Court Clarifies Choice of Laws Issue

On February 13, 2016, 14-year-old Tomari Jackson drowned while swimming in a river on a school trip in the country of Belize. His mother, Adell Forbes, filed an action on March 24, 2017, against the resort, its owner, Cobb County Government, Cobb County School District, and the chaperones on the trip. Forbes asserted claims for her son’s personal injuries before his death and for his wrongful death. The trial court dismissed the government and school district officials on the basis of immunity and dismissed the remaining defendants on the basis that the one-year limitation period in the Belize Law of Torts Act barred all of Forbes’s claims against all defendants. Forbes then appealed. Forbes v. Auld, 830 S.E.2d 770, 771–72 (Ga. Ct. App. 2019).

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 (2005). In addition, the “statutes of limitation are procedural in nature and are therefore governed by the law of the forum state.” Id. Therefore, under the general rule, Forbes’ action would be governed by the substantive law of Belize and the Georgia statute of limitation. However, “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 (2008). Forbes’ action was controlled by that exception because the Law of Torts Act of Belize, which created the wrongful death cause of action, included a 12-month limitation period.

In Georgia, there is a public-policy exception to the enforcement of foreign laws. Under the public-policy exception, a Georgia court will not as a matter of courtesy or comity apply the other state’s substantive law if the law of the other state contravenes the public policy of Georgia. In applying the exception to Forbes’ action, the court found that the Belizean provisions measured damages for wrongful death from the perspective of the survivors, while Georgia law measured damages from the perspective of the decedent. Therefore, application of the wrongful death provisions of Belize’s Law of Torts Act would violate Georgia’s public policy based on Belize’s calculation to measure damages. Accordingly, the court declined to enforce the wrongful death provisions of the Law of Torts Act of Belize and applied the Georgia statute of limitation. As such, Forbes’ claim for wrongful death was timely filed and the Georgia Court of Appeals reversed the dismissal of the claims against the remaining defendants that were not entitled to immunity.