Negligence

March 11, 2021

Court Finds in Favor of Plaintiff After Georgia Electrician Causes Injury

by Christopher Simon

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?

July 11, 2017

Liability for Georgia Elevator Accident

by Christopher Simon

In a recent Georgia appellate case, the plaintiff had been hurt while riding an elevator at a medical center. He sued the medical center and the contractor that maintained the elevator.

The case arose when the plaintiff went to pick up his wife and daughter from the seventh floor. The daughter was recovering from surgery on the prior day. The plaintiff and another person got into the third elevator and pushed buttons for their floors. The elevator went up to the third or fourth floor but then crashed downward into something solid. The plaintiff grabbed a handrail that stopped him from falling to the floor of the elevator. The other passenger tried to get the door open and pushed the emergency button.

The person who came to help them told them the elevator can was 1 1/2 feet below the floor level, and he was going to get assistance. Twenty minutes later, several people were helping, and from inside the elevator, the passengers could feel shaking. The floors opened five minutes later, with the elevator on the ninth floor and the car level with the floor. The plaintiff’s neck, knees, legs, and feet were hurt in the process.

March 30, 2017

Georgia Court of Appeals Denies Defendant’s Clever Attempt to Escape from Liability

by Christopher Simon

Naming the right Defendant in a timely manner is obviously important in lawsuits but if you make a mistake and the defendants knew you made a mistake, then the Defendant is not getting out of a meritorious case. For instance, in one case, the Georgia Court of Appeals addressed an interesting issue regarding whether a medical malpractice wrongful death claim could be dismissed because the plaintiff erroneously named the wrong physician in the complaint.

The key issue here is the idea in Georgia law that if you screw up and name the wrong defendant but everything else about the case is the same and the defense knew about the mistake and is not prejudiced, then you get to relate the new complaint back to the old one and the Statute of Limitations won’t bar you.

Here a Doctor was sued within the 2 years for medical malpractice. The plaintiff named one doctor when it should have been another at the same practice. The defense lawyer met with the right doctor and discussed the mistake and then sat around and waited until three years later to try to get the case kicked out. The plaintiff corrected the mistake but the trial court threw the case out anyway. Here the Court of Appeals reversed that decision saying the hospital group “has not been surprised by the claim, and they were aware almost immediately, and indeed, they notified Dr. Ellis about the malpractice allegations in the complaint within a month of service of the complaint.” In other words, no harm, no foul.

This wrongful death case that is the subject of this appeal, which was originally filed on December 11, 2011, was brought by the late husband of a woman who died shortly after undergoing a total knee replacement surgery. Specifically, after surgery, the decedent’s lungs experienced aspiration that caused her to develop acute respiratory distress syndrome, which ultimately led to a cardiac arrest, organ failure, and death. In the complaint, the decedent’s husband alleged that this string of events was caused by the purportedly negligent care of a physician employed by a local physician group. An attached expert affidavit further detailed how the physician’s conduct resulted in the death. About a month after the complaint was filed, counsel for the late husband met with the physician named in the original complaint and learned that it was in fact a different physician who performed the acts alleged to be negligent in the complaint. Counsel for the physician did not immediately move to amend the complaint.

February 27, 2017

Northern District of Georgia Declines to Impose Spoliation Sanctions

by Christopher Simon

The 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.

January 31, 2017

Court of Appeals Affirms Dismissal of Atlanta Gas Light Company Explosion Lawsuit

by Christopher Simon

Terrible 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.

January 23, 2017

Georgia Court of Appeals Affirms in Summer Camp Injury Case

by Christopher Simon

As 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.

January 4, 2017

Court of Appeals Addresses Novel Question under Georgia’s Recreational Property Act

by Christopher Simon

The Georgia Recreational Property Act, O.C.G.A. § 51-3-20 et seq., generally immunizes both private and governmental property owners from many forms of negligence liability when the owner of such property makes it available for recreational purposes free of charge. In a recent decision, The Mayor and Aldermen of the City of Garden City v. Harris, the Georgia Court of Appeals dealt with an interesting issue of first impression regarding the application of this expansive law. Specifically, the Court of Appeals needed to determine whether a city was immunized from liability if it did not charge the injured person a fee but charged others a fee to use the property.

The incident at issue in Harris occurred on November 10, 2012. On that day, a family, which included a young child, attended a youth football game at Garden City Stadium, a recreational facility owned and maintained by the City of Garden City. The entrance gate of the facility—at which there was a no-trespassing sign posted—was located next to a ticket booth. The admittance fee structure was as follows. Spectators under the age of six were not charged a fee, children older than six were charged $1, and adults were charged $2. The parents paid the applicable admittance fees for themselves and their children older than six. Their young daughter, however, was under the age of six and therefore was not charged a fee. During the game, the young daughter and her siblings left the bleachers where they had been seated with their parents to procure goods from the concession stand. While returning to the seats, the young child slipped and fell through a space between the bleachers and landed on the ground below. As a result of the fall, she sustained various injuries.

December 28, 2016

Georgia Court of Appeals Affirms Dismissal in Auto Shop Negligent Training Case

by Christopher Simon

Sometimes I read Georgia car accident appeals cases and I am astounded at the stupidity of some of the claims that plaintiff’s lawyers will bring. This is the legal analysis for a case where the plaintiff was terribly injured and tried to blame the crash on the installation of two new tires on the front two wheels instead of the rear two wheels. This claim would make sense if placing them one axle versus the other left bald tires onboard. But it didn’t. Instead this plaintiff and their lawyer brought suit when the crash happened, wait for it; TWO YEARS AFTER THE TIRES WERE INSTALLED. Come on people, there is a reason the public gets angry with some lawsuits. This is a frivolous case. Now, onto the legal analysis of the interesting part which says that in the right case, the prior owner of a business can maintain responsibility for something happening after they sell if they negligently trained the employee who screwed up. Cool theory.

Georgia law places a duty on employers to ensure that their employees are properly trained and supervised. However, although the duty to reasonably train employees is well-established, the other doctrinal limitations imposed on negligence liability continue to play a significant role in confining the viability of many claims. For instance, in a recent decision, Edwards v. Campbell, the Georgia Court of Appeals reaffirmed the importance of causation in limiting the reach of negligence claims.

Edwards started on April 14, 2011, when the plaintiff’s grandmother took a trip to Campbell Tire Company (“CTC”). CTC had originally been owned and operated by Edward Campbell, but Campbell sold the company to Lanham Enterprises, LLC in April 2009. In an asset purchase agreement executed in conjunction with this sale, Campbell agreed to provided 60 days of training to Joel Lanham, the owner of Lanham Enterprises, LLC, who had no prior experience in the tire business. At the time of sale, it was Lanham’s understanding that the CTC employees had been there for a long time and had been primarily trained by Campbell. During the course of the aforementioned training, Campbell told Lanham that when a customer only purchases two new tires, the tires should be placed on the front axle, and Lanham believed this to be normal industry practice.

November 21, 2016

Georgia Court of Appeals Addresses Scope of Firearm-Related Tort Immunity

by Christopher Simon

In 2008, the Georgia legislature enacted the “Business Security and Employee Privacy Act,” O.C.G.A. § 16-11-135, which generally prohibits an employer from restricting an employee from bringing a licensed firearm onto the employer’s parking lot. In addition to protecting employees’ right to bring firearms onto business property under certain circumstances, the law immunizes businesses from criminal or civil liability arising from “the transportation, storage, possession, or use” of such firearms. O.C.G.A. § 16-11-135 (e). Although there are numerous exceptions under the Act, liability associated with employee firearm injuries is far more circumscribed than it was previously. For instance, in a recent decision, Lucas v. Beckman Coulter, Inc., the Georgia Court of Appeals affirmed the dismissal of claims against an employer whose employee shot someone else while making a delivery.

The shooting at issue in Lucas occurred on July 10, 2013. On that day, a field-service engineer employed by Beckman Coulter, Inc. (“BCI”), a biomedical testing equipment company, arrived at Albany Area Primary Healthcare (“AAPH”), where the engineer was scheduled to perform maintenance work on BCI equipment located at the facility. Upon his arrival at the facility, which was around 10:00 a.m., the field-service agent observed that the equipment on which he was supposed to perform maintenance was in use and returned to the parking lot to wait. When he returned to the parking lot, the field-service agent saw an AAPH lab technician with whom he was familiar taking a break. The two chatted for a few minutes, and while they were returning inside AAPH, the lab technician mentioned that there had been a spate of car burglaries in the parking lot. This news concerned the field-service engineer, for although it violated BCI policy, he often carried his personal firearm in the company vehicle while making service stops and was worried that it might be stolen. Accordingly, upon hearing this information, the field-service engineer returned to the BCI vehicle to retrieve his gun. Shortly after entering the building, the field-service engineer attempted to clear his weapon, but as he was doing so, the gun discharged, which resulted in a bullet striking the field-service engineer in the hand and the lab technician in the abdomen.

October 25, 2016

Georgia Court of Appeals Disallows Piercing the Corporate Veil in Dram Law Case

by Christopher Simon

In most circumstances, you cannot sue the actual owners of a corporation personally for the liabilities of the corporation. This is one of the key reasons that people use companies to insulate themselves from personal liability. Sometimes the company itself can be underfunded and the actual owner, very well off. In those circumstances, the Plaintiff may want to go after the owner. In this recent decision, the Court put some strict limits in place when trying to do that with a case where a bar let a drunk patron get on the roads.

When faced with this situation, plaintiffs will often attempt to “pierce the corporate veil” and impose personal liability on a corporation’s underlying shareholders. However, as the plaintiff in Barnes v. Smith, a recent decision from the Georgia Court of Appeals, now realizes, piercing the corporate veil may be far from a straightforward proposition.

The facts at the center of Barnes occurred on November 19, 2012. On that day, a patron arrived at Hank & Jerry’s Tavern in Rockdale County, Georgia at around 4 p.m. and had a beer and a shot of Jagermeister. The patron left the Tavern but returned at around 11 p.m. and again had half a beer as well as one and a half “Jagermeister bomb” drinks. The night bartender, who was also the supervisor at the Tavern that night and a personal acquaintance of the patron, noticed that the patron’s eyes were glassy and that he was acting belligerently. The bartender unsuccessfully attempted to take the patron’s keys and offered to either call him a cab or drive him home. In an effort to prevent the patron from leaving, the night bartender tried to lock the front door of the Tavern, but a different customer at the Tavern let the patron out in response to his belligerent conduct. The patron told the bartender that he would just rest in his car, which the bartender believed, but shortly thereafter, the patron drove away. The bartender knew that the patron should not be driving, but she did not call the police out of concern about getting the patron in legal trouble.