Atlanta Injury Attorney BlogOne Defendant Cases in Georgia and Apportionment
A decision that caught a lot of injury attorneys off guard in 2021 said what a lot of us had speculated; the language in the apportionment statute is really messy and doesn’t say what it was supposed to. In ALSTON & BIRD, LLP v. HATCHER MANAGEMENT
HOLDINGS, LLC , says that OCGA § 51-12-33 is badly written and that where a Plaintiff sues ONLY one Defendant and that Defendant seeks to apportion fault to another non party person or company, that the Judge cannot follow the intent of the statute and reduce the amount of damages by the proportion of the non party’s blame.
Boiling it down; in the old days of joint and several liability, if you sued driver 1 and driver 2 for injuring someone and the jury awarded $1,000,000 then the Plaintiff could collect the full amount of the judgment from either defendant. It meant that if a well insured defendant had only 1 percent of blame and the uninsured defendant had 99% of the blame, the Plaintiff could still collect the whole judgment from the 1 percent at fault party. OCGA § 51-12-33 was designed to fix that unfairness. The drafters in the legislature failed miserably.
Slip and Falls Where You Fell While the Employee Went to Get the Sign
Slip and fall injuries that occur on a wet floor are fairly common in Georgia and the key to knowing whether it is a valid case or not all comes down to a few key questions:
- Who made the floor wet? Customer or Employee
- Does an employee actually know about the wet area
What if you are injured tripping over a tree root?
Tripping hazards come in all shapes and sizes including tree roots, whether they are in the dirt or growing through a sidewalk. When they are disrupting sidewalks, its a pretty clear violation if the City has not done anything to repair or visibly paint the roots but tree roots in the dirt are a different challenge.
In a recent opinion, a trial court addressed whether the judge was correct in refusing to throw the case out before reaching a jury (summary judgment). The injury lady filed the Georgia premises liability lawsuit alleging that she broke two bones in her leg after tripping on an exposed root in a dirt area of the restaurant’s parking lot.
In all premises liability suits, the issue is simply this: IF YOU FALL BECAUSE OF SOMETHING ON A PROPERTY, WHETHER LIQUID OR SOLID, IF YOU KNEW AS MUCH AS THE PROPERTY OWNER DID ABOUT IT BEING THERE, YOUR LAWSUIT WILL GET TOSSED OUT. YOU HAVE TO PROVE THEY HAD AT LEAST IMPLIED KNOWLEDGE OF THE DANGER AND YOU DID NOT
The Reasonable Foreseeability Element of a Georgia Car Accident Lawsuit
The Court of Appeals recently issued an opinion stemming from a Georgia premises liability lawsuit a woman filed against a shopping center (SC) after she suffered injuries in a car accident in the SC’s parking lot. According to the record, the woman and her daughter were driving in the parking lot when their vehicle collided with an SUV. The parties all exited their vehicles and began shouting and accusing each other. A mall security officer escorted the parties to another location and, after speaking with the other driver, advised everyone that they were free to leave. The other driver got into her vehicle and quickly reversed, knocking the plaintiff to the ground and pinning her leg under the tire, resulting in a complete amputation. A witness heard the altercation and heard the plaintiff’s daughter scream and heard the driver state, “I’m sorry, I didn’t mean to do it.”
The plaintiff and her family filed a lawsuit against the other driver, the SC, and the security company that provided services to the shopping center. Amongst other claims, the plaintiff argued that the SC was liable for premises liability, negligent security, and vicarious liability for the security guard’s actions. The defendant’s appealed the trial court’s denial of summary judgment.
The defendant argued that the law entitled them to summary judgment because the incident was not reasonably foreseeable. Under Georgia law, landowners or occupiers maintain a duty to keep their premises and approaches safe for their invitees. The law further explains that a property owner is not an “insurer” of an invitee’s safety from intervening criminal acts unless the criminal act was reasonably foreseeable. However, property owners may be liable if they have reason to anticipate a criminal act. In which case, they must meet their duty to exercise ordinary care to protect against injury from that act.
In Georgia, Don’t Dismiss the Case Without Prejudice Unless You Have Personal Service
5 years ago we covered this topic in a CLE we taught. Georgia has a nice rule where if you screw up on service( the actual handing of the papers to the person being served by the sheriff) and it does not happen within the statute of limitations (or reasonably close on its heels) then so long as you eventually get the person personally served, you can dismiss without prejudice and restart the lawsuit with a new filing, thereby curing the problem. How stupid plaintiff’s attorneys keep screwing this up is beyond me. This is a guy in Augusta who after eons of notice, never got the defendant served and so when they dismissed and refiled the case, the refiling was invalid.
The Court of Appeals opinion in this personal injury lawsuit arising from a Georgia car accident makes it crystal clear. So long as you actually serve the defendant before dismissing, you are fine. If not, you are toast.
The case arose when the plaintiff filed a lawsuit against the at-fault driver following injuries he suffered in a car accident. In addition to the driver, the plaintiff served his uninsured motorist (UM) insurance carrier. The insurance carrier answered; however, attempts to serve the defendant were unsuccessful. Eventually, the plaintiff filed a motion to serve the defendant by publication, and the trial court granted the motion. The plaintiff did not take any further steps after two additional attempts to serve the defendant were unsuccessful.
I Have a Lazy Attorney, Is that Dangerous?
Do you have that feeling in your gut that your lawyer is lazy? Are they very slow to respond, if they do at all? Everyone goes through busy periods, but if the lazy behavior is frequent, it’s not going to get better and it may destroy your case. As the appeals decision below explains, once the two year statute of limitations on personal injury cases approaches, Courts will scrutinize the diligence that people use to get the defendant served.
A personal injury lawsuit has strict procedural rules regarding how and when the defendant is served the paperwork by the sheriff or process server. Failure to follow the court’s procedural rule will often result in the dismissal of a case.
An attorney can help a victim determine whether a legitimate claim exists and draft and submit the appropriate documents to the court. After submitting the documents, the plaintiff must arrange for “service” on the defendant. This is a critical point in a Georgia personal injury lawsuit, and a plaintiff’s failure to effectuate proper service can lead to the dismissal of an otherwise meritorious claim.
Court Finds in Favor of Plaintiff After Georgia Electrician Causes Injury
Recently, the Court of Appeals issued an opinion in a Georgia negligence lawsuit in which the victim filed against an electric company and its employee where trial court had foolishly held that there is no duty for people to walk down stairs in a prudent manner. This lends credence to my theory that during COVID, the caseloads are getting so bad that trial judges are erring on the side of granting summary judgment and tossing cases when they should not.
In the underlying injury case, the plaintiff contacted a electric company to service her home. On the day of the incident, the electric company’s employee came to the plaintiff’s home to inspect a heater in the basement. The plaintiff advised the employee to be careful because there was no lighting and no handrail. In response, the employee stated that they were fine; however, seconds later, they fell into the plaintiff, causing her to fall down the stairs and suffer serious injuries.
The plaintiff filed a lawsuit alleging negligence against the employee and negligent hiring, training, and supervising against the company. The trial court found in favor of the defendant, and the plaintiff appealed, arguing amongst several issues, that the employee had a legal duty to exercise ordinary care while walking. The trial court stupidly held that the defendant had no duty to walk down stairs carefully. WTF?
Court Permits Plaintiffs to Recommence Lawsuit after Georgia Car Accident
The Court of Appeals recently issued a decision in an appeal of a trial court’s ruling dismissing a woman and her husband’s Georgia personal injury lawsuit. The general holding is that when you file a case and serve it and then dismiss it without prejudice, the Court will not throw out the renewal complaint for ticky tacky reasons. Any amendments to the pleadings relate back to the the original pleading.
In 2018, the woman filed a lawsuit against the driver of a car that hit her vehicle. The woman voluntarily dismissed her lawsuit nine months after the initial filing. About two months later, she renewed the lawsuit against the driver and an uninsured motorist carrier. At the renewal, her husband joined the claim alleging a loss of consortium. The insurance company moved to dismiss the complaint, arguing that the plaintiffs did not include necessary and required pleadings. The plaintiffs amended their complaint to correct the defects; however, the trial court granted the insurance company’s motion.
Under OCGA § 9-2-61, Georgia’s renewal statute, a plaintiff may recommence a previously-filed lawsuit that was voluntarily dismissed without prejudice. Plaintiffs may file the claim in state or federal court within the original statute of limitations or within six months after the dismissal, whichever is later. In cases where a plaintiff relies on the renewal to recommence a lawsuit that the statute of limitations would bar, they must prove that the prior lawsuit was not void. Further, the plaintiff must prove that the renewed action is based upon the same cause of action, and it is not a renewal of an action that was dismissed on its merits.
Employer Liable when Georgia Employee Headed to Work in Special Circumstances
A company employee has been asked to come to work for some special reason but are driving their own car; is the employer liable for a crash that happens on the way? We handled a tragic case involving this exact question. A Columbus family was in a terrible accident that killed one and badly hurt several others. In this case the defendant was a temp employee of an agency and was required to drive to work to fill out paperwork as she requested direct deposit. She fell asleep and the crash ensued. We sued the driver and the employer on a special exception theory as normally, an employee commuting in their own private vehicle is not on the job and the boss cannot be held legally responsible. 
https://www.wsbtv.com/news/2-investigates/drowsy-driving-vs-drunk-driving-same-dangers-but-only-one-is-illegal/880970158/
The case was heavily litigated and we settled the claim against the employer after a hearing where it was clear the judge was going to grant summary judgment and let the employer out of the case. In a recent decision, the court of appeals again took up the issue and I am glad we settled our case, as you will see.
An appeals court recently issued the opinion addressing whether the special circumstances exception applies in a Georgia car accident case involving employer liability. The case arose when a driver lost control of his work vehicle and struck another car, killing the victim and his brother-in-law. The victim’s wife filed a negligence lawsuit against the driver’s employer, alleging negligent hiring and retention, and respondeat superior. Amongst the issues was whether the special exceptions or special missions theory applied.