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The tragic news from Disney World in Orlando, Florida this week of a toddler being carried away and killed by an alligator in a lagoon on Disney property has sent waves of terror in every parent whose child has ever waded into any water other than a swimming pool.  My family made many trips to Disney World when my children were young and water is everywhere around the property. It is my understanding that at this particular lagoon at The Grand Floridian Hotel there were “No Swimming” signs posted near the water.  Yet the photos I have seen show chaise lounge chairs on a sandy beach in front of the lagoon.  The beach was, apparently, man made by Disney for the enjoyment of their guests and Disney put the chaise lounge chairs on the beach looking directly to the lagoon. What is the message being sent by Disney?  Come sit in these lounge chairs and enjoy the beach and the water?  Doesn’t the placement of the chairs there and the placement of the sand there act as an invitation to wade in the water?

Disney is now, apparently, placing warning signs there now, along the lines of “Beware of Alligators.” Is this too little, too late?  What is the duty Disney owed to its paying guests to warn them of alligators or to make sure they could not be harmed by alligators while their paying guests are staying at their hotels?

This incident brought to mind a similar tragedy that occurred not too long ago in Georgia, when a senior citizen was, ostensibly, grabbed by an alligator, carried away and killed while she was staying with her children at their home which was on a golf course.  This case was litigated and, ultimately, decided by the Supreme Court of Georgia. The case is Landings Association v. Williams and was decided in 2012. The relevant facts, as discussed in the Court’s opinion are as follows:  Williams, the victim,  was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

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Many of you know that as President of the State Bar of Georgia I began a statewide effort to reduce suicides among attorneys, which was occurring at an alarming rate. I created the State Bar’s “How To Save a Life” program and we set about educating our members about the warning signs of suicide, what to say and what not to say to a colleague or friend who you suspect may be contemplating suicide and the steps to take to help prevent suicide.  In the process, I learned a lot myself and suicide prevention has become a movement I hold dear, although I had certainly never even given it a second thought before I was faced with it in our membership as President of the State Bar. As a result of this learning process for me, I read just about everything I can on suicide.

Which brings me to the subject of this post: who is legally responsible for the suicide of someone else?  The recent Georgia Court of Appeals opinion in Mayor and City Council of The City of Richmond Hill v. Maia, No. A15A2334 (Ga. Ct. App. March 20, 2016), which may very well be one of the saddest cases I have ever read, answers that question in the context of city police officer and suicide victim and held the victim’s suicide was a reasonably forseeable consequence of the police officer’s negligent conduct where the police officer had a specific duty not to disclose the suicide victim’s confidential information.  The appellate court held that issue was one for the jury to decide and the case was remanded to the trial court for a trial. It is my understanding, however, that the City of Richmond has appealed to the Georgia Supreme Court and the case is on the Supreme Court’s July docket. 

The facts of City of Richmond Hill are heartbreaking and very difficult to read and even imagine.  A young high school teenager attempted suicide by cutting her neck and stabbing herself.  Her mother placed her in a mental health hospital after the attempt.  The child stayed there for 9 days and then returned to her school.  As such things are with teenagers, the child’s suicide attempt became the talk of the school. According to her boyfriend’s testimony in the case “everybody knew after a couple of days what happened.” The City of Richmond Hill police department investigated the suicide attempt and as part of their official police investigation took photographs of the child’s injuries from the suicide attempt.  In what appears to be a horrific irony, one of the investigating police officers had a child who attended the same high school as the victim. The police officer became concerned  that his child did not appreciate the seriousness of the suicide attempt and so, in clear violation of the police department’s written policy entitled “Duty to Refrain from Disclosing any Information Relating to Police Activities,” showed the photographs of the victim to his daughter by accessing them through the police department’s computers. The police officer swore that he did not give them to his daughter or print them, but within days his daughter was showing these photographs of the victim on her cell phone to other students in the high school.

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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.