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No Such Thing as a Free Bite: Georgia Supreme Court Eliminates Enshrined “One Free Bite Rule”

March 6, 2017 | Robin Frazer Clark

The Georgia Supreme Court today issued an opinion that makes it clear the age-old rule of “one free bite” for a dog before an owner can be held responsible is no longer Georgia law. The Court’s opinion in Steagald v. Eason, S16G0293 (Ga. Sup. Ct. March 6, 2017) overturned prior case law that held the opposite. (“To the extent that the Court of Appeals held otherwise in Hamilton v. Walker, 235 Ga. App. 635 (510 SE2d 120) (1998) (a 4-3 decision), when it said that “the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action,” id. at 635 (citations omitted), the Court of Appeals misconstrued its own precedent, and that decision is disapproved.”). In Steagald, the dog at issue, “Rocks,” had twice before “snapped” at neighbors, without actually biting them. Then, in a third incident, when the neighbor approached the dog and extended her arm, Rocks jumped at her, bit her arm, and latched onto it. The neighbor attempted to run away, and when she did, she slipped and fell. At that point, Rocks bit and latched onto her right leg. The woman sustained serious injuries as a result of the attack.

The time-worn “one bite rule” refers to this: A rule that says that the owner of a domesticated animal (e.g., a dog) will be held strictly liable for injuries caused by the animal only if the owner knew or should have known about the animal’s dangerous or vicious propensities, which have been manifested in the past. The burden of proof is on the injured party to show that the animal owner possessed this knowledge. The “one-bite” rule originated in common law and has been rejected or modified by most states, either by statute or by case law, with regard to dogs. Many states, including Georgia, have long followed this rule, holding that a dog owner has no liability as a matter of law to a person who his dog bites and injures unless the owner was aware of a previous bite by his dog. But today the Georgia Supreme Court acknowledged that the two prior “snaps” by Rocks at the neighbors were really just “unsuccessful bites.” The two prior “unsuccessful bites” were enough to put the owner on notice that his dog may have a vicious propensity, which is part of what a plaintiff must prove to prevail in a dog bit case. Justice Keith Blackwell authored the opinion of the Court. Known for his sense of humor, Justice Blackwell apparently found the serious injuries of the Plaintiff no laughing matter and wrote: “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation. And as the Court of Appeals correctly recognized in earlier decisions, when the evidence shows that an owner or keeper knows of such an attempted bite — that a dog has snapped at someone, nicked someone with its teeth, or otherwise used its mouth to attack someone without injuring her — it may well be sufficient to establish knowledge of a propensity to bite.” The opinion was unanimous by the Court.

I think the Georgia Supreme Court has fashioned a fair and common sense rule here. The “one free bite” rule let the owners of vicious dogs off the hook, or off the “leash” so to speak, too easily. We all know a pit bull who barks at someone and snaps and jumps at someone but doesn’t actually bite, is just one leash-break away from a horrific mauling. Dogsbite.org reports in the 12-year period of 2005 through 2016, canines killed 392 Americans. Pit bulls contributed to 65% (254) of these deaths. Combined, pit bulls and rottweilers contributed to 76% of the total recorded deaths. Family dogs inflicted 45% (14) of all deaths in 2016; family pit bulls accounted for 86% (12) of these deaths, up from an 11-year average of 63%. Of the 22 fatal pit bull attacks, 55% (12) involved a family or household member vs. 45% (10) non-family. Many Georgia counties and cities have in place specific ordinances about dogs with vicious propensities, especially pit bulls. And who can forget the tragedy of the death of a little boy and mauling of a little girl this January as they walked to their bus stop in Southwest Atlanta by pit bull? These ordinances are created with the policy in mind of encouraging owners to have better control over their dogs. And the Georgia Supreme Court’s opinion in Steagald will help hold negligent dog owners responsible for the havoc created by their vicious dogs. Dog owners should take notice and act accordingly.

5 Things To Know About Jury Duty

February 20, 2017 | Robin Frazer Clark

I’ve got jury duty and I can’t wait! Said no one ever (except maybe lawyers who almost never get to serve on a jury). You have just received your jury summons, making an already bad day worse. Now what do you do?

Show up at court. When you receive a juror’s summons, it is an actual summons for you to appear in court. Failure to appear in court at the correct time can place you in contempt of court. Don’t make matters worse by failing to appear. I have seen different courts handle this in different ways, ranging from a mere scolding by the trial court judge to payment of a fine. The trial judge can even hold you in contempt and threaten you with jail (although I have never seen this happen, and state court judges are elected so I doubt it ever will happen). A trial judge in
Virginia recently gave 200 people who had been summoned for jury duty but who had failed to appear a lecture on the importance of the role of the jury in our judicial systems. “Jurors perform a vital role in the American system of justice,” Circuit Judge Jerrauld Jones told him at Friday’s court hearing, noting that the Founding Fathers thought they were so important, they put jury trials in the Bill of Rights. “Jury trials prevent tyranny,” Jones said. Judge Jones was, apparently, in a generous mood as he forgave their $100 fine and several people exclaimed “Thank you!” and “Bless the Lord!” when Jones told them he was dismissing the cases against them.

Suicide Case to be Argued Tomorrow Before the Georgia Supreme Court

February 6, 2017 | Robin Frazer Clark

As many of you know, I often watch oral arguments in the Georgia Supreme Court via its livestreaming capability on its website. I encourage you to watch, as well. If you are reading my blog it means you must be interested in Georgia law, and what better way to gain some insight than to watch arguments before the State’s highest court? Having available online the live streaming of oral arguments really is a public service to Georgia citizens and a nod to open and transparent government from the Judicial Branch of Georgia government.

I wanted to let you know that tomorrow, February 7, 2016, an interesting and very sad case will be argued before the Georgia Supreme Court, City of Richmond, GA v. Maia. I blogged about the Maia case when it was before the Georgia Court of Appeals. My blog then asked “Who is legally responsible for suicide?” Suicide and suicide prevention has been an interest of mine since one of my dear friends committed suicide in 2012, when I was President of the State Bar of Georgia. His suicide led me to form the State Bar’s Suicide Prevention Campaign “How To Save a Life.” The issue of who is to blame for suicide is squarely before the Georgia Supreme Court now. The City of Richmond argues you can never blame a third party for someone’s suicide because suicide is also an independent, intervening act. This is based on years of rather old Georgia case law. But we know now, after suicide prevention has become more of the public conversation and as open discussion about suicide is helping to remove the stigma associated with suicide, that sometimes it seems suicide can often be traced directly back to bullying of the victim by third parties. It will be an interesting case to watch. My good friend Carl Varnedoe will be arguing for the Plaintiff and my good friend Pat O’Connor will be arguing for the City of Richmond. Below is the Supreme Court’s case summary. I’ll keep you posted, as promised.

Tuesday, February 7, 2017 10:00 A.M. Session

DeKalb County Jury Returns $3 Million Verdict Today Against DeKalb Medical Center

February 3, 2017 | Robin Frazer Clark

Today, a DeKalb County jury returned a verdict against two nurses who are employees of DeKalb Medical Center in the amount of $3.012 Million. The case is Edwards v. Nicome, et al., 11A36121. filed in the DeKalb County State Court. The case centered around the May 2009 death of Shari Edwards, age 31, who died of heart failure three days after being admitted to DeKalb Medical for preeclampsia and ultimately giving birth to her daughter. A third defendant, a physician, was not held liable by the jury. Congratulations go out to Plaintiff’s attorneys Bill Atkins, Rod Edmund and Keith Lindsay for what was obviously a valiant fight for justice in a three week trial. The case was defended by a trial attorney who I have tried a case against before, Tim Bendin. Bendin and his law firm often represents DeKalb Medical Center in personal injury cases. Because the nurses who were found to be at fault are employees of DeKalb Medical Center, DeKalb Medical Center is responsible for the verdict.

The plaintiffs, the parents of the deceased Ms. Edwards, argued their daughter died because of peripartum cardiomyopathy, or heart failure, and the failure of her healthcare team, including Defendant physician Nicome and nurses Cox and Huber-Smith, to detect or treat her deteriorating condition. The evidence showed Edwards’ blood pressure problems had initially been treated, but in the hours before her death her condition became more precarious with low oxygen levels and blood-gas levels joining her complaints that she was short of breath. Despite this, Edmond said medical records showed staff did not take Edwards’ vital signs for three hours before she went into the cardiac arrest that proved fatal. The defense, however, argued Edwards’ condition was stable in the hours before her cardiac arrest, and her healthcare team treated her appropriately throughout her stay, including ordering tests and intervention where necessary. Bendin, the nurses’s attorney, seemingly attempted to cast blame on the attending physician, arguing they were just trying to follow doctor’s orders. This simply didn’t work. No word on whether DeKalb Medical Center will appeal the verdict. They have 30 days from the entry of judgment to do so.

I have often had defense attorneys tell me that doctors and hospitals win 95% of their trials in Georgia. If that is true, to say the odds were against this family and this team of trial lawyers would be an understatement. And $3 Million for the value of the life of a 31 year old could never be characterized of being a “runaway” verdict by any of those who think the Georgia Civil Justice System is out of whack and needs reform. In my opinion, $3 Million for the full value of the life of this mother is probably even slightly conservative. This verdict was a unanimous verdict by 12 DeKalb County citizens who all saw the evidence of negligence the same way, demanding justice in favor of the deceased patient’s family. There is nothing about it that could be labeled “runaway.”

Snapchat: “Don’t Blame Us”

January 27, 2017 | Robin Frazer Clark

This week in Georgia a Georgia State trial court ruled in favor of the social media application Snapchat in a personal injury case and granted Snapchat judgment as a matter of law based on immunity. The case is Maynard v. Snapchat and is pending in the Spalding County State Court. The plaintiff, who suffered severe brain damage in a wreck when he was hit by a teen who was using Snapchat at the time of the wreck is ably represented by several of my friends, including Mike Terry and Michael Neff, both wonderful lawyers. The suit asserted that Snapchat’s speed filter—a feature which allows a user to photograph how fast a user is going—”motivated” McGee to “drive at an excessive speed to obtain recognition and to share her experiences through Snapchat.” Apparently, young drivers who use Snapchat are now often driving recklessly fast so they can snap a photo of the speed of the car they are driving to share it with all of their Snapchat followers, and then I guess the reckless driver gets to brag to all of her friends, “Hey! Look at me!! Me! Me! Me! Look how fast I am driving!! Whoopeeee!” But the Snapchat app encourages the driver to break the law, drive way too fast, illegally fast, and then requires an action by the speeding driver to capture the not-to-be-missed moment. Those few seconds of distraction force the young driver to take her eyes off the road and they often lose control of their car or fail to stay in their lane, resulting in a horrible car wreck and causing untold devastation to an innocent person minding his own business driving on the road that night. In the Spalding County case the evidence showed the teen driver reached speeds of 113 m.p.h. AWFUL!

The defense attorneys argued successfully that Snapchat was entitled to complete immunity under the Communications Decency Act, passed in 1996, and whose Section 230 states, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This provision seems to grant immunity for written communications published on the social media application, not for creating an app that encourages someone to break the law in the first place. Simply reading the literal words of the immunity provision, they would seem to be inapplicable to the facts of this case. But I’m not a judge and the only opinion that counts is the trial judge’s and he disagreed with me. Plaintiff’s counsel, I would assume, are considering an appeal.

This case shows a horrifying trend with the Snapchat “speed filter.” In November of last year in Tampa, Florida, a teen driver who reached speeds of 115 m.p.h. lost control of her car, crossed a median and hit a minivan carrying a family. The wreck killed five people. Snapchat says it actively discourages “their community” to use the speed filter while driving. If that is true, what is the point of it? Can Snapchat claim, with a straight face, argue that the speed filter is not designed to be used while driving when it’s entire purpose is to measure a vehicle’s speed? There is also currently pending in Texas another lawsuit against Apple with essentially the same facts and allegations as the Maynard case here in Georgia but involving Apple’s application Facetime. In that case, a “driver rear-ended the Modisettes with his Toyota 4Runner at 65 miles per hour — killing five-year-old Moriah Modisette. The driver, Garret Wilhem, told police he was on FaceTime at the time of the crash, and officers found his phone in the car with FaceTime still engaged.”

My Falling Out With Mediation

November 3, 2016 | Robin Frazer Clark

Friends: I have to confess, I back slid recently and agreed to mediation of a client’s case. I had not agreed to a mediation of my clients’s cases in several years, primarily because of a sense that mediation generally was not successful and perhaps was even counterproductive, pushing the opposing parties even further into their corners as positions became entrenched due to ridiculous positions taken during mediation, all through the implicit stamp of approval of a rather expensive mediator (who, by the way, gets paid regardless of whether he or she is successful in resolving the case). I regret allowing my client to agree to mediate his case. And again, I have made my pact with myself not to make that mistake again. Here is a short list (certainly not exhaustive) of reasons why I have fallen out with mediation of personal injury cases.

Defense counsel get away with childish, immature positions and remarks. I had a case once in which the insurance carrier wanted to try to settle prior to my filing a lawsuit. I gave them a dollar amount to do just that. They refused. They took the “so sue me” attitude. So I accommodated them and sued their insured. After two years of litigation, when the insurance carrier is in the corner because of the egregious facts that I have now exposed during discovery, I make a new demand reflecting the increase in value of the case in the last two years. Defense lawyers and the insurance adjuster say they “are hurt” by the increase and take away their initial offer in bad faith at medication. Did I not tell them that their best opportunity to settle the case was before I filed suit and litigated the case for years, and that in so doing, their case would only get worse?
Defense counsel approach me to mediate, saying “they really want to get the case resolved.” So I agree to mediation. My clients take a day off from their jobs. We are paying a mediator. Insurance adjuster offers at mediation only what was already on the table BEFORE mediation and says that’s it, take it or leave it. That’s one of the most UNprofessional things I can even imagine, yet it happens. A simple phone call to me would have sufficed. Yet they put my client through the stress and expectation that maybe finally, after two years of duking it out, they have come to their senses and want to resolve the case for what is only fair. Nope.

State Farm: LIke a Good Neighbor? Don’t Bet Your House On It

August 8, 2016 | Robin Frazer Clark

Do you believe that “Like a good neighbor, State Farm is there?” I have previously presented plenty of evidence that the answer to that question of whether State Farm is like a good neighbor is a resounding “no.” If you recall, in my case Eells v. State Farm, State Farm did everything it could possibly do within the bounds of the law (but outside the bounds of moral and ethical decency) to prevent its own policyholder from collecting on an uninsured motorist claim after the policyholder had paid premiums to State Farm for over 40 years. I blogged about that case, which went all the way to the Georgia Court of Appeals, where we prevailed, before it was resolved. The bottom line is that State Farm will do nearly anything to avoid paying legitimate personal injury claims, including forcing its insureds to endure a trial and potential personal exposure, rather than settle a clear liability suit prior to trial.

My son, a great lover of the sport of basketball, likes to say “The ball don’t lie.” Well, the two cases I am going to tell you about involving State Farm clearly share the theme of “the ball don’t lie,” meaning the truth ultimately comes out. Two recent trials in Georgia have placed the litigious policies of State Farm in the spotlight. The first trial was tried last month by James Robson and Robert Glass in Cobb County. The jury returned a verdict in favor of the plaintiff for $850,000.00 after just two and a half hours of deliberation. The at-fault driver, insured by State Farm, had only $100,000.00 in liability coverage. The plaintiff’s attorneys demanded the $100,000.00 to settle the case prior to trial, even though the plaintiff’s medical bills from her injuries were nearly $170,000.00. This means any verdict for the plaintiff would be very likely to be in excess of $170,000.00. State Farm had the opportunity (and the contractual duty) to resolve the case prior to trial for the demanded policy limits of $100,000.00. The plaintiff’s attorneys gave State Farm and extension of time to decide to pay the policy limits and even had the plaintiff’s treating physician speak by telephone to the State Farm adjuster confirming for her the plaintiff required neck surgery from the car wreck. But did State Farm do the right thing? No. State offered only $22,500.00 to settle the case, even after admitting their insured was at fault in causing the wreck. The jury returned what is known as an “excess verdict,” i.e., over the policy limits, and because State Farm had the clear chance to resolve the case for policy limits, will be on the hook to pay the entire verdict. You have often heard of “frivolous lawsuits” in the media but you seldom hear of “frivolous defenses.” This case was certainly one of them.

Another was in a case tried last week in Bartow County by my good friends and fellow trial lawyers Morgan Akin and Lester Tate of Akin & Tate in Cartersville. In that case, the plaintiff pulled into a roadway after stopping at a stop sign and was struck directly in the rear by a teenage driver. The investigating Georgia State Trooper measured 229 feet of skid marks left by the teenage driver as he tried to stop before rear-ending the plaintiff’s vehicle. The State Trooper found teen driver at fault. Mom of teen driver then went to State Trooper’s supervisor with photos maintaining the plaintiff just pulled out in front of him. Ultimately, the State Trooper relented and amended the accident report changing fault to that of the Plaintiff. The Plaintiff had shoulder surgery and $90,000.00 in medical bills. State Farm took up the mom’s torch, denied all liability and hired an expert who simply ignored the skid marks. The plaintiff’s expert accident reconstructionist, Herman Hill, testified that not only did the teenage driver hit the plaintiff in the rear but was going 75 MPH+ at the time of the collision based on the amount of skid marks left by her car’s tires during braking. State Farm doubled down by asserting a counter claim. The Plaintiff made a settlement demand of 100K policy limits initially and then after extensive litigation made a settlement demand of $275,000.00 prior to trial. State Farm never made an offer. The jury returned a verdict of $300,000.00. And because State Farm had the opportunity to resolve this case within the policy limits of $100,000.00 but declined to do so, State Farm will be on the hook for the entire verdict. Can you imagine being rear-ended by a teenage driver going 75 m.p.h. and then the teenage driver tries to blame you for it?

Death in a Georgia Jail: Does Anyone Have Any Responsibility Under Georgia Law?

July 15, 2016 | Robin Frazer Clark

Two interesting but diametrically opposed cases came out last month dealing with deaths of prisoners in Georgia jails. One came out in favor of the prisoner who was killed. The other came out in favor of the police department. Why? I thought it would be interesting to take a look and compare the two.

Jail deaths occur rather frequently. As I discuss “jail deaths” in this blog I am excluding death by natural causes, e.g., disease or old age and I am excluding for now wrongful death of an inmate caused by inadequate medical care in prison (which also is very frequent). I am referring to jail death proximately caused by another person, whether that other person is another inmate or a custodial officer. The nationwide average of jail deaths is 983. The annual average of jail deaths in Georgia is 46. Some of these deaths account for an increased fervor across the nation for criminal justice reform.

But how do the courts treat wrongful jail deaths? Two Georgia cases show a large disparity in court treatment even in the face of what are clearly egregious facts. It is notoriously difficult to sue successfully a prison warden or any state deputies, sheriffs or police officers for their conduct related to the death of an inmate. These suits are frequently brought but infrequently won. Why? Because the burden of proof for the family or estate administrator who would bring a wrongful death suit on behalf of a prisoner killed while incarcerated is astronomically high. So high it is seldom met. A plaintiff in a prisoner death case must allege violation of the prisoner’s 8th Amendment Constitutional rights, which is the Amendment that prevents the government from enacting cruel and unusual punishment on a prisoner. Beyond just restraining prison officials from inflicting “cruel and unusual punishments” upon inmates, the 8th Amendment also imposes duties on these officials to take reasonable measures to guarantee the safety of the inmates. But plaintiffs must show the prison officials acted with “deliberate indifference” to the prisoner’s constitutional rights, which is a pretty high mark to meet. It is just slightly shy of intentional conduct. “Deliberate indifference” in the context of a failure to prevent harm has a subjective and an objective component, i.e., the plaintiff must prove the prison official actually knew an inmate faced a substantial risk of harm and that the defendant disregarded that known risk by failing to respond to it in an objectively reasonable manner.

Who is Legally Responsible for Death by Alligator? Anyone?

June 17, 2016 | Robin Frazer Clark

The tragic news from Disney World in Orlando, Florida this week of a toddler being carried away and killed by an alligator in a lagoon on Disney property has sent waves of terror in every parent whose child has ever waded into any water other than a swimming pool. My family made many trips to Disney World when my children were young and water is everywhere around the property. It is my understanding that at this particular lagoon at The Grand Floridian Hotel there were “No Swimming” signs posted near the water. Yet the photos I have seen show chaise lounge chairs on a sandy beach in front of the lagoon. The beach was, apparently, man made by Disney for the enjoyment of their guests and Disney put the chaise lounge chairs on the beach looking directly to the lagoon. What is the message being sent by Disney? Come sit in these lounge chairs and enjoy the beach and the water? Doesn’t the placement of the chairs there and the placement of the sand there act as an invitation to wade in the water?

Disney is now, apparently, placing warning signs there now, along the lines of “Beware of Alligators.” Is this too little, too late? What is the duty Disney owed to its paying guests to warn them of alligators or to make sure they could not be harmed by alligators while their paying guests are staying at their hotels?

This incident brought to mind a similar tragedy that occurred not too long ago in Georgia, when a senior citizen was, ostensibly, grabbed by an alligator, carried away and killed while she was staying with her children at their home which was on a golf course. This case was litigated and, ultimately, decided by the Supreme Court of Georgia. The case is Landings Association v. Williams and was decided in 2012. The relevant facts, as discussed in the Court’s opinion are as follows: Williams, the victim, was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

Who Is Legally Responsible for a Suicide?

June 9, 2016 | Robin Frazer Clark

Many of you know that as President of the State Bar of Georgia I began a statewide effort to reduce suicides among attorneys, which was occurring at an alarming rate. I created the State Bar’s “How To Save a Life” program and we set about educating our members about the warning signs of suicide, what to say and what not to say to a colleague or friend who you suspect may be contemplating suicide and the steps to take to help prevent suicide. In the process, I learned a lot myself and suicide prevention has become a movement I hold dear, although I had certainly never even given it a second thought before I was faced with it in our membership as President of the State Bar. As a result of this learning process for me, I read just about everything I can on suicide.

Which brings me to the subject of this post: who is legally responsible for the suicide of someone else? The recent Georgia Court of Appeals opinion in Mayor and City Council of The City of Richmond Hill v. Maia, No. A15A2334 (Ga. Ct. App. March 20, 2016), which may very well be one of the saddest cases I have ever read, answers that question in the context of city police officer and suicide victim and held the victim’s suicide was a reasonably forseeable consequence of the police officer’s negligent conduct where the police officer had a specific duty not to disclose the suicide victim’s confidential information. The appellate court held that issue was one for the jury to decide and the case was remanded to the trial court for a trial. It is my understanding, however, that the City of Richmond has appealed to the Georgia Supreme Court and the case is on the Supreme Court’s July docket.

The facts of City of Richmond Hill are heartbreaking and very difficult to read and even imagine. A young high school teenager attempted suicide by cutting her neck and stabbing herself. Her mother placed her in a mental health hospital after the attempt. The child stayed there for 9 days and then returned to her school. As such things are with teenagers, the child’s suicide attempt became the talk of the school. According to her boyfriend’s testimony in the case “everybody knew after a couple of days what happened.” The City of Richmond Hill police department investigated the suicide attempt and as part of their official police investigation took photographs of the child’s injuries from the suicide attempt. In what appears to be a horrific irony, one of the investigating police officers had a child who attended the same high school as the victim. The police officer became concerned that his child did not appreciate the seriousness of the suicide attempt and so, in clear violation of the police department’s written policy entitled “Duty to Refrain from Disclosing any Information Relating to Police Activities,” showed the photographs of the victim to his daughter by accessing them through the police department’s computers. The police officer swore that he did not give them to his daughter or print them, but within days his daughter was showing these photographs of the victim on her cell phone to other students in the high school.