Atlanta Injury Attorney Blog

photo_1525_20060508Although they are designed to provide efficient and speedy financial recovery to injured employees, workers’ compensation schemes can and do occasion protracted legal battles that are not dissimilar from the tort litigation for which they were intended to substitute. Indeed, it is not uncommon, considering the amount that can be at stake, for workers’ compensation claims to lead to full-blown cases litigated outside the administrative setting. For instance, the Georgia Court of Appeals recently rendered a decision in Bonner-Hill v. Southland Waste Systems, Inc., which dealt with the denial of workers’ compensation benefits to the widow whose husband died on the job.

The widow’s deceased husband worked at Southland Waste Systems of Georgia, Inc. at a facility located off State Road 247. Running parallel to State Road 247 is a Georgia Southern and Florida railway track, which must be crossed in order to access the Southland facility. Only a month after starting his job at Southland, the deceased person was driving to work along State Road 247. When the deceased person turned onto the entrance road for the Southland facility, a northbound train struck his vehicle. The collision resulted in significant injuries that ultimately led to his death. Following this incident, the deceased person’s widow filed a workers’ compensation claim, which Southland challenged, arguing that the deceased person did not die “during the course of his employment.” At an initial administrative hearing, the Administrative Law Judge determined that the death was compensable because the access road that crossed the railway track was the only way to access the facility, and therefore the road was part of the business premises. However, the Workers’ Compensation Board reversed this decision. The Board held that, since Southland did not own, operate, or control the entrance road, the deceased person had not yet arrived to work at the time of the accident. Consequently, his death was not compensable.

The Georgia Court of Appeals, however, reversed the Board’s determination. Under Georgia’s Workers’ Compensation Act, a worker is entitled to compensation for injuries that arise out of and in the course of employment. See O.C.G.A. § 34-9-1 (4). Generally, injuries “out of and in the course of employment” are not considered to include injuries caused by hazards encountered while going to or returning from work. Longuepee v. Ga. Institute of Technology, 269 Ga. App. 884, 885 (605 SE2d 455) (2004). However, an exception to this general rule exists for injuries occurring when an employee is engaged in ingress or egress at the particular work site, for the employee “has not started traveling a route of his choosing wholly disconnected with his employment.” Hill v. Omni Hotel at CNN Center, 268 Ga. App. 144, 147 (601 SE2d 472) (2004). For the ingress/egress exception to apply, the area where the employee was injured must either be limited (or very nearly so) to the respondent business, even if the business’s right to the area is merely a leasehold interest or some other non-exclusive access, Knight-Ridder Newspaper Sales, Inc. v. Desselle, 176 Ga. App. 174, 174-175 (335 SE2d 458) (1985), or owned, maintained, or controlled by the business, even though the area is heavily traversed by the public without connection to the business, Longuepee, 269 Ga. App. at 885.

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photo_754_20060109The first line of the Georgia Court of Appeals’ recent decision in Justice v. SCI Georgia Funeral Services Inc. (PDF-embedded link) is enough to inform the reader that what follows will be an interesting read. In short, this case arose from a funeral home mistakenly giving an empty urn to the principal plaintiff in this case, a grieving mother whose daughter’s ashes were supposed to be in the urn she received. On appeal, the Georgia Court of Appeals needed to determine whether it was appropriate for the trial court to grant the defendants’ motion for summary judgment on all the plaintiffs’ claims associated with this mistake.

The death that started the series of events leading to this decision occurred in December 2007. The day following the death, the decedent’s mother, a plaintiff in this case, contracted with Striffler-Hamby Mortuary for cremation and memorial services. The contract provided that the ashes be transferred from a crematory to the funeral home and then to an urn that would be presented at the memorial services. The memorial services were held on December 28, 2007. On that day, the funeral director got the urn with the decedent’s name from the office at the funeral home. The director looked inside the urn, which contained a temporary container customarily used to store ashes, and assumed that ashes were inside. He took the urn to the chapel and, at the conclusion of the memorial services, gave the empty urn to the mother. Shortly thereafter, on the same day of the memorial, the decedent’s ashes were delivered to the funeral home. Realizing his mistake, the director contacted the mother and asked to speak in person. The director went to the mother’s home, told the mother of the error, and asked if he might take back the urn. The mother granted the request, and the director took the urn back to the funeral home, where he put in the decedent’s ashes. The director returned to the mother’s home. No one answered the door, but he eventually spotted the mother and a friend of the mother upon entering the residence without permission. The director again apologized for the mistake and left the urn. Afterward, the funeral home canceled the need for payment under the contract and did not otherwise charge the decedent’s family for the services provided. Despite the gesture, the mother and several other family members filed suit against the funeral home and the funeral director, asserting claims for breach of contract, interference of burial rights, invasion of privacy, intentional infliction of emotion distress, and trespass. Following discovery, the defendants moved for summary judgment on all the claims, and the trial court granted the motion in full.

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photo_5256_20080312Not all plaintiffs are the same, and there are many problems that can arise in injury litigation when a plaintiff with preexisting medical conditions is injured, since these preexisting conditions can make determining the exact source of symptoms exceedingly more complicated. Indeed, causation is a critical element for proving a negligence claim, and it follows that the existence of pre-existing conditions can pose trouble for establishing the necessary causal link between an act of negligence and the harm suffered. This dynamic is illustrated in a recent decision from the Northern District of Georgia, Bruce v. Classic Carrier, Inc., in which the court needed to determine whether a plaintiff needed to proffer expert testimony establishing causation for his neck injury, since he had pre-existing neck ailments from a prior motor vehicle accident.

The Bruce litigation involves not one but two auto accidents. The first of these accidents occurred on May 31, 2008, when the vehicle that the plaintiff in this action was driving was struck from behind by another motorist’s car. As a result of this accident, the plaintiff was sent to the hospital, where he was treated by physicians and injected with pain medication. The second accident occurred less than a month later, on June 11, 2008. On this day, a tractor-trailer being driven by an employee of one of the defendants in this action rear-ended another vehicle that, in turn, struck the back of the plaintiff’s vehicle. The plaintiff was again ushered to the hospital, where he was treated for neck, arm, and back pain, injected with more pain medication, and prescribed additional pain medication. To make matters worse, the plaintiff had a long history of spine-related medical ailments, which included psoriatic arthritis with spondylitis, radiculopathy of the cervical and lumbar vertebrae, post-cervical fusion syndrome, and post-lumbar laminectomy syndrome. He had been seeing a rheumatologist for these issues since 1999 and had undergone neck surgery in 2001. In addition, the plaintiff had been seeing a pain management specialist since 2005 to treat recurring pain and numbness in various regions of his body, including in his neck, back, hip, shoulder, and fingers. Following the aforementioned accidents, the plaintiff was referred to a spinal surgeon, who believed the plaintiff’s symptoms had been exacerbated by the two accidents, recommended physical therapy, and sometime thereafter, advised the plaintiff to undergo a second neck surgery.

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LawAlthough trial is the stage of litigation that many consider to be the key moment for legal argument, many critical battles over the admissibility of evidence, venue and the applicability of certain laws take place long before trial, assuming the case even gets that far. The initiation of litigation often leads to immediate procedural bickering over whether the case has been brought before the proper court or should be dismissed or otherwise transferred to a different venue. Among these procedural arguments raised at the onset of litigation is whether an action that has been brought in state court should be removed to federal court. Although plaintiffs typically have the right to bring a case in the setting of their choice, as long as that court has subject matter jurisdiction over the issues raised and personal jurisdiction over the parties involved, defendants can, under certain circumstances, move to have a case that has been brought in a state court removed to federal court. Given the differences in rules that can apply in these venues, determining whether removal is justified can have an impact on the outcome of a case. Arguments common in removal proceedings are highlighted in Watson v. Forest City Commercial Management, Inc., a recent decision from the United States District Court for the Northern District of Georgia.

The Watson case arose from an incident at The Mall at Stonecrest in DeKalb County, Georgia. During a trip to the mall, the plaintiff in this action alleges that she was attacked by several third parties. Although third parties carried out the attack, the plaintiff brought a legal action against Stonecrest Mall and North American Midway Entertainment-All-Star Amusement, Inc. (“Midway”), asserting claims for negligence and premises liability. Although proving negligence when there is an intervening third-party criminal act is already a demanding undertaking, the defendants created further trouble for the plaintiff by moving, only 20 days after the initiation of the action, to have the case removed to federal court from the State Court of DeKalb County, Georgia, where it had originally been filed. In response to the defendants’ Notice of Removal, the plaintiff argued that removal was unwarranted because both defendants did not properly join the removal action, one defendant made an untimely answer, and both defendant corporations are “citizens” of Georgia, which would render the federal court without jurisdiction over the case. Thus, the federal court, which was now exercising control over the case, needed to determine whether removal was warranted.

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As most folks know, the Grand Jury in Ferguson decided not to return an indictment of Officer Wilson in the shooting death of Michael Brown. That is not news. What is important is to point out how good an example this is of how groups shade evidence to suit their narrative. There is no doubt that young black men are disproportionately the target of police shootings. How much of that is a function of the amount of interactions young black men have with cops is not known to me. That would be a study I would like to see. It may well be true that officers of all races are more touchy on the trigger with young black men, and if so, that needs to be addressed.
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The Georgia Court of Appeals recently looked at this very question in a case that may have a major impact on the law related to social media and its relationship to negligent supervision and defamation. This unfortunate case began when two middle school students decided to create a phony Facebook page in the name of a fellow classmate. The two students used a photo of their unsuspecting peer that had been altered with a “fat face” app and adding postings indicating that the victim was a racist and had a “homosexual orientation.”

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It is common wisdom that driving in the rain is harder, but does it really lead to more car accidents? Every year in the U.S., there are approximately 5,870,000 accidents and of those, 23% or 1,300,000 are due to bad weather. Digging deeper into the data, we find that 16% of injury crashes and 13% of fatal crashes involve wet pavement or rain specifically.

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There was an unfortunate bus crash by a double-decker Megabus en route from Atlanta to Indiana yesterday and police are reporting that 35 passengers have been taken to the hospital. The preliminary reports are that the wire guardrail kept the bus from veering into oncoming traffic and saved countless more lives.

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We had a very unusual potential client call in last week. He was the victim of a “road rage” attack in downtown Atlanta by another driver and was inquiring about his legal rights and who would pay for the medical bills. In the particular case, another driver became enraged and cut across a double yellow line and then turned in front of the victim’s vehicle, scraping the bumper and bringing both vehicles to a stop.

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What is the unicorn of insurance coverage? Stacked personal lines liability insurance
In typical analysis of liability insurance coverage and whether and how they stack, most of the answers are negative. An example would be a car accident caused by a driver with $25,000 in liability coverage. A due diligence examination of the other potential coverages would include inquiring about whether there are additional liability insurance coverages in play. Typical car insurance policies provide coverage to the named insured as well as to any relatives residing in the same household. In analyzing whether that other insurance would stack on top of the liability policy covering the tortfeasor driver you also have to look at the owned vehicle language. While the policy grants coverage to the resident relative, the policy strips away the liability coverage if the driver is driving an owned vehicle!

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