Atlanta Injury Lawyer Blog

A Police Officer Just Took My Cellphone: Can He Do That?

January 5, 2016 | Robin Frazer Clark

A police officer just took my cellphone: Can he do that? The answer is, as it is with all things legal, it depends.

Cell phones seem to be in the news every day now. They have become such a part of the everyday fabric of the lives of the majority of people that we consider them indispensable, as they often contain so much of our personal information and lives. How could we possibly go for a day without them. For example, do you know by heart the telephone number of your spouse or partner or child? If you were arrested and your cellphone taken from you as part of the arrest, would you know by memory the cellphone number of your closest loved one to be able to call that person from the jail to be bailed out? (That is NOT a hypothetical scenario, Friends! It happens). Think also about the hot car death of 22 month old Cooper Harris in Cobb County last year. A search of Dad Justin Ross Harris’s cellphone revealed internet searches for death in a hot car and also revealed Mr. Harris had been texting sexually explicit messages that day to a minor. What appeared to be a tragic honest mistake of forgetting the child was in the car and leaving him in a hot car where he died turned into an arrest for intentional murder of the child, all because of what was found on the dad’s cellphone.

Just last month our very own Eleventh Circuit Court of Appeals ruled that a pair of child pornography defendants abandoned their rights to a phone after they lost it at a store and gave up attempts to retrieve it. United States v. Johnson, No. 14-12143, and United States v. Sparks, No. 14-12075 (11th Cir. Dec. 1, 2015).

Do We Elect Our Judges in Georgia?

December 11, 2015 | Robin Frazer Clark

Do we elect our judges in Georgia? That seems like a yes or no question, doesn’t it. But in the words of Coach Lee Corso, “Not so fast!” Why is that hard to answer? Because it depends.

You may have seen in the news a recently filed lawsuit challenging the Governor’s appointment of three newly created positions on the Georgia Court of Appeals. The basis of this challenge to the gubernatorial appointments is that the Georgia Constitution requires judges to be elected. The Georgia Constitutional provision the challengers are relying on states: “All justices of the Supreme Court and the judges of the Court of Appeals shall be elected on a nonpartisan basis for a term of six years.” While the Constitution does provide the governor with the power to appoint persons to vacancies “in certain circumstances,” those circumstances are limited in the Constitution to “death, resignation, or otherwise,” the suit said.

That language “shall be elected” seems pretty strong, doesn’t it? “Shall” has always been interpreted in legal parlance to be mandatory. No ifs, ands or buts. So the challengers seem to have a point, right? The exception to the mandatory election is only “death, resignation or otherwise.” It does not say in the case of a newly created position on the bench. Many Georgia voters may assume we elect our judges. But the truth is the Governor gets to appoint a vast majority of judges. For example, if a judge retires prior to the completion of his or her term, the Governor has the right to appoint that judge’s successor. Only if a judge completes his or her term of office until the next election will the voters of Georgia actually elect that judge’s successor. Are you wondering whether the judge in your county was elected or appointed? That information is readily available. And consider this: if the Governor appoints someone to fill a vacancy on the bench, then that person will run as an incumbent in the next election. As a practical matter, it is extremely difficult to beat an incumbent judge in Georgia. So the power of appointment by the Governor is pretty important.

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.

Five Things You Should Know About Arbitration Clauses in Contracts

October 8, 2015 | Robin Frazer Clark

To trial lawyers, arbitration is a dirty word. We have fought tooth and nail against any forced arbitration clauses as they take away your Constitutional right to a trial by jury for any dispute. Have you signed an arbitration clause and didn’t even know it? Most likely, yes. I would venture a guess that most American citizens have and you would never know it until a dispute arises. That’s when the wrongdoer throws the arbitration clause in your face and (figuratively) says “you can’t sue me (i.e., you can’t hold me responsible). Here are five things to know about arbitration clauses:

“Mandatory” Arbitration clauses are not mandatory. An arbitration clause is nothing more than a waiver of the right to a jury trial to decide any dispute. But for a waiver to be valid it must be “knowing,” i.e., you must know what you are giving up or “waiving” at the time you give it up. Arbitration clauses, by definition, are not “knowing” because you are required to sign or submit to them pre-dispute or pre-injury, before you even know what harm has or may be done. How can that possibly be a “knowing” waiver? It can’t. Many courts have invalidated so-called “mandatory arbitration” clauses for his very reason. Arbitration clauses often appear, for example, in the admission papers of a nursing home. The admitting family member must sign 20 pages or so to get their loved one admitted into the nursing home and the “mandatory arbitration” clause is hidden somewhere on page14 in fine print that no lay person could possibly read or understand. The family member must sign these documents at what may very well be once of the worst times in his or her life, when the decision to place his or her spouse or partner, who perhaps they have lived with and loved for 40 years, into another living facility to be cared for by other people. The loved one’s health is probably failing. And yet nursing homes are slipping these “mandatory arbitration” provisions under the noses of their customers every day in America, without explaining what it is or what it means, during a life crisis for the consumer. What’s fair about that? Nothing.
“Mandatory” arbitration clauses protect the institution not the consumer. I have had some success in the nursing home scenario described above in getting Georgia judges to invalidate arbitration clauses because they are not a “knowing” waiver of a known right. One such arbitration clause I defeated stated that the arbitration must be conducted in “accordance with the American Health Lawyers Association (AHLA) Alternative Dispute Resolution Service Rules of Procedure for Arbitration….” The American Health Lawyers Association is roughly 13,000 lawyers, which “includes in-house counsel, compliance and privacy officers, finance officers, health care consultants, regulatory professionals, those employed in health care, public health, government, and academia.” This means the AHLA members are lawyers for the nursing homes. They are not lawyers for the patient or family member. Does that seem like a level playing field to you, conducting this forced arbitration according to the rules devised by the nursing home lawyers? Not hardly.

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.

3 Things to Know for Holiday and Summer Safety

July 6, 2015 | Robin Frazer Clark

One of my favorite holidays, the Fourth of July, celebrating our Nation’s Independence, has just passed. It’s the time to celebrate our nation’s formation and relax, wherever you might be, with family and friends over the long weekend. Unfortunately, it’s also one of the most dangerous weekends of the year due to an array of safety hazards. I hope it was a safe holiday for you and your family. Here are some things to keep in mind:

Driving: Independence Day weekend consistently results in the highest amount of fatal crashes in the U.S. Between 2008 and 2012, there was a calculated average of 127 fatal car accidents each year just on July 4th. Just about everyone is going to be on the road, and will likely be distracted and hurried. Distracted driving, as I’ve written about before, has become a major problem over the last decade due to cell phones. For your own safety and those around you, put them away while driving! Alcohol is also a significant factor in crashes, and accounted for 41% of deaths last year. So needless to say, DON’T drive drunk. The ride app Uber is a great new tool and when in doubt, call a cab. Also, DO remember to buckle up. The CDC reports that it can reduce injuries and deaths in a crash by 50%.

Fireworks: Because of the new laws put in to effect July 1st, it is now legal to set off fireworks in Georgia between certain times on holidays. This is great news for fireworks fanatics, because you won’t have to drive to Alabama anymore for your sparklers; however, it is very important to be cautious while using them. In 2013, there were eight deaths and 11,400 injuries in the US just due to fireworks. If you’re lighting them yourself, DO make sure you’re in a clear outdoor area with no surrounding trees or brush. Keep a safe distance from them as they go off, and always have a water source nearby, just in case. I also recently read about fireworks triggering PTSD for veterans, as the loud explosions can cause distress for those dealing with the disorder. If you know of veterans in your neighborhood and plan to set off fireworks this weekend, it may be courteous to let them know.