Atlanta Injury Lawyer Blog

Yesterday was a bad rush hour in Atlanta, with constant rain and poor visibility. Already bad traffic was made worse by the rain. It presented the right conditions for lots of car wrecks. I was heading home a little early but it was still just dusk...still enough light for street lights not to be on, but dark enough to present a real hazard to the Atlanta motoring public, especially with the rain. A driver directly in front of me on East Rock Springs Road in Atlanta, without any warning or explanation, ran right over a traffic calmer that looked similar to the one in the photo above. But this one was not exactly the same, because it didn't have the proper markings or signage as the one above does. This driver ran right on top of the calmer, flattening three of his tires, knocking various things off his car and causing sparks to fly in the air. He couldn't have been going faster than 30 m.p.h., because that's how fast I was going and I was right behind him. That touch up with the "traffic calmer" undoubtedly cost that young man a lot of money in repairs to his car. Not much of a "calmer" to him! Fortunately, he didn't seem to be injured.

There is a manual that all road engineers and departments of transportation, including the Georgia Department of Transportation, must follow when installing these obstacles in the middle of a perfectly good street. It is the Manual on Uniform Traffic Control Devices, known as the MUTCD, and it mandates that traffic calmers must have sufficient markings and signage to warn drivers of its existence. The fact that this unsuspecting driver yesterday drove right on top of the thing suggests this one was not properly marked. There are many ways to mark a traffice calmer to warn drivers, including reflectorized tape around the curb, or even delineator posts, as shown below.

This accident yesterday I saw harmed only the car, but it is not difficult to understand how these "calmers' can do the exact opposite of what is intended and actually cause harm to a driver. These things are seemingly being installed everywhere these days. New ones have just been installed on 14th Street and Peachtree Street in Midtown between 14th and 15th. I have to try to avoid running over them every day. One particularly hazardous "calmer" is found on Peachtree Street in Buckhead near its intersection with Piedmont Road. It proved deadly when it lacked any lighting, lacked any reflectorized tape or paint, lacked any delineator posts and had no signage. Drivers at that time didn't stand a chance against it.

Promoters of beautification of our Atlanta streets may argue these traffic calmers improve safety...but I am not convinced. Having an obstacle course in the middle of a street for Atlanta drivers to have to avoid doesn't seem like a good idea to me.

In the wake of the tragic New Year's Eve car wreck that killed Kathy Porter, the wife of Atlanta Braves trainer, Jeff Porter, many lay folks have asked me, since my practice in Atlanta is exclusively plaintiff's personal injury, whether the Georgia State Patrol or the individual Georgia State Trooper would be liable for causing this wreck. There seems to be absolutely no dispute the Georgia State Trooper was at fault in causing this wreck. http://www.ajc.com/news/atlanta/witness-gives-account-of-1283677.html The question arises, however, whether the State of Georgia would be liable for the State Trooper's recklessness? Or would the State of Georgia be able to avoid liability by asserting the doctrine of Sovereign Immunity, which allows the State in some instances to avoid civil liability completely?

The Georgia State Tort Claims Act (GTCA) allows injured individuals to hold the State of Georgia responsible for their injuries caused by the negligence or carelessness of State actors/employees in limited scenarios. First, the injured party must give the State of Georgia and the agency involved "ante litem notice," or notice of the intent to bring a claim against the State, within 12 months of the negligent act or incident. Then the negligent act must fit squarely within the types of act for which the GTCA allows liiability; there are many exceptions in the statute itself.

And there are some trade-offs for even being able to bring suit against the State of Georgia. For example, one such trade-off is that the State's liability for anything, no matter how egregious the conduct, is limited to $1 Million dollars. That means in any case in which a State employee's negligence results in the death of another human being, the most the family of the decedent can recover is $1 Million dollars. And surely we can all agree that the value of the life of anyone is greater than a mere $1 Million dollars. Another such trade-off is the State of Georgia can never be punished by punitive damages, regardless of how unconscionable the subject incident was. For example, in the Kathy Porter case, there is evidence that this particular State Trooper had caused four prior wrecks. If we were talking about a private corporation's employee who had caused four prior wrecks and killed someone in his fifth, a jury could decide to punish that corporation for continuing to employ that reckless employee by awarding punitive damages against the employer. Not so against the State of Georgia.

So, although there may never be full and complete justice for the Porter Family for the wreck caused by the Georgia State Trooper, there is at least some measure of justice available thanks to the Georgia Tort Claims Act.

Just hours after I blogged about the killing of little Jorelys Rivera, we all learned that the perpetrator was an employee of the apartment complex where Jorelys lived. The horrible crime occurred in a vacant apartment that perpetrator knew was vacant and had easy access to, especially since he was the apartment's maintenance man. Before I knew any of this, I had already suggested that whoever had done this horrific deed had access to the vacant apartment and knew it was vacant, essentially giving the perpetrator the perfect placd to committ his crime. How did I know before the GBI ever disclosed these facts to the public? Because this is a fact pattern that often repeats itself and as a plaintiff's personal injury lawyer in Atlanta, I see this in the civil premises safety cases I bring for clients.

Now I read in the Atlanta Journal and Constitution online today a story about another hideous crime, this time the rape of two women. I have often represented such crime victims in civil personal injury lawsuits here in Fulton County, Georgia, against the negligent property owners. Property owners, especially commercial property owners like the apartment complex where Jorelys was killed, know that vacant, abandonded property is a haven for crime. These property owners have a duty to eliminate that risk, to use ordinary care to keep the premises safe. These owners cannot claim they had no idea that a unforseen criminal attack would occur on their property, because they absolutely know if they have vacant property that a criminal can easily gain access to, they are essentially aiding and abetting the crime by furnishing the scene of the crime. This is what happened in these two rapes in Atlanta today and this is what happened in the death of Jorelys Rivera. And with so many homes in Atlanta and in Georgia under Foreclosure now, the problem of anbandoned property is growing.

The news this week of the tragedy of the death of seven year old Jorelys Rivera was horrifying. Little Jorelys Rivera had been playing on the playground at her apartment complex, River Ridge, in Canton, Georgia, told friends she was going back to her apartment to get a drink, and never returned. Her little body was found in a nearby garbage dumpster yesterday. There was evidence that Jorelys' abducter had sexually abused her and stabbed her.

Investigators with Georgia Bureau of Investigation (GBI) now report they found blood in a vacant apartment in the River Ridge Complex. This is crucial evidence, as it perhaps not only indicates the exact place of the death, but also implicates liability on the apartment complex for having a vacant apartment that was accessible to anyone, including Jorelys' abducter. Further, it indicates her abducter may have known in advance of the vacancy of the apartment and his easy ability to enter it without a key and without any apparent force. Additionally, the playgound from which she was abducted was owned by River Ridge.

Under Georgia law, O.C.G.A. Section 51-3-1, a landowner has a nondelegable duty to keep its premises and approaches safe. This means they can't pawn this duty off on someone else. Property owners are under a duty to take reasonable precautions to protect invitees from dangers which are foreseeable from arrangement and use of premises. In this context, any renter and any family member of the named renter living in the rented apartment would be considered an "invitee" for these purposes, to whom the landlord owes the highest duty of care, that of "reasonable care." Thus, from the mere fact that this child's abducter ostensibly knew of this vacant apartment and knew that he had unfettered access to it away from witnesses indicates to me that the landlord must not have exercised "reasonable care" to keep the premises safe so as not to allow a vacant apartment be used for criminal purposes. Landlords must be trained to be diligent in blocking access to vacant apartments or vacant buildings, as statistics show that criminal abducters are more likely to abduct someone if they know in advance they have access to a place to take their victim.

This story is so heartbreaking, and my prayers go out to the Rivera Family for comfort and healing. It should be kept in mind, however, that but for the negligence of the landlord, this crime might never have happened.

I often represent the familes who have lost loved ones in car wrecks on Metro Atlanta roads. It is always a painful time as they share with me the details of their loved one's death. Last night's killing of two teenagers by a distracted driver must be one of the worst things these two families have ever gone through and my heart goes out to them. Last night two teenagers were killed while walking in the emergency lane of Georgia Highway 138 in Stockbridge, Clayton County, Georgia. A third teen was struck in the same collision and remains hospitalized in critical condition.

We all know by now that texting while driving (TWD) is illegal. But there is strong evidence that simply talking on a cell phone while driving is just as distracting. In the Clayton County collision last night, the at-fault driver apparently was arguing with her husband on the phone. This argument or "conversation" was distracting enough to cause her to leave the laned highway, go into the emergency lane and strike three pedestrians, hard enough to kill two and seriously injure one. What in the world is going on here in Georgia with distracted driving? This is a problem that should worry us all, whether we're in another car or pedestrians.

The hitting of pedestrians in Atlanta and Georgia has become all too commonplace. Just two weeks ago a man was sentenced to 20 years in prison for vehicular homocide in striking and killing a pedestrian in Carroll County, Georgia. Earlier this month a Georgian citizen who was a pedestrian was struck and killed by a car on Savannah Highway. Most of us have heard about the mother in Cobb County whose child was struck and killed as a pedestrian crossing busy Austell Road and the Cobb County District Attorney proscecuted the mother for vehicular homocide, even though she and her children were pedestrians.

Statistics show that nationally, from 2000-2009, 47,700 pedestrians were killed in the United States, that’s nearly 400 deaths a month. In addition, 688,000 pedestrians were injured during those years. Unfortunately, Georgia ranks 10th in the United States for danger to pedestrians. Between 2000 and 2009 1,545 people were killed while walking in Georgia, which cost the state $6.64 billion. Reducing pedestrian fatalities just 10% would have saved Georgia $664.35 million over 10 years. Georgia's overall Pedestrian Danger Index (PDI) is 102.9, which ranks 10th out of 50 states.

Keep in mind these are all preventable deaths. This is way too high of a death rate for Georgia pedestrians. The Georgia Legislature needs to address this epidemic of pedestrian deaths in our state. You shouldn't die in Georgia just trying to cross the street.

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In my personal injury law practice here in Atlanta, I have had the honor of representing individuals who are in need of a transplant. The recipients of these vital organs know that while they rejoice in the gift, another family had to suffer a tragic loss for the organ even to be available.

Such a tragic loss occurred to the Dillard Family of Gwinnett County yesterday. Jhrarell Dillard, a fifteen year old junior in high school, died yesterday after eating a cookie that unknowingly contained nuts. Jhrarell had a known severe allergy to peanuts. Jhrarell immediately went into antiphalactic shock and died from eating the cookie. His parents, at a time that must have been excrutiateingly painful for them, chose to donate his organs. Jhrarell has apparently already saved seven other lives through donation of his organs. Truly amazing. I know those seven lucky families are rejoicing today in their gifts of life, but we must continue to hold the Dillard Family in our prayers as they mourn the loss of their son.

I have written before about the importance of being a donor. Please, I urge all Georgians to sign their driver's licenses to agree to donate any useful organs in the event of your unexpected death. This is a decision that really has to be made well before a truamatic event occurs. If you wait to decide, it may be too late. There are many resources in Georgia from which to learn more. LifeLink is one such donation organation. Georgia Transplant Foundation is another. The Donate Life Georgia Organ, Tissue and Eye Donor Registry was created in 2008 to allow Georgians an easy and user-friendly means of joining the state’s donor registry. Georgians can join the registry through the Web site, when renewing their driver license online, or when obtaining/renewing their license at a local driver license office.

You have the power to donate Life! Imagine that! The life you save may be your own.

As a plaintiff's personal injury attorney who handles Georgia medical malpractice cases, it has always troubled me that Georgia hospital infection rates have never been accessible to the common consumer. Patients are left in the dark about which hospitals offer safe environments in terms of deadly infection rates. This may soon change. A new medicare database has recently issued an unprecedented study on hospital infection rates in Georgia that will finally shed light on this controversial healthcare topic.

Georgia currently has no laws requiring hospitals to disclose their infection rates to the public. Instead, the Department of Community Health (DCH) exclusively monitors infections and works with the CDCP to address any issues or causes for concern. This leaves the public completely ignorant and, therefore, incapable of making an informed decision about which hospital can offer the safest facilities.

I will never understand why restaurants are required to post their health inspection scores for all to see, but hospitals, where people entrust their own lives, have the luxury of withholding their uncleanliness and infection rates from the public. I think I speak for many when I say that having peace of mind before entering surgery is perhaps a little more important than having it before eating a sandwich at the local deli.

GHA and other defendants of the current system claim that hospitals must remain “cautious” about public reporting because an accurate method for comparison has yet to be developed. I’m not buying this at all. How difficult can it be to formulate a fair and balanced method for public disclosures? The 28 states that already require public disclosure of infection rates figured out a viable method. The State of Georgia should be able to as well.

Speaking of “fair,” Kevin Boyle, the spokesperson for the Georgia Hospital Association, was quoted in the Atlanta Journal-Constitution, stating, “More transparency is what the public wants, and we’re responsible to that.” “But the key is what report is right and fair to each of the stakeholders involved.” Are you kidding me? So let’s concentrate on what is fiscally fair to the “stakeholders” involved before we can even think about what is right for the patients? This is absurd. Georgia Government and its infection-ridden hospitals should be more concerned with disclosing vital information pertinent to the safety of their patient’s lives.

Proof of the current system’s flaws can be found in a new federal database at www.hospitalcompare.hhs.gov. Released by medicare, it provides the public with report rates of 2 types of infections and 6 other preventable conditions The study was conducted using billing records from medicare patients. This is the first and only source available for Georgians when it comes to infection rates in their hospitals. Georgia Watch, a consumer watch-dog in Georgia, has been hot on the issue of hospital-acquired infections for years now, with the rights of Georgia citizens to know at the forefront of their mission.

Not surprisingly, hospitals across Georgia have responded with vicious attacks of the study. Opponents assert that the study lacks scientific validity because it was based on imprecise and outdated billing information that fails to account for the varying conditions of each hospital’s patient population. The true reason for such widespread dissent, however, perhaps resulted from the embarrassing results.

Studies from the database show that most Atlanta hospitals had at least one case of potentially deadly catheter-related blood stream infection or “central line” infection. Bringing in the rear is Emory Hospital, which boasts the highest infection rate in the state and one of the highest in the nation. Typically, hospitals may report 1-3 central line infection cases per year. Emory had 36, earning 4th place for highest central line infection rates out of 3,300 hospitals nationwide.

These reports released by Medicare may not portray the most accurate depiction of the safety of our hospitals; however, as long as patients have no other alternate source of information, then it’s the only measurement that can be taken into consideration when trying to determine the safest hospitable. In the United States, an estimated 100,000 deaths per year are attributable to these types of infections. That’s more than breast cancer. Hospitals and lawmakers across the State of Georgia should use this as a wake-up call and an opportunity to minimize preventable deaths by finding solutions to this infectious epidemic. Georgia citizens deserve better.

Sources:

http://www.ajc.com/health/when-the-treatment-makes-974175.html

http://www.ajc.com/news/georgians-kept-in-dark-975123.html

http://www.hospitalcompare.hhs.gov/

Georgia Department of Early Care and Learning is drafting an emergency rule change one week after the death of 2-year-old Jazmin Green, according to WSB-TV. My question, as an Atlanta plaintiff's personal injury trial lawyer, is this: Why does a child always have to die first before our Georgia Agencies do their job? The job they were created to do in the first place? How many Georgia children have to die before Georgia Agencies like Georgia Department of Early Care and Learning (DECAL) or Georgia Department of Family and Children Services (DFACS) do what they are supposed to do, i.e, protect Georgia children?

The death of Jazmin Green was a horrible realization that these State Agencies are woefully inadequate and give "protection" of Georgia children lip service. Little Jazmin simply should not have died if DECAL had not been asleep at the switch. Yet DECAL knew of potentially death-causing deviations of the required standards by this day care center, Marlo's Magnificent Day Care, as evidenced by DECAL's own inspection reports, and did nothing. A civil wrongful death suit can be brought against Marlo's, as it should be, for the wrongful death of Jazmin. But no such civil suit can be brought at DECAL due to sovereign immunity. We know, however, that a civil jury would do the proper thing to DECAL to get its attention and tell DECAL what it is doing regarding the safety of our children is not working. A jury made up of mothers and fathers would let DECAL know what it did wrong here, but, unfortunately, that won't happen. The parents of Jazmin need justice. Her heart has now been sealed for thy courts above. The Courts here in Georgia need to render justice for those Jazmin left behind.

As an experienced Atlanta, Georgia trial lawyer, I’ve successfully argued numerous day care personal injury and wrongful death cases over my years of practice. Nothing is more heartbreaking and frustrating than a preventable death, especially if the victim happens to be a child. So when I first learned of the recent news that a 2 year-old girl died under the noses of local day care employees, my heart sank.

The victim was left unattended for nearly two hours in a van, where temperatures quickly soared to a sweltering 140 degrees. Confined by the straps of her car seat with no means of escape, the child was left to suffer a lengthy, horrific end to such an abbreviated life. Police arrested Marlo Maria Fallings, the administrator of Marlo’s Magnificent Early Learning Center near Jonesboro, Georgia and her staff member, Quantabia Shantell Hopkins, on Tuesday, June 21. They are both being charged with involuntary manslaughter, cruelty to children and reckless conduct. They have already been released on $35,000 bond. These charges certainly fit the crime, however, more action needs to be taken in order to send a message to day care centers throughout the state that negligent conduct is a serious offense and will not be tolerated.

There may have been warning signs about the Clayton County Day Care Center. In March, Bright from the Start, the State agency that regulates day care centers, cited the center for not documenting a field trip and the children who were transported, according to the report. The report itself says the regulation was only "partially met" but, really, it was totally unmet. The report states:

"Finding 591-1-1-.36 (6)(d) requires that at the completion of every trip, a check must be made to assure that no child remains on the vehicle. The center staff did not initial or document the field trip form for children transported on October 26, 2010. POI (Plan of Improvement) The center will instruct staff regarding this safety measure. Correction Deadline - 03/01/2011"

So, this day care center didn't document any child getting on OR off the day care van and it obviously didn't remedy the situation by the March 1, 2011 deadline. Where was the follow up by the Georgia Department of Human Resources? This is egregious. In Tennessee, the Tenneesee Department of Human Resources this summer issued new reminders and warnings to day care centers about not leaving children behind in day care vans. “We know child-care providers share our concern about the need for increased vigilance during the hot summer months to ensure children are not left in vehicles,” DHS Commissioner Raquel Hatter said. As part of this increased vigilance, the Tennessee DHS licensing staff will be making extra visits to monitor child-care agencies. Where were the reminders from the Georgia DHS?

The next step toward justice, of course, should be civil action. Georgia law requires day cares such as the one in this case to check all vehicles after trips “to assure that no child remains in the vehicle.” Obviously, Ms. Fallings and her staff failed to abide by this simple statute and, therefore, should be held accountable.

I’m tired of hearing about preventable deaths such as this one that result from pure negligence. Last year alone, 49 children in the United States reportedly died from heat exhaustion while locked inside a vehicle. On a local note, Monday’s wrongful death was the second in metro Atlanta in less than a month involving a child trapped inside a vehicle. On May 25th, a five month-old girl died in a similar manner after being locked in an automobile for five hours outside a Kennesaw, Georgia day care center. These incidents are both preventable and unacceptable, and the responsible entities should be punished to the fullest extent of the law both civilly and criminally. My heart goes out to the parents of this little child.

Sources:
2 Accused of Day Care Death out of Jail

FOR IMMEDIATE RELEASE CONTACT: Sarah I. Coole
June 6, 2011 Director of Communications
404-527-8700; 800-334-6865

Robin Frazer Clark of Atlanta Installed as State Bar of Georgia President-Elect

Atlanta – Robin Frazer Clark of Atlanta was installed as president-elect of the 42,000-member State Bar of Georgia on June 4 during the organization’s annual meeting at Myrtle Beach, S.C. Clark will be sworn in as the 50th president of the State Bar of Georgia in June 2012, becoming only the second woman to hold that office.
A solo practitioner, Clark represents individuals in matters involving personal injury and employment, automobile and tractor-trailer wrecks, premises safety, elevator and escalator cases, product safety, medical malpractice, legal malpractice and sexual harassment.
Clark is a graduate of Vanderbilt University and the Emory University School of Law and was admitted to the Bar in 1988. A past president of the Georgia Trial Lawyers Association, she moves into her new role with the State Bar having served on the Board of Governors, the Executive Committee and, for the past year, as secretary.
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The State Bar of Georgia, with offices in Atlanta, Savannah and Tifton, was established in 1964 by Georgia’s Supreme Court as the successor to the voluntary Georgia Bar Association, founded in 1884. All lawyers licensed to practice in Georgia belong to the State Bar. Its more than 42,000 members work together to strengthen the constitutional promise of justice for all, promote principles of duty and public service among Georgia’s lawyers, and administer a strict code of legal ethics.

Many Georgia parents are saying prayers of thanks tonight that no one was injured in the latest bus crash in Georgia. This latest crash near Macon, Georgia involved a bus loaded with Gwinnett County students coming home from Orlando, Florida following a school choir trip. Many of the bus passengers were injured, many with broken bones and other orthopedic injuries. I am sure this most recent bus crash has reminded many of us of the Bluffton, Ohio bus crash, also on I-75, that occured in 2007 here in Atlanta. Obviously, a parent's worse nightmare.

Reports indicate the bus driver may have been following another vehicle too closely, leading to the wreck. Parents also report not being told of the accident for hours. Forty-seven (47) passengers were reportedly injured.

This bus crash also brings to light the issue of having seatbelts in buses, and I mean buses of any type, from charter buses like this one to Georgia school buses. With Bluebird bus manufacturer in Georgia, the country's largest manufacturer of school buses right here in our very own state, it makes one wonder how many more people, including children, will have to be injured before seatbelts are made mandatory. I advocated this back in 2007 with the Bluffton crash. Had there been seatbelts in the Bluffton bus, lives would have been saved and young men would not have become paralyzed.

The investigation into this Georgia bus crash continues and, no doubt, will answer many questions regarding fault and blame. Hopefully, bus drivers will become more careful because of it

Some strong issues to consider, but for now, all Georgians should join these parents in those grateful prayers for the lives of their children.

The United States Supreme Court will be hearing oral arguments tomorrow in a gender discrimination class action case against WalMart. The plaintiffs, female employees of WalMart, allege WalMart has been
paying women in the United States less than men for the same work and of passing the women over for promotions while only promoting men. The women plaintiffs' march to justice has taken a mere ten years. This should show you how much courage and tenacity it takes to be a plaintiff in high stakes litigation against a large corporation. To say these women are the underdogs wins the Understatement of the Year Award. One of the original plaintiffs who first brought the lawsuit against the mega-retailer in 2001 confirmed this by explaining "I'm a fighter if nothing else, and so are all the other women that are involved," said Christine Kwapnoski.

No doubt that these women plaintiffs are fighters. You have to be to take on one of the world's largest corporations, who can afford the most expensive legal talent in the United States. And, to bring a claim of gender discrimination which, unfortunately, has become one of the hardest types of cases to win as a plaintiff. The case law that has developed by interpreting the application of Title VII, The Equal Rights Act, tends to favor the employer in nearly all circuits. The Eleventh Circuirt Court of Appeals, of which Atlanta is a part, has some of the most conservative opinions in the country interpreting Title VII such that only a very small percentage of these cases ever sees the light of day with a jury. The vast majority of them are thrown out of court by the trial court judge on what is called a Motion for Summary Judgment. The odds are clearly against the plaintiffs.

If the court rules in favor of the women and grants them "class certification," it will most likely become the largest employment class-action suit in history, involving potentially millions of women and billions of dollars. Keep in mind the U.S. Supreme Court will not be making a decision on the merits of the case, i.e., whether Wal-Mart did, in fact, discriminate against women. Rather, the Court will be deciding whether the class certification, of a class that would potentially include millions of women, should go forward.

That this opinion from the Supreme Court could be an eye-opener for corporate America is without question. Many Americans will be eagerly awaiting the Court's decision, which is expected this summer. I know I will be and I will keep you posted right here.