Articles Tagged with premises safety

alligator--main_1717664a
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.

As many of you may know, the summer is peak time for music festivals. These events draw eclectic crowds of all ages, and cater to a wide range of musical and cultural interests. Recently there was Bonnaroo in Manchester, Tennessee, Firefly in Dover, Delaware, Electric Daisy Carnival in Las Vegas, and many more happening all over the country. These events attract massive crowds by the hundreds of thousands, and unfortunately, they’re no Woodstock. Every year people die at major music festivals, accompanied by hundreds of arrests and injuries. Considering the mass drug and alcohol use that typically takes place, this is not entirely surprising. Some people are beginning to point the finger at the electronic dance music community (EDM) as a whole, as there seems to be more drug related deaths at those festivals. One major electronic festival, Electric Zoo in New York City, was forced to cancel their final day this year due to deaths involving MDMA. Often in these circumstances, it is difficult to allocate responsibility. It is entirely foreseeable that in that large of a crowd, something will go wrong. Police presence and safety measures are not, unfortunately proving up to the task of reasonable safety for such a large crowd.  Families of several victims of an incident at the South by Southwest music festival in Austin, Texas, however, are attempting to hold the festival corporations accountable for wrongful death.

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old law books
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.

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