Articles Posted in Personal Injury

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Stop, Look, Listen!  We often hear that in regard to what you should do when you approach a train track in your vehicle. Stop, look and listen for a train before driving over the tracks. I can remember when I was little and rode the school bus home, the bus driver even opened the door to the bus at train tracks so he could see better and hear any potential approaching train more clearly. But shouldn’t the same rules apply for pedestrians before they cross a busy city street?  Should pedestrians also stop, look and listen for their own safety? Are they even required to do so?

I drive down Edgewood Avenue in Downtown Atlanta to get from my house to my office every day. Edgewood is a busy city street that goes through the heart of Georgia State University.  At any given time of the day, there are hundreds of college students crossing Edgewood Avenue to get to their next class to to their dorm room or maybe even to the library.l  The three photos above demonstrate a typical day with GSU students crossing Edgewood Avenue.  These photos show students crossing at the light, but students often cross Edgewood in the middle of the block, not at an intersection and without any traffic signal. Invariably, these young men and women are texting while walking, talking on their cell phones in deep conversations while walking, or even listening to something on their phones with earphones on while they cross one of the busiest streets in Downtown Atlanta.  Many pedestrians attempt to cross while vehicle traffic has a green light.  One of the photos above shows pedestrians crossing the street diagonally, which is certainly against the rules. Watching this sort of nonchalance and devil-may-care attitude regarding oncoming cars while they strut right out into the street had me wondering:  who would be at fault if a pedestrian crossing illegally where struck by a car that had a green light?  Does  a person who texts while they cross a street value his or her life? Or does the lack of taking any safety precautions for their own person, e.g., not texting while walking, forfeit the right to blame someone else when they are struck by a vehicle?

There is no question that texting while walking, especially while crossing a street, is a bad idea.   Research has found that, mile for mile, distracted walking results in more injuries than distracted driving, and makes pedestrians 60 percent more likely to veer off course. At least one city has taken the step to protect people from themselves.   Starting Wednesday, texting while walking across a street in Honolulu is illegal, thanks to a new law that allows police to fine pedestrians up to $35 for checking their phone, while crossing an intersection in the Hawaiian city and surrounding county.  Honolulu is, apparently, the first city in the U.S. and perhaps the world to ban texting while walking (TWW).  “This is really milestone legislation that sets the bar high for safety,” said Brandon Elefante, a City Council member who proposed the bill, in an interview with the New York Times.

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In continuing the series of blogs on distracted driving, I saw a heartbreaking story on the news last week that unfortunately fits right in with the other blogs on Texting While Driving and Snapchatting While Driving. An 18 year old girl was driving her 14 year old sister while operating a Livestream video feature of the Instagram app. Her car drifted into the other lane, and when she overcorrected, the car flipped. Her 14 year old sister was ejected from the car and died. The older sister — while driving — captured the whole thing on video.

The older sister was arrested on-site for suspicion of DUI and gross vehicular manslaughter. Even if the family does not file a civil complaint — for the wrongful death of one daughter caused by another — the driver faces 13 years in prison if convicted on all 6 felony counts.  (Keep in mind that there may be family immunity laws that would even prevent such a lawsuit).

In a recent case involving an accident while using the Snapchat app, the plaintiff sued Snapchat, Inc. for having the “speed overlay” filter, which has incentives for a driver to use the app while the car is in motion at high speeds. This differs from the Instagram Live function, which seemingly has no “incentives” or benefits for using the function except keeping friends up to date with your every move. Were this motor vehicle accident to be filed as a civil complaint, it would be interesting to see if Instagram could be held liable for the resulting death, as the “incentives” from the Snapchat app were the main argument behind the plaintiff’s claim.

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Parental concern, law enforcement warnings, and user disapproval of the recent updates to the Snapchat app are the least of the company’s worries. Though Snapchat, Inc. has made the headlines recently due to the updates, this isn’t the first time the company has been under scrutiny from the public. In April of 2016, a complaint for damages was filed in a Georgia state court against the company for injuries sustained from a motor vehicle accident, claiming that the main cause of the accident was the speed filter of the Snapchat app.

The speed filter allows a driver behind the wheel to document his or her speed by “snapping” a picture while the car is in motion. On this one particular night, a teenage driver allegedly opened her Snapchat app while driving as an attempt to snap a picture of her car reaching 100 mph. The driver allegedly, according to the Complaint, accelerated until reaching approximately 107 mph before she realized another driver had pulled onto the road. She crashed into him at full speed. Both cars were totaled, leaving multiple people with tremendous injuries – both physical and psychological – and thousands of dollars in expenses.

The plaintiffs have sued Snapchat for negligence, in part because this is, according to the Complaint, not the first instance in which a Snapchat user has used the speed filter of the app and caused a car crash. Petitions online even called for the app to remove the filter or for the app to restrict the usage of the filter while driving. Despite knowing that the speed filter presented many dangers to the public, as of the date of the incident above, Snapchat had not removed the speed filter, thus creating the perfect opportunity for another distracted driver to cause serious harm.

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My office is in downtown Atlanta and I drive each day through Georgia State University, which now has an enrollment of 32,802.  You can imagine how many of those 32,802 are walking on the sidewalks and crossing busy downtown streets at any given moment on a weekday. And just add these students to the normal, everyday Downtown Atlanta population of employees, deliverymen, and homeless people, bicyclists who weave in and out of traffic and the schizophrenic Streetcar, which can wait at a station for interminable minutes or pull away without notice at any given second. Suffice it to say there are a lot of pedestrians on our streets downtown. Nearly every day at least one of them attempts to dart out in front of my car, regardless of whether they are even close to a crosswalk.  Apparently, crosswalks are for looks only in downtown Atlanta. A driver must be extremely vigilant while driving downtown not to have a mishap with a pedestrian. Add to the inherent danger of crossing a street the aggravating factor that many pedestrians are on their phones while walking out in the middle of the road. I have seen pedestrians talking on their phones, listening to their phones with earphones, texting on their phones, texting on their phones while talking on their phones on speakerphone and every other possible configuration of phone use while walking.  Surely, if they are hit this would amount to a heck of a lot contributory negligence?  The number of incidents of pedestrians being hit by cars is on the rise. For example, in 2013, 180 pedestrians were killed statewide, making it the deadliest year for pedestrians since 1997.  The CDC reported that in 2015  5,376 pedestrians were killed in traffic crashes in the United States. This averages to one crash-related pedestrian death every 1.6 hours.  Additionally, almost 129,000 pedestrians were treated in emergency departments for non-fatal crash-related injuries in 2015. Pedestrians are 1.5 times more likely than passenger vehicle occupants to be killed in a car crash on each trip.    Atlanta is reportedly the 8th most dangerous city for pedestrians.

So who has the right of way?

The Governor’s Office on Highway Safety does a pretty fair job at trying to educate pedestrians regarding right of way and their duties to watch out for their own safety, in addition to vehicle driver’s duties to watch for pedestrians.

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Many of you readers know I have often blogged, tweeted and spoken in public about suicide and what we as someone’s friends, family or colleagues can do to recognize a real suicidal threat and what we can do to get help to someone before he or she attempts to take his or her own life.  We know so much more about suicide today than we did just 20 years ago.  I would venture to say that what we thought about suicide and it’s causes 100 years ago would border on naivete, akin to treating leukemia with leeches.  For example, today we know that means restrictions, preventing access of the means or instruments to kill oneself, dramatically lowers the suicide rate, where 100 years ago we simply concluded if someone is suicidal it could not possibly be prevented. In a recent Harvard School of Public Health study, it was shown that if someone who is suicidal is simply prevented from having access to the means to commit suicide one time, 90% of those who had wanted to kill themselves but did not have access to the means or instrument (guns, drugs, rope) to kill themselves did not attempt suicide again.  Cyberbullying has become a leading cause of teen suicides. Social media has been at the root of numerous teenage suicides, especially where embarrassing photos or videos are posted online, which then go viral and are be seen by hundreds of classmates before the next day of school. This type of cyberbullying, using compromising or embarrassing images, has become so prevalent in our schools that many states are enacting legislation to criminalize it. This fact alone suggests suicide following cyberbullying is predictable.

Probably one of the most well-known and saddest cases of cyberbulling was the case of Tyler Clementi, an 18 year old freshman at Rutgers University, who jumped off the George Washington bridge into the Hudson River, killing himself. Tyler’s roommate had secretly filmed him having a private, sexual encounter with another male in Tyler’s dorm room. The roommate then live-streamed the intimate encounter on the internet. Would anyone doubt that Tyler would have been suicidal following a livestreaming of his most private, intimate moment in his own room? Studies have shown that cyberbullying, especially when it involves intimate photographs or videos, leads to an increased risk of depression and suicidal ideation.  Thus, it has become foreseeable and even highly likely that a young person may want to commit suicide after experiencing sexual or intimate cyberbullying.   Who could blame them?

Which brings me to City of Richmond Hill v. Maia, S16G1337, Supreme Court of Georgia, May 30, 2017.  You may remember I have written about this tragic case before, in my June 9, 2016 blogpost “Who Is Legally Responsible for a Suicide?”  I was writing about the decision by the Georgia Court of Appeals at that time.  To remind of you of the horrible facts in Maia, this is what I wrote then:

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You Supreme Court nerds out there (and you know who you are) are probably aware of the fact that the United States Supreme Court  recently heard oral arguments in  McWilliams v. Dunn. At issue in the case is whether James McWilliams, an indigent defendant whose mental health was a significant factor at his capital trial, was entitled to an independent psychological expert to testify on his behalf. The prosecution presented the expert testimony of one psychiatrist and argued the Defendant was not entitled to his “own” psychiatrist as the one offered by the prosecution was essentially neutral, even though he was retained and paid by the State.  Stephen Bright, longtime president of the Southern Center for Human Rights, represented McWilliams.  The issue presented to the Supreme Court in McWilliams was this:  “Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.” Amicus, the podcast by Slate that focuses on the Supreme Court, covered the McWilliams case in its latest episode, “The Myth of the Neutral Expert.”

This is a fascinating discussion, especially considering the very life of an inmate hinges on the opinion.  Some states have even placed a temporary halt on executions for inmates on death row until the McWilliams opinion is delivered.   As a personal injury trial lawyer, I mused how expert witnesses are treated differently in civil cases, you know, in cases where mere money is at issue and not someone’s life or liberty.  Of course, having one so-called “neutral” expert witness, to testify for both sides of a case, would never happen in civil cases.  I haven’t tried a case without the appearance of at least one expert witness at trial in well over 20 years now. My cases are complex and naturally either require or will benefit from expert testimony. At a minimum. I will present the testimony of a treating physician, who certainly is an expert in his or her medical specialty, even if not an expert “specially retained to testify at trial.”  In civil cases, especially medical malpractice cases, we often hear such testimony described as “The Battle of the Experts.”  Defense attorneys have gotten into the habit of hiring just one more expert than the plaintiff has so that they can argue they have “more” experts on their side and, therefore, naturally, you should side with the party who has more experts (regardless of how credible those experts are!).  What jurors may not be aware of is that the defense experts are being paid by the defendant doctor’s malpractice insurance carrier, not the doctor himself, so the sky’s the limit.  Not so for plaintiffs.  Plaintiff’s must front those expenses out of their own pockets, and because no individual plaintiff can afford to do so, this means the plaintiff’s attorney must pay for the experts in a case on his or her own dime. That may not make sense to you but that’s how it works.  As you can imagine, hiring numerous experts simply to have one more than the other side has can get expensive.  Where does this end? But defendants have unlimited sources of money for this and plaintiffs don’t.

Here is the law of Georgia that the trial judge will read to the jury regarding expert witnesses:

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It’s only a matter of time before you or a loved one is injured by one of these nuisances that are so prevalent on Atlanta city and county streets these days.  Or it’s just a matter of time before you damage your car from driving over one of them.  The ubiquitous metal plate. Who thought these were a good idea in the first place?  The metal plates in the photographs above are currently on my street, Oakdale Road in unincorporated DeKalb County. These two metal plates have been there for months.  And notice there is really nothing hold them in place other than the mere weight of the things and gravity.  But a truck that ways 60,000 pounds loaded, or an SUV that weighs 10,000 pounds or even a small car that weighs 6,000 pounds going 35 m.p.h. can easily move these plates when they are not pinned down.  Once moved, they become a potentially fatal hazard to the motoring public. Imagine coming upon this monster (see photograph below) as you mind your own business driving down the road. Once your car ran over it, you and your car wouldn’t stand a chance.  The weight of your car would cause the metal plate to flip and your car would fall into the sinkhole below. It is doubtful you could escape without serious bodily injury.  The photographs below show several metal plates that are clearly not pinned down or held down in any way whatsoever.  Car and truck traffic have obviously shifted them, so that the next unknowing driver, potentially YOU, could be swallowed by the hole they are supposed to be covering.  I am confident this is not an isolated situation;  my guess is that you have seen the frightening scenario below multiple times.

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There are actually requirements for the way these metal road plates are required to be placed on the roadway.  For example, steel plates must be fixed in place to avoid movement.  In addition to being firmly in contact with the pavement, they should be either pinned, recessed into the pavement, or secured with asphalt wedges around the perimeter. Pinning into the pavement involves driving pins into the pavements along the edges of the steel plates to prevent movement. Recessing involves cutting out the area where the steel plate will be placed.  If these are the mandatory requirements for use of these monsters, why are they so seldom pinned down or recessed?  As a member of the motoring public, you are entitled to assume these plates have been put down and affixed to the street properly so that they are safe for you to drive over. The law does not require you to drive around them in an effort to avoid them.

Remember the “Pothole Posse” formed by then City of Atlanta Mayor Shirley Franklin?  It seemed to make progress for awhile, but after the initial excitement about bringing back safe streets, we are right back where we were with our streets littered and cluttered with these metal plates. Recently, in New York, such metal road plates may have played a role in a fatal crash that killed six people.

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The Georgia Supreme Court today issued an opinion that makes it clear the age-old rule of “one free bite” for a dog before an owner can be held responsible is no longer Georgia law.  The Court’s opinion in Steagald v. Eason, S16G0293 (Ga. Sup. Ct. March 6, 2017) overturned prior case law that held the opposite. (“To the extent that the Court of Appeals held otherwise in Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998) (a 4-3 decision), when it said that “the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action,” id. at 635 (citations omitted), the Court of Appeals misconstrued its own precedent, and that decision is disapproved.”). In Steagald, the dog at issue, “Rocks,”  had twice before “snapped” at neighbors, without actually biting them. Then, in a third incident, when the neighbor  approached the dog and extended her arm, Rocks jumped at her, bit her arm, and latched onto it. The neighbor attempted to run away, and when she did, she slipped and fell. At that point, Rocks bit and latched onto her right leg. The woman sustained serious injuries as a result of the attack.

The time-worn “one bite rule” refers to this:  A rule that says that the owner of a domesticated animal (e.g., a dog) will be held strictly liable for injuries caused by the animal only if the owner knew or should have known about the animal’s dangerous or vicious propensities, which have been manifested in the past. The burden of proof is on the injured party to show that the animal owner possessed this knowledge. The “one-bite” rule originated in common law and has been rejected or modified by most states, either by statute or by case law, with regard to dogs.  Many states, including Georgia, have long followed this rule, holding that a dog owner has no liability as a matter of law to a person who his dog bites and injures unless the owner was aware of a previous bite by his dog. But today the Georgia Supreme Court acknowledged that the two prior “snaps” by Rocks at the neighbors were really just “unsuccessful bites.”  The two prior “unsuccessful bites” were enough to put the owner on notice that his dog may have a vicious propensity, which is part of what a plaintiff must prove to prevail in a dog bit case. Justice Keith Blackwell authored the opinion of the Court. Known for his sense of humor, Justice Blackwell apparently found the serious injuries of the Plaintiff no laughing matter and wrote:  “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation. And as the Court of Appeals correctly recognized in earlier decisions, when the evidence shows that an owner or keeper knows of such an attempted bite — that a dog has snapped at someone, nicked someone with its teeth, or otherwise used its mouth to attack someone without injuring her — it may well be sufficient to establish knowledge of a propensity to bite.”  The opinion was unanimous by the Court.

I think the Georgia Supreme Court has fashioned a fair and common sense rule here. The “one free bite” rule let the owners of vicious dogs off the hook, or off the “leash” so to speak, too easily.  We all know a pit bull who barks at someone and snaps and jumps at someone but doesn’t actually bite, is just one leash-break away from a horrific mauling. Dogsbite.org reports in the 12-year period of 2005 through 2016, canines killed 392 Americans. Pit bulls contributed to 65% (254) of these deaths. Combined, pit bulls and rottweilers contributed to 76% of the total recorded deaths. Family dogs inflicted 45% (14) of all deaths in 2016; family pit bulls accounted for 86% (12) of these deaths, up from an 11-year average of 63%. Of the 22 fatal pit bull attacks, 55% (12) involved a family or household member vs. 45% (10) non-family. Many Georgia counties and cities have in place specific ordinances about dogs with vicious propensities, especially pit bulls.  And who can  forget the tragedy of the death of a little boy and mauling of a little girl this January as they walked to their bus stop in Southwest Atlanta by pit bull?  These ordinances are created with the policy in mind of encouraging owners to have better control over their dogs.  And the Georgia Supreme Court’s opinion in Steagald will help hold negligent dog owners responsible for the havoc created by their vicious dogs.  Dog owners should take notice and act accordingly.

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I’ve got jury duty and I can’t wait!  Said no one ever (except maybe lawyers who almost never get to serve on a jury).  You have just received your jury summons, making an already bad day worse. Now what do you do?

  1.  Show up at court.  When you receive a juror’s summons, it is an actual summons for you to appear in court. Failure to appear in court at the correct time can place you in contempt of court. Don’t make matters worse by failing to appear.  I have seen different courts handle this in different ways, ranging from a mere scolding by the trial court judge to payment of a fine. The trial judge can even hold you in contempt and threaten you with jail (although I have never seen this happen, and state court judges are elected so I doubt it ever will happen).  A trial judge in 

    Virginia recently gave 200 people who had been summoned for jury duty but who had failed to appear a lecture on the importance of the role of the jury in our judicial systems. “Jurors perform a vital role in the American system of justice,” Circuit Judge Jerrauld Jones told him at Friday’s court hearing, noting that the Founding Fathers thought they were so important, they put jury trials in the Bill of Rights.  “Jury trials prevent tyranny,” Jones said.  Judge Jones was, apparently, in a generous mood as he forgave their $100 fine and several people exclaimed “Thank you!” and “Bless the Lord!” when Jones told them he was dismissing the cases against them.

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As many of you know, I often watch oral arguments in the Georgia Supreme Court via its livestreaming capability on its website.   I encourage you to watch, as well. If you are reading my blog it means you must be interested in Georgia law, and what better way to gain some insight than to watch arguments before the State’s highest court? Having available online the live streaming of oral arguments really is a public service to Georgia citizens and a nod to open and transparent government from the Judicial Branch of Georgia government.

I wanted to let you know that tomorrow, February 7, 2016, an interesting and very sad case will be argued before the Georgia Supreme Court, City of Richmond, GA v. Maia.  I blogged about the Maia case when it was before the Georgia Court of Appeals.  My blog then asked “Who is legally responsible for suicide?”  Suicide and suicide prevention has been an interest of mine since one of my dear friends committed suicide in 2012, when I was President of the State Bar of Georgia. His suicide led me to form the State Bar’s Suicide Prevention Campaign “How To Save a Life.”  The issue of who is to blame for suicide is squarely before the Georgia Supreme Court now.  The City of Richmond argues you can never blame a third party for someone’s suicide because suicide is also an independent, intervening act.  This is based on years of rather old Georgia case law.  But we know now, after suicide prevention has become more of the public conversation and as open discussion about suicide is helping to remove the stigma associated with suicide, that sometimes it seems suicide can often be traced directly back to bullying of the victim by third parties.  It will be an interesting case to watch. My good friend Carl Varnedoe will be arguing for the Plaintiff and my good friend Pat O’Connor will be arguing for the City of Richmond.  Below is the Supreme Court’s case summary. I’ll keep you posted, as promised.

Tuesday, February 7, 2017 10:00 A.M. Session