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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.

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New and improving technology in our vehicles has led to all kinds of upgrades in terms of driving safety- blind spot warning systems, automatic braking with radar detection, updated airbag systems, to name a few. Not all new technology, however, has been beneficial or as accepted in this regard. In particular, the new trend among auto manufacturers involving the implementation of large, tablet-like dashboard displays in almost all new vehicles has been the source of controversy over vehicle safety and the responsible use of technology while driving.

Car companies suggest that these oversized dash displays, which often times behave more like smart phones than the traditional dashboard, are actually safer than the design of older cars due to features like integrated voice controls that keep the driver’s hands on the wheel or the large touch screens for tasks like navigation that are easier to manage than trying to fumble with a smartphone (not to mention the fact that these kinds of new features will almost certain boost manufacturer revenue). But the questions remain- how much technology is too much in our cars? How connected should drivers be out on the road? Do we really want drivers or passengers checking social media posts or uploading photos while navigating rush hour traffic?

The dangers of texting and driving are all too familiar to personal injury lawyers who see the devastating effects technology can have when drivers aren’t devoting their full attention to the roadway. These large dashboard displays are just the newest distraction coming to our cars, and we’re sure to see an uptick in the number of wrecks caused by this technology as it becomes more and more commonplace. Unfortunately, our lawmakers are generally slow to adapt the law to changes in technology, so regulation over the use of these kinds of systems will likely be a topic of debate for years to come.

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In a recent and highly anticipated decision, Eshleman v. Key, the Supreme Court of Georgia addressed an interesting issue regarding the breadth of official immunity doctrine. Specifically at issue in Eshleman was whether official immunity shielded a police officer from liability when her K-9 dog escaped from her yard and allegedly attacked a child. In an unanimous decision, the Supreme Court of Georgia concluded that official immunity did in fact shield the officer from liability.

The police officer at issue in this case is employed by an Atlanta area law enforcement agency as both a police officer and dog handler. As part of her job, the officer is responsible for the care  of a police dog. When not on duty, the officer keeps the dog at her home, which is near the home of the plaintiff. The alleged attack at issue occurred in 2011. One day in November of that year, the officer placed the dog in a kennel outside her home but did not adequately secure the kennel.  Consequently, the dog absconded from the  yard and encountered the plaintiff’s then 11-year-old son. The plaintiff alleged that the dog attacked his son, which caused serious injury to the child. The plaintiff sued the officer, who moved for summary judgment, arguing that official immunity shielded her from liability. The trial court denied the motion, and the Georgia Court of Appeals affirmed the trial court’s denial. The Supreme Court of Georgia, however, reversed.

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The new Georgia insurance law regarding ride services became law on July 1, 2015 and it has big implications for you if you are thinking about driving for Uber or Lyft.

1. Your regular personal insurance policy likely excludes insurance coverage if you have a crash while working for these companies.

2. Georgia law now requires Uber and the like to provide $100,000 in injury and $50,000 in property damage insurance when a driver has the app activated and is available to take a rider.

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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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Georgia law requires that a plaintiff in a medical malpractice action provide an expert affidavit that must generally set forth the defendant’s failure to comply with the applicable standard of care. See O.C.G.A. § 9-11-9.1(a). Failure to comply with this requirement renders one incapable of successfully advancing a medical negligence claim. However, there are cases when actual testimony from a medical expert is unnecessary to ultimately succeed on a malpractice claim. For instance, the “pronounced results” exceptions obviates the need for expert testimony when the injury is of such an obvious nature that a jury can appraise the failure to exercise care without the assistance of an expert on the subject. In a recent decision, Zarate-Martinez v. Echemendia, the Georgia Court of Appeals addressed the interesting question of whether the expert affidavit requirement is waived in cases when a pronounced results exception is viable.

The plaintiff in this case alleges that a physician negligently performed an out-patient open laporoscopic tubal ligation procedure on her. The plaintiff had gone home the same day of the surgery without incident but started to experience pain, nausea, and fever over the coming days. She eventually went to the emergency room, where it was discovered that a part of her lower intestine had been perforated. The perforation was repaired, and the plaintiff remained in the hospital for further treatment.

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Spoiled Food Cause Your Injuries? Look Again…

​We frequently get calls from prospective clients who have been harmed by foreign objects in their food or by food tainted or spoiled in some fashion. Evaluating the foreign object cases is generally less complicated. Did you bite into something that caused significant dental problems? Did you swallow something that caused considerable damage to your mouth, throat, or esophagus? Those are the type of serious cases that are worth pursuing and hiring a lawyer to handle. Short of these types of harms, however, usually the best rule of thumb when you find a foreign object in your food that hasn’t caused you any physical harm is to write a negative online review and find somewhere else to eat.

​Cases where victims have been harmed by tainted food deserve quite a bit more scrutiny and can be more difficult to prove. Obviously, cases of serious injury caused by the presence of some harmful bacteria like salmonella are worth pursuing with a lawyer. The line becomes less clear, however, when this type of smoking gun cannot be detected. What if the allegedly spoiled food is just a little past the expiration date? It turns out that even the date printed in black and white on the sides on our packaging doesn’t give us an accurate picture of when our food is actually still good to eat. In fact, according to Thrillist, most of the food in our fridge remains unspoiled and safe for consumption well after the date on the label has told us it has gone bad.

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When Your Own Insurance Company Turns Against You

​We tell people involved in Atlanta car accidents that as attorneys, we feel the most important insurance coverage you can get is uninsured/underinsured motorist coverage (UM) through your own car insurance company. This is the coverage that kicks in to protect you when you are injured in a crash caused by someone who doesn’t carry liability insurance at all or they simply don’t have enough insurance coverage to pay for the harms they have caused. In Georgia, many drivers carry the minimum limits of liability insurance mandated by law- $25,000. If you are involved in a crash and suffer any kind of significant injury, that amount of money will likely not even cover the medical bills you incur for your medical treatment. Because the drivers who carry the minimum limits of insurance are usually the ones who cause most of the car wrecks in our state (there’s a reason why they can’t get better insurance), UM coverage is a must.

​But what happens when your own car insurance company doesn’t treat you fairly and refuses to compensate you for the damages you’ve suffered? Unfortunately, many injured victims in Georgia learn the hard way that their insurance company is happy to accept their premiums for UM coverage over many years, but when the time comes to pay out on legitimate claims, they are in for a serious fight. For instance, in one of our recent cases, the liability carrier for the at-fault driver was quick to pay our client the limits of their policy, but when it came time to pursue the money available under our client’s UM policy, her insurance company refused to negotiate after presenting her with a low-ball offer, forced us to file a law suit to protect her rights, and then failed to have an attorney present for important legal proceedings.

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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.

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Georgia’s impact rule has been around for over 100 years and basically holds that you cannot sue for witnessing a horrific injury unless you were also physically injured in the incident. The rule is formally stated thusly; the current Georgia impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.” Lee v. State Farm

In the Lee v. State Farm case, the Supreme Court recognized that the impact rule is silly when it comes to a parent hurt in a crash with their child who watches the child die. They should be able to recover for that horrible suffering. The encroachment was incremental but important. It had to be a death and it had to be a child and parent relationship. Friends or spouses had no where to go if they wanted to recover.

Then another exception arose, the “pecuniary loss” exception. It said that if the plaintiff lost some property in the event that there was a loophole and a jury could consider emotional distress from the incident. Our firm used this to recover for a mother who witnessed her young daughter being run over and killed. We argued that the parent owned the clothing and that satisfied the rule.

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