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Judge Horace Ward. Photo by John Disney/Daily Report.

Judge Horace Ward. Photo by John Disney/Daily Report.

I have just learned that Judge Horace Ward has died. He was a true Civil Rights Legend. There will never be another Horace Ward. We owe him a debt of gratitude for all he endured and accomplished. He truly left the world a better place.  In his memory, I am reprinting below my letter to the Editors of the Daily Report and the Atlanta Daily World written on the occasion of his retirement in 2012. God bless Judge Ward.

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In the 28 years I have practiced plaintiff’s personal injury law here in Georgia, I have handled hundreds of cases, each one with a unique set of facts. I am often asked by clients what affects the value of their case?  Many, many things, some reasonable and fair, some irrational and unpredictable, affect the value of a case.  But they all matter.  Below are just 10 such things that affect the value of a personal injury case, in no particular order.  And this list of 10 items is NOT exclusive.

  1.  Did you leave the scene by ambulance?  If you left the scene of a car wreck by ambulance, that suggests you knew right then you had suffered a severe injury, severe enough that you needed immediate medical treatment. If you did not leave the scene by ambulance, insurance adjusters and even jurors may tend to think perhaps your injuries were really not that bad. After all, you didn’t even need to go to the emergency room.
  2. Did you or anyone call 911?  See #1 above.  Calling 911 suggests it is a true emergency, someone (you) are really hurt and you really need help right away.

bicyclewarningsignMy friend and  fellow trial lawyer, Lester Tate, and I are representing a young man in a case against Kawasaki, the manufacturer of the motorcycle he was riding when he was severely injured because it stalled on him. Months later, he received a recall notice that said the voltage regulator on his motorcycle was defective.  The minute he received the notice he thought that sure explained what happened to him the day his world was turned upside with a catastrophic motorcycle wreck.  The case was heard yesterday before the 11th Circuit Court of Appeals, our appellate court for cases that are filed in Federal Court, here in the Northern District of Georgia.  One of the issues on appeal involves Kawasaki’s duty to warn its customers who have bought or used that particular motorcycle about a known defect with the motorcycle’s voltage regulator.  So, a manufacturer’s duty owed to its consumer is heavily on mind right now.

What exactly is a manufacturer’s duty to want its customers of a potentially defective product?  Under Georgia law , when the manufacturer of a product has actual or constructive knowledge that its product involves danger to users of the product, the manufacturer has a duty to warn users of the danger. Battersby v. Boyer, 526 S.E. 2d 159, 162 (Ga. App. 1999). O.C.G.A. § 51-1-11(b)(1) provides that “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The term “not merchantable and reasonably suited to the use intended” as used in this statute means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645(1983). “In a product liability case, the existence of a duty to warn depends upon the foreseeability of the use in question and the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 781 (Ga. App. 1987). A manufacturer may be subject to liability for failing to warn the user adequately of the known or foreseen danger if there is no reason to believe the user will realize the dangerous condition.” Id. at 477; see Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 477 (Ga. App. 1984). When a duty to warn arises, the duty may be breached in one of two ways: (1) failure to communicate the warning to the ultimate user; or (2) failure to provide an adequate warning of the product’s potential risks. Battersby, 526 S.E.2d at 163; see Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (citing Thornton v. E.I. Du Pont De Nemours &Co. Inc., 22 F.3d 284, 290 (11th Cir. 1994)). “This duty to warn is a continuing one and may arise “months, years, or even decades after the date of the first sale of the product.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). “Some products are defective solely due to an inadequate or absent warning.” Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994).

The issue of failure to warn, including the lack of any warning or the adequacy of any warning, is one that the jury must resolve. See, e.g., Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 782 (Ga. App. 1987); Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1389-90 (M.D. Ga. 2014); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (1983)(“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Greenway v. Peabody International Corp., 163 Ga.App. 698, 294 S.E.2d 541 (1982). Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. Beam v. Omark Ind., Inc., 143 Ga.App. 142, 145, 237 S.E.2d 607 (1977).”).

policecarPolice chases seem to be extremely prevalent in our everyday goings on lately. Last night I watched the famous “slow speed chase” of O.J. Simpson when he fled the Los Angeles Police Department back in 1994  instead of turning himself in as agreed upon following the murders of his wife Nicole and her friend. The mini-series drama currently being shown on the FX Network about “The Juice” reminded me of the night that slow speed chase happened as my husband and I watched in horror and amazement in 1994 as my husband put together the crib for the child we were expecting in August of that year.  Then I woke up this morning to a text alert from the AJC that there had been another police chase here in Atlanta this morning. This morning’s chase, which was near the Douglas-Cobb county line, near Six Flags Over Georgia,  was of two people suspected of having robbed a convenience store of cash and cigarettes.  This police chase ended with the suspects’ car crashing into a utility trailer. The police caught one suspect and the other suspect got away. Apparently, no one was injured in the police chase this morning.  Thank Goodness, I might add.  In San Francisco, California on Sunday, February 7, three people were killed in a police chase after police chased a car that had been seen “doing circles” in the middle of a city street.

We were not so fortunate, however, with regard to two other police chases that occurred a week ago. In Gwinnett County, a totally innocent older couple was killed in a police chase in which the Johns Creek Police Department started a high speed chase of a vehicle for “equipment violation” because it had multiple antennae.  This chase lasted for 4 miles and reportedly reached speeds of 83 m.p.h.  The couple was driving home after celebrating the 78th birthday of one of them.  The suspect’s car crashed into the innocent couple’s car and killed them. No, the police car didn’t hit the couple’s car, but in the world of proximate cause, “but for” the police car and the police chase this lovely couple would be still be alive.  Tragically, and almost unbelievably, the next day a totally innocent grandmother who was taking her precious two grandchildren to church on Sunday morning,  was killed, along with those precious two grandchildren, in a high speed police chase.  This time it was the College Park Police Department chasing a vehicle driven by a suspect suspected to have stolen a vehicle. The chase lasted a purported 10 miles. Five innocent lives lost in the span of two days due to high speed police chases.

Think for just a minute how you would feel if one of your loved ones were killed because of a high speed chase.  How would you feel?  Would you think the high speed police chase had been unnecessary?  Not worth the risk?  Put yourself in the shoes of those grieving family members for a minute.

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My car has a push button starter:  am I at risk? The short answer is yes.  Not only are YOU are risk but anyone who lives in your house if you have an attached garage in which you park your car is at risk, too, for carbon monoxide poisoning and perhaps even death. Does your push button starter look anything like the one above? I was driving a rental car on business in another state recently and it had one of these push button starters. I had never used one before, but I had certainly heard of their inherent dangers. The problem is a design flaw. You may think you have turned off the ignition, after all, you have the keyless fob in your pocket with you.  But often the engine is so quiet while in park you don’t realize it is still running. If you park your car in an attached garage, dangerous carbon monoxide gas can easily enter your home and kill you and anyone in your home while you sleep, without your ever waking up to realize there is a fatal hazard in your home.

This design flaw is well known to car manufacturers. “We have documented at least 19 fatalities that are specifically attributed to keyless ignition vehicles since 2009 and 25 more close calls,” said Janette Fennell, founder and president of the safety group KidsAndCars.org. “As more keyless ignition vehicles are sold, we are going to see these predictable and preventable injuries and deaths increase.”

There is a simple solution:  an automatic shut-off system for the car if it has been running for a certain amount of time without moving, e.g., 30 minutes or so. This would prevent any carbon monoxide build up if you accidentally leave your car running in your garage. Some cars do have this safety feature, others do not. It is difficult at this point even to understand why not all such cars would include the automatic shut-off feature. There is currently a class action lawsuit filed against 10 automobile manufacturers who have not incorporated this simple fix of a deadly design defect. According to the suit, the automakers have long known about the risk keyless ignitions pose. In fact, the suit claims, that at least 27 complaints have been submitted to the National Highway Traffic Safety Administration since 2009.  There is evidence that these cars continue to run regardless of how far away the keyless fob is from the running car.

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Can a County Police Officer be held liable for failing to prevent the suicide of an inmate under his custody?  That is the interesting question in the case below, which was argued before the Georgia Supreme Court this week. Below is the Court’s summary of the case. It gives you some of the pertinent facts and then a synopsis of the arguments and positions of both sides in the case. For court watchers and trial junkies this is a helpful tool provided by the Court (presumably written by one of the Court’s clerks;  I did not write it) to be able to follow along in oral argument.  By the way, the Georgia Supreme Court’s oral arguments all can be viewed through their livestreaming capability found on its website. 
And if you can’t catch them live, the arguments are taped and available for your leisure viewing on the website, as well.
Pearce v. Tucker will be a case I’ll be watching as it turns on the old “discretionary v. ministerial” argument trap that really needs to be abolished in favor of including all such claims against counties as part of the Georgia Tort Claims Act. This would give this area law the predictably it desperately needs.  Hopefully, the Georgia Legislature will address that one day. In the meantime, every time there is a case against a county employee, like the one below, the Court must go through this time-worn analysis  of whether the employee’s conduct was discretionary, for which the employee has immunity, or whether it was ministerial, for which the employee does not have immunity.  Stay tuned. Should be interesting.

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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).

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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.

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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.

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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:

  1. “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.
  2. “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.