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State Farm: LIke a Good Neighbor? Don’t Bet Your House On It

August 8, 2016 | Robin Frazer Clark

Do you believe that “Like a good neighbor, State Farm is there?” I have previously presented plenty of evidence that the answer to that question of whether State Farm is like a good neighbor is a resounding “no.” If you recall, in my case Eells v. State Farm, State Farm did everything it could possibly do within the bounds of the law (but outside the bounds of moral and ethical decency) to prevent its own policyholder from collecting on an uninsured motorist claim after the policyholder had paid premiums to State Farm for over 40 years. I blogged about that case, which went all the way to the Georgia Court of Appeals, where we prevailed, before it was resolved. The bottom line is that State Farm will do nearly anything to avoid paying legitimate personal injury claims, including forcing its insureds to endure a trial and potential personal exposure, rather than settle a clear liability suit prior to trial.

My son, a great lover of the sport of basketball, likes to say “The ball don’t lie.” Well, the two cases I am going to tell you about involving State Farm clearly share the theme of “the ball don’t lie,” meaning the truth ultimately comes out. Two recent trials in Georgia have placed the litigious policies of State Farm in the spotlight. The first trial was tried last month by James Robson and Robert Glass in Cobb County. The jury returned a verdict in favor of the plaintiff for $850,000.00 after just two and a half hours of deliberation. The at-fault driver, insured by State Farm, had only $100,000.00 in liability coverage. The plaintiff’s attorneys demanded the $100,000.00 to settle the case prior to trial, even though the plaintiff’s medical bills from her injuries were nearly $170,000.00. This means any verdict for the plaintiff would be very likely to be in excess of $170,000.00. State Farm had the opportunity (and the contractual duty) to resolve the case prior to trial for the demanded policy limits of $100,000.00. The plaintiff’s attorneys gave State Farm and extension of time to decide to pay the policy limits and even had the plaintiff’s treating physician speak by telephone to the State Farm adjuster confirming for her the plaintiff required neck surgery from the car wreck. But did State Farm do the right thing? No. State offered only $22,500.00 to settle the case, even after admitting their insured was at fault in causing the wreck. The jury returned what is known as an “excess verdict,” i.e., over the policy limits, and because State Farm had the clear chance to resolve the case for policy limits, will be on the hook to pay the entire verdict. You have often heard of “frivolous lawsuits” in the media but you seldom hear of “frivolous defenses.” This case was certainly one of them.

Another was in a case tried last week in Bartow County by my good friends and fellow trial lawyers Morgan Akin and Lester Tate of Akin & Tate in Cartersville. In that case, the plaintiff pulled into a roadway after stopping at a stop sign and was struck directly in the rear by a teenage driver. The investigating Georgia State Trooper measured 229 feet of skid marks left by the teenage driver as he tried to stop before rear-ending the plaintiff’s vehicle. The State Trooper found teen driver at fault. Mom of teen driver then went to State Trooper’s supervisor with photos maintaining the plaintiff just pulled out in front of him. Ultimately, the State Trooper relented and amended the accident report changing fault to that of the Plaintiff. The Plaintiff had shoulder surgery and $90,000.00 in medical bills. State Farm took up the mom’s torch, denied all liability and hired an expert who simply ignored the skid marks. The plaintiff’s expert accident reconstructionist, Herman Hill, testified that not only did the teenage driver hit the plaintiff in the rear but was going 75 MPH+ at the time of the collision based on the amount of skid marks left by her car’s tires during braking. State Farm doubled down by asserting a counter claim. The Plaintiff made a settlement demand of 100K policy limits initially and then after extensive litigation made a settlement demand of $275,000.00 prior to trial. State Farm never made an offer. The jury returned a verdict of $300,000.00. And because State Farm had the opportunity to resolve this case within the policy limits of $100,000.00 but declined to do so, State Farm will be on the hook for the entire verdict. Can you imagine being rear-ended by a teenage driver going 75 m.p.h. and then the teenage driver tries to blame you for it?

Who is Legally Responsible for Death by Alligator? Anyone?

June 17, 2016 | Robin Frazer Clark

The tragic news from Disney World in Orlando, Florida this week of a toddler being carried away and killed by an alligator in a lagoon on Disney property has sent waves of terror in every parent whose child has ever waded into any water other than a swimming pool. My family made many trips to Disney World when my children were young and water is everywhere around the property. It is my understanding that at this particular lagoon at The Grand Floridian Hotel there were “No Swimming” signs posted near the water. Yet the photos I have seen show chaise lounge chairs on a sandy beach in front of the lagoon. The beach was, apparently, man made by Disney for the enjoyment of their guests and Disney put the chaise lounge chairs on the beach looking directly to the lagoon. What is the message being sent by Disney? Come sit in these lounge chairs and enjoy the beach and the water? Doesn’t the placement of the chairs there and the placement of the sand there act as an invitation to wade in the water?

Disney is now, apparently, placing warning signs there now, along the lines of “Beware of Alligators.” Is this too little, too late? What is the duty Disney owed to its paying guests to warn them of alligators or to make sure they could not be harmed by alligators while their paying guests are staying at their hotels?

This incident brought to mind a similar tragedy that occurred not too long ago in Georgia, when a senior citizen was, ostensibly, grabbed by an alligator, carried away and killed while she was staying with her children at their home which was on a golf course. This case was litigated and, ultimately, decided by the Supreme Court of Georgia. The case is Landings Association v. Williams and was decided in 2012. The relevant facts, as discussed in the Court’s opinion are as follows: Williams, the victim, was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

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.

5 Things You Need To Do For Safe Swimming

June 15, 2015 | Robin Frazer Clark

Georgia, unfortunately, often leads the nation in pool and spa deaths. 2015 appears as if it will be no exception. Already, in the month of May alone, three children have died in Georgia pools or spas. Fortunately, there are numerous resources for learning about pool safety and I recommend you review them, regardless of whether you already think you have sufficient knowledge about pool safety. The Georgia Department of Public Health has many recommendations and it is a good place to start.

Probably the first line of pool safety is to teach your child to swim. And I don’t mean dog-peddling, or holding on to the edge of the pool at all times, I mean actual swimming for a good distance on the child’s own power. Sometimes swim lessons can be expensive, and I realize that, but they are absolutely necessary. Your local YMCA has year-round swim lessons and I recommend you enroll your child in one now if he or she isn’t already able to swim completely and competently on his or her own. On June 18, 2015 the World’s Largest Swim Lesson (WLSL) will occur and you can find host pools here in your area. The National Drowning Prevention Alliance (NDPA) sponsors this important endeavor every year.

In the meantime, here are 5 things you can do right now to make sure the pool your child swims in is safe:

The Unintended Consequences of Apportionment: Part I

January 15, 2015 | Robin Frazer Clark

What is apportionment? How does it affect my case? What does it mean? Can I ever get justice in my case with it?

These are typical questions I often get from my clients in personal injury cases. The issue of apportionment comes up now in just about every case filed. Apportionment is the premise of Georgia law that says a jury may (but is not required to) apportion other people or entities, who are not even being sued in the lawsuit, a percentage of fault should the jury so choose. In a lawsuit, a defendant may claim some other person or company is to blame also and may ask the jury to consider assessing some percentage of fault or blame to that other person or company who is not named as a defendant in the lawsuit. This is known as “apportionment,” i.e., the jury apportions fault or blame to whoever they think is at fault. Apportionment came into Georgia jurisprudence in 2005 through the wisdom of Georgia Legislature, part of sweeping reforms then known as “tort reform.” Interestingly, nearly all of these so-called reforms have now been elimimated as unconstitutional by our appellate state courts, e.g., a cap on non-economic damages. That cap lasted only as long as it took for a case with a verdict higher than the Legislature-imposed cap to make its way to the Georgia Supreme Court, where the Court promptly held the cap on damages to violate the Georgia Constitution. That case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010). Notice the Nestlehutt case was decided in 2010, so there were five years between the creation of that unconstitutional law and the undoing of it. There is no telling how many Georgia citizens were victims of malpractice during those intervening five years who didn’t receive justice.

When the law of apportionment first reared its ugly head, many practitioners and prognosticators, including mediators, declared certain types of cases “dead.” I can remember many of these folks pronounced the premature death of negligent security cases because the defendant apartment complex or defendant business would simply be able to blame the criminal defendant who perpetrated the crime and get off Scot free. Well, in the words of Coach Lee Corso, “Not so fast!” Fairly quickly after the implementation of apportionment, and after every defendant tried to blame everyone else in the world for their negligence, including a criminal, known or unknown, that myth was disproven. For example, in the Martin v. Six Flags Over Georgia case, in which a young man was severely beaten by a gang at Six Flags, for no reason other than the gang (some of whom were Six Flags employees) wanted to beat someone up, the jury returned a verdict of $35 Million. The Cobb County jury attributed to the gang members a total of 8% of that $35 million verdict, and split between the four of them, it came out to 2% per gang member/roughly $750,000 each. This means that Six Flags had to pay the remaining 92% totaling roughly $32 million dollars in damages.

Wild Animal Attacks: Does the Premises Owner Have Liability?

April 18, 2014 | Robin Frazer Clark

As a plaintiff’s personal injury trial lawyer who handles premises safety cases on a regular basis, I have been reading with interest an article about a wrongful death lawsuit recently filed in Illinois against a condominium owner regarding the death of a resident killed by black swans on the property. The dead man actually cared for the black swans for the condo and the condo kept them on the property to keep away geese and limit geese droppings on the grounds. You may recall this incident when it first happened, as it was on national news, certainly made news here in Atlanta, and was a shocking event with a rather bizarre manner of death. On the morning of April 14, 2012, one of the swans attacked the man, Anthony Hensley, causing his kayak to topple, according to witnesses at the time. The bird continued to lunge at him as he struggled to make it to shore before he disappeared under water, authorities said after the attack. He was pronounced dead at a hospital after dive crews scoured the 50-foot-deep pond to find him, authorities added.

The lawsuit claims that the defendants “knew or should have known that mute swans are strongly territorial with a dangerous propensity to attack.” Amy Hensley’s attorney, Kenneth Apicella, pointed to Illinois’ Animal Control Act, which says that the owner of an animal that attacks a person in certain circumstances can be held liable for damages.

This case will be an interesting one to follow, but it begs the question: would such a case here in Georgia “fly” (sorry for the pun). My answer is probably not. The Georgia Supreme Court in 2012 decided a very similar case that involved the death of a woman by alligator. The case, The Landings Club v. Williams, 291 Ga. 397, 728 S.E.2d 577 (Ga. 2012) was watched with great interest in the Georgia legal community, as it could have meant enormous liability for landowners in Georgia, which our law have heavily favored since Oglethorpe first founded our beautiful state. In The Landings case, a woman who was visiting her family at a planned residential/golf club community that had several lagoons on the property, which was on Skidaway Island off the Georgia coast. No person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m. The following morning, Williams’ body was found floating in the lagoon. Williams’ right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams’ body were found in its stomach.

$35 Million Dollar Verdict Returned in Cobb County

November 21, 2013 | Robin Frazer Clark

Following up on my blog from a few days ago regarding the Joshua Martin v. Six Flags trial, the jury returned a verdict last night in favor of Joshua for $35 Million. The jury apportioned 2% fault to each of the four gang members who plead guilty to some criminal charge in relation to the beating of Joshua, which means Six Flags Over Georgia is responsible for roughly $32 Million of the verdict.

Joshua Martin v. Six Flags: A Landowner’s Nondelegable Duty to Keep Its Property Safe

November 19, 2013 | Robin Frazer Clark

The case of Joshua Martin v. Six Flags Over Georgia is being tried this week in Cobb County State Court before the Honorable Kathryn Tanksley. You may recall the sad incident in which a gang beat Joshua severely to the point of putting him into a coma at Six Flags of Georgia. Joshua suffered a traumatic brain injury from the beating but survived. Unfortunately, he will never be the same as he was before the beating. Joshua is very ably being represented by trial attorneys Mike Neff, Gil Deitch and Andy Rogers.

The case is being tried because Six Flags Over Georgia has refused to accept any responsibility for the beating. In a written statement, Six Flags officials say the attack did not happen on their property but they are helping authorities in the matter and they strive to keep visitors safe. So Six Flags is denying any responsibility. This is true even though one of the gang members who ultimately pled guilty to aggravated assault, Brad Johnson, was an employee of Six Flags at the time. I was in court yesterday when Mr. Johnson testified after I had ridden up to the third floor of the Courthouse with him in the elevator. He testified under oath yesterday that he had stored a pair of brass knuckles in a flower bed at Six Flags as he came to work that day and retrieved them when he left with several other gang members. He gave the brass knuckles to another individual who used them in the beating of Joshua Martin. One of Mr. Johnson’s jobs at Six Flags was to maintain that particular flower bed so he knew, apparently, that his brass knuckles would be safe until he wanted to use them. So for his role he plead guilty to aggravated assault, received a sentence of 10 years to serve two, which means he spent less than two years in prison and now is on probation for 8 years.

Other startling testimony from the trial yesterday was that this gang intended to beat a man who was in the parking lot with his family, and then, as a whim, just decided to beat Joshua instead. The former President of Six Flags Over Georgia also testified yesterday and said the beating of Joshua occurred on a corner of an a dirt walkway that both patrons and employees used to walk from the CCT and MARTA bus stops to the Six Flags entrance way. Yet Six Flags still maintains it’s defense that it’s not responsible because it didn’t happen on Six Flags property. The Six Flags President also remarkably testified that Six Flags didn’t try to warn or alert the public that this had occurred right at the mouth of Six Flags because “she didn’t see the need for that.” I was watching jurors’ reactions to her testimony and several jurors showed outright disbelief at this testimony.

Landlord’s Failure to Provide Smoke Detectors the Real Cause of Four Siblings’ Deaths

January 15, 2013 | Robin Frazer Clark

It was a tragic story of unspeakable loss when we learned of four siblings’ deaths in a Conyers, Georgia fire in a duplex on January 8, 2013. As a plaintiff’s personal injury lawyer, I so often help families deal with unexplainable loss and sorrow. We have since learned that the fire was started by a six year old brother of the four siblings who died. Apparently, the young boy was playing with a cigarette lighter in the stairwell of a duplex the family rented. I say “started the fire” instead of “caused their deaths” because the real “proximate” cause of the deaths was the lack of any smoke detectors in the rented duplex. “Investigators… determined that the only smoke alarm in the duplex was downstairs and that it had no battery in it. Dwayne Garriss, state fire marshal, said it is state law that smoke detectors must be placed outside any sleeping area. However, he said the landlord will face no liability, because the law carries no penalties for a first offense. It provides a $25 fine for a second offense.”

That’s a crime in and of itself, isn’t it? Certainly, failing to have the mandatory smoke detectors in place as required by law and then renting the duplex to a family with five small children is criminal. Under Georgia law (O.C.G.A. §25-2-40) an approved battery operated smoke detector is required in every apartment, house, condominium, and townhouse constructed prior to July 1, 1987. The smoke detector is to be located on the ceiling or wall at a point centrally located in the corridor or other area giving access to each group of rooms used for sleeping. Where the dwelling has more than one story, detectors are required on each story including cellars and basements, but not including uninhabitable attics. The detectors must be listed and meet the installation requirements of NFPA 72. The law is to be enforced by local building and fire code officials.

It seems that the landlord, at the very least, recklessly subjected the family to exactly this type of risk of death. Obviously, had there been smoke detectors, the alarms would have gone off and would have awakened the mother in time for her to save her childrens’ lives. Instead, they are dead and she is left with horrible burns on most of her body.

Abandoned Property Is Often An Invitation to Crime

December 9, 2011 | Robin Frazer Clark

Just hours after I blogged about the killing of little Jorelys Rivera, we all learned that the perpetrator was an employee of the apartment complex where Jorelys lived. The horrible crime occurred in a vacant apartment that perpetrator knew was vacant and had easy access to, especially since he was the apartment’s maintenance man. Before I knew any of this, I had already suggested that whoever had done this horrific deed had access to the vacant apartment and knew it was vacant, essentially giving the perpetrator the perfect placd to committ his crime. How did I know before the GBI ever disclosed these facts to the public? Because this is a fact pattern that often repeats itself and as a plaintiff’s personal injury lawyer in Atlanta, I see this in the civil premises safety cases I bring for clients.

Now I read in the Atlanta Journal and Constitution online today a story about another hideous crime, this time the rape of two women. I have often represented such crime victims in civil personal injury lawsuits here in Fulton County, Georgia, against the negligent property owners. Property owners, especially commercial property owners like the apartment complex where Jorelys was killed, know that vacant, abandonded property is a haven for crime. These property owners have a duty to eliminate that risk, to use ordinary care to keep the premises safe. These owners cannot claim they had no idea that a unforseen criminal attack would occur on their property, because they absolutely know if they have vacant property that a criminal can easily gain access to, they are essentially aiding and abetting the crime by furnishing the scene of the crime. This is what happened in these two rapes in Atlanta today and this is what happened in the death of Jorelys Rivera. And with so many homes in Atlanta and in Georgia under Foreclosure now, the problem of anbandoned property is growing.