Articles Posted in Negligence

For soon-to-be parents, quality prenatal care is of the utmost importance. Although finding quality prenatal health care providers is often a difficult undertaking for many people, the task can be even more difficult for women who find themselves behind bars during a pregnancy. Indeed, in a recent decision, Durden v. NaphCARE, Inc., a Georgia federal district court needed to address a medical malpractice claim brought by a female inmate who suffered a stillborn birth while serving time in a detention facility.

The plaintiff in this action learned that she was pregnant in November 2011, shortly before she was to report to Newton County Detention Center (“NCDC”) to serve a sentence for a state court conviction. The principal defendant in this action, NaphCARE, Inc., is a contractor hired by Newton County to provide healthcare and nursing services to inmates at NCDC. The plaintiff had her first appointment with the obstetrician responsible for her care during the course of her pregnancy and incarceration on January 17, 2012. During a visit with the obstetrician on March 13, the plaintiff was diagnosed with an incompetent cervix, a condition that if left untreated could result in a miscarriage or premature delivery. The plaintiff was admitted to Newton Medical Center, where she underwent a procedure involving the insertion of a cervical cerclage to treat the incompetent cervix.  The plaintiff was discharged two days thereafter and returned to the infirmary at NCDC. On the afternoon of the day of her return to the infirmary, the plaintiff began to complain of vaginal discharge. The obstetrician was contacted, and he instructed nurses at the infirmary to continue monitoring the plaintiff’s condition.

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Jury neutrality is a cornerstone principle of American jurisprudence. Accordingly, prior to trial, litigants are entitled to question jurors about a variety of topics that may weigh on each prospective juror’s ability to render judgment in a fair manner. In auto accident cases, specifically, jurors are typically questioned about various issues, including their relationship with the parties and previous driving and litigation histories. Although such questioning does not often lead to disqualification, a failure to permit a sufficient inquiry can lead to the rejection of the jury’s ultimate verdict. For instance, in a recent decision, Mordecai v. Cain, the Georgia Court of Appeals vacated a jury’s ruling in an auto accident dispute because the trial court failed to allow particular questioning regarding the prospective jurors’ relationships to a non-party auto insurer.

Mordecai started with an auto accident caused by the defendant, who was driving in the wrong direction on a local roadway when his vehicle collided with the car being operated by the plaintiff. Prior to trial, the defendant and the plaintiff’s uninsured motorist provider moved to exclude all questions related to the prospective jurors’ relationships with the insurance provider unless a juror stated when asked about employment that he or she was currently employed by an insurance company. Alternatively, they argued that if jurors were to be questioned about their relationships with the insurance company, it should be done in the jury assembly area prior to trial. The trial court concurred with the defendant and auto insurer and allowed questions regarding connections to the auto insurer to only be performed by a jury assembly administrator. The administrator testified that she asked the prospective jurors if they were “an officer, employee, stockholder, agent, director or policyholder of State Farm Automobile Mutual Insurance Holding” and that all prospective jurors who answered “yes” were excluded from the panel ultimately sent to the court for voir dire. The case proceeded to trial, after which a verdict was rendered. Finding the judgment unsatisfactory, the plaintiff appealed, arguing, among other things, that the trial court’s preclusion of in-court questioning about the jurors’ connection to State Farm was reversible error.

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In many of the rural parts of our state, it’s not uncommon for property owners to burn vegetation or other materials on their property. Although these burnings are regulated and are typically performed without incident, they do pose some hazards. Indeed, in a recent decision, Grant v. Georgia Forestry Comm., the Georgia Court of Appeals needed to determine what, if any, liability existed against the Georgia Forestry Commission for an auto accident caused, in part, by smoke from a regulated burning.

The accident at issue in this case occurred in the early morning of March 17, 2011. On the day before, the Georgia Forestry Commission (“GFC”) issued a burn permit to a property owner who lived near Interstate 16 and wished to burn vegetation on his land. At around 3 p.m. that day, the local Chief Ranger of the Bulloch County GFC fire protection unit received notice of a fire on that property. When he arrived, the ranger observed the fire burning out of control and initiated measures to contain and monitor the fire. Among these measures were the posting of smoke/fog warning signs and the placement of local deputies to handle traffic issues. At around 7 p.m. that day, the Chief Ranger determined that the blaze had been contained, although the burned area continued to smoke. The Chief Ranger saw the smoke drifting toward the southeast away from I-16, which was about three-quarters of a mile to the north of the closest part of the burn area, and he reported seeing no visibility issues on either I-16 or another local thoroughfare. The Chief Ranger nevertheless called 911 to provide notice of smoke in the area and directed the the local county sheriff to continue to monitor the situation. At around 5 p.m. that day, a local official for the Georgia Department of Transportation (“GDOT”) also responded to notice of the fire and placed warning signs in both directions on a local state road. The GDOT official returned to the area at 7:45 and reported no visibility issues but left the signs in place.

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Situated just outside Atlanta, Stone Mountain Park serves as a venue for many important Metro Atlanta outdoor events. Although most are characterized only by revelry, not all go off without incident. Indeed, one such unfortunate event was at the heart of a recent decision from the Georgia Court of Appeals, Stone Mountain Mem. Assn. v. Amestoy, which involved the untimely death of a bicyclist at Stone Mountain.

Viewed in a light favorable to the plaintiff, the widow of the deceased bicyclist, the evidence is as follows. At around 7:30 a.m. on the day of the bicyclist’s death, members of the Stone Mountain Memorial Association Public Safety Department were making preparations on Robert E. Lee Blvd. in anticipation for a 5K run that was set to begin at 8 a.m. These preparations included the placement of side-by-side barricades across the southbound lanes of Robert E. Lee Blvd. The barricade had orange and white strips and bore “do not enter” signs. An official was stationed near the barricade, but he left suddenly at one point in order to urinate. While the official was in the restroom, a different department official saw two bicyclists maneuver around the barricades. About five to ten minutes later, the deceased man was observed riding his bike toward the same barricades at what one witness described as a “normal” speed. The deceased man had his head down, and as he traveled between the barricades, his bike made contact with one of them, causing him to be thrown off. Although he was wearing a helmet, the victim suffered head trauma, which ultimately led to his death.

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When confronted with emergencies, even the most sensible people often fail to act with the reasonableness they would display in calmer circumstances. Given that the key inquiry in ascertaining negligence liability is whether one’s conduct was reasonable under the circumstances, it follows that the existence of an emergency should factor into the calculus of establishing whether someone was negligent. However, which sorts of circumstances constitute an “emergency,” permitting the application of this emergency situation defense? This question was at the heart of a recent decision from the Georgia Court of Appeals, Smith v. Norfolk S. R.R. Co., which involved the application of the emergency situation rule to a railroad accident.

The accident at issue in Smith occurred on March 12, 2013. On that day, a pickup truck with two occupants was traveling southbound along Buford Highway. According to an eyewitness, the pickup truck failed to slow as it approached the intersection of Buford Highway and Amwiler Road. As the light turned red, the pickup truck proceeded through the intersection, where it collided with a van that was making a left turn onto Amwiler Road from the northbound lanes of Buford Highway. The collision caused both vehicles to veer off course. The van settled on a grassy area near Buford Highway, and the pickup came to a stop on the railroad tracks that cross Amwiler. Shortly after the pickup truck came to a rest on the tracks, the crossing signals activated, and the crossing gates closed for an approaching train. Other vehicles honked their horns to warn the occupants of the oncoming train.

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In an earlier post, we looked at an intriguing Court of Appeals decision in which the Court ruled that when a dog had a non-existent or nominal fair market value, the damages recoverable for the negligent death of a pet were limited to the actual value of the pet, which included economic damages such as veterinary expenses. However, in a recent opinion, the Supreme Court of Georgia reversed, in part, the Court of Appeals’ limitations on the appropriate measure of damages.

As a reminder, this case arose from the the death of a mixed-breed dachshund who was owned by the plaintiffs. The dachshund’s death coincided with the dog’s boarding at an Atlanta kennel. The dachshund had been boarded at the kennel for 10 days, along with the plaintiff’s mixed-breed Labrador retriever, who had been prescribed an anti-inflammatory medication. The plaintiff had given personnel at the kennel the medication along with instructions detailing how it should be administered to the Labrador retriever. Shortly after being returned to the plaintiff, the dachshund suffered acute renal failure, which the plaintiff alleged was caused by the kennel’s staff negligently administering the medication intended for the Labrador retriever to the much smaller dachshund. The dachshund underwent various veterinary interventions over the next nine months but ultimately died.

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Courts in America are generally known for their broad discovery rules. Indeed, litigants in American courts, both state and federal, have access to a far wider scope of information than their peers in foreign legal systems. Notwithstanding the expansive breadth of American discovery rules, courts play little role in the exchange of information, leading some litigants to engage in brinkmanship during the discovery process. For instance, in a recent case, Venator v. Interstate Resources, Inc., a Georgia federal magistrate judge was forced to resolve a discovery dispute involving a defendant refusing to disclose supervisor evaluations related to the alleged wrongful death of a tractor-trailer driver.

The death at the heart of Venator occurred in November 2013. The plaintiff in this case was the widow of a tractor-trailer driver who on the 27th of that month arrived at a warehouse owned by Interstate Paper, LLC. Following his arrival at the warehouse, the driver asked an employee at Interstate to assist him in removing a faulty mud flap from the tractor-trailer. The employee agreed and used a fork lift to aid in the removal of the flap. The facts about what occurred afterward remain in dispute, but somehow during the removal process, the driver became pinned between the fork lift and the tractor-trailer. As a result, the driver suffered injuries and died. Following this tragic event, the decedent’s widow then initiated the current suit against Interstate and the employee operating the fork lift, alleging various claims sounding in negligence.

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Dealing with the suicide of a loved one is always a tremendously difficult task. Unfortunately for some, this pain and grief can, in certain circumstances, be exacerbated by an indication that the acts of another party motivated the suicide. Although the conduct of others can clearly contribute to someone’s decision to end his or her life, the law often does not provide for liability in most circumstances. A recent decision from Georgia’s Court of Appeals, City of Richmond Hill v. Maia, demonstrates that courts are reluctant to impose liability when someone elects to commit suicide.

The tragic facts at the heart of this case occurred in 2011. On Valentine’s Day of that year, the then 14-year-old daughter of the plaintiff in this action attempted suicide. As part of an investigation into the matter, Richmond Hill, Georgia officers reported to the hospital and took photos of the minor. The minor remained hospitalized for a little more than a week, but news of her attempted suicide started to spread around her school. One of the minor’s schoolmates asked her father, one of the officers who reported to the hospital, about the suicide attempt. Concerned that his daughter did not understand the gravity of the situation, the officer logged into his work computer to show his daughter photos of the injuries sustained by the minor. At a deposition, the officer testified that he did not allow his daughter to copy the photos and that he did not otherwise disseminate the photos.  However, another schoolmate of the minor testified at a deposition that the officer’s daughter showed her and at least two other students pictures of the minor’s injuries a few days later. A different schoolmate averred that the officer’s daughter used her phone to show another student and her pictures of the injuries.

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Although 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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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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