Atlanta Injury Attorney Blog

My Atlanta Injury Lawyer Won't Call Me Back

2010-08-21T13:38:21Z

Over the last week I have had 4 people call the office complaining that their Atlanta lawyers won't call them back. Furthermore, the injury lawyers have sent a letter to the client saying the office is sending a demand to the insurance company without running it by the client first. In even the most simple car accident case, they are certain fundamental duties your lawyer owes you in Georgia.

]]> 1. You should be advised what the amount of insurance coverage the at fault driver has.
2. You should be advised what the gross total of your medical bills and lost wages come to.
3. Your lawyer should estimate a likely verdict range. See What is my Georgia Case Worth in Georgia for examples.
4. Your lawyer should estimate for you what your net in pocket will be at the end.
5. Your lawyer should go over the demand letter to the insurance company with you and send you a copy.

Remember the demand is the detailed letter that outlines your case and gives the insurance company the information they need to make an evaluation of your case. The demand to the insurance company is the most important pre-suit task your lawyer will undertake. If your lawyer will not call you back and has not laid out a strategy for winning your case in detail then you are not getting the service you deserve. For details on how to fire your Georgia lawyer read the linked article.

Giving Geico Credit Where it is Due and a Suggestion

2010-08-05T17:49:37Z

Several weeks ago you may recall I wrote a piece decrying the decision making on a number of cases involving Geico insurance. While I am outspoken when I see injustice, it is only fair to also recognize improvement.

In the DUI case that I described, Geico went on to reverse their liability decision and has now taken care of the property damage that the clients sustained at the hands of the drunk driver. What happens with the husbands injured shoulder remains to be seen but for now the universe is back in order and functioning as it should for that family.

On the case involving two carpal tunnel surgeries that I mentioned was getting close to trial with a totally unfair offer in light of the jury value, Geico also reassessed the situation and ended up doing the right thing and resolving the claim. Do I wish for the client's sake that they had done this a year ago? Absolutely, but as I said earlier, in the field of injury law justice delayed is still better than no justice at all.

The motorcycle case was put into litigation two weeks ago and we are now waiting for the defense to file an answer. Whether the adjuster on that file is given the latitude to better assess the risk remains to be seen but as the old song says, "two out of three ain't bad."

I do not inherently believe that first tier insurance companies are evil as some of my brothers at the bar do, but they can go through periods where their decision making is profoundly obtuse.

]]> Insurance companies exist to make money and to protect their insureds against risk. They cannot protect if they have no money so I do not advocate taking unjust judgments against them. It is bad public policy. On the other hand, as the very public debate about BP's claims handling brings to light, there has to be a balance between the consumer's right to compensation and the insurer's right to only pay valid claims.

To that end, I am proposing an modification of the claims handling system.

Geico, like many other top line insurers employs very seasoned trial lawyers to litigate a majority of their files.

Personal Lines Insurer Goals in No Particular Order:

1) Preservation of capital in non- loss reserve dedicated accounts. This allows the carrier to make money on its money.

2) Streamlined and efficient claims handling process with quality controls to ensure homogenous handling practices across the board. ie, don't have adjuster x paying more to claims made by Korean Americans just because their wife is Korean American.

3) Deterrence of claims filing ( to facilitate #1)

4) Cost Effective investigation and resolution of legitimate claims.

As with any corporation, the pursuit of these goals taken to the extreme can result in unsound policies. For illustration read the Bloomberg report on McKenzie's claims handling suggestions to Allstate some years back or the Business Week article "In Tough Hands."

If Geico were to adopt the old Allstate model identified in the article, it would probably profit in the short term but in doing so it would undermine the highly successful ad blitz of the last few years.

Instead I suggest a tiered approach:

1) For injury claims with property damage exceeding $1,500.00, overpay by $100.00 and call it a good faith apology bonus. Buy some goodwill. I cannot tell you the number of people over the years who have admitted to me that they would never have come to a Georgia injury lawyer if they had just been treated politely during the property damage phase. Spend $100 to save thousands in injury claims.

2) For injury cases where the medical treatment is BS, like the typical Atlanta bill runup at certain chiropractic clinics who shall go unnamed. Blacklist cases involving those providers and resolve to try them all unless 1) counsel will take a ridiculously low offer or 2) unless there are paradigm shifting facts like, hard radiographic findings, legit orthopedic care that breaks the mold, high impact cases, alcohol cases.

3) Classify your Georgia injury lawyers.

What is their record of actually trying cases?

When they litigate will they actually line up legitimate medical testimony?

Do they have a pattern of milling cases as decribed in #2?

Let it be known that you will settle cases with lawyers who only operate on legit files but that you will go to guns with lawyers that bring cheesy chiro based cases. This is not to say that all cases involving chiropractic care are not serious. There are some wonderful chiropractors in Atlanta who do great work and do heal their patients; but the overwhelming majority that are involved in the car wreck industry should operate differently. For example why, if the client has health insurance and you are an approved provider are you billing the client more than 4 times to health insurance contract rate in a car wreck? It is immoral and indefensible.

Can you imagine the deterrent effect that would have on lawyers accepting those cases?

When evaluating settlement offers on cases you do want to settle, take that into account. These days, that only happens at the mediation which does not occur until a year after the lawsuit is filed.

4) For cases involving a visible solid impact and clear liability, with legitimate medical care, put a seasoned claims ombudsman or woman on the file early on, as in immediately after suit is filed. She should contact plaintiffs counsel and lay out a list of required items prior to an early mediation.

a) Full cross section of medical priors with master printout of all health insurance claims for the previous 5 years.

b) Schedule an in person meeting with the Plaintiff and their lawyer to assess jury appeal, communication skills, lawyer preparedness. Apologize, build good faith, explain your goals. Clients will take thousands less if you treat them with respect.

c) Set a mediation with a skilled mediator within the first 60 days so your litigation expenses are minimized. Even with captive counsel, there is an opportunity cost for the lawyer being tied up taking depositions and answering discovery.

If at that mediation you are simply too far apart, then continue as per usual. My impression is that you will be amazed at how many legitimate cases you can resolve, and how much business goodwill you will engender.

d) One last important thing, treat your Georgia uninsured motorist insurance claims with more attention and respect. These are your insureds and right now, they are viewed as the enemy. These people pay you premium, in some cases they have for decades. Respectful dealings will preserve their loyalty and word of mouth buzz is the best advertising money can buy. The reverse is true as well.

State Farm seems to be adopting an interesting approach to UM claims in Georgia. In several cases now, I have filed Underinsured Motorist claims and put the cases into litigation. Once State Farm finished their internal pricing of the claim, they sent our office a check for that amount with no strings attached. The cover letter advised that we were free to continue to litigate for the balance. This is genius on many levels.

a) You are fulfilling your duty to your insured. If your internal assessment is that you owe x and there are no defenses to that amount, then you owe it under the policy and it should be paid. Sitting on that dollar amount is indefensible.

b) If the check for the settlement amount is say 70% of the full value of the case at trial, the calculus for the Plaintiff's attorney and the plaintiff shifts very quickly. Will the client really want to take another year to get to trial for the chance to recover 60% of the remaining 30% of case value-litigation expenses. Is it worth the hassle? Although the injury lawyer is duty bound to selflessly only think of the client, do you really think they will want to spend $2,000.00 on medical expert depositions for 40% of the remaining 30% of value?

I am sure there are industry regulations involved, but there has to be a cheaper and more just way of handling these claims.

Georgia Slip and Fall Law, Where Does a Conservative Georgian Stand?

2010-08-04T16:31:29Z

Because we are known to handle a lot of slip and fall claims in the Atlanta area, we get frequent calls from people with fractured ankles, concussions and compression fractures.My clients are generally conservative Georgians who would not ordinarily think of filing a claim, much less calling a lawyer. Suddenly they find themselves looking at an unwelcome surgery. Most folks don’t want to make a claim if they are reaching, they just want to know what their rights are. This is especially true when the way the fall happened was preventable had the owner been paying attention and taking care of business.

So, the question arises; what are you rights when you seriously hurt yourself in a slip and fall? If it is just a mildly sprained ankle or something equally minor, use common sense and don't make a big deal out of it. Stuff happens, move on. On the other hand, if you broke a bone and it was not your own fault, a thinking person will make a further inquiry into their rights.

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Slip and fall laws in Georgia make more sense than most people think. The first thing the law says is that the reason you are on the property controls the duties the landowner owes you. If you are trespassing, you have very few rights. If you were invited onto the property for the benefit of the landowner, which is the case with shopping malls. grocery stores and restaurants, then the landlord owes you the duty of ordinary reasonable care to keep the premises safe from hazards.

The second important issue is; what did you slip or trip on? The law treats different causes in very distinct ways. For the purposes of this discussion, we will assume that the slip and fall was caused by some foreign substance, such as water, ice, or oil (as opposed to a condition inherent to the property, like a raised floor tile in a restaurant or a pothole in a parking lot, generally referred to as "static conditions").

The Law flows from two places, code sections which are voted on by the Georgia legislature and from stare decisis, over 200 years of appellate judicial decisions that make up the collective wisdom of the bench in interpreting the law in certain factual circumstances.

Starting Point: Section 51-3-1 of the Georgia Code states that, "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe."

If you're confused by what that means, you're not alone. Courts have struggled for many years with what "ordinary care" means. In the context of slip and fall, as with other areas of law, Georgia appellate courts have created tests that try to bring more clarity to what the statute means.

The test that courts have created for slip and fall with respect to foreign substances compares the knowledge of the injured party (called the "Plaintiff") to the knowledge of the landowner or occupier (who we'll refer to as "Landowner" hereafter). If Landowner had more knowledge of the substance that caused the slip and fall than Plaintiff did, the general idea is that Plaintiff should be able to recover his or her damages caused by the fall. However, it's not as simple as it sounds. Courts had to further create tests for accurately and objectively comparing the knowledge of the two parties.

Why is this fair you may ask? Well, Georgia law does not say that people have to be perfect (except for common carriers of people like buses and escalators). What is asks us to do as business people is to look out for the customer. If we know the fridge on aisle 2 has a habit of leaking, get it fixed or put out warning cones. Let the customer know what they don't know. That is the essence of the duty in Georgia

To prove that Landowner knew more than Plaintiff, Plaintiff must show that (1) Landowner had actual knowledge (no surprises here, just need evidence to show that Landowner had observed the foreign substance) OR constructive knowledge (should have known about it if using ordinary care.

Stores rarely will admit they actually knew about the problem, so most cases revolve around the question of constructive knowledge.

Constructive Knowledge

This can be a little more complicated, as constructive knowledge is inferred by the court if Landowner puts forth no evidence of a "reasonable" inspection procedure to comply with its statutory duty quoted above) and (2) that, despite the exercise of ordinary care, Plaintiff lacked knowledge of the hazard due to actions or conditions within the Landowner's control.

What the hell does that mean, right? Here is the deal; when slip and fall cases are filed, the defense lawyers know that many of these claims can be thrown out on summary judgment in Georgia. The best defense they have is to argue that the store did its job an inspected the aisles very 15-20 minutes and therefore the spill you fell on must have happened in that window of time. If the store shows the judge the logs of these inspections, the judge has no choice but to throw the case out. Just because junior spilled milk ten minutes prior and you fell in it, does not mean the store is responsible for you being hurt. Georgia law only requires that the store do a good job keeping the ground safe, not a perfect job.

Examples: Let's see how these principles play out in a few real cases. Note that in the following cases, the parties are at the Georgia Appeals Court level, and the cases are at the Summary Judgment stage of litigation, where the Landowner is trying to get a judge to go ahead and decide the case because Landowner contends that the law so clearly favors his position that there is no jury question.

(1) In the case of Kennestone Hospital, A deliveryman and his wife brought a personal injury suit against a hospital after the deliveryman slipped and fell while making a delivery. When the deliveryman stepped onto a loading dock, he stepped on one or more loose telephone books. Plaintiff had to first show that the hospital had either actual or constructive knowledge of the presence of the phone books on the loading dock. Since there was no evidence that any employee or agent of the hospital had actually seen the phone books, Plaintiff sought to show constructive knowledge of the hazard on the part of the hospital. Since no evidence of any inspection procedure on the day of Plaintiff's fall was put forth, the court held that a jury would have to resolve the question of whether the hospital had breached its duty of reasonable care.
That just means that the case won't be thrown out on summary judgment. We don't know what the jury actually decided.

Also, the hospital had not shown that the Plaintiff's knowledge of the hazard was equal or superior to that of the hospital. Plaintiff testified that he had never seen loose telephone books there. Whether the deliveryman had been negligent in not watching where he placed his foot was for the jury to resolve. Plaintiff here survived Summary Judgment and went on to get his day in Court.

(2) In Prescott, Plaintiff slipped and fell on a wet substance in a mall owned by Colonial. Landowner put forth no evidence of an inspection procedure, so constructive knowledge was inferred on the part of Landowner. There was no evidence that Plaintiff was aware of the presence of the wet substance, so Plaintiff here also survived Summary Judgment.

(3) In Davis, Plaintiff slipped on a puddle of clear liquid that was the size of a small dinner plate as she walked down the center aisle of the store. She survived Summary Judgment based on the fact that, although Landowner put forth evidence of an inspection procedure, there was still a jury question as to the reasonableness of the inspection procedure (in addition to the fact that the affidavit in support of the inspection procedure was flawed because the Landowner's employee did not state that he had personal knowledge that the inspection procedure had been carried out on the day of Plaintiff's fall). Also, Landowner's argument that Plaintiff had not exercised reasonable care failed because the Georgia Supreme Court has rejected any requirement that an invitee look continuously at the floor for defects, holding that the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.

Important Points to Remember:

(1) Defendants (typically Landowners) in slip and fall cases usually seek Summary Judgment, and most recorded slip and fall cases are at the Summary Judgment stage, so we tend to look at slip and fall cases from the perspective of what would likely happen at Summary Judgment.

(2) The case needs to be capable of surviving Summary Judgment to have a likely prospect of settlement, and it would clearly have to survive SJ to ever get to a jury.

(3) Notwithstanding the last two points, cases do go all the way to trial, and often this is where larger damage recoveries occur. That said, it should be clear to the jury that were they walking in your shoes they would think the store could have prevented the fall by taking care of business.

Conclusion

Unfortunately, there is no easy answer for whether or not you can succeed on a slip and fall claim without seeking legal counsel. A Plaintiff must show both knowledge (either actual or constructive) on the part of the Landowner AND that he or she did not learn of the hazard, despite exercising reasonable care. Easy cases for Landowner are those where a "reasonable" inspection procedure (perhaps mirroring an inspection procedure already found reasonable by a court hearing a case involving a similarly situated landowner) was in place and actually followed on the day Plaintiff was injured, coupled with evidence (such as Plaintiff's own testimony) that Plaintiff knew of the specific hazard that caused injury. Good cases for Plaintiff are situations in which Landowner had no inspection procedure or did not follow it on the day of the fall and where Plaintiff had no knowledge of the hazard.

Please feel free to call us to discuss your particular facts if you have questions

Christopher Simon Attorney at Law
3535 Piedmont Road
Building 14, Suite 410
Atlanta GA 30305
404-259-7635

www.christophersimon.com

Semi Truck Crashes in Georgia Require Trucking Lawyers with Advanced Skills

2010-07-25T17:15:25Z

Georgia Semi truck crashes devastate families across Georgia and yet year after year, some tractor trailer companies push their drivers well beyond their capacity as "big box" companies squeeze the drivers down to the penny on their margins. All of this downward price pressure creates a deadly combination of tired truck drivers and worn out equipment. The DOT is spread thin and relies on traffic enforcement to pull drivers off the road and that system typically misses 99% of the violators.

After spending seven years defending semi truck drivers and trucking insurance companies after serious crashes, we formed our firm to represent the victim's families. Civil law attorneys are not effective in prosecuting cases on behalf of victims unless there are bright and experienced lawyers representing the families. If you are reading this article after a family member has been hit by a tractor trailer in Georgia, there are some key things you should know.

Hire a Georgia Semi Truck Crash Lawyer Early

Hiring a trucking lawyer early on will drastically increase your success rate because without a thorough investigation, evidence will disappear. Even though many families are in the middle of the grieving or healing process, for serious cases, it is essential that you hire a semi truck crash law firm immediately.

A case we recently took in is illustrative. We are handling a case involving a gentleman rear-ended on the interstate by a tractor trailer. He sustained a fractured shoulder and has undergone two surgeries to repair the clavicle. The trucking company has denied that the crash was their driver's fault. They are blaming our client saying that he did not have his tow lights activated on his towed vehicle. In Georgia, police departments only retain 911 records for a certain period of time, often only 90 days. If the request for the records is not received in a timely fashion, the records can be overwritten.

In this case, we obtained the 911 records and the tractor trailer driver can clearly be heard saying "I hit someone, I thought he was going to change lanes and I tried to go around him." Without this critical evidence to present to the jury, our client would be left in a swearing contest against the truck driver and the truth would never be known.

Skid marks and yaw marks get washed away within a week of the crash in most cases and the paint marks from the SCRT (Georgia State Patrol Serious Reconstruction Team) unit will wash off within months. Witnesses move away and forget. Most importantly, operational documents from the trucking company can be destroyed and without a strong spoliation letter from the trucking lawyers, it is more difficult to argue that the trucking company should have retained the records beyond the six months required by the Federal Motor Carrier Safety Regulations.

]]> Federal Motor Carrier Safety Regulations

The United States Department of Transportation has control over interstate trucking and created a series of complex rules to govern how tractor trailers operate. When litigating semi truck crash cases involving serious injuries, one of the key issues involves the trucking companies lack of compliance with these rules.

A Sampling of the Relevant Rules

Choice of Drivers

A trucking company is required Pursuant to Rule 391.21, semi truck companies have to keep the driver's detailed application forms, called a Driver Qualification file. As a part of this file they must obtain

a) verification of all prior truck driver's licenses;

b) verification of the driver's prior truck driving experience;

c) verification of all prior crashes and traffic tickets in the prior three years;

d) contact with any prior trucking companies that the driver worked for over the last three years and inquiry into the reason for termination of employment. As a practical matter, the tractor trailer company sends out faxes to the old employers asking about safety and substance abuse issues. The smaller a trucking company is, the more they tend to fail to follow procedures.

In addition to asking questions, the tractor trailer company has to request three years of driving history from the DMV before hiring and if the driver does not meet the minimum standards, they must decline to hire. If the driver is hired, every year they must refresh the request to see if there have been new unreported violations.

Section 391.15 of the FMCSR says that the Georgia tractor trailer employer cannot hire or keep a driver convicted of:

1) DUI in a tractor trailer. Remember the DUI level for tractor trailers is a Blood alcohol concentration of .04% or greater and if they refuse the alcohol tests;

2) Driving a big rig while on a Federal Schedule I controlled substance like cocaine etc;

3) Fleeing the scene of a crash while in a semi truck.

There is a one year suspension for the first offense and any subsequent offense will suspend the commercial license for three years or more.

Medical Exams

The employer has to pay for a doctor to give the truck driver a medical exam to make sure his health does not make him a driving danger.

Semi Truck Maintenance

Section 396.3 requires that "...every motor carrier shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles..."

The drivers themselves must also do a pre-trip inspection before every load is hauled. See §396.11

Driving Over Hours

Semi truck driver cannot drive longer than eleven total hours after 10 consecutive hours off duty under section 395.3. If they have been working a total of 14 hours in a day, regardless of whether it was driving or not, they cannot drive and more that day.

Over the course of a week, the trucker cannot drive if they have been on duty for 60 hours in any 7 consecutive days or having been on duty 70 hours in any period of 8 consecutive days.

Truckers have to keep detailed logs showing how long they have been driving and we frequently see truckers cheat on these records to make it look like they are driving less than they actually do. One way to catch a cheating trucking company is to compare the driver's fuel receipts, GPS tracking points and dispatch reports with their hours of service logs.

If you or your family is in need of a Georgia semi truck crash lawyer, please contact us to discuss the matter further.

Christopher M Simon
3535 Piedmont Road
Building 14 Suite 410
Atlanta GA 30305
404-259-7635
www.christophersimon.com

How Do I Sue the Driver Who Caused the Car Accident in Georgia?

2010-07-17T19:43:39Z

If you read our Georgia Car Accident Guide book, you know that it does not make much sense to hire a Georgia injury lawyer for a case with $3,000.00 or less in medical bills. So lets assume that you followed the do it yourself guide in our book and now the insurance company is being ridiculous and is offering less than the medical bills. The only remaining option is to file suit.

Do understand that the other driver is going to get a free lawyer to defend them if they have insurance and that puts you at a serious disadvantage. Sometimes however, filing suit on your own will get you an increase on the offer. With small cases, you should file in the Georgia Magistrate Court for the County where the defendant lives. The Magistrate Court is small claims court and only handles cases seeking under $15,000.00.

Key Points to remember:

1) Sue the other driver, not the insurance company.
2) Sue in their home county or review our article on Georgia venue and personal jurisdiction requirements.
3) Make sure you keep an eye on the Georgia statute of limitations on injury claims.
4) Make sure the sheriff actually serves the defendant. Failure to serve kills the case.
5) Keep the complaint (document that starts the lawsuit) simple. What did the other driver do wrong. What did it do to you and how much were the bills. (submit the gross amount of the medical bills)

If it proceeds all the way to trial, keep in mind you may get overwhelmed on a technical defense.

]]> Things to know at trial.

1) The accident report is not admissible.
2) The defendant is not automatically responsible unless they admit it on the stand. You need to be prepared to ask them questions that bring out proof that they violated a rule of the road.
3) Present photos of the damage. Show the opposition the photo first and then tell the judge that the picture fairly and accurately represents the thing you took the picture of.
4) Identify your medical bills (not the records, those are heasay) and tender them into evidence for the judge to consider.
5) Before your rest your case, make sure:

a) you proved it was the other sides fault. If not the judge cannot find for you.
b) you provided testimony about the injury
c) you tendered the medical bill you received.
d) if seeking property damage you cannot tender an estimate to repair (hearsay). It must be a paid bill or bring the estimator live to trial.

6) Keep your cool.

Can I Fire My Injury Lawyer in Georgia?

2010-07-17T19:34:14Z

A large number of my clients come to my after firing their first injury lawyer. We recently wrote an article addressing the questions:

1) Can you fire your injury lawyer and hire another one?

2) What do you have to pay them if you do?

3) Can change lawyers after the insurance company makes an offer on your car accident case?

The answers to these questions are contained in the new article "Can I Fire My Georgia Injury Lawyer?"

Remember, you are the customer. Even though you are not always right (whoever invented that rule did not elucidate it correctly) the lawyer should always listen to you and give you the benefit of the doubt. If your lawyer will not meet with you in person, you need to reassess your relationship.

Georgia Bans Teens from Driving While Talking on Cell Phones

2010-07-10T18:31:25Z

On July 1, 2010 Georgia's new texting while driving ban became law.With the words "No person shall operate a motor vehicle while using a wireless device to write, send, read any text based communication" we will hopefully see a reduction in the number of Georgia car accidents. addition to banning all drivers from texting while driving, the law bans teens under 18 from even talking on a cell phone while driving. Named for a Georgia teenager who died while texting and driving, the new law calls for a $150 fine and one point added to the offender's driver's license.

The head if the US DOT already banned texting and driving for bus and tractor trailer operators in January. The U.S. DOT estimates that in 2008 alone 500,000 drivers were injured in car accidents caused by distracted driving and another 6,000 died. Enforcement will present its own unique headache as Georgia joins 19 other states with a texting ban but some states like New Jersey have successfully prosecuted drivers. New Jersey told NPR that its officers are writing 10,000 tickets a month. Talk about a revenue stream!

There is no doubt that cell phones and texting while driving are major distractions to the average driver and even though the ban won't completely fix the problem, it is a step in the right direction. As a practicing Georgia car accident lawyer I know that more than 30% of the crashes I review involve cell phone use of some type. For a client of mine struck in the rear by a teenager on a cell phone on June 30th, the law did not come quickly enough.

Georgia DUI Dramshop Law Limited by Georgia Court of Appeals

2010-06-28T22:10:56Z

In a frustrating decision, the Georgia Court of Appeals has ruled that the Georgia Dramshop Act , OCGA §51-1-40, does not apply to convenience stores or vendors where the alcohol will not be served on the premises. Flores v. Exprezit A10A0703 (2010).

]]> he law for years has been understood to protect Georgia drivers from bars and restaurants that willfully overserved obviously drunk patrons. It provides that if you provide alcohol to a noticeably intoxicated person when you should know that they will soon be driving, you share in the responsibility (liability) if they crash and kill or hurt someone. The law makes sense because in the restaurant and bar industry, alcohol is a profit engine and the more eyes watching to make sure that drunks don't hit the road the better. If there is no downside to overserving a customer, then the bar will be more inclined to serve them to excess. It is in their financial interest to do so. The Dramshop law provides a financial disincentive in that overserving a customer can have dire financial consequences.

Consider this quote from www.startarestaurantbiz.com: "As alcohol doesn't require the preparation and handling that food does it offers restaurant owners a much better profit margin. Restaurants that buy a bottle of wine for $10 can decant it by the glass, charge $7 per serving and make a 66% profit! Beer is also quite profitable and can allow a restaurant to mark up a bottle by up to 300%"

So the law was passed and when people are hurt or killed by drunk drivers who were overserved at bars and restaurants, there is shared responsibility with the drunk driver. And no, the dumb drunk cannot sue the bar if they get hurt themselves after being overserved.

Now the Court of Appeals comes along in a case where a 24 year old goes into a convenience store, visibly intoxicated and buys a 12 pack of beer. The clerk knows he drove up and knows he is driving away. Four hours later, the drunk crosses the centerline and kills himself and 5 other innocent people, including children.

The families of the dead brought suit against the convenience store alleging that the store was liable to the family under the dramshop act for putting beer into the hands of a visibly drunk guy who was about to drive away.

Our esteemed Court posited "Even if Exprezit knew he would leave the store with the packaged beer and drive away in a motor vehicle, Exprezit did not know if Grundell would drink the beerm how much he might drink, when he might do so, or whether he would drive soon after drinking. Nothing inthe GDSA required Exprezit to investigate these matters, or to presume the worst, before selling the packaged beer to Grundell."

Let me get this straight, the guy looks drunk and walks out the door to his car with the 12 pack you just sold him. So right off the bat, the store clerk knows the guy has no problem drinking and driving and that he is actually drinking that night. Now you give him a 12 pack. It is hardly presuming the worst to know that the fool is going to drink it and drive.

Putting it simply, the clerk has a financial incentive to sell as much beer as possible to increase store profits. The Court of Appeals just took away the only financial punishment for doing so. What do you think the result will be? Society loses again.

Understand, I am as concerned as the next person that our society can be overlawyered but when it comes to selling booze to visibly drunk people who are about to get into a car, I say fie on the store and you should be liable if the driver kills someone's child.

If the Court had any doubt about what the legislature wanted, just look to Riley v. H & H Operations, Inc. 263 Ga 652 (1993) where the convenience store was liable for injuries caused when the sold booze to a minor who drove drunk. If the prohibition on a convenience store selling beers to minors includes punishment when they hurt someone while drunk on your booze, then why should the rest of the same statute not apply to store selling booze to adults?

I strongly disagree with this poorly thought out decision and hope our Supreme Court reverses this soon. It makes Georgia roads less safe.

Bracing for Impact May Help Prevent Concussions in Car Accidents

2010-06-28T21:56:14Z

According to a new study in the journal, Pediatrics, if a person is able to tense up their neck muscles, they may be able to minimize the whipsaw effect on the head and thereby reduce the incidence of concussion. Although the study was conducted on hockey player impacts, it has obvious implications for people involved in car accidents.

The study conducted by Jason Mihalik with the University of North Carolina at Chapel Hill involved attaching accelerometers to ice hockey players' heads. The device would measure the degree of acceleration experienced by the player on impact. They then compared the video of the hit to the recorded data to determine whether the player was prepared for ht hit or not. The conclusion was that if the player is prepared and can brace their neck for impact, they lessen the acceleration of the head and the resulting movement of the brain.

]]> This study has long reaching implications for people diagnosed with concussions in car accidents in Georgia. General practitioners are getting better at spotting concussions from car accidents, but they need to add this valuable question on intake. "Were you braced for the impact, did you see it coming." Being struck by surprise should now be one of the danger signs they look for.

Atlanta car accident lawyers work with car accident victims suffering from post concussive syndrome frequently and from an anecdotal sampling of primary care doctors, it is clear that the medical response is far from uniform.

Injured by Objects in Your Food: Waiter, There's a Nail in My Soufle

2010-06-22T20:46:25Z

A neighbor of mine came to me for help after she fractured her tooth on a pebble that was in a salad she ordered at a local Mexican restaurant. Typically, these cases can be resolved with the insurance company for the restaurant fairly easily, but in this case my neighbor is not litigious and naively thought the restaurant would just voluntarily pay for the damage the rock caused. Two years later with the statute of limitations about to run out, she finally came to me with over $9,000.00 in dental bills for a root canal and a new implant saying the insurer would not respond.

]]> So, the question is, what are your rights when you break a tooth or swallow a foreign object in a restaurant? First of all, follow the Golden Rule, do unto others... Do not run out and get a lawyer just because you found a cockroach in your food. Gross...yes...a lawsuit....no. Litigation should be reserved for serious cases involving larger dollar amounts. If the restaurant has harmless foreign objects in the food, tell your friends and don't go back.

If the foreign object is harmful, that is another story. A good example would be the case I handled as a Georgia insurance defense lawyer years ago. We represented a fast food chain where an employee's band-aid had landed in a taco served to a customer. Standing alone, that is gross but not something to sue over. This band-aid had Hepatitis C on it and the patron contracted the disease. That made it a very big deal.

Other examples of serious cases would be salmonella and E. Colli food poisoning cases or the ingestion of pieces of metal causing GI tract damage.

Georgia has two laws that protect the consumer; the Georgia Food Act and the Implied Warranty of Merchantibility

The Georgia Food Act, OCGA §51-1-23, says:

"Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury."

There is also an Implied Warranty of Merchantability, OCGA §11-2-314. that covers any food sold:

"Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this Code section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale."

Basically, the legislature has given the consumer two keys with which to make a fair recovery if they truly suffer an injury. Do we want everyone filing lawsuits if they get food poisoning and spend the night vomiting? Probably not. However when you have a $9,000.00 dental bill to repair the damage caused by a rock in a salad, the the restaurant should pay the bill for the repair.

Bottom line; if the foreign object is no big deal, deal with it using a yelp or kudzu review. If it causes a serious injury you might want to talk with an Atlanta injury lawyer who handles food related injuries.

For an interesting read on how the Court of Appeals views gross things in your food, read on. Incidentally, even though the case was allowed to proceed to the jury I have to wonder what the hell the lawyer was thinking filing suit on a case like this to begin with. No harm, no foul is a good rule to live by.

233 Ga.App. 498

CHAMBLEY et al.
v.
APPLE RESTAURANTS, INC.

No. A98A0707.
July 16, 1998.

Restaurant customer who found unwrapped condom in chicken salad she was eating sued restaurant for negligence and breach of implied warranty of merchantability. Customer's husband asserted claim for loss of consortium. The Superior Court, Floyd County, Walther, J., granted summary judgment to restaurant. Plaintiffs appealed. The Court of Appeals, Harold R. Banke, Senior Appellate Judge, held that genuine issues existed as to whether salad was “adulterated” within meaning of Georgia Food Act, whether eating part of salad was sufficient physical contact under impact rule to permit recovery for damages, and whether customer's reaction of vomiting and becoming nauseated shortly after ingesting salad was “physical injury” within meaning of law.

Reversed.

Eldridge, J., issued specially concurring opinion.

Beasley, J., issued opinion concurring in part and dissenting in part.

Andrews, C.J., issued dissenting opinion.

**552 *508 York, McRae & York, Michael D. McRae, Robert T. Monroe, Cedartown, for appellants.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Kevin P. Race, Atlanta, for appellee.

*498 HAROLD R. BANKE, Senior Appellate Judge.

The underlying case arose when Michelle Chambley was dining at a restaurant with her husband. While eating the Sante Fe chicken salad prepared on the premises by employees of Apple Restaurants, Inc. d/b/a Applebees (“Apple”), Chambley suddenly noticed an unwrapped condom mixed in with the other ingredients.FN1 Chambley immediately reported the incident to the manager and hastily left with the remainder of the salad in a container. After arriving home, she became upset, repulsed, nauseated, and began experiencing emotional and physical problems. Chambley sought medical attention from Dr. Keith Parmer for gastric distress and other stomach disorders and later saw Dr. Richard Hark, a psychologist, to help her cope with panic attacks, depression and humiliation caused by the incident.*499 Chambley sued Apple, the owner of the restaurant, for negligence and breach of implied warranty of merchantability. Her husband asserted a loss of consortium claim. Upon finding there was no physical injury resulting from impact with the condom, the trial court granted summary judgment on all counts. Held:

FN1. This particular salad is mixed by hand at the restaurant just prior to serving. It consists of a combination of six ounces of premixed salad, three ounces of Mexi-Ranch dressing, chicken strips, tortilla strips, and cheddar-jack cheese. All of the ingredients are thoroughly shaken and mixed together.

1. Chambley contends that she satisfied the requirements of the Georgia “impact” rule because she made physical contact with a salad contaminated by a condom and subsequently suffered a physical injury as a result of that impact.

[1] Headnote Citing References[2] Headnote Citing References Under the so-called “impact rule” in a claim concerning negligent conduct, “recovery for emotional distress is allowed only where there is some impact on the plaintiff and that impact must be a physical injury.” **553 Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992). Chambley asserts that a jury must determine whether she sustained the requisite “impact” and resulting physical injury which would allow her to recover damages from Apple for negligently serving her adulterated food that caused both physical and psychological injuries. See OB-GYN Assoc., etc. v. Littleton, 259 Ga. 663, 665(2)(A), 386 S.E.2d 146 (1989). We agree.

This case is controlled by Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga.App. 241, 246, 76 S.E.2d 408 (1953), a case which closely parallels the facts here. In Whited, a consumer who drank part of beverage before discovering a dead bug inside his drink bottle did not have to prove actual contamination of his drink or actual physical contact with the dead bug to avert summary judgment. Id. at 248(2), 76 S.E.2d 408. See OCGA § 26-2-22.

This holding comports with the subsequently enacted Georgia Food Act (OCGA § 26-2-20 et seq.) in which the legislature plainly intended to protect Georgia consumers from defective, contaminated food products. See OCGA § 51-1-23. To effectuate that intent, the legislature adopted a broad definition of the term adulterated food which clearly reaches the facts here. “A food shall be deemed to be adulterated if: (1) it bears or contains any poisonous or deleterious substance which may render it injurious to health.” OCGA § 26-2-26(1).

[3] Headnote Citing References Chambley testified without contradiction that after she consumed part of the salad, she discovered an unwrapped condom and almost immediately experienced various digestive problems which necessitated medical treatment. Whether this salad was “adulterated” within the meaning of the statute is a disputed question of fact. Unlike the dissent, we refuse to unnecessarily weaken legislative protection of consumers so that restaurants who serve customers hidden, disgusting objects, as here, are protected as long as the customer does not actually eat the object or the object subsequently tests benign. To encourage restaurants to avoid their statutory duty to consumers by serving adulterated food in blatant violation of the *500 Georgia Food Act, then allowing restaurants to escape liability because the consumer's physical reaction appears to have been psychological in origin simply cannot be the law. See Whited, 88 Ga.App. at 246, 76 S.E.2d 408. Therefore, we find that a jury must decide whether eating part of a salad containing a concealed, unwrapped condom is sufficient physical contact under the impact rule to permit recovery for damages. Similarly, a jury must determine whether Chambley's reaction of vomiting and becoming nauseated shortly after ingesting the salad constituted a physical injury within the meaning of our law. See OB-GYN Assoc., 259 Ga. at 668(2), 386 S.E.2d 146(C). Compare Posey v. Med. Center-West, 184 Ga.App. 404, 405, 361 S.E.2d 505 (1987) (impact rule precluded recovery against hospital by parents of child struck by vehicle); Ford v. Whipple, 225 Ga.App. 276, 483 S.E.2d 591 (1997) (impact rule foreclosed recovery by uninjured child passenger for fright and apprehension absent any physical injury). Notwithstanding the dissent's claim to the contrary, Ford is not “analogous,” and neither requires nor authorizes a different result. In Ford, unlike here, the plaintiff expressly stated that she suffered no physical, psychological, or emotional injuries as a result of the defendant's wrongful conduct. Id.

Finally, we note that Apple offered no evidence that the salad was not at all times in the possession and control of the restaurant and its employees. Condoms do not just fall into salads, and the restaurant offered no explanation for its presence. Certainly the act here involved some intent, despite the fact that the plaintiffs do not allege any maliciousness. Had that issue reached a jury and a jury determined that the condom was intentionally or maliciously placed there by an employee, Chambley should have been able to recover for mental pain and suffering even absent a physical injury. Westview Cemetery v. Blanchard, 234 Ga. 540, 544(2)(B), 216 S.E.2d 776 (1975). See Ryckeley, 261 Ga. at 828, 412 S.E.2d 826.

2. In light of the above holding, we need not reach the remaining enumeration of error.

Judgment reversed.

**554 McMURRAY and Pope, P.JJ., and BLACKBURN, J., concur.

ELDRIDGE, J., concurs specially.

BEASLEY, J., concurs in part and dissents in part.

ANDREWS, C.J., dissents.

ELDRIDGE, Judge, concurring specially.

While I concur entirely with the majority, I feel that several factors should be further developed.

This action was brought under theories of negligence and warranty and not intentional tort, although the plaintiff could have brought the action as an intentional tort, because an unused but unwrapped condom does not accidentally become mixed in chicken salad and served up to a patron without an intentional act that was *501 “malicious, wilful, or wanton.” For purposes of damages, it is the nature of the conduct, i.e., malicious, wilful, or wanton, rather than the theory of recovery that authorizes the recovery of general damages for mental pain and suffering.

Mental pain and suffering are a form of general damages. OCGA §§ 51-12-1; 51-12-2(a); 51-12-6. In Westview Cemetery v. Blanchard, 234 Ga. 540, 543(2)(B), 216 S.E.2d 776 (1975), the Supreme Court stated: “[w]here there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying ‘mental pain and suffering’ even though the tortious conduct complained of is merely negligent. [Cits.]” This was an action against a cemetery for intentional disinterment of a body without first obtaining authorization, and damages under OCGA § 51-12-6 (formerly Ga.Code Ann. 105-2003) were sought in addition to special damages. The Supreme Court went on to hold: “[i]f ‘mental pain and suffering’ [are] not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was ‘malicious, wilful, or wanton.’ Montega Corp. v. Hazelrigs, [229 Ga. 126, 189 S.E.2d 421 (1972) ].... The Montega test for recovery for a purely mental injury is essentially the same as the test for recovery for ‘punitive damages.’ See Standard Oil Co. v. Mt. Bethel, etc., Church, 230 Ga. 341, 196 S.E.2d 869 (1973).” Id. at 544-545, 216 S.E.2d 776. Accord Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992).

In OB-GYN Assoc., etc. v. Littleton, 259 Ga. 663, 666(2)(A), 386 S.E.2d 146 (1989), the Supreme Court held: “[w]e take this opportunity to clarify our rule regarding impact and now hold that the impact which will support a claim for damages for emotional distress must result in a physical injury.” Accord Ryckeley v. Callaway, supra at 828, 412 S.E.2d 826. “On the other hand, where the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. [Cit.]” Id. “[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Id. at 829, 412 S.E.2d 826. However, in this case the intentional misconduct was directed at the plaintiff, as one of the small group of patrons ordering chicken salad, although the employee may or may not have known which customer would receive it.

BEASLEY, Judge, concurring in part and dissenting in part.

I concur with the judgment of reversal on the negligence and loss of consortium claims but disagree with the analysis of the majority, which misapprehends some issues of fact and law. I respectfully dissent from the reversal of summary judgment on the breach of warranty claim.

*502 1. Regarding facts.

(a) The majority's closing comment that a jury would be authorized to determine the condom was intentionally or maliciously placed there by an employee is unsupported by the record. Chambley and her husband repeatedly represented in the court below that they did not allege any employee of defendant intentionally or maliciously put the condom in the salad; they simply claimed negligence, i.e., that the offending substance found its way into the salad through an employee's failure to assure the salad remained unadulterated. In its summary judgment order, the court expressly relied upon this representation in reaching its conclusion. The majority's gratuitous suggestion to the contrary**555 simply blurs the clear contours of the case and may confuse it in the trial court.

(b) Despite what the majority relates, Chambley was not immediately sick. “When did I get sick? It was when I got home.” Only after gathering up the salad in a container, returning home, and thinking about the incident did she become nauseated and vomit.

(c) The majority does not state that Chambley had the State Crime Lab test the salad, which test found no contaminants from the condom. Plaintiffs did not challenge nor attempt to contradict this finding.

2. Regarding law. OCGA § 26-2-26(1) and (2) define adulterated food to include, inter alia, that which “contains any poisonous or deleterious substance which may render it injurious to health ...” and that which “contains any added poisonous or added deleterious substance which is unsafe....” OCGA § 26-2-22(1) prohibits the sale of any food that is adulterated. OCGA § 51-1-23 expressly establishes civil liability: “Any person who knowingly or negligently sells unwholesome provisions of any kind to another person, the defect being unknown to the purchaser, by the use of which damage results to the purchaser or to his family, shall be liable in damages for such injury.”

Chambley has shown evidence to support a potential jury finding of liability under this statute. Chambley used food which was “unwholesome” in that it contained the “defect” of being adulterated. OCGA § 51-1-23. It was adulterated because it “contained” a “deleterious substance which rendered it injurious to health” or an “added deleterious substance which is unsafe.” OCGA § 26-2-22(1), (2). In 1863, if not before, the legislature established the public policy that negligent sellers of such “provisions” would be liable civilly for resulting “damages for such injury.” OCGA § 51-1-23. Chambley presented evidence she suffered psychic injury that manifested itself in physical symptoms.

The later judicial creation of the “impact rule” in Chapman v. Western Union Tel. Co., 88 Ga. 763, 15 S.E. 901 (1892), which requires *503 a physical impact resulting in a physical injury, did not involve adulterated food, and no subsequent case citing or refining this rule has attempted to apply it to OCGA § 51-1-23 or to adulterated foods. See Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992); OB-GYN Assoc., etc. v. Littleton, 259 Ga. 663, 665-666(2)(A), 386 S.E.2d 146 (1989). At least five factors indicate that the legislature did not intend the “impact rule” to apply to actions under OCGA § 51-1-23.

(a) OCGA § 51-1-23 does not limit the injury to that resulting from a physical impact. It does not preclude liability for injury where the bridge between the impact (“use”) and the injury was psychic, “psychic” meaning that the user saw the unwholesomeness or defect and, based on what she saw, ascribed such a repulsive or horrific meaning to it that it made her physically sick. It is the effect of the defect on the person who uses it for which the seller is liable, so long as the injury was proximately caused by the negligent act. That distinguishes Ford v. Whipple, 225 Ga.App. 276, 483 S.E.2d 591 (1997), which did not involve food.

(b) Nor does the statute limit the types of recoverable injuries to physical injuries and to mental injuries that follow physical injuries. The general language of the statute includes all injuries or damages resulting from the use of the defective food, including mental distress which results in physical symptoms.

(c) OCGA § 51-1-23 relates to the Georgia Food Act (OCGA § 26-2-20 et seq.), which sets standards for those items which constitute food, something that is taken into the body and so has great potential for harm to the body. The Act is now in the title covering food, drugs, and cosmetics, all products which are highly regulated because of their potential for harm to the human body.

(d) The legislature chose to give a broad definition to when “food shall be deemed to be adulterated.” OCGA § 26-2-26. Since OCGA § 26-2-26(2) includes food which “bears or contains any added poisonous or added deleterious substance which is unsafe within the meaning of **556 Code Section 26-2-27,” FN1 we must construe this to mean that there would be liability under OCGA § 51-1-23 from injury resulting from food which is not defective itself but which merely contains a defective item and is used. The term “deleterious” is not defined in the Georgia Food Act, but according to the dictionary means “hurtful, destructive, noxious, pernicious.” Webster's Third New Intl. Dictionary, p. 596.

FN1. The Code says “22-2-27” but that is obviously a typographical error and should be “26-2-27.” There is no § 22-2-27; that chapter has to do with condemnation, and § 26-2-27 does designate what shall be considered “unsafe.”

(e) The legislature provided for express statutory sanctions against those who sell such food. Statutory civil liability (independent*504 of common law), OCGA § 51-1-23; criminal liability, OCGA §§ 26-2-24 and 26-2-41; and allowing the commissioner to publish adverse court orders, OCGA § 26-2-39, are the teeth of the Act, designed to enforce the high standards set for protection of health. The statute even provides for injunctions. OCGA § 26-2-23.

The impact rule does not apply. Chambley's negligence claim survives summary judgment, which means the husband's derivative loss of consortium claim also survives.

3. The trial court should be affirmed with respect to the grant of summary judgment on the implied warranty of merchantability claim. The majority does not decide this issue but instead in effect remands the whole case for trial. This claim is a separate claim, not based on the cited statutes. “In order to recover on this warranty [Chambley] had to demonstrate that (1) it had been breached and (2) that [she] had sustained recoverable damages as the proximate result. [Cit.]” Teledyne Indus. v. Patron Aviation, 161 Ga.App. 596, 598(2), 288 S.E.2d 911 (1982).

Defendant maintains that no warranty arose because Chambley did not pay for the salad, but “a warranty is implied upon a contract for sale and not solely upon the execution of the sale itself.” (Emphasis in original.) Fender v. Colonial Stores, 138 Ga.App. 31, 32(1)(A), 225 S.E.2d 691 (1976). Just as a contract for sale arises when a grocery store patron places the goods in her shopping basket (even though she could return the goods to the shelf and not buy them-see Id. at 33-34, 225 S.E.2d 691), so a contract for the sale of restaurant food arises upon placing the order (even though the order could be canceled). See Keaton v. A.B.C. Drug Co., 266 Ga. 385, 386(1)(b), 467 S.E.2d 558 (1996) (“grasping the product and beginning to take the product from the shelf with the intent to purchase it” constitutes privity necessary for implied warranty); cf. Ray v. Deas, 112 Ga.App. 191, 192(2), 144 S.E.2d 468 (1965) (restauranteur may be liable for breach of implied warranty of merchantability for serving food containing foreign substance that causes injury). Chambley presented evidence establishing the warranty and its breach.

Nevertheless, Chambley does not show recoverable damages caused by the breach. OCGA § 11-2-715(2)(b) allows as damages in a breach of warranty action “[i]njury to person or property proximately resulting from any breach of warranty.” Such damages are considered the same as those allowed under common law. Alterman Foods v. G.C.C. Beverages, 168 Ga.App. 921, 923-924, 310 S.E.2d 755 (1983). The common law does not afford mental distress damages in breach of contract actions. Cheeley v. Henderson, 197 Ga.App. 543, 547(2), 398 S.E.2d 787 (1990) (where only cause of action was suit on contract, court properly entered summary judgment on prayer for mental distress damages), rev'd on other grounds, 261 Ga. 498, 405 S.E.2d 865 (1991); *505 Rogers v. Ga. Ports Auth., 183 Ga.App. 325, 329(3), 358 S.E.2d 855 (1987) (damages for mental pain and suffering “are not compensable in an ex contractu action in the absence of fraud”); see Woodward v. Naylor Motor Sales, 14 UCC Rep. Serv. (CBC) 1269, 1274-1275(VI) (Mich.Dist.Ct.1974) (damages for mental distress are not available in breach of warranty action).

Since this is all plaintiff claims, in that the physical aspects were simply manifestations of the psychic injuries, she cannot recover for breach of the implied warranty. Summary judgment was proper on this claim.

**557 The trial court correctly granted summary judgment on the breach of warranty claim but erred as to the negligence and loss of consortium claims.

ANDREWS, Chief Judge, dissenting.

This is not a case where the plaintiff claims a physical injury as a result of food poisoning, nor is it a case where the plaintiff claims to have been physically injured by the consumption of a harmful foreign object in otherwise good food. Here, the evidence is undisputed that the portion of the salad Chambley consumed was not physically contaminated or tainted by the condom found in the salad, and Chambley does not claim that she was injured by consuming the condom itself. What Chambley does claim is that she found a repugnant foreign object (a condom) in the salad, and that seeing and thinking about the condom in the salad she had been eating caused her such great emotional distress that she later became physically ill as a result of the continuing emotional distress.

These facts do not support Chambley's cause of action because there is no evidence of an impact resulting in a physical injury that could support her claim for emotional distress damages. OB-GYN Assoc., etc. v. Littleton, 259 Ga. 663, 665-666, 386 S.E.2d 146 (1989); Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992). Chambley makes no allegation of malicious, wilful, or wanton conduct by the defendant, Apple Restaurants. The complaint alleges that, by serving the salad with a condom in it, Apple Restaurants was: (a) negligent as a matter of law (per se) because it violated the provisions of the Georgia Food Act (OCGA § 26-2-20 et seq.) against selling adulterated food, and (b) negligent as a matter of fact under the provisions of OCGA § 51-1-23 for knowingly or negligently selling unwholesome food. Donaldson v. Great A & P Tea Co., 186 Ga. 870, 199 S.E. 213 (1938). Under either allegation of negligence in the complaint, Chambley states a cause of action based on long-established principles of common law negligence. Id. at 871-879, 199 S.E. 213 (construing provisions of the former pure food and drug act similar to the present Georgia Food Act, and provisions of former Code § 105-1101 almost identical to the *506 current provisions of OCGA § 51-1-23). See also Criswell Baking Co. v. Milligan, 77 Ga.App. 861, 871-873, 50 S.E.2d 136 (1948); Norris v. Pig'n Whistle Sandwich Shop, 79 Ga.App. 369, 373-374, 53 S.E.2d 718 (1949); Burns v. Colonial Stores, 90 Ga.App. 492, 83 S.E.2d 259 (1954).

“In a common law negligence action, ... the impact which will support a claim for emotional distress must result in a physical injury.” (Punctuation omitted.) Abernathy v. City of Albany, 269 Ga. 88, 89, 495 S.E.2d 13 (1998), quoting OB-GYN Assoc., 259 Ga. 663, 666, 386 S.E.2d 146. Ryckeley, 261 Ga. at 828, 412 S.E.2d 826. In OB-GYN Assoc., the Supreme Court overruled the expansive impact rule stated in Christy Bros. Circus v. Turnage, 38 Ga.App. 581, 144 S.E. 680 (1928). In addressing the impact holding in Christy Bros., the Supreme Court stated that the plaintiff in that case “was allowed to seek damages for emotional distress resulting from the impact of a circus horse's evacuating its bowels in her lap.” OB-GYN Assoc., 259 Ga. at 665(2)(A), 386 S.E.2d 146. In stating its expansive version of the impact rule, Christy Bros. further held that “[a]ny unlawful touching of a person's body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. [Cit.] The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.” Id. at 581(2), 144 S.E. 680. Quoting the above holding by Christy Bros., the Supreme Court overruled it and held that the holding constituted an improper expansion of the impact rule because it “reduces the requirement that there be some physical injury or at least an impact for the recovery of damages for emotional distress as a result of defendant's conduct to an absurdity.” OB-GYN Assoc., 259 Ga. at 666(2)(A), 386 S.E.2d 146.

No doubt, the condom hidden in the salad was a repugnant sight and the source of great emotional distress for Chambley, especially given the fear that the condom may have been soiled or contaminated. Nevertheless, the evidence is undisputed that, no **558 matter how offensive its appearance in the salad was, the condom was tested at Chambley's request by the State Crime Lab and was found to contain no contaminants. The condom itself was an uncontaminated foreign object in the salad, which did not impart any unwholesome physical qualities to the otherwise normal ingredients of the salad. Accordingly, Chambley cannot and does not claim that she was physically injured because she consumed food that was contaminated or unwholesome as a result of being mixed with a contaminated condom. Her sole claim is that, after seeing and thinking about the condom in the salad she was eating, she suffered great emotional distress and later became physically ill as a result of the continuing emotional distress.

On these facts, there is no evidence of any impact resulting in *507 physical injury sufficient to support a claim for emotional distress damages. The only impact Chambley alleges is that she made physical contact with the salad by eating a few bites of it before discovering the condom. But even if this constituted some bodily impact, there is no evidence that this impact resulted in a physical injury. The physical injury alleged by Chambley, resulting not from the impact but stemming from the emotional distress itself, is not sufficient. Posey v. Med. Center-West, 184 Ga.App. 404, 405, 361 S.E.2d 505 (1987).

This case is controlled by the Supreme Court's holding in OB-GYN Assoc. applying the Georgia impact rule in claims for damages for emotional distress in common law negligence cases. By overruling Christy Bros. in OB-GYN Assoc., the Supreme Court determined that the plaintiff in Christy Bros., who had horse manure negligently dumped in her lap, showed insufficient impact or physical injury to support a claim for emotional distress damages. Chambley has shown even less evidence of impact or physical injury than the plaintiff in Christy Bros. It follows that Chambley's claim for emotional distress damages and her husband's related consortium claim were properly dismissed on summary judgment by the trial court.

The majority's contention that this case is controlled by Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga.App. 241, 76 S.E.2d 408 (1953) is misplaced. In that case, the allegations and evidence, as construed in favor of the plaintiff, were that the plaintiff drank from a bottle of coca-cola containing the dead remains of a partially decomposed roach. The plaintiff alleged that the liquid he drank was putrid and unwholesome because of the decaying matter mixed with it, and that consumption of the liquid caused him to vomit and become physically ill in addition to suffering mental anguish. Id. at 242-244, 76 S.E.2d 408. Thus, the refusal to grant a nonsuit to the defendant in Whited was based on allegations and evidence that the plaintiff suffered a physical injury by the consumption of Coca-Cola contaminated with the decomposed remains of a roach. No such comparable injury was suffered by Chambley in the present case.

In the absence of any claims of wilful or wanton misconduct by the defendant, there is no reasonable basis for not applying the impact rule established in OB-GYN Assoc. to the emotional distress claim made in this food-related case. As the Supreme Court made clear in Donaldson, 186 Ga. at 871-879, 199 S.E. 213, allegations that a defendant has violated statutory provisions like the Georgia Food Act (OCGA § 26-2-20 et seq.) or OCGA § 51-1-23 state causes of action based on common law negligence. Common law negligence actions have traditionally limited recovery for psychological and emotional distress damages to cases where there has been a discernible physical injury. Abernathy, 269 Ga. at 88-89, 495 S.E.2d 13. Allowing purely subjective claims for *508 emotional distress damages, without any physical injury to provide an objective component by which to judge the claims, would open the door to potentially fraudulent emotional distress actions of all kinds. The impact/physical injury rule is designed to safeguard against the possibility of such fraudulent claims in common law negligence cases, whether food-related or not. Accordingly, I disagree with the conclusion reached in Judge Beasley's concurring opinion (Division 2) that the impact rule does not apply in this case.

As to Chambley's claim based on breach of an implied warranty of merchantability, I fully concur in Judge Beasley's dissenting **559 opinion (Division 3) that the trial court properly granted summary judgment in favor of Apple Restaurants on this issue.

Ga.App.,1998.
Chambley v. Apple Restaurants, Inc.
233 Ga.App. 498,

Dui Car Accident Case Illustrates that Geico Sometimes Refuses to Deal in Good Faith

2010-06-08T18:39:14Z

Over the last two to three years it has become clear that Geico Insurance has changed course and in certain cases has adopted a policy of denying valid claims and delaying payment to deserving Georgia car accident victims. The latest case that the firm took in illustrates the untenable positions that some Geico adjusters are being asked to take.

]]> The victims in the latest car accident case were a husband and wife making a left turn out of their subdivision at night in Atlanta. The Geico insured driver was coming from the left without headlights on and as the coupled began their turn, the defendant slammed into them. The Geico driver then tried to put the car in reverse to flee the scene, but the wheel was bent so she climbed out of her car and ran into the woods. An hour later police finally arrested her in the woods and charged her with DUI.

The couple called Geico to get the property damage to their car repaired and Geico denied the claim and blamed them for hitting their drunk driver! To make matters worse, the husband has an injury to his rotator cuff and his neck and is treating with an orthopedist.

Standing as a solitary incident, I would attribute this to a rogue adjuster but it fits a pattern with several other cases we have including a clear liability high impact rear end case where the victim has over $25,000.00 in medical costs from two surgeries and orthopedic bills. We are one month away from trial after two years of litigation and Geico has only offered $3,000.00 above the medical bills. We will be trying the case, God willing, in the late summer so the client will finally get justice.

On another case with a client riding a motorcycle, the Geico insured driver pulled out in front of the biker and the biker laid the bike down sustaining a deep gash down to the bone in his arm. He had a $35,000.00 emergency room bill for surgery to repair the wound. The Geico driver was ticketed for failure to yield and yet Geico denied liability and refuses to pay anything for the man's medical expenses. This case is going into litigation and will also be tried.

We have reached a sad state of affairs when the idea of paying valid claims is repugnant to a business model. It will take a series of bad faith verdicts before Geico brass reevaluates these systemic errors. I have no problem with an insurance company denying and fighting petty chiropractic cases from mill law firms that have no merit, but when they choose to take unfair positions on serious injury cases, they have crossed the line.

*As a post script, the first client has informed me that Geico has reversed their liability decision. Good for them.

Whiplash Injuries in a Car Accident Can Be Lessened by Headrest Technology

2010-05-31T17:20:27Z

As an Atlanta car accident lawyer, one of the most frequent complaints we see from clients in the aftermath of serious car crashes are neck, head and shoulder pain. More often that not, the hospital has given the client a generic handout describing whiplash. Whiplash is not really a medical term and is used broadly to describe symptoms from the whipsaw effect of the head being moved backwards and then forwards and back again from a rear end collision.

]]> Symptoms and healing vary from individual to individual with some people healing on their own within a week and others with more serious symptoms which linger for a month or more. Doctors are not entirely sure of the pathology of whiplash symptoms but over 13 years of handling cases, its obvious something is going on. People often ask me whether it is worth it to make a claim after sustaining a whiplash injury and the answer is "sometimes." Every injury does not need to become a claim. I tell my clients to use common sense. If you made a quick recovery and don't need serious medical care, let it lie. On the other hand, if neck and head pain are lingering and your doctor does not seem to be able to lessen the pain then, you can look at your options for making a claim. At the end of the day, we all have to live in the society we make and you want to follow the golden rule. Do unto others...

The good news is car makers are drastically improving their headrest technology and this should help to reduce the number of serious whiplash injuries from a Georgia car accident. As with all advanced safety equipment, the rich get the products first. Airbags, electronic skid protection and side impact beams were once only found in luxury vehicles but are now common in all cars. Compare the whiplash in the first video with the whiplash visualized with the Volvo WHIPS system in play in the video below.

Mercedes-Benz A-Class has the Active Head Restraint system (AHR)

Saab, Opel, Ford, Nissan, Subaru, Hyundai, and Peugeot - Active Head restraint system (SAHR)

Volvo and Jaguar implemented the Whiplash Protection System/Whiplash Prevention System (WHIPS) which has some of the most promising test results.

Toyota - Whiplash Injury Lessening (WIL) system.

If you have whiplash after a car accident in Georgia and are wondering what to do, use good common sense. See your family doctor. If it persists, get an appointment with an orthopedist who works with necks. You want to make sure all health care is either paid for by your medical payments insurance or by your health insurance. You do not want your doctors to be treating you "on a lien" unless you have not other options. Sadly, most insurance companies do not take chiropractic care seriously so choose that treatment route at your own peril.

Christopher Simon, Attorney at Law
3535 Piedmont Road
Building 14 Suite 410
Atlanta GA 30305
(404) 259-7635

Do I Need a Car Accident Lawyer in Georgia?

2010-05-20T16:18:15Z

Many of our clients call wondering if they even need a car accident lawyer in Georgia to handle their case. The short answer is, the more serious or complex the claim is, the more likely it is that you will need an attorney. Be very wary of lawyers who tell you need a lawyer no matter what or tell that you need a lawyer for a case with medical bills totaling less than $2,000.00. You should also beware of a lawyer telling you to get medical care with their chiropractor. Those cases rarely end well for the client.

In the following circumstances, you are probably going to need an attorney for your car accident claim in Atlanta:

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1) If a DUI was involved, you will need a lawyer to effectively present and argue the punitive damages claim to the insurance company;

2) If the car accident resulted in fractures, disc herniations, surgery, or a traumatic brain injury and post concussion syndrom;

3) If your gross medical bills are above $5,000;

4) If the medical condition caused by the car accident is complex or non-standard;

5) If you had a pre-existing medical condition that was made worse by the crash, the insurance carrier will likely fight the claim;

6) Uninsured Motorist claims or Hit and Run claims;

7) Tractor Trailer crashes involve complex federal rules and require an expert trucking lawyer;

8) If there are medical liens filed by doctors or your health insurer is claiming a right of reimbursement for bills they paid you will need a lawyers help to sort through the reimbursement rights.

This is by no means a comprehensive list but it gives you an idea of some of the factors that make it clear you need a car accident lawyer in Georgia. Please read further on our page "do I need a lawyer to handle my car accident case?"

Are Car Accidents in Georgia Increased by Red Light Cameras?

2010-05-16T16:05:38Z

11 Alive News completed an analysis of car accident data from red light camera monitored intersections across the area and came to the conclusion that having the cameras increases the number of crashes. If true, that fact would require the permit for the cameras to be yanked. In my opinion, this is a knee jerk reaction to the data.

]]> It is a painful fact that people in this state run very stale red lights and regularly drive 10-15 mph over the speed limit. As with any emerging technology, it takes getting 4 or 5 of these tickets for the perpetual offenders to change their behavior.

11 Alive's irresponsible reporter shows a crash and declares "clearly this red light camera did not act as a deterrent." The filmed crash is showing a driving who ignores or never notices the light at all. The camera simply captures the recklessness; it has nothing to do with causing it. This is the classic misunderstanding or correlation vs. causation. The camera saw the event, but did not cause the event.

Turning to the other allegations in the story regarding cameras causing an increase in the number of crashes at the intersection, time will tell. I do believe that there are more rear end collisions as drivers who were formerly decisive about running red lights change their minds while driving and suddenly stop when they see a stale yellow. Those collision though are easily avoided by careful drivers to the rear of the leading car. If the light is yellow and you are following someone who has yet to cross into the intersection, you should be prepared to come to a stop. Don't complain that you were hoping the guy in front would run the light.

Notice that the report does not say what the size of the increase was. If the six months before the camera install were in the summer during a drought and the six months afterwords were in the winter or during a rainy period, those variables are far more important that the existence of the camera.

Claiming there was a 47% and 67% increase in crashes is totally irresponsible. 47% is the number of intersections where there was a least one more crash in the post 6 month period than in the previous six month period. I suspect that the failure to tell us what percentage increase there was at each intersection means it was insignificant. Numbers can be heavily manipulated.

Then consider the examples they discuss. Some bonehead sticks it in reverse and backs into someone. That is just driver stupidity, it has nothing to do with the camera.

The data may be out there but given that these cameras have been in for three years, I propose they analyze the data for 3 years prior versus three years after. A larger sampling makes for better data. For comparison, read the 6 year study conducted by the Washington Post that concluded there was no net effect either way of the cameras but offenders were ticketed which produced $32 Million in revenue for the city. I have no beef with Atlanta getting increased revenue from people who run red lights.

Don't complain about getting caught by a camera for running a light. It is dangerous and can kill. Slow down. Are you really that important that the world cannot live without you showing up 2 minutes later.

My final argument for the use of traffic cameras is to be rid of wasteful lawsuits involving swearing contests between vehicle operators. If we had crash video, there would be no need to fight in court over who was responsible. The correct insurer would pay every time without the innocent driver being dragged through years of litigation. Then again, that's just my opinion.

Georgia Car Insurance Policy Exclusions

2010-04-28T19:49:52Z

Our new Georgia car insurance policy exclusions page is now up on the firm site. There have been a rash of coverage dispute with insurance companies stemming from car accidents in Atlanta and there are very few consumer resources out there. Just click on the hyperlink below to access the resource.

The Georgia car insurance policy exclusions covered include:

]]> Intentional Act Exclusion

Unlicensed Driver Exclusion

Named Driver Exclusion

Business Use Exclusion