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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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dogIn a 2017 Georgia dog bite case, a woman suffered serious injuries as a result of a dog attack. She and her husband sued the owners of the dogs and their landlord, claiming her injuries were due to the dog owners’ failure to stop their dogs from leaving their fenced backyard and the landlord’s failure to keep the gate latch in good repair.

The case arose when the landlord leased a home to a couple who moved in with their three kids and a dog. The home had a big backyard that was enclosed by a wooden fence. Months after the couple moved into the house, someone taking care of the lawn broke the front gate latch. The husband told the landlord the latch had been broken, but the latch was never repaired, and the husband and wife didn’t follow up. Instead, he secured the gate by tying it with a dog leash and placed weights and a cement block at the bottom. In spite of these precautions, the family’s dog escaped from the home and was hit by a car and killed.

The couple adopted two Pit Bull Terrier puppies that they kept in the yard during the day and in the basement overnight. The dogs didn’t show aggressive tendencies, and they played with the couple’s kids and nieces.

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dogWhat happens where the dog owner is careful and has the dog on a leash but it lunges and bites? A recent Georgia dog bite decision arose after the plaintiff was bitten by a dog and sued the dog’s owner for negligence per se and other causes of action.  The key issue is whether the dog owner complies with the local laws. In this case the local law required the owner to keep the animal under control and the plaintiff argued that is exactly what they did not due. The trial court gave an automatic win to the plaintiff on summary judgment, but the Court of Appeals reversed.

The case arose when a six-foot-tall woman was walking her 80-pound dog in the park one summer day. The dog was on a two-foot leash. The plaintiff was supervising a delivery of equipment for a concert in the park. When the woman and her dog walked toward the cab where he was, the dog lunged and bit him. The woman didn’t see the plaintiff until after he was bitten.

She would later testify at deposition that she’d pulled the dog away after the bite, but she couldn’t restrain the dog during the moment that he lunged. She argued she was able to physically restrain the dog, but the dog had acted instinctively, quickly, and unexpectedly. She testified that the dog hadn’t acted like this before. However, a police officer issued her an arrest citation for violating a city ordinance.

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poolA recent Georgia wrongful death decision arose from a lawsuit that involved the drowning of a small child. Our firm is currently handling a sad case involving a five year old who climbed the fence of a closed pool because the fence had improper handholds available to allow it to be climbed. Our case is in litigation which will hopefully result in changes to the pool fence and the way management assesses danger. Sadly in the case below, the tragedy could not be averted and there was no legal liability.

On the Fourth of July in 2014, a four-year-old boy drowned in a community swimming pool that was for the people who lived in a particular residential community and their guests. The child was at the pool with his mother and relatives, none of whom lived there. His aunt had given them her pool key card so that they could go to that pool, but she wasn’t present.

The pool was crowded, and the four-year-old was underwater for almost five minutes before someone found him. His mother and a nurse tried to resuscitate him. It took emergency personnel 20 minutes to get there. The boy died.

His father sued the Homeowners’ Association, its management company, and the property manager. He asserted that the boy’s death was a result of negligent pool management. Summary judgment was granted for the defendants. The lower court found the boy was a trespasser, so the only duty owed to him was of not willfully or wantonly hurting him, and they hadn’t breached that duty. The father appealed.

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sunsetIn a recent Georgia injury case, the court considered the drowning of a 20-year-old college student while he was studying abroad in Costa Rica. His university offered students a 12-day trip. They had to pay a fee that went toward the trip expenses as well as a per credit tuition rate and were supposed to get four credits toward their degree for academic work they did in connection with the trip.

The university retained a tour operator to provide a guide, transportation, and coordination. Later, the director of the program would testify that the university tried to follow best practices, including safety procedures for the students. He acknowledged that students went swimming on the trips, but he hadn’t done any investigation to decide whether Costa Rica had any potential dangers.

In a meeting with the students who registered for the program, two professors asked them if everyone was a good swimmer. The students said they were. The group talked about swimming in the ocean and discussed that there were currents. A professor advised that in a prior trip, a student realized he was a weak swimmer and had to wear a life jacket in the water. The students claimed to be good swimmers even after hearing this. They signed a release that included an exculpatory clause related to the university.

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elevatorIn a recent Georgia appellate case, the plaintiff had been hurt while riding an elevator at a medical center. He sued the medical center and the contractor that maintained the elevator.

The case arose when the plaintiff went to pick up his wife and daughter from the seventh floor. The daughter was recovering from surgery on the prior day. The plaintiff and another person got into the third elevator and pushed buttons for their floors. The elevator went up to the third or fourth floor but then crashed downward into something solid. The plaintiff grabbed a handrail that stopped him from falling to the floor of the elevator. The other passenger tried to get the door open and pushed the emergency button.

The person who came to help them told them the elevator can was 1 1/2 feet below the floor level, and he was going to get assistance. Twenty minutes later, several people were helping, and from inside the elevator, the passengers could feel shaking. The floors opened five minutes later, with the elevator on the ninth floor and the car level with the floor. The plaintiff’s neck, knees, legs, and feet were hurt in the process.

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sinksIn a recent Georgia appellate case, the plaintiff sued the defendant for damages after slipping and falling in the chain restaurant that he owned and operated. He moved for summary judgment under OCGA § 9-11-56, which was granted.

The case arose when the plaintiff went to the defendant’s restaurant for dinner in 2013. She ate and then went to the restroom, where she used the handicap stall. She used it and stayed in the stall for 5-10 minutes before leaving. After two steps, she fell and twisted her ankle and hurt her back. She testified at deposition that she’d slipped on water, but she also testified there wasn’t water on the floor when she went into the restroom and went into the bathroom stall.

The appellate court explained that simply falling wasn’t enough to hold a property owner liable. Instead, to show liability in a premises liability claim, the plaintiff needs to demonstrate superior knowledge by the property owner or occupier. This superior knowledge can be actual or constructive. In this case, the plaintiff didn’t claim that the defendant had actual knowledge of the water on the floor but only that there were factual questions about whether the restaurant owner had constructive knowledge.

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Cervical_Collar_Emergency-300x159

At the beginning of this year, the Georgia Court of Appeals issued a ruling in Thomas v. Tenet Healthsystem GB, Inc., Ga. Ct. App. (2017), that clarified in which sorts of cases a subsequent negligence claim in a medical negligence case can relate back to the initial filing.

In May of 2012, the plaintiff was involved in an automobile accident, and transported on a backboard by the paramedics to the emergency room for treatment of her injuries. Upon arrival to the defendant hospital’s emergency room, her treating doctor ordered a CT scan in order to determine whether she had incurred any spinal injuries. The results of the scan were then sent to a second doctor, who read them in his home and purportedly communicated to the treating doctor his opinion that there had been no cervical spinal injury. The treating doctor then reportedly instructed a nurse to remove the cervical spine collar that the plaintiff had on, and to discharge her from the hospital.

When the plaintiff’s relative arrived to pick her up from the hospital, he reportedly found her slumped over and unresponsive in a wheelchair. Following re-examination, it was determined that she did have a fracture in her cervical spine. It was believed that the removal of the cervical collar caused a cervical fracture to displace, thus resulting in spinal cord damage, rendering the plaintiff quadriplegic.

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