Category: Personal Injury

What is Negligence Per Se in Georgia?

Posted by Jeff on

Defintion of Negligence

Entire law school classes focus on negligence and its application, so this blog is a very general introduction to one of the negligence-related concepts called negligence per se.

Negligence is the failure to take proper care in doing something. The most common example is an automobile collision. No one intends to cause an automatable collision. But, if a driver isn’t paying attention and rear-ends another vehicle, such lack of care constitutes negligence.

Elements of Negligence

Four elements are required to establish negligence: (1) a legal duty that the defendant owed to the plaintiff, (2) a breach of that duty, (3) an injury, and (4) proof that the negligence caused the injury.

Negligence Per Se and Breach of Duty

So what is negligence per se? Under Georgia law, violating a statute, ordinance, or mandatory regulation may constitute negligence per se. To prove negligence per se, you must show a violation of a statute, that the harm complained of was the harm the statute was meant to protect against, that the person harmed fell into the class of persons the statute was intended to protect, and that the violation caused the injury. Gleaton & Associates, Inc., v. Cornelius, A22A1403 (February 8, 2023).

While not intuitive, negligence per se addresses the first element listed above: the legal duty owed. Lots of times, it isn’t clear whether someone has a duty to another person or what that duty consists of. With negligence per se, if a statute, ordinance, or regulation applies, violation of such a rule will satisfy the obligation to show a breach of a legal duty.

An Example of Negligence Per Se

In Gleaton, the case mentioned above, a tenant alleged the negligent filing of a dispossessory lawsuit against her. OCGA § 44-7-58 states that “[a]nyone who, under oath or affirmation, knowingly and willingly makes a false statement in an affidavit signed pursuant to Code Section 44-7-50 . . . shall be guilty of a misdemeanor.” The tenant alleged the landlord had violated that statute and was liable for negligence. Ultimately the court ruled for the landlord because it ruled the allegations in the dispossessory were not false.

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Negligence per se is one of the many nuances in the law that we use to win cases for our clients. If you are injured or wronged by someone else, please call us at 404-382-9994 to discuss your legal options.  

Georgia Homeowner Possibly Liable for Fireworks Injuries

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In a recent appeal, fireworks at an annual Fourth of July party injured an eight-year-old girl. The young girl’s parents sued the homeowners for the resulting injuries from the fireworks display. Harbin v. Ritch, A22A0670 (2022). The trial court threw the case out. The trial court believed that the child should have known of and avoided the danger. The child’s parents appealed, and the Court of Appeals reversed (meaning they disagreed with the trial court).

Homeowner’s Responsibilities

At issue was whether the parents who threw the Fourth of July party could be held responsible for the injuries caused by the fireworks.

The Georgia Court of Appeals explained a homeowner might be responsible if: (1) they knew of the dangerous condition, (2) the guest was unaware of the dangerous condition, and (3) they failed to make the condition safe.

In this situation, there was a history of prior problems with fireworks injuries during the Fourth of July parties. In addition to prior issues, the testimony was that most of the adults at the party were drinking, including the homeowners. Finally, the homeowners had not made any effort to supervise the fireworks.

Most often a Court will not hold a homeowner liable if the injury was an accident. But if the homeowner was intoxicated and was acting irresponsibly, then a Court can hold such a homeowner liable.

A Jury Must Decide on Damages for the Fireworks Injuries

Because of the history of drinking and lack of supervision, the Georgia Court of Appeals ruled that a jury must decide if the homeowner was responsible the fireworks and the young girl’s injuries. Even though the young girl and her parents knew of the fireworks at the party, the Court decided that an eight-year-old girl could not understand the risk of being injured.

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If you or a family member are injured, call us at 404-382-9994 to make an appointment to discuss your case.   

Children’s Medicaid Reimbursement

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Wrongful Death

As personal injury lawyers, our primary duty to our clients is to maximize each client’s net recovery. So, while it’s great to get a significant settlement on behalf of a child, such a settlement is much smaller when a large portion must be repaid to a health insurance company or Medicaid. At Gomez & Golomb, we work hard dealing with and extinguishing any Children’s Medicaid Reimbursement claims not allowed under Georgia law.

An example is when a minor is injured. PeachCare/Medicaid often pays the medical bills and claims a lien against future settlements in these situations. After careful review, we interpret Georgia and federal law to hold that PeachCare has no right to reimbursement for any settlement with a minor. We, therefore, fight these reimbursement claims tooth and nail.

In Georgia, an injured child only has a claim for pain and suffering. Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386 (1997) discusses this concept. In that case, the Court held that a minor has no claim for medical expenses because that obligation rests with the child’s parents. This reasoning makes sense because until a minor child reaches the age of 18, they cannot be bound under contract. Therefore, in a Children’s Medicaid Reimbursement situation, a child cannot be liable for medical expenses nor claim reimbursement of medical expenses.

The United States Supreme Court held that Medicaid/PeachCare can only reach settlement monies paid to reimburse medical bills following an injury. Thus, PeachCare/Medicaid can claim a lien against that part of an injured person’s recovery only for money received for medical expenses. Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268; 126 S. Ct. 1752 (2006).

Reading Sinclair and Ahlborn together, Medicaid/PeachCare cannot claim a lien against a minor child’s settlement proceeds. To shield a settlement from Peachcare/Medicaid, we structure the settlement between the wrongdoing party and the minor child. The settlement clarifies it only covers pain and suffering.

If you have a question about these issues, please call Gomez & Golomb LLC at 404-382-9994. 

Wrongful Death in Georgia – Who Makes the Claim

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If your loved one has recently passed, we offer our sincere condolences. Losing a loved one is tragic, but at some point, the living must go on living. This means educating yourself regarding your family’s legal rights in order to make a full recovery on behalf of your loved one.

If your loved one’s death was caused by the negligence of another, who is entitled to make a claim? A claim may include include funeral expenses, medical expenses, pain and suffering before your loved one’s death, and the value of your loved one’s life that has been cut short?

To understand who can make a claim, we must first understand that Georgia law allows two different claims following a wrongful death: one is just referred to as a “wrongful death claim”, and the other is referred to as an “estate claim” or “survival claim”. The same person can bring both claims, but this isn’t necessarily the case.

Wrongful Death Claim

Under Georgia law, this claim belongs to the loved one’s spouse and children. See OCGA § 51-4-2. If the loved one had no spouse or children during their life, the loved one’s parents are entitled to make the claim. See OCGA § 19-7-1. Finally, if no spouse, children, or parents are alive, the court can appoint an administrator or executor to make the claim. See OCGA § 51-4-5. Relatives such as a sibling, uncle, aunt, or grandparent have no right to prosecute the wrongful death case.

We will discuss this in further detail in another blog. However, generally, a wrongful death claim includes recovery for the value of your loved one’s life had he or she not died prematurely.

Estate/Survival Claim

The administrator of your loved one’s estate is the party entitled to make claims for funeral, medical, and other necessary expenses and any claim for pain and suffering before death. OCGA § 51-4-5.

If you have any questions about who can make a wrongful death claim on behalf of your loved one, please call us. We have provided a very general overview, but many details and complications come up when applying these rules in real life.

Uninsured Motorist Insurance in Georgia: Notice

Posted by Jeff on

First and foremost, you should buy uninsured motorist insurance! This type of insurance covers situations in which you are injured by driver who has no insurance or minimal insurance. This is an optional coverage, which everyone should get because it is relatively inexpensive and there are many uninsured and underinsured drivers out there.

If you have (hopefully) purchased uninsured motorist coverage, how quickly do you need to notify your insurance carrier? According to a recent case, as soon as possible. In Hyde v. State Farm, A20A1221 (2020), a negligent driver injured the claimant on August 18, 2016. An attorney notified the claimant’s employer on December 6, 2016, who in turn notified State Farm on December 7, 2016. However, the attorney did not directly notify State Farm until much later.

Because the attorney addressed the December 7, 2016 letter to the employer, the Court of Appeals ruled that State Farm did not receive notice. Moreover, the Court of Appeals ruled that under the State Farm insurance policy, notice is required “as soon as reasonably possible after the injured insured is first examined or treated for the injury.” Here, the notice was not as soon as reasonably possible. Finally, the Court of Appeals ruled that the delay in providing notice was not justified.

At our office, our standard procedure is to notify the at-fault driver’s insurance company and your insurance company as soon as possible. This avoids any chance of losing your right to recover due to late notice. Please call us at 404-382-9991 if you are in a car accident and need an attorney. We will come to you if you do not have a ride.