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Articles Posted in Personal Injury

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Should your child’s university or college take steps to make sure his or her bunk bed is safe?  Either by lowering the upper bed or, if that cannot be done, by providing railings to keep the child from rolling out of the lofted bed?  This not a trick question. It may seem like common sense to you. The simple answer should be an easy “yes.” Right? But as Coach Lee Corso says on “College GameDay,”  “Not so fast!”

College students’ being injured by falling out of their bunk beds is, apparently, a fairly common and significant problem. You may remember the story of Clark Jacobs, a Georgia Tech student who fell out of his lofted bed in his fraternity house. He fell 7 feet from his bed to the hard floor of his room. He was diagnosed with a fractured skull and a brain bleed which then led to a stroke. Five years later and hundreds of hours of therapy, including in-patient rehabilitation at Shepherd’s Spinal Center, Clark graduated from Georgia Tech this summer.

The life-changing episode motivated Clark’s parents so much to try to make dorm rooms safe for students they started the non-profit Rails Against The Danger, whose mission is to educate the public about the danger of lofted beds in dorm rooms and to let students they have the right to demand the university make the bed safe by lowering it or providing safety bed rails.  It is estimated there are approximately 71,000 cases of loft bed/bunk bed-related injuries annually among children and young adults up to 21 years of age. Let that sink in. Some of these falls result in the death of the student. For example, at Miami University in Ohio, a 20 year old student died from a 6 foot fall from his bed in his fraternity. For a risk with potential outcomes so catastrophic, it is truly difficult to understand why universities just don’t simply provide bedrails and ladders with every bunk bed. As Clark Jacobs’s mother points out: “It is ridiculous to take a chance when the danger is so easily avoided. Many campus bunk beds don’t even have ladders, requiring the students to climb up the bed frame to get into bed,” she said.

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You may have heard of the recent death of a Milton high school teacher due to carbon monoxide poisoning while she was in her town home.  At least seven people in the connected town homes were injured, some seriously, by this carbon monoxide poisoning episode. It was so tragic and unexpected. The situation is still under investigation, but officials say they believe the exposure at the town homes was caused by an unoccupied vehicle left accidentally running in one of the town home’s garages. Investigators have since determined someone left their car running in their garage, sending the carbon monoxide through the adjoining homes.

Although this tragedy invoked the call for more people to have carbon monoxide detectors in their homes, I was surprised it didn’t also create an outcry that automobile manufacturers change their faulty design of ignition buttons.  This is referred to as “keyless ignitions.”  It has been well known for some time now that ignition buttons like the ones shown above have a faulty design that doesn’t allow the driver to know easily whether they have successfully turned off their car. There have been numerous instances of people dying from carbon monoxide poisoning in their homes due to their car still running in their garage that is attached to their home. It is no secret that these ignition “buttons” are defective in design and utilization.

The photographs above are from a rental car I drove recently.  The only visible difference from these two buttons is that one has the very small “OFF” that appears to be illuminated in yellow and the other one has a very small “RUN” that appears to be illuminated in yellow. The one on the right is when the car engine is running. The one on the left is when the car engine is off.  Do you see how hard it is to tell the difference?  Sometimes these engines are so quiet the driver cannot tell whether he or she has correctly pressed the button all the way in to turn off the car. And because these cars have “fobs” now rather than actual keys, you may be carrying the fob in your pocket or in your purse and you may be still close enough to the car even when you are in your home that the car “thinks” the fob is still in the car and it will continue to run. When the garage is attached to the house, carbon monoxide fumes can quickly and easily travel into the home, sickening anyone inside. This is even more likely and foreseeable when the garage is attached to a town home, as it was in the recent tragedy in Milton. Not only did the carbon monoxide travel into the first town home where the running car was garaged, it continued to leak into the attached town homes, sickening others.

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I have noticed during this Coronavirus Pandemic that there are more bicyclists and walkers out on our streets than usual.  It seems everyone is trying to use the time they, otherwise, might be spending at their office, getting some much-needed exercise. Over the past two months, bicycle sales saw their biggest spike in the U.S. since the oil crisis of the 1970s. Sales of adult leisure bikes tripled in April while overall U.S. bike sales, including children’s’ and electric-assist bicycles, doubled from the year before. Sales of commuter and fitness bikes in the same month increased 66 percent, leisure bikes jumped 121 percent, children’s bikes went up 59 percent and electric bikes rose 85 percent. By the end of April, many stores and distributors had sold out of low-end consumer bikes. Now, the United States is facing a severe bicycle shortage as global supply chains, disrupted by the coronavirus outbreak, scramble to meet the surge in demand.

Unfortunately, with so many extra pedestrians and bicyclists on the street come more injuries from being hit by a car or truck.  This is especially true as walkers often walk in the streets themselves rather than the sidewalk to distance themselves from other walkers on the sidewalks. For bicyclists, many are hopping on bikes for the first time in years and may not be used to the traffic encountered on certain streets and the danger it brings.  In New York City, for example, bicyling injuires were up 43% during the Coronvirus crisis. I have not seen similar government-maintained statistics for Georgia, although the Department of Highway Safety does still have online a manual for bicycle riders from 2006.  You may find all of Georgia’s rules and ordinances regarding riding a bicycle on the Georgia Deparment of Highway Safety’s website, although it may be a little out of date.

I have represented numerous pedestrians and numerous cyclists in cases when they have been hit by a vehicle. Often, the driver of the vehicle does the right thing and stays with the cyclist and calls 911. But sometimes, the driver of the vehicle does the absolute wrong thing and leaves the scene and leaves the cyclist hurt and alone on the pavement. The vehicle driver who leaves the scene becomes a “John Doe,” identity unknown. Many injured pedestrians or cyclists may think there is nothing they can do to get justice in that situation, that the at-fault driver just gets away with it. But there is a little known method of recovery under the injured person’s uninsured motorist coverage, if the victim owns a car and it is insured with uninsured motorist coverage. That particular type of car insurance actually covers you as a pedestrian or cyclist if you are hit by an unknown vehicle, as long as there is some type of corroboration that it was, in fact, a vehicle that hit the person. Corroboration can be made by an eyewitness, physical evidence left at the scene, e.g., a car bumper torn off, damaged bike or possibly other evidence that you would expect to see in a vehicle v. bike collision.  Unless you practice this kind of personal injury law, like I do, you would have no reason even to be aware that your car insurance policy might cover you as a pedestrian or cyclist. It is not clear from reading most policies, and you sure can’t count on your insurance agent informing you of it.

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You may remember the hoverboard craze. About 5 years ago they took the United States by storm. With demand sky-high, multiple manufacturers ramped up production to cash in, they sold their products quickly, and no one asked questions. Shortly after their meteoric rise in popularity, hoverboards began earning headlines for the wrong reasons, and gained the reputation of a defective product. They began to overheat and catch fire. The defects and malfunctions were so common that hoverboards were banned in many places, ranging from college campuses, to theme parks, to public transportation. 

In one instance, a fire caused by a defective hoverboard resulted in an entire home being burned to the ground. Similar stories are not uncommon; unfortunately, defective products can have destructive results. Often the only recourse is filing a lawsuit against the seller and/or manufacturer of the product. In the case of the Fox family, whose home was burned to the ground, they filed a lawsuit against Amazon. As the world’s largest retailer, it is not uncommon for these types of cases to be filed against Amazon. It is equally as uncommon for Amazon to be actually held responsible for their role in the sale of defective products. 

The question at the heart of the complaints filed against Amazon is often whether Amazon is actually the ‘seller’ of the defective products. I have placed the term ‘seller’ in quotes because in different jurisdictions the term, ‘seller,’ can be defined in different ways. The responsibility for the product’s defections, and the resulting injuries rest on the ‘seller’ and/or manufacturer of the product. This raises a question of distinction that the court must decide… What constitutes a ‘seller’… and more importantly is Amazon a ‘seller’? 

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There have been some stories on the news lately about a student who was burned during a chemistry experiment performed during class. Back in August of last year, a teacher in a DeKalb County School performed a demonstration of lighting a dollar bill on fire using ethanol and water. She apparently had performed the same demonstration using just alcohol with little success. When the teacher tried the demonstration using ethanol, the dollar bill, in a glass, caught on fire, broke the glass and traveled across a table onto the student, who had his head down on the table. It severely burned the student.  The student hired counsel who has sued the teacher and the school. They are now reports in the news that the school system won’t pay for his reconstructive surgery.

This really is neither surprising or shocking. The DeKalb School system enjoys the benefit of “sovereign immunity,” which means it is immune from suit. County school systems, county agencies, county departments, really anything to do with counties, cannot be sued successfully for most causes of action.  Sure, you can file suit against them, but 9.9 times out of 10 it will be dismissed on summary judgment based on sovereign immunity.

There are a few exceptions. One example would be a lawsuit for violation of the Americans with Disabilities Act (ADA).  Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subject to discrimination by an such entity.”  A disabled person who falls within the class of persons protected by the ADA may successfully sue a county for violation of the ADA, for things such as failure to maintain a sidewalk in the county that inhibits that person’s ability to move on the sidewalk.  For example, if a person is confined to a wheelchair, she must be able to use the sidewalk as any capable-bodied person, so the sidewalk must have proper curb cuts to allow the wheelchair to gain access to the sidewalk and there must not be any holes in the sidewalk that would prevent the wheelchair from easily moving over the sidewalk.  Sovereign immunity does not protect a county when it has violated the ADA and it grants the disabled citizen a private cause of action to enforce it.  It is important for private citizens to be able to hold Georgia counties accountable for ADA violations as the number of people in the United States who are disabled in some form continues to rise. For example, it is estimated that one in 4 U.S. adults – 61 million Americans – have a disability that impacts major life activities, according to a report in CDC’s Morbidity and Mortality Weekly Report.  Of those disabled citizens, 13.7% have a mobility disability and an estimated 4.6% have a vision impairment. So you can why it is important that even counties not be immune for failure to comply with the ADA.  Disability affects us all.

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Does anyone else out there hate scooters?  For those folks still in denial about the risk/cost benefit analysis in riding scooters, you should know that scooter injuries  continue to climb.  A new report by the University of California San Francisco revealed Electric scooter-related injuries resulting in hospitalization more than tripled over five years nationwide.  The results showed nearly 40,000 injuries in the past five years, increasing from 6 per 100,000 people in 2014 to 19 per 100,000 in 2018. The number of hospital admissions — meaning injuries severe enough to require further medical attention — soared by 365% to nearly 3,300, the study found.

I’m not surprised. Are you?

Scooter injuries and even deaths have been in the news here in Atlanta nearly daily.  Mayor Keisha Lance Bottoms even outlawed use of scooters at night in the city due to four scooter-related deaths.  On any given day on my way to my office, which is in Downtown Atlanta, I see 2 or 3 near-catastrophic collisions with scooter-riders and cars or immovable objects. Surely, you have, too. Add a little alcohol consumed by tourists who think “it will be fun” to ride a scooter for the first time after having a few drinks, it is downright mayhem on our city streets.  I have seen two or even three people riding one scooter at a time. I have seen a scooter rider texting while scooting. I have seen a scooter rider with a back-pack on, drink in one hand and cell phone in the other. Anything goes.  It’s totally lawless!  Part of the cause of many scooter-rider injuries must be due to lack of skill and practice riding a scooter. “E-scooters have a narrow platform, can travel up to 15 to 20 miles per hour and require a level of coordination and skill that is often not native to many users,” said Aiza Ashraf, M.D., diagnostic radiology resident at the Indiana University School of Medicine in Indianapolis. “Whereas physical effort is required to get a bicycle up to speed, e-scooters are self-powering.”

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I have been recovering from hip replacement surgery (my second) these last two weeks and have watched a lot of daytime television while keeping my leg elevated and ice on my hip.  Although I have enjoyed the short sabbatical, I hate that it came only through the necessity of having a new hip implanted. But I am doing very well and expect to be back in my office next week!

One thing that I won’t miss  is watching so many lawyer ads on TV. I do not believe they improve our image as plaintiff’s personal injury lawyers and for lawyers like me who actually try jury trials, it is perfectly clear that our jurors hate these ads. I just recently tried a medical malpractice trial in DeKalb County (which resulted in a $2.35 Million verdict for my client) and many of the perspective jurors during jury selection talked about how they didn’t trust lawyers because of the ads they see on TV and generally, because of these lawyer ads, they were suspicious of our bringing a personal injury case to trial. I had to do a lot of work in jury selection to make sure those potential jurors understood I didn’t advertise and that my case they were about to sit on was a legitimate case in which my client’s mother had died due to medical malpractice. I hate that right out of the gate I had to deal with some other lawyer’s advertisement on TV, like the person in an ad who claims her lawyer got her $900,000.00 and she doesn’t even look injured!

One of the things I have noticed while being forced to watch these TV lawyer ads, is that most of them proudly promote that they don’t get paid unless you get paid, as if they are the only lawyers in the State of Georgia who will boldly make that promise.  Although their statement is true, they are not the only personal injury lawyers who don’t charge a client for their time unless and until they win or settle a case for the client. In fact, as far as I know, ALL plaintiff’s personal injury attorneys, in Georgia and the entire United States for that matter, make the same deal as these TV advertising lawyers who act like they have the monopoly on this arrangement. It’s called a contingency fee agreement and all personal injury lawyers use one to be retained to work for a client on a personal injury case. Please understand that the statement made by TV advertisers about this says absolutely nothing about their skills, ability and experience as a trial lawyer.  We all work under this arrangement.

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As I write this, many of the headlines in the news are about the so-called “shocking” suicide of alleged child sex trafficker, Jeffrey Epstein, who, allegedly, hanged himself while incarcerated in a Federal New York prison.  What is so shocking? The only thing shocking to me about this event is how the news media and on-lookers, including United States Attorney Bill Barr, think it is shocking for someone, who was known to be suicidal, predictably, takes their life by suicide.  I suppose it is only Mr. Epstein’s wealth and his ties to well-known, rich, influential people, including many politicians, that makes U. S. Attorney Barr suddenly express surprise and concern that incarcerated people are attempting suicide, many successfully, when many of them should have been on suicide watch in a Crisis Stabilization Unit (CSU) or an Acute Care Unit (ACU). We can do without the mock concern on the part of the U.S. Attorney.  This is happening right under his nose in  prisons every day and he only expresses concern when it is a wealthy person who does it?

Jeffrey Epstein’s suicide was foreseeable and predictable. Now it is being reported that he was not on a suicide watch, even though he had previously attempted suicide less than two weeks earlier. The prior suicide attempt placed him in the high-risk category for attempting again. Coupled with the fact that he was in prison for the first time awaiting trial with an indictment list that, if proven, would keep him in prison for the rest of his life (another risk factor for attempting suicide), Mr. Epstein was high risk for suicide attempt and should have been on suicide watch.

Unfortunately, this blatant disregard for the lives of inmates who are either mentally ill or acutely psychotic ( or both) and the risk it creates for them to take their own life, is prevalent in our nation’s jails and prisons.  It is particularly alarming in Georgia prisons.  As recently as just last week, the Macon Telegraph issued the results of its study into prison suicides and announced that Georgia’s rate has reached crisis proportions. Between 2014 and 2016, state records show that 20 state prisoners had taken their own lives. In the nearly three years since, 46 prison deaths were deemed suicides. Georgia’s prison suicide rate — at 35 suicides per 100,000 — is nearly double the national average. Between 2013 and 2014 alone, U.S. state prison suicide rates rose by nearly a third. And Southern states including Georgia, Alabama and Texas saw even larger increases in their rates. Georgia correctional officials believe one in five people incarcerated in state prisons have a documented mental health need.

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I was just put on a jury in a case that seems pretty clear cut.  So why am I here? Why is there a trial?

Many jurors may find themselves thinking this in a case in which the defendant is clearly at fault and the plaintiff is clearly injured. Most reasonable people, as jurors tend to be, would assume a clear liability case with clear injuries should be settled out of court. My concern is that when a juror is forced to sit on a jury in a case like this, the juror may very likely assume it must be because the plaintiff wanted too much money. But it seems to be a trend in many cases in Georgia that what actually has happened is that the insurance carrier for the at-fault defendant has refused to offer much, if anything, before trial, to try to resolve the case. This has been borne out many times in recent trials.

For example, in a case tried in Whitfield County, Georgia (Dalton) a jury entered a verdict in the amount of $21.6 million last month for a man who lost a leg after being struck by a pick-up truck as he walked toward a Whitfield County highway to stop traffic for a tractor-trailer.  The plaintiff’s medical bills were more than $411,000 and the insurance carrier didn’t even offer that much before the trial, according to plaintiff’s attorney. He said the insurance carriers never offered any meaningful settlement despite their client’s permanent, life-altering injuries and despite a court-ordered mediation.

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