by

Elevators are among the tremendously useful inventions of the modern era. Indeed, buildings would have never reached even half of the astronomical heights they have attained in the elevator’s absence. Along with being a modern necessity, however, elevators can be incredibly dangerous when not properly maintained. Although a shoddy cable breaking is the most worrisome concern, even more minor failures in elevator upkeep can lead to injury. Indeed, the smaller risks posed by poor elevator maintenance were at the center of a recent decision from the Georgia Court of Appeals, Hill v. Cole CC Kennesaw GA, LLC.

Hill arose from a trip and fall accident at a building where the plaintiff was employed. On the day of the accident, an elevator repair technician employed by Kone, Inc. performed preventative maintenance work on the elevator at issue as well as three others located in the building. At around 5 p.m., after purportedly completing this maintenance work, the technician left. However, about five hours later, the employee entered the elevator with a coworker. The trip was uneventful except that when the elevator reached the desired floor, the base of the elevator did not line up with the edge of the floor. Unaware of the mis-leveling issue, the plaintiff tripped while exiting and hit her head against a metal pole located inside the elevator. The plaintiff’s coworker pressed another button and was returned to the lobby, where she sought assistance for the plaintiff. After this string of events, which included the plaintiff’s journey to the emergency room, a different building occupant noticed the leveling problem and reported the issue to management.

Continue reading

by

A little over a year ago, we reported on the case of 6 year old girl who was severely injured by a foul ball at a Braves game in 2010.  Her parents were originally suing the owners of Turner Field for negligence related to the absence of safety netting around the field that would have protected fans from dangerous foul balls entering the stands. We wrote an article discussing how the Court of Appeals allowed the head injury case against the Atlanta Braves to proceed, even though decades of case law said that the spectator takes the risk. The Court essentially said that because a minor cannot assume the risk, the minor still has a case for injury at a game, even if the adult does not.  This case is now in the news again because the plaintiffs are expanding the scope of the suit by adding Major League Baseball as a defendant in the case, in addition to the owners and operators of the stadium itself.

The addition of this national entity is intended to bring up an ugly issue for the entire sport- performance enhancing drugs.  The plaintiffs’ theory of liability is that a juiced-up player is going to hit balls harder and faster than a non-enhanced player would under the same circumstances. Furthermore, Major League Baseball is well aware of this epidemic but has done nothing to protect its fans from the consequences of its players conduct as it relates to foul balls, thus creating a greater likelihood for fans, such as the 6 year old girl in this case, to be injured by an errant ball.  Most interesting is the fact that the player who hit the ball in this case was none other than Melky Cabrera, who served a 50 game suspension two years after this particular incident for testing positive for performance-enhancing testosterone. However, whether Major League Baseball actually owed a legal duty to the injured girl in this case is a question that remains unsettled

by
Posted in: Uncategorized
Updated:

by

Under Georgia law, a defendant’s admission of liability may be presented as evidence in a negligence case.  Admissions of liability can have considerable influence on juries, so determinations regarding which evidence may properly be considered an admission are often hotly contested. Although trial courts have considerable discretion in making such evidentiary determinations, their rulings, given the potential impact, are not immune from appellate review. Indeed, in a recent decision, Agic v. Metro. Atlanta Rapid Transit Auth., the Georgia Court of Appeals recently reversed a trial court for improperly excluding evidence of a MARTA bus driver’s admission of liability for an auto accident.

As noted above, Agic arose from a motor vehicle accident involving a MARTA bus and two other vehicles. The plaintiff in this case was a passenger in an SUV being operated by another person. The driver of the bus hit a different vehicle while attempting to change lanes on North Druid Hills Road. The collision caused the other vehicle to travel into incoming traffic, where it was struck by the SUV in which the plaintiff was traveling. After the collisions, the police told the bus driver he was free to go but then later requested that he return to the scene of the accident, where the bus driver was issued a traffic citation for improperly changing lanes. The bus driver paid the citation without appearing in traffic court, resulting in forfeiture of bond. In addition, MARTA conducted its own investigation of the crash, and the driver signed a report that acknowledged that the accident was “preventable.” The plaintiff sustained injuries as a result of the crash and brought suit against MARTA and the bus driver. Prior to trial, the defendants made a motion in limine, which sought to exclude any reference to the citation during trial. The trial court granted the motion. After the trial, the jury returned a verdict favorable to MARTA, and the plaintiff appealed the verdict.

Continue reading

by

In an unfortunate example of a Court of Appeals panel totally ignoring a jury, the Court threw out a $1.6 million dollar verdict. The Judges opined that the jury was flat out wrong and considered the evidence incorrectly. Keeping a jury verdict when there is an Appellate bench willing to call the jury blind and deaf is a challenge as this case illustrates in this recent decision from the Georgia Court of Appeals, Redmon v. Daniel, which arose from the tragic death of a man struck while navigating a highway exit ramp.

The events leading to this case began on an early morning in September 2009. The evidence showed that the husband of the plaintiff, who brought the claim as the representative of her late husband’s estate, was walking along an exit ramp that led from Georgia Highway 316 to Georgia Highway 120. There are neither street lights flanking this stretch of road nor ambient lighting from nearby signs. The plaintiff’s husband was dressed in dark green shorts and a black shirt at the time. While proceeding along the exit ramp, the plaintiff’s husband was struck by a Chevrolet Tahoe. The impact caused his body to fly into the Tahoe’s windshield and then into the road. The Tahoe was being followed by a garbage truck. The driver of the garbage truck did not see the accident but did testify to seeing something he thought was a deer ricochet off the Tahoe. The garbage truck driver testified that he attempted to avoid the object, but at some point during the driver’s maneuvering, the rear tires of the garbage truck ran over the man’s head. The speed limit along Highway 316 is 55 miles per hour, and the evidence showed that the vehicles were traveling between 40 and 50 miles per hour.

Continue reading

by

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.

Continue reading

by

In a recent medical malpractice decision, the Georgia Court of Appeals addressed an intriguing issue concerning whether jurors may use the sense of touch in weighing evidence.  The decision, Piedmont Newnan Hospital, Inc. v. RA-085 Barbour, arose from an alleged act of medical negligence that occurred during the course of medical testing at a Georgia hospital.  During the trial, counsel for the plaintiff requested that the jury be allowed to touch the plaintiff’s hands in order to determine whether there was a perceptible difference in temperature, a fact important for assessing the testimony provided by the parties’ competing expert witnesses.  The trial court granted the plaintiff’s request, permitting jurors who wished to touch the plaintiff’s hands to do so. Following the trial, which led to a favorable judgment for the plaintiff, the defendant appealed several issues, including the trial court’s ruling to let the jury utilize their sense of touch.

This events leading to this suit started on June 1, 2011, when the plaintiff visited the defendant hospital, complaining of chest pain and labored breathing. The plaintiff underwent a battery of diagnostic tests, in particular a nuclear stress test, which compares blood flow to the heart at periods of rest and stress. The test requires a small amount of nuclear material to be injected into the patient’s bloodstream, so that it may serve as a tracer and aid in taking images of the heart. In this case, the tracer was administered using an IV catheter, which was originally placed in the patient’s left arm. During the stress portion of the test, and shortly after a second dose was administered, the plaintiff began to experience pain. A nurse terminated the test, believing that the nuclear material may have infiltrated the plaintiff’s arm. The plaintiff was discharged with instructions for dealing with his arm.

Continue reading

by

Although we expect all products to function as anticipated, that is especially true for those products on which we rely to provide safety during dangerous situations.  Indeed, when the risk of harm is high, an equipment failure can lead to truly tragic results. This type of product failure was at the heart of a recent decision from the Georgia Court of Appeals, Key Safety Sys., Inc. v. Bruner, which involved a product defect in the seatbelt restraint system of a Jeep Wrangler.

This suit centers around a rollover accident that occurred in September 2007. The suit was brought by the husband of the passenger of the jeep, acting as the personal representative of the estate of his wife, who died as a result of the accident. The decedent’s husband owned the vehicle, but it was being driven by his daughter at the time of the turnover. The reasons for the turnover remained unknown. Both the driver and the decedent were apparently wearing their seatbelts, but during the course of the accident the decedent was ejected from the vehicle and sustained various severe injuries, including a loss of body tissue around her upper legs and abdomen. The decedent eventually succumbed to her injuries. The vehicle seatbelt restraint system was designed, constructed, and integrated by Key Safety Systems, Inc. The husband brought suit against Key and various governmental entities, alleging failure to warn, strict product liability, negligence, and failure to recall and/or retrofit. The case proceeded to a trial, after which the jury returned a verdict awarding the plaintiff $4,600,000. The jury apportioned 20 percent of the fault to the decedent’s daughter and 80 percent of the fault to Key. In light of this unfavorable verdict, Key brought an appeal, arguing that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict with respect to the failure to warn claim, and by admitting expert testimony regarding certain seatbelt retractor mechanism testing performed by the expert witness and a video of such testing.

Continue reading

by

Under the Fair Labor Standards Act of 1938 (“FLSA”), virtually every business operating in America is required to furnish its employees the federal minimum wage and overtime compensation. There are a number of exceptions to the FLSA, however, and many employers will try to cubbyhole their employees into one of the many available exemptions. Among the exceptions most often cited by employers is the one that applies to “independent contractors.” Indeed, many employers will classify their employees as independent contractors and, in some cases, have them sign form agreements purportedly manifesting an intent to be bound by the terms of an independent contractor relationship. This dynamic was recently addressed by an Atlanta federal district court in Henderson v. 1400 Northside Drive, Inc., a case with facts involving whether strippers were the employees of a strip club.

Henderson was brought by a group of male adult dancers who worked at an adult nightclub that was owned and operated by 1400 Northside Drive, Inc. Each dancer was required to sign an “Independent Contractor Agreement,” which generally stated that the dancer understood that his compensation would be derived solely from customer gratuities and that the club was not responsible for compensating the dancer in any way. The dancers argued that they were misclassified as independent contractors and are therefore entitled to unpaid minimum wage and overtime compensation from the club.

Continue reading

by

 Car accidents with police officers can present numerous challenges for those injured in the crash. Chief among these challenges is the issue of sovereign immunity, which can make it quite difficult to pursue a claim against a negligent officer if they are operating within the course and scope of their duties. If an officer is in pursuit of a suspect or responding to a call for help and their blue lights are flashing, it is hard to bring an injury claim if you are struck and injured by a police cruiser during such an incident. Likewise, injuries resulting from crashes resulting during a police pursuit have an entire body of law protecting the officer if they are following department guidelines.

A recent Georgia case, however, illustrates one situation in which a claim is not be barred by immunity issues. Last week, two Paulding County teenagers were killed in a wreck involving a Georgia State Trooper traveling at a high speed for no apparent reason.  The crash occurred on the night of Saturday October 3 on U.S. 27 northbound in Carroll County. The trooper, who was not on an emergency call, not responding to an accident, and not trying to stop a vehicle, was merely on patrol traveling over 90 mph on a stretch of road where the speed limit is 55pmh.  Data from the crash shows that he was going 91 mph only five second before the fatal impact. The unfortunate victims in this tragedy were sitting in a Nissan Sentra, attempting to turn left in front of the path of the police cruiser, clearly not realizing that the trooper was traveling at such a high rate of speed. The trooper applied his brakes in an attempt to avoid the impact and had slowed to 68 mph just prior to the collision, but it was too little too late.  Both backseat passengers in the Nissan were killed and the two other teenagers suffered serious injuries.

Sovereign immunity is waived for most vehicle accidents involving cities, counties and the state. State claims in particular are governed by the Georgia Tort Claims Act. The cap for GTCA claims is $1,000,000. See GTCA Liability Policy.

Continue reading
by
Posted in: Uncategorized
Updated:

by

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.

Continue reading