Negligence

January 1, 2015

Georgia Court of Appeals Tackles Case Involving Empty Urn

by Christopher Simon

The first line of the Georgia Court of Appeals’ recent decision in Justice v. SCI Georgia Funeral Services Inc. (PDF-embedded link) is enough to inform the reader that what follows will be an interesting read. In short, this case arose from a funeral home mistakenly giving an empty urn to the principal plaintiff in this case, a grieving mother whose daughter’s ashes were supposed to be in the urn she received. On appeal, the Georgia Court of Appeals needed to determine whether it was appropriate for the trial court to grant the defendants’ motion for summary judgment on all the plaintiffs’ claims associated with this mistake.

The death that started the series of events leading to this decision occurred in December 2007. The day following the death, the decedent’s mother, a plaintiff in this case, contracted with Striffler-Hamby Mortuary for cremation and memorial services. The contract provided that the ashes be transferred from a crematory to the funeral home and then to an urn that would be presented at the memorial services. The memorial services were held on December 28, 2007. On that day, the funeral director got the urn with the decedent’s name from the office at the funeral home. The director looked inside the urn, which contained a temporary container customarily used to store ashes, and assumed that ashes were inside. He took the urn to the chapel and, at the conclusion of the memorial services, gave the empty urn to the mother. Shortly thereafter, on the same day of the memorial, the decedent’s ashes were delivered to the funeral home. Realizing his mistake, the director contacted the mother and asked to speak in person. The director went to the mother’s home, told the mother of the error, and asked if he might take back the urn. The mother granted the request, and the director took the urn back to the funeral home, where he put in the decedent’s ashes. The director returned to the mother’s home. No one answered the door, but he eventually spotted the mother and a friend of the mother upon entering the residence without permission. The director again apologized for the mistake and left the urn. Afterward, the funeral home canceled the need for payment under the contract and did not otherwise charge the decedent’s family for the services provided. Despite the gesture, the mother and several other family members filed suit against the funeral home and the funeral director, asserting claims for breach of contract, interference of burial rights, invasion of privacy, intentional infliction of emotion distress, and trespass. Following discovery, the defendants moved for summary judgment on all the claims, and the trial court granted the motion in full.

January 1, 2015

Georgia Court of Appeals Renews Medical Malpractice Claim in Divided Decision

by Christopher Simon

Georgia law imposes a strict two-year statute of limitations on medical negligence claims. Indeed, many potentially viable malpractice claims have been lost because the plaintiff has failed to file a timely complaint. However, as a recent decision from the Georgia Court of Appeals shows, clever pleading can, at least in some instances, help preserve a plaintiff’s day in court.

The case, Smith v. Danson, arose from an alleged act of medical negligence that occurred in February 2011. At that time, the plaintiff in this action underwent a laparoscopic hysterectomy, which was performed by the defendant physician. Following the procedure, the defendant allegedly told the plaintiff that her stomach was firm because excess gas had been pumped into her stomach during the procedure. The plaintiff was discharged two days later and was scheduled for an initial post-operative checkup on March 16, 2011. The plaintiff alleges that she initially felt fine following the procedure but that she began to experience deleterious symptoms shortly thereafter. The plaintiff went back to the defendant for her checkup and after the examination asked what she should do about the gas in her stomach. The defendant suggested changes in diet, including an increased intake of probiotics. The plaintiff’s symptoms continued to worsen, and she soon sought medical treatment from other health care providers. The plaintiff ultimately discovered that she had a kidney obstruction that was likely caused when the kidney was clamped down during the surgery. The plaintiff also alleged she was told that her bladder had been nicked during the procedure. The injuries had caused urine to build up in her abdomen, and the plaintiff had to undergo several corrective surgical procedures.

December 24, 2014

Federal District Court Denies Summary Judgment in Auto Accident Negligence Case

by Christopher Simon

Not all plaintiffs are the same, and there are many problems that can arise in injury litigation when a plaintiff with preexisting medical conditions is injured, since these preexisting conditions can make determining the exact source of symptoms exceedingly more complicated. Indeed, causation is a critical element for proving a negligence claim, and it follows that the existence of pre-existing conditions can pose trouble for establishing the necessary causal link between an act of negligence and the harm suffered. This dynamic is illustrated in a recent decision from the Northern District of Georgia, Bruce v. Classic Carrier, Inc., in which the court needed to determine whether a plaintiff needed to proffer expert testimony establishing causation for his neck injury, since he had pre-existing neck ailments from a prior motor vehicle accident.

The Bruce litigation involves not one but two auto accidents. The first of these accidents occurred on May 31, 2008, when the vehicle that the plaintiff in this action was driving was struck from behind by another motorist’s car. As a result of this accident, the plaintiff was sent to the hospital, where he was treated by physicians and injected with pain medication. The second accident occurred less than a month later, on June 11, 2008. On this day, a tractor-trailer being driven by an employee of one of the defendants in this action rear-ended another vehicle that, in turn, struck the back of the plaintiff’s vehicle. The plaintiff was again ushered to the hospital, where he was treated for neck, arm, and back pain, injected with more pain medication, and prescribed additional pain medication. To make matters worse, the plaintiff had a long history of spine-related medical ailments, which included psoriatic arthritis with spondylitis, radiculopathy of the cervical and lumbar vertebrae, post-cervical fusion syndrome, and post-lumbar laminectomy syndrome. He had been seeing a rheumatologist for these issues since 1999 and had undergone neck surgery in 2001. In addition, the plaintiff had been seeing a pain management specialist since 2005 to treat recurring pain and numbness in various regions of his body, including in his neck, back, hip, shoulder, and fingers. Following the aforementioned accidents, the plaintiff was referred to a spinal surgeon, who believed the plaintiff’s symptoms had been exacerbated by the two accidents, recommended physical therapy, and sometime thereafter, advised the plaintiff to undergo a second neck surgery.

December 20, 2014

Watson v. Forest City Commercial Management, Inc.: A Look at the Federal Removal Statute

by Christopher Simon

Although trial is the stage of litigation that many consider to be the key moment for legal argument, many critical battles over the admissibility of evidence, venue and the applicability of certain laws take place long before trial, assuming the case even gets that far. The initiation of litigation often leads to immediate procedural bickering over whether the case has been brought before the proper court or should be dismissed or otherwise transferred to a different venue. Among these procedural arguments raised at the onset of litigation is whether an action that has been brought in state court should be removed to federal court. Although plaintiffs typically have the right to bring a case in the setting of their choice, as long as that court has subject matter jurisdiction over the issues raised and personal jurisdiction over the parties involved, defendants can, under certain circumstances, move to have a case that has been brought in a state court removed to federal court. Given the differences in rules that can apply in these venues, determining whether removal is justified can have an impact on the outcome of a case. Arguments common in removal proceedings are highlighted in Watson v. Forest City Commercial Management, Inc., a recent decision from the United States District Court for the Northern District of Georgia.

The Watson case arose from an incident at The Mall at Stonecrest in DeKalb County, Georgia. During a trip to the mall, the plaintiff in this action alleges that she was attacked by several third parties. Although third parties carried out the attack, the plaintiff brought a legal action against Stonecrest Mall and North American Midway Entertainment-All-Star Amusement, Inc. (“Midway”), asserting claims for negligence and premises liability. Although proving negligence when there is an intervening third-party criminal act is already a demanding undertaking, the defendants created further trouble for the plaintiff by moving, only 20 days after the initiation of the action, to have the case removed to federal court from the State Court of DeKalb County, Georgia, where it had originally been filed. In response to the defendants’ Notice of Removal, the plaintiff argued that removal was unwarranted because both defendants did not properly join the removal action, one defendant made an untimely answer, and both defendant corporations are “citizens” of Georgia, which would render the federal court without jurisdiction over the case. Thus, the federal court, which was now exercising control over the case, needed to determine whether removal was warranted.