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Articles Posted in Personal Injury

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I have been enjoying seeing posts on social media of families taking their college-aged kids to their colleges and universities and helping them move in to their dorm rooms. This is a rite-of-passage for many young people as they begin their college careers and are perhaps living away from their home and their parents for the first time in their lives. The personal injury attorney in me can’t help but notice on the many dorm room photos online of how many of the high bunk beds have bedrails installed versus how many don’t. And this is the problem: no high bunk bed in any college dorm room should be without a bedrail installed.  The photograph above makes me happy because it shows a high bunk bed with a bedrail installed. This student will be safe when sleeping in this high bunk bed.

This issue came to light several years ago when Clark Jacobs, then a Georgia Tech student,  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 and hundreds of hours of therapy later, including in-patient rehabilitation at Shepherd Center, Clark graduated from Georgia Tech in the summer of 2020.  I blogged about this incident last year and about a similar incident that happened to a young woman who was a student at Valdosta State University. That woman sued the Georgia Board of Regents and lost her case in the Georgia Court of Appeals. Valdosta State Univ. v. Davis, A20A1036, 2020 WL 4745074 (Ga. Ct. App. Aug. 17, 2020). Her attorneys petitioned the Georgia Supreme Court for Certiorari, but the Supreme Court declined to hear this case earlier this year, which means the Georgia Court of Appeals’ opinion stands.

Following my September 2020 blog on college bedrails,  Mariellen Jacobs, Clark Jacobs’s mother, reached out to me to discuss this ongoing problem. Given the fact that she had witnessed her son’s injury and recuperation first hand from an incident that, arguably, never should have happened in the first place, Mariellen Jacobs has become quite an expert on this subject matter. Her son endured a long recovery at Shepherd Center with medical bills totaling over $1 Million dollars. In Georgia, through the work of her foundation, Rail Against the Danger, Ms. Jacobs was able to convince the University System of Georgia (and all 26 state campuses) to become “rails ON” so that at residence hall check-in, every elevated bed has a safety rail in place to prevent injury. You can find information online that indicates that in at least a Georgia dorm room, a bedrail must be installed on the top bunk.  You will find this language in the Georgia Tech Housing and Residence Life webpage:

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July 1 always welcomes in the new laws passed by the Legislature in the last Legislative session. Tomorrow Georgia will have several new laws that go into effect, many of which you may not be aware.

The first you should know about is “Joshua’s Law,” codified at O.C.G.A. § 40-5-10.  The genesis of this law is the untimely and unnecessary death of Joshua Brown, son of LuGina and Alan Brown back on July 1, 2003. It is ironic that the law in his name goes into effect on the 18th anniversary of Joshua’s death.  I had the distinct honor of representing LuGina and Alan in a successful wrongful death lawsuit in Fulton County against the Georgia Department of Transportation.  We tried that case to a jury and settled it on the last day of trial. Joshua then was 18 years old at the time of his death. He had been admitted to the Berklee School of Music and wanted to be a musician. I can remember when LuGina testified she talked about visiting Berklee with Joshua and when she saw the campus and all the students walking around she saw “a hundred little Joshuas.” I have never forgotten that moment in trial. It was so moving. Our lawsuit involved the negligent maintenance of the road Joshua was on when he lost control of his truck due to hydroplaning, ran off a steep, unprotected hillside and crashed into a tree. The Browns immediately threw their grief into action by creating “Joshua’s Law” and began lobbying the Georgia General Assembly for passage of the law that would mandate driver education in every high school in Georgia.  The Browns were the recipients of the Georgia Trial Lawyers Association’s Courageous Pursuit of Justice Award for their relentless pursuit of justice against the Georgia Department of Transportation and for the creation of the new law “Joshua’s Law.”  The substance of the new law is as follows:

Effective: July 1, 2021

joe-caione-qO-PIF84Vxg-unsplash-300x200Despite the enormous popularity of dogs—nearly two-thirds of Americans live in a household with one or more domesticated canines—these animals are still capable of inflicting serious injuries. And, unfortunately, dog bites are more common than many people think, as 800,000 people receive medical attention for dog bites each year in the U.S. In addition to bites, dogs can sometimes bump into people and cause falls, which often result in injuries. If you are wondering about the process in Georgia for recovering money after a dog bite or attack, please keep reading to gain some important information.  

Three Elements to Prove

Victims of a dog bite or attack in Georgia have to satisfy all three elements of the state’s dog bite statute in order to collect damages. Victims, or a victim’s family, must show that: 

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Have you received something like this lately from any corporation?  It is a “forced arbitration” clause in which a corporation unilaterally revokes your right to a jury trial should it cause you harm or damages in any way. This forced arbitration clause is AT & T’s version. Rather than telling you “Hey, Customer, we have taken away your right to trial without your consent,” they say “We have updated your contract terms.”  Further, rather than simply telling you that AT & T is taking away your right to a jury trial regarding any dispute you may have with it, AT & T ridiculously states “We have simplified and updated the contract terms….”  Then the unilateral notice says:

                                                                        “we will resolve any disputes by individual arbitration and not by jury trial or class action. 

                                                                        Your continued use of AT & T service tells us you accept and agree to be bound by the Consumer

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You may remember I wrote recently about the Georgia Supreme Court’s opinion in Nuckles v. State, 853 S.E.2d 81 (December 2020) in which the Supreme Court made it crystal clear that a loved one has the absolute right to place a hidden camera in a loved one’s room in an assisted living facility or long-term care home and that video from such a camera is admissible in court. And, of course, it should be. The resident or patient is considered an “occupier” of that property, i.e., his or her room, and may videotape what occurs on his “property.” Nuckles is a well-reasoned, common sense opinion authored by Judge Carla Wong McMillian and concurred in by all the other members of the Georgia Supreme Court, except Justice Warren who simply didn’t participate in the opinion for some reason.

That you should be able to videotape what treatment your loved one is getting in a long-term care home, and then when that videotape shows abuse by a caregiver, that you should be able to admit such videotape into evidence at trial does not seem to be a partisan or political position at all, does it?  Don’t both Republicans and Democrats alike want the very best care for their aging loved ones and don’t Republicans and Democrats alike want to hold someone who would abuse their loved one accountable? That only makes sense, doesn’t it?

Well, not so fast. Enter the Republican-controlled Georgia House of Representatives and the Republican-controlled Georgia Senate with the help of the nursing home lobby. The Georgia Legislature decides it’s not such a good idea to be able to hold abusers accountable through hidden camera videotape, taken in the resident’s own room (their “castle” so to speak) and file a bill to undo Nuckles.  This march to overturn Nuckles legislatively only two months later  started with HB 605.  This bill actually provided for criminal prosecution of anyone who set up a “nanny cam” in their loved one’s long-term care room. So imagine this:  your parent suffers from dementia and lives in an assisted living home. You suspect he is being abused both physically and emotionally by the staff, so you set up a hidden camera to see how they treat him while you are not present. Sure enough, your “nannycam” video shows a staff member slapping your parent. You want to bring criminal charges against the person for abusing your parent.  But HB 605 would have actually authorized criminal charges against you! That bill passed the House. So on to the Senate. It was placed on the calendar to be voted on on the last night of the General Assembly session. There, Senator Jen Jordan, and several other open-minded Senators, successfully amended the bill to eliminate the criminal prosecution provision in the scenario I laid out above. So the Senate passed that bill as amended. Now back to the House, during the final hours on the final day of the 2021 session.  But once the piece in the bill making it illegal to have hidden cameras was no longer in the bill, the bill lost its only reason to exist in the first place! No need to pass a bill that essentially says nothing. The folks behind this bill wanted a law against hidden cameras because they can be used to hold these homes and “caregivers” liable for harming their residents.  The House refuses to agree (by the narrowest of margins) to the Senate Substitute and so no law passes. The vote on this was 88 against and 77 in favor, so only an 11 vote margin. This law now is still out there to be picked up again by the Legislature when they begin their 2022 General Assembly Session.

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Videocameras are everywhere today. They have become a normal, integral part of our lives. Many of us carry a videocamera with us everyday, everywhere we go, on the cellphone we carry with us.  We have “apps” on those cell phones that have as their soul purpose the easy viewing and sharing of videos.  We can text videos to one another. It seems to be our instinct now that when we see something interesting, we immediately pull out our cell phone and start videotaping. Some people have made a lot of money selling those videotapes to advertisement companies to use in commercials.  If you just “Google” “rat dragging pizza” you will find one such video that became so popular the person who filmed the video of the rat dragging the pizza sold the video and made alot of money from it.  There is no question that many instances of police brutality and excessive force would never have even come to light if it were not for a videotape of it. The murder of Ahmaud Arbery is one such case. Ahmaud’s killers may very well have gotten away with their crime without any accountability in the criminal justice system had there been no video of the shooting.  Many states are now making it mandatory that all officers wear “bodycams” that record an arrest or interaction with a citizen. In our prisons, correctional officers wear bodycams and even have numerous “use of force” cameras stashed away throughout a prison floor that the officers can quickly grab to film any interaction with an inmate. Some of us wear “Go Pros” on our bodies while we are engaging in some activity we believe is particularly athletic, so we can brag to our friends later “Look what I did!”  Many of us have Ring videocameras on our front doors so we can see who is at our door when the doorbell rings or see when a package has been delivered. I even have a client who used a Ring videocamera in their daughter’s bedroom to record her nocturnal seizures.  We have babycams that capture what infants do in their cribs when they are really supposed to be sleeping. Videocameras are in our elevators, in our parking garages and in our convenience stores. We have a “Furbo” which is a dog videocamera that records when our dog is barking or moving around or just sleeping. It even allows us to throw him a treat remotely from my cellphone from wherever I may be. I have to admit that “Furbo” still blows me away.

So it comes as no surprise that families who have loved ones living in nursing homes or long-term care homes would think it a good idea to place a camera in the room of their loved one to keep an eye on him or her while the family can not be there in person. Many families are, sometimes, rightfully worried that their loved one may be experiencing abuse at the hands of some of the employees of the nursing home. We are all familiar with cases where that has happened. Last year in a highly publicized case in Cobb County, Georgia an employee of an assisted living facility was tried for murder for the death of a 91 year old resident who died in 2017. The employee was found guilty of elder abuse but not of murder.

This begs the question:  Is it legal to place a camera in your loved one’s room in an assisted care facility? Maybe you are thinking only a lawyer would even think about that. It seems so clear and obvious that yes, of course, you can place a camera in your loved one’s room.  That’s the smart and loving thing to do. Who would possibly question that?

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If you’ve ever scrolled through network TV in the middle of a weekday, you’ve probably come across one or many commercials for personal injury law firms. One of the phrases these advertisements throw around are “pain and suffering.” This isn’t just a snappy expression designed to get your attention; in Georgia, pain and suffering is actually a legal item of damages. In other words, you might be awarded money to compensate you for your pain and suffering after a serious personal injury. 

Economic vs. Non-Economic Damages

After you submit a personal injury claim or file a lawsuit, the other party will begin determining a proper payout (assuming it is determined that you deserve compensation in the first place). The first order of business is calculating your economic damages. These are expenses that have a particular dollar amount attached to them. Common economic damages are lost wages, doctor bills, pharmacy bills, and general medical costs. 

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Having spent several days at home for the Holidays, I was struck (and not in a good way) about how many commercials there are on TV for personal injury lawyers. It is NON-stop. And the same goes for social media, where plaintiff’s lawyer after plaintiff’s lawyer is shown in a video bragging about themselves. It’s sickening, and I don’t think these commercial appearances enhance our reputation at all.  Just the opposite. So I thought I would take a moment to list a few things that a person like you who has recently been injured due to someone else’s negligence should consider before hiring one.

  1. How many cases has the lawyer actually tried for a plaintiff in front of a jury?  I have seen some young lawyers bragging online about their one awesome verdict, which begs the question: How many cases have they actually tried?  Have they tried only one case and it came out well for the plaintiff?  Potential clients should ask this question. In 32 years of practicing law, I have tried over 75 jury trials to verdict, some lasting 2-3 weeks. This is critical information. Hopefully, as a plaintiff, this is the only case you will ever have in your life. If it were surgery, would you want a doctor who had performed only one surgery before yours?  Or would you want one who had done  100 of them?
  2. Is the lawyer on TV even licensed to practice law in Georgia? I am constantly amazed by the fact that some of the TV advertising lawyers are not even licensed to practice law in the State of Georgia. This means they haven’t studied and worked with the laws of our state and they certainly haven’t tried a case in a state court of Georgia. You have a right to know this and you can easily find this out by going to the website of the State Bar of Georgia at https://www.gabar.org/.  On the home page there is a search box titled “Member Directory.”  This is a resource available to the public and you can put a lawyer’s name in it and see whether they have a Georgia law license. You can also see where the lawyer went to law school and see what year he or she graduated from law school, which tells you how much real world experience the lawyer has. It also tells you whether there is any “discipline” on record for that particular lawyer, which means whether that lawyer was ever found to have violated the ethical or professional rules of conduct. This is crucial information everyone should have before hiring a plaintiff’s personal injury lawyer.

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Friends:

I am happy to share with you that I have recently begun co-hosting a podcast called “See You In Court.” “See You In Court” is a podcast sponsored by the Georgia Civil Justice Foundation, on which I sit as a Board Member.  My co-host is Lester Tate, partner and owner of the law firm Akin & Tate in Cartersville, Georgia.  Lester is also, as I am, a Past President of the State Bar of Georgia and is also a Board Member of the Georgia Civil Justice Foundation.

“See You In Court” podcast is a joint project of the Georgia Civil Justice Foundation and the Georgia Institute of Technology School of Literature, Media and Communication. The Georgia Civil Justice System is a nonprofit foundation whose mission is to educate the public about the Georgia Civil Justice System and its value to the public in enforcing rights and holding negligent actors accountable for injuries they have caused.  The Georgia Institute of Technology School of  Literature, Media and Communication defines new models of intellectual inquiry and practice that bring diverse humanistic perspectives to bear on technological invention and innovation.  The School’s mission is to lead the region, the nation, and the world in researching and teaching the ways the humanities shape and are shaped by science and technology. Understanding technologies in their cultural contexts is fundamental to invention and innovation. The School’s diverse faculty and students assess and inform technological and scientific change by creating, analyzing, and critiquing a broad range of media forms and cultural practices.

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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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