In June, the Supreme Court of Georgia issued an opinion addressing whether the state’s dog bite statute, OCGA § 51-2-7, violates the Due Process clause of the 14th Amendment to the United States Constitution. The case stems from an attack resulting in the plaintiff suffering serious injuries, as well as the death of their pet. The plaintiff filed a negligence lawsuit seeking damages against the attacking dog’s owners. The plaintiff claimed that they were entitled to damages under OCGA § 51-2-7. The defendants filed a motion in limine, arguing that the statute violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

On appeal, the defendants claimed that the statue creates an irrebuttable presumption that an owner is aware of a dog’s vicious propensity. They claimed that this presumption violates procedural due process. Upon review, the court first addressed its duty to construe a statute as constitutional, whenever possible. In cases where a statute has two potential meanings, courts typically interpret it as constitutional. Using those principles, the court analyzed the defendant’s contention.

OCGA § 51-2-7 explains :

photo_1591_20060518-300x200-300x200In a Georgia car accident case, the injured person usually needs to have medical testimony from the treating doctors to help the jury understand the gravity of the injury. To spare Doctors from having to close their practice and spend half a day in Court, the Georgia legislature created the Medical Narrative statute. It basically says that if the letter is on letterhead from the Doctor and is signed and clearly lays out the nature of the medical problem and what caused it, that letter can be shown to the jury as evidence. The defense can always choose to pay to depose the Doctor and cross examine but otherwise it usually comes in. Defense lawyers will often challenge the admissibility of the letter on several bases and this appellate case is an example of that.

Earlier this year, a state appellate court issued a written opinion in a Georgia car accident case discussing whether the trial court’s ruling to strike portions of the plaintiff’s treating physician’s narrative about medical care was correct. Ultimately, the court concluded that the medical provider’s narrative was not “too inconclusive, speculative, and vague,” finding it admissible.

The Facts of the Case

Back in 2016, both the plaintiff and defendant were involved in a multi-vehicle collision. The plaintiff initiated a personal injury claim against the defendant, and the defendant acknowledged he was responsible for the accident. However, the defendant claimed that he was not liable for the plaintiff’s injuries.

At trial, the plaintiff presented a narrative from her treating physician. The narrative outlined the care provided to the plaintiff, as well as an estimate of the cost of necessary future medical care. The defendant objected to the admission of the narrative, arguing, among other things, that it was “too inconclusive, speculative, and vague” concerning the future cost of medical care. The trial court agreed with the defendant, striking those portions of the narrative.

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So it may happen in a case that a defender, especially a corporate defendant has made statements on a public forum or website and those statements may contradict or impeach a position they are taking now in a case. How do you 1) access the old version of the website and 2) authenticate it and get the Judge to admit it into evidence?

Old Website Versions

So our friends at the Wayback Machine do one thing and do it well, archive old websites. You can have fun and poke around at very old versions of pretty much any website, even Google! So assume that Company X has stated their safety screening policy for their truck drivers and you want to impeach their safety director with the old standards. Surf over to Wayback, pull the old version of the site and then print it out in hard copy with the web address listed below.

Can you sue a hotel for a slip and fall at the pool? The Court of Appeals in Georgia recently issued an opinion in a slip and fall lawsuit against a hotel that sheds some light on what facts support a valid lawsuit against the hotel.

According to the court’s opinion, the plaintiff suffered serious injuries after falling on a wet sidewalk near the hotel’s pool. Evidently, on the evening of the incident, the woman and her grandchildren were leaving the pool when she noticed that the hotel’s sidewalk was shiny and looked “slick.” Her grandson was walking in front of her, still wet from the pool, and she warned him to slow down. However, shortly after warning her grandson, she slipped on the wet sidewalk and fell.

The heart of the claim for why the hotel was responsible and not the grandma is that the paint on the sidewalk had deteriorated to the point that it no longer had “grip” and was slippery instead. In support of her claim, the plaintiff presented an expert witness affidavit, stating that, in the expert’s opinion, the hotel failed to maintain the sidewalk in a safe condition. The affidavit indicated that the deteriorating sidewalk paint was hazardous, especially when it became wet.

firework-300x199Like all red blooded Americans, I like a great fireworks show and I shoot some every year after stopping at the adult toy store feeling fireworks shops in Alabama on the way back from 30A. The question is; after you binge and buy, what will and won’t get the cops called on you in Georgia?

It used to be that all we had were sucky fountains and sparklers. Booo. Being the rednecks that we are, we passed a law allowing the following:

  • Bottle Rockets

The sad reality is there are over a thousand people killed every year in Georgia accidents but not all of them should be lawsuits. This is the woeful tale of a dimwit attorney filing a lawsuit on behalf of a motorcyclist who was clearly hauling way to fast down the road, when he died in the crash. I have handled cases like this for guys on motorcycles and it is rarely the Harleys or cruising bikes, usually the sport bikes where speed is the killer. In the case we handled, we realized deep into the evidence that our guy was likely going 70 in a 45 when he underode a tractor trailer in broad daylight. It’s not a good case and we settled for the $90,000 they offered to ensure that the 13 year old daughter would have money for college. Unfortunately for the family of a Georgia motorcyclist who suffered fatal injuries in an accident his lawyers ignored reality. They filed a wrongful death and negligence lawsuit against two occupants of the vehicle that struck their loved one. After a jury found in favor of the defendants and said it was the motorcycle rider’s fault for speeding, the plaintiffs moved for a new trial. The trial court denied their motion, and the plaintiffs filed an appeal. On appeal, the biker’s estate argued that the trial court erred in permitting inadmissible witness testimony and denying their motion for a new trial.

At trial, the court permitted eyewitnesses to testify that the biker was driving around 80 to 100 miles per hour before the accident. Further, they allowed a police officer to testify that, based on the bike’s engine sound, the motorcyclist’s speed was between 60 and 90 miles per hour. The plaintiffs argued that the court erred in allowing this testimony because the witnesses did not see the bike at the time of the collision. The plaintiffs argued that the law only permits witnesses to estimate a vehicle’s speed if they saw the vehicle when the accident occurred. Everyone knows what a sport bike sounds like at speed. It is unmistakeable. It is no surprise the judge and jury found the way they did.

Georgia Code section 24-7-701 permits a non-expert witness to testify only in instances where their opinions are rationally based on their perception, helpful to understanding a witness’s testimony, and not based on technical, scientific, or specialized knowledge. In this case, the court found that the trial court did not err in permitting this testimony. It explained that the witnesses provided a basis for their opinions, including their personal experience riding and observing motorcycles and seeing the plaintiff’s bike on the day of the accident. The court reasoned that this factual foundation was sufficient to allow the witnesses to testify to the motorcycle’s speed before and at the time of a collision, even if they did not observe the impact.

Knowing the applicable statute of limitations is the first step in any personal injury claim. However, even when a statute of limitations has passed, an exception may still apply, as one recent case before a Georgia appeals court illustrates.

The Facts of the Case

On October 16, 2014, two drivers were involved in a car accident in Fayetteville, Georgia. A police officer responded to the scene and issued the defendant a traffic citation for following too closely. The citation listed November 18, 2014, as the final date to contest the citation. The defendant paid the citation on October 27, 2014, and the bond was forfeited on November 18, 2014. The plaintiff filed a personal injury claim against the defendant on November 10, 2016.

Tolling the Statute of Limitations

Tolling a statute of limitations allows a plaintiff to stop the statute of limitations from running for some time. In Georgia, under OCGA 9-3-33, there is a two-year statute of limitations for personal injury claims. However, under OCGA 9-3-99, the statute of limitations may be tolled for a claim brought by the victim of an alleged crime for a tort arising out of the same facts and circumstances until the criminal prosecution becomes final or is otherwise terminated.

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Spoliation is a hot button issue in Georgia and defense attorneys have begun sending out spoliation letters is basic car wreck cases insisting the Plaintiff keep the damaged car after an auto accident. Lawyers for the Plaintiff have a tough decision to make. It’s no problem where the Defendant’s own insurance deals with the totaled care because they take possession. The problem arises where the Plaintiff’s own insurance company takes charge of the repairs or salvage. The vehicle is not really under the Plaintiff’s control in that situation and can lead to it going to the crusher without the Plaintiff’s knowledge. In the case we discuss below, the problem is highlighted and the trial court issued the severe sanction of throwing the wrongful death case out of court as a sanction for allowing the car to be destroyed by the wrecker yard. Fortunately, the Court of Appeals reversed the decision and observed that in these facts, the destruction was just negligent and did not deserve the ultimate sanction of having the case thrown out.

The state appellate court issued an opinion in a Georgia car accident case discussing the spoliation doctrine, which can be used by a party to impose sanctions on an opposing party who destroys or fails to preserve relevant evidence in an upcoming trial. The court ultimately determined that although the plaintiff was under a duty to preserve the evidence at issue, because a third party destroyed it without the plaintiff’s knowledge or consent, the lower court was improper to dismiss the plaintiff’s case.

The Facts of the Case

According to the court’s opinion, the plaintiff’s wife was killed in a car accident when she encountered standing water on the highway. Evidently, the woman lost control of the car as it hydroplaned and crashed into another vehicle. It was later discovered that the storm drain that was designed to remove water from the highway was clogged with debris. The plaintiff brought a personal injury lawsuit against the city in charge of maintaining that area of the road.

Evidently, the plaintiff’s vehicle was towed to a scrap yard following the accident. In a letter to the plaintiff, the scrap yard required the plaintiff to pay a storage fee; otherwise, the plaintiff’s vehicle would be destroyed and sold for scrap. The plaintiff retained an attorney, who sent a letter to the scrap yard, introducing himself as the plaintiff’s attorney, and requesting that all future communication be sent to him. The attorney also instructed the scrap yard that the vehicle must be preserved for trial, and that there could be severe sanctions if it was destroyed.

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The Court of Appeals of Georgia issued an opinion arising from a personal injury claim filed by a plaintiff against the Georgia Department of Public Safety (the State). The plaintiff’s lawsuit alleges that he suffered injuries in a car accident when an officer employed by the State was chasing a fleeing felon. The State argued that the plaintiff did not serve it with proper ante litem notice; however, the trial court denied the State’s motion and then granted its application for interlocutory appeal.

The facts indicate that the incident occurred in October of 2014. Per OCGA section 50-21-26 (5), the plaintiff sent his intent to sue, otherwise known as ante litem notice, to the administrative services department in December 2014. The plaintiff did not include all of the relevant information, so he voluntarily dismissed the initial filing based on the deficiencies in his notice. Several years later, in March 2017, the plaintiff renewed his action by filing another ante litem notice. At this time, the State moved to dismiss the case, arguing that the notice was untimely. The plaintiff contended that, according to OCGA section 9-3-99, the notice was timely.

Generally, under the Georgia Tort Claims Act (GTCA), no one can bring an action against the State without first providing the appropriate agency written notice of claim within 12 months of the date of injury. However, OCGA section 9-3-99 provides that this statute of limitations may be tolled in cases where the case arose out of the commission of a crime. In these cases, the statute will be tolled from the date of the alleged crime until the prosecution of that crime has been terminated or otherwise become final, so long as it does not exceed six years.

Slip and falls are not like car accidents. It’s not the property owner’s fault unless they knew about the danger and you did not and as the injured party, you have to prove that you have a chance of success on those points to the judge if you want to be allowed to get to a jury. A Georgia state appellate court recently issued an opinion in a case where the injured plaintiff tried her case to a jury and lost. The jury found in favor of a defendant in the Georgia slip and fall lawsuit.

The Case: Ridley v. Dolgencorp, LLC

According to the court’s opinion, the plaintiff filed the lawsuit after she was injured while she was exiting the defendant’s store. Evidently, when the woman was exiting the store, she got distracted by other patrons and a display rack on the sidewalk. While looking at the rack, the plaintiff stepped down off the sidewalk onto the pavement. As she stepped down, her shoe hit a slanted parking abutment, and she tripped over the abutment and fell forward, seriously injuring her head, elbow, and knees.

The woman alleged that she suffered injuries because the company breached its duty to keep the premises safe. The defendant filed for summary judgment, arguing that the plaintiff did not meet her evidentiary burden. Under Georgia law, an individual who suffers injuries on another’s property may bring a premises liability lawsuit against the property or landowner. The law does not impose liability merely because the accident occurred on the owner or occupier’s land. Instead, the injury victim must establish that the Georgia property owner was negligent.

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