Negligence

December 13, 2015

Georgia Court of Appeals Affirms Dismissal of Railroad Employee’s Negligence Suit

by Christopher Simon

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.

November 1, 2015

Atlanta Federal Judge Grants Summary Judgment in Post Office Negligent Security Case

by Christopher Simon

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.

September 4, 2015

Georgia Court of Appeals Reverses Trial Court and Dismisses Personal Injury Case against Officer

by Christopher Simon

The scope of police authority in interactions with citizens has been a commonly discussed topic in media coverage in recent months. Although at the forefront of the modern discussion, the use of force is not a novel concept in the law. Indeed, law enforcement use of force is among the more commonly litigated issues in both state and federal court, and as many lawyers know, officers have some immunity from suit. This immunity, official immunity, is an affirmative defense, and the scope of the immunity is almost invariably at issue in cases brought against law enforcement. As demonstrated in the Georgia Court of Appeals’ recent decision in Vidal v. Leavell, the scope of official immunity is quite broad under Georgia law, a reality for which potential litigants should be prepared.

The facts at issue in Vidal occurred on April 23, 2011. On that day, the plaintiff in this case was at an IHOP in Buckhead with a friend. Shortly after being seated, the plaintiff noticed that the defendant in this case, an off-duty police officer hired by IHOP to provide security, approached a booth occupied by a group of young women. The plaintiff said she could not hear what words were being exchanged between the officer and the women but that she did see the officer force himself into the booth and push two of the women into the wall. The officer was attempting to arrest the patrons in the booth, and the plaintiff began to videotape the incident because she believed the officer was acting too aggressively. Another officer arrived and apparently engaged the defendant to halt his interaction with the patrons. The plaintiff testified that she touched the officer so that he would realize she was recording him. The officer then slapped the plaintiff, and the video shows that the plaintiff then took retaliatory swings at the officer. While the second officer held her arms back, the officer punched the plaintiff in the head and then threw her to the floor, dragged her to the door, and handcuffed her. The plaintiff was arrested for obstruction and assault. Other patrons at the IHOP videotaped the incident.

July 24, 2015

Supreme Court of Georgia Orders New Trial in Medical Malpractice Case

by Christopher Simon

Few cases ever advance far enough to be presented to a jury for consideration. However, when there is a trial, the propriety of interactions between the court, the parties, and the jury are of prime importance. Indeed, the integrity of the judicial process depends on both the court and the parties not unduly influencing the jury’s determination, and even the appearance of a misdeed can lead to a new trial. In a recent decision, Phillips v. Harmon, the Supreme Court of Georgia dealt with such a case of possible misconduct and ordered that there be a new trial held.

The facts underlying this case are incredibly unfortunate. The suit was brought by an infant, by and through his mother, and by the mother herself in an individual capacity. The plaintiffs alleged that as a result of the negligence of the defendants the infant suffered severe oxygen deprivation shortly before his birth. Consequently, the child suffers from permanent neurological problems, which include spastic quadriplegia, blindness, and an inability to speak. The case eventually progressed to a trial before a jury that returned a verdict for the defendants after a day and a half of deliberations. Following the jury’s verdict, the plaintiffs moved for a new trial, asserting that the trial court erred in both communicating with the jury in the absence of the parties and their attorneys and for not including a spoliation instruction in the jury instructions. Specifically, the trial court had responded to a note from the jury that was sent during deliberations without telling the parties or counsel that there had been a communication. The case was reassigned to a different judge, who denied the motion, and the plaintiff thereafter appealed to the Georgia Court of Appeals. The Court of Appeals determined that there needed to be a new trial and vacated the jury verdict. The defendants then appealed to the Supreme Court of Georgia.

June 29, 2015

When Does One “Voluntarily” Assume a Risk Under Georgia Law?

by Christopher Simon

Among the most common defenses in negligence litigation is assumption of risk. Assumption of risk was originally an affirmative defense that absolutely insulated a defendant from liability if it was shown that the plaintiff assumed the risk that resulted in injury. Today, however, assumption of risk has become part of the balancing courts and juries undertake when assessing comparative or contributory negligence. Georgia, which has a modified comparative negligence regime, bars recovery when it is shown that a plaintiff’s negligence contributed more than 50% to his or her resulting injuries. O.C.G.A. § 51-12-33(g). Given that recovery can either be barred or offset based on a plaintiff’s assumption of risk, defendants in negligence cases will often try to assert the theory’s applicability when confronted with allegations of negligence. For instance, the Georgia Court of Appeals recently ruled in Smith v. NT Nails, LLC. on whether a plaintiff who walked across a recently mopped floor had “assumed” the risk of falling.

The appeal in Smith followed the trial court’s grant of summary judgment in favor of the defendant. Looking at the evidence in a light favorable to the plaintiff, the record showed that on the night of her injury, the plaintiff went to the defendant nail salon for a manicure and a pedicure. The plaintiff was the last customer at the salon, and staff had begun cleaning and preparing the salon for closing. While the plaintiff was receiving her pedicure, an employee mopped the salon floor. When a technician finished the plaintiff’s pedicure, she gave the plaintiff a pair of rubber slippers to wear. The plaintiff stood up and walked across the wet floor to the register. After paying for the services, the plaintiff slipped on the floor, resulting in an accident. Following discovery, the trial court granted the defendant’s motion for summary judgment, finding that it was undisputed that the plaintiff assumed a known risk when she opted to navigate the wet floor.
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May 17, 2015

What Damages are Recoverable in Georgia for the Death of a Pet?

by Christopher Simon

In a recent decision, Barking Hound Village, LLC v. Monyak, the Georgia Court of Appeals addressed an interesting question arising from a lawsuit brought against a kennel by the owners of a deceased daschund. On appeal, one of the questions the court needed to answer was whether the trial court erred in its ruling on the appropriate measure of damages for the loss of the dog.

The principal defendant in the case, Barking Hound Village, is a kennel located in Atlanta, Georgia. In 2012, the plaintiffs in this case boarded two of their dogs, the aforementioned daschund and a mixed-breed labrador retriever, at Barking Hound for about 10 days. The evidence showed that, while under Barking Hound’s care, the plaintiff’s daschund was administered toxic doses of a medication that had been prescribed to the labrador retriever. The medication had been left at the kennel by the plaintiffs along with instructions that it was supposed to be administered to the labrador retriever. Three days after retrieving their dogs, the labrador was diagnosed with acute renal failure that ultimately led to its death about nine months later. The plaintiff brought a negligence suit against the kennel, alleging various forms of negligence as well as fraud. Barking Hound moved for summary judgment on all the claims, but the trial court denied the motion except as to the fraud claim. Both the defendant and plaintiff appealed the various summary judgment rulings.

April 10, 2015

Georgia Court of Appeals Tackles Failure to Inspect in Georgia Sugar Refinery Explosion Case

by Christopher Simon

The tragic Georgia Sugar Refinery explosion made national news and took the lives of numerous employees. 7 years later, the courts are still struggling with issues in the case. In a recent case, Bing v. Zurich Services Co., the Georgia Court of Appeals addressed whether a company hired to perform inspections of a sugar refinery could be held liable for injuries of workers present at the time of the refinery explosion.

The explosion at issue, which the Court of Appeals described as “catastrophic,” occurred on February 7, 2008. Workers injured as a result of the blast brought suit against multiple defendants, including Zurich Services Corporation. Imperial Sugar Company owned the refinery, and Imperial’s property insurance underwriter contracted Zurich to perform annual inspections at the plant. During the course of an August 2007 inspection, Zurich failed to inspect conveyor belts over which Imperial had recently placed stainless steel covers. Months later, in January 2008, an Imperial plant safety manager warned that the stainless steel covers lead to piling of sugar, posing an explosion risk. This issue ultimately led to the explosion. The injured workers argued the Zurich was liable for failing to inspect the covers, but Zurich moved for summary judgment, arguing that, as a matter of law, it did not owe a duty of reasonable care to the injured workers under the circumstances. The trial court concurred and granted the motion.

March 20, 2015

Georgia Court of Appeals Tackles Appeal in MARTA Wrongful Death Suit

by Christopher Simon

Public transportation is certainly a benefit, if not a necessity, for many in the Atlanta metropolitan area. However, travel on the rails or in buses, like driving in a car, is not free of risk. In a recent decision, Maloof v. Metropolitan Rapid Transit Authority, the Georgia Court of Appeals addressed whether it was appropriate to grant summary judgment in favor of MARTA in a negligence suit involving a disabled passenger traveling in a para-transit vehicle.

The accident at issue in the case occurred on April 13, 2005. On that day, the deceased, whose estate brought the instant lawsuit on her behalf, was traveling in a MARTA para-transit van. After the deceased boarded the bus, she backed her wheelchair into position, and the driver of the vehicle secured the wheelchair to the floor in four places and strapped a lap belt across the deceased’s waist. The deceased, however, declined to wear the shoulder harness. The deceased had traveled on para-transit buses before and had on all previous occasions declined to wear the shoulder harness. While making a wide right turn onto Piedmont Avenue, the para-transit van veered into an adjoining lane of traffic and, as a result, made impact with another vehicle. The contact was slight, but in an effort to avoid a more serious collision, the driver stopped abruptly, which caused the deceased to fall to the ground and break her leg. The deceased remained immobile for several months before passing away a little more than four months later.

March 1, 2015

Atlanta Federal Court Rules Officer Immune From Suit Under Discretionary Analysis

by Christopher Simon

Although the courthouse typically serves as a venue for resolving legal disputes, occasionally it can be the setting for their creation. For instance, the Atlanta Division of the United States District Court for the Northern District of Georgia recently addressed liability arising from a scuffle between an attorney and a Fulton County Sheriff’s Deputy at the entrance to the Fulton County Courthouse in its ruling in West v. Davis.

The events leading to this litigation occurred on December 9, 2010, when the plaintiff in this case, an attorney, arrived at the Fulton County Courthouse to represent a client in a domestic relations status conference. When the plaintiff arrived, she placed her belonging in a bin and proceeded through the metal detector, which sounded as she passed through. A security officer, the defendant in this action, approached the plaintiff and told her to remove her jacket. The plaintiff objected, saying that the jacket was part of her suit and that removing it would expose her undergarments. The Fulton County Sheriff’s Office, which provides security to the courthouse, has an unwritten policy that members of the public need not remove jackets at the metal detector and that officers are to use discretion in determining whom to ask to remove their jackets.

The defendant told the plaintiff that if she failed to comply and remained in the courthouse, she would be arrested. Thereafter, the plaintiff asked to speak to a supervisor and stated that the defendant put his hands on his handcuffs and glared at her menacingly. The plaintiff took out her cellphone and called her husband and the client with whom she was supposed to meet. The defendant then approached the plaintiff and told her to get off her phone. Rules do prohibit cellphone use in the area near the magnetometer and x-ray machines at the courthouse. The plaintiff states that when she refused to comply, the officer “grabbed her hand, squeezed it, jerked it towards him, wrenched it back and forth, and then forcibly removed the cell phone and flung it into her purse.” The defendant, however, maintains that he took her phone without grabbing her hand or using force. Shortly thereafter, the supervisor arrived and permitted the plaintiff to enter the courthouse after directing the defendant to use a metal wand detector in lieu of having the plaintiff remove her jacket.

February 14, 2015

Pre-trial Publicity Addressed in Negligence Suit Before Georgia Federal Court

by Christopher Simon

Although lawsuits can spur public interest based simply on the parties or issues involved, attorneys can – and in some instances, do – play a role in stoking public curiosity. The permissible bounds of attorney-instigated publicity were addressed in a recent decision from the U.S. District Court for the Northern District of Georgia, Adams v. Laboratory Corporation of America, which deals with the alleged negligent misinterpretation of several Pap smear tests by a diagnostic testing facility. The plaintiff asserts that the defendant’s negligence in interpreting her Pap Smear tests and reporting the results to her physician resulted in injurious delay in her cervical cancer diagnosis.

While the negligence claims at issue in Adams are interesting, the court decision, as noted above, deals not with these claims but with the conduct of the plaintiff’s attorney. On November 25, 2014, counsel for the defendant brought a motion for a court order that would prevent the parties, their attorneys, and agents of both from “discussing this case with the media or making statements to the media or on the internet, including social media, other than matters of public record.” The defendant argues this order is necessary because these communications could prejudice one or more of the parties and interfere with the court’s ability to conduct a fair trial. The defendant sought this order because the plaintiff’s attorneys, who are members of the Florida Bar, had released statements and other prejudicial information with respect to a similar lawsuit involving the same defendant before a federal court in Florida.

In Florida, the plaintiff’s attorneys and the plaintiff in the Florida case, the widower of a woman whose Pap smear results were also allegedly misread, had made prejudicial statements during several local news broadcasts and in interviews with print news media. These prejudicial statements, including references to evidence deemed inadmissible by the Florida federal court, were made shortly before jury selection in the Florida case. In response, the plaintiff’s attorneys argued that they are subject to Rule 3.6 of the Georgia Rules of Professional Conduct, which prohibits conduct more broadly than the analogous Florida Rules of Professional Conduct, and asserted that the defendant’s motion was made simply to prejudice the Court against them. In response, the defendants argued that, although the plaintiff’s attorneys are subject to the Georgia Professional Conduct Rules, they are not subject to discipline procedures, and thus the order was still required.