Personal Injury Category Archives - Page 8 of 14 - Atlanta Injury Lawyer Blog Published by Atlanta Personal Injury Lawyer

What is a Manufacturer’s Duty to Warn Consumers?

March 9, 2016 | Robin Frazer Clark

My friend and fellow trial lawyer, Lester Tate, and I are representing a young man in a case against Kawasaki, the manufacturer of the motorcycle he was riding when he was severely injured because it stalled on him. Months later, he received a recall notice that said the voltage regulator on his motorcycle was defective. The minute he received the notice he thought that sure explained what happened to him the day his world was turned upside with a catastrophic motorcycle wreck. The case was heard yesterday before the 11th Circuit Court of Appeals, our appellate court for cases that are filed in Federal Court, here in the Northern District of Georgia. One of the issues on appeal involves Kawasaki’s duty to warn its customers who have bought or used that particular motorcycle about a known defect with the motorcycle’s voltage regulator. So, a manufacturer’s duty owed to its consumer is heavily on mind right now.

What exactly is a manufacturer’s duty to want its customers of a potentially defective product? Under Georgia law , when the manufacturer of a product has actual or constructive knowledge that its product involves danger to users of the product, the manufacturer has a duty to warn users of the danger. Battersby v. Boyer, 526 S.E. 2d 159, 162 (Ga. App. 1999). O.C.G.A. § 51-1-11(b)(1) provides that “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The term “not merchantable and reasonably suited to the use intended” as used in this statute means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645(1983). “In a product liability case, the existence of a duty to warn depends upon the foreseeability of the use in question and the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 781 (Ga. App. 1987). A manufacturer may be subject to liability for failing to warn the user adequately of the known or foreseen danger if there is no reason to believe the user will realize the dangerous condition.” Id. at 477; see Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 477 (Ga. App. 1984). When a duty to warn arises, the duty may be breached in one of two ways: (1) failure to communicate the warning to the ultimate user; or (2) failure to provide an adequate warning of the product’s potential risks. Battersby, 526 S.E.2d at 163; see Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (citing Thornton v. E.I. Du Pont De Nemours &Co. Inc., 22 F.3d 284, 290 (11th Cir. 1994)). “This duty to warn is a continuing one and may arise “months, years, or even decades after the date of the first sale of the product.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). “Some products are defective solely due to an inadequate or absent warning.” Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994).

The issue of failure to warn, including the lack of any warning or the adequacy of any warning, is one that the jury must resolve. See, e.g., Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 782 (Ga. App. 1987); Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1389-90 (M.D. Ga. 2014); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (1983)(“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Greenway v. Peabody International Corp., 163 Ga.App. 698, 294 S.E.2d 541 (1982). Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. Beam v. Omark Ind., Inc., 143 Ga.App. 142, 145, 237 S.E.2d 607 (1977).”).

Are Police Chases Really Necessary?

February 11, 2016 | Robin Frazer Clark

Police chases seem to be extremely prevalent in our everyday goings on lately. Last night I watched the famous “slow speed chase” of O.J. Simpson when he fled the Los Angeles Police Department back in 1994 instead of turning himself in as agreed upon following the murders of his wife Nicole and her friend. The mini-series drama currently being shown on the FX Network about “The Juice” reminded me of the night that slow speed chase happened as my husband and I watched in horror and amazement in 1994 as my husband put together the crib for the child we were expecting in August of that year. Then I woke up this morning to a text alert from the AJC that there had been another police chase here in Atlanta this morning. This morning’s chase, which was near the Douglas-Cobb county line, near Six Flags Over Georgia, was of two people suspected of having robbed a convenience store of cash and cigarettes. This police chase ended with the suspects’ car crashing into a utility trailer. The police caught one suspect and the other suspect got away. Apparently, no one was injured in the police chase this morning. Thank Goodness, I might add. In San Francisco, California on Sunday, February 7, three people were killed in a police chase after police chased a car that had been seen “doing circles” in the middle of a city street.

We were not so fortunate, however, with regard to two other police chases that occurred a week ago. In Gwinnett County, a totally innocent older couple was killed in a police chase in which the Johns Creek Police Department started a high speed chase of a vehicle for “equipment violation” because it had multiple antennae. This chase lasted for 4 miles and reportedly reached speeds of 83 m.p.h. The couple was driving home after celebrating the 78th birthday of one of them. The suspect’s car crashed into the innocent couple’s car and killed them. No, the police car didn’t hit the couple’s car, but in the world of proximate cause, “but for” the police car and the police chase this lovely couple would be still be alive. Tragically, and almost unbelievably, the next day a totally innocent grandmother who was taking her precious two grandchildren to church on Sunday morning, was killed, along with those precious two grandchildren, in a high speed police chase. This time it was the College Park Police Department chasing a vehicle driven by a suspect suspected to have stolen a vehicle. The chase lasted a purported 10 miles. Five innocent lives lost in the span of two days due to high speed police chases.

Think for just a minute how you would feel if one of your loved ones were killed because of a high speed chase. How would you feel? Would you think the high speed police chase had been unnecessary? Not worth the risk? Put yourself in the shoes of those grieving family members for a minute.

My Car Has a Push Button Starter: Am I At Risk?

January 25, 2016 | Robin Frazer Clark

My car has a push button starter: am I at risk? The short answer is yes. Not only are YOU are risk but anyone who lives in your house if you have an attached garage in which you park your car is at risk, too, for carbon monoxide poisoning and perhaps even death. Does your push button starter look anything like the one above? I was driving a rental car on business in another state recently and it had one of these push button starters. I had never used one before, but I had certainly heard of their inherent dangers. The problem is a design flaw. You may think you have turned off the ignition, after all, you have the keyless fob in your pocket with you. But often the engine is so quiet while in park you don’t realize it is still running. If you park your car in an attached garage, dangerous carbon monoxide gas can easily enter your home and kill you and anyone in your home while you sleep, without your ever waking up to realize there is a fatal hazard in your home.

This design flaw is well known to car manufacturers. “We have documented at least 19 fatalities that are specifically attributed to keyless ignition vehicles since 2009 and 25 more close calls,” said Janette Fennell, founder and president of the safety group KidsAndCars.org. “As more keyless ignition vehicles are sold, we are going to see these predictable and preventable injuries and deaths increase.”

There is a simple solution: an automatic shut-off system for the car if it has been running for a certain amount of time without moving, e.g., 30 minutes or so. This would prevent any carbon monoxide build up if you accidentally leave your car running in your garage. Some cars do have this safety feature, others do not. It is difficult at this point even to understand why not all such cars would include the automatic shut-off feature. There is currently a class action lawsuit filed against 10 automobile manufacturers who have not incorporated this simple fix of a deadly design defect. According to the suit, the automakers have long known about the risk keyless ignitions pose. In fact, the suit claims, that at least 27 complaints have been submitted to the National Highway Traffic Safety Administration since 2009. There is evidence that these cars continue to run regardless of how far away the keyless fob is from the running car.

Can a Georgia County Sheriff Be Liable for Failure to Prevent the Suicide of an Inmate?

January 6, 2016 | Robin Frazer Clark

Can a County Police Officer be held liable for failing to prevent the suicide of an inmate under his custody? That is the interesting question in the case below, which was argued before the Georgia Supreme Court this week. Below is the Court’s summary of the case. It gives you some of the pertinent facts and then a synopsis of the arguments and positions of both sides in the case. For court watchers and trial junkies this is a helpful tool provided by the Court (presumably written by one of the Court’s clerks; I did not write it) to be able to follow along in oral argument. By the way, the Georgia Supreme Court’s oral arguments all can be viewed through their livestreaming capability found on its website.

And if you can’t catch them live, the arguments are taped and available for your leisure viewing on the website, as well.

Pearce v. Tucker will be a case I’ll be watching as it turns on the old “discretionary v. ministerial” argument trap that really needs to be abolished in favor of including all such claims against counties as part of the Georgia Tort Claims Act. This would give this area law the predictably it desperately needs. Hopefully, the Georgia Legislature will address that one day. In the meantime, every time there is a case against a county employee, like the one below, the Court must go through this time-worn analysis of whether the employee’s conduct was discretionary, for which the employee has immunity, or whether it was ministerial, for which the employee does not have immunity. Stay tuned. Should be interesting.

Is My 911 Call Public Information?

October 19, 2015 | Robin Frazer Clark

There has been a lot of press this past week about the near death of NBA basketball player Lamar Odom at the Love Ranch in Las Vegas. Fortunately, Mr. Odom’s condition has improved dramatically. As part of the media frenzy about the incident, parts of the 911 calls when Mr. Odom was found unconscious have been played over and over on the radio and on the internet. I have heard several “journalists” comment that they can’t believe the 911 calls were made public and they should be private.

So, is your 911 call public information? Yes! Any 911 call is public information subject to the State’s open records act. Here in Georgia, our Georgia Open Records Act (“ORA”), O.C.G.A. Section 50-18-70 et. seq., defines “public record” as “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.” A taped 911 call certainly fits within this definition. And citizens shouldn’t want it any other way. The Open Records Act is sometimes referred to as “The Sunshine Law” because it throws light on what your government is doing. As our Attorney General Sam Olens has said “Government operates best when it operates openly.” –Attorney General Olens. Give credit to AG Olens who has made strengthening the Georgia Open Records Act one of his primary goals.

When I represent a client in which there was a 911 call made, such as a car wreck, or an injury on a business premises, or anything of that nature, I routinely immediately request the 911 calls through the Georgia Open Records Act. I do this to obtain them before they might be lost or erased. 911 calls can be a treasure trove of information. Quite often I obtain the names of eyewitnesses to car wrecks who are often never even listed on the police report. Plus they often contain a short statement from the eyewitness about how the wreck happened, stated immediately after they saw it! That’s pretty hard to beat!! So, yes, any 911 call is available to the public with a simple request and I will continue to request them in every case of mine.

New Georgia Sexual Predator Law Reopens Statute of Limitations and Revives Lawsuits

September 29, 2015 | Robin Frazer Clark

The Georgia General Assembly enacted a law during the 2015 Legislative Session, known as “The Hidden Predator Act” that reopens the statute of limitations for bringing suit against a sexual molester. This new law went into effect on July 1, 2015. This unusual law essentially creates a new statute of limitations to sue sexual molesters if the abuse occurred when the victim was under 18 years of age and the lawsuit is filed within two years “from the date that the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff.” O.C.G.A. Section 9-3-33.1 (b)(2)(A)(ii). This is known as the “discovery” provision of the new law and allows a victim to sue the institutional for which the sexual predator worked or with which he was affiliated. Interestingly, even if the “discovery” of the abuse occurred over two years ago, this new law reopens the statute of limitations for another two years solely against the individual sexual predator. it states: “For a period of two years following July 1, 2015, plaintiffs of any age who were time barred from filing a civil action for injuries resulting from childhood sexual abuse due to the expiration of the statute of limitations in effect on June 30, 2015, shall be permitted to file such actions against the individual alleged to have committed such abuse before July 1, 2017, thereby reviving those civil actions which had lapsed or technically expired under the law in effect on June 30, 2015.” O.C.G.A. Section 9-3-33.1(d)(1).

To date there has apparently been one lawsuit filed using this new statute, in Camden County, against a karate instructor. Six men are plaintiffs in that lawsuit who all allege they were sexually abused by their karate instructor when they were teenagers. We will be watching that lawsuit closely.

I call the new law unusual because it is the first time that I can remember that the Georgia General Assembly lengthened a statute of limitations to allow more time to sue and the first time I can remember that the Georgia General Assembly simply revived what were otherwise lost lawsuits. This is quite a milestone for the Georgia Legislature.

How Safe Was Your Labor Day? 5 Things to Know About This Holiday Weekend

September 8, 2015 | Robin Frazer Clark

The Georgia State Patrol and and various National Databanks, including the National Safety Council, have for years kept the morbid statistics of how many people die during any given Holiday weekend. I have blogged about this in the past and try to keep tabs on whether Georgia highways are getting safer. Here are 5 things to know about traffic safety from the 2015 Labor Day:

In Georgia this past weekend 14 people lost their lives in traffic incidents as reported by the Georgia State Patrol. Just for comparison’s sake, there were only two traffic fatalities in Connecticut. In Kentucky there were nine.
The National Safety Council estimated there would be 395 traffic fatalities in the United States this Labor Day. Final National numbers are not yet in as some polls include any fatalities up to Tuesday morning.

Greek Life: Helpful or Harmful?

August 13, 2015 | Robin Frazer Clark

With college students going back to school this week and next, many new freshman or transfer students are probably considering joining Greek Life on campus. Most schools have some sort of sorority/fraternity groups, with objectives being to provide an outlet for new students to get to know each other, form group bonds, and to give back to the community, to name a few. Over the last few years, some dangerous and sometimes fatal “hazing” practices by fraternities and sororities have come to light, and many have begun to pose the question: are these organizations as beneficial as they seem?

Some groups suggest that affiliation with a Greek organization leads to higher rates of success later in life. An article by USA Today stated that “85% of Fortune 500 executives were part of Greek life… And college graduation rates are 20% higher among Greeks than non-Greeks.” Psychologically speaking, this can be true. Feeling supported by like-minded individuals definitely contributes to better mental health and in turn, higher likelihood to succeed in life. Being a part of a Greek organization also connects you to generations of alumni with the same affiliation, which is certainly a plus when searching for jobs and making career connections. Sororities and fraternities also have a rich history in our country, the first being founded in 1831. Having a connection to such a renowned historical tradition is very important for some, especially “legacy” families, students who’s mother, grandmother, and so on were members of the same sorority. These organizations also undoubtedly benefit many charities. Each year most groups organize a fundraising event to benefit the charity affiliated with their organization. For example, Phi Mu at the University of Georgia raised $143,942 this year for the UGA Miracle program supporting Children’s Healthcare of Atlanta.

Unfortunately, there have been a number of events giving sororities and fraternities a bad and scary reputation. There is always the stigma that Greek groups are associated with partying, drinking and hazing. In some cases, the hazing of potential members has gone way too far. Over the last few years there have been some highly publicized cases of deaths by hazing from groups around the country. The Washington Times reported that since 2005, more than 60 people have died due to fraternity incidents. Recently in California, a family sued after their 19-year old from California State University Northridge died after being forced to hike 18 miles with his fellow Pi Kappa Phi pledges. The Clemson University community was shocked by the death of Tucker Hipps, a pledge of the Sigma Phi Epsilon fraternity, after reportedly being killed in a fight with his fraternity brothers over breakfast food. Hipps’ parents are filing a $25 million wrongful death lawsuit against the Sig Ep brothers. Reports of alcohol abuse, sexual assault, and flagrant racism also have been widely publicized over the last few years.

Am I Safe in an Uber?

July 31, 2015 | Robin Frazer Clark

Ridesharing services have been advancing in the app world over the last few years. Quite a few companies have become enormously popular for their efficiency and ease compared to traditional taxi companies. GPS based with pre-set payment settings, the whole interaction takes place online and even shows you a map counting down the moments until your driver arrives. Uber has quickly become a household name, and alongside Lyft, dominate the ridesharing sphere. There are, however, a number of safety concerns associated with the process. It is a rather strange concept to get into a stranger’s personal car and trust them to drive you safely to your destination. Recently, Uber has been attempting to address many of these concerns as well as handle a number of injury lawsuits that have occurred.

Fortunately from an insurance perspective, these ridesharing companies have got you covered. There is major debate between the taxi companies and Uber/Lyft regarding this topic, because taxi companies believe they better protect against possible insurance disparities after an injury. Largely in response to this criticism and attack by traditional taxi companies, Lyft and Uber now both have liability policies that provide additional coverage in the event that the passenger is injured in a driver’s vehicle and the driver’s insurance doesn’t cover all of their injuries, which is almost always the case. Not only that, but even in the event of an accident in which the company driver is not at fault, and the other motorist at fault is uninsured, they will still provide coverage if you are injured.

The Georgia Legislature passed a ridesharing bill this session (2015) that essentially sought to level the regulation of Uber and Lyft with that of traditional taxi companies. House Bill 225, which passed the Senate by a 48-2 vote, is the culmination of efforts to require the app-based transportation industry to meet the same standards that apply to other transportation providers, such as taxis and limousine companies. “The world as we know it in transportation has changed because of transportation companies like Uber and Lyft,” said Sen. Brandon Beach, R-Alpharetta, who carried the bill in the Senate. “This creates a new framework that allows them to grow with light regulation and common-sense policies.” Governor Deal signed the bill into law in March 2015 which mandates companies like Uber must have $1 Million in insurance coverage for its passengers. There continue to be squabbles between the traditional taxi companies and Uber, but free market principles of competition should control the outcome.

Music Festivals- Lawsuits and Liability

July 13, 2015 | Robin Frazer Clark

As many of you may know, the summer is peak time for music festivals. These events draw eclectic crowds of all ages, and cater to a wide range of musical and cultural interests. Recently there was Bonnaroo in Manchester, Tennessee, Firefly in Dover, Delaware, Electric Daisy Carnival in Las Vegas, and many more happening all over the country. These events attract massive crowds by the hundreds of thousands, and unfortunately, they’re no Woodstock. Every year people die at major music festivals, accompanied by hundreds of arrests and injuries. Considering the mass drug and alcohol use that typically takes place, this is not entirely surprising. Some people are beginning to point the finger at the electronic dance music community (EDM) as a whole, as there seems to be more drug related deaths at those festivals. One major electronic festival, Electric Zoo in New York City, was forced to cancel their final day this year due to deaths involving MDMA. Often in these circumstances, it is difficult to allocate responsibility. It is entirely foreseeable that in that large of a crowd, something will go wrong. Police presence and safety measures are not, unfortunately proving up to the task of reasonable safety for such a large crowd. Families of several victims of an incident at the South by Southwest music festival in Austin, Texas, however, are attempting to hold the festival corporations accountable for wrongful death.