Atlanta Injury Attorney Blog

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 wben I cam 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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ShopAlthough lawsuits can spur public interest based simply on the parties or issues involved, attorneys can – and in some instances, do – play a role in stoking public curiosity. The permissible bounds of attorney-instigated publicity were addressed in a recent decision from the U.S. District Court for the Northern District of Georgia, Adams v. Laboratory Corporation of America, which deals with the alleged negligent misinterpretation of several Pap smear tests by a diagnostic testing facility. The plaintiff asserts that the defendant’s negligence in interpreting her Pap Smear tests and reporting the results to her physician resulted in injurious delay in her cervical cancer diagnosis.

While the negligence claims at issue in Adams are interesting, the court decision, as noted above, deals not with these claims but with the conduct of the plaintiff’s attorney. On November 25, 2014, counsel for the defendant brought a motion for a court order that would prevent the parties, their attorneys, and agents of both from “discussing this case with the media or making statements to the media or on the internet, including social media, other than matters of public record.” The defendant argues this order is necessary because these communications could prejudice one or more of the parties and interfere with the court’s ability to conduct a fair trial. The defendant sought this order because the plaintiff’s attorneys, who are members of the Florida Bar, had released statements and other prejudicial information with respect to a similar lawsuit involving the same defendant before a federal court in Florida.

In Florida, the plaintiff’s attorneys and the plaintiff in the Florida case, the widower of a woman whose Pap smear results were also allegedly misread, had made prejudicial statements during several local news broadcasts and in interviews with print news media. These prejudicial statements, including references to evidence deemed inadmissible by the Florida federal court, were made shortly before jury selection in the Florida case. In response, the plaintiff’s attorneys argued that they are subject to Rule 3.6 of the Georgia Rules of Professional Conduct, which prohibits conduct more broadly than the analogous Florida Rules of Professional Conduct, and asserted that the defendant’s motion was made simply to prejudice the Court against them. In response, the defendants argued that, although the plaintiff’s attorneys are subject to the Georgia Professional Conduct Rules, they are not subject to discipline procedures, and thus the order was still required.

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photo_1473_20060425Although most recent conversations regarding the Fair Labor and Standards Act (“FLSA”), legislation establishing a minimum wage and other compensation rules for most U.S. employees, has focused on the Supreme Court’s recent ruling in Integrity Staffing Solutions, Inc. v. Busk, lower federal courts on a daily basis address many questions regarding the provisions of this important law. Among the most common disputes that arise in FLSA litigation are those regarding the applicability of the numerous exemptions from overtime wage provisions. This everyday FLSA battle is illustrated in Bailey v. Innovative Contracting Solutions, Inc., a recent decision from the Atlanta Division of the United States District Court for the Northern District of Georgia.

The plaintiff is this case was hired by the principal defendant, Innovative Contracting Solutions, Inc. (“Innovative”), in July 2011. The plaintiff worked as a project superintendent for Innovative, which is a commercial general contractor that renovates offices, medical facilities, industrial buildings, and restaurants throughout the region. For his work, the plaintiff was paid an annual salary of $49,000. Beyond these fundamental facts, many issues remained in dispute. Specifically, the parties disputed facts involving the scope and apportionment of the plaintiff’s responsibilities as project superintendent, the plaintiff’s supervisory authority and control over lower-level Innovative employees and subcontractors, and finally the proper hierarchy of power at Innovative, particularly in relation to project superintendents and project managers. Innovative never paid the defendant time and half for any overtime hours worked in excess of 40 hours per workweek. The plaintiff therefore brought a suit against Innovative for these unpaid overtime wages. The defendant moved for summary judgment, which the district court ultimately denied with respect to the most important issues.

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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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