wrongful deathGeorgia’s Supreme Court recently issued a decision deciding whether a wrongful death suit can be limited by a previous personal injury claim for the same accident. The plaintiff, through her husband, filed a personal injury suit against Toyota after a car accident left her in a coma. The coma was permanent and the plaintiff was totally and permanently disabled.

The case was tried before a jury, but before the jury rendered a decision, Toyota and the plaintiff entered into a “high-low” agreement. The agreement guaranteed the plaintiff a certain sum if the jury found in Toyota’s favor, and limited Toyota’s exposure if the jury found in the plaintiff’s favor. The jury returned a verdict for the plaintiff, and Toyota paid the sum it was required to under the settlement agreement.

The husband signed a written release on his wife’s behalf. It released Toyota from liability for all claims and damages arising from the accident, but expressly excluded “any claim for [the plaintiff’s] wrongful death, inasmuch as [she] has not died and no such claim was made or could have been made in the [personal injury lawsuit].”

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Georgia slip and fall cases are all about knowledge. To win one of these cases, the store has to know more about the spill than you do, either because it has been there for a while or because they had employees in the area. The corollary is, if you have reason to know about it, you cannot blame them when you fall. Therefore,  one of the most challenging issues plaintiffs in Georgia slip-and-fall cases encounter is the burden to establish that the defendant’s knowledge of the hazard that caused the plaintiff’s injuries was greater than their own. A recent appellate decision issued by the Court of Appeals of Georgia illustrates the difficulties a plaintiff may face when attempting to establish not only a defendant’s knowledge of the hazard, but also their own lack of knowledge.

SpigotThe Facts of the Case

The plaintiff was running an errand for her employer, which required her to pick up an item at the defendant’s shop. It was a cold day, and when she arrived, she noticed that there was a patch of partially frozen water at the base of the steps leading up to the front door of the shop. Upon closer inspection, the plaintiff realized that the water was coming from a spigot that had been left open so that it would not freeze in the cold weather.

The plaintiff made her way around the ice and up the stairs into the shop, where she encountered an employee. She notified the employee of the ice, and he suggested she leave out of a different door. However, the employee told the plaintiff not to let anyone else know he had given her permission to exit through the alternate door, because it could get him fired.

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When someone is involved in a Georgia car accident and needs to go after their Uninsured or Underinsured Motorist insurance, immediate notice is required. If you fail to put them on notice, your entire claim can be denied. Insurance companies are for-profit corporations, and they rely on taking in more money in premiums each month than they pay out in claims. One of the key defenses to UM claims is the argument that the insured failed to give notice of a crash. This often happens because the person injured was in another vehicle and simply did not realize they might one day need access to their UM insurance. The insurance companies are vicious when it comes to enforcing this provision.

Damaged Headlight

Most policies require immediate notice or notice within 60 days of the crash.  When an insurance claim is denied, a personal injury lawsuit has to be filed in an attempt to compel the insurance company to honor the contractual agreement contained in the policy.

It is important for Georgia accident victims to understand the language in their insurance policy, and to comply with any requirements after an accident. If a plaintiff fails to comply with the requirements of their policy, the insurance company may have grounds to deny the claim. A recent car accident case  in the Court of Appeals illustrates the difficulties an accident victim may encounter if these requirements are not precisely followed.

In this appeals case, the trial court’s decision to throw the case out was overturned on the argument that the insured did not know that her injury was serious and might need the UM coverage.

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Our East Cobb County attorneys work on a variety of car accident injury cases every week and one of the frequent questions is “if the other driver got a ticket, how can they dispute liability?
Earlier this year, a state appellate court issued a written opinion in a Georgia car accident case discussing the doctrine of negligence per se, as well as a trial court’s obligation to instruct the jury on the law of the case.

Steering WheelIn Georgia personal injury cases, negligence per se is a doctrine that allows the plaintiff to more easily establish that a defendant violated a duty of care. The doctrine requires the plaintiff to establish that the defendant violated a statute, the purpose of which was to protect against the very type of harm suffered by the plaintiff.

The Facts of the Case

The plaintiff was injured in a car accident when the defendant’s vehicle, which was traveling in the opposite direction, crossed the center median and crashed into the plaintiff’s car. The plaintiff then filed a personal injury case against the defendant, claiming the defendant knowingly operated the vehicle while it was unsafe.

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Recently, a state appellate court issued a written opinion in a Georgia car accident lawsuit filed by an injured motorist against his own insurance policy, under the policy’s uninsured-motorist clause. The case required the court to determine if the insurance company was proper in refusing to accept the plaintiff’s claim, based on the fact that the vehicle the plaintiff was operating at the time was not an “uninsured vehicle” under state law.

Changing TireUltimately, the court concluded that the insurance company’s interpretation was correct and dismissed the plaintiff’s claim for compensation.

The Facts of the Case

The plaintiff’s employer provided the plaintiff with a work truck. The plaintiff used the truck five days a week, and while the plaintiff normally returned the truck to his employer’s place of business after his shift was over, he was not required to do so. The evidence suggested that the plaintiff kept the truck overnight at his residence at least two times.

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A hunter went out on a piece of rural property and fell down a well and died and then his family tried to sue the land owner because of the hidden well. The Court of Appeals took a hard look at the immunity for hunting statute and rendered an opinion that squarely rebuffs any attempts like this. The Court of Appeals of Georgia issued the opinion in a Georgia premises liability lawsuit discussing the applicability of the state’s recreational-use statute to the plaintiff’s case. The court ultimately held that the defendant landowner was entitled to immunity because the plaintiff’s husband was on his land for the purposes of hunting, which was covered under the recreational-use statute.

ATVThe Recreational-Use Statute

Under OCGA § 51-3-20 and OCGA § 27-3-1 (e), a landowner who “gives permission to another person to hunt, fish, or take wildlife upon the land with or without charge” “may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises.”

The Facts of the Case

The defendant leased land to another man who planned on starting up a hunting club. The lease limited the hunting club’s use of the land to hunting purposes only, and, while the lease did not name anyone else in the document itself, the lease did contemplate that there would be others entering the land to hunt.

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In most Georgia personal injury lawsuits, a party is asked for their version of the events several times before the case proceeds to trial. This may be through police investigations, pre-trial interrogatories, or depositions, or even through casual conversations with bystanders. Given the effect that time has on one’s memory, it is not uncommon for a party’s version of events to change slightly over time.

Wet Floor SignWhen a party’s story changes, however, courts can be presented with a difficult situation. For example, sometimes under one set of facts, a plaintiff has a strong case, but under another set of facts, the plaintiff’s case is much weaker. This puts the court in the position of determining which version of the events to credit. A recent Georgia premises liability decision issued by the Court of Appeals of Georgia sheds some light on how courts handle these conflicts.

The Facts of the Case

The plaintiff was an office manager at a business that was located in a building owned by the defendant. One day, the plaintiff, who was the first to arrive at the office, slipped on a puddle that had formed near the rear office. As a result of her fall, the plaintiff sustained serious injuries to her back and wrist. The plaintiff filed a premises liability lawsuit against the defendant, claiming that the property was negligently maintained.

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A recent trend in litigation in Georgia has been defense law firms sending spoliation to Plaintiff’s attorneys to retain vehicles and cell phones involved in accidents. Up until now very few appellate decisions have come down on that particular set of facts. Recent opinions have said that insurance companies and commercial motor carrier defendants that are used to getting sued know that in any decent crash, the driver logs, qualification files and vehicles are likely to be at issue because litigation and claims frequently arise. The appellate courts in Georgia have gone so far as to say that even when the plaintiff’s attorney fails to send a spoliation letter. The whole idea behind this is, you deal with claims all the time, you should know better.

What about a situation where the plaintiff fails to retain key evidence?  The court opinion below addressed such a situation and held that an unrepresented plaintiff, although injured, was not sophisticated and even though he asked his wife to retain the tires, this did not make him subject to sanctions. I believe the court would have ruled against the plaintiff had he hired counsel before the car was destroyed.

The state appellate court issued a written opinion in a Georgia product liability case discussing when a plaintiff’s duty to preserve evidence that may be relevant to her case arises. Ultimately, the court concluded that a plaintiff’s duty is triggered at the same time as a defendant’s, which is when the party “actually or should have reasonably anticipated litigation.” Under these facts, the court concluded that the plaintiff had not reasonably anticipated litigation when she allowed for the evidence to be destroyed, and thus it dismissed the defendant’s request for sanctions.

Flat TireThe Facts of the Case

The plaintiff’s husband was involved in a car accident when one of the tires on his Ford Explorer blew out. The plaintiff’s husband was taken to the hospital, where he was unresponsive for several days. After the accident, the car was towed to a storage yard, where it accrued a daily storage fee.

The plaintiff told the storage yard owner that she could not afford the storage fee, and he offered to waive the fees if she signed the car over to him. At around this time, the plaintiff’s husband’s condition had improved, and she asked her husband what to do. He told her to “save the tires.” The plaintiff then signed the car over to the owner of the storage yard and asked that he save the blown tire. Not long after this, the plaintiff’s husband’s condition worsened, and he passed away.

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Earlier this month, an appellate court issued an important opinion in a Georgia dog bite case discussing whether the plaintiff’s claim for punitive damages was supported by sufficient evidence to submit the claim to a jury. Translating the legalese, the Court of Appeals said that if there was a prior incident where the dog had been aggressive and the owner could not control it, then the victim in the second incident could have the jury consider punishment damages.

The Facts of the Case

The plaintiff agreed to take her son’s five-pound Yorkshire terrier to a local dog park. As the plaintiff approached the fenced-in dog park, she noticed that the defendant was in the park with her two dogs. The defendant’s dogs were 75 pounds and 40 pounds. Hesitant to let the dogs play together, the plaintiff asked the defendant when she was planning on leaving. The defendant just shrugged her shoulders.

Snarling DogThe plaintiff waited outside the dog park for the defendant to leave. Eventually, the defendant leashed her dogs and began to exit the park. However, as she did so, the two dogs got away from her and attacked both the plaintiff and her son’s dog. The plaintiff was seriously injured as a result of the attack, and her son’s dog was killed. The plaintiff filed a personal injury lawsuit against the defendant, seeking punitive damages.

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bathroomIn a recent Georgia premises liability case, the court considered a slip and fall and again reiterated that these cases are very weak. A hotel guest sustained injuries when she slipped in the shower and fell. She was 65 years old, and she and her adult daughter had come to a hotel in Georgia that the daughter had pre-booked. On the following day, they were planning to visit family. The plaintiff had rheumatoid arthritis, and during check-in she asked for a handicap accessible room or a first floor room. There weren’t rooms like this available, so the woman and her daughter accepted adjacent rooms that were two stories up. It was late, and they couldn’t imagine trying to find a motel at that hour.

The next morning, the woman stepped into the bathtub, which seemed dry and clean. She went in and turned on the water and began lathering herself with the soap. Suddenly, her feet went out from under her, and she fell down. She crawled out of the tub and called her daughter. Her daughter came in to help her dress. They checked out of their rooms and left the hotel to go visit family.

The woman sued the owner and operator of the hotel. During her deposition, she was only able to say that she’d fallen because the tub was slippery. She didn’t know why the tub was slippery. She was standing, and suddenly her feet slipped out, but she didn’t know what had caused it. Her daughter had gone to look at the condition of the tub afterward, but she hadn’t. The daughter testified about what she’d seen and said that the tub was very slick, and it wasn’t because there was a lot of soap. She didn’t know what made the tub so slick.

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