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Articles Posted in Personal Injury

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I read with horror and sadness about another child who was severely injured from falling off a elevated bunk bed that had no bedrail or guardrail. This time it happened to a young child, Easton Oliverson, who was playing in the Little League World Series.  Horror and sadness because this was a  totally predictable and totally preventable incident because there were no rails on the elevated bunk bed this child fell from. This happened during the Little League World Series in Williamsport, Pennsylvania. The child suffered a head injury as the fall punctured an artery which caused bleeding on the brain and he needed a piece of skull removed during emergency brain surgery. Some encouraging news came Wednesday, KSTU reports, as Easton was awake, off of oxygen assistance, talking and sitting up in a chair.

When the incident happened, the child’s teammates heard him fall and were able to get help quickly. His uncle said the fast action by all involved may have saved the child’s life.

“We’re just at point now where he’s just in recovery,” the uncle said. “The teammates heard him fall, thank goodness. When they got into surgery, the doctor talked to [him] and said had he not gotten into surgery but 30 minutes later, he would have been dead.”

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Premises liability holds individuals or businesses responsible for injuries that occur on their property, even if they did not personally cause the injury. It is based on the premise that businesses have a duty to maintain their property in a safe condition, and that this duty extends to protecting their customers from harm, to a reasonable degree.

A premises liability case can be difficult to pursue because it often requires evidence that the business was aware of an unsafe condition and did not take appropriate steps to remedy it. A successful premises liability case relies on establishing that the party was negligent in their duties to maintain the property.

What Is Negligence in Premises Liability?

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Should a caller EVER be placed on hold when calling 911? Common sense tells us of course not, right?  By the very nature of the call, that you are calling 911, you have an emergency that needs to be addressed, well, emergently.  Unfortunately, many 911 calls in Metro Atlanta are being placed on hold, with the typical hold message of “Your call is very important to us.”

CBS46 News has investigated and reported on this new phenomenon in which the 911 Center places an emergency caller on hold.  CBS46 uncovered a frightening trend in the numbers, showing an increase in 911 wait times. For the first four months of 2022, nearly 13%, which is over 40,433 people, sat on hold more than 40 seconds. That’s an increase from 2021 where it was at 9%, and 2020 at 5%. The majority of Atlanta’s 911 callers do not wait on hold for more than 10 seconds. In the first four months of 2022, roughly 75% of Atlanta’s 911 callers or 245,855 people called 911 and waited less than 10 seconds to talk to an actual person.

I experienced this personally recently when my husband called 911 to report a street racing incident occurring near a restaurant where we where having dinner out on its patio. We were enjoying dinner outside when we started smelling smoke and heard tires screeching. This occurred at the intersection of Briarcliff Road and LaVista Road in unincorporated DeKalb County on a beautiful Sunday early evening. Within seconds of the noise of the screeching tires, a crowd appeared, as if by magic. There were easily 80-100 people surrounding that intersection watching cars go round and round burning up their tires. I’m guessing some of those 80-100 folks were armed, thanks to our “concealed carry” law in Georgia. It wasn’t a leap in logic or imagination to believe someone might get hurt. My husband dialed 911 and was placed on hold with a message saying to him that his call “was important to them.” We later saw numerous posts on our NextDoor website that other folks attempted to call 911 for this same incident, also, and were placed on hold. Eventually, DeKalb County police cars arrived at the scene perhaps 10 minutes after we tried to call.

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You may recall that I wrote a blog about a case that occurred in here in Georgia in which a husband and wife sued Snapchat (now known as Snap, Inc.) for negligent design of their “app” because the app promoted using it while a driver was driving at a high rate of speed as it recorded your speed for you to share (brag) with all of your friends and followers. 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.

That happened in 2015. Somewhere along the last seven years Snapchat filed a Motion to Dismiss the lawsuit and the trial court granted it. The plaintiffs appealed and the Georgia Court of Appeals affirmed. But now, in 2022, seven years after the original wreck, the Georgia Supreme Court has ruled against Snapchat and in favor of the Plaintiffs to permit the lawsuit to proceed. Justice Verda Colvin wrote the opinion of the Supreme Court, which was not unanimous. There were three special concurrences and two dissents, and two justices did not participate in the opinion.  The issue presented here was whether Snapchat owed a legal duty to the Maynards on the basis that a manufacturer’s duty to design reasonably safe products  extends to people injured by a third party’s intentional and tortious misuse of the manufacturer’s product. Maynard v. Snapchat, Inc., S21G0555, 2022 WL 779733, at *1 (Ga. Mar. 15, 2022) The Georgia Court of Appeals said “no.” The Georgia Supreme Court said “yes.” And there you have it. The Georgia Supreme Court’s opinion carries the day. But the plaintiffs still have a long way to go. The Supreme Court remanded (sent back) the case to the Georgia Court of Appeals with the instruction “to address whether the trial court erred in dismissing the Maynards’ claims against Snap and in granting judgment on the pleadings to Snap for lack of proximate causation.” This means the lower appellate court must now analyze the case from the standpoint of whether the Snapchat speed filter actually caused the wreck or was it merely the negligent driving of the teenage driver that caused the wreck.  This is a 56 page opinion issued by the Supreme Court, so it is clear that the Court spent a great deal of time and thought on this matter. That is all you can ask for. But, with two dissents and three other special concurrences, you couldn’t call this a “ringing” endorsement of the cause of action. And, the Supreme Court may see the case a second time before a jury ever does, because depending on how the Georgia Court of Appeals rules, it is likely to go back up to the Supreme Court on the issue of proximate causation. I think, realistically, it will probably be 2025 (the 10 year anniversary of the wreck) before it may get in front of a jury.

That should show you a couple of things. First, the wheels of Justice often grind slowly. Recently, I had to testify in a deposition to authenticate a videotape of DeKalb Avenue for an attorney who has a case pending against the City of Atlanta regarding the reversible lane lights. I had taken that videotape in 2012, ten years ago. And that case was just getting to trial. Secondly, it should show you the tenacity of the lawyers representing the Maynards in this case.  You can also say that about the defense attorneys in the case, but they have been getting paid for their work for the last seven years; the plaintiffs’ attorneys have not. When a plaintiff’s attorney decides to take a case, she or he has to decide to see it to the end, knowing the life of the case may last years before resolution. This is the agreement we make with our clients when we accept a case. We must fight nonstop for our clients. So hats off to the Maynards’ attorneys.

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My eye caught an interesting recent study that are 32% more likely to die when operated on by a male surgeon. This really shocked me. If this is true, what could possibly explain this?

This study was conducted in the United Kingdom, but recently published in the Journal of American Medical Association (JAMA). “In our 1.3 million patient sample involving nearly 3,000 surgeons we found that female patients treated by male surgeons had 15% greater odds of worse outcomes than female patients treated by female surgeons,” said Dr Angela Jerath, an associate professor and clinical epidemiologist at the University of Toronto in Canada and a co-author of the findings.  For each of the 1.3 million operations studied, they analyzed the sex of each patient and details of how their procedure had gone and also the sex of the surgeon who carried it out.  They found that men who had an operation had the same outcomes regardless of whether their surgeon was male or female. Women, however, experienced better outcomes if the procedure had been performed by a female surgeon compared with a male surgeon. There were no gender differences in how surgery went for either men or women operated on by a female surgeon. They found that men who had an operation had the same outcomes regardless of whether their surgeon was male or female.  Jerath added that while “there are some excellent male surgeons who consistently have good outcomes, what is concerning is that this analysis does signal some real difference among male and female surgeons overall where practice can impact general patient outcomes”.

The answer can’t be that medical training is different for male and female medical students. They get the same training. So why the difference in surgical outcomes? Dr. Jerath posited “Implicit sex biases”, in which surgeons “act on subconscious, deeply ingrained biases, stereotypes and attitudes”, may be one possible explanation.  Differences in men’s and women’s communication and interpersonal skills evident in surgeons’ discussions with patients before the operation takes place may also be a factor, she added. And “differences between male and female physician work style, decision-making and judgment”. The findings build upon existing literature that has found that a doctor’s gender identity can impact the care patients receive, particularly if the doctor and patient share identities (this is described among researchers as “gender concordance”).

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I noticed this morning with sadness that a young woman was killed on I-285 last night when she got out of her car. Police said the accident happened around 10 p.m. on I-285 NB between South Cobb Drive and Atlanta Road.  There is no mention of why she left her car to become a person-on-foot on I-285, which is, by the way, one of the deadliest freeways in the United States. Whatever the reason, your car breaks down, or you have a medical emergency, you have a flat tire, or whatever...do not get out of your car on a highway. Getting out of your car of a highway is also one of the deadliest things you can do, even if you stay in an emergency lane. It doesn’t matter, it is still dangerous. “You are better protected in the car than anywhere else,” said Cathleen Lewis, director of Public Affairs and Government Relations for the Northeast division of AAA.

I represent a Good Samaritan right now who saw a car on the side of the way, apparently, having car trouble. He stopped to help because he is a good person. Unfortunately, while he was on foot trying to help the people in the stalled car, a van hits him and catastrophically injures him. He survived, but has not been able to return to work since. I hate to tell people stop helping others, stop being a Good Samaritan, but being a Good Samaritan can get you killed.  Do not get out of your car on a highway or interstate. Remain in your car and call 911 or your roadside assistance. Wait in the car until they get there. There is no safe place to be on the outside of your car.  Stay in your car!

It is so dangerous out there on our Georgia roads. Stay safe!

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Have you seen the new commercial made by GMC for its new Sierra and Yukon Danali pick-up trucks that features hands free driving? It shows a person sitting in the driver’s seat of the truck (I hesitate to call this person a “driver” because he is really not driving at all) with no hands (and not even a knee) on the steering wheel while the pick-up truck appears to be moving at a high rate of speed. Then the person sitting in the driver’s seat begins to clap to the beat of Queen’s famous rock song “We Will Rock You.” And all the passengers in the vehicle start clapping in unison with the beat and with the person sitting in the driver’s seat of the speeding truck while he never touches the steering wheel with his hands. It is scary to watch on TV. It is even scarier to think that someone next to you or behind you on the highway is doing this in a vehicle while you attempt to drive as carefully as possible to arrive at your destination safely. Welcome to the world of hands free driving!

I ask whether you are willing to take the risk of hands free driving because using this “autopilot” feature on some new cars and trucks may result in some horrible consequences, including criminal charges for vehicular homicide.  This is what happened in Los Angeles recently when a person using a Tesla’s autopilot feature (notice I didn’t call him a “driver”) was charged with vehicular manslaughter with gross negligence for the deaths of two people who were killed when the auto-driven Tesla slammed into their Honda Civic, killing them both.  The National Highway Traffic Safety Administration (NHTSA) confirmed the auto-pilot feature was on at the time of the collision. The charges against the defendant appear to mark the first time a driver in the United States was prosecuted for a felony while using semi-automated driving technology. The families of the two decedents have filed wrongful death suits, but it is unclear whether Tesla was included as a defendant for products liability.

Michael Brooks, the chief operating officer at the Center for Auto Safety, a nonprofit advocacy group that focuses on the U.S. automotive industry, said he hopes Tesla drivers and owners see this case and understand that Autopilot has limitations. “It will not drive them from any point A to any point B always safely, and they need to be responsible for the actions of the vehicle,” Brooks said.

african-businesswoman-discussing-with-remotely-woman-partner-online-sitting-front-laptop-working-start-up-office-talking-video-call-during-virtual-meeting-midnight-using-headphone-300x169To be fair, many personal injury victims and their families were not given much of a choice these past 18 months (closing in on two years, as a matter of fact). Everyone had a learning curve in the first few months of the pandemic—some steeper than others—but most attorneys, judges, and court personnel would agree that some court hearings can be easily conducted virtually.

Mediations, at least in the personal injury space, have worked quite well over Zoom. Our firm has been pleasantly surprised at the feasibility of getting results from mediation sessions where participants were spread across the country. In fact, our team would not be opposed to continuing virtual mediation sessions after the pandemic is fully under control. 

What is Mediation?

solen-feyissa-iurEAyYyU_c-unsplash-300x209Fair or not, almost every move you make after filing an insurance claim or lawsuit can be scrutinized. The insurance company or defense counsel might hire a private investigator to discreetly follow you around to try to gather evidence that’s harmful to your personal injury case. Unfortunately for personal injury victims, that’s not all the other side can do. 

If you have any type of social media account—Facebook, Twitter, Instagram, or Snapchat, to name a few—you are at risk of imperiling your personal injury case without even knowing it. That’s because plaintiffs’ social media accounts are discoverable in a personal injury lawsuit. 

What is Discovery?

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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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