Atlanta Injury Attorney Blog

Among the most common defenses in negligence litigation is assumption of risk. Assumption of risk was originally an affirmative defense that absolutely insulated a defendant from liability if it was shown that the plaintiff assumed the risk that resulted in injury. Today, however, assumption of risk has become part of the balancing courts and juries undertake when assessing comparative or contributory negligence. Georgia, which has a modified comparative negligence regime, bars recovery when it is shown that a plaintiff’s negligence contributed more than 50% to his or her resulting injuries. O.C.G.A. § 51-12-33(g). Given that recovery can either be barred or offset based on a plaintiff’s assumption of risk, defendants in negligence cases will often try to assert the theory’s applicability when confronted with allegations of negligence. For instance, the Georgia Court of Appeals recently ruled in Smith v. NT Nails, LLC. on whether a plaintiff who walked across a recently mopped floor had “assumed” the risk of falling.

The appeal in Smith followed the trial court’s grant of summary judgment in favor of the defendant. Looking at the evidence in a light favorable to the plaintiff, the record showed that on the night of her injury, the plaintiff went to the defendant nail salon for a manicure and a pedicure. The plaintiff was the last customer at the salon, and staff had begun cleaning and preparing the salon for closing. While the plaintiff was receiving her pedicure, an employee mopped the salon floor. When a technician finished the plaintiff’s pedicure, she gave the plaintiff a pair of rubber slippers to wear. The plaintiff stood up and walked across the wet floor to the register. After paying for the services, the plaintiff slipped on the floor, resulting in an accident. Following discovery, the trial court granted the defendant’s motion for summary judgment, finding that it was undisputed that the plaintiff assumed a known risk when she opted to navigate the wet floor.
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photo_666_20051213Georgia law requires that a plaintiff in a medical malpractice action provide an expert affidavit that must generally set forth the defendant’s failure to comply with the applicable standard of care. See O.C.G.A. § 9-11-9.1(a). Failure to comply with this requirement renders one incapable of successfully advancing a medical negligence claim. However, there are cases when actual testimony from a medical expert is unnecessary to ultimately succeed on a malpractice claim. For instance, the “pronounced results” exceptions obviates the need for expert testimony when the injury is of such an obvious nature that a jury can appraise the failure to exercise care without the assistance of an expert on the subject. In a recent decision, Zarate-Martinez v. Echemendia, the Georgia Court of Appeals addressed the interesting question of whether the expert affidavit requirement is waived in cases when a pronounced results exception is viable.

The plaintiff in this case alleges that a physician negligently performed an out-patient open laporoscopic tubal ligation procedure on her. The plaintiff had gone home the same day of the surgery without incident but started to experience pain, nausea, and fever over the coming days. She eventually went to the emergency room, where it was discovered that a part of her lower intestine had been perforated. The perforation was repaired, and the plaintiff remained in the hospital for further treatment.

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Spoiled Food Cause Your Injuries? Look Again…

steth​We frequently get calls from prospective clients who have been harmed by foreign objects in their food or by food tainted or spoiled in some fashion. Evaluating the foreign object cases is generally less complicated. Did you bite into something that caused significant dental problems? Did you swallow something that caused considerable damage to your mouth, throat, or esophagus? Those are the type of serious cases that are worth pursuing and hiring a lawyer to handle. Short of these types of harms, however, usually the best rule of thumb when you find a foreign object in your food that hasn’t caused you any physical harm is to write a negative online review and find somewhere else to eat.

​Cases where victims have been harmed by tainted food deserve quite a bit more scrutiny and can be more difficult to prove. Obviously, cases of serious injury caused by the presence of some harmful bacteria like salmonella are worth pursuing with a lawyer. The line becomes less clear, however, when this type of smoking gun cannot be detected. What if the allegedly spoiled food is just a little past the expiration date? It turns out that even the date printed in black and white on the sides on our packaging doesn’t give us an accurate picture of when our food is actually still good to eat. In fact, according to Thrillist, most of the food in our fridge remains unspoiled and safe for consumption well after the date on the label has told us it has gone bad.

​For instance, the expiration date on milk, once noted by Seinfeld as the one true drop-dead deadline in our lives, is nowhere close to accurate- milk can stay good in the fridge 5-7 days after the date on the carton. Similarly, fresh deli meat is perfectly fine to eat 5-6 days after the printed expiration date. Even sour cream is safe for up to 10 days after the printed date.

​Other food products last even longer. Eggs can last 3-4 weeks longer than advertised in the fridge. Mayonnaise is safe to eat up to one month after conventional wisdom would say to throw it in the garbage. Beer can last up to two years longer than suggested, as well. Condiments, in particular, have shelf lives that extend for many years beyond what their expiration dates advise is safe.

​So, not only are we throwing away untold amounts of money on food that is still safe for consumption, but proving an injury caused by spoiled food just became much, much tougher.

When Your Own Insurance Company Turns Against You

pd2​We tell people involved in Atlanta car accidents that as attorneys, we feel the most important insurance coverage you can get is uninsured/underinsured motorist coverage (UM) through your own car insurance company. This is the coverage that kicks in to protect you when you are injured in a crash caused by someone who doesn’t carry liability insurance at all or they simply don’t have enough insurance coverage to pay for the harms they have caused. In Georgia, many drivers carry the minimum limits of liability insurance mandated by law- $25,000. If you are involved in a crash and suffer any kind of significant injury, that amount of money will likely not even cover the medical bills you incur for your medical treatment. Because the drivers who carry the minimum limits of insurance are usually the ones who cause most of the car wrecks in our state (there’s a reason why they can’t get better insurance), UM coverage is a must.

​But what happens when your own car insurance company doesn’t treat you fairly and refuses to compensate you for the damages you’ve suffered? Unfortunately, many injured victims in Georgia learn the hard way that their insurance company is happy to accept their premiums for UM coverage over many years, but when the time comes to pay out on legitimate claims, they are in for a serious fight. For instance, in one of our recent cases, the liability carrier for the at-fault driver was quick to pay our client the limits of their policy, but when it came time to pursue the money available under our client’s UM policy, her insurance company refused to negotiate after presenting her with a low-ball offer, forced us to file a law suit to protect her rights, and then failed to have an attorney present for important legal proceedings.

​One of the primary reasons UM carriers are able to get away with treating their own customers this way is the simple fact that the penalties for stubborn litigiousness or bad conduct in negotiation or litigation are not nearly as severe for UM carriers as compared to liability carriers. Insurance companies representing the at-fault party can face harsh sanctions if they refuse to act in good faith or negligently fail to settle a case that is clearly worth more than the limits of their insured’s policy. On the other hand, the “bad faith” penalties for UM carriers in Georgia, codified at O.C.G.A § 33-7-11(j), are not as harsh and present less of an incentive for UM carriers to refrain from treating their own customers with such disregard.

​In an attempt to remedy this situation, the Georgia General Assembly has recently been looking at ways to impose stricter penalties on insurance companies that behave in this manner toward their own customers. While the bill considered in this year’s legislative session was not able to pass through the House and Senate, we are hopeful that our legislators will continue to consider this important issue next January when the members under the Gold Dome reconvene for the 2016 session. Until then, Georgia consumers should be wary when they are forced to pursue a claim under their own UM coverage.​

photo_7501_20080925In a recent decision, Barking Hound Village, LLC v. Monyak, the Georgia Court of Appeals addressed an interesting question arising from a lawsuit brought against a kennel by the owners of a deceased daschund. On appeal, one of the questions the court needed to answer was whether the trial court erred in its ruling on the appropriate measure of damages for the loss of the dog.

The principal defendant in the case, Barking Hound Village, is a kennel located in Atlanta, Georgia. In 2012, the plaintiffs in this case boarded two of their dogs, the aforementioned daschund and a mixed-breed labrador retriever, at Barking Hound for about 10 days. The evidence showed that, while under Barking Hound’s care, the plaintiff’s daschund was administered toxic doses of a medication that had been prescribed to the labrador retriever. The medication had been left at the kennel by the plaintiffs along with instructions that it was supposed to be administered to the labrador retriever. Three days after retrieving their dogs, the labrador was diagnosed with acute renal failure that ultimately led to its death about nine months later. The plaintiff brought a negligence suit against the kennel, alleging various forms of negligence as well as fraud. Barking Hound moved for summary judgment on all the claims, but the trial court denied the motion except as to the fraud claim. Both the defendant and plaintiff appealed the various summary judgment rulings.

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impact rule photoGeorgia’s impact rule has been around for over 100 years and basically holds that you cannot sue for witnessing a horrific injury unless you were also physically injured in the incident. The rule is formally stated thusly; the current Georgia impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.” Lee v. State Farm

In the Lee v. State Farm case, the Supreme Court recognized that the impact rule is silly when it comes to a parent hurt in a crash with their child who watches the child die. They should be able to recover for that horrible suffering. The encroachment was incremental but important. It had to be a death and it had to be a child and parent relationship. Friends or spouses had no where to go if they wanted to recover.

Then another exception arose, the “pecuniary loss” exception. It said that if the plaintiff lost some property in the event that there was a loophole and a jury could consider emotional distress from the incident. Our firm used this to recover for a mother who witnessed her young daughter being run over and killed. We argued that the parent owned the clothing and that satisfied the rule.

The Georgia Supreme Court issued a recent decision in 2015 that has further modified the rule. They have allowed a plaintiff who witnessed the gruesome death of a friend and who also sustained a physical injury to make a recovery for the emotional distress caused by the injuries and witnessing the bloody death. Although the Supreme Court vacated the logic of the Court of Appeals decision in Division 2, that logic is sound. The only oddity is the property or economic loss prong would now seem to be satisfied where the loss is income or mental treatment bills.

Industrial WarehouseThe tragic Georgia Sugar Refinery explosion made national news and took the lives of numerous employees. 7 years later, the courts are still struggling with issues in the case. In a recent case, Bing v. Zurich Services Co., the Georgia Court of Appeals addressed whether a company hired to perform inspections of a sugar refinery could be held liable for injuries of workers present at the time of the refinery explosion.

The explosion at issue, which the Court of Appeals described as “catastrophic,” occurred on February 7, 2008. Workers injured as a result of the blast brought suit against multiple defendants, including Zurich Services Corporation. Imperial Sugar Company owned the refinery, and Imperial’s property insurance underwriter contracted Zurich to perform annual inspections at the plant. During the course of an August 2007 inspection, Zurich failed to inspect conveyor belts over which Imperial had recently placed stainless steel covers. Months later, in January 2008, an Imperial plant safety manager warned that the stainless steel covers lead to piling of sugar, posing an explosion risk. This issue ultimately led to the explosion. The injured workers argued the Zurich was liable for failing to inspect the covers, but Zurich moved for summary judgment, arguing that, as a matter of law, it did not owe a duty of reasonable care to the injured workers under the circumstances. The trial court concurred and granted the motion.

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100_1001I was looking through some case law on recent developments about intra-family exclusions and reductions when I came across the last holding of an interesting case.

In the case a lady had died and her passenger children were injured when she drove through an intersection. The ex-husband had filed suit for several things but one thing was for the medical bills incurred by the children and the loss of their services. The insurer raised the intra-family tort exclusion and argued that the claim would reduce coverage to only $25,000. The Court disagreed and wrote that the ex was not related to the dead wife and the the medical and services claim was not derivative of the kids family relationship with the deceased. Johnson v. GFB 273 Ga 623 (2005)

“GFB argues that the trial court erred in concluding that the family exclusion discussed in Division 1 does not limit liability coverage to Johnson on his individual claim for recovery of medical expenses and loss of services due to the children’s injuries.   Johnson was the insured’s ex-husband and not a family member, and therefore this claim is not derivative of the children’s own claims for their own personal injuries.   Since he brought this claim on his own behalf for his own losses, the family exclusion does not apply here.”

Blue Line Rapid Transit CarPublic transportation is certainly a benefit, if not a necessity, for many in the Atlanta metropolitan area. However, travel on the rails or in buses, like driving in a car, is not free of risk. In a recent decision, Maloof v. Metropolitan Rapid Transit Authority, the Georgia Court of Appeals addressed whether it was appropriate to grant summary judgment in favor of MARTA in a negligence suit involving a disabled passenger traveling in a  para-transit vehicle.

The accident at issue in the case occurred on April 13, 2005. On that day, the deceased, whose estate brought the instant lawsuit on her behalf, was traveling in a MARTA para-transit van. After the deceased boarded the bus, she backed her wheelchair into position, and the driver of the vehicle secured the wheelchair to the floor in four places and strapped a lap belt across the deceased’s waist. The deceased, however, declined to wear the shoulder harness. The deceased had traveled on para-transit buses before and had on all previous occasions declined to wear the shoulder harness. While making a wide right turn onto Piedmont Avenue, the para-transit van veered into an adjoining lane of traffic and, as a result, made impact with another vehicle. The contact was slight, but in an effort to avoid a more serious collision, the driver stopped abruptly, which caused the deceased to fall to the ground and break her leg. The deceased remained immobile for several months before passing away a little more than four months later.

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photo_781_20060111Although the courthouse typically serves as a venue for resolving legal disputes, occasionally it can be the setting for their creation. For instance, the Atlanta Division of the United States District Court for the Northern District of Georgia recently addressed liability arising from a scuffle between an attorney and a Fulton County Sheriff’s Deputy at the entrance to the Fulton County Courthouse in its ruling in West v. Davis.

The events leading to this litigation occurred on December 9, 2010, when the plaintiff in this case, an attorney, arrived at the Fulton County Courthouse to represent a client in a domestic relations status conference. When the plaintiff arrived, she placed her belonging in a bin and proceeded through the metal detector, which sounded as she passed through. A security officer, the defendant in this action, approached the plaintiff and told her to remove her jacket. The plaintiff objected, saying that the jacket was part of her suit and that removing it would expose her undergarments. The Fulton County Sheriff’s Office, which provides security to the courthouse, has an unwritten policy that members of the public need not remove jackets at the metal detector and that officers are to use discretion in determining whom to ask to remove their jackets.

The defendant told the plaintiff that if she failed to comply and remained in the courthouse, she would be arrested. Thereafter, the plaintiff asked to speak to a supervisor and stated that the defendant put his hands on his handcuffs and glared at her menacingly. The plaintiff took out her cellphone and called her husband and the client with whom she was supposed to meet. The defendant then approached the plaintiff and told her to get off her phone. Rules do prohibit cellphone use in the area near the magnetometer and x-ray machines at the courthouse. The plaintiff states that when she refused to comply, the officer “grabbed her hand, squeezed it, jerked it towards him, wrenched it back and forth, and then forcibly removed the cell phone and flung it into her purse.” The defendant, however, maintains that he took her phone without grabbing her hand or using force. Shortly thereafter, the supervisor arrived and permitted the plaintiff to enter the courthouse after directing the defendant to use a metal wand detector in lieu of having the plaintiff remove her jacket.

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