Personal Injury Category Archives - Page 10 of 14 - Atlanta Injury Lawyer Blog Published by Atlanta Personal Injury Lawyer

Do I Have a Case Against a Police Officer for Excessive Force?

April 3, 2015 | Robin Frazer Clark

The recent news about a young veteran who had mental health problems and was found running naked in his apartment complex, who the police shot, has the attention of many Georgia residents, especially me. You probably have read or seen the story on the news. Anthony Hill was a 27 year old U.S. Veteran who had known mental health problems, including bipolar disorder. He was found running naked around his apartment complex knocking on doors. He had done no harm to anyone. He was obviously unarmed as he was naked! Witnesses indicate Mr. Hill was about 180 feet away from the DeKalb County police officer who ultimately shot him when the officer first encountered Mr. Hill. The DeKalb County police officer, like every other police officer, was armed with a taser. For unknown reasons, the officer pulled his gun instead and shot Mr. Hill. Mr. Hill died.

As far as I have seen in news reports, Mr. Hill had violated no law (except maybe public decency?), had harmed no one, had not touched the police officer, had not resisted arrest…in short had done absolutely nothing to justify being killed at the hands of a DeKalb County police officer. Is this excessive force? Absolutely! Is it a crime? Yes, I think it is. This conduct, shooting a totally innocent, obviously unarmed man rises to the level of a crime, manslaughter perhaps, and the DeKalb County District Attorney’s Office should seek an indictment. And if you don’t think for a minute that Mr. Hill could have been you or your loved one, you need to think again.

What is going on with police forces lately? There seems to have been a rash of unjustified shootings of innocent, unarmed people. Some of these shootings are race-related, for sure. But there doesn’t seem (at least right now) to be a racial issue involved with the shooting of Mr. Hill. What was involved was the patently obvious lack of appropriate training of police officers on how to deal with a person who is exhibiting signs of a psychotic break or mental instability.

The Unintended Consequences of Apportionment: Part I

January 15, 2015 | Robin Frazer Clark

What is apportionment? How does it affect my case? What does it mean? Can I ever get justice in my case with it?

These are typical questions I often get from my clients in personal injury cases. The issue of apportionment comes up now in just about every case filed. Apportionment is the premise of Georgia law that says a jury may (but is not required to) apportion other people or entities, who are not even being sued in the lawsuit, a percentage of fault should the jury so choose. In a lawsuit, a defendant may claim some other person or company is to blame also and may ask the jury to consider assessing some percentage of fault or blame to that other person or company who is not named as a defendant in the lawsuit. This is known as “apportionment,” i.e., the jury apportions fault or blame to whoever they think is at fault. Apportionment came into Georgia jurisprudence in 2005 through the wisdom of Georgia Legislature, part of sweeping reforms then known as “tort reform.” Interestingly, nearly all of these so-called reforms have now been elimimated as unconstitutional by our appellate state courts, e.g., a cap on non-economic damages. That cap lasted only as long as it took for a case with a verdict higher than the Legislature-imposed cap to make its way to the Georgia Supreme Court, where the Court promptly held the cap on damages to violate the Georgia Constitution. That case is Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010). Notice the Nestlehutt case was decided in 2010, so there were five years between the creation of that unconstitutional law and the undoing of it. There is no telling how many Georgia citizens were victims of malpractice during those intervening five years who didn’t receive justice.

When the law of apportionment first reared its ugly head, many practitioners and prognosticators, including mediators, declared certain types of cases “dead.” I can remember many of these folks pronounced the premature death of negligent security cases because the defendant apartment complex or defendant business would simply be able to blame the criminal defendant who perpetrated the crime and get off Scot free. Well, in the words of Coach Lee Corso, “Not so fast!” Fairly quickly after the implementation of apportionment, and after every defendant tried to blame everyone else in the world for their negligence, including a criminal, known or unknown, that myth was disproven. For example, in the Martin v. Six Flags Over Georgia case, in which a young man was severely beaten by a gang at Six Flags, for no reason other than the gang (some of whom were Six Flags employees) wanted to beat someone up, the jury returned a verdict of $35 Million. The Cobb County jury attributed to the gang members a total of 8% of that $35 million verdict, and split between the four of them, it came out to 2% per gang member/roughly $750,000 each. This means that Six Flags had to pay the remaining 92% totaling roughly $32 million dollars in damages.

Can a Victim of Medical Malpractice Get Justice in Georgia?

December 3, 2014 | Robin Frazer Clark

I have been thinking a lot about “justice” lately. I have just finished a week long medical malpractice trial in DeKalb County in which I did not think justice was served for the family who lost their loved one (more on that in a minute) although I don’t criticize the jury in any way. That alone is probably a difficult concept for lay persons to accept, but it is the truth for trial lawyers. I also can’t remember a time when the word “justice” has been thrown out more in the media, in social media, in sermons and in everyday conversations than it has in the last few weeks due to the events in Ferguson, MO. That is extraordinary for the United States, a nation founded upon the very principles of justice. Try Googling “was justice served” and you’ll get a myriad (actually 1,920,000 ) of opinions regarding the Ferguson shooting, with about half of the articles responding in the affirmative and about half responding in the negative. Maybe this rough split of 50/50 is proof in and of itself that the justice system usually gets it right.

I was also skimming through a book titled “Justice” recently which noted that most Americans don’t take any oath to support and uphold the Constitution or even the laws of the state in which they reside. I find that interesting because I have done so several times, first when I was sworn in to practice law in the state courts of Georgia, then when I was sworn in the Georgia Court of Appeals, then when I was sworn in the Georgia Supreme Court, then when I was sworn in in the United States District Court for the Northern District of Georgia, then when I was sworn in to the United States Supreme Court, and then as an officer of the State Bar of Georgia and then, most recently, when I took the office of President of the State Bar of Georgia. That’s a lot of swearing!! But each time (at least 7, maybe more) I swore I would protect and defend the Constitution of the United States, the Constitution of the State of Georgia and the laws of the State of Georgia, “so help me God.” I take that oath as seriously as any single person has ever taken it. Part of that sacred oath is to protect and defend our justice system, criminal and civil. You will never hear me criticizing our justice system. There may be some things wrong with it, but it is still the greatest system ever devised by man for self-government. As Winston Churchill said about Democracy: “Democracy is the worst form of government except for all those others that have been tried.”

I say all of the above because after 27 years of practicing law in Georgia, I am on the verge of concluding that a victim of medical malpractice in this state cannot obtain justice. Jurors here in Georgia will look for the smallest shred of doubt, will do almost anything, not to hold a physician liable for his negligence. I can’t pinpoint one cause…there are probably many. TV advertisers must shoulder a lot of the blame. I am not a TV advertiser. I am an actual trial lawyer. When I stand in front of a jury to begin jury selection, those jurors are already suspicious of me because they know only of personal injury lawyers who advertise on TV with silly slogans or theme music, or has-been actors touting the lawyer’s legal acumen. Although I have never advertised on TV or anywhere for that matter, I am lumped in with those who do because I am a personal injury lawyer. I am guilty by association.

One More Step Toward Justice: Georgia Appellate Ruling Ensures Jury Trial in Road Design Case

November 14, 2014 | Robin Frazer Clark

I have written before about my case against the Georgia Department of Transportation and the City of Atlanta about a defective median installed in the middle of the City of Atlanta’s busiest street, Peachtree Street, in the heart of Buckhead at the intersection of Peachtree Street and Piedmont Road. This intersection may well be one of the busiest intersections in Buckhead, the city’s premiere retail, hotel and financial district. This median was installed in October 2007 and was opened for the motoring public without sufficient warning signage and without sufficient lighting. My clients’ daughter was killed in 2008 in a single car accident when the driver of her car hit the median, because it was not readily visible and was not appropriately marked. We filed suit in back in 2010 and are still fighting four years later. Various appeals have lengthened the litigation. We continue to fight. On November 12, 2014, we received a wonderful opinion from the Georgia Court of Appeals that will allow us to proceed with a jury trial against the City of Atlanta. Below if the opinion. We had already received a similar opinion regarding our claims of negligence against the Georgia Department of Transportation. This puts us one more step toward justice for the family.

Robin Frazer Clark 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 50^th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

Do You Know What’s In Your Drain Opener?

October 27, 2014 | Robin Frazer Clark

I am working on a products liability case today that I have pending in Cobb County, Georgia in which my client was severely burned by a sulfuric acid drain opener (SADO). “Burn” may not be the accurate term…it is more like she had her skin dissolved by the sulfuric acid drain opener. She has been treated in three burn units and has undergone nine surgeries, including numerous skin grafts and fractional laser procedures. Yet she still has permanent scars over much of her body.

Do you know what’s in the drain opener you have under your sink right now? Have you ever used a Sulfuric Acid Drain Opener? My guess is you have no idea whether you have ever used a sulfuric acid drain opener. SADO’s, as they are known in the chemical industry, are arguably too hazardous to sell to the public for use by the average consumer. And the average consumer has no idea just how ultra hazardous they are. SADO’s are often pure sulfuric acid, which nothing much added to them except water. They are typically “professional strength” and really should only be sold to professionals. Some manufacturers of SADO’s don’t even employ chemists to create their formula nor was their chemical formula originally created by an actual chemist. This makes the product extraordinarily dangerous to consumers as no professional chemist has even verified what is in the formula so the manufacturer really has no idea of exactly what they are selling.

In many cases, the label on SADO’s are not adequate to warn a lay user sufficiently about the type of chemical burns they can cause if they come in contact with a person’s skin or body. Keep in mind that in many third world countries SADO’s are used as a weapon, often in domestic violence incidents in which men throw sulfuric acid onto women’s faces to disfigure them permanently. This is the same strength sulfuric acid that is being sold to consumers as a SADO. For many years a group of concerned chemists have tried to get the sale of sulfuric acid drain openers banned in the United States. These concerned chemists have petitioned the Consumer Product Safety Commission numerous times to try to get the Commission to take action to ban SADO’s because they are simply too hazardous for use by the average homeowner. But, apparently, politics always seems to get in the way and nothing happens. Manufacturers keep making money and uninformed consumers keep getting harmed.

“I Could Have Been Killed!” Do I Have a Case?

September 19, 2014 | Robin Frazer Clark

I have handled hundreds and hundreds of car wreck cases in Georgia. Very often I hear this common theme from prospective clients: “I Could Have Been Killed!” And it is often very true…they could have been killed, but thankfully, they weren’t. So do you have a case when you could have been killed but you weren’t? Or better put, do you have a case when you could have been killed but you weren’t physically harmed at all?

I thought of this because this morning while perusing the headlines I came upon this story about a JetBlue plane that experienced a blown engine and made an emergency landing. Smoke filled the cabin, oxygen masks magically came down, and flight attendants yelled “Brace! Brace! Brace!” as they landed, which fortunately, they did so safely without injury. Watch the video and you will see that many people on board thought they were about to die. And, in fact, they had a long time to think that as the plane, which was over water, had to turn around and go back to California to land. They all could have been killed, but they weren’t.

Therein lies the conundrum.

Can I Sue the County?

September 9, 2014 | Robin Frazer Clark

Let’s say you have been injured in a car wreck because of negligent maintenance of a right of way owned by the County. Can you sue the County for your injuries?

Of course, I have tried to teach my readers the short answer is always yes, you can sue anybody for anything. The real question then is if you sue the County, will your lawsuit be successful? The answer there, unfortunately, is probably not.

Counties in Georgia enjoy wide immunity from being held accountable through lawsuits. This is called “‘sovereign immunity,” which simply means you can’t sue the King. Were your car wreck to have occurred on a State-owned right-of-way, maintained by the State of Georgia, you would have a viable lawsuit against the State of Georgia under a statute known as “The Georgia Tort Claims Act,” O.C.G.A. Section 50-21-20 through -37. The State of Georgia, in passing “The Georgia Tort Claims Act,” recognized the inequity of a situation that would allow a Georgia citizen to be able to sue and recover from a private individual or corporation if they were negligent but not from the State of Georgia if it, acting through its employees, were negligent. The trade-off agreed in the statute for doing away with sovereign immunity for the State is an individual employee may not be personally sued (so it protects State of Georgia employees from litigation) and recovery is capped (regardless of injury) at $1 Million. This seems like an inherently reasonable trade-off…good for all citizens of the State of Georgia.

If We Go To Trial, Who Will Decide My Case?

August 11, 2014 | Robin Frazer Clark

Today I read a funny article about a jury trial in Florida in which the jury sent the trial judge a note asking for a whiteboard and markers and a “big bottle of wine.” I thought that was pretty cute.

Going to trial is a big decision. Although I have tried many, many trials in many counties in Georgia, most of my clients have never been involved in any trial and the trial of their personal injury case will be the one and only time they will ever step foot in a courtroom and the one and only time the case will be about them. You can imagine this might produce some anxiety.

One of the questions often asked is, if we go to trial, who will decide my case? The answer to that question for all of the cases I try is the jury. I try only jury trials. If a judge decides your case, which can happen in Georgia if no one requests a jury trial (very rare in personal injury cases ) or if both parties consent, it is called a Bench Trial. You may be familiar with the trial of Oscar Pistorius going on right now in South Africa. Mr. Pistorius is being tried for murder in the death of his girlfriend. In South Africa, such a trial will be decided by the very judge who is presiding over the case. Just recently it was announced that the judge will render a verdict in that case on September 11, 2014.

Is State Farm Really Like a Good Neighbor? Who Does My Insurance Agent Really Work For?

July 8, 2014 | Robin Frazer Clark

Do I have a case against my insurance agent? I feel like my insurance adjuster cared more for the insurance company than for me, her client. Who does my insurance agent really work for? Me or the insurance Company?

Good question! No doubt many of us think our insurance agent, with whom we have worked with, confided in and trusted, is our friend and our agent, not the insurance company. But as I often say in these blogs: Not so fast! Although the term “agent” is loosely thrown around in all sorts of scenarios, the actual word “agent” is loaded with ambiguity. Natch, if I have purchased my car and homeowners insurance through my “agent” I would assume that person works for me and would always have my best interests in mind. But, unfortunately, especially under Georgia Law, it doesn’t always operate so smoothly.

For example, if an insurance “agent” is independent and sells policies for multiple insurance companies, chances are he or she would be considered an “agent” of the insured who must favor the insured’s interests over the company’s. If, however, the insurance “agent” is an employee of the insurance company and not independent, then chances are this type of insurance “agent” is actually an agent of the company, not of you, and that type of “agent”/employee would put the interests of the insurance carrier over your own.

Do I Have a Case?

June 24, 2014 | Robin Frazer Clark

Do I have a case? I am asked this countless times…at church, over cocktails, in the gym…anywhere where someone who knows I am a trial lawyer who represents injured individuals finds me and grabs me to ask. Do I have a case? Four little words, but so very complex.

In the world of personal injury law practice, I am a generalist. I take all variety of personal injury cases. The only limitation for me is whether I think I can prove the case and whether the damages justify my representation. So “Do I have a case” depends on many things, but first is can we prove one? The plaintiff in a personal injury lawsuit has the burden of proof, meaning the plaintiff must prove the case and the defendant really has no burden. The plaintiff must prove, by a preponderance of the evidence, four things: 1)duty; and 2) breach of duty; and 3) causation and 4) damages. “Preponderance of the evidence” is a cute little phrase that means nothing more than it is more likely than not. “Preponderance” is used in law school and should never be used again anywhere else, but especially not in a courtroom to a jury. The burden of proof simply means that a jury agrees it is more likely than not that this thing happened. And the plaintiff must prove all four necessary elements; three out of four is not good enough.

Sometimes determining whether someone owed you a duty not to injure you is simple. Like in a car wreck case in which you have been rear-ended. Every driver on our Georgia roads owes every other driver on our roads a duty not to follow too closely and not to rear-end the car in front of them. So if you have been rear-ended in a car wreck, you can easily prove #1 and #2, duty and breach. In our car wreck case example, it is #3 and #4 that get a little harder. Damages means you have an injury to which you attribute to the car wreck. Damages are simple enough usually…if you suffered a broken leg in a car wreck, a leg which was perfectly fine before the car wreck, you have both damages and causation, meaning you can prove the broken leg was caused by the wreck and not from something else, not from some other force. If however, you believe you have injured your back or neck in a rear-end car wreck but no broken bones, the task of proving causation, that the force of the car wreck caused the neck or back injury and nothing else, gets a bit harder. Factors involved here on whether you can prove causation include your past medical history and whether you had ever been treated for neck or back problems before the wreck. For example, let’s say you were involved in our rear-end car wreck on the way to the hospital for back surgery for a chronic back problem. It would be pretty difficult to prove the car wreck caused you to have a back injury that now needs surgical treatment. You were already on your way to get that surgical treatment before the wreck ever occurred! See how this works? Those are the tougher cases and they often come down to expert testimony from your treating physicians about what they believe caused your back injury.