Atlanta Injury Attorney Blog

March 26, 2019

Georgia Appellate Court Dismisses Plaintiff’s Refiled Case as Untimely Due to Failure to Name Correct Party in Original Complaint

by Christopher Simon

The first few decisions a Georgia personal injury plaintiff makes can be critical to the ultimate success of their case. In a recent Georgia premises liability case before the Court of Appeals of Georgia, the court dismissed the plaintiff’s case as untimely because the plaintiff originally named the wrong party as a defendant. By the time the plaintiff voluntarily dismissed her initial complaint and refiled a complaint naming the correct defendant, the statute of limitations had expired.

The Facts of the Case

According to the court’s written opinion, the plaintiff was injured at a water park. Just a few days before the statute of limitations expired the plaintiff filed a premises liability lawsuit naming “Georgia Department of Natural Resources d/b/a Summer Waves Water Park” as a defendant. Later, the plaintiff voluntarily withdrew that case and refiled a case naming “Jekyll Island State Park Authority, a/k/a Jekyll Island Authority, d/b/a Summer Waves Water Park” as the defendant. The two claims were based on the same injuries. The plaintiff claimed that the subsequent case was a renewal action and that it related back to the date of her original complaint.

The defendant argued that the plaintiff’s case was filed after the statute of limitations, and should be dismissed. The defendant argued that the plaintiff’s second case was not a renewal action because it named a different defendant. The trial court agreed with the defendant, and the plaintiff appealed.

March 26, 2019

Court Rejects Georgia Plaintiff’s Dog Bite Case Based on Lack of Causation Evidence

by Christopher Simon

Earlier this month, a state appellate court released an opinion in a Georgia dog bite lawsuit discussing the element of causation, as well as the type of evidence that a plaintiff must present to establish liability against an out-of-possession landlord. Ultimately, the court determined that the plaintiff failed to present any evidence indicating that her injuries were a foreseeable result of the defendant landlord’s negligence actions.

The Facts

According to the court’s written opinion, the plaintiff was on a walk with her dogs a few blocks from her home when two pit bulls approached her. The approaching dogs initially began to quarrel with the plaintiff’s dogs, but when the plaintiff tried to separate the animals one of the large dogs knocked her to the ground and began to attack her. Thankfully, a passerby called the police, and officers were able to stop the attack. However, the plaintiff sustained serious injuries as a result of the attack.

The plaintiff filed a personal injury lawsuit against the dogs’ owners. However, the plaintiff later added the landlord as an additional defendant, claiming that the landlord was negligent in failing to keep his property safe. This case involves the plaintiff’s case against the landlord.

January 15, 2019

Georgia Court Rejects Plaintiff’s Slip-and-Fall Case for Lack of Evidence Proving Defendant’s Knowledge of Hazard

by Christopher Simon

In a recent Georgia premises liability case before a Georgia appeals court, the plaintiff filed a premises liability claim after she fell at a medical office. Evidently, she was walking next to the lobby desk inside the medical office as she felt something grab her pant leg, causing her to fall. After her fall, the plaintiff saw that a wheelchair was sitting next to the lobby desk.

A desk attendant who helped her up testified that she also saw the wheelchair there when the plaintiff fell, but that it had not been there a few moments earlier when she had walked away from the desk. The medical office argued that the plaintiff failed to present evidence showing that she had tripped over the wheelchair or that the medical office had superior knowledge of that hazard.

Actual and Constructive Knowledge

Under OCGA § 51-3-1, a landowner who invites others onto the property for a lawful purpose is liable for injuries caused by the owner’s “failure to exercise ordinary care in keeping the premises and approaches safe.” In a slip-and-fall case, a plaintiff must prove that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff lacked knowledge of the hazard despite having exercised ordinary care because of the actions or conditions within the owner’s control.

December 26, 2018

Court Discusses “Distraction Doctrine” in Recent Georgia Premises Liability Case

by Christopher Simon

It is a tough lesson to learn but in Georgia you don’t have a claim for a slip and fall if there are wet floor signs and you still slip and fall. Remember the law does not require stores to be perfect, you just have to give customers a head’s up when there is a hazard like a wet floor. The Court of Appeal recently reaffirmed that when the ruled on a fall at Home Depot. Recently, a state appellate court issued a written opinion in a Georgia slip-and-fall case discussing the state’s distraction doctrine. Ultimately, the court rejected the plaintiff’s claim against the defendant hardware store because the plaintiff failed to notice a hazard that the court determined to be open and obvious.

In Georgia personal injury lawsuits, the plaintiff must prove that the defendant had superior knowledge of the hazard that caused the plaintiff’s injury. This requires the court to determine each party’s relative awareness of the hazard. A plaintiff, however, cannot benefit from exercising ordinary care while on another’s property. Thus, if a hazard is open and obvious and the plaintiff fails to notice it, the plaintiff may be precluded from pursuing a claim against the landowner.

The Facts of the Case

According to the court’s recitation of the facts of the case, the plaintiff was a customer at the defendant hardware store. The plaintiff entered the garden section of the store, and approached an employee to ask where a specific part was located. The employee instructed the plaintiff to follow him, and headed off toward the aisle where the part was located. The plaintiff stepped immediately behind the employee and began to follow him. After a few steps, the plaintiff slipped on pavement that was wet due to the recent watering of the store’s plants. It was undisputed that there were “Caution: Wet Floor” signs in the area.

October 16, 2018

Who is Going to Pay When the Are Multiple Vehicles in the Crash?

by Christopher Simon

Determining liability in a Georgia car accident may seem to be a straightforward endeavor, and in some situations, that may be the case. However, when an accident involves multiple vehicles, establishing which parties are at fault and which parties are entitled to recover for their injuries can be a bit more complex.

To help judges and juries divvy up liability in Georgia multi-vehicle accident cases, courts use the comparative fault model contained in Georgia Code § 51-12-33. Under Georgia’s comparative fault model, any accident victim who is less than 50% at fault for causing an accident is able to recover for their injuries. However, in determining the appropriate amount of damages, the court will reduce the plaintiff’s damages award by their own percentage of fault. For example, if a motorist sustained $500,000 in injuries but was determined to be 10% at fault, the motorist’s total recovery amount would be $450,000 (the total figure of $500,000 less 10%).

Section 51-12-33 helps courts deal with other issues that can arise in a situation involving several potentially liable parties. For example, like the situation where a plaintiff is partly at fault, each defendant will be assigned a percentage of fault and will be responsible for their own share of the damages. This is regardless of whether there are other potentially at-fault parties that were not named in the lawsuit, for whatever reason. Additionally, a defendant cannot be held liable for amounts in excess of their own share, in the event that one of the other at-fault parties is unable to compensate a plaintiff. In other words, defendants will not be held jointly liable.

September 19, 2018

Food Poisoning Cases Can’t Survive Unless the Science Connects the Meal to the Particular Illness

by Christopher Simon

Last month, the Supreme Court of Georgia issued an interesting and important opinion in a Georgia product liability case that changed the way lower courts will analyze food-poisoning cases in the future. Although the appeals court allowed the case to proceed to trial, the evidence connecting the caterer to the poisoning is weak and will likely fail at trial.

WHAT MAKES A WORKABLE FOOD POISONING CASE?

You start with the eternal question of “so what?” If the harm was just vomiting and a trip to the ER, ask for the ER bill to be paid and move on. Yes they may be responsible, but life goes on and they certainly did not intend it.

If you have a hospital admission or anything more serious, then there is a point to moving to the analysis of what caused it.

In order to carry a strong case, the hospital needs to take a stool sample to determine the kind of food poisoning and the particular strain. That data can then be compared to the source food to conclusively show what caused it. Food poisoning usually take 2.5-4 hours to set in, so if it happens quickly, it’s likely not from that meal.

The Facts of the Case

The case dealt with the burden a Georgia food poisoning plaintiff has to meet in a defense motion for summary judgment. Ultimately, the court concluded that Georgia food poisoning plaintiffs should be held to no higher a standard than any other plaintiff who brings a case based on a theory of negligence.

The plaintiffs were a man and woman who became violently ill after consuming food that had been prepared by the defendant caterer at a wedding rehearsal dinner.

The defendant filed a motion for summary judgment, challenging the plaintiffs’ case on the basis of causation. Essentially, the caterer claimed that the plaintiffs were “unable to show that their alleged food poisoning was proximately caused by defendant.” In support of this argument, the caterer pointed to the fact that the plaintiffs ate food from numerous other places in between the time they consumed the defendant’s food and the time they became ill. Additionally, the defendant argued the fact that none of the defendant’s employees, the event staff employees, or the other rehearsal dinner guests became ill after eating the food.

September 10, 2018

Georgia Appellate Court Discusses Venue Selection in Recent Hit-and-Run Accident Case

by Christopher Simon

The county where you bring a car accident lawsuit, the venue, can have as much of an impact on the value of the case as anything else. When analyzing value and making decisions about where to file the lawsuit, you really have to weigh your options carefully. One excellent example of how tricky this can be is a recent opinion, a state appellate court discussed a case that stemmed from a Georgia hit-and-accident. The case presented the court with the opportunity to discuss how the general procedural rules governing which venue is appropriate fit together with the more specific venue-selection rules contained in the state’s uninsured motorist (UIM) statute.

Ultimately, the court concluded that the specific venue-selection language in the UIM statute should be given effect over the more generally applicable rule. Thus, the court dismissed the defendant’s appeal.

The Facts of the Case

The plaintiffs were injured after the defendant rear-ended the vehicle in which they were riding. Immediately prior to the accident, an unknown “John Doe” driver cut off the plaintiff’s vehicle, requiring the plaintiff driving the car to slam on the brakes to avoid rear-ending him. After the plaintiff slammed on the brakes, the defendant crashed into the back of their car, and the John Doe driver sped away. He was never located. The plaintiffs filed a personal injury lawsuit against both John Doe as well as the named defendant.

September 6, 2018

Georgia Slip and Fall CLE

by Christopher Simon

Slip and Fall Cases Come in All Shapes and Sizes

Quick Things to Know

SLIP AND FALL CASES ARE THROWN OUT ON SUMMARY JUDGMENT, BY DIRECTED VERDICT AND THROUGH DEFENSE VERDICTS ALL THE TIME

August 28, 2018

Renting a car with Turo, does my auto insurance cover me?

by Christopher Simon

Many of you are trying out the convenience of the car rental-ish entity, Turo, which allows you to rent people’s private vehicles much in the same way that Airbnb does for houses. One of the key questions is, what if you rent a Turo car and get into a car accident and damage another car or hurt someone?

I scheduled a trip for Labor Day to San Francisco and one of my all time goals was to rent a hot car and drive the Pacific Coast Highway and the Napa and Sonomo Valleys. I got on Turo and found a perfect 2018 Black Jag F-Type convertible for a reasonable $200 a day. Throw in a few taxes etc and then you come to a buy insurance screen. Turo pretty much tells you they have no idea if your car insurance will cover you and suggests you buy a “spot” policy that covers you while driving. This policy is written by Liberty Mutual and comes in either $30,000 in liability coverage or $1,000,000 of liability coverage. The larger policy costs $81 dollars a day! Once you factor this in, the rental rate looks a lot less attractive.

I started poking around. First I checked with American Express, which normally provides coverage for property damage done to rental cars so you don’t have to buy that from Enterprise or Hertz or whatever. Nope, Amex says right on their website “we do not consider Turo to be a car rental company” and therefore their coverage does not apply.

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].”