Atlanta Injury Attorney Blog

photo_32123_20140611The scope of police authority in interactions with citizens has been a commonly discussed topic in media coverage in recent months. Although at the forefront of the modern discussion, the use of force is not a novel concept in the law. Indeed, law enforcement use of force is among the more commonly litigated issues in both state and federal court, and as many lawyers know, officers have some immunity from suit. This immunity, official immunity, is an affirmative defense, and the scope of the immunity is almost invariably at issue in cases brought against law enforcement. As demonstrated in the Georgia Court of Appeals’ recent decision in Vidal v. Leavell, the scope of official immunity is quite broad under Georgia law, a reality for which potential litigants should be prepared.

The facts at issue in Vidal occurred on April 23, 2011. On that day, the plaintiff in this case was at an IHOP in Buckhead with a friend. Shortly after being seated, the plaintiff noticed that the defendant in this case, an off-duty police officer hired by IHOP to provide security, approached a booth occupied by a group of young women. The plaintiff said she could not hear what words were being exchanged between the officer and the women but that she did see the officer force himself into the booth and push two of the women into the wall. The officer was attempting to arrest the patrons in the booth, and the plaintiff began to videotape the incident because she believed the officer was acting too aggressively. Another officer arrived and apparently engaged the defendant to halt his interaction with the patrons. The plaintiff testified that she touched the officer so that he would realize she was recording him. The officer then slapped the plaintiff, and the video shows that the plaintiff then took retaliatory swings at the officer. While the second officer held her arms back, the officer punched the plaintiff in the head and then threw her to the floor, dragged her to the door, and handcuffed her. The plaintiff was arrested for obstruction and assault. Other patrons at the IHOP videotaped the incident.

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By now, almost everyone in a major American city has either heard of or taken advantage of Uber, the popular, highly efficient, low-cost alternative to traditional taxi cabs and car services. Now, this kind of technology is making its way into the trucking industry, with the goal of improving efficiency for a huge segment of the economy that relies on trucks to haul a majority of our freight from coast to coast.

These Uber-like apps would connect manufacturers and shippers of goods with a trucker nearby who is heading to the intended destination. Truck drivers will be happy because they can get additional freight that they would not otherwise have been able to acquire on an on-the-fly basis, and the shipper gets a better deal because they can ship goods on an on-demand basis. Much like Uber, payment is transferred swiftly between the two parties.

A recent study found that by 2025, $26.4 billion of all truck freight movement will come from mobile app freight brokering. The growth potential here is astounding, and some established companies like Volvo and UPS have begun investing in this sector. Many hope that this technology can also attract younger truck drivers to an industry that is facing a serious shortage of available truck drivers in the years ahead as many aging drivers near retirement age.

While the projected productivity gains are projected to be enormous, we can’t overlook the same kinds of concerns that have plagued Uber. Who is going to be responsible for the track record of the fleet? How are the drivers going to be monitored? How is this activity going to be insured in the event of an accident? Who’s going to regulate the type of freight to be hauled over our roadways? All of these issues will present significant challenges for attorneys in the next 5-10 years and beyond.

Last week, Google revealed the news that one of its much anticipated self-driving cars was involved in a car wreck with injuries for the very first time. Certainly, this wasn’t the first time one of Google’s prototypes had been in a collision, but this was the first such crash that left passengers walking away with complaints of pain.photo_5961_20080516

This particular crash occurred when a Lexus SVU made over with all of Google’s technology was rear-ended in Mountain View, CA. The three Google employees inside all complained of whiplash injuries. The car’s sensors showed that the Lexus was traveling at about 15mph in self-driving mode behind two other vehicles when it had to slow for traffic further ahead on the road. The vehicle behind the Lexus then struck the rear bumper traveling at approximately 17mph.

According to Google, this was only the 14th wreck in six years of testing involving its self-driving cars and that none of its own vehicles have ever caused any of these crashes. 11 of these 14 crashes involved rear-end collisions similar to this latest incident. Clearly, the problem with these kinds of collision is distracted or inattentive driving- something a Google self-driving car can’t control when it’s coming from other vehicles on the road.

While these statistics are impressive, the day is coming when self-driving cars are going to be all over the road, and when that happens, these lofty numbers are going to take a hit. Not only will these autonomous vehicles have to account for the poor driving of others on the road, but they will have to make calculated driving maneuvers on the fly that may cause crashes themselves. It is only a matter of time before Google gets tagged with a claim when one of its cars makes an incorrect calculation that leads to a serious injury. This first injury crash is merely a harbinger of things to come.
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photo_35516_20150116Few cases ever advance far enough to be presented to a jury for consideration. However, when there is a trial, the propriety of interactions between the court, the parties, and the jury are of prime importance. Indeed, the integrity of the judicial process depends on both the court and the parties not unduly influencing the jury’s determination, and even the appearance of a misdeed can lead to a new trial. In a recent decision, Phillips v. Harmon, the Supreme Court of Georgia dealt with such a case of possible misconduct and ordered that there be a new trial held.

The facts underlying this case are incredibly unfortunate. The suit was brought by an infant, by and through his mother, and by the mother herself in an individual capacity. The plaintiffs alleged that as a result of the negligence of the defendants the infant suffered severe oxygen deprivation shortly before his birth. Consequently, the child suffers from  permanent neurological problems, which include spastic quadriplegia, blindness, and an inability to speak. The case eventually progressed to a trial before a jury that returned a verdict for the defendants after a day and a half of deliberations. Following the jury’s verdict, the plaintiffs moved for a new trial, asserting that the trial court erred in both communicating with the jury in the absence of the parties and their attorneys and for not including a spoliation instruction in the jury instructions. Specifically, the trial court had responded to a note from the jury that was sent during deliberations without telling the parties or counsel that there had been a communication. The case was reassigned to a different judge, who denied the motion, and the plaintiff thereafter appealed to the Georgia Court of Appeals. The Court of Appeals determined that there needed to be a new trial and vacated the jury verdict. The defendants then appealed to the Supreme Court of Georgia.

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New and improving technology in our vehicles has led to all kinds of upgrades in terms of driving safety- blind spot warning systems, automatic braking with radar detection, updated airbag systems, to name a few. Not all new technology, however, has been beneficial or as accepted in this regard. In particular, the new trend among auto manufacturers involving the implementation of large, tablet-like dashboard displays in almost all new vehicles has been the source of controversy over vehicle safety and the responsible use of technology while driving.

Car companies suggest that these oversized dash displays, which often times behave more like smart phones than the traditional dashboard, are actually safer than the design of older cars due to features like integrated voice controls that keep the driver’s hands on the wheel or the large touch screens for tasks like navigation that are easier to manage than trying to fumble with a smartphone (not to mention the fact that these kinds of new features will almost certain boost manufacturer revenue). But the questions remain- how much technology is too much in our cars? How connected should drivers be out on the road? Do we really want drivers or passengers checking social media posts or uploading photos while navigating rush hour traffic?

The dangers of texting and driving are all too familiar to personal injury lawyers who see the devastating effects technology can have when drivers aren’t devoting their full attention to the roadway. These large dashboard displays are just the newest distraction coming to our cars, and we’re sure to see an uptick in the number of wrecks caused by this technology as it becomes more and more commonplace. Unfortunately, our lawmakers are generally slow to adapt the law to changes in technology, so regulation over the use of these kinds of systems will likely be a topic of debate for years to come.

In a recent and highly anticipated decision, Eshleman v. Key, the Supreme Court of Georgia addressed an interesting issue regarding the breadth of official immunity doctrine. Specifically at issue in Eshleman was whether official immunity shielded a police officer from liability when her K-9 dog escaped from her yard and allegedly attacked a child. In an unanimous decision, the Supreme Court of Georgia concluded that official immunity did in fact shield the officer from liability.

The police officer at issue in this case is employed by an Atlanta area law enforcement agency as both a police officer and dog handler. As part of her job, the officer is responsible for the care  of a police dog. When not on duty, the officer keeps the dog at her home, which is near the home of the plaintiff. The alleged attack at issue occurred in 2011. One day in November of that year, the officer placed the dog in a kennel outside her home but did not adequately secure the kennel.  Consequently, the dog absconded from the  yard and encountered the plaintiff’s then 11-year-old son. The plaintiff alleged that the dog attacked his son, which caused serious injury to the child. The plaintiff sued the officer, who moved for summary judgment, arguing that official immunity shielded her from liability. The trial court denied the motion, and the Georgia Court of Appeals affirmed the trial court’s denial. The Supreme Court of Georgia, however, reversed.

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The new Georgia insurance law regarding ride services became law on July 1, 2015 and it has big implications for you if you are thinking about driving for Uber or Lyft.

1. Your regular personal insurance policy likely excludes insurance coverage if you have a crash while working for these companies.

2. Georgia law now requires Uber and the like to provide $100,000 in injury and $50,000 in property damage insurance when a driver has the app activated and is available to take a rider.

3. Georgia law now requires the company to provide $1,000,000 in liability insurance once the driver  driver accepts a ride request on the transportation network company’s digital network until the driver completes the transaction or the ride is complete, whichever is later…”

Uber will likely be providing the policies in situations 2 and 3 and charging premiums to the drivers, which means the consumer will ultimately pay.

What is scary for the drivers and is still unclear is what kind of coverage there is for the driver themselves in the way of uninsured motorist insurance (protection for the driver against being badly hurt by low or uninsured other drivers) and property damage coverage if the Uber driver causes the crash themselves. Remember that in situation 2 and 3, your own car insurance policy won’t apply.

Governor Deal signs the “Uber” Bill

Governor Deal signs the “Uber” Bill

BEST PRACTICES

If you are going to drive for Uber or Lyft, you need to call your insurance company and tell them you are considering doing this and ask what products or endorsements you can buy that will provide you with UM and property damage coverage in scenarios 2 and 3. It will raise your rates but given that you might as well have no insurance at all when the app is on, you are crazy to go without it.  See HB 190 and HB 225

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.