Category: Personal Injury

Food Poisoning in Georgia

In a big victory for parties injured by contaminated or defective food, the Georgia Supreme Court made it significantly easier for food poisoning victims to recover for their injuries. See Patterson v. Kevon, No. S17G1957. Up until this recent decision, a food poisoning victim was required to submit direct evidence of the defectiveness of the food and was only allowed to submit circumstantial evidence if every other reasonable hypothesis as to the cause of the illness was excluded by the evidence.

What this meant in plain English is that, in most instances, an injured party could make a recovery only if they had the actual food item and if the food item was tested in a lab. This was an unrealistic standard because food poisoning symptoms typically appear several hours after consuming the food. And many times, several days pass before symptoms are connected with the defective food. By that time, the food item is long gone.

The facts of the case were, several days after eating BBQ at a wedding, the victim and another guest were diagnosed with salmonella. In addition, 17 other guests had become ill with similar symptoms. Prior to the current ruling, the BBQ caterer would have been able to successfully argue that because the injured party didn’t have the food item to present as evidence (direct evidence), the injured party would lose. This is because the salmonella, in theory, could have been ingested during another meal.

The new decision says that circumstantial evidence, by itself, is enough. Thus, although the victim couldn’t produce a food item that tested positive for salmonella, he had testimony from 19 people attending the wedding, all who suffered salmonella symptoms in the days following the wedding. Even though this was only circumstantial evidence of his injury, it was enough for the injured party to present his case to a jury.

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.

Venue In An Uninsured Motorist Lawsuit

The Georgia Supreme Court has ruled that an uninsured motorist lawsuit against a known defendant and an unknown defendant can be brought in the county where the accident occurred. Carpenter v. McMann et al., S17G1894 (8/2/18).

The Georgia Constitution says, generally, that lawsuits must be filed in the county in which the responsible party resides. But, it also says that if there are two or more responsible parties who reside in different counties, the lawsuit can be filed in either of the defendants’ “home” counties.

In Carpenter, one of the (alleged) responsible parties left the scene of the collision and was therefore unknown. Lawyers and the courts label these unknown parties as “John or Jane Does.” Under Georgia uninsured motorist law, a lawsuit against a John or Jane Doe can be brought in the county where the collision occurred. What is a little unusual in Carpenter is there was one known defendant and one unknown defendant.

The question before the Georgia Supreme Court was whether the lawsuit should have been filed in the county where the known defendant resided instead of where the collision occurred. Reading the Georgia constitution and relevant statutory provisions together, the Court found that the plain language of drafted by the Georgia legislature permitted the injured party to choose the county where the collision occurred (via the unknown driver) and not the county where the known driver resided.

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.

Langley: Important New Personal Injury Case

Langley v. MP Spring Lake, LLC, A18A0193 (May 1, 2018), just issued by the Georgia Court of Appeals, may have a big impact on many future Georgia personal injury cases. Langley involves a residential landlord-tenant relationship in which a tenant sued her landlord for injuries more than a year after the injuries occurred. Normally, in Georgia, an injured party has two years to file a personal injury lawsuit. However, in this case, the landlord moved to dismiss the case because the lease provided only one year to sue the landlord.  This is the exact language in the lease:

Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.

Focusing on the word any, the Court of Appeals ruled that any legal action included not only breach of contract claims but also personal injury claims. Thus, the lease trumped Georgia’s statute of limitations. The Court reasoned that parties should be free to enter into contracts without interference from the courts.

At Gomez & Golomb, we practice personal injury and real estate litigation. Thus, for us, Langley cuts both ways. It’s bad for our personal injury clients, but good for our real estate and corporate clients. From now on, in personal injury cases, we will be looking even more closely at applicable contracts for language that may limit injury claims. For our real estate and corporate clients, we will be advising them that Langley opens the door to include terms in their contracts that limit liability.