ignition1 ignition2

 

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.

When I drove the rental car with the push button starter (the photographs above are the ones I took in this car) I had trouble knowing whether the car was still running when I thought I had turned it off. Fortunately, I parked it in an outside parking lot next to my hotel, so I didn’t worry too much about it other than wondering whether it might be stolen if someone saw it still running. But for those of you who own these types of cars, take this warning seriously and be careful. If you have an attached garage, I would recommend you NOT park the car in the garage. It’s just not worth the risk.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

Georgiajudicialbldg
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.
PEARCE ET AL. V. TUCKER
(S15G1310)
The appeal in this case stems from a lawsuit filed by a woman against a Glynn County
police officer after her husband was arrested and committed suicide in a holding cell. While the
trial court denied the officer’s motion asking for a judgment in his favor and ruled that the case
could proceed to a jury trial, the Georgia Court of Appeals reversed the trial court, ruling that the
case could not proceed against the officer.
FACTS:
Christopher Pearce, 38, was married and had five children. According to his wife, Tammy, he was the choir leader and taught Sunday school at their church, People’s Liberty
Baptist Church, where the pastor was Rev. Hugh Harrison. According to the evidence, Pearce
suffered from major depressive disorder. On Oct. 26, 2008, Harrison noticed something seemed
to be bothering Pearce during church. As Pearce left that day, he told the pastor, “You have been
a good friend,” which Harrison said struck him as odd. Later that night, Pearce rang the doorbell
at Harrison’s home. Harrison saw Pearce was holding a gun and had his wife call 911 while he
retrieved and loaded his own gun. Harrison’s wife told the 911 dispatcher that Pearce had a gun
and was possibly on medication. Glynn County Police Officer Henry Tucker and another officer
arrived at the Harrison’s home as Pearce was walking down Harrison’s driveway with his gun
tucked in the back of his waistband. The officers drew their weapons and on their orders, Pearce
put up his hands and got down on his knees, and the officers took his gun.
After handcuffing Pearce and putting him in the patrol car, Pearce said little and had a blank look on his face. His silence and “weird look” struck Officer Tucker as odd. Before leaving the Harrisons’s home, the
other officer retrieved Pearce’s driver’s license, which was wrapped in two notes that said:
“Tammy and Kids, No [sic] your fault. I love you and always will,” and “To [sic] much PAIN.
To [sic] much RIDICULE. NO UNDERSTANDING. NO MORE PAIN. Forgive me! Chris.”
The other officer saw the notes, but it is unclear whether Tucker did, and the other officer later
testified he did not perceive them as suicide notes. Once at police headquarters, Tucker placed
Pearce in a temporary holding cell that was monitored by a video camera. Tucker later admitted
that although he completed a required property receipt for Pearce’s personal property, he forgot
to fill out a medical assessment form attached to it that requires the booking officer to “fill out
the screening form noting and inquiring as to:” the detainee’s health, medication that he’s taking,
and his behavior, including his “mental status.” Tucker later testified, however, that he did not
believe Pearce was in any danger of hurting himself. About 21 minutes after leaving Pearce in
the holding cell, the other officer found Pearce slumped in the corner of his cell and blue in the
face. Tucker performed CPR until emergency medical personnel arrived, but he was later
pronounced dead at the hospital. Surveillance footage of the holding cell showed that Pearce had
committed suicide by tying his socks together and hanging himself from a door hinge.
Pearce’s widow filed a wrongful death lawsuit against Tucker, alleging that Tucker had
been negligent for not removing her husband’s socks. He filed a motion asking the court for
“summary judgment” in his favor on the ground that official immunity protects him from being
sued. (A judge grants summary judgment after determining a jury trial is not necessary because
the facts are undisputed and the law falls squarely on the side of one of the parties.) Tucker
argued that official immunity applies because deciding whether to remove Pearce’s socks was a
“discretionary” act, requiring judgment and personal deliberation, as opposed to a “ministerial”
act, requiring merely the execution of a simple, specific duty. Under the doctrine of official
immunity, public officials are afforded greater immunity from liability when they are faced with
a situation that requires them to make a judgment call and less protection when they are
performing simple, automatic tasks governed by clear rules. In response, Pearce’s widow agreed
that removing her husband’s socks was a discretionary act, but that summary judgment was still
inappropriate because the requirement to perform a medical screening was a ministerial function.
The trial court agreed and denied Tucker’s motion, finding that there was evidence the lack of a
medical screening was the cause of Pearce’s suicide, and that a jury should decide whether a
properly conducted health assessment would have revealed Pearce’s intent to kill himself. On
appeal, the Court of Appeals reversed the decision, quoting the standard from its 2001 decision
in Dry Storage Corp. v. Piscopo, which states: “Generally, suicide is an unforeseeable
intervening cause of death which absolves the [wrongdoer] of liability.” However, there is an
exception to the general rule if the so-called wrongdoer’s act causes the party to “kill himself
during a rage or frenzy.” The Court of Appeals ruled that there was no evidence Pearce was in a
rage or frenzy, so the general rule, not the exception, applies and there is no evidence Pearce
would have been unable to commit suicide if Tucker had medically screened him before placing
him in the cell. His widow’s argument that the screening would have revealed Pearce was a
suicide risk was “purely speculative,” the appellate court ruled. Tammy Pearce now appeals to
the state Supreme Court, which has asked the parties to answer two questions: Did the Court of
Appeals err in applying the “general rule” that suicide is an unforeseeable intervening cause of
death, even though there is a special relationship between an officer and his prisoner? Did it err
in reversing the trial court’s denial of summary judgment to Tucker? The issue here is whether
Tucker’s failure to medically screen Pearce was the direct cause of his suicide or whether the
suicide was an unforeseeable act not caused by Tucker’s failure to act.
ARGUMENTS:
Tammy Pearce’s attorneys argue that had Tucker followed required procedure
and conducted the medical screening, he would have had to specifically ask Pearce
about his mental state and learned about the medications he had been taking for years for major
depression. Furthermore, given that Pearce had already turned over two suicide notes to the
officers, the inference is he would have told them of his suicidal intent. As the other officer
testified, suicidal inmates usually admit they are suicidal. The Court of Appeals erred in applying
the “general rule” that suicide is an unforeseeable intervening cause of death because that rule
does not apply when a special relationship exists, such as between an officer and his prisoner,
that creates a duty to prevent the suicide, the attorneys argue. “There are two types of wrongful
death suicide cases:  direct cause and failure to prevent, which are judged under different
standards that have been accepted by Georgia Courts,” the attorneys argue in briefs. “Without a
doubt, this is a failure to prevent case.” Here, there is no allegation that Tucker took any action
that caused Pearce to actually become suicidal. In fact, Pearce was already in a suicidal state
when he was arrested. Therefore it makes no sense to analyze the case to see if Tucker caused
Pearce to go into a suicidal “rage or frenzy.” Rather, it should be analyzed on a failure to prevent
standard because that is the alleged wrongdoing and a special relationship existed between
Tucker and Pearce. The Court of Appeals muddled the distinction between the two types of cases
by incorrectly applying the direct cause “general rule” as opposed to the
failure to prevent standard. “The Court here has an opportunity to clarify this rather murky area of law simply by stating the correct rule of law in this case” and rejecting failure to prevent cases that misapplied the ruling in Dry Storage Corp.  In its 1988 decision in Brandvain v. Ridgeview Institute, Inc., the Court of Appeals addressed whether suicide, as an intentional self-destructive act, breaks the causal chain against an accused wrongdoer as a matter of law. “In holding that suicide is not an intervening act as a matter of law, the court reasoned that a [wrongdoer] with a duty to prevent a suicide could be liable if the suicide was reasonably foreseeable,” the attorneys argue.  “Accordingly, suicide is not an unforeseeable intervening act as a matter of law in failure to prevent cases.” The Court of Appeals was wrong to reverse the trial court’s denial of Tucker’s motion for summary judgment because jury questions remain when analyzing this case under the failure to prevent standard. Furthermore, the court was wrong to say that Tammy Pearce’s claims were speculative. Pearce’s suicide was a foreseeable harm that Tucker had a duty to prevent. A jury should decide whether Pearce’s suicide would have been prevented if Tucker had conducted the screening.  Tucker’s attorneys point out there is another exception to the general rule that a suicide is an “intervening act” which breaks the line of causation from the defendant’s wrongful action, such as the officer’s failure to do the medical screening, to a person’s death. That exception is where the defendant and the decedent had a special relationship that placed a duty on the defendant to use reasonable care and where the suicide is reasonably foreseeable to the defendant. The Court of Appeals correctly reversed the denial of summary judgment because there is no evidence that Tucker’s failure to perform a medical screening caused the suicide. As the appellate court correctly noted, “The plaintiff’s argument that during such a screening Pearce would have offered information or acted in a manner indicating that he was a suicide risk…is
purely speculative.” Also, even if Tucker had performed a screening and determined that Pearce
was suicidal, Pearce’s widow assumes that something more would have been done after the
screening that would have prevented her husband’s suicide, such as taking him to the hospital.
But there is no evidence that Pearce could have been transported to a hospital sooner than it took
him to commit suicide. Mrs. Pearce is also incorrect in stating that causation in this case should
turn entirely on whether the suicide was generally foreseeable because, “if causation hinged only
on the general foreseeability of a suicide, then an officer like Tucker would be strictly liable for
any detainee’s suicide so long as there was any reason to believe that the detainee was suicidal,”
the attorneys argue. “Here there is no evidence that Pearce’s suicide was a foreseeable result of
the specific alleged negligence–i.e., the failure to perform a medical screening.” Much of Mrs.
Pearce’s argument about foreseeability rests on the content of the “suicide notes.” “But there is
no evidence that Officer Tucker ever read those notes.” Finally, although the Court of Appeals
did not consider whether official immunity applies because it based its ruling on the lack of
causation, summary judgment in favor of Tucker is appropriate because he is protected by
official immunity. Official immunity hinges on whether performing a medical screening was a
“discretionary” or “ministerial” act. “By its inherent nature, a medical screening is a
discretionary function,” Tucker’s attorneys argue. “After all, screening an inmate for medical
and mental health problems requires a police officer to ‘examine the facts, reach reasoned
conclusions, and act on them in a way not specifically directed.’” Therefore, Mrs. Pearce is suing
Tucker for his allegedly negligent failure to perform a discretionary act. “As a result, Officer
Tucker is entitled to official immunity.”
Attorneys for Appellant (Pearce):
Paul Painter, III, W. Richard Deckle
Attorneys for Appellee (Tucker):
Richard Strickland, Steven Blackerby, Aaron Mumford

iphone

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).

The gist of these two companion cases is a woman accidentally leaves her cellphone in a Wal-mart in Florida. When she realizes her mistake, she calls the Wal-mart and  a Wal-mart employee finds the woman’s phone. The employee promises to hold it for her until she can get back to the Wal-mart to pick it up. The customer asks the employee not to turn the phone in to customer service. The employees agree just to hang on to it until it is picked up. For some unknown reason, the customer doesn’t go back to the Wal-mart to retrieve her cellphone for quite a while,  but the customer keeps calling and texting the phone to tell the employee she is coming back to get her phone. In the meantime, the employee looks through the cellphone and discovers hundreds of child pornography photos and calls the police.  The police then, some 23 days later, obtain a warrant to search the phone and arrest the customer and her boyfriend. Both pleaded guilty to production of child pornography under plea agreements that reserved their rights to appeal the denial of the motions to suppress. The woman received a sentence of 30 years in prison, while her boyfriend, who had prior federal child pornography convictions, received a 50-year sentence.  Ouch! I bet they wish they had been a little more careful with their cellphone!

The Eleventh Circuit Court of Appeals held the defendants had “abandoned”their cellphone as of June 7, just 3 days after the phone was seized (even thought the police didn’t get a search warrant for another 20 days).  The majority opinion states it is not suggesting a  “a Fourth Amendment jurisprudence of ‘finders keepers; losers weepers.’  This was a 24 page  2-1 opinion.  Judge Beverly Martin dissented.  “A person may not abandon property for Fourth Amendment purposes by mere loss, carelessness or accident, where he has made reasonable efforts to reclaim the property,” Martin wrote.  Judge Martin concluded that a 23-day delay was too long given that the agent who finally obtained the search warrant justified the delay by noting she had been out of town for training.  Judge Martin thoughtfully wrote:  “I also understand the Majority to equate Mr. Johnson and Ms. Sparks’s purchase of a new phone with abandonment of the old. But we must be mindful of the status cell phones now have as property. They function as “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, ––– U.S. ––––, ––––, 134 S.Ct. 2473, 2489 (2014). They have “immense storage capacity” and allow people to “collect[ ] in one place many distinct types of information-an address, a note, a prescription, a bank statement, a video.” Id. When Mr. Johnson and Ms. Sparks lost their cell phone, they lost troves of information necessary for navigating modern life. Buying a replacement phone allowed them to begin reaccumulating this information. But getting a new phone does not mean they abandoned their interest in the unique information contained in the lost phone.”  United States v. Sparks, No. 14-12075, 2015 WL 9309809, at *24 (11th Cir. Dec. 1, 2015).

The Eleventh Circuit opinion was a bit surprising given the United States Supreme Court’s decision Riley v. California, 134 S. Ct. 2473 (2014) just a year earlier in which the Supreme Court answered, in the negative, the question: : whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Riley is an extremely interesting read about the 4th Amendment right against unreasonable search and seizure and a citizen’s privacy rights in something as seemingly simple as a cellphone. The decision turns on the readily acceptable reality that a person’s cellphone may actually be a storage device for his or her entire personal life, not just a device to make a call with. Chief Justice Roberts wrote in the majority opinion:  “One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J.L. & Pub. Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.”  Riley v. California, 134 S. Ct. 2473, 2489, 189 L. Ed. 2d 430 (2014).

The Supreme Court studied thoroughly the implications of carrying a cellphone in current day.  “Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U.S. ––––, ––––, 132 S.Ct. 945, 955, 181 L.Ed.2d 911 (2012) (SOTOMAYOR, J., concurring) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. See Brief for Electronic Privacy Information Center as Amicus Curiae in No. 13–132, p. 9.”  Riley v. California, 134 S. Ct. 2473, 2490, 189 L. Ed. 2d 430 (2014).

In a victory for privacy rights over warrantless searches, the Court held:  “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold *2495 for many Americans “the privacies of life,” Boyd, supra, at 630, 6 S.Ct. 524. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

So, the Law of the Land as announced by the United States Supreme Court is the police must have a search warrant before searching your cellphone. That is a good thing. It breathes life into the 4th Amendment in this new cellular age.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

 

 

Georgia Seal

 

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.

Judge Goger, a Fulton County Superior Court judge, recently heard oral argument on the issue and just yesterday, issued his opinion that the appointments by Governor Deal were, in fact, constitutional.  But hold all tickets.  The challengers, who have now lost in the trial court, have vowed to take their case to the Georgia Supreme Court on appeal.

So stay tuned.  I’ll be watching this case in the Georgia Supreme Court and will keep you posted.  In the meantime, if you are actually faced with voting in an election for a judge and you are not sure who to vote for, consider reaching out to a lawyer you know to ask for his or her opinion.  They are likely to know the lay of the land regarding judicial candidates.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

911call

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.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

contract-signing-1474333

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.
  3.  Arbitration clauses are unconscionable. I have successfully argued to courts to invalidate arbitration clauses because they are unconscionable, meaning they are so one-sided and so punitive that they violate the public policy of freedom to contract in Georgia. I have successfully argued the arbitration agreement is  void due to both substantive and procedural unconscionability. “Procedural unconscionability addresses the process of making the contract, while substantive unconscionability looks to the contractual terms themselves.” NEC Technologies, Inc. v. Nelson, 267 Ga. 390, 392 (1996). With respect to the process of making the contract, no one ever explains the terms of the contract and arbitration clause to the person signing it. Thus, the arbitration provision is substantively unconscionable in that it effectively eliminates the ability of claimants to develop the evidence they will need to prosecute their claims. The arbitration provision does not expedite and facilitate the economical presentation of claims; it affirmatively and absolutely retards the ability to pursue them, thereby wrongly insulating Defendant from liability for its negligence.
  4. “Mandatory” arbitration clauses are everywhere. They are in your mortgage, your credit card agreements, student loans, home inspections, surgical consents, just everywhere.  And consumers are fighting back.  The Consumer Financial Protection Bureau two days ago announced that it plans to propose rules that would prevent consumer financial services companies from using arbitration clauses to block class actions.  Because it is not cost-effective to pursue merely a single incident of a forced arbitration, allowing class actions to attack forced arbitration clauses would be an enormous relief to consumers.  If this proposal passes, it would most likely ban the inclusion of forced arbitration clauses in financial institution agreements, such as credit card agreements. This would be a huge step in favor of the consumer.
  5. “Mandatory” arbitration clauses are not here to stay.  I am fighting against arbitration clauses whenever they appear in any of my client’s documentation.  This is because I believe my clients have a better chance of real justice in a court of law allowing a jury of twelve normal walking-around human beings decide his or her case. This is a good fight and the little guy is in the right on this issue.  My suggestion:  Read all documents carefully. Refuse to sign any forced arbitration agreement. Cross out that arbitration paragraph before signing the entire agreement. Never concede.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

ussupremecourtfacade

The Georgia General Assembly enacted a law during the 2015 Legislative Session, known as “The Hidden Predator Act” that reopens the statute of limitations for bringing suit against a sexual molester.  This new law went into effect on July 1, 2015.  This unusual law essentially creates a new statute of limitations to sue sexual molesters if the abuse occurred when the victim was under 18 years of age and the lawsuit is filed within two years “from the date that the plaintiff knew or had reason to know of such abuse and that such abuse resulted in injury to the plaintiff.” O.C.G.A. Section 9-3-33.1 (b)(2)(A)(ii).  This is known as the “discovery” provision of the new law and allows a victim to sue the institutional for which the sexual predator worked or with which he was affiliated.  Interestingly, even if the “discovery” of the abuse occurred over two years ago, this new law reopens the statute of limitations for another two years solely against the individual sexual predator.  it states:  “For a period of two years following July 1, 2015, plaintiffs of any age who were time barred from filing a civil action for injuries resulting from childhood sexual abuse due to the expiration of the statute of limitations in effect on June 30, 2015, shall be permitted to file such actions against the individual alleged to have committed such abuse before July 1, 2017, thereby reviving those civil actions which had lapsed or technically expired under the law in effect on June 30, 2015.”  O.C.G.A. Section 9-3-33.1(d)(1).

To date there has apparently been one lawsuit filed using this new statute, in Camden County, against a karate instructor. Six men are plaintiffs in that lawsuit who all allege they were sexually abused by their karate instructor when they were teenagers.  We will be watching that lawsuit closely.

I call the new law unusual because it is the first time that I can remember that the Georgia General Assembly lengthened a statute of limitations to allow more time to sue and the first time I can remember that the Georgia General Assembly simply revived what were otherwise lost lawsuits. This is quite a milestone for the Georgia Legislature.

The law was sponsored by Representative Jason Spencer from Woodbine. As Rep. Spencer said about the purpose behind the bill:  “The purpose of the Hidden Predator Act was to open halls of justice, and the courthouse doors are now unlocked.” “For too long, our laws protected pedophiles and the institutions that harbored them. The Hidden Predator Act empowers the victims to confront their perpetrators and their accomplices in the court room. When victims come forward, this law will expose these child sexual predators in the communities where they are hiding and enhance child protections. My hope is that this law will be used in an appropriate manner to serve justice to those who, in the past, were being denied.”

Representative Spencer is to be commended for this groundbreaking work. My hope is that victims of sexual molestation who for multiple reasons such as fear, embarrassment, guilt, depression, denial, etc., may be able to obtain some quantum of justice for what they have endured.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

head on collision

The Georgia State Patrol and and various National Databanks, including the National Safety Council, have for years kept the morbid statistics of how many people die during any given Holiday weekend. I have blogged about this in the past and try to keep tabs on whether Georgia highways are getting safer. Here are 5 things to know about traffic safety from the 2015 Labor Day:

  1.  In Georgia this past weekend 14 people lost their lives in traffic incidents as reported by the Georgia State Patrol. Just for comparison’s sake, there were only two traffic fatalities in Connecticut. In Kentucky there were nine.
  2. The National Safety Council estimated there would be 395 traffic fatalities in the United States this Labor Day. Final National numbers are not yet in as some polls include any fatalities up to Tuesday morning.
  3.  It is estimated that for the Labor Day holiday period, over the years, generally, fatalities rose 35% on Labor Day and were 16% higher than normal on the following Tuesday.
  4. During last year’s Labor Day travel weekend, Georgia saw 15 traffic deaths and a further 1,218 injuries result from 3,706 crashes.
  5.  At least two individuals died in Georgia lakes, one in Lake Lanier and on in Lake Allatoona.

The Georgia Office of Highway Safety began a new program called “Operation Zero Tolerance” that has focused on stopping drunk driving during all Holiday Weekends. One specific program is called “Drive Sober or Pull Over.”  The Governor and the Georgia Office of Highway Safety are to be commended for this endeavor, aimed at making Georgia roads safer. Is it working?  Hard to say just yet. Maybe it is putting more DUI offenders behind bars. But with only one less fatality in 2015 than in 2014, I’d say the jury is still out on whether it is working.

Stay safe out there, Friends.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

greekletters

With college students  going back to school this week and next, many new freshman or transfer students are probably considering joining Greek Life on campus. Most schools have some sort of sorority/fraternity groups, with objectives being to provide an outlet for new students to get to know each other, form group bonds, and to give back to the community, to name a few. Over the last few years, some dangerous and sometimes fatal “hazing” practices by fraternities and sororities have come to light, and many have begun to pose the question: are these organizations as beneficial as they seem?
Some groups suggest that affiliation with a Greek organization leads to higher rates of success later in life. An article by USA Today stated that “85% of Fortune 500 executives were part of Greek life… And college graduation rates are 20% higher among Greeks than non-Greeks.” Psychologically speaking, this can be true. Feeling supported by like-minded individuals definitely contributes to better mental health and in turn, higher likelihood to succeed in life. Being a part of a Greek organization also connects you to generations of alumni with the same affiliation, which is certainly a plus when searching for jobs and making career connections. Sororities and fraternities also have a rich history in our country, the first being founded in 1831. Having a connection to such a renowned historical tradition is very important for some, especially “legacy” families, students who’s mother, grandmother, and so on were members of the same sorority. These organizations also undoubtedly benefit many charities. Each year most groups organize a fundraising event to benefit the charity affiliated with their organization. For example, Phi Mu at the University of Georgia raised $143,942 this year for the UGA Miracle program supporting Children’s Healthcare of Atlanta.
Unfortunately, there have been a number of events giving sororities and fraternities a bad and scary reputation. There is always the stigma that Greek groups are associated with partying, drinking and hazing. In some cases, the hazing of potential members has gone way too far. Over the last few years there have been some highly publicized cases of deaths by hazing from groups around the country. The Washington Times reported that since 2005, more than 60 people have died due to fraternity incidents. Recently in California, a family sued after their 19-year old from California State University Northridge died after being forced to hike 18 miles with his fellow Pi Kappa Phi pledges. The Clemson University community was shocked by the death of Tucker Hipps, a pledge of the Sigma Phi Epsilon fraternity, after reportedly being killed in a fight with his fraternity brothers over breakfast food. Hipps’ parents are filing a $25 million wrongful death lawsuit against the Sig Ep brothers. Reports of alcohol abuse, sexual assault, and flagrant racism also have been widely publicized over the last few years.
Although many of these violent reports are mostly associated with fraternities, there have been a number of lawsuits against sororities for dangerous hazing practices as well. A student at Rutgers University pressed charges against her Sigma Gamma Rho sisters after being beaten with paddles and sent to the hospital. In 2002, two girls pledging Alpha Kappa Alpha died after being forced to walk backwards into the ocean and drowning. Mostly, reports against sororities tend to be within the realm of humiliation, which also shouldn’t be ignored.
Reports like this are shocking and make us think twice about the Greek organizations we hold highly in respect. Of course, these incidents are based on individual circumstances, and cannot be relegated to a group as a whole, but are a cause for concern and caution when considering Greek Life. The bottom line for students is, if something makes you uncomfortable, don’t feel like you have to do it to be accepted by your peers. Report any behavior that places someone’s life in danger. Watch out for your friends.  Stand up for yourself and what you believe in, because that defines your identity, which is what college is mostly about.

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Ridesharing services have been advancing in the app world over the last few years. Quite a few companies have become enormously popular for their efficiency and ease compared to traditional taxi companies. GPS based with pre-set payment settings, the whole interaction takes place online and even shows you a map counting down the moments until your driver arrives. Uber has quickly become a household name, and alongside Lyft, dominate the ridesharing sphere. There are, however, a number of safety concerns associated with the process. It is a rather strange concept to get into a stranger’s personal car and trust them to drive you safely to your destination. Recently, Uber has been attempting to address many of these concerns as well as handle a number of injury lawsuits that have occurred.

Fortunately from an insurance perspective, these ridesharing companies have got you covered. There is major debate between the taxi companies and Uber/Lyft regarding this topic, because taxi companies believe they better protect against possible insurance disparities after an injury. Largely in response to this criticism and attack by traditional taxi companies,  Lyft and Uber now both have  liability policies that provide additional coverage in the event that the passenger is injured in a driver’s vehicle and the driver’s insurance doesn’t cover all of their injuries, which is almost always the case. Not only that, but even in the event of an accident in which the company driver is not at fault, and the other motorist at fault is uninsured, they will still provide coverage if you are injured.

The Georgia Legislature passed a ridesharing bill this session (2015) that essentially sought to level the regulation  of Uber and Lyft with that of traditional taxi companies.  House Bill 225, which passed the Senate by a 48-2 vote, is the culmination of efforts to require the app-based transportation industry to meet the same standards that apply to other transportation providers, such as taxis and limousine companies.  “The world as we know it in transportation has changed because of transportation companies like Uber and Lyft,” said Sen. Brandon Beach, R-Alpharetta, who carried the bill in the Senate. “This creates a new framework that allows them to grow with light regulation and common-sense policies.”  Governor Deal signed the bill into law in March 2015 which mandates companies like Uber must have $1 Million in insurance coverage for its passengers. There continue to be squabbles between the traditional taxi companies and Uber, but free market principles of competition should control the outcome.

As with any driving company, Uber conducts background checks on all of it’s potential drivers. According to their website, they include “county, federal, and multi-state criminal” checks. They also have a rating feature on the app, where each passenger can anonymously rate and post comments about their experience with every driver. Unfortunately, no system is perfect, and we can’t always assume that people are good just because they don’t have a criminal background. Uber was briefly discontinued in India following a claim that a woman was raped by her Uber driver. Now the service is back, but with a number of added safety features like a panic button, and the ability to share in real-time location and trip information with others.  iphone

Uber also recently settled a case in which one of their drivers hit a family on New Years Eve in San Francisco, killing a six year old girl. This sparked a debate about the user interface aspect of the app, because drivers must use it while driving and it is not hands-free, as is required by California law. I’ve often blogged on the danger of distracted driving and, in this case, it seemed to be the distraction of the Uber driver that led to the settlement.

Hopefully,  these ridesharing companies can continue to improve upon their services so incidents like these don’t happen again. If you choose to use Uber, as it really is an interesting and useful invention, always be aware of your surroundings. Stay safe, Georgia!

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.