Wrongful Death

August 10, 2018

Georgia Court Decides Whether Wrongful Death Claim Is Limited by Previous Personal Injury Claim

by Christopher Simon

Georgia’s Supreme Court recently issued a decision deciding whether a wrongful death suit can be limited by a previous personal injury claim for the same accident. The plaintiff, through her husband, filed a personal injury suit against Toyota after a car accident left her in a coma. The coma was permanent and the plaintiff was totally and permanently disabled.

The case was tried before a jury, but before the jury rendered a decision, Toyota and the plaintiff entered into a “high-low” agreement. The agreement guaranteed the plaintiff a certain sum if the jury found in Toyota’s favor, and limited Toyota’s exposure if the jury found in the plaintiff’s favor. The jury returned a verdict for the plaintiff, and Toyota paid the sum it was required to under the settlement agreement.

The husband signed a written release on his wife’s behalf. It released Toyota from liability for all claims and damages arising from the accident, but expressly excluded “any claim for [the plaintiff’s] wrongful death, inasmuch as [she] has not died and no such claim was made or could have been made in the [personal injury lawsuit].”

May 22, 2018

Georgia Appellate Court Discusses Recreational-Use Statute in Recent Premises Liability Case

by Christopher Simon

A hunter went out on a piece of rural property and fell down a well and died and then his family tried to sue the land owner because of the hidden well. The Court of Appeals took a hard look at the immunity for hunting statute and rendered an opinion that squarely rebuffs any attempts like this. The Court of Appeals of Georgia issued the opinion in a Georgia premises liability lawsuit discussing the applicability of the state’s recreational-use statute to the plaintiff’s case. The court ultimately held that the defendant landowner was entitled to immunity because the plaintiff’s husband was on his land for the purposes of hunting, which was covered under the recreational-use statute.

The Recreational-Use Statute

Under OCGA § 51-3-20 and OCGA § 27-3-1 (e), a landowner who “gives permission to another person to hunt, fish, or take wildlife upon the land with or without charge” “may not be held liable for personal injuries resulting from unsafe or defective conditions existing on the premises.”

The Facts of the Case

The defendant leased land to another man who planned on starting up a hunting club. The lease limited the hunting club’s use of the land to hunting purposes only, and, while the lease did not name anyone else in the document itself, the lease did contemplate that there would be others entering the land to hunt.

September 6, 2017

Georgia Boy Drowns in Apartment Pool

by Christopher Simon

A recent Georgia wrongful death decision arose from a lawsuit that involved the drowning of a small child. Our firm is currently handling a sad case involving a five year old who climbed the fence of a closed pool because the fence had improper handholds available to allow it to be climbed. Our case is in litigation which will hopefully result in changes to the pool fence and the way management assesses danger. Sadly in the case below, the tragedy could not be averted and there was no legal liability.

On the Fourth of July in 2014, a four-year-old boy drowned in a community swimming pool that was for the people who lived in a particular residential community and their guests. The child was at the pool with his mother and relatives, none of whom lived there. His aunt had given them her pool key card so that they could go to that pool, but she wasn’t present.

The pool was crowded, and the four-year-old was underwater for almost five minutes before someone found him. His mother and a nurse tried to resuscitate him. It took emergency personnel 20 minutes to get there. The boy died.

His father sued the Homeowners’ Association, its management company, and the property manager. He asserted that the boy’s death was a result of negligent pool management. Summary judgment was granted for the defendants. The lower court found the boy was a trespasser, so the only duty owed to him was of not willfully or wantonly hurting him, and they hadn’t breached that duty. The father appealed.

August 7, 2017

Drowning Adults Have a Tough Road in Court Because of Assumption of the Risk

by Christopher Simon

In a recent Georgia injury case, the court considered the drowning of a 20-year-old college student while he was studying abroad in Costa Rica. His university offered students a 12-day trip. They had to pay a fee that went toward the trip expenses as well as a per credit tuition rate and were supposed to get four credits toward their degree for academic work they did in connection with the trip.

The university retained a tour operator to provide a guide, transportation, and coordination. Later, the director of the program would testify that the university tried to follow best practices, including safety procedures for the students. He acknowledged that students went swimming on the trips, but he hadn’t done any investigation to decide whether Costa Rica had any potential dangers.

In a meeting with the students who registered for the program, two professors asked them if everyone was a good swimmer. The students said they were. The group talked about swimming in the ocean and discussed that there were currents. A professor advised that in a prior trip, a student realized he was a weak swimmer and had to wear a life jacket in the water. The students claimed to be good swimmers even after hearing this. They signed a release that included an exculpatory clause related to the university.

May 1, 2017

Wrongful Death Due to Georgia Security Guard’s Negligence

by Christopher Simon

A recent Georgia premises liability and wrongful death case shows how apportionment law can complicate a solid case.

The victim was murdered in the parking lot of a gated community. His wife sued the condominium complex and its security firm for negligence in failing to keep the premises safe despite numerous prior shootings. Remember that under Georgia law a property owner or manager is only liable for the third party crime if there were prior similar crimes enough to put the owner or manager on notice of the likelihood of more violence.

The case went to trial against the condominium association and security firm, and the jury found for the spouse, awarding her more than $3 million in damages for wrongful death.

Fault was apportioned among the defendants, with 25% of the fault apportioned to the condominium, 25% to the security firm, and the remainder against the assailants who’d murdered the victim. The condominium association argued that it should only be 25% to blame instead of also owing the 25% apportioned to the security company under a vicarious liability for a non-delegable duty theory as argued by the plaintiff.

The condominium appealed the trial court’s decision to deny its motion for a directed verdict and the trial court’s decision to find it liable for the security company’s share of fault. The wife cross-appealed the trial court’s decision before trial not to stop the condominium from arguing it wasn’t legally responsible for its security firm and the security guard, and she also appealed the denial of her motion to prevent the apportionment of fault between the condominium and security firm.

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.

September 29, 2016

Georgia Federal Court Dismisses Inmate Stillborn Birth Case

by Christopher Simon

For soon-to-be parents, quality prenatal care is of the utmost importance. Although finding quality prenatal health care providers is often a difficult undertaking for many people, the task can be even more difficult for women who find themselves behind bars during a pregnancy. Indeed, in a recent decision, Durden v. NaphCARE, Inc., a Georgia federal district court needed to address a medical malpractice claim brought by a female inmate who suffered a stillborn birth while serving time in a detention facility.

The plaintiff in this action learned that she was pregnant in November 2011, shortly before she was to report to Newton County Detention Center (“NCDC”) to serve a sentence for a state court conviction. The principal defendant in this action, NaphCARE, Inc., is a contractor hired by Newton County to provide healthcare and nursing services to inmates at NCDC. The plaintiff had her first appointment with the obstetrician responsible for her care during the course of her pregnancy and incarceration on January 17, 2012. During a visit with the obstetrician on March 13, the plaintiff was diagnosed with an incompetent cervix, a condition that if left untreated could result in a miscarriage or premature delivery. The plaintiff was admitted to Newton Medical Center, where she underwent a procedure involving the insertion of a cervical cerclage to treat the incompetent cervix. The plaintiff was discharged two days thereafter and returned to the infirmary at NCDC. On the afternoon of the day of her return to the infirmary, the plaintiff began to complain of vaginal discharge. The obstetrician was contacted, and he instructed nurses at the infirmary to continue monitoring the plaintiff’s condition.

September 6, 2016

Supreme Court of Georgia Rules on Novel Medical Negligence Defense

by Christopher Simon

In 2007, the Georgia legislature adapted existing state laws concerning powers of attorney and living wills and adopted the Advance Directive Act. This Act streamlined existing state laws to make it simpler for a citizen to declare preferences for medical treatment and appoint someone to make medical decisions on his or her behalf. Beyond clarifying rights associated with medical decision-making, the Act provided immunity to health care providers in certain situations when care is administered in contravention of the terms of an advance directive. Given the law’s newness, many of these contours of the Act’s provisions have yet to be tested through litigation. However, in a recent decision, Doctors Hosp. of Augusta v. Alicea, the Supreme Court of Georgia took the opportunity to weigh in on the scope of this important law.

The plaintiff in Alicea is the granddaughter of a deceased woman who received care at Doctors Hospital in Augusta, Georgia. The decedent had been brought to the hospital on March 3, 2012, and preliminary tests showed that she was suffering from pneumonia, sepsis, and acute renal failure. About two years earlier, the decedent had executed an advance directive that generally gave the plaintiff the authority to make medical decisions on her behalf, including decisions related to artificial life support treatments. The decedent had repeatedly told her family members that she did not want rely on machines to live and that her family should let her pass when it was time. In addition, the advance directive contained particular provisions expressing the decedent’s desire to not have her life prolonged artificially. At the time the decedent was admitted to the hospital, the plaintiff gave a copy of the advance directive to the staff.

August 5, 2016

Are Georgia Parks immune from Lawsuits When they don’t charge Admission?

by Christopher Simon

Situated just outside Atlanta, Stone Mountain Park serves as a venue for many important Metro Atlanta outdoor events. Although most are characterized only by revelry, not all go off without incident. Indeed, one such unfortunate event was at the heart of a recent decision from the Georgia Court of Appeals, Stone Mountain Mem. Assn. v. Amestoy, which involved the untimely death of a bicyclist at Stone Mountain.

Viewed in a light favorable to the plaintiff, the widow of the deceased bicyclist, the evidence is as follows. At around 7:30 a.m. on the day of the bicyclist’s death, members of the Stone Mountain Memorial Association Public Safety Department were making preparations on Robert E. Lee Blvd. in anticipation for a 5K run that was set to begin at 8 a.m. These preparations included the placement of side-by-side barricades across the southbound lanes of Robert E. Lee Blvd. The barricade had orange and white strips and bore “do not enter” signs. An official was stationed near the barricade, but he left suddenly at one point in order to urinate. While the official was in the restroom, a different department official saw two bicyclists maneuver around the barricades. About five to ten minutes later, the deceased man was observed riding his bike toward the same barricades at what one witness described as a “normal” speed. The deceased man had his head down, and as he traveled between the barricades, his bike made contact with one of them, causing him to be thrown off. Although he was wearing a helmet, the victim suffered head trauma, which ultimately led to his death.

May 26, 2016

Georgia Court of Appeals Splits on City’s Possible Liability for Minor’s Suicide

by Christopher Simon

Dealing with the suicide of a loved one is always a tremendously difficult task. Unfortunately for some, this pain and grief can, in certain circumstances, be exacerbated by an indication that the acts of another party motivated the suicide. Although the conduct of others can clearly contribute to someone’s decision to end his or her life, the law often does not provide for liability in most circumstances. A recent decision from Georgia’s Court of Appeals, City of Richmond Hill v. Maia, demonstrates that courts are reluctant to impose liability when someone elects to commit suicide.

The tragic facts at the heart of this case occurred in 2011. On Valentine’s Day of that year, the then 14-year-old daughter of the plaintiff in this action attempted suicide. As part of an investigation into the matter, Richmond Hill, Georgia officers reported to the hospital and took photos of the minor. The minor remained hospitalized for a little more than a week, but news of her attempted suicide started to spread around her school. One of the minor’s schoolmates asked her father, one of the officers who reported to the hospital, about the suicide attempt. Concerned that his daughter did not understand the gravity of the situation, the officer logged into his work computer to show his daughter photos of the injuries sustained by the minor. At a deposition, the officer testified that he did not allow his daughter to copy the photos and that he did not otherwise disseminate the photos. However, another schoolmate of the minor testified at a deposition that the officer’s daughter showed her and at least two other students pictures of the minor’s injuries a few days later. A different schoolmate averred that the officer’s daughter used her phone to show another student and her pictures of the injuries.