Personal Injury Category Archives - Page 5 of 14 - Atlanta Injury Lawyer Blog Published by Atlanta Personal Injury Lawyer

The Name of the Game is Blame: The Saga of Apportionment, Part Two

April 2, 2019 | Robin Frazer Clark

There have been two recent appellate decisions in Georgia that address the morass that is apportionment: FDIC v. Loudermilk, No. S18Q1233 (Ga. S. Ct. March 13, 2019) and Trabue v. Atlanta Women’s Specialists, LLC, No. A18A1508 (Ga. Ct. App. March 7, 2019). Since the Georgia Legislature passed a new scheme of how a plaintiff receives justice in our Civil Justice System some 14 years ago, called “apportionment,” there have been 1,328 Georgia appellate opinions that mention apportionment. This suggests that the law as passed was anything but a model of clarity.

The Georgia Supreme Court’s opinion in FDIC v. Loudermilk reminds me of Mark Twain’s quotation: “The rumors of my death have been greatly exaggerated.” I believe the rumors of the death of joint and several liability have been greatly exaggerated, ever since its passage in 2005. Loudermilk makes it clear that joint and several liability is alive and kicking and coexists peacefully right next to apportionment. Loudermilk, authored by Justice Sarah Warren, involved a claim against a group of bank directors alleging that the former directors and officers were negligent and grossly negligent under Georgia law for their approval of ten commercial real-estate loans. This case was tried to a jury in the Northern District of Georgia and the jury rendered a $5 Million verdict against the individual former bank officers. The bank officers appealed the verdict to the 11th Circuit Court of Appeals, which certified the question of whether the Georgia law of apportionment applied to this scenario to the Georgia Supreme Court. The Georgia Supreme Court answered no, that the statute did not end joint and several liability for co-defendants determined to have acted “in concert.” The Court held “Georgia historically has recognized this principle: “[i]t has always been true that where concert of action appears, a joint tortfeasor relation is presented and all joint tortfeasors are jointly and severally liable for the full amount of plaintiff’s damage.” Gilson v. Mitchell, 131 Ga. App. 321, 324, 205 S.E.2d 421 (1974), aff’d, 233 Ga. 453, 454, 211 S.E.2d 744 (1975) (“We conclude that the opinion of the Court of Appeals correctly states the law of Georgia on this subject and we adopt [its] opinion.”). Cf. City of Atlanta v. Cherry, 84 Ga. App. 728, 731-733, (67 S.E.2d 317) (1951) (rejecting joint-tortfeasor status although plaintiff alleged that defendants acted in concert because plaintiff failed to allege adequately that there was “concerted action in operating [an airport runway] in such a way as to injure plaintiff”).” Fed. Deposit Ins. Corp. v. Loudermilk, S18Q1233, 2019 WL 1303652, at *8 (Ga. Mar. 13, 2019).

This rule supports what many plaintiff’s lawyers have been saying since 2005, i.e., that there is no apportionment until a jury says there is apportionment. Thus, not only apportionment but also joint and several liability charges must be given to a jury and counsel must be allowed to argue joint and several liability.

Fulton County Jury Sends City of Atlanta a Clear Message: Inspect Our Streets for Dangers!

February 25, 2019 | Robin Frazer Clark

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You may have missed it, but last week a Fulton County, Georgia jury sent a message to the City of Atlanta to inspect their streets for dangers to the motoring public. The message came in the form of a $1.4 Million verdict against the City of Atlanta, for severe personal injuries to a woman who was injured when she drove over a manhole whose cover had become dislodged. The plaintiff, Ms. Pamela Dale, suffered a compression fracture to her spine, multiple lacerations on her arm and permanent nerve damage to her arm and hand. She accrued about $89,000 in medical bills and was unable to perform her job for several weeks, and she had to work part-time for several more weeks. Her car was a total loss. She was represented by Attorney Michael Baskin.

For its defense, the City of Atlanta argued first that this was a state road so the Georgia Department of Transportation had responsibility for maintaining it. So the City of Atlanta attempted to blame someone else for its own negligence. Then the City argued it did not have to inspect its own streets to find problems that could injure someone driving on them. The City of Atlanta Department of Watershed Management manager testified that the city did not routinely inspect manholes and there was no evidence that it had advance notice of any defect in the manhole prior to the accident. Apparently, the jurors didn’t like that. They told plaintiff’s counsel after the verdict that they were very concerned with the City of Atlanta not inspecting its own streets on a routine basis and, therefore, essentially waiting until a citizen was injured from a defect in the street to inform the City about the problem. The City of Atlanta literally argued they only received notice of a problem with a street once someone had been hurt by it. Does this strike you as crazy? Or at least surprising? That’s the way it struck the jurors. According to Attorney Baskin, the jurors were “absolutely appalled at the city’s lack of inspections.”

And it’s not just the City of Atlanta that takes this position. Many other governmental entities do the exact same thing, i.e., only inspect streets or sidewalks after they receive a complaint about it from someone. They do not routinely inspect their own roads. I recently took the deposition of the Director of Public Works for DeKalb County, Georgia, and, interestingly, he said the same thing about DeKalb County, i.e., that DeKalb County relies on reports from citizens of any problem with a street, road or sidewalk before they get involved. DeKalb County Public Works does not inspect its roads and sidewalks proactively so as to avoid injury to a citizen. Nor does it have anyone inspecting their sidewalks to make sure they are in compliance with the Americans With Disabilities Act. This means a disabled person has to get hurt first on a DeKalb County road or sidewalk before DeKalb County will do anything to fix the problem. DeKalb asserts that citizens can get in touch with them by phone, email, Facebook or Twitter, and that is, in their minds, sufficient.

Are You Complying with the New School Bus Stopping Law? Were You Even Aware There Has Been A Change?

January 31, 2019 | Robin Frazer Clark

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You may have read recently about a little problem with the school bus stopping laws that the Georgia General Assembly is now trying to fix. Last year the Georgia Legislature amended the school bus stopping laws with a dozen words that are, apparently, having bad, unintended consequences, one of which is car drivers no longer believing they have to stop every time for every school bus. Those words were: ““including, but not limited to, a highway divided by a turn lane.”” School transportation officials from at least 102 counties caught the problem before it was passed, and even wrote a letter to then Governor Nathan Deal in April of 2018 before it passed on July 1, 2018, to try to put a quash on it. But to no avail. It passed. And with it came new concerns about children’s safety as they exit school buses.

Before this amendment, Georgia law required traffic in both directions to stop for a stopped school bus with it’s “STOP” sign out on any laned highway unless the directions were divided by a raised median. Here is the law on overtaking a stopped school bus:

(a) Except as provided in subsection (b) of this Code section, the driver of a vehicle meeting or overtaking from either direction any school bus stopped on the highway shall stop before reaching such school bus when there are in operation on the school bus the visual signals as specified in Code Sections 40-8-111 and 40-8-115, and such driver shall not proceed until the school bus resumes motion or the visual signals are no longer actuated.(b) The driver of a vehicle upon a highway with separate roadways or a divided highway, including, but not limited to, a highway divided by a turn lane, need not stop upon meeting or passing a school bus which is on a different roadway or on another half of a divided highway, or upon a controlled access highway when the school bus is stopped in a loading zone which is a part of or adjacent to such highway and where pedestrians are not permitted to cross the roadway.

The Problem with Juror No. 7: When Can the Trial Judge Remove a Juror?

October 1, 2018 | Robin Frazer Clark

I have been following the talc trials against Johnson & Johnson regarding the claims that their powder product gives women ovarian cancer and lung cancer. I hope you have been, too. They are, obviously, very interesting. I can’t look at the Johnson & Johnson powder of bottle sitting on the vanity of the locker room where I work out without thinking about the cases and the many women who have died of these cancers allegedly from years and years of use of Johnson & Johnson powder. The most recent trial in California was just recently declared a mistrial by the trial judge, Judge Margaret Oldendorf. The case is Weirick v. Brenntag North America, BC656425, California Superior Court for Los Angeles County (Pasadena). It involved a claim that use of Johnson & Johnson powder had caused the plaintiff’s mesothelioma, a specific type of lung cancer. The Plaintiff, Weirick, 59, is a school counselor who said she’s been using J&J’s talc products, such as baby powder and the company’s former Shower-to-Shower line, for more than 40 years. She was diagnosed with mesothelioma in 2017 and said her only exposure to asbestos came from use of talc products. Previous juries had come out with verdicts of $25.75 million and $117 million for the plaintiffs, a defense verdict and two mistrials.

This latest trial in California was particularly interesting due to the alleged misconduct of one juror, now scandalously known as “Juror No. 7.” (By the way, if you are ever on a jury and in the course of the trial become known by your Number, it is never a good thing). Juror No. 7, apparently, refused to deliberate with the other 11 jurors, to the point that the foreman asked the judge to replace the juror with an alternate. The defense objected and asked for a mistrial. The plaintiff’s counsel agreed to the substitution. This is interesting because it was never disclosed what side Juror No. 7 was holding out for; Juror No. 7 could have been a juror favorable for the defense and yet defense counsel objected and moved for a mistrial. In fact, it was never disclosed which side the entire jury was leaning in favor of, only that at the time a mistrial was called by the trial judge, the vote was 8-4. At that time, neither side knew which side had the 8 jurors. Since then, it has come to light that the 8 jurors favored the Plaintiff. George Chen, a 30-year old computer analyst and one of the eight who favored a plaintiff verdict, said he was “a little frustrated” and “really wanted to push this through.” He said the four members who voted for the defense seemed to have ”the mindset of … business people” concerning what a responsible company should do.

Even if there were mere traces of asbestos, J&J should have provided warnings, Chen said, because “people have a right to know.” Moreover, he noted, J&J for decades has offered a baby powder made with corn starch, and could have retired the talc version to eliminate any risk.

Electric Scooters: The Newest Menace to Society

July 13, 2018 | Robin Frazer Clark

Transportation is constantly changing. The year 2002 brought us Segway Personal Transporters; 2009 gave us Uber (formerly “Ubercab”); 2010 brought bike-share companies to the U.S.; and 2017? Scooters. Yes, the same toys we used to ride around our neighborhoods as kids have now become electrified and are the newest, hippest mode of transportation in at least 21 states of the U.S. These electric scooter companies — namely Bird, Lime, and Spin — are taking cities by storm in recent months. People from the company drop off dozens of scooters at “nests” located around the city each morning for civilians to pick up. The person can pay through the app the $1 starting fee, ride it around — paying additionally by time or mileage — and then just drop the scooter off wherever he or she would like. At the end of the night, the company collects the scooters around the city to check for maintenance and repair needs and then deposits them around the city streets the next morning. At first blush, this idea seems great! Avoid traffic, get to a close distance quickly, and for cheap! Upon closer observation, however, just as the scooters seem to be taking over, more and more problems are quickly emerging with the newest toy-turned-transportation.

First, safety. There have been numerous accidents reported in the last few months as the scooters have become more readily available to the public. The websites and apps for these scooters suggest the riders should wear a helmet; however, there is no method of enforcement from the businesses, and when a person picks up a Bird to ride around town, a helmet does not come attached to the scooter for a rider to wear, and people walking around downtown are likely not already carrying a helmet with them when they get the urge to pick up a scooter. Bird only provides a helmet when a rider puts in a request for one. Personal injury attorneys across the country are reporting dozens of people seeking representation after getting injured on these scooters, and liability and insurance surrounding this latest mode of transportation is a relatively uncharted territory for these attorneys to try to manage. Liability can be hard to prove, and questions of insurance coverage for injuries can be tricky to answer; health insurance will say that car insurance should cover medical expenses, and car insurance points the finger back saying it won’t cover a crash on a two-wheeled vehicle. Oddly enough, according to one personal injury attorney, it’s possible that homeowners or renters insurance could cover a rider in these situations. Another attorney says that though Bird says that riders use the scooter at their own risk and limit its own liability to $100, the company’s waiver likely will not stop claims of gross negligence.

As if the safety concerns were not enough to label these scooters an official nuisance, the legal concerns may do it. According to the Official Code of Georgia, the operation of motor scooters is only mentioned once under the definition of “motor driven cycle” which also includes motorcycles, bicycles with motors attached, and mopeds. Clearly, these newly innovated technological devices (electric scooters) have yet to be addressed by many state legal codes. Because of the lack of specificity in the Code regarding the definition of electric scooters, cities around the country are interpreting law one way, and the scooter companies are interpreting it the other way. The companies do not want riders using the scooters on sidewalks, and the Cities don’t want the riders using them on streets. Additionally, confusion over whether the scooters need license and registration has been at the center of much debate over the legality of the scooters. One of the main legal concerns and problems the cities and public are having with the electric scooters is the sidewalk litter they cause. Because a rider is able to pick up, ride, and drop off the scooter wherever he or she pleases, the “dockless” nature of these scooters is causing sidewalks to fill up with scooters disposed of by inconsiderate riders, blocking pedestrians’ and wheelchairs’ paths. Though many of the legal concerns are up for debate right now, the issue surrounding the blocking of the sidewalk is not one to be misinterpreted; O.C.G.A. § 16-11-43 says it is illegal to recklessly obstruct any “sidewalk, or other public passage in such a way as to render it impassable without unreasonable inconvenience or hazard” and failure to remove the obstruction — namely, the electric scooter left lying in the middle of the sidewalk — after an official request to do so is a misdemeanor offense.

Pedestrian Fatalities on the Rise in Georgia: Who’s at fault and who’s at risk?

July 2, 2018 | Robin Frazer Clark

Taking a stroll down the streets of Atlanta can be a healthy pastime or a means of getting in your social interactions for the week, but the cheapest form of transportation is quickly becoming one of the more dangerous. One unfortunate story in Smyrna, GA last week tells of a pedestrian fatality at the hands of a distracted driver; the driver made a phone call, drove off of the roadway, and struck the pedestrian. Another upsetting story in the AJC last week reported of a woman killed in Atlanta as she attempted to cross I-75 and was struck by multiple cars. Recent reports suggest that she attempted to run across the highway due to a dispute over drugs that resulted in someone chasing her. Unfortunately, this story is just one of many that could be written in Georgia this year, as pedestrian fatalities are on the rise on the national level. From 2007 to 2016, the number of pedestrian fatalities increased by 27%, and whether the victim is a harmless pedestrian walking to work or drugs are at play, researchers are not quite certain what is the main cause for the increasing numbers of pedestrian fatalities in the recent years.

Reports over the last few years have found a few potential factors to the increasing fatalities. Obviously, cell phone usage is an issue. Whether a distracted driver is using a phone while operating a vehicle or a distracted pedestrian has his or her face buried in the phone while walking through a crosswalk, cell phones are making us more distracted, less aware of our surroundings, and slower to react when we encounter danger. Cell phone use increased by 236% in the years 2010 to 2016, providing greater opportunity for cell phone related pedestrian accidents.

Many studies and reports suggest the increase in cell phone usage could be a leading cause of pedestrian involved accidents, but a new study provides an interesting possible factor in the rising number of pedestrian fatalities: marijuana. The report does not intend to imply direct correlation of any sort but merely suggests that the possible impairment of judgment and reaction time — for both drivers and pedestrians — due to recreational use of marijuana could lead to higher pedestrian incidents on the roadway. The study found that in DC and the 7 states that legalized recreational use of marijuana between 2012 and 2016, there was a collective 16.4% INCREASE in pedestrian fatalities between the first 6 months of 2016 and the first 6 months of 2017. Conversely, in the remaining states, there was a collective 5.8% DECREASE in pedestrian fatalities between those two time spans.

Georgia’s Hands-free Distracted Driving Bill: What you need to know

June 4, 2018 | Robin Frazer Clark

In a series of blogs I wrote last summer on distracted driving, I laid out some of the problems with the advancing technology we have readily available to us at our fingertips. The use of social media apps like Snapchat and Instagram while driving has led to many fatal or injurious car wrecks, and texting while driving, which is known as a “combination distraction” – one that averts our attention manually, visually, and cognitively – has caused thousands of deaths and injuries in accidents in the last few years. Last summer, one of my distracted driving blogs was about a bill that the Governor of Washington was signing into law banning hand-held usage of cellular devices. I wrote that Georgia had yet to sign such a bill into its own laws, but one year later, this subject matter needs an update.

This legislative session, the Georgia Legislature worked to pass House Bill 673, which Georgia Governor Nathan Deal signed into law a few months ago and will become effective July 1, 2018. The bill is known as the “Hands-Free” or “Distracted Driving” law, which by name alone may sound self-explanatory but with further inspection can be a little confusing. Allow me to lay out the need-to-knows of Georgia’s newest cell-phone driving law.

This bill, which has now become an Act, amends Title 40 “Motor Vehicles and Traffic” of the Official Code of Georgia Annotated. The main change in the Code will be located in O.C.G.A. §40-6-241, which explains a driver’s responsibility to exercise due care, specifically regarding usage of a wireless telecommunications device. The first parts of the bill change the penalties within the license point system. First violation of Code Section 40-6-241 will result in 1 point added to the license; second violation results in 2 points added; and third results in 3 points. There are other – and potentially worse – penalties a driver could face if convicted of violating the Code section.

My Car Was Totaled in a Wreck: Can I Get Rid of It?

May 3, 2018 | Robin Frazer Clark

The short answer is maybe.

One of the first questions many of my clients have after they have been in a car wreck is whether they can accept the insurance company’s pay-off for their totaled car. Most people need the pay-off money to be able to buy substitute transportation as quickly as possible. Some people accept the insurance company’s pay-off well before they even think about hiring a lawyer, and well before they have even spoken to a lawyer about representing them in a car wreck case. This is certainly understandable and normal human conduct when your car has been totaled in a wreck that isn’t your fault. But can there be a problem with accepting the insurance company’s pay-off for your car and, in return, releasing ownership of it to that insurance company for salvage value?

Typically, in a car wreck that has resulted in some personal injuries due to the negligence of the at-fault driver for say, running a stop sign, or rear-ending the car in front, the answer for at least 30 years has been no. In the past, no insurance carrier ever really cared about preserving the car in a plain ordinary negligence car wreck case where there is no evidence of any mechanical failure of the car or any evidence that the car itself was, somehow, defective. In the last 5 years or so, however, that has changed. Now, in an increasingly scorched-earth tactic by defense lawyers, they often file a motion to dismiss even run-of-the-mill car wreck cases for the plaintiff’s failure to preserve or keep the car that was involved in the wreck, even if that car was totaled by the insurance carrier. This motion is referred to as a “spoliation motion” and they are becoming more and more popular as a “gotcha” tactic by defense attorneys who really have no defense for their insured’s actions in actually causing the wreck in the first place. They have to admit their insured was negligent and caused the wreck, but maybe they can get out of the whole thing by arguing that without the car to be examined by an expert, hypothetically, we can never know whether something was wrong with the brakes or the windshield wipers (yes, I have really had that argued by defense counsel in a case) or the seat belts or any of a number of made-up potential problems, even if there exists no evidence that anything about the car caused or contributed to the wreck. At a minimum it is frustrating…at the worst, it can cost a plaintiff her entire case.

Am I Safe Walking in a Crosswalk?

March 28, 2018 | Robin Frazer Clark

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Every day as I travel down Edgewood Avenue in Downtown Atlanta in the middle of Georgia State University, some pedestrian, without fail, decides to take a risk and walk out in front of either my car or another car as I watch. The only time this doesn’t happen is when Georgia State is on Spring Break. It is a stressful trip, knowing that in addition to the numerous cars all around me that I have to be aware of, I have to be ready to slam my breaks in a nanosecond to avoid hitting a pedestrian walking out in front of my car when I have the right-of-way. I am aware of the plentiful crosswalks available for pedestrian use, but they are mostly ignored. I am talking about students who ignore the crossing signals and walk across a street either not in a crosswalk at all, or in a crosswalk but cross when the signal is telling them to stop. This typical daily occurrence with pedestrians has me thinking about just exactly what are the laws in Georgia pertaining to pedestrians? Is it just me or are the pedestrian signals getting more complicated? What do they actually mean? When does a pedestrian have the right-of-way to cross the street? Can a driver of a vehicle just mow down a pedestrian if the pedestrian is not in the crosswalk? How about if the pedestrian is in the crosswalk but the flashing hand has started with a stopwatch ticking down, telling the pedstrian how many seconds he or she has to cross the street before the signal turns? Is a pedestrian required to know how fast they can walk and how many seconds they typically take to cross a street? Does it depend on how many lanes the street is? And whether there is a headwind or tailwind? My drive today has me thinking about all of this. Hmmm….

First, we can easily find the Georgia Rules of the Road as they pertain to pedestrians on the Georgia Highway Safety website. The Official Code of Georgia provides: § 40-6-91. Right of Way in Crosswalks:

(a) The driver of a vehicle shall stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching and is within one lane of the half of the roadway on which the vehicle is traveling or onto which it is turning. For the purposes of this subsection, “half of the roadway” means all traffic lanes carrying traffic in one direction of travel.

Why It’s a Bad Idea to Allow Jurors to Ask Questions at Trial

March 15, 2018 | Robin Frazer Clark

It seems to be in vogue with some trial judges currently to allow jurors to ask questions of witnesses after both sides of the litigation are finished asking their questions. This is currently a hot topic due to the Tex McIver trial, currently being tried in the Fulton County Superior Court in front of Judge Robert McBurney. Judge McBurney, rather famously, permits jurors to ask questions of witnesses after questioning by the prosecution and the defense counsel. Presumably, Judge McBurney allows this practice in civil cases as well as criminal cases, although Superior Court doesn’t see as many civil cases as criminal. All felonies in Georgia must be tried in Superior Court. The practice of Judge McBurney allowing witnesses to ask their own questions was discussed extensively before the trial in a podcast produced by the AJC called Breakdown. It is hosted by veteran legal affairs journalist Bill Rankin and I highly recommend it. In that podcast, defense counsel Bruce Harvey gives his opinion on why it is not only a bad practice to allow jurors to ask questions, but, also, why it is probably unconstitutional. For example, we all know that the 5th Amendment of the Constitution gives a criminal defendant the right to remain silent, even throughout the trial, so that the government must prove guilt beyond a reasonable doubt without any assistance from the defendant. Harvey, rightfully, preposes the hypothetical of a juror asking “Why didn’t the defendant take the stand to tell us what happened?” Of course, the judge is not going to permit that question to be answered, but the jurors (or at least the one juror who asked that question) will know the judge didn’t approve it and wouldn’t permit it to be answered, and the bias that answers “why” is naturally because the defendant must be guilty. So simply by denying that juror’s question, the 5th amendment constitutional right is implicated and violated because it was allowed even to be raised in court.

There has lately been alot of discussion in social media about this among lawyers, too. You can find some of this discussion on Twitter at #texmciver and in the comments on Facebook where WSBTV is livestreaming the trial. If I were to take a poll, I think the vast majority of trial lawyers is against the practice for the reasons stated above. Also, other websites are livestreaming the same WSBTV feed, like wildabouttrial and lawandcrime. Both of these websites have a comments section where viewers can post their comments about the trial. It is pretty fascinating, especially for court enthusiasts like me. On Facebook, there have been some thought-provoking comments about allowing jurors to ask questions of witnesses. Below are just some of the comments I have seen:

“I think there are two questions that judges should ask themselves before considering this. 1). Why would I allow jurors to ask questions? Whatever the answer is (to help the jurors clarify any issues that the holder of the burden of proof has not clarified, etc). 2). If I am am being a neutral, unbiased referee, should that matter to me?”