April 18, 2014

Wild Animal Attacks: Does the Premises Owner Have Liability?

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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.

No question this was a gruesome death; but was The Landings Club responsible? The majority of the Georgia Supreme Court said no and largely blamed the death on the decedent herself for walking outside at night when she knew or should have known there were likely alligators living in the lagoons. The Landings Club won the case on Summary Judgment, meaning there never was even a jury trial in the case.

Three Georgia Supreme Court Justices dissented, meaning they didn't agree with the majority (the other four Justices). In an eloquent dissent that reinforced the American Jury, Justice Robert Benham wrote:
"Based on the facts presented at the time of summary judgment in this case, reasonable minds could differ as to the essential elements of appellees' premises liability claim. Indeed, there are very specific questions in this case that must go to a jury: whether decedent knew that large and aggressive alligators were living on the premises and in the lagoon in which her body was discovered; 2 and whether appellants exercised reasonable care in inspecting and keeping the premises safe from alligators—in particular, alligators that were over seven feet long and alligators that were aggressive toward humans and pets as per appellants' removal policy. Rather than allowing this evidence to be reviewed by a fact-finder, the majority opinion bars appellees' premises liability claim simply because the decedent once observed an alligator standing on the roadside. Such a result disregards all the other factual circumstances in the case and is not in keeping with our jurisprudence. (“all the circumstances at the time and place of the incident” must be considered). Accordingly, I would affirm the judgment of the Court of Appeals and allow the premises liability claim to be tried before a jury." Benham, J., dissenting.

So, the Chicago Black Swan case made me think of the Georgia Alligator Case, which made me conclude that, under Georgia law, at least, the Black Swan case wouldn't have a flying chance. But, Illinois Law will apply in the Black Swan case, so we will just have to stay tuned for now. Will be interesting to follow.

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April 7, 2014

Jury Duty: The Tenet of the American Judicial System

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I read with horror the article in today's Fulton County Daily Report, our legal news organ, about a lawyer who received a summons for jury duty in DeKalb County and who then promptly and arrogantly emailed the judge informing the judge, Hon. Dax Lopex, DeKalb County State Court, that if selected for the jury she would blame the plaintiff and automatically find for the defendant. I find this offensive on so many levels it is hard to know where to start. As the 50th President of the State Bar of Georgia, as the Past President of Georgia Trial Lawyers Association, as an Officer of the Court who swore to uphold the Constitutions of the United States and the State of Georgia, and mainly, just as a plain old Georgia citizen, I find this behavior by this Georgia lawyer to be outrageous.

The jury system is the Hallmark of the American Justice System, both criminal and civil. As a plaintiff's personal injury trial lawyer handling only civil money damages cases for injured people, the ability of my client to seek redress and justice for injury depends on Georgia citizens performing their civic duty in the form of jury duty. Everyone knows it is difficult to reorganize one's week to attend jury duty and knows it is never convenient for someone to have to serve on a jury. But if you have read many of my blogs, you will already know that once someone has served on a jury (or even gone through the jury selection process) they become even more proud of the American Justice System and are proud for having performed their all-important role in it. For the vast majority of people, serving on a jury turns out to be one of the most meaningful things they have ever done for their community and their State. Very few citizens leave jury duty disgruntled at the process.

Thomas Jefferson said about juries: "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." Anyone who loves our great country would have to agree with that. Even though the jury system is not perfect, it is, without question, the best legal system in the world. Many countries have copied our judicial system. This conduct by anyone of denigrating our jury system would be reprehensible, but it is even more so for a lawyer, an officer of the court who has sworn to uphold the constitution, to do so. It is, frankly, unfathomable. Judge Lopez (rightfully) sentenced her to a night in jail for contempt of court. You would think a night in the DeKalb County jail would get someone's attention, wouldn't you? I guess we shall see, because Judge Lopez also referred the matter to the State Bar of Georgia's Office of General Counsel for potential disciplinary proceedings against her.

This lawyer has, in my opinion, already demonstrated her contempt for the very constitution she swore to protect and defend.

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March 13, 2014

Judge or Jury? Which Would You Prefer Decide Your Fate?

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I have been watching with great interest news reports on the Oscar Pistorius trial that is going on right now in South Africa. Oscar is known as the "Blade Runner" as he runs on prosthetic legs and was the first person with prosthetics to run in the Olympics, not the Para-Olympics. He is, unquestionably, a celebrity in South Africa and hero there. He is widely loved by the citizens there. The Pistorius trial has proven to be South Africa's "O.J. Simpson" trial, although we don't know yet if it will have a similar outcome. The Proscecution alleges Pistorius intentionally shot his girlfriend, Reeva Steenkamp, through a closed bathroom door in his home during the middle of the night, killing her. There is no doubt that Oscar killed her; the question is, what was his intent? The issue of a criminal trial is often not who did it, but rather what was going on in the mind of the defendant at the time he did it?

It is an intriguing case. One of the things that interests me is that in South Africa, this case is being tried and will be decided by the judge, not a jury. The case has really put the legal system of South Africa in the spotlight. South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. Pistorius will be tried in a high court in Pretoria by Thokozile Matilda Masipa -- the second black woman appointed to the bench since apartheid ended. This would almost certainly never occur in the United States. A criminal defendant can certainly consent to having a judge decide his fate, known as "bench trial," but that is extremely rare, given that conventional wisdom says a criminal defendant has a better chance with a jury than a judge.

Likewise, for civil plaintiffs in cases asking for money damages for personal injuries, the kind of case I try, the conventional wisdom is to have the case decided by a jury, not a judge. Again, the parties could, by mutual consent, agree to have the case bench tried by a judge, but that would be highly unusual. One of the biggest risks of a bench trial is having the judge, that one person who decides your entire case, is against you? You lose! It sometimes takes four or five years for a civil case to reach a trial, and in one instant, based on who your judge is, you have lost because it was all or nothing...you had to convince one person and you couldn't do it.

In Georgia trials, both civil and criminal, a jury's verdict must be unanimous. All twelve jurors must agree to the verdict. This prevents any one person taking over your case and deciding it, as a loner, against you. It is a bit of hedging your bets. If one juror our or 12 disagrees with your case, or just doesn't like your client, for whatever reason, you have 11 other jurors who hopefully, will prevent you from losing the entire thing. Often, where a jury is divided 11-1 on the outcome, the other 11 jurors can persuade the lone holdout to compromise on the verdict, and so often such a jury will return a verdict everyone can live with. Trial ends and everyone goes home, including the jury. If you have that one holdout who will not agree to compromise, he can decide to wait forever, or at least until the judge says "enough," and then we have what is called a "hung jury" and the case must be retried with a completely new jury. This retrial occurs at enormous expense and additional time.

So what is better? Judge or jury? Our right to a jury trial is enshrined in the United States Constitution in the Seventh Amendment and the Georgia Constitution. The Georgia Constitution calls the right to a jury trial "inviolate," meaning nothing can take it away. This was the basis of the Georgia Supreme Court's decision in Atlanta Occuplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010), the landmark case that ruled the cap on damages created by our Georgia Legislature in 2005 violated the Constitution. As a plaintiff's personal injury trial lawyer for 25 years, I have never allowed my client's case to be decided by a judge, and I don't anticipate ever changing that outlook, so, obviously, in my opinion, a jury is always better.

I can certainly understand why the justice system of South Africa turned to non-jury trials. This was done to protect blacks from all white juries during Apartheid. Keep in mind that in America blacks were not allowed to serve on juries until the 19th century. Before the Civil War, African Americans were excluded from jury service. As a result, the fate of black litigants was routinely left to exclusively white juries in both civil and criminal jury trials. Not until 1860 were the first African Americans seated on a Massachusetts jury. In fact, not many blacks served until the next major step forward in our racial history: the civil rights movement. Likewise, women could not serve on juries until after they won the right to vote in 1920 with the passage of the 19th Amendment to the Constitution. Women were rarely seen on juries until the women's movement in the 1960s applied pressure to an unrepresentative system.

So although the United States now recognizes a citizen's constitutional right to serve on a jury, regardless of race, gender or sexual orientation, we don't have the pristine moral history on this issue we wish we had. So I get South Africa's decision to change their legal system. But, in the end, give me a good ole' jury to decide my client's fate. I can usually live with their decision, as most juries simply want to get it right.

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March 10, 2014

What is the Value of the Life of a Teacher? Is is Worth a Major League Baseball Player's Salary?

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As a plaintiff's personal injury trial lawyer in Georgia, I often represent the loved ones of someone who was killed in a car or tractor-trailer wreck. More and more of my trials in Georgia now involve the death of someone due to someone else's negligence or carelessness (carelessness is simply another word for negligence). In these wrongful death trials I must suggest to the jury a dollar number I feel adequately represents the full value of the life of the decedent, from the perspective of the decedent, which is the Georgia standard on which a jury must decide wrongful death damages.

Recently, while reading about the numerous salary deals various Major League baseball teams have made with players, it made me wonder: is the value of your life worth a Major League Baseball player's salary? For example, Freddie Freeman, the Braves beloved first baseman, just signed an 8 year $135 Million contract with the Braves. That's more than $14 Million per year. Craig Kimbrel, the Braves' awesome closer, just signed a contract to receive $40 Million for four years. If you were asked as a juror to value another Georgian's life for the purpose of damages and holding the wrongdoer responsible, would you agree a person's life is worth at least the same amount as an 8 year contract to play first base? What if we asked to value your own life...or better yet... to value the life of your son, or your daughter? They are priceless, right? And yet Georgia law, in a wrongful death lawsuit, says a juror must use nothing more than their "enlightened conscience" of the twelve person jury to decide this dollar figure.

This evaluation of the "full value of the life" of a Georgian includes both an economic component (past and future lost wages) and a noneconomic component (the intangible quality of life damages). I often tell a jury that we know the noneconomic component is worth much more because when a loved one is hurt, what is the first thing you ask? You ask: "Are they OK? Are they hurt? Are they suffering? Will they be OK?" You don't ask: "How much income will they lose because of this?"

I have often heard say that if society truly valued people based on what they do for mankind, our teachers would be paid like our major league baseball players. It is our teachers who we owe the most debt of gratitude for. I am thinking of teachers today as I write this because I am preparing for a case involving the death of a 23 year old kindergarten teacher. Her students loved her. Her fellow teachers loved her. And her parents loved her beyond measure. This young teacher was changing the world, one child at a time. What is the value of her life?
A recent study from Harvard and Columbia Universities attempted to answer this very question: what is the value of a good teacher? The study's findings were astonishing: "Having a good fourth-grade teacher makes a student 1.25 percent more likely to go to college, the research suggests, and 1.25 percent less likely to get pregnant as a teenager. Each of the students will go on as an adult to earn, on average, $25,000 more over a lifetime —or about $700,000 in gains for an average size class — all attributable to that ace teacher back in the fourth grade. That’s right: A great teacher is worth hundreds of thousands of dollars to each year’s students, just in the extra income they will earn."

So as I contemplate the value of the life of my 23 year old teacher, which her parents have now entrusted me, I wonder: Can a Georgia jury ever place a dollar number on that verdict form that truly represents the "full value of the life" of this teacher? She may have taught a United States President, or a Nobel Prize winner or a scientist who cures cancer. How do we value that? In lives influenced for the better? In friendships? In sunsets? In Love? Is it worth Freddie's $135 Million, or Kimbrel's $40 Million? Without question. And more.

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February 24, 2014

Georgia Supreme Court Rules Against Ford Motor Co. in Wrongful Death Case

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In an opinion issued today, in a case in which I represented the Plaintiffs, The Conley Family, the Georgia Supreme Court ruled in favor of the Plaintiffs and against Ford Motor Company and affirmed the trial court's granting of a new trial to the Plaintiffs. The case is Ford Motor Co. v. Conley, No. S13A1601 (Sup. Ct. Ga. February 24, 2014).

In this important case, the Georgia Supreme Court agreed with the trial judge and found that Ford Motor Co. "intentionally misled the Conleys into believing that Ford had no insurers" which prevented the Conley Family from having a fair and impartial jury hear their case. This case involved a rollover car wreck that occurred in April 2006. Renee Conley's minor child was severely injured in the wreck and her mother was killed. In this trial, and another trial in the same trial court, Young v. Ford Motor Co., Ford Motor Co. responded in discovery that it had sufficient assets to pay any judgment in response to a question that asked Ford Motor to name any insurers that had insurance policies that might pay any verdict against it. Under Georgia law, litigants have a clear duty to disclose any insurers with whom they have insurance policies that might satisfy any verdict. Ford Motor Co., in both the Young case and the Conley case, did not disclose the name of some 26 insurers with whom it had insurance coverage that might satisfy any verdict against it. The Georgia Supreme Court held in Conley today: "Ford's responses to the Conley's initial discovery requests for insurance information affirmatively misled the Conleys into actually and reasonably believing that Ford was entirely self-insured for any judgment in their case...."

In a strong conclusion, the Georgia Supreme Court noted: "there is no indication that other defendants in Georgia civil cases have engaged in Ford's former practice--we assume it has now been stopped--of customarily indicating that the defendant is self-insured (sometimes with obfuscating objections) when asked for basic and entirely appropriate information about insurance coverage for claims. In the absence of evidence to the contrary, we hesitate to broadly attribute a lack of fundamental honesty and professionalism in discovery practice to litigants and lawyers in this State. Moreover, we trust our trial courts to review claims of such misconduct carefully to ensure that the requirement to diligently pursue requested discovery, and to bring complaints about discovery and other matters to the attention of the court in a timely fashion, are not eroded."

This was a unanimous opinion by the Supreme Court of Georgia. All seven justices agreed to the outcome. The case now goes back to the State Court of Cobb County for a new trial.

Although the Conley opinion goes to great lengths to make clear this factual scenario may never (and hopefully, never will) occur again, I hope it serves as a cautionary tale for trial lawyers who wish to play fast and loose with our beloved civil justice system and attempts to "game" the system. Ford Motor Co. was clearly the author of its own misfortune in this case. I have seen lately that there seems to be a "win-at-any-cost" attitude by many defense lawyers at the cost of professionalism and ethics. This "win-at-any-cost" stance disrespects our beloved system of jurisprudence and undermines the confidence of the public in our Civil Justice System. The Conley opinion goes a long way in restoring confidence in the system and the tenants of professionalism and ethics. As the Conley Court aptly said: " If this case is to teach any lesson, it is that the civil discovery process is supposed to work to allow the parties to obtain the information they need to prove and defend their cases at trial before impartial juries. Discovery is not supposed to be a game in which the parties maneuver to hide the truth about relevant facts, and when a party does intentionally mislead its adversary, it bears the risk that the truth will later be revealed and that the judgment it obtained will be re-opened to allow a new trial based on the truth."

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January 30, 2014

"State of Emergency" Means Immunity

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We here in Atlanta, Georgia are digging out from the unbelievable experience of Snow Gridlock 2014. On Tuesday, January 28, 2014, many Atlantans, who normally had a commute of 30 minutes or so, found themselves stuck in a nightmarish gridlock that super-sized their commute to 12 hours or even more, as they attempted to leave the city at the same time that the other 1.2 Million citizens did. The result: an utter disaster. The Governor of Georgia, Governor Nathan Deal, issued an official "state of emergency" for the State of Georgia. And not a minute too soon.

Many people were forced to abandon their vehicles on the side of the road, because they ran out of gasoline or simply because their drivers at some point faced up to the harsh reality that it was better to abandon ship and attempt to find warm shelter on foot. Now, while some much-needed sunshine melts the ice from our streets, the aftermath of nearly 2,000 abandoned cars is setting in. The owners of these cars are in the process today of trying to remember where they left their cars and driving them home. That is, of course, if they haven't already been towed away. First, the communications director of the Georgia Department of Transportation simply announced the State would begin towing abandoned cars so the GDOT equipment trucks could deice and plow the roads, particularly the Interstate Highways. In this first notice she unceremoniously announced it was unclear whether owners (who had smartly abandonded their cars) would be responsible for paying to retrieve their cars from tow lots. Brilliant!

Then yesterday, the GDOT softens a bit and announces they will just tow abandoned cars to the side of the road and leave them there. This would allow the plowing and deicing trucks to pass. Finally, today, the GDOT says it will actually drive car owners to their cars so they may drive them home. Again, I say Brilliant!

I raise all of this to let you know, in case you weren't thinking about this, that should the tow company negligently tow and damage your car, or really, if the towing company nearly intentionally damages your car while towing it, they get a free walk. That's right...nearly complete immunity for any damages they cause to your car. Why? Because the Governor declared a "state of emergency," which sounds uber-scary just by itself, but when you add to it all of the things that can now occur freely and without accountability, it's a potential horror story. Last year, the Georgia General Assembly passed a bill that gives complete and total immunity to any towing company that is towing a car during a "state of emergency." The law can be found at O.C.G.A. Section 32-6-4 which states: State or local law enforcement officers, including fire department officials, and the department are authorized, upon the issuance of an executive order by the Governor declaring a state of emergency, with or without the consent of the owner, to remove or have removed any natural or manmade obstruction, cargo, or other personal property which is abandoned, unattended, or damaged and the law enforcement officer or the department determines such object to be a threat to public health or safety or to be contributing to traffic congestion. Any person, contractor, towing service, or other entity that is removing an obstruction, cargo, or other personal property pursuant to the instruction of a law enforcement officer, an official of a fire department acting under the authority of paragraph (1) of Code Section 25-3-1 or paragraph (3) of Code Section 25-3-2, or the department, and under the provisions of this Code section, shall be liable for damage or harm at the location where the obstruction, cargo, or other personal property was left abandoned or unattended, only when the person, contractor, towing service, or other entity was grossly negligent in the performance of his or her assigned duties; provided, however, nothing in this Code section shall limit liability for any damage or harm caused at a location different from the location where the obstruction, cargo, or other personal property was left abandoned or unattended.

O.C.G.A. § 32-6-4.

Now, I'm not saying this is necessarily a bad thing, right? I mean, after all, we're in a "state of emergency," right? Right. Maybe tow trucks really should enjoy almost complete immunity for whatever they do wrong during a "state of emergency." I raise the issue, however, to point out that it seems these days everyone wants immunity for everything. It seems like any new bill introduced in the Georgia General Assembly always attempts to offer immunity to somebody for something. The Georgia General Assembly is predominantly comprised of conservative, right-sided Republicans. And to them, and all of you, I ask: Since when did accountability for one's actions become anti-conservative? Why the insistence by these Republican legislators to grant nearly complete immunity to anyone who might be held accountable for wrongdoing? I thought accountability, taking responsibility for one's own actions, was a conservative value? What is going on here?

You may have seen some news articles about a new car that can drive itself. There may even be an effort to bring such self-driving car manufacturers to Georgia. But, I can assure you, that somewhere along the way some Georgia Legislator will attempt to secure immunity for car manufacturers under the guise it will bring manufacturing jobs to Georgia. This would be a nightmare. Cars are as safe as they are now, including seatbelts, back-up cameras, electronic stability control, no side-bag fuel tanks, etc., because trial lawyers, through painstaking individual lawsuits, dared to hold these mighty corporations accountable with the smallest form of self-government ever devised: an American Jury.

If we don't stop eroding our citizens' rights now, one day it may be you, or your family member, who is injured through no fault of your own but who has no recourse at law because of immunity being given to anyone who asks for it now.

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January 27, 2014

Seatbelts Not Always the Answer

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So often in personal injury lawsuits I have filed in Georgia involving injuries sustained during a car wreck, the defense attorney boasts that the plaintiff wasn't wearing her seat belt, the jury will know it and, voila! Defense verdict! Not so fast!! Many times, even a seat belt won't prevent a serious or even fatal injury in a car wreck. I was reading some Georgia news about car wrecks recently and came across a tragic incident in which a pregnant mother was killed in a car wreck even though she was wearing her seat belt at the time of the wreck. This happened in Cherokee County, Georgia, just north of Atlanta. The young woman was alive and alert at the scene, but died at the hospital as the doctors there tried to deliver her baby by C-section. She also had a three year old in the car at the time of the wreck who was in a proper car seat, had visible injuries at the scene, and, thankfully, survived.

Many times in my car wreck cases I will hear the defense attorney say that my client must not have had his or her seat belt on or otherwise she or he never would have been thrown from the car, or never would have ended up with any part of her or his body on the outside of the car. But, again, not so fast! The empirical evidence keeps coming in that regardless of wearing a seat belt, sometimes your body ends up being thrown outside of your car during a wreck. For example, recently, in Effingham County, Georgia, a driver was seriously injured . This car wreck involved an overturned SUV in which the driver ended up under his SUV, pinned by it, even though he was wearing his seat belt. We know he was wearing his seat belt because the police officer who came to his rescue had to unlatch his seat belt to get him out. "[Officer] Gideon said the only way to reach the young man was through the back window. Gideon crawled through and released the driver’s seat belt. “He told me his hand was stuck up underneath the roof of the car and said that he was in a great deal of pain,” Gideon said of the driver."

The fact that Officer Gideon (great name, by the way) had to crawl through the back window of the SUV to get to this driver reminds me of the time 19 years ago now in which I was driving a mini-van and was t-boned by a drunk driver. I was wearing my seat belt and when the van finally came to a stop on Juniper Street in Midtown Atlanta, the van was on it's side and I was hanging from the seat belt. Several wonderful eyewitnesses walked through the back window of the van and unlatched my seat belt and helped me out of the van. I suffered a pretty severe injury from this wreck.

Very recently, we learned of another tragic car wreck that resulted in the death of a teenager in Lumpkin County, Georgia. The teenager's younger sister, who was also in the car, was also seriously injured. Both had been wearing their seat belts.

There is no dispute that seat belts have saved lives. The CDC in Atlanta estimates that seat belts have saved 255,000 lives since 1975. And, by the way, you can thank a trial lawyer for mandatory seat belts, for without trial lawyers bringing personal injury/products liability lawsuits against car manufacturers, that law never would have happened. I am simply pointing out that we shouldn't rush to judgment assuming someone who was seriously or fatally injured in a car wreck must not have had her/his seat belt on at the time. There is plenty of evidence that even when we do the right thing by wearing our seat belts, some car wrecks are simply so horrific that you may still be injured.

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January 9, 2014

Remembering a Great Lawyer and Friend: Cliff Brashier

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On December 20, 2013, we lost an icon of the State Bar of Georgia, our Executive Director of 23 years, Cliff Brashier. Yesterday, I had the distinct honor of delivering remarks at his Memorial Service held at the State Bar of Georgia Bar Center. Cliff was one of my dearest friends and represented the best that lawyers can be. I miss him dearly. Below are my remarks.

REMARKS AT THE MEMORIAL SERVICE OF CLIFF BRASHIER, STATE BAR OF GEORGIA BAR CENTER, JANUARY 8, 2014

Today I consider myself one of the luckiest persons on the face of the Earth. I do this because I was lucky enough to have formed a friendship with Cliff Brashier. Whatever sacrifices I had to make, both professional and personal, to serve as President of the State Bar of Georgia were more than worth it given that my service as President gave me the opportunity of a lifetime to work alongside Cliff Brashier.
Cliff and I shared many things in our friendship…a love of sports, particularly basketball, and a love of humor, which we both saw as a necessary tool for coping with life’s everyday toils. And in leading 44,000 lawyers there was a need to see the humorous side of things. In preparing my remarks for today I looked back at the emails Cliff and I sent to each other over the last couple of years and there were literally thousands of them. Cliff would usually set the tone of the email with the Subject line. For example, I knew we were in trouble when the subject line read “Have an aspirin ready when you read this” or “Have a bourbon in hand when you read this.” Another favorite was “Not Making This UP” and right after that came “Can NOT make this up.” Another favorite subject line of mine from Cliff was “You’re gonna love this one” and once when we received a particularly odd complaint from one of our members (and you Past Presidents will understand this) the subject line was “Do you know what UFB stands for?”
Cliff and I rarely ended a telephone call without a joke, or a “funny” as Cliff like to call them. Often Cliff would get so tickled in the telling of his own joke that he could barely spit out the punch line, until I was laughing out loud at Cliff laughing out loud. We always ended the week with one last telephone call late every Friday evening in which we would update each other and share one last joke for the week. One of the last corny jokes he told me (with apologies to my Georgia Tech friends out there) was: Where should O.J.Simpson have tried to hide from the police instead of slowly driving around in his SUV? Answer: on the Georgia Tech campus…no one would think to look for a football player there. But the best emails from Cliff had the subject line “To brighten your day” and these emails included some little story about friendship, leadership, The Golden Rule, kindness to one another or just love of your fellow man, and Cliff sent those to me on a regular basis just to brighten my day. He was so incredibly thoughtful in that way. Regardless of whatever critical State Bar business we were dealing with, he would end every conversation with “Let’s talk about something really important…how are your kids?” or “How is Paideia basketball doing?”

My golf game was always the source of a lot of humor between us too. Once he sent me an email in which he said “Have a wonderful Thanksgiving. If you play golf, don’t score so low that you join the LPGA before your year as President ends.”

Cliff was the consummate professional and the perfect person to run the 44,000 member State Bar of Georgia. He had all the qualities necessary to do so successfully: The wisdom of King Solomon, the ability to command respect of General Patton, the patience of Mahatma Ghandi, the diplomacy skills of Henry Kissenger, the temperament of Mother Theresa, the compassion of Dr. Martin Luther King, Jr. and the loyalty of Charlie Brown. We will never know another Cliff Brashier. If I had any success at all as President, I owe it to Cliff. I never did anything without first running it by him and asking for his input. One of the very sad things I had to do as President was write a letter commemorating the life of Rob Rhinehardt. One of Rob’s favorite scripture verses was Phillipeans 4:8, and if there were ever a scripture that Cliff embodied, it was Phillipians 4:8: “whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things. Those things, which ye have both learned, and received, and heard, and seen in me, do: and the God of peace shall be with you. ” This truly captures Cliff’s spirit, as he was all things true, all things honest, all things just, all things pure, and all things lovely.

Being President gave me the platform to do a lot of important, meaningful work, and Cliff always thought our suicide prevention campaign was some of the most meaningful work the Bar had ever done. We were literally saving Georgia lawyers’ lives with it. We showed just roughly five minutes of the unfinished suicide prevention video at our Spring Board of Governors meeting at Lake Oconee last year, which included Javoyne Hicks White telling her personal story in the very courageous way she does on the video. She was beautiful and the video is beautiful. Many of you may recall she received a standing ovation. Cliff emailed me after that meeting and said: “Someone asked me, so I checked and last week was my 172nd consecutive Board meeting. Because of the suicide prevention video (even in its early stage), I don’t recall any meeting that was more impressive or important.” Coming from Cliff, that meant the world to me.

As I said, Cliff and I also shared a love of sports, particularly basketball. As many of you know, I never finished a Board of Governors meeting without sharing a short video, usually involving basketball, that I thought was inspirational or manifested the The Golden Rule or the Kindness Standard, which we adopted as the standard by which we would make decisions. Cliff was always involved in the selection of that video and sent me numerous clips as we neared every meeting. He enjoyed that as much as I did. As you know, his beloved daughter, Caroline, plays basketball for LaGrange College and he loved sharing with me how Caroline had played in the most recent game. He was so proud of her. And my daughter, Alex, who is a junior at Paideia, plays Varsity Basketball, and so we shared a love of girls’ basketball. And even with going to as many as Caroline’s college games as he could Cliff still found time to come to many of Alex’s Paideia basketball games to support her. He thought there should be a shot clock in high school basketball and hated when the Paideia coach stalled when we were ahead. At the beginning of the basketball season, the first thing he would ask me for is a copy of Paideia’s schedule so he could map out which games he could attend. Once when Cliff came to see Paideia play its arch rival Pace, I told Cliff Alex was nervous knowing he was going to be there and that her boyfriend, a Pace student, would also be there. Cliff said “tell Alex the boyfriend might be worthy of her nerves, but I am not. See you tonight.”

When Cliff was in the hospital we texted each other on a nearly daily basis. He always wanted to know Paideia’s score in its latest game. In one of our last texts, after his third surgery, I asked him if there was anything I could do for him. He replied, “save me a seat at the next Paideia game.”
Then in the very last text I ever received from him, just two days before he passed, he wrote: “Go Paideia. I’m weak but doing fine. 32 days in a hospital bed leaves you exhausted. But all is well.”

And so with those touching words I share with you a poem that is fitting for such a wonderful human being as Cliff Brashier:


DEATH is nothing at all. I have only slipped away into
the next room. I am I, and you are you. Whatever we
were to each other, that we still are. Call me by my old
familiar name, speak to me in the easy way which you always
used. Put no difference in your tone, wear no forced air of
solemnity or sorrow. Laugh as we always laughed at the little
jokes we enjoyed together. Pray, smile, think of me, pray for
me. Let my name be ever the household word that it always
was. Let it be spoken without effect, without the trace of a
shadow on it. Life means all that it ever meant. It is the same
as it ever was; there is unbroken continuity. Why should I be
out of mind because I am out of sight? I am waiting for you,
for an interval, somewhere very near, just round the corner.

All is well.

All is well, Cliff. We love you and miss you.

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January 6, 2014

Retrial of an Obstetrical Medical Malpractice Case: Better Than Reality TV

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I have tried numerous medical malpractice cases in Georgia over the last several years. I represent only plaintiffs, the victims of someone else's carelessness or negligence. Even after trying cases in Georgia for 25 years I still enjoy watching great trial lawyers try cases. It's better than anything reality TV can show. So I hope I can carve out some time this week to watch part of the retrial in Sutton v. Bauer, in which jury selection started today in Cobb County State Court. This is the retrial of a medical malpractice (remember: malpractice simply means carelessness by a doctor) case that ended in a hung jury at the close of the first trial because the jury could reach a verdict on one defendant but not all defendants. The Court's decision to enter a mistrial was appealed by the hospital to the Georgia Court of Appeals in Wellstar v. Sutton, 318 Ga.App. 802 (2012) and the appellate court affirmed the trial judge's decision. Since that appellate opinion, the hospital, Wellstar, is no longer a defendant in this retrial, which, presumably, means there was a settlement between Wellstar and Plaintiff, but that would be probably be confidential. So this retrial is against the obstetrician who delivered the baby. The plaintiff is represented by well-known and well-respected consummate trial lawyer, Tommy Malone, and his son, Adam Malone, is assisting in the trial. I had the distinct pleasure of trying a medical malpractice (also a retrial after a hung jury in the first trial) with Adam Malone as my co-counsel in October of last year in Fulton County State Court. I hope to be able to watch a little bit of the Sutton trial and will give you my thoughts on how the jury and the evidence. Stay tuned....

Second Trial to Start in Cobb for $50M Med-Mal Case

By Katheryn Hayes Tucker Contact All Articles

Daily Report

January 6, 2014

A potential $50 million medical malpractice case that ended in a mistrial two years ago is set for a new trial starting Monday before Cobb County State Court Judge Kathryn Tanksley.

Plaintiffs' attorney Tommy Malone asked the jury for a verdict of at least $50 million for the family of a brain-damaged baby in the August 2011 trial, which ended with a hung jury. As they were leaving the courthouse, jurors revealed to Malone that they would have voted against him and in favor of WellStar Health System Inc., but they couldn't reach an agreement with regard to the liablity of the obstetrician, Dr. Gregg Alan Bauer, and his practice group, OB-GYN Affiliates.

WellStar later appealed the judge's decision to declare a mistrial instead of asking the jury to give a partial verdict. The judge declined to take a verdict for only one defendant because of the change in the apportionment statute. The Georgia Court of Appeals upheld Tanksley. The Georgia Supreme Court declined to review that case.

The new trial will proceed against the doctor only. The hospital "is no longer a party," said Henry Green of WellStar's defense firm, Green & Sapp. Malone confirmed the hospital and the plaintiffs had "resolved" their differences.

In the first trial, Malone and his son and partner, Adam Malone, presented a $20 million life care plan for the baby, and cntended that a C-section would have prevented his problems. The doctor's defense counsel, Daniel Huff of Huff, Powell & Bailey, argued in the first trial that a C-section was not clearly indicated and that the baby's brain damage likely started before birth from an infection. The doctor and his practice are insured by MAG Mutual Insurance Co., according to the consolidated pre-trial order. The case is Sutton v. Bauer, No. 2009A81944.

Read more: http://dailyreportonline.com/PubArticleDRO.jsp?id=1202636055344&Second_Trial_to_Start_in_Cobb_for_50M_MedMal_Case#ixzz2pekkRTwD

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December 9, 2013

Deference to the Trial Court? Complete Submission or Polite Respect?

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As many of you know, I have tried a lot of cases over the last 25 years as a plaintiff's personal injury trial lawyer here in Atlanta, Georgia. I also have appeared numerous times (37 at last count) in Georgia's appellate courts and as a trial lawyer I handle my cases through completion, including the appellate process. I have had two appellate arguments this year, one in the Georgia Court of Appeals and one in the Supreme Court of Georgia, our state's highest court, and so it is natural, I suppose, to have the issue of deference to a trial court by appellate courts on my mind and heart.

Appellate courts are courts that correct errors of law made in the trial court, sometimes called "the court below" in an apparent nod to hierarchy among our courts. As a trial lawyer, I believe I must win my case for my client in the trial court. I do not subscribe to the opinion, as some lawyers do, that, worse comes to worse, I can always win it in the appellate court. I want to win a verdict in the trial court and then hold on to that verdict, thus, I go out of my way to ensure there is no error from which the defendant could appeal in the trial. This strategy takes both extreme foresight and planning but also lightening speed decision-making in the trial.

Appellate courts must use certain "standards of review," i.e., a specific framework in which to judge what happened in the trial court, according to the posture the case is in when it lands in the appellate court's lap. These standards of review are well known and almost taken for granted, as if every lawyer and every judge in Georgia agrees to their meaning. The Georgia Court of Appeals even lists them on its website for easy, quick reference. But even though we can state the standards of review very plainly, it is not true that all lawyers and all judges readily agree on their meaning and application. That is when it gets fun.

For example, when a Court sits as a factfinder, such as on a Motion for New Trial, the appellate court is required to give the trial court "due deference" to its findings of fact. "In the appellate review of a bench trial, this Court will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. The standard by which findings of fact are reviewed is the “any evidence” rule, under which a finding by the trial court supported by any evidence must be upheld."
Kelley v. Cooper, A13A0982, 2013 WL 6133867 (Ga. Ct. App. Nov. 22, 2013). Of course, on purely questions of law, the appellate court owes no deference to the trial court. ("the review of allegedly erroneous jury instructions is a legal question, and we therefore “owe no deference to the trial court's ruling and apply the ‘plain legal error’ standard of review.”).
Monitronics Int'l, Inc. v. Veasley, 323 Ga. App. 126, 746 S.E.2d 793, 806 (2013), cert. denied (Nov. 4, 2013).

But in situations when the appellate court does owe deference to the trial court's ruling, what does "deference" really mean? Does it mean "submission or yielding to the judgment, opinion, will, etc., of another?" Or does it simply mean a watered down version of "respectful or courteous regard?" It makes a difference, doesn't it? And while we're asking questions, is there a different "deference" in criminal cases than there is in civil cases? Is "deference" to the lower court when an appellate court is reviewing a criminal trial for error more absolute than the "deference" given to a trial court when an appellate court is reviewing a civil case, i.e., when mere money is at stake and not someone's liberty? Sometime we see the word "due" in front of "deference" which can give "deference" whatever emphasis the appellate court desires, either strong or slight. Prefacing "deference" with "due" seems to indicate the appellate court has given the trial court's decision all the "deference" it deserves, whatever that may be. Sometimes, an appellate court will even show "extraordinary deference" to a trial court's decision. ("To the contrary, our prior case law in this area has shown extraordinary deference to trial courts that have chosen to dismiss a civil action as a result of a party's failure to appear at a proceeding, calendar call, or the like.").
Atlanta Bus. Video, L.L.C. v. FanTrace, L.L.C., A13A1287, 2013 WL 5943451 (Ga. Ct. App. Nov. 7, 2013).


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Unfortunately, there are also times where particular appellate judges would rather simply substitute their own independent decision on how they think a case should have turned out rather than truly reviewing the trial court's decision and giving even "due" deference to that decision. See, e.g., KROGER COMPANY v. SCHOENHOFF, No. A13A1247 (Ga. Ct. App., J. Andrews, dissenting, Nov. 12, 2013.). In that situation, a trial lawyer can only prayer such an opinion falls in the dissent.

Although the Administrative Office of the Courts (AOC) maintains records for the number of cases filed in all courts in Georgia for each year, there is no central depository of case results on appeal, meaning there is nowhere we can go to see how many cases in which the deferential standard of review applied resulted in a reversal of the trial court. Might make for interesting reading and comparison.

In the end, a good trial lawyer must focus on winning the case at trial, hopefully, without the assistance of any appealable error, and hope the appellate court gives the trial court's fact-finding decisions "extreme deference." Justice Carol Pope, of the Illinois Supreme Court summed it up nicely in her Judicial Perspective article in The Unnoticed Judicial Layer: The Illinois Appellate Court: "However, appellate courts are still only courts of review. An appeal does not constitute another bite at the proverbial apple. As a result, a party cannot sit idly by in the trial court and count on the appellate court to save him. In most cases, regardless of a party's defiance, his chance of winning on appeal is tied to his success in the trial court."

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November 21, 2013

$35 Million Dollar Verdict Returned in Cobb County

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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.

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November 19, 2013

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

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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.

Under Georgia law, O.C.G.A. Section 51-3-1, a landowner has a nondelegable duty to keep its premises and approaches safe for people who have business on the property. A Six Flags patron would be called an "invitee" under Georgia premises safety law and the landowner, here Six Flags, would owe that invitee the highest duty owned to someone on your property, a duty of ordinary care to keep the person safe. This is why Six Flags claims the dirt path from the bus stops to its entrance way is "not their property" even though their customers and their own employees use it on a daily basis to go to the park.

It will be interesting to see what the Cobb County jury does with that defense. From my personal observations yesterday, it didn't seem like the jury was buying it to me. But after trying cases in Georgia for 25 years now I am through trying to predict what juries will do. jurydrawing.jpg

It has taken a long time for this case to make it to a jury because it had a detour to the Georgia Court of Appeals on this issue of apportionment. "Apportionment" under Georgia law refers to the ability of the defendant to blame others for the incident, even if those others are not defendants in the lawsuit. Unfortunately, our Georgia Supreme Court has already ruled that it is proper to include in apportionment for "fault" even someone who was a criminal defendant who intentionally committed a crime and even in a premises liability lawsuit like this one where the landowner under the statute quoted above has a nondelegable duty to keep the premises safe against the very risk of a criminal act. How could that be? It seems inherently unfair to me, but that is how the Georgia Supreme Court interpreted that statute. So that will be another interesting thing to watch in this trial, who the trial court will allow the jury to consider apportioning fault to and whether the jury will bite, that is, the jury may decide the criminals who beat Joshua should have no civil liability at all. Said another way, the jury might very well decide that Six Flags Over Georgia shouldn't be allowed to get off the hook because four of the gang members pled guilty in connection with the beating of Joshua Martin.

The jury should get the case this afternoon and then it will be solely in their hands. I'll be watching.

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