting. Because the ruling was not unanimous, it did not set a binding precedent but was to be considered persuasive.

“While the case may be physical precedent only, this Court not only finds the decision persuasive but consistent with many of the concerns foreshadowed by this Court in its granting partial summary judgment. …,” Mikell continued.

The Appeals Court decision in the Albany case centered on sovereign immunity, which generally shields governments from liability in carrying out official duties. The two-judge majority held that a licensing was a “governmental function” that entitled a city to immunity, and not one of a city’s “ministerial functions,” often revenue-generating activities such as maintaining utility systems, for which cities are sometimes held liable for creating a nuisance.

Mikell agreed and also cited earlier decisions by Georgia’s appellate courts upholding sovereign immunity in situations he considers similar.

 

A bridge too far’

But first, Mikell observed that a crime committed by a third party was the direct cause of Gatto’s death and that this created a “chasm that must be traversed” for the nuisance and negligence claims to work.

Grant James Spencer, then 20, pleaded guilty Oct.  11, 2016, to voluntary manslaughter for causing the death of Michael J. Gatto during the Aug. 28, 2014 incident. The criminal case was not in Bulloch County State Court, where the civil suit was filed, but in Bulloch County Superior Court, where Judge William Woodrum sentenced Spencer to 20 years in prison after prosecutors agreed to reduce the charge from felony murder.

The indictment against Spencer had charged that he hit Gatto in the head and face repeatedly, causing the skull fracture and blunt-force trauma to the head that resulted in his death later on Aug. 28.

Mikell noted that, traditionally, even when negligence gave an opportunity for a crime to take place, a crime committed by a third person “breaks the causal chain so that the defendant’s negligence is not the proximate cause of the injury.”

This traditional legal principle may be overcome if the consequences of negligence “could reasonably be anticipated,” the judge wrote. But he called claims that the city could have foreseen that allowing Rude Rudy’s to remain open  would lead to Gatto’s death “a bridge too far.”

 

Both were drinking


The plaintiffs’ attorneys noted from the first that Spencer had been charged with underage possession of alcohol in August 2013 before beginning work at Rude Rudy’s that September and that he was charged with DUI and possession of false identification in April 2014 but was still allowed to work as a bouncer.

But Michael Gatto, the victim or “decedent,” also had a run-in with the law involving alcohol and then violated a pre-trial agreement by going to Rude Rudy’s, Mikell noted. The Athens –Clarke County Police Department had arrested Gatto July 4, 2014, on charges of theft of services and underage possession of alcohol. That Aug. 5, Gatto entered the pre-trial intervention program agreement not to violate laws, consume alcohol or enter places whose primary purpose was selling alcoholic beverages.

Further, while at Rude Rudy’s  the night of Aug. 27-28, when he was struck by Spencer, Gatto was drinking and possessed a driver’s license with a name other than his own, the judge noted.

“These facts are referenced not to judge or condemn the Decedent who no doubt was wrongfully killed by Spencer; but the Court cannot ignore these undisputed facts in evaluating this situation and applying the standards of proximate causation contained in the law,” Mikell wrote.

The plaintiffs’ attorneys had also asserted that the city waived its sovereign immunity by purchasing liability insurance. Mikell rejected this, noting that the insurance policy contained a statement that it pays only when sovereign immunity does not apply.

 

Could appeal


Some options, including asking for reconsideration or filing an appeal, remain open to the Gattos and their legal team.

Attorneys from four Atlanta law firms filed the lawsuit on behalf of Michael “Mike” Gatto and Katherine Gatto of Cumming and their son’s estate. Andrew T. Rogers serves as lead counsel on the case for the firm Deitch & Rogers LLC.

“We are surprised and very disappointed in the court’s ruling on the city’s motion,” Rogers said in an emailed statement. “We believe the law allows for a jury of Bulloch County citizens to have the opportunity to decide this case. All options are being considered in a continued effort to present the case to a jury, including a possible appeal.”

John C. Stivarius Jr. of the Elarbee Thompson firm, also based in Atlanta, is lead attorney in the city of Statesboro and Starling’s defense.

“This still remains a very tragic situation in that a young man was killed and that another young man went to prison,” Stivarius said. “As to the motion itself, the city and Mrs. Starling believe that the judge issued a very well-reasoned and legally supportable position, and we believe that he ruled correctly.”

Rude Rudy’s owner Jonathan Earl Starkey surrendered his alcohol license to the city in September 2014, and the club, which was in University Plaza beside the Georgia Southern University campus, never reopened.

 

Resulted in change


Following the court-ordered closure the year before of two Statesboro nightclubs where fatal shootings had occurred, Gatto’s death spurred replacement of Statesboro’s alcohol ordinance and increased local enforcement. His parents also pushed through state legislation, “Michael’s Law,” which made 21 the minimum age for bouncers in Georgia, created a minimum definition of a bar and prohibited patrons 18-20 from entering bars, with exceptions. Gatto’s death and the overhaul of Statesboro’s alcohol ordinance occurred during the administration of the previous mayor, Jan Moore. She and council members at the time were never named as defendants in the suit, which left room for 10 “John Doe” defendants.

“Although the city was found not to be liable in the death of Michael Gatto, which I feel is the proper outcome, his death did result in the city making some very positive changes,” Moore emailed this week. “The judge's findings do not lessen the tragedy of his death, something this city and our community will always be saddened by. My heart continues to go out to his parents and family."

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

 

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