Category: General Litigation

Georgia Personal Injury: Smoke Detectors and Causation

In Georgia, if you’re injured due to someone else’s negligence, you can sue the party who caused your injuries. These cases are generally filed in the county where the party that caused the injuries resides, and are decided by what are known as trial courts. In the trial court, the parties collect evidence related to the cause and extent of the injuries. After the evidence is collected (this happens during “discovery”), the parties present this evidence to a jury, who decides who the outcome of the case.

The right to a jury trial, i.e., having the right to present disputes to randomly selected members of your community, is one of the founding principles of this country. In Georgia, Article I, Para. 6 of the Georgia Constitution and O.C.G.A. § 9-11-38 guarantee the right to a jury trial.

There is an exception to the right to a jury trial. This is when the party accused of the wrongdoing files a motion for summary judgment. These motions allege that, even with the evidence viewed in favor of the injured party, the facts and the law are so one-sided that the accused party should win without the need for a trial. In other words, a jury trial is a waste of time.

This is what happened recently in a case called Yearty v. Scott Holder Enterprises, A18A2074 (March 14, 2019). In that case, a woman, who had nodded off to sleep while waiting for her food to cook, badly burned her hand in a grease fire. She sued the company who installed the smoke detectors at her house. She claimed the smoke detectors didn’t go off, which made the fire much worse than if the alarm had timely sounded. After the evidence was collected, the trial court granted summary judgment to the company, ruling the woman could not prove that the company’s misconduct “caused” her injuries.

The injured woman appealed. In what appears to be a fundamentally flawed decision (at least to this writer), the Georgia Court of Appeals agreed with the trial court that summary judgment was proper based on the principle of causation. Incredibly, the Georgia Court of Appeals reasoned that “[the injured party] has not pointed to any evidence showing that but for a non-functioning smoke detector, [the injured party] would not have sustained her injuries.” This rationale is hard to understand when the very purpose of a smoke detector is to provide an early warning of a fire. Here, the woman claimed that had she had an early warning, she wouldn’t have been injured. This seems both logical and reasonable. Perhaps even more incredible, the court went on to rule that because the woman burned her hand while trying to put out the fire, she was to blame, regardless of whether the smoke alarm should have sounded.

Fortunately, there was a dissenting opinion. Three Georgia Court of Appeals judges decide these types of cases. Here, one of the judges disagreed with the other two. The dissenting judge pointed out the obvious, which is the purpose of a smoke detector is to “provide an early warning of fire  . . . to reduce injuries.” Thus, had the smoke alarm sounded in a timely manner, the injuries might have been prevented. Moreover, trying to put a fire out to minimize property damage, and possibly to save human life, is a natural reaction and shouldn’t get the smoke alarm company off the hook.

After hearing the evidence, maybe the jury would have sided with the woman or maybe the company, but this is case that should have been decided by a jury hearing evidence at a trial. Not by a judge or an appellate court.

If you are injured, please call us at 404-382-9994 to discuss your case.

Medical Malpractice Affidavits: Causation

A recent appellate case provides a cautionary tale for persons making a claim for injuries due to medical malpractice. Edokpolor v. Grady (A16A1031, decided 9/14/2018) is a recent medical malpractice case that was thrown out of court because the injured party’s expert affidavit was deficient.

In Georgia, negligence claims against professionals such as doctors, lawyers, and engineers require  an expert affidavit verifying the wrongdoing. This affidavit is a mandatory requirement in all malpractice claims in Georgia.

For example, in a malpractice claim against a doctor, the affidavit must be from another doctor who practices the same type of medicine and the affidavit must state that culpable doctor’s treatment of the injured patient fell below the standard of care for similar doctors; importantly, the affidavit must also explain how the alleged negligence caused the injury to the patient.

In Edikpolor, the patient reported to Grady Memorial Hospital with cardiac disease and other issues. After spending 30 days in the hospital, the doctors determined the patient needed a colonoscopy. To prepare for the examination, the doctors ordered that bowel preparation medicine be administered to the patient via a feeding tube. Contrary to these instructions, the nurses administered the medication by mouth. The patient allegedly choked on the medication, which caused fluid to enter her lungs, and she died several weeks later as a result.

The patient’s family sued the hospital, which included a malpractice affidavit from another doctor. The affidavit stated that the nurses were negligent in not following the doctor’s order to use a feeding tube, and that the negligence was the cause of the patient’s death.

The problem in this case is that the affidavit was ruled inadequate because it didn’t explain how and why feeding fluid by mouth is more risky than feeding through a tube. On the other hand, the hospital introduced a contradictory expert affidavit, which stated that choking could occur whether taken by mouth or feeding tube because  what happens is the liquid ends up in the stomach and is then regurgitated into the throat; it is at this point when the liquid is inhaled into the lungs. In other words, administering the fluid by mouth was not necessarily the cause of the injuries.

This case shows that “[a] plaintiff must show that the purported violation or deviation [by the medical professional] is the proximate cause of the injuries sustained. He must prove that the injuries complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. There can be no recovery where there is no showing to any reasonable degree of medical certainty that the injuries could have been avoided.”

It’s easy to be critical after the fact, but the case underscores that not only must you show negligence, but you must be able to show with relative certainty that the negligence caused the injuries.

Discovery From Third-Parties

Once a lawsuit is filed, there is a period of discovery in which the parties exchange evidence and take depositions. In almost every case, there is tension in regard to what must be disclosed to the other side. Georgia law says that parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery. It is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

What does this mean? Well, it means that most anything that is or may become an issue in the litigation must be disclosed. The same rationale applies to discovery to a third-party (i.e., a party that is not named in the lawsuit). The way this is applied, as a practical matter, is that the court will look at issue in dispute and decide whether the information or documents sought are relevant or likely to lead to the discovery of admissible evidence. This is a liberal standard but there must be some connection between the evidence sought and a dispute in the lawsuit.

Slip and Fall in a Parking Lot

Who is responsible when you’re injured in a shopping center parking lot. Is it the store you were shopping in? Is it the owner of the shopping center? Or, is it both? These were the issues decided in a recent Georgia appellate case. See Boyd v. Big Lots Stores, Inc., 18A1140 (July 31, 2018).

In what is likely one of his last opinions, Judge Andrews, writing for the court, predictably sides against the injury party. Judge Andrews is retiring from the bench, and for attorneys who represent injured parties, it can’t come soon enough. While Judge Andrews authors intelligent, articulate opinions, he typically sides with businesses and insurance companies.

With regard to parking lot injuries, the general rule is that a business must keep its premises and approaches safe for its customers. This includes protecting its customers from known dangerous conditions in the parking lot. In the Big Lots case, the customer was injured 45-feet away way from the store entrance. The Court of Appeals explained that an “approach” to a premises refers to property that is within the last few steps taken by the customer, as opposed to mere pedestrians. More specifically, an approach “is that property directly contiguous, adjacent to, and touching those entryways to [the] premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended.”

In Big Lots, the customer exited the store, walked across a sidewalk, and continued away from the store into the parking lot. The Court decided she was no longer within the store’s “approach” when she slipped and fell because the area was not adjacent to or touching the entry/exit of the store.

Although Big Lots got out of the case, all was not lost for the injured party as she still has a claim against the owner of the shopping center for her injuries.

Holding a government employee responsible for injuries in Georgia: Ante litem notices

 

If you’re hurt by a police officer involved in a high-speed pursuit or county employee negligently driving a government truck, you must follow a complicated set of procedures to recover for your injuries. This is because the government and/or its employees are protected under the doctrine of sovereign immunity. Not closely following these procedures will cause you to quickly lose your claim on a technicality.

The blog deals with the very first requirement, which is sending an ante litem notice. An ante litem notice is a letter sent to the government entity that describes the details of the incident, explains why the government entity is responsible, and states the injuries sustained. In theory, an ante litem notice is required to give the government entity an opportunity to timely investigate the allegations. With few exceptions, failure to timely send an ante litem notice to the correct entity ends a claim for injuries.

Generally, claims vary by the type of government entity: for example, counties, cities/municipalities, state entities, or federal entities. Below is a quick overview of some basic aspects of ante litem notice requirements.

With respect to a county entity (for example, a county sheriff’s office), an ante litem notice must be presented within 12 months of the injury. Each county is set up a little differently, but generally notice should go to the county attorney and county board of commissioners. With respect to a city or municipality, an ante litem notice must be presented within six months of the injury. Notice is normally sent to the mayor and the city attorney. Ante litem notices to the State of Georgia must be presented within twelve months after the injury. The notice must be delivered to the Risk Management Division of the Department of Administrative Services as well as the government office that is the basis for the claim. Finally, claims against the Federal Government and/or its employees requires submitting a Form 95 administrative claim to the responsible federal agency within two years of the injury.

Even though in our 20 plus years of practicing law we’ve personally never known a government agency take any action in response to an ante litem notice, Georgia courts strictly apply these rules and they must be carefully followed.