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In an unfortunate example of a Court of Appeals panel totally ignoring a jury, the Court threw out a $1.6 million dollar verdict. The Judges opined that the jury was flat out wrong and considered the evidence incorrectly. Keeping a jury verdict when there is an Appellate bench willing to call the jury blind and deaf is a challenge as this case illustrates in this recent decision from the Georgia Court of Appeals, Redmon v. Daniel, which arose from the tragic death of a man struck while navigating a highway exit ramp.

The events leading to this case began on an early morning in September 2009. The evidence showed that the husband of the plaintiff, who brought the claim as the representative of her late husband’s estate, was walking along an exit ramp that led from Georgia Highway 316 to Georgia Highway 120. There are neither street lights flanking this stretch of road nor ambient lighting from nearby signs. The plaintiff’s husband was dressed in dark green shorts and a black shirt at the time. While proceeding along the exit ramp, the plaintiff’s husband was struck by a Chevrolet Tahoe. The impact caused his body to fly into the Tahoe’s windshield and then into the road. The Tahoe was being followed by a garbage truck. The driver of the garbage truck did not see the accident but did testify to seeing something he thought was a deer ricochet off the Tahoe. The garbage truck driver testified that he attempted to avoid the object, but at some point during the driver’s maneuvering, the rear tires of the garbage truck ran over the man’s head. The speed limit along Highway 316 is 55 miles per hour, and the evidence showed that the vehicles were traveling between 40 and 50 miles per hour.

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It is common knowledge that workers’ compensation schemes bar, in most circumstances, negligence claims brought by an employee against his or her employer. Given that recovery in the workers’ compensation setting can be more limited than desired, litigants will often try to fit their negligence claims against an employer within the confines of those claims that are not barred under workers’ compensation laws. The Georgia Court of Appeals recently dealt with this practice in Dixon v. CSX Intermodal Terminals, Inc., a case that arose from the injury of an employee who fell while on the job.

The plaintiff in Dixon is an employee of the defendant, CSX Intermodal Terminals (“CSXIT”), which is a business providing motor carrier and transloading services. While attempting to unlock an interbox-connector, which is used to hitch containers in a railcar, the plaintiff fell. Following this accident, the plaintiff received $162,000 in workers’ compensation insurance benefits, the receipt of which bars claims for common law negligence against the employer under Georgia law. However, the statutory scheme does not bar claims brought under the Federal Employee Liability Act (“FELA”), and the plaintiff ultimately brought suit against CSXIT, alleging a negligence claim under this statute. The trial court ultimately granted summary judgment in favor of the employer, which argued that it is not covered by the provisions of the FELA. The employee appealed.

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In a recent medical malpractice decision, the Georgia Court of Appeals addressed an intriguing issue concerning whether jurors may use the sense of touch in weighing evidence.  The decision, Piedmont Newnan Hospital, Inc. v. RA-085 Barbour, arose from an alleged act of medical negligence that occurred during the course of medical testing at a Georgia hospital.  During the trial, counsel for the plaintiff requested that the jury be allowed to touch the plaintiff’s hands in order to determine whether there was a perceptible difference in temperature, a fact important for assessing the testimony provided by the parties’ competing expert witnesses.  The trial court granted the plaintiff’s request, permitting jurors who wished to touch the plaintiff’s hands to do so. Following the trial, which led to a favorable judgment for the plaintiff, the defendant appealed several issues, including the trial court’s ruling to let the jury utilize their sense of touch.

This events leading to this suit started on June 1, 2011, when the plaintiff visited the defendant hospital, complaining of chest pain and labored breathing. The plaintiff underwent a battery of diagnostic tests, in particular a nuclear stress test, which compares blood flow to the heart at periods of rest and stress. The test requires a small amount of nuclear material to be injected into the patient’s bloodstream, so that it may serve as a tracer and aid in taking images of the heart. In this case, the tracer was administered using an IV catheter, which was originally placed in the patient’s left arm. During the stress portion of the test, and shortly after a second dose was administered, the plaintiff began to experience pain. A nurse terminated the test, believing that the nuclear material may have infiltrated the plaintiff’s arm. The plaintiff was discharged with instructions for dealing with his arm.

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Although we expect all products to function as anticipated, that is especially true for those products on which we rely to provide safety during dangerous situations.  Indeed, when the risk of harm is high, an equipment failure can lead to truly tragic results. This type of product failure was at the heart of a recent decision from the Georgia Court of Appeals, Key Safety Sys., Inc. v. Bruner, which involved a product defect in the seatbelt restraint system of a Jeep Wrangler.

This suit centers around a rollover accident that occurred in September 2007. The suit was brought by the husband of the passenger of the jeep, acting as the personal representative of the estate of his wife, who died as a result of the accident. The decedent’s husband owned the vehicle, but it was being driven by his daughter at the time of the turnover. The reasons for the turnover remained unknown. Both the driver and the decedent were apparently wearing their seatbelts, but during the course of the accident the decedent was ejected from the vehicle and sustained various severe injuries, including a loss of body tissue around her upper legs and abdomen. The decedent eventually succumbed to her injuries. The vehicle seatbelt restraint system was designed, constructed, and integrated by Key Safety Systems, Inc. The husband brought suit against Key and various governmental entities, alleging failure to warn, strict product liability, negligence, and failure to recall and/or retrofit. The case proceeded to a trial, after which the jury returned a verdict awarding the plaintiff $4,600,000. The jury apportioned 20 percent of the fault to the decedent’s daughter and 80 percent of the fault to Key. In light of this unfavorable verdict, Key brought an appeal, arguing that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict with respect to the failure to warn claim, and by admitting expert testimony regarding certain seatbelt retractor mechanism testing performed by the expert witness and a video of such testing.

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Under 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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 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.

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In 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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Thank you all for the opportunity to speak to the South Carolina Bar. Just click on the link below to download the powerpoint from my presentation and feel free to email me with any questions.

 

Chris

 

The Business of Law powerpoint

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The 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.

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