Personal Injury Category Archives - Page 6 of 14 - Atlanta Injury Lawyer Blog Published by Atlanta Personal Injury Lawyer

Jury Duty: The Chance to be a Hero

February 13, 2018 | Robin Frazer Clark

Image result for juror as hero Image result for you're my hero
Yesterday I was in the Chicago O’Hare airport after taking the deposition of a defense expert anesthesiologist at the University of Chicago and sat down for lunch next to a nice couple from the Boston area. We started talking and I, of course, told them I am a plaintiff’s personal injury trial lawyer from Atlanta in Chicago for the purpose of taking an adverse expert witness’s deposition. They were mesmerized. We talked a bit about the case which led, predictably, to their telling me about their personal experiences with both the Criminal and Civil Justice Systems.

The husband of the nice couple told me about his experience in serving on a criminal jury as the foreperson. Like most folks facing jury duty, at first he was upset about missing work, resented being herded around the courtroom like cattle and being kept in the dark about what was happening, and was overall just unhappy about being forced to take part in the entire process. Yet, as the testimony came in and the trial moved on,things, including his attitude, changed. The case was about a man, the defendant, who allegedly had abused his three year old son. The man had taken his son away from the child’s mother’s home but the mother wasn’t even aware of it. The evidence against the father was, apparently, overwhelming. My new buddy, who was telling me about his experience, was picked to be the foreperson of the jury. He immediately felt an enormous weight on his shoulders to do the right thing. Not all of the jurors at first wanted to convict, even though he felt the evidence to do so was overwhelming. Some of the jurors wanted to hear some of the testimony again, some of them wanted to see pieces of evidence again. They wanted to be sure. In the end, the jury voted unanimously to convict. My new friend said that when he read the verdict out loud in the courtroom, he felt an enormous sense of duty and pride. He felt moved to tears. The jurors, to a person, took their duty very seriously and followed the court’s instructions unwaveringly. He felt like he was the little boy’s hero. Now, looking back, he hopes he’ll get the chance to serve on a jury again. Both he and his wife said that if they were ever the parties in a trial, they would want people like themselves serving on their jury.

Fascinating story, but I’m not surprised. This is often the story I hear from people who have served on juries, criminal or civil. The sense of duty is extremely strong. By serving on a jury, you are breathing life into the United States Constitution and doing your part as a citizen to make our judicial system work. Without jurors, the system would collapse and we would cease to be a democratic nation. Jurors ensure that a person’s constitutional rights to a fair trial by a jury of his or her peers is protected. That is not overstating things. And something about being in the formal courtroom, where lives are at stake, where injured plaintiffs seek to have the harms done to them balanced by damages from the wrongdoer, makes that sense of honor and duty to your nation come alive. Jurors are the heroes of victims of crime and of those citizens who are personally injured through no fault of their own. The courtroom is the great Equalizer, where the son of the richest man in America is the equal of a homeless person, and where the smartest graduate of Harvard University is the equal of a high-school drop-out. All persons are treated equally in a court of law.

Never, Ever Rely On What An Insurance Adjuster Tells You

January 12, 2018 | Robin Frazer Clark

Image result for insurance adjuster
Let’s say you have been injured in a car wreck, or in a fall at a store, and the insurance adjuster for the insurance company of the at-fault driver or of the store owner calls you after your injury. They often want to take a recorded statement (which you should NOT give unless you have your lawyer present) about what happened, how you were injured and what your injuries are. Then they might reassure you that they “are there for you,” and will be looking forward to resolving your claim with you, “don’t worry, everything will be okay,” or “we’ll take care of you, just let us know when you have finished your medical treatment.” Makes you feel better, right? So comforting and reassuring. You might even be thinking you can settle your personal injury claim without even having to hire a trial lawyer. After all, a trial lawyer will have to be paid for her work and if you can just handle this on your own with this very nice, concerned insurance adjuster, that’s more money for you, right?

WRONG.

One thing that is patently clear that I have come to understand in practicing personal injury law for 30 years in Georgia: insurance adjusters are not your friends. They are trying to prevent you from being successful on a personal injury claim. They may even resort to trickery, subterfuge, and downright lies.

Deaths on Georgia Roads During the Holiday Period Increased in 2017

January 2, 2018 | Robin Frazer Clark

Image result for traffic congestion

The news from the Georgia Department of Public Safety was not good; deaths on Georgia highways during the Holiday period rose again in 2017. For just the Holiday period alone, there were 11 reported traffic fatalities. In 2016 there were 8 fatalities in the Holiday period. The Department of Public Safety is reporting, thus far, 1499 traffic fatalities for the entire year, down from 1561 in 2016. Perhaps the Georgia Department of Transportation’s safety program “Drive Alert Arrive Alive” is working. The PSA campaigns on television and social media that warn against drunken or distracted driving may be playing a positive role, too. The National Highway Traffic Safety Administration’s “Drive Sober or Get Pulled Over” is not only catchy, but is seen in every state. Throw in the ride services now readily available, like Uber and Lyft, and you simply have fewer folks on the road, which, necessarily, will mean fewer deaths. Actual studies of whether these ride services are making a difference in traffic deaths show the jury’s still out on whether they really make a difference.

Georgia can be proud. Nationwide, traffic fatalities continue to climb. But not in Georgia. And that’s a good thing. Stay safe out there, Friends.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50^th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 29 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

Stop, Look, Listen: Should TWW (Texting While Walking) Be IlLegal? It Will Be In Honolulu

October 24, 2017 | Robin Frazer Clark

Stop, Look, Listen! We often hear that in regard to what you should do when you approach a train track in your vehicle. Stop, look and listen for a train before driving over the tracks. I can remember when I was little and rode the school bus home, the bus driver even opened the door to the bus at train tracks so he could see better and hear any potential approaching train more clearly. But shouldn’t the same rules apply for pedestrians before they cross a busy city street? Should pedestrians also stop, look and listen for their own safety? Are they even required to do so?

I drive down Edgewood Avenue in Downtown Atlanta to get from my house to my office every day. Edgewood is a busy city street that goes through the heart of Georgia State University. At any given time of the day, there are hundreds of college students crossing Edgewood Avenue to get to their next class to to their dorm room or maybe even to the library.l The three photos above demonstrate a typical day with GSU students crossing Edgewood Avenue. These photos show students crossing at the light, but students often cross Edgewood in the middle of the block, not at an intersection and without any traffic signal. Invariably, these young men and women are texting while walking, talking on their cell phones in deep conversations while walking, or even listening to something on their phones with earphones on while they cross one of the busiest streets in Downtown Atlanta. Many pedestrians attempt to cross while vehicle traffic has a green light. One of the photos above shows pedestrians crossing the street diagonally, which is certainly against the rules. Watching this sort of nonchalance and devil-may-care attitude regarding oncoming cars while they strut right out into the street had me wondering: who would be at fault if a pedestrian crossing illegally where struck by a car that had a green light? Does a person who texts while they cross a street value his or her life? Or does the lack of taking any safety precautions for their own person, e.g., not texting while walking, forfeit the right to blame someone else when they are struck by a vehicle?

There is no question that texting while walking, especially while crossing a street, is a bad idea. Research has found that, mile for mile, distracted walking results in more injuries than distracted driving, and makes pedestrians 60 percent more likely to veer off course. At least one city has taken the step to protect people from themselves. Starting Wednesday, texting while walking across a street in Honolulu is illegal, thanks to a new law that allows police to fine pedestrians up to $35 for checking their phone, while crossing an intersection in the Hawaiian city and surrounding county. Honolulu is, apparently, the first city in the U.S. and perhaps the world to ban texting while walking (TWW). “This is really milestone legislation that sets the bar high for safety,” said Brandon Elefante, a City Council member who proposed the bill, in an interview with the New York Times.

Social Media Strikes Again: Teen Kills Sister While Driving, Films it on Instagram

August 9, 2017 | Robin Frazer Clark

In continuing the series of blogs on distracted driving, I saw a heartbreaking story on the news last week that unfortunately fits right in with the other blogs on Texting While Driving and Snapchatting While Driving. An 18 year old girl was driving her 14 year old sister while operating a Livestream video feature of the Instagram app. Her car drifted into the other lane, and when she overcorrected, the car flipped. Her 14 year old sister was ejected from the car and died. The older sister — while driving — captured the whole thing on video.

The older sister was arrested on-site for suspicion of DUI and gross vehicular manslaughter. Even if the family does not file a civil complaint — for the wrongful death of one daughter caused by another — the driver faces 13 years in prison if convicted on all 6 felony counts. (Keep in mind that there may be family immunity laws that would even prevent such a lawsuit).

In a recent case involving an accident while using the Snapchat app, the plaintiff sued Snapchat, Inc. for having the “speed overlay” filter, which has incentives for a driver to use the app while the car is in motion at high speeds. This differs from the Instagram Live function, which seemingly has no “incentives” or benefits for using the function except keeping friends up to date with your every move. Were this motor vehicle accident to be filed as a civil complaint, it would be interesting to see if Instagram could be held liable for the resulting death, as the “incentives” from the Snapchat app were the main argument behind the plaintiff’s claim.

Snapchatting While Driving: The New Frontier of Social Media Liability

July 5, 2017 | Robin Frazer Clark

Parental concern, law enforcement warnings, and user disapproval of the recent updates to the Snapchat app are the least of the company’s worries. Though Snapchat, Inc. has made the headlines recently due to the updates, this isn’t the first time the company has been under scrutiny from the public. In April of 2016, a complaint for damages was filed in a Georgia state court against the company for injuries sustained from a motor vehicle accident, claiming that the main cause of the accident was the speed filter of the Snapchat app.

The speed filter allows a driver behind the wheel to document his or her speed by “snapping” a picture while the car is in motion. On this one particular night, a teenage driver allegedly opened her Snapchat app while driving as an attempt to snap a picture of her car reaching 100 mph. The driver allegedly, according to the Complaint, accelerated until reaching approximately 107 mph before she realized another driver had pulled onto the road. She crashed into him at full speed. Both cars were totaled, leaving multiple people with tremendous injuries – both physical and psychological – and thousands of dollars in expenses.

The plaintiffs have sued Snapchat for negligence, in part because this is, according to the Complaint, not the first instance in which a Snapchat user has used the speed filter of the app and caused a car crash. Petitions online even called for the app to remove the filter or for the app to restrict the usage of the filter while driving. Despite knowing that the speed filter presented many dangers to the public, as of the date of the incident above, Snapchat had not removed the speed filter, thus creating the perfect opportunity for another distracted driver to cause serious harm.

You or Me? Who Has the Right of Way?

June 2, 2017 | Robin Frazer Clark

Image result for pedestrian right of way georgia
My office is in downtown Atlanta and I drive each day through Georgia State University, which now has an enrollment of 32,802. You can imagine how many of those 32,802 are walking on the sidewalks and crossing busy downtown streets at any given moment on a weekday. And just add these students to the normal, everyday Downtown Atlanta population of employees, deliverymen, and homeless people, bicyclists who weave in and out of traffic and the schizophrenic Streetcar, which can wait at a station for interminable minutes or pull away without notice at any given second. Suffice it to say there are a lot of pedestrians on our streets downtown. Nearly every day at least one of them attempts to dart out in front of my car, regardless of whether they are even close to a crosswalk. Apparently, crosswalks are for looks only in downtown Atlanta. A driver must be extremely vigilant while driving downtown not to have a mishap with a pedestrian. Add to the inherent danger of crossing a street the aggravating factor that many pedestrians are on their phones while walking out in the middle of the road. I have seen pedestrians talking on their phones, listening to their phones with earphones, texting on their phones, texting on their phones while talking on their phones on speakerphone and every other possible configuration of phone use while walking. Surely, if they are hit this would amount to a heck of a lot contributory negligence? The number of incidents of pedestrians being hit by cars is on the rise. For example, in 2013, 180 pedestrians were killed statewide, making it the deadliest year for pedestrians since 1997. The CDC reported that in 2015 5,376 pedestrians were killed in traffic crashes in the United States. This averages to one crash-related pedestrian death every 1.6 hours. Additionally, almost 129,000 pedestrians were treated in emergency departments for non-fatal crash-related injuries in 2015. Pedestrians are 1.5 times more likely than passenger vehicle occupants to be killed in a car crash on each trip. Atlanta is reportedly the 8th most dangerous city for pedestrians.

So who has the right of way?

The Governor’s Office on Highway Safety does a pretty fair job at trying to educate pedestrians regarding right of way and their duties to watch out for their own safety, in addition to vehicle driver’s duties to watch for pedestrians.

Georgia Supreme Court Fails to Recognize That Suicide May Be Foreseeable Following Cyberbullying Incident

May 30, 2017 | Robin Frazer Clark

Many of you readers know I have often blogged, tweeted and spoken in public about suicide and what we as someone’s friends, family or colleagues can do to recognize a real suicidal threat and what we can do to get help to someone before he or she attempts to take his or her own life. We know so much more about suicide today than we did just 20 years ago. I would venture to say that what we thought about suicide and it’s causes 100 years ago would border on naivete, akin to treating leukemia with leeches. For example, today we know that means restrictions, preventing access of the means or instruments to kill oneself, dramatically lowers the suicide rate, where 100 years ago we simply concluded if someone is suicidal it could not possibly be prevented. In a recent Harvard School of Public Health study, it was shown that if someone who is suicidal is simply prevented from having access to the means to commit suicide one time, 90% of those who had wanted to kill themselves but did not have access to the means or instrument (guns, drugs, rope) to kill themselves did not attempt suicide again. Cyberbullying has become a leading cause of teen suicides. Social media has been at the root of numerous teenage suicides, especially where embarrassing photos or videos are posted online, which then go viral and are be seen by hundreds of classmates before the next day of school. This type of cyberbullying, using compromising or embarrassing images, has become so prevalent in our schools that many states are enacting legislation to criminalize it. This fact alone suggests suicide following cyberbullying is predictable.

Probably one of the most well-known and saddest cases of cyberbulling was the case of Tyler Clementi, an 18 year old freshman at Rutgers University, who jumped off the George Washington bridge into the Hudson River, killing himself. Tyler’s roommate had secretly filmed him having a private, sexual encounter with another male in Tyler’s dorm room. The roommate then live-streamed the intimate encounter on the internet. Would anyone doubt that Tyler would have been suicidal following a livestreaming of his most private, intimate moment in his own room? Studies have shown that cyberbullying, especially when it involves intimate photographs or videos, leads to an increased risk of depression and suicidal ideation. Thus, it has become foreseeable and even highly likely that a young person may want to commit suicide after experiencing sexual or intimate cyberbullying. Who could blame them?

Which brings me to City of Richmond Hill v. Maia, S16G1337, Supreme Court of Georgia, May 30, 2017. You may remember I have written about this tragic case before, in my June 9, 2016 blogpost “Who Is Legally Responsible for a Suicide?” I was writing about the decision by the Georgia Court of Appeals at that time. To remind of you of the horrible facts in Maia, this is what I wrote then:

No Such Thing as an Unbiased Expert

May 4, 2017 | Robin Frazer Clark

You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court recently heard oral arguments in McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State. Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams. The issue presented to the Supreme Court in McWilliams was this: “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”

This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion. Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered. As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty. Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases. I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.” In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.” Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!). What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit. Not so for plaintiffs. Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works. As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive. Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.

Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses:

Have You Been Injured by a Metal Plate on the Street Yet?

March 16, 2017 | Robin Frazer Clark

Displaying IMG_3213.JPG Displaying IMG_3212.JPG
It’s only a matter of time before you or a loved one is injured by one of these nuisances that are so prevalent on Atlanta city and county streets these days. Or it’s just a matter of time before you damage your car from driving over one of them. The ubiquitous metal plate. Who thought these were a good idea in the first place? The metal plates in the photographs above are currently on my street, Oakdale Road in unincorporated DeKalb County. These two metal plates have been there for months. And notice there is really nothing hold them in place other than the mere weight of the things and gravity. But a truck that ways 60,000 pounds loaded, or an SUV that weighs 10,000 pounds or even a small car that weighs 6,000 pounds going 35 m.p.h. can easily move these plates when they are not pinned down. Once moved, they become a potentially fatal hazard to the motoring public. Imagine coming upon this monster (see photograph below) as you mind your own business driving down the road. Once your car ran over it, you and your car wouldn’t stand a chance. The weight of your car would cause the metal plate to flip and your car would fall into the sinkhole below. It is doubtful you could escape without serious bodily injury. The photographs below show several metal plates that are clearly not pinned down or held down in any way whatsoever. Car and truck traffic have obviously shifted them, so that the next unknowing driver, potentially YOU, could be swallowed by the hole they are supposed to be covering. I am confident this is not an isolated situation; my guess is that you have seen the frightening scenario below multiple times.

There are actually requirements for the way these metal road plates are required to be placed on the roadway. For example, steel plates must be fixed in place to avoid movement. In addition to being firmly in contact with the pavement, they should be either pinned, recessed into the pavement, or secured with asphalt wedges around the perimeter. Pinning into the pavement involves driving pins into the pavements along the edges of the steel plates to prevent movement. Recessing involves cutting out the area where the steel plate will be placed. If these are the mandatory requirements for use of these monsters, why are they so seldom pinned down or recessed? As a member of the motoring public, you are entitled to assume these plates have been put down and affixed to the street properly so that they are safe for you to drive over. The law does not require you to drive around them in an effort to avoid them.

Remember the “Pothole Posse” formed by then City of Atlanta Mayor Shirley Franklin? It seemed to make progress for awhile, but after the initial excitement about bringing back safe streets, we are right back where we were with our streets littered and cluttered with these metal plates. Recently, in New York, such metal road plates may have played a role in a fatal crash that killed six people.