Atlanta Injury Lawyer Blog

Today is Day 37 (out of 40) of the Georgia Legislature and it can be a dangerous time for Georgia citizens' rights during these last four days. A prime example is what occurred last Friday when an amendment was attached to a bill at the last moment that would adversely affect Georgia citizens' rights who wish to bring a products liability case against certain manufacturers. This products liability amendment was attached to, of all things, a bill that seeks to change the words "seat belt" to "life belt" in the Georgia Code. Fortunately, the Georgia Trial Lawyers Association was ready to defend Georgia citizens' rights and not let the Civil Justice Dismantlers get away with it. For an inside look at this, below is the "Political Insider's" take from The Atlanta Journal and Constitution this morning.

Buckle up your life belts. We’re in for a bumpy finish
Sunday, March 30, 2008, 04:00 PM

The Atlanta Journal-Constitution

We have entered the dangerous, final days of the Legislature’s winter session — a season of desperation in which innocent bills are forced into sudden, shotgun marriages with amendments they’ve never met.

Legislative dogs are wedded to feline decrees-to-be that streak through the Capitol. Often, the unions are conducted in such secrecy that even professional spectators remain ignorant — until, after several months’ gestation, the unpleasant results begin crawling around.

Lawmakers have until Friday, when the Legislature is to adjourn, for such last-minute mischief. Supervision is lax. Gov. Sonny Perdue is far away on a Chinese trade mission, struggling through the hell of chopsticks and endless toasts with sorghum-based paint-thinner.

But most of the funny stuff happens out of the schoolmaster’s line of vision anyway — unless the schoolmaster decides to join in.

An example of the shenanigans to come snuck up last week. The locale was a meeting of the House Motor Vehicles Committee, a small collection of part-time legislators whose life experiences have included real estate, law enforcement, personnel management, business and the pharmaceutical industry.

The topic at hand was S.B. 412, the epitome of do-good legislation.

Its sponsor, state Sen. Emanuel Jones (D-Decatur) wants every reference to “seat belts” in the Georgia code changed to “life belts.” He wants “air bags” to become “life bags.”

Jones hatched the five-paragraph idea with Adam Goldfein, the fellow at V103 radio who specializes in advice for car buyers. “Parents explaining to their children to buckle up their life belts really has meaning,” Jones, a car dealer, told the committee.

S.B. 412 has already passed the Senate, and now must run the House gauntlet. But several days ago, Jones was informed that his bill had grown a sixth, 113-word paragraph. “House leaders told me it had been added — they don’t ask permission,” the senator said later.

Jones was philosophical. If the addition could speed House passage of his bill, he was for it. If it proved a barnacle that would slow it down, he was against it.

Now, about that sixth paragraph. Printing it would only put you to sleep. But it contained phrases like “the proximate cause” and “industry-wide liability” and “public nuisance.” All terms were covered on that bar exam you took.

But even a layman could see this was another shot fired in one of the state Capitol’s never ending wars, over who should be permitted to sue whom. This one had to do with product liability.

State Rep. Tom Rice of Norcross, the committee chairman, embraced the addition. “I’d favor anything that would reduce the opportunity for what I call nuisance suits,” he said.

But Matt Dollar of Cobb County, the vice chairman, was more suspicious. He didn’t know what had been promised to whom, but nobody had told him. And he wondered why the paragraph had magically appeared in front of a motor vehicles committee, instead of a lawyer-laden House Judiciary Committee.

Who’s your client? Dollar asked the attorneys from Powell Goldstein, the firm that authored the paragraph.

The Public Nuisance Fairness Coalition.

Who’s that?

The attorneys couldn’t say. The members were Fortune 500 firms whose names — because of attorney-client privilege — couldn’t be disclosed right then and there. The lawmakers could be told eventually, but the lawyers would have to get permission first. One attorney let slip that a chemical company was involved.

“We’re not talking just about air bags, are we?” asked state Rep. Alan Powell of Hartwell.

The committee summoned Bill Clark, a representative of the Georgia Trial Lawyers Association, the group that does battle against business in the lawsuit war. He’d only learned of the sixth paragraph a few hours ago. He didn’t know what the language did — or didn’t do.

“I’ll concede it may be little or no change. It may be a very significant change in Georgia law,” he said. Clark advised removing the language first, and investigating the implications over the weekend.

But he was countered by Joel Williams of Powell Goldstein, who assured the part-time lawmakers that they were capable of understanding the implications of those 113 words. “You have the ability, you have the brain power,” Williams assured them.

Flattery didn’t work. On Dollar’s motion, the sixth paragraph was stripped out, and the bill was put on hold.

“There’s a rat in there somewhere,” muttered committee member and pharmacist Bobby Parham of Milledgeville as he exited the hearing. “There’s a rat in that one.”

Welcome to the final hours of the 2008 Georgia General Assembly, a period in which a law degree isn’t nearly as important as a sharp nose for vermin.

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The Atlanta Journal and Constitution's Editorial Board came out on Monday in favor of legislation currently pending in the Georgia General Assembly that would toughen penalties for teenagers who are caught not wearing their seatbelts while they are driving or riding in a car. The legislation, HB 924, is currently "dead" because it was not passed by one house prior to "cross-over" day, the deadline for legislation to pass at least one house to be considered by the other house. The sponsor of the legislation, Representative Melvin Everson (R-Snellville), will be looking at other bills still alive to which he could attach his seatbelt legislation.

This legislation is a good idea. As both a personal injury trial lawyer in Atlanta and a mother of a teenager, any law that would stiffen penalities for teenagers who don't wear their seatbelts will save lives. Too often I have sat here in my office with parents who have either lost a child or had one seriously injured because they weren't wearing their seatbelts at the time of a car wreck. Parents often tell me they insist on their children wearing seatbelts while riding with them, but it is a different story when those same teenagers are in a car with their friends. Their parents' rules of wearing seatbelts are quick to fly out the window.

And it has been proven in recent medical studies that teenagers simply don't have the brain development necessary to be able to make good judgment calls, such as always wearing seat belts. These new studies show teenagers are more likely to demonstrate impulsive behavior rather than sound judgments because the frontal lobes of their brains, that area where high thinking or executive functioning takes place, is not fully functional during teenage years. Teens simply don't have the appropriate level of brain functioning to make good judgmental decisions such as always wearing their seatbelts.

Perhaps tougher penalties for not wearing seatbelts would get through to them, such as points on your driver's license? Seems like that would get their attention. I am in favor of any legislation that toughens penalties for failure to wear seat belts. Simply put: seat belts save lives.

Finally, scientific proof that car accident victims aren't crazy, they really are in pain. If only their doctors would listen to them and take them seriously when they say, even a full year after the car wreck, they are still in pain. A recent study published on Monday in the medical journal Archives of Surgery showed a year after the injury, 63 percent of car wreck victims reported that they still experienced pain related to the injury, with most having pain in more than one region of the body. On average, the patients assessed their pain at 5.5 on a 10-point scale -- a level at which they would be expected to have moderate to severe interference with daily activities. The overall conclusion of the study: physicians need to offer better treatment for their patients.

As a plaintiff's personal injury attorney here in Atlanta, Georgia, whose practice consists largely of helping people who have been severely injured in car wrecks or trucking wrecks, I have heard this from my clients consistently over the last twenty years. Yet, they often can't seem to get the right treatment from their doctors, or even appropriate referrals to other physicians who might be able to help with alternative treatments. I have always suspected the physicians, strapped for time due to health insurers' controlling their practices, just aren't listening to their patients' complaints. This study seems to confirm exactly what I have thought, and validates the complaints of many of my clients. Doctors simply need to do a better job listening to their patients.

The physician who led the study admitted as much. "I was surprised that the pain was as common and as severe as they reported it to be," said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study. "The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early," Rivara added in a telephone interview.

I hope the nation's physicians, especially those right here in Georgia, take notice of this study and change their practices. Their patients, and my clients, really are telling the truth when they say they are in pain.

Plaintiffs personal injury lawyers across the nation are resisting the urge to say "I told you so" after the recent study by the Insurance Institute for Highway Safety (IIHS) confirms what we have been saying all along: if SUV manufacturers would simply make the roofs of SUV's stronger, it would save lives. The study concludes that more than 200 deaths could have been prevented in rollovers in 2006 if just a few more SUVs had roofs as strong as the best one it tested, and, of course, it follows that thousands of serious personal injuries, likewise, could have been prevented.

The IIHS study is extremely important because it proves what plaintiffs' lawyers have been saying all along; that inadequate roof strength can be the cause of death of an occupant in an SUV during a rollover. That an SUV will, in fact, experience a rollover is a given, and manufacturers are supposed to design and plan for that occurrence. The study is also important because it exposes the National Highway Traffic Safety Administration (NHTSA) for what it is, a co-conspirator with automobile manufacturers to require only the most minimal of "standards," (if they can even be called that) so that automobile manufacturers can continue to make hundred of millions of dollars on the backs of American citizens without reasonable attention to safety. Automobile manufacturers for years have defended against such cases by claiming to have complied with the NHTSA "standards," but this study shows such compliance is mere window dressing, and really meaningless when it comes to actual occupant safety. Much research has been done that shows for less than $100.00 per car a manufacturer could double the strength of the roof regarding strength to weight ratio. It is unfortunate that American car companies care more about their bottom line than their customers' safety.

The Georgia General Assembly remains in session today, and with every day, some other Georgia citizen's rights are limited or even eliminated by that body. The latest example is the attempt by the Georgia Senate to extinguish a landowner's liabilty when that landowner operates, for profit, a business that could loosely be described as agricultural in nature. This would include lucrative dove and quail hunting plantations, as well as the pick-your-own strawberry and pumpkin patches that many of our school age children go to on school sponsored field trips. The Georgia Trial Lawyers Association has consistently opposed giving immunity to the landowner in that scenario, especially where the landowner has advertised to get you to come onto their land and then has charged you a fee for being there. I think any normal Georgia citizen would believe and expect that landowner to make sure his premises were safe for his customers in that setting. But the current bill, passed by the Georgia Senate last week, would allow that landowner to get off scott free from any responsibility for injuries his property, if not kept in good repair, may cause a paying business visitor.

The editorial board of the Atlanta Journal and Constitution has published an opinion against the bill in today's paper and I have copied it for you below. The bill now goes to the Georgia House to be voted on. Georgia citizens should call their respective State Representatives and ask they vote "no" on the so-called Agritourism Bill, Senate Bill 449. It is a cop-out for wealthy landowners and leaves ordinary Georgia citizens, like you and me, and our precious children, to hang out to dry. Whatever happened to taking responsibility for your actions? Under this bill, landowners could take your money and never worry about whether you're safe on their property. Outrageous.

OUR OPINIONS: No immunity for agritourism

By Maureen Downey
The Atlanta Journal-Constitution
Published on: 03/10/08
Senate passage of a bill giving agritourism broad immunity from civil liability demonstrates the power of special interests in Georgia.
Senate Bill 449, the Landowners Protection Act of 2008, exempts agritourism businesses —- petting zoos, pick-your-own orchards, hunting preserves, farm/vacation sites —- from the standards of liability that govern all other businesses.

Under current law, business owners can be held liable for injuries on their property if they fail to exercise reasonable care. Promoted by Gov. Sonny Perdue, SB 449 erases current liability standards and says that agritourism owners can only be held liable if they are wanton and willful —- a boon to the insurance policy writers who cover farms.
"This is a solution looking for a problem," said state Sen. David Adelman (D-Atlanta). "There hasn't been a single case that I know of where agritourism has been threatened by lawsuits. The current Georgia law with regard to farms and agritourism requires them to exercise ordinary care and take care of their facilities the way any other business does."
Republicans also worry about the impact of the bill. "If I knock on a farmer's door and ask if I can fish off his dock, I don't expect the dock to be in good repair," said Sen. Dan Weber (R-Dunwoody).
"But if I come with friends to fish as a result of advertising by that farmer, and pay, I expect that dock to be in good repair. If I am hunting and fishing free of charge, the farmer has immunity. If he charges me money and I get hurt as a result of his negligence, he should be liable."
Sen. Seth Harp (R-Midland) gave the example of a farm tour in which the farmer left a tractor running and someone jumped in and ran down other tourgoers.
"Today, there would be recovery against Farmer Brown for that accident," he said. "If you raise the standard to gross negligence, then you would have to prove that Farmer Brown willfully and wantonly neglected to turn the tractor off, which is a far higher standard."
Proponents argue that the bill will encourage agritourism in economically depressed areas of rural Georgia. But rural Georgia could also benefit from a Wal-Mart or Target. Why can't those chains —- or every mom and pop antique store, cafe or gift shop —- argue that they, too, should be handed a reprieve from the reasonable-care standard of legal liability?
The Senate is on a dangerous path with this bill, which will end up hurting Georgians. What happens to the family of five when the dad is paralyzed after falling out of a poorly secured tree stand in a commercial hunting preserve?
The bill's sponsor, Sen. Bill Heath (R-Bremen), argued in favor of personal responsibility, but never mentioned the responsibilities of the landowners who open their land to the public for profit.
-- Maureen Downey, for the editorial board