Articles Posted in Personal Injury

truckThe violation of a law or regulation can make an injury case against a trucking company much stronger and in the law this is known as negligence per se, or negligence in and of itself. If they broke the law, they must be responsible automatically. This is a powerful concept with a jury.

In the case, Newsome v. LinkAmerica Express, Inc., Ga. Ct. App. (2016), the appellate court reviewed a decision by the trial judge to throw out a case against a tractor trailer driver and the decision touches on some interesting aspects.

The facts of the case involve a car driving down a residential street and hitting a parked bobtail tractor. The driver was injured and claimed that the truck was improperly parked and that he could not see it due to sunlight streaming in his eyes.

Last month the United States District Court for the Middle District of Georgia rendered a highly relevant opinion concerning a personal injury claim. The opinion in S.G. v. TJX Companies, Inc., et al., (M.D. Ga 2017) is instructive because in it the court interpreted how the Federal Rules of Civil Procedure section regarding amended complaints filed after the statute of limitations has run applies, with regard to Georgia’s statute of limitations, as well as rules relating to amending back for personal injury cases.

slipping-98713_640-300x300The complaint arose out of an incident where the plaintiff alleged that she slipped and fell inside of a retail store in Columbus Georgia in June of 2014. The plaintiff brought a personal injury action against the defendant store’s parent corporation in May of 2016. The plaintiff then filed an amended complaint attempting to add an additional defendant corporation in October of 2016. The defendant corporation filed a motion to dismiss, asserting that the plaintiff’s claim was untimely. According to the court, the plaintiff failed to respond to the motion to dismiss.

The issue at hand was that the plaintiff was attempting to add an additional defendant after the relevant statute of limitations had passed. Under Georgia law, personal injury actions must be brought within two years after the time of the incident. O.C.G.A. § 9-3-33 (2010). Here, the plaintiff had until two years after her alleged slip and fall to file her complaint. She did file her original complaint before the relevant time period had passed. However, her original complaint had only named the initial defendant parent corporation, and did not include the subsequent corporation. The issue, then, was whether the plaintiff was entitled to any legal exception allowing her to add in the second defendant.

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golf courseThe spoliation doctrine provides that when litigation is pending or foreseeable, parties (or potential parties) are under a duty to preserve evidence that may be relevant to the adjudication of the action. See Fed. R. Civ. P. 37. When a party destroys relevant evidence with intent or through gross negligence, it may be subject to sanctions, including the application of adverse evidentiary inferences for a jury to apply at trial. Indeed, given the significant impact a loss of discoverable evidence can have on a plaintiff’s ability to successfully adjudicate his or her case, plaintiffs should always be mindful of important evidence that may exist—for example, videotapes—and be prepared to make arguments in the event such evidence is lost. However, as a recent decision from a Georgia federal district court reveals, establishing spoliation can be a difficult undertaking.

The incident at the heart of this case occurred at a golf course in the Appalachian region of Northern Georgia on October 11, 2014. On that day, the plaintiffs were driving in a golf cart between the second and third holes of the course when the golf cart slid and flipped. The plaintiffs sustained injuries as a result of the accident, and they alleged these were caused by the poor condition and maintenance of the path, about which they claimed they were not warned. The plaintiffs brought suit against the company that owns and manages the golf course, alleging negligence and loss of consortium. After the accident, both the golf cart and the signage that indicated drivers should avoid the area where the crash occurred had been removed or destroyed. Accordingly, the plaintiff made a motion seeking spoliation sanctions.

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fireTerrible tragedies can happen and it is not always someone else’s fault. We make a business out of holding the correct parties responsible under the law; the CORRECT parties, not suing everyone that can be sued. This Court of Appeals opinion is a good example of a lawyer overreaching. If the gas company turns off the gas, puts a tag on the valve that says danger and tells you not to turn it on, you cannot sue them when the handyman you hire turns it on. Period.

In this case, the Georgia Court of Appeals had to determine whether the trial court erred in granting summary judgment in favor of the Atlanta Gas Light Company (“AGL”) in a case involving an explosion at a residence where there had recently been a resumption of natural gas services.

The explosion at issue occurred in November 2010 at a detached apartment located on a residential tract of land that included a main house where the owner of the property lived with his family. Sometime prior to the explosion, the owner had arranged for gas service at both the main house and the apartment to be switched off, since the apartment was unoccupied at the time, and the family did not use gas in the main residence. At some point after having the gas services stopped, the owner agreed to rent the detached apartment to his coworker. In anticipation of his coworker’s residence in the apartment, the property owner contacted AGL about the resumption of gas services.

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horseAs a state that serves as home to many large expanses of farmland, Georgia has many unique laws reflecting this heavily rural character. Among these interesting laws is the Georgia Injuries from Equine or Llama Activities Act (“Equine Act”), which is codified at O.C.G.A. § 4-12-1 et seq. Although this is clearly not the most commonly invoked statute, it remains in the books, and as the Georgia Court of Appeals recently learned, it is among those laws still ripe for litigation.

The case, Gadd v. Warwick, arose from an accident at a summer camp. The plaintiff in this action was 19 at the time of the accident and was one of the camp’s counselors. Among his duties as a counselor was leading children on “trail rides.” On May 30, 2011, a supervisor decided that some of the staff, including the plaintiff, should take a trail ride with the horses to get the horses acclimated to the route to be taken with the camp attendees. During this tester ride, the horse on which the plaintiff was riding jumped—rather than stepped—over a 12-inch-wide stream and then reared up on his hind legs. As a result, both the plaintiff and the horse lost their balance. The plaintiff fell from the saddle onto the ground, and the horse then landed on him. The plaintiff sustained an injury as a result.

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DrivingIn most negligence cases, a plaintiff’s recovery is generally limited to his or her actual damages, both economic and non-economic. Although these damages typically provide sufficient recovery, Georgia law does allow for the recovery of an additional type of damages, punitive damages, when certain conditions are met. The recovery of punitive damages is, however, narrowly circumscribed under Georgia law, and courts tend to be wary in many instances to even let the question of punitive damages go to a jury. For instance, in a recent decision, Minott v. Merrill, a Georgia federal judge explained how narrowly confined punitive damages are under state law.

Minott arose from a motor vehicle accident on a stretch of Interstate 20 in Morgan County, Georgia. The plaintiff alleges that while he was traveling in the right lane, the defendant’s vehicle struck the rear of his vehicle and thereby caused the plaintiff’s vehicle to spin and eventually settle on the side of the road. The plaintiff did not report any injuries at the scene, and officers who reported to the scene to investigate did not issue any citations at that time. In a report on the accident, an investigating officer noted that the defendant acknowledged that at the time his car hit the plaintiff’s vehicle, he had his cell phone resting on his leg and had snatched at his steering wheel while attempting to prevent the phone from slipping. Following the accident, the plaintiff brought suit, alleging negligence and seeking recovery of damages, including punitive damages. At the conclusion of discovery, the defendant moved for summary judgment on the issue of whether the plaintiff was entitled to recover punitive damages as a matter of law.

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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.

photo_32123_20140611The scope of police authority in interactions with citizens has been a commonly discussed topic in media coverage in recent months. Although at the forefront of the modern discussion, the use of force is not a novel concept in the law. Indeed, law enforcement use of force is among the more commonly litigated issues in both state and federal court, and as many lawyers know, officers have some immunity from suit. This immunity, official immunity, is an affirmative defense, and the scope of the immunity is almost invariably at issue in cases brought against law enforcement. As demonstrated in the Georgia Court of Appeals’ recent decision in Vidal v. Leavell, the scope of official immunity is quite broad under Georgia law, a reality for which potential litigants should be prepared.

The facts at issue in Vidal occurred on April 23, 2011. On that day, the plaintiff in this case was at an IHOP in Buckhead with a friend. Shortly after being seated, the plaintiff noticed that the defendant in this case, an off-duty police officer hired by IHOP to provide security, approached a booth occupied by a group of young women. The plaintiff said she could not hear what words were being exchanged between the officer and the women but that she did see the officer force himself into the booth and push two of the women into the wall. The officer was attempting to arrest the patrons in the booth, and the plaintiff began to videotape the incident because she believed the officer was acting too aggressively. Another officer arrived and apparently engaged the defendant to halt his interaction with the patrons. The plaintiff testified that she touched the officer so that he would realize she was recording him. The officer then slapped the plaintiff, and the video shows that the plaintiff then took retaliatory swings at the officer. While the second officer held her arms back, the officer punched the plaintiff in the head and then threw her to the floor, dragged her to the door, and handcuffed her. The plaintiff was arrested for obstruction and assault. Other patrons at the IHOP videotaped the incident.

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photo_35516_20150116Few cases ever advance far enough to be presented to a jury for consideration. However, when there is a trial, the propriety of interactions between the court, the parties, and the jury are of prime importance. Indeed, the integrity of the judicial process depends on both the court and the parties not unduly influencing the jury’s determination, and even the appearance of a misdeed can lead to a new trial. In a recent decision, Phillips v. Harmon, the Supreme Court of Georgia dealt with such a case of possible misconduct and ordered that there be a new trial held.

The facts underlying this case are incredibly unfortunate. The suit was brought by an infant, by and through his mother, and by the mother herself in an individual capacity. The plaintiffs alleged that as a result of the negligence of the defendants the infant suffered severe oxygen deprivation shortly before his birth. Consequently, the child suffers from  permanent neurological problems, which include spastic quadriplegia, blindness, and an inability to speak. The case eventually progressed to a trial before a jury that returned a verdict for the defendants after a day and a half of deliberations. Following the jury’s verdict, the plaintiffs moved for a new trial, asserting that the trial court erred in both communicating with the jury in the absence of the parties and their attorneys and for not including a spoliation instruction in the jury instructions. Specifically, the trial court had responded to a note from the jury that was sent during deliberations without telling the parties or counsel that there had been a communication. The case was reassigned to a different judge, who denied the motion, and the plaintiff thereafter appealed to the Georgia Court of Appeals. The Court of Appeals determined that there needed to be a new trial and vacated the jury verdict. The defendants then appealed to the Supreme Court of Georgia.

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