Atlanta Injury Attorney Blog

blue-lit-wall-1527951-1918x1275Under the Fair Labor Standards Act of 1938 (“FLSA”), virtually every business operating in America is required to furnish its employees the federal minimum wage and overtime compensation. There are a number of exceptions to the FLSA, however, and many employers will try to cubbyhole their employees into one of the many available exemptions. Among the exceptions most often cited by employers is the one that applies to “independent contractors.” Indeed, many employers will classify their employees as independent contractors and, in some cases, have them sign form agreements purportedly manifesting an intent to be bound by the terms of an independent contractor relationship. This dynamic was recently addressed by an Atlanta federal district court in Henderson v. 1400 Northside Drive, Inc., a case with facts involving whether strippers were the employees of a strip club.

Henderson was brought by a group of male adult dancers who worked at an adult nightclub that was owned and operated by 1400 Northside Drive, Inc. Each dancer was required to sign an “Independent Contractor Agreement,” which generally stated that the dancer understood that his compensation would be derived solely from customer gratuities and that the club was not responsible for compensating the dancer in any way. The dancers argued that they were misclassified as independent contractors and are therefore entitled to unpaid minimum wage and overtime compensation from the club.

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georgia state patrol liability Car accidents with police officers can present numerous challenges for those injured in the crash. Chief among these challenges is the issue of sovereign immunity, which can make it quite difficult to pursue a claim against a negligent officer if they are operating within the course and scope of their duties. If an officer is in pursuit of a suspect or responding to a call for help and their blue lights are flashing, it is hard to bring an injury claim if you are struck and injured by a police cruiser during such an incident. Likewise, injuries resulting from crashes resulting during a police pursuit have an entire body of law protecting the officer if they are following department guidelines.

A recent Georgia case, however, illustrates one situation in which a claim is not be barred by immunity issues. Last week, two Paulding County teenagers were killed in a wreck involving a Georgia State Trooper traveling at a high speed for no apparent reason.  The crash occurred on the night of Saturday October 3 on U.S. 27 northbound in Carroll County. The trooper, who was not on an emergency call, not responding to an accident, and not trying to stop a vehicle, was merely on patrol traveling over 90 mph on a stretch of road where the speed limit is 55pmh.  Data from the crash shows that he was going 91 mph only five second before the fatal impact. The unfortunate victims in this tragedy were sitting in a Nissan Sentra, attempting to turn left in front of the path of the police cruiser, clearly not realizing that the trooper was traveling at such a high rate of speed. The trooper applied his brakes in an attempt to avoid the impact and had slowed to 68 mph just prior to the collision, but it was too little too late.  Both backseat passengers in the Nissan were killed and the two other teenagers suffered serious injuries.

Sovereign immunity is waived for most vehicle accidents involving cities, counties and the state. State claims in particular are governed by the Georgia Tort Claims Act. The cap for GTCA claims is $1,000,000. See GTCA Liability Policy.

OCGA 50-21-26(a)(1) requires that sufficient warning or “ante litem” notice be delivered to the State within one year of the incident. The State specifically carves out things that it can never be sued for:

“50-21-24. Exceptions to state liability (Edited for relevance)

The state shall have no liability for losses resulting from:

(1) An act or omission by a state officer or employee exercising due care in the execution of a statute, regulation, rule, or ordinance, whether or not such statute, regulation, rule, or ordinance is valid;

(2) The exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused;

(4) Legislative, judicial, quasi-judicial, or prosecutorial action or inaction;

(5) Administrative action or inaction of a legislative, quasi-legislative, judicial, or quasi-judicial nature;

(6) Civil disturbance, riot, insurrection, or rebellion or the failure to provide, or the method of providing, law enforcement, police, or fire protection;

(7) Assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, or interference with contractual rights;

(8) Inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety;

(9) Licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization;

(10) The plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design;”
Certainly, the nature of the accident presents some comparative negligence problems. The report initially claimed the Sentra failed to yield while turning left. However, further investigation revealed the trooper’s excessive speed was also a contributing factor. Any jury will understand that this crash would have never happened had it not been for the negligence of the officer. Though he has since been fired from the force, I would anticipate that his involvement with the subsequent civil actions that will be brought against him is just beginning.

truck-delivery-1237583-1920x1440In most cases involving negligent security, a resident of a building or patron of a business brings suit against a party for negligently failing to provide adequate security under particular circumstances. However, in a recent case, Fagg v. United States, the court addressed a more peculiar situation involving a contracted worker who brought suit alleging that a post office in suburban Atlanta failed to provide sufficient security and, as a result, caused him to be attacked while making a delivery.

Fagg arose from a robbery at a post office in Conley, Georgia that occurred on December 20, 2013. The plaintiff is an employee of Davosa Transport Service Trucking Company, which is contracted by the United States Postal Service (“USPS”) to transport mail. The plaintiff alleged that on December 20, 2013, he arrived at the post office to retrieve mail, and when he exited the truck in order to load it, two assailants confronted him. During the course of the robbery, the plaintiff was shot. The plaintiff alleged that this was not the first robbery at this particular post office and that as a result of prior armed robberies at this site, there was a policy requiring armed guards to accompany mail transporters at this post office. Nevertheless, the plaintiff alleged that the policy was halted shortly before his armed robbery. The plaintiff then brought suit against the government, asserting claims for negligence predicated on the post office’s failure to provide adequate security. The government moved to dismiss, arguing that the plaintiff’s claims were barred by sovereign immunity.

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artificial-lake-2-1535244-1920x1440The guiding principle of negligence liability is that one should be accountable for injuries occasioned by a failure to act with reasonable care. Since reasonableness is the guiding principle for negligence liability, it follows that one should not be held liable when the events leading to the injury, even if foreseeable in theory, are not likely to occur such that there is no reasonable expectation that one should prepare for them. This underlying principle was at the heart of a recent decision from the Georgia Court of Appeals, Allan v. Jefferson Lakeside L.P., which addressed whether the owner of an apartment complex could be liable for failing to install guardrails around an artificial lake on the property.

The tragic events at issue in this case occurred in May 1, 2010 at an apartment complex owned by the defendant. The plaintiffs had moved into the complex a few months earlier, and on this day the uncle of the plaintiffs’ son came to pick up the child and the child’s father, who was the brother of the driver. This was not the uncle’s first visit to the complex. While driving down the access road with his brother and the child, who was strapped in the backseat, he stopped on the side of the access road in order to retrieve cigarettes from the glove compartment. When his brother opened the glove compartment, the driver saw his navigation system and asked his brother to hand it to him. While he was mounting the navigation system on the dashboard, the driver unintentionally released his foot from the brake and pressed the accelerator, which caused the car to jump the curb and go down a slope that led to an artificial lake that was about only 14 feet from the curb. The car submerged, and although the driver and his brother were able to escape, the child drowned.

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In the “what were you thinking” department, the Supreme Court gave the final smackdown to a lawyer who filed a lawsuit after the 2 year statute of limitations after a bus crash against the Georgia Regional Transportation Agency. The lawyer tried to wiggle out of missing the Statute by arguing that one part of OCGA § 50–21–27(e) says that “All provisions relating to the tolling of limitations of actions, as provided elsewhere in this Code, shall apply to causes of action brought pursuant to [the GTCA].”  The lazy plaintiff’s lawyer tried to argue that the “all provisions” language meant any provision anywhere in the Georgia Code.  She argued that OCGA § 36–33–5(d)3 , a tolling provision for lawsuits against municipal corporations should apply and, because the State never responded to her ante litem notice, she argued, the Statute of Limitations was tolled and the suit could proceed.

Although the trial court bought her argument, the Court of Appeals and the Georgia Supreme Court gave it the royal beat down. You can read the case, Foster v. Georgia Regional Transportation Agency.

Because we handle car accidents as part of our daily business, we think about insurance policies and pricing often. photo_1473_20060425Most consumers, however, give little thought to their insurance needs or even which company they send their premiums to every month. I get the sense that most people pick one company (probably the one their parents have used for decades) early on in their driving years and stick with that company for many years. However, a new push from a consumer advocacy group suggests that being loyal to one insurance company is likely not the best strategy to get the best bang for your buck.

Earlier this week, the Consumer Federation of America (CFA) publicly announced its position in support of a ban on an insurance pricing tactic known as “price optimization.” This pricing strategy looks at data designed to measure a customer’s loyalty to a particular insurance company and whether that customer is likely to stay with the same insurer, even if being charged more. According to CFA, the result of this data mining has allowed insurance companies to charge long-time customers higher rates because they know they can get away with it. Meanwhile, customers deemed more likely to shop around are given a better deal. It seems as though loyalty doesn’t always pay.

CFA’s position is that this price optimization is inherently unfair to consumers and should be prohibited. According to the group’s statement, “the purpose of price optimization is to extract as much profit as possible from policyholders who are often required to purchase insurance policies.”

So far, ten states have banned the practice. Unfortunately for Georgians, CFA told the AJC that repeated calls to Georgia’s Insurance Commissioner’s Office to take action have led nowhere. This comes in the face on another report from the AJC that Georgia tops the national rankings for price increases in the price of auto insurance. Clearly, Georgia consumers would be well-served by shopping around and comparing rates to make sure their loyalty isn’t hurting them.

Speed Cameras: Coming to a Road Near You?

Last week, detailed research from the Insurance Institute of Highway Safety demonstrated a new program aimed at saving thousands of American lives each year. The idea is simple- end speeding on our roads. Speed is a factor in over 50% of all fatal crash reports. Curtail speeding, and you reduce the likelihood of a deadly crash.

The program presented in this research concerned a system of portable, automated speed cameras.  These cameras have been utilized in Montgomery County, Maryland since 2007.  Since their implementation, the cameras have been credited with reducing the urge to drive 10mph above the posted speed limit by 59% when compared with counties not using these same devices.  The study concludes that if these cameras were introduced nationwide, more than 21,000 deaths or catastrophic injuries could be prevented.

In Montgomery County, many of cameras were moved frequently along the most well-traveled corridors to keep drivers guessing about where they could be caught going a little too fast.  This study has shown that automated speeding enforcement can be an extremely effective deterrent to speeding.  In fact, 76% of the drivers surveyed admitted that the cameras had forced them to slow down.

Predictably, though, the study has brought out its fair share of detractors.  Some say the cameras are only being used to boost revenue and have little to do with safety.  Others may think it’s a little too much “Big Brother” watching their driving.  Indeed, twelve state legislatures have already voted to ban the use of speed cameras.

Still, this study’s findings are hard to ignore, and it’s time we all took a look at these cameras as a serious tool in the fight to increase safety on our roads.  To date, only 138 jurisdictions in the United States have employed these cameras, but we can hope that many more will be on board in the wake of this new data.

How to Start Your Own

Law Firm

small s

Chris Simon

The Simon Law Firm, PC

Should I Open a Law Firm?

  1. Where will you get clients from?
  2. Are you experienced enough to properly serve them?
  3. Fill out a financial plan and figure out how much it will cost you to a) get started and b) operate monthly (your “nut”)
  4. Courtesy of the ABA expenses
  5. What are you going to bill an hour? How many hours must you bill to be able to meet the monthly nut? How many months can you last on just that. What is your burn rate? What will it take to become profitable?
  6. Here is a more detailed budget:



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A recent op-ed in the New York Times has highlighted a problem trial lawyers and our clients have known for years- major reforms and updated regulation are needed in our nation’s trucking industry. According to this article, more people will die in 2015 from traffic wrecks involving large trucks than in all of the domestic commercial airline crashes over the past 45 years- an alarming statistic, especially when you stop to consider just how much emphasis is placed on airline safety when compared to tractor-trailers and other large trucks.

Congress has consistently resisted tougher restrictions on trucking companies, even in the face of disturbing data- (1) the death toll in truck crashes rose 17 percent from 2009 to 2013; (2) fatalities in truck crashes have risen four years in a row, reaching 3,964 in 2013; and (3) the CDC has estimated the cost of truck and bus crashes to have a $99 billion impact on the economy.

Furthermore, while trucks accounted for less than 10 percent of total miles traveled during 2013, the N.T.S.B. recently reported that they were involved in one in eight of all fatal accidents.

The trucking industry’s lobby insists that it needs longer work weeks for its drivers and bigger vehicles so that fewer trucks will be present on our roads. The trucking industry also bases its opposition to safety-rule changes on money, saying that increasing costs will hurt profits and raise rates for shippers and, ultimately, consumers. Higher safety standards and shorter work weeks may increase freight costs to some degree, but some of those standards would also save carriers money in the long run through lower insurance rates and fewer damage claims. To say that improvements in safety regulations would cause the $700 billion industry to take a huge hit seems a little disingenuous when compared to the benefits of ensuring the safety of drivers on our roads.

Of course, the trucking industry is crucial to our economic well-being, but Congress must act to make it clear that safety has to be the higher priority. If you have any doubt ask Tracey Morgan what he thinks about exhausted truck drivers. The driver who seriously injured him and killed his good friend had driven 800 miles from Georgia to START his trip in New England. He had been awake for over 20 hours at the time of the crash.