Atlanta Injury Attorney Blog

modern busAlthough state courts most often serve as the venue for negligence cases, there are certain occasions when a negligence claim may be heard in a federal court. Among these subclasses of state law negligence cases that may be heard in federal courts are those involving “diverse” parties. When all parties are diverse, and the amount in controversy in the case exceeds $75,000, the case may be heard in federal court.  However, although these cases may be heard in federal court, they may still be heard in state courts, and plaintiffs will often elect to file suit in a state court for a variety of reasons. In certain instances, however, a defendant may find the plaintiff’s motive for filing in state court to be tactical or see a possible benefit to be derived from defending the claim in a federal forum and, accordingly, seek removal to a federal court. Following removal, dissatisfied plaintiffs will often try to devise a way to have a case remanded to the state court where they originally filed the action. These varied procedural games associated with removal and remand were raised in a recent decision by an Atlanta federal court, Threatt v. Jasenauskas.

Threatt started with a motor vehicle accident involving a MARTA bus and a tractor trailer. The plaintiff, who was operating the bus, was driving along Continental Way in DeKalb County when a tractor trailer collided with the bus. The tractor trailer was owned by Atlantic Transport, Inc. and insured by National Casualty Company. Following the accident, the plaintiff brought suit against the driver of the tractor trailer as well as Atlantic Transport and National Casualty Company. Atlantic Transport and National Casualty Company, however, filed a notice of removal, arguing that the case should be heard in federal court. Specifically, these defendants asserted that since the plaintiff alleged damages in excess of $75,000, and complete diversity existed between the plaintiff and the defendants, the case should be heard in federal court.

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officeLitigation funding from third-party sources is nothing new in personal injury cases, where injured victims, out of work and short on cash, have been permitted to borrow against the expected return on their pending cases for years now. But what about the prospect of investing money in someone else’s legal proceeding? A new report from the New York Times magazine has highlighted this growing trend, using a classic David v. Goliath story in the process.
At the heart of this news story is a lawsuit involving Miller UK, a small British company, and Caterpillar, the American construction equipment behemoth. Their dispute centers over a particular model of equipment and the intellectual property involved in its design.  The unique part of this dispute lies with the method Miller is using to fund its side of the case.  Rather than paying its legal team straight from the company coffers, Miller has turned to an outside entity called Arena Consulting to front the money for its legal costs.  If Miller is unsuccessful in the suit, Arena will walk away empty-handed.  However, if Miller wins, Arena will stand to gain a significant portion of the proceeds, perhaps into the tens of millions of dollars.
This type of litigation finance is relatively new, but it is already causing a great deal of controversy.  Those in favor argue that this outside funding allows the little guy to have its day in court when they could never afford to fund such a case on its own, particularly when going up against such well-funded opposition.  Nevertheless, detractors of this practice worry that this type of investment could drive the already high costs of our legal system even higher and that the interests of investors and litigants may not always be perfectly aligned.  Whatever the outcome of the Miller case, this topic is just beginning to pique the interest of legal scholars, and we should expect a great deal of debate on its merits in the years to come.

Because we handle a large number of premises liability cases, we frequently get calls on cases that involve injuries or death from children playing in residential swimming pools. Under most circumstances, trespassers on someone else’s land are going to find it very difficult to recover for any injury suffered while on that property. However, most homeowners would be surprised to hear that they could be held liable if a trespassing child made their way into their land and drowned in the backyard swimming pool.

The legal doctrine that provides for this exception is called the Attractive Nuisance Doctrine. Under this exception to the normal rules about trespassers, Georgia Courts have recognized that children don’t always have the capacity to understand unfamiliar dangers or appreciate the risks presented by unfamiliar property. Under this particular doctrine, a landowner has a duty to keep their property free of dangers that are accessible and could cause harm to trespassing children. Gregory v. Johnson, 249 Ga. 151 (1982) is a Georgia Supreme Court case that says this doctrine also applies to swimming pools.

So when is a homeowner with a swimming pool responsible when a neighborhood kid sneaks in and accidentally drowns in the pool? The Gregory Court says five conditions have to be met:

truck drivingIt goes without saying that success in a lawsuit often depends on the evidence. Although a plaintiff is not always certain that he or she will have access to the best possible evidence, one does expect that the opposing party will not, through either neglect or willful obstruction, allow material evidence to be lost. Even though the effects of lost evidence are not easy to cure, court do have means of penalizing parties that fail to comply with their obligations to preserve  evidence. For instance, in a recent decision, O’Berry v. Turner, a federal judge imposed sanctions on several defendants in a tractor-trailer accident case for failing to produce material related to the driver and tractor-trailer involved in the accident.

Turner started with a June 2013 traffic accident in Homerville, Georgia. While proceeding west along Dame Avenue in Homerville, a vehicle being operated by one of the plaintiffs in this action was struck by a tractor-trailer, which the driver of the car alleged swerved into his lane without warning. The collision caused the car to veer off the road and into a light post. As a result of the accident, the driver and another occupant in the vehicle sustained various injuries. The truck was being operated by an employee acting on behalf of ADM Trucking, Inc. and Archer Daniels Midland Company. Following the accident, the driver and the other occupant brought suit against the driver of the tractor-trailer, ADM, and Archer Daniels. In August 2013, counsel for the plaintiffs sent a spoliation letter to ADM, requesting that the defendants make an effort to preserve various evidence related to the driver and the trailer involved in the accident. Counsel for the defendants responded to this request and stated that the defendants would take all measures necessary to assure the preservation of pertinent evidence. Eventually, the plaintiffs made a discovery request to the defendant, requesting, inter alia, the truck driver’s driver log and all electronically stored information related to the tractor-trailer involved in the accident. The defendants failed to comply with the request, and the plaintiffs moved for sanctions against ADM and Archer Daniels.

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snapOur firm represented Heather McCarty, a passenger in a Mercedes driven by a young driver who was using the Snapchat speedometer filter to get a selfie going 100 mph. Heather, who was pregnant at the time begged the driver to slow down, but the driver rear ended another vehicle at high speed. The crash injured both McCarty and the other driver, Wentworth Maynard. Our firm owner, Christopher Simon has analyzed the case that other lawyers have filed against the driver and Snapchat and it provides thought-proving analysis on how we want app developers to approach product design going forward.

Although medical mistakes resulting from faulty equipment or inadvertent human errors are not particularly uncommon, many do not expect intentional malfeasance on the part of medical professionals. However, even if a situation is not anticipated, it certainly does not mean it’s impossible. Indeed, in a recent decision, Jefferson v. Houston Hosps., Inc., the Georgia Court of Appeals addressed an interesting situation regarding the liability of a medical facility for its employee’s willful forgery of patients’ mammography results.

Jefferson concerned the forgery of three patients’ mammography results at a medical facility in Houston County, Georgia. All three patients received mammograms at the facility in 2009, and all three mammograms were performed by the same mammography technologist. Although the technologist was supposed to transfer mammography images to a radiologist for interpretation, the technologist testified that she used passwords she learned through her training duties to enter the system and forge mammogram results. The technologist admitted that she understood this conduct to be beyond the scope of her duties, and she ultimately pled guilty to criminal charges associated with this conduct. After the fraud was discovered, the medical facility issued a press release stating that an employee had processed a number of mammogram results without procuring a reading from a radiologist and instructed patients to receive new mammograms. All three plaintiffs returned for new mammograms, all of which were found to be normal. The plaintiffs then brought suit against the various defendants, asserting claims for, inter alia, fraud, intentional infliction of emotional distress, breach of contract, negligence, negligence per se, and conversion. The hospital ultimately moved for summary judgment, which the trial court granted, finding that:  (1) the technologist did not act within the scope of her duties, as is necessary for the hospital to be vicariously liable for the technologist’s conduct; (2) the plaintiffs failed to adduce sufficient evidence to support a finding of intentional infliction of emotional distress; and (3) none of the plaintiffs suffered actual damages as a result of the technologist’s conduct. Following the trial court’s grant of summary judgment, all the plaintiffs appealed.

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When one hears that a legal dispute has arisen between a landlord and tenant, one tends to think that the issues are related to rent. However, a variety of legal conundrums, including those related to negligence, can arise between a landlord and tenant. For instance, in a recent decision, McCarney v. PA Lex Glen, LLC, the Georgia Court of Appeals addressed an interesting issue regarding whether a landlord can be held liable for a persistent mold problem that caused harm to a tenant’s health.

The facts at issue in McCarney started in August 2012, when the plaintiff moved into an apartment complex in Sandy Spring, Georgia. The plaintiff resided at the complex until September 2013.  In or around late August of that year, he spoke with tenants who lived above him about possible mold in the building. On that day, the plaintiff inspected the ventilation in his apartment and found what was described as a black substance. The plaintiff’s roommate also searched and found that the air conditioning system was leaking into his closet and that the wall of the closet was covered in a large swatch of the black substance. The records showed that the plaintiff’s apartment also suffered from a variety of other leaking and cooling issues. On September 3, the plaintiff e-mailed the management company of the apartment complex, demanding that the mold problem be abated. An agent for the management company came to the apartment and later testified that he did not see any mold but that he did, however, hire a mold contamination company to perform an inspection and authorized a duct replacement if necessary. The plaintiff independently hired a mold analysis company to perform an inspection. On September 25, the plaintiff notified the management company that he was canceling his lease because of mold contamination. Earlier in his tenancy at the apartment complex, the plaintiff had been receiving several treatments for sinus aliments, including a sinus surgery.

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Lawsuits against the government, either state or federal, often come with a variety of specialized procedural hurdles. In Georgia, among these particular requirements that catch hapless litigants by surprise are the many special notice requirements that preclude a litigant from bringing suit against a state entity unless he or she gives proper notice of the suit. For instance, in a recent decision, Estate of Leonard, the Georgia Court of Appeals affirmed a trial court ruling holding that one unfortunate plaintiff was barred from bringing a tort suit against a county government for failing to adhere to the notice requirements under O.C.G.A. § 36-11-1.

Leonard arose from a collision on January 30, 2012. The plaintiff, an 82-year-old man, was riding on a bus owned by Whitfield County, Georgia. The plaintiff, who was sitting in a wheelchair that was secured by straps specifically designed to hold wheelchair-bound passengers, alleged that when the driver of the bus made a high speed turn, it caused the straps to detach, which, in turn, caused his wheelchair to tip over. As a result of the fall, the plaintiff sustained two broken legs that required surgery. Thereafter, the plaintiff was confined to a managed care facility. The plaintiff’s attorney sent notice to the County Attorney for Whitfield County and then filed suit on January 21, 2014. The county answered the complaint, asserting, inter alia, a defense that the plaintiff did not comply with the ante litem notice requirements provided under O.C.G.A. § 36-11-1. Following discovery, the county moved for summary judgment. The trial court denied this motion for summary judgment, finding that issues of fact precluded a finding that notice had not been accomplished. Following the denial of the motion for summary judgment, counsel for the plaintiff served a copy of the complaint on several of the county commissioners. Nevertheless, the county filed a second motion for summary judgment and included an affidavit from the county attorney stating that at all times material to this action, he had not been authorized by the county commissioners to accept notice of suit on behalf of the county. The trial court granted the motion for summary judgment, and the current appeal followed. During the course of the litigation, the plaintiff died, and the executor of his estate was substituted as the plaintiff.

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As strides in medical treatments and technologies continue to be made, the life expectancy of Americans continues to rise. However, notwithstanding the benefits associated with increased life expectancy, many of those of advanced age will need living assistance of some variety at some point, including hospice care in the later stages of life. Unfortunately, allegations associated with the mistreatment of this vulnerable population are not uncommon, and courts in our state often find themselves tasked with the unenviable job of addressing liability for injuries to our elderly population. Indeed, in a recent decision, Carter v. VistaCARE, LLC, the Court of Appeals addressed a pair of trial court orders dismissing claims of fraud, negligence, and battery against a local hospice care provider.

This litigation was initially brought by a resident of the hospice facility operated by the defendant in this case. During the course of litigation, the plaintiff died, and her estate was substituted as plaintiff in the action. Following the substitution of litigating party, the estate voluntarily dismissed the action. About six months later, the estate filed a new complaint asserting claims for fraud, negligence, and battery. In relevant part, the new complaint alleged that the decedent’s primary care physician had ordered that she be given home health care services but that the defendant took it upon itself to place the decedent in hospice care, even though the decedent did not qualify for such services. The estate claimed that the provision of hospice services, including the administration of morphine, caused damage to the decedent’s health and ultimately resulted in her hospitalization. The defendant moved to dismiss, which the trial court granted with respect to the claims of battery and negligence claims but denied with respect to the fraud claim. The defendant later moved for summary judgment on the remaining fraud claim, and in a subsequent order the trial court granted the motion for summary judgment on that claim. Following dismissal of the fraud claim, the estate brought the instant appeal, arguing that the trial court erred in dismissing the claims.
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Assumption of risk is among the most commonly invoked defenses in negligence cases. Given that the defense has existed as long as the common law and is so frequently raised by defendants in negligence cases, courts have been forced to address the contours of the defense’s applicability for hundreds of years.  In a recent decision, Watson v. Reg’l First Care, Inc., the Georgia Court of Appeals added another chapter to its assumption of risk jurisprudence by addressing whether a patient assumed the risk of injury when he chose to sit on an examination table at a local medical clinic.

The plaintiff in Watson was a patient at the defendant medical clinic, where he was receiving treatment for bronchitis. Following a visit to the clinic on April 16, the plaintiff had a coughing episode that caused him to black out and hit his head on a nightstand in his home. On May 2, the plaintiff returned to the medical clinic for further bronchitis treatment. Following his arrival at the clinic, the plaintiff was taken to an examination room by a medical assistant. The medical assistant instructed the plaintiff to sit on an examination table, measured his blood pressure, and left to find a physician. While he was having his blood pressure measured, the plaintiff told the medical assistant that he had fainted as a result of coughing spells on two prior occasions. While waiting for the doctor to arrive, the plaintiff had another coughing fit that caused him to black out and fall to the floor.

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