Articles Posted in Personal Injury

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By now we have all heard of the Alabama Supreme Court decision holding that frozen embryos are “unborn children” under Alabama State Law. This was the holding in LePage v. Center for Reproductive Medicine, issued on February 16, 2024. Although much hay was made out of a concurring opinion that quoted the Bible extensively, the primary opinion was based squarely on Alabama State Law only, specifically the Alabama Wrongful Death of a Minor Act. You can read the full, actual opinion here. 

In LePage, three couples had their frozen embryos destroyed in an incident at a fertility clinic. The plaintiffs in the Alabama case had undergone IVF treatments that led to the creation of several embryos, some of which were implanted and resulted in healthy births. The couples paid to keep other embryos frozen in a storage facility at the Mobile Infirmary Medical Center. A patient in 2020 wandered into the area and removed several embryos, dropping them on the floor and “killing them.”

The justices ruled that wrongful death lawsuits by the couples could proceed. Justices, citing anti-abortion language in the Alabama Constitution, ruled that an 1872 state law allowing parents to sue over the death of a minor child “applies to all unborn children, regardless of their location.””Nothing about the [Wrongful Death] Act narrows that definition to unborn children who are physically “in utero.”

Drive Safer Sunday is November 26

this year nearly 30 million passengers will travel in their cars for the thanksgiving holiday

Senator Warnock (D-GA) and Senator Capito (R-WV) introduced and passed a bipartisan resolution to designate the Sunday after Thanksgiving as DRIVE SAFER SUNDAY.  The Sunday after Thanksgiving is one of the busiest travel days of the year, and it’s also one of the deadliest.  We are thankful that Senator Warnock and Senator Capito introduced this resolution to help raise awareness about the importance of safe driving, especially during the holiday season.

In Georgia, there were 18 traffic crash deaths during the 2022 Thanksgiving holiday period. In addition to fatal crashes, there were nearly 600 traffic crashes statewide during this period, resulting in almost 300 injuries. From 2017 to 2021, 82 Georgians were killed in traffic crashes during the Thanksgiving holiday period and there was a total of 16,171 traffic crashes reported that resulted in 5,727 injuries.

“Since the Sunday after Thanksgiving is one of the most congested road traffic days of the year and the day our son, Cullum, was killed while driving back to college, we hope that Drive Safer Sunday will encourage extra focus on safe driving that day,” said Steve and Susan Owings, Co-Founders of Road Safe America and Institute for Safer Trucking board members. “We also hope that this safety focus will be carried on during the holiday season and all year around.”

This Bi-Partisan Resolution encourages:

1.       K-12 schools, colleges, teachers, and administrators to launch campus-wide educational campaigns to urge students to focus on safe driving;

2.       Trucking firms to alert employees to focus on safe driving the Sunday after Thanksgiving and publicize its importance on the Citizens Band Radio Service and at truck stops;

3.       Clergy to remind congregations to travel safely when attending services;

4.       Law enforcement to remind drivers and passengers to drive safely;

5.       Americans wear seat belts and educate themselves about highway safety.

First introduced in 2005, this resolution has historically been a bipartisan effort led by one of Georgia’s U.S. Senators. The effort was started by Steve and Susan Owings, board members of the Institute for Safer Trucking from Atlanta, whose son Cullum was tragically killed in a truck crash after returning to college from their family Thanksgiving in 2002. Since Cullum’s passing, Steve and Susan Owings have advocated for safer trucking and have worked with Georgia’s Congressional delegation to introduce this resolution. As a member of the U.S. Senate committee overseeing the nation’s transportation policy, transportation safety will always be a priority for Senator Warnock.

I am wishing each of you a Happy and Safe Thanksgiving.

 

Robin Frazer Clark is a trial lawyer who pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia, a Past President of Georgia Trial Lawyers Association, a Past President of the Lawyers Club of Atlanta and has practiced law in Georgia for 35 years. She is a member of the International Society of Barristers and of the American Board of Trial Advocates. She is a Fellow of the American College of Trial Lawyers. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and the Top 25 National Women Trial Lawyers and is a Georgia Super Lawyer. Ms. Clark is the co-host of the podcast “See You In Court,” sponsored by the Georgia Civil Justice Foundation.  Ms. Clark has tried over 75 jury trials and argued in Georgia Appellate Courts over 45 times.

Robin Frazer Clark ~ Dedicated to the Constitution’s Promise of Justice for All.

 

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A large part of my law practice is representing people who have been seriously injured in traffic or road collisions. This  includes not only drivers and passengers of vehicles, but also many pedestrians. The photographs above are just a small example of the carnage that occurs on Georgia roads every day. I am currently representing the family members of two separate families who have lost loved ones when they were killed as pedestrians on Donald Lee Hollowell Parkway in Atlanta.

Sunday marks the World Day of Remembrance for Road Traffic Victims.  It is a high-profile global event to remember the many millions who have been killed and seriously injured on the world’s roads and to acknowledge the suffering of all affected victims, families and communities – millions added each year to countless millions already suffering: a truly tremendous cumulative toll. This Day has also become an important tool for governments and all those whose work involves crash prevention or response to the aftermath of crashes, since it offers the opportunity to demonstrate the enormous scale and impact of road deaths and injuries, call for an end to the often trivial and inappropriate response to road death and injury and advocate for urgent concerted action to stop the carnage.

“As every year, the objectives of WDoR 2023 are to provide a platform for road traffic victims and their families to:

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A recent opinion by the The Georgia Court of Appeals, our Intermediate Appellate Court in Georgia, regarding Georgia’s obsolete “impact rule” certainly caused an impact, and not a good one.  In Holt v. Rickman, A23A0612, 2023 WL 3858619 (Ga. Ct. App. June 7, 2023) an apartment guest brought action against owners and manager of apartment complex, asserting claims for premises liability and negligent hiring, retention, and supervision after she awakened to discover maintenance worker in her bed.

The facts of Holt are startling, to say the least.  A guest of a resident staying in one of the apartments woke up to find an intruder lying next to her on top of the covers on the bed. The intruder was actually a maintenance employee of the apartment complex. He pulled the covers down saying he wanted to “see what she looked like under there.” As he did so, he touched the top of her head. The woman pretended to reach for a weapon and that caused the intruder to flee. As you can imagine, this bizarre incident had to have been frightening. During litigation it was discovered that the apartment complex hired the intruder/maintenance employee in 2016 despite a background check showing he had two pending child molestation charges. He had pled guilty to lesser charges of sexual battery against a child under the age of 16. He was on the Georgia Sexual Offender Registry. The Defendant, with this knowledge in hand,  continued to employ him as a maintenance worker with access to a master key, which led to his ability to break into the apartment and to attempt to sexually assault the plaintiff.

The Georgia Court of Appeals held that Georgia’s antiquated “impact rule” applied to the situation and affirmed the grant of summary judgment to the apartment complex. Case dismissed. The “impact rule” is not state-of-the-art science about how an event can affect someone emotionally or psychologically. In fact, it was created in 1892, when there was very little understanding, if any, of psychological trauma. The “impact rule” says that when a person suffers no physical injury as a result of the  incident that forms the basis of the claim, there is no recovery for emotional distress. Georgia’s “impact rule” provides that “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Ryckeley v. Callaway, 261 Ga. 828, 828, 412 S.E.2d 826 (1992). To satisfy the rule, a plaintiff must show that she (1) suffered a physical impact that (2) resulted in a physical injury which (3) caused her mental suffering or emotional distress. Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (I), 533 S.E.2d 82 (2000). A plaintiff’s failure to meet any one of the three requirements of the impact rule bars recovery even in cases “in which the circumstances portend a claim of emotional distress.” Id.

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I am happy to see that the Cobb County, Georgia District Attorney has now made the decision not to retry Ross Harris for the murder of his child when he left his child, Cooper, in a hot car. You may recall that the Georgia Supreme Court reversed the conviction in a  strongly worded opinion.  The Cobb County District Attorney’s office waited for almost a year before making the decision not to retry Harris for murder. Tip of the cap to Mr. Harris’s attorneys, Max Kilgore, Carlos Rodriguez and Bryan Lumpkin, who never gave up even after their client was convicted back in 2016. They have always maintained that Harris was a loving father and the boy’s death was a tragic accident.“Ross has always accepted the moral responsibility for Cooper’s death,” they said in a statement after the charges were dismissed. “But after all these years of investigation and review, this dismissal of charges confirms that Cooper’s death was unintentional and therefore not a crime.”

You may recall that I wrote a blog post back in June 2022 when the Georgia Supreme Court reversed the conviction of Ross Harris for killing his child by leaving him in a hot car. I thought then it was a prosecutorial overreach and that Mr. Harris never should have been tried on murder charges for the death of his son. My reasoning was based upon study after study showing how easy it is to forget you have a child in a car seat in the back seat, especially if your usual daily schedule is changed ever so slightly.  Now, there are numerous cellphone applications (“apps”) that tell you to check the backseat and make sure you don’t leave your child there in the car. Waze Child Reminder and Kars for Kids are a couple of examples. Also, some newer model cars include such reminder to check the back seat and there are now child seat alarms that will alert you if you accidentally leave your child in his or her car seat. One low-tech suggestion is to leave a stuffed animal in the front seat to remind you your child is in the back seat. When my husband and I were raising our children, who are now adults, we didn’t have anything like that to help and it was a constant worry for us. In fact, there was a news report yesterday that an 11 month old baby girl died in a hot car when her parents left her in their car while they attended church.

At trial, the Cobb County prosecutors admitted a lot of evidence regarding Mr. Harris’s communications through the internet with women he wanted to have sex with. Some of these people turned out to be minors. It seemed as if the prosecution was trying to prove that Harris was not a nice guy.  And they did that. But that evidence had nothing to do with leaving Cooper in a hot car in his car seat in the back. The Georgia Supreme Court  upheld Harris’ convictions on three sex crimes committed against a 16-year-old girl that Harris had not appealed. He received a total of 12 years in prison for those crimes, and he will continue to serve that sentence, the district attorney’s office said.

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I don’t often write about appellate opinions from appellate courts of states other than Georgia, but as I was reading some recent appellate opinions, the Virginia case of Morris v. Commonwealth of Virginia, No. 1194-21-2 (VA Ct. App. May 9, 2023) and not for good reasons.  Morris involves Virginia’s overdose reporting statute,  Va. Code Ann. § 18.2-251.03(B)(2)Georgia has a similar statute but ours is arguably not as restrictive as Virginia’s and hopefully, our Georgia Appellate Courts won’t interpret it as strictly.

In Morris, Henrico, Virgina police officers observed a white Ford Edge trying to turn onto the road next to an emergency room. The vehicle nearly struck a curb in the turn lane and then stopped in the middle of the road, blocking through-traffic. The officers approached the vehicle, driven by Morris, and asked him to park the car. Morris said that “he was there to get help,” telling the officers that he had smoked crack cocaine. The officers thought he appeared to be under the influence of drugs and escorted Morris into the emergency room. As medical personnel drew a blood sample, Morris “made suicidal statements.” In response to law enforcement questioning, Morris said that he worked at Food Lion; he was high while at work and asked to sit in his boss’s car to call his mother; he had called his mother “because he was thinking about committing suicide”; and he had driven away from the Food Lion and had driven around awhile before heading to the Short Pump emergency room. When asked whether his mother had told him to “go to the ER,” Morris said he “chose to do so himself” because “he was thinking about suicide.” When an officer asked why he was considering suicide, Morris responded, “drugs.” Morris said that he used heroin, fentanyl, and cocaine, that he had smoked crack cocaine in his boss’s car, and that he “came to the ER to get help for the suicidal thoughts and his drug problem.” Morris alerted the officers to a crack pipe in the vehicle, which they found tucked in the crevice of the passenger seat.  Morris v. Commonwealth, 1194-21-2, 2023 WL 3310315, at 1–2 (Va. Ct. App. May 9, 2023).

The Virginia overdose amnesty statute provides full immunity from “arrest or prosecution” for qualifying individuals (prior versions had characterized the immunity as an “affirmative defense”). It was amended to cover not only someone who helps another experiencing an overdose, but also the person who “is experiencing an overdose”—assuming other criteria in the statute are met. Before these expansions, we observed that the “clear purpose” of the law was to “encourage … prompt emergency medical treatment [for] those who have suffered an overdose as a result of ingesting a controlled substance.”  Georgia’s drug overdose amnesty statute is similar.  But the Virgina statute has a curious requirement that the statute does not apply unless the individual “remains at the scene of the overdose or at any alternative location to which he … has been transported until a law-enforcement officer responds to the report of an overdose.” 

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I recently had the distinct honor of representing Damien and D.J. Bostick for the death of their wife/mother, Vicky Bostick, in a rear-end collision by a tractor-trailer. We have resolved part of the case and now continue to fight for Justice for the Bosticks in another, separate products liability lawsuit. Vicky was only 50 years old on the day she died, which also just happened to be her 25th Wedding Anniversary with her husband, Damien. “Tragic” is not a strong enough word to describe this tragedy.  It is unspeakable.

I have had the pleasure of getting to know Damien and D.J. and their incredible family during this process. This is one of the many things I love about doing what I do. My clients become like family to me. I represent many families who have lost a loved one because of someone else’s negligence. A family never “gets over” the sudden, senseless death of their loved one. They have to find a way to live on without him or her. The deceased loved one is always with them. I have found that families who do something to memorialize their loved one’s life and time here on Earth, something tangible to remember their loved one by and honor their loved one, handle the overwhelming grief the best.

The Bosticks have joined iThink Credit Union and the iThink Community Foundation, where Vicky worked as a Mortgage Originations Manager at the time of her death, to establish a scholarship for a student from Marietta High School, D.J’s alma mater, in Vicky’s name. It it called “The Vicky Bostick Memorial Scholarship” and candidates for the scholarship must be graduates of the Mentoring for Leadership program. Here is what iThink said about Vicky:

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Last month I had the distinct and unusual honor of being a guest of my client, Carelle Karimimanesh, at the Georgia State University Law School Scholarship Donor Luncheon, to recognize Carelle for creating a law school scholarship in memory of her daughter, Naiyareh “Nai” Karimimanesh, with proceeds she received as a result of a settlement of a case for the wrongful death of Nai, in which I represented her.  The scholarship is named the Naiyareh Karimimanesh Memorial Scholarship. Carelle also endowed a moot courtroom at Georgia State University in honor and memory of Nai, who graduated from Georgia State Law School.

Naiyareh Karimimanesh was born on May 17, 1979 in San Francisco, California.  Nai graduated from Emory University in Atlanta where she graduated with a BA in History and minors in Religion and Persian (Farsi) in 2001. Her life and education were enhanced by summer study in Israel and Jordan. Nai was also an active member of the Emory Baha’i Club. While at Emory, Nai was a Jimmy Carter Presidential Center Intern, a University Senator, and a Senior Resident Advisor. She was a leader in the Residence Life Community and was respected and admired by all of her residents and the administration at Emory University. Nai earned her Juris Doctorate from Georgia State University in

2005.

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Often, when there has been a string of trial victories for the plaintiff, the defense bar overreacts and calls for a wholesale change in our Civil Justice System. This often includes a feigned outrage over plaintiff’s attorneys’ contingency fees, as if how a plaintiff’s attorney is paid for their success is the root of all evil in the Civil Justice System (or even any business of the defense attorney or the Court). Some defense attorneys even go as far as calling for an end to all contingency fees for plaintiff’s attorneys, or at least that some very small percentage be used as a cap, as if the Legislature has some authority to intervene in a lawyer’s ability to contract with her client. We know that some of this mock outrage by defense attorneys is all for show for their clients. But it sure gets old. Just see the look on their faces when you suggest that defense lawyers only get paid if they are successful at trial. They will end that discussion pretty quickly.

The constant attack of plaintiff’s lawyers and the contingency fees by which plaintiff’s attorneys are paid makes me think of the critical role contingency fees play in our civil justice system. It is not a stretch to say that without contingency fees, most injured plaintiffs would never be able to bring a case to seek Justice for their injuries. What person who has been seriously injured in a car wreck, for example, who cannot return to work due to those injuries and has no income coming in even to pay for groceries, could possibly afford to hire an attorney and pay him/her an hourly fee to bring a civil case for his injuries?  Add to that the fact that the average length of a civil lawsuit now is easily 3-5 years. No individual could possibly continue to pay an attorney an hourly fee for 3-5 years of work to bring a personal injury case for Justice, plus the necessary expenses to bring a case to trial. Enter the contingency fee. A contingency fee allows such an injured individual to hire a good trial lawyer who is willing to bear the risk and expenses of bringing such a personal injury case to trial for the individual. The client owes the attorney a fee only if and when the attorney is successful for the client. It works perfectly.

Yesterday, a Virginia Court pointed out this critical value of a contingency fee in a personal injury case.  In determining that a plaintiff’s attorney’s contingency fee of 1/3 of the recovery was reasonable, the Virginia Court noted: “A contingent fee may permissibly be greater than what an hourly fee lawyer of similar qualifications would receive for the same representation.” Restatement (Third) of the Law Governing Lawyers, supra, § 35 cmt. c. That is so because “contingency fee agreements transfer a significant portion of the risk of loss to the attorneys taking a case.” Portsmouth 2175, 298 Va. at 334, 837 S.E.2d 504 (quoting In re Abrams, 605 F.3d 238, 246 (4th Cir. 2010)). “A lawyer might expend considerable effort” only to recover nothing. Id. Or “a lawyer may expend minimal time on a case and obtain a full recovery.” Id.  Moncrieffe v. Deno, 0342-22-2, 2023 WL 362445, at 4 (Va. Ct. App. Jan. 24, 2023).  The Moncrieffe Court took the opportunity to sing the virtue of contingency fees and their necessity in a fair and smoothly working civil justice system. See generally Restatement (Third) of the Law Governing Lawyers, supra, § 35: “Contingent-fee arrangements perform three valuable functions. First, they enable persons who could not otherwise afford counsel to assert their rights, paying their lawyers only if the assertion succeeds. Second, contingent fees give lawyers an additional incentive to seek their clients’ success and to encourage only those clients with claims having a substantial likelihood of succeeding. Third, such fees enable a client to share the risk of losing with a lawyer, who is usually better able to assess the risk and to bear it by undertaking similar arrangements in other cases (cf. Restatement Second, Agency § 445.”  Moncrieffe v. Deno, 0342-22-2, 2023 WL 362445, at 4 (Va. Ct. App. Jan. 24, 2023).

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