Car Accident

July 12, 2021

The Reasonable Foreseeability Element of a Georgia Car Accident Lawsuit

by Christopher Simon

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.

July 2, 2021

In Georgia, Don’t Dismiss the Case Without Prejudice Unless You Have Personal Service

by Christopher Simon

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.

May 31, 2021

I Have a Lazy Attorney, Is that Dangerous?

by Christopher Simon

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.

March 4, 2021

Court Permits Plaintiffs to Recommence Lawsuit after Georgia Car Accident

by Christopher Simon

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.

February 16, 2021

Employer Liable when Georgia Employee Headed to Work in Special Circumstances

by Christopher Simon

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.

January 15, 2021

Uninsured Motorist Coverage Analysis Following a Georgia Car Accident

by Christopher Simon

The issue of how many different Uninsured/Underinsured policies might provide coverage and in what order. After a Georgia car accident, injury victims often find that the driver who caused the crash does not have enough insurance and have to seek a recovery for their damages from their own insurance company. Georgia law requires that insurance companies allow policyholders to purchase uninsured motorist coverage (UMC). This coverage allows an injury victim to obtain adequate compensation if they are involved in a serious car accident. Although the law provides this safeguard, there are many instances where an insurance company denies coverage. These situations may lead to a contentious and complex dispute over the availability of coverage.

An issue that often arises is whether the liability policy provides coverage to a driver under more than one liability policy. This often occurs when an injury victim tries to evoke coverage under a policy while they were operating another person’s vehicle, with permission. In most cases, the non-owner is an additional insured party under the policy. However, courts will look to the totality of the circumstances to determine whether the policy affords coverage. The court will consider the driver’s status, the vehicle’s owner, and the coverage limits under the policy.

UMC disputes between insurance providers and policyholders or injury victims often arise when there are issues regarding stacking coverage, selection or rejection of coverage, liability limits, insurance off-sets, and exclusionary provisions. In these cases, the contentions generally involve various principles, statutes, and rules of law. However, ultimately, courts must evaluate the case’s nuanced factual details before deciding whether coverage is appropriate.

November 16, 2020

Future Medical Expenses? Only If the Doctor Testifies they Are Likely

by Christopher Simon

Recently, a Georgia appeals court issued an opinion in a lawsuit stemming from serious injuries a victim suffered in a motor vehicle accident. There was no debate about who caused the crash and no debate about the past medical care. The issue was whether the jury was allowed to consider the future medical care.

The defendant in the matter admitted responsibility, and the jury awarded the plaintiff $25,000 in past damages and $100,000 in future medical expenses. After the verdict the defense asked the Judge to set aside the part of the verdict regarding the future medical expenses award saying that the Doctor did not testify they would probably be necessary; they just said they might be necessary. The procedure is called a Motion for JNOV. On appeal, the plaintiff argued that the trial court erred in granting the motion, because the evidence supported the award.

Under OCGA § 9-11-50 (b), judges may only grant a judgment notwithstanding the verdict (JNOV), in cases when, without weighing the evidence’s credibility, there is only one reasonable conclusion as to the proper judgment. In cases where there is conflicting or insufficient evidence, the JNOV is inappropriate. Further, the standard for reviewing a JNOV is “whether the evidence, with all reasonable deductions, demanded a verdict contrary to that returned by the factfinder.” Courts have long held that it is an error to grant a JNOV if there is any evidence to support the jury’s verdict.

July 27, 2020

How to Get a Doctor’s Testimony before the Jury in a Recent Georgia Car Accident Case

by Christopher Simon

In 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.

June 5, 2020

posted athens Georgia Appeals Court Reinstates Case Filed Beyond Statute of Limitations

by Christopher Simon

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.

June 5, 2020

postedDuty to Preserve a Car After and Accident in Georgia

by Christopher Simon

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.