Judge Gail Tusan, Fulton County Superior Court. (Photo: John Disney/ALM)

(Correction appended below)

A Fulton County judge has tossed a nearly $9.6 million jury verdict against MARTA and ordered a new trial after finding jurors were confused by a thrice-clarified jury charge involving an intoxicated man who fell through a hole in a guardrail at the Civic Center Station and died.

The order crafted by Superior Court Judge Gail Tusan said the final jury charge, which concerned whether MARTA or the deceased man had “superior knowledge” of the hole, undercut the “crux” of MARTA's defense.

Jurors sent out questions three times, indicating they were struggling. After being instructed the last time by Senior Judge Wendy Shoob that they could “weigh the [parties] relative degrees of fault,” the jury awarded more than $11 million, apportioning 10 percent of the fault to the victim and 5 percent to a nonparty defendant.

”Unfortunately, this court must find that there was error in the response to the jury's third question on the issue by injecting the question of fault as a proper basis for the the jury's evaluation of the superior knowledge question,” Tusan wrote.

Tusan was originally assigned the case, but it was tried by Shoob in May because of a scheduling conflict.

MARTA's lead attorney, Thomas “Woody” Sampson II, said his team thought Shoob would be more familiar with the details of the trial and could thus fulfill the role of “13th juror” in assessing their motions for a new trial and judgment notwithstanding the verdict.

But Tusan took up the posttrial motions and, after oral arguments earlier this year, ruled that the issue was one of law and not the details surrounding the death of Carlos Hicks, Sampson said.

“They argued that MARTA knew the hole was there for years, but that wasn't the point,” Sampson said.

“If hundreds of MARTA employees saw it and it was there for five years, and Mr. Hicks only saw it for a minute, that doesn't matter,” Sampson added.

Hicks “had to have seen it, so neither party had superior knowledge,” said Sampson, whose team includes Thomas Kennedy Sampson & Tompkins colleagues Jeffrey Tompkins and Gerond Lawrence. 

Hicks' estate and son are represented by Ed Piasta, Christopher Newbern and Michael Walker of Piasta Newbern Walker and Darren Summerville and Max Thelan of The Summerville Firm.

“Obviously, this was not the ruling we were hoping for, but we respect the trial court's efforts,” Newbern said via email.

“The issue—the interplay between the superior knowledge concerns at play in premises cases, and the apportionment statute—is a thorny one,” Newbern said. “That is why we have asked the trial court for a certificate of immediate review, so that the Court of Appeals might take up an immediate opportunity to guide not only any future trial in this action, but other litigants as well.”

The case began in February 2013 when Hicks, 42, was on the station's upper level waiting for a train. A metal guardrail had been removed from a concrete parapet several years earlier as part of a construction project to build a hotel adjacent to the station.

The project was canceled in 2007, but the metal rail was never replaced. Instead, a wooden rail was erected, but it fell off, leaving a 25-inch gap.

The defense portion of the pretrial order said video showed Hicks leaning on the wall adjacent to the hole for several minutes, then turn and step back in an apparent attempt to again lean against the parapet.

Hicks plummeted more than 20 feet to the ground and died. Hicks had a blood alcohol content of 0.311 percent at the time of his death, nearly four times the legal limit for intoxication, the order said.

Hicks' son, Pissaro Wright, and sister and estate administrator Christina Hicks, sued MARTA.

MARTA in turn pointed to the hotel developer, Novare Centennial Park, as the liable party because it had removed the handrail and never replaced it, associating them into the case as nonparty defendants.

Shoob read the jury charges after a two-week trial, including the pattern charge for superior knowledge, along with a nonpattern defense charge that “if a person had equal or superior knowledge of the dangerous hazard or would have had equal or superior knowledge had he exercised ordinary care for his personal safety, he cannot recover.”

The jury asked the meaning of “superior knowledge” during deliberations and were given a near-identical version of the pattern charge. They then asked two more questions concerning the applicability of superior knowledge to each party and whether there were differing standards for negligence and premises liability.

After consulting with the lawyers, Shoob issued a charge including the instruction that jurors could “weigh the relative degrees of fault” and could allocate that fault to any or all of them.”

The charge “was entered over our objections,” Sampson said.

The jury awarded $11,250,000 in damages on May 10, apportioning 10 percent to Hicks and 5 percent to Novare. MARTA's share of the award came to $9,562,500.

Tusan denied MARTA's motion for judgment notwithstanding the verdict on Sept. 27 but granted its motion for a new trial.

The jury was clearly struggling with the superior knowledge and negligence issues, Tusan wrote.

“The jury's confusion, coupled with the fact that the court's fourth and final charge on the issue represented an erroneous statement of legal principles which are most certainly the 'crux' of MARTA's case and thus substantial and harmful as a matter of law, requires the court to grant MARTA's motion for new trial on this sole basis,” Tusan said.  

The initial version of this article mistakenly said attorney S. Leighton Moore was among the defense counsel. Moore was not involved in the case, and the story has been updated to reflect that fact.