Atlanta Injury Law Blog

Legal listservs are an invaluable resource in any practice area.  I have actively participated in some of them and have obtained great benefit in my practice. Occasionally lawyers I meet around Georgia are very kind in their comments about finding value in my contributions on the listservs.

One thing, however, that puzzles me is the frequency with which personal injury lawyers in listervs discuss how to enforce liens for fees and expenses when clients fire them.  I certainly can relate to the desire to get paid for one's labor. That's not the issue. Rather, I wonder why they run into this problem so often.

This summer I will mark 31 years in the legal profession.  Roughly half of that time I have been primarily involved in representing plaintiffs in tort cases on a contingent fee basis.  There have been a couple of clients over the years who left me, a few times when  I have "fired" a client when facts came to light that seriously impaired the merits of the case or made me unable to continue with ethical representation of the client.  Of several hundred plaintiffs' cases I have handled, I have never had occasion to worry about enforcing a lien.

I can't say why other lawyers have that concern so often.  But I can make a few points about why I think I don't.

1. Take time on the initial client interview to build the foundation of a mutually trusting  relationship.  Really listen to the potential client. Show interest in the human being, not just the case.  Get the person's life story, not just the story of an accident and an injury.  My primary reason for doing that is to gather information  that might be useful in telling the client's story to a jury. However, after years of three and  four hour initial interviews, I have come to believe that a collateral benefit is laying the foundation for earning trust. I don't waste a client's time with monthly appointments during the life of a case, though I suppose that wouldn't hurt. However, it seems that when we take that time on the front end, we have a lot less problems on the back end of a case.
   
2. Use due diligence in screening cases - thorough initial interview, checking facts, using gut instincts about credibility.  Is this person and this case a good investment?  If it doesn't feel right, trust instincts and experience, and send the potential client elsewhere.
3. When possible, visit with clients in their homes.  The primary reason, again, is to gather high quality information to portray the client's good qualities to a jury.  However, a collateral benefit is the development of a friendship with the client.  Friends don't cheat friends by firing them after they have done the work.
4. Structure the fee contract to set a formula for determining a fee if the client fires the lawyer within sight of the promised land, but before an offer is on the table from the defense.  If a client is tempted to try to cut out the lawyer who has done all the work to develop a case, such a written formula provides a deterrent against playing such games.
   
5. At appropriate points in the progress of the case, take the time for a face to face meeting to discuss first how things are going for the client, and then the status of the case and decisions that may be required.
6. Remember the maxim that pigs get fat but hogs get slaughtered.

There was a potentially significant decision on February 19th in the Georgia Court of Appeals. It involves two of the most notriously scandalous avoidances of accountability in metro Atlanta -- taxi cabs and the City of Atlanta -- as well as the notoriously tough area of DOT liability for road design and maintenance.  I'm confident that my brethren and I will be diagraming the sentences in this decision for some time to come.

The wrongful death case arose when a taxicab in which the decednt was riding spun out of control on a wet overpass and collided with a tree. The Court held that the trial court erred in granting summary judgment to Greg Shepard, a Vehicle for Hire Inspector employed by the city of Atlanta, who inspected the taxicab on the day before the deadly accident. Shepard was not immune from liability, because his position as an inspector required him to enforce all state codes; O.C.G.A. § 40-8-74 (e) (1) mandates a minimum tread depth of 2/32 inch for tires on passenger vehicles; the evidence showed that the taxicab had no tread on its rear tires; Shepard was required to check the minimum tread depth on the taxicab’s tires and he was required to complete an inspection checklist before he could pass the taxicab as safe, which he did not do, since he merely wrote pass on the front of the form without checking any of the boxes indicating whether the taxicab’s exterior and interior parts, including the tires, were functioning properly. Since Shepard’s required tasks were simple, absolute and definite, they were ministerial, not discretionary.

The Court also held that the trial court erred in granting the Georgia DOT’s motion to dismiss, based on sovereign immunity, since the plaintiff alleged claims against the DOT for negligent maintenance or design of the roadway where the collision occurred. The plaintiff asserted that the DOT was repeatedly notified that the slope of the road’s shoulder was too great, trees were too close to the road and water accumulated on the road due to inadequate drainage; expert evidence showed that the DOT failed to follow generally accepted design, construction and maintenance practices, with regard to the roadway and adjacent areas.   DOT moved for dismissal under OCGA § 50-21-24 (8) and (9), which involve inspection and permitting exceptions, not subsection (10), which involves construction plans or design. However, the Court affirmed the grant of summary judgment to the city of Atlanta on Heller’s nuisance claim, since the city had no notice of a dangerous condition within the meaning of a nuisance; i.e., no evidence showed that taxicabs with insufficient tire tread routinely passed city inspections and were involved in injury causing collisions.

Saturday morning, at the request of a patient's family  who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling's attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs.  The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital.  I don't know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome "award."

Sometimes well-meaning people try to say that it was "the Lord's will" or "the Lord took her" when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It's wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

Yesterday the Georgia Court of Appeals held that a work-related cell phone call or distraction by such a call that a driver chose not to answer may be enough to support liability of the employer, even though the employee was driving to work from home and was not on a special mission for the employer.  See full text below.

The Center for a Just Society is a conservative outfit that seeks to "advance and defend Judeo-Christian principles of human dignity and social justice in law, policy and the public square."  If you read their web site, it's clearly a conservative organization.  In light of that faith-based conservatism, it is enlightening to read what they say about the tort law system:

[W]e want to examine some of the principles that have historically undergirded the tort system.

The tort system affirms basic human dignity and the sanctity of human life. By requiring a wrongdoer to compensate an injured person for the damage caused by a wrongful act, we affirm the worth, value, and dignity of every member of society. We demonstrate that we take human dignity seriously when, as a society, we guard against encroachments (deliberate or unintentional) by anyone on the dignity or humanity of another. No wrongdoer should be permitted to injure or kill another person with impunity. To hold otherwise undermines society's view of the importance of human dignity and the sanctity of human life.

The tort system promotes responsibility by holding wrongdoers accountable for their actions. Personal accountability is the key to responsible human behavior. We cannot expect people to act in a responsible manner unless we hold them accountable for the consequences of their actions. If we remove accountability for wrongdoing, we encourage people to engage in irresponsible and antisocial behavior. The people who will suffer the most from such behavior will be the weakest and most vulnerable members of our society (i.e., the elderly, the handicapped, and the infirm).

The tort system promotes local control. Through the jury system, people at the local level decide what is reasonable behavior within their own communities. Ordinary citizens, applying a common sense standard of reasonable care, making decisions about acceptable and unacceptable conduct within their community—that is the essence of local government. And, as a result of those decisions, suppliers of goods and services within the marketplace will often modify their own behaviors (i.e., improve health care standards, place guards on dangerous products, protect against discharge of toxic pollutants) without the necessity of yet another costly and intrusive governmental bureaucracy.

The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of “welfare” which rewards irresponsible behavior and punishes innocent parties.

It should be apparent from the foregoing that the tort system has played an important and historic role in the ordering of civil society by providing all citizens, both weak and strong, the ability to seek justice. That does not mean that the system can't be improved. But to the extent that reforms of the system occur, we should take care to ensure that they are, in fact, improvements. Not all change equates with progress. To quote the Hippocratic oath, we must ensure that we first do no harm.

Regarding attacks on the jury system, CJS says:

Our Founding Fathers recognized that the collective judgment of ordinary people, while not perfect, is the most reliable means devised by man of resolving conflicts in America's courtrooms. Here are some of the advantages of the jury system:

•  A jury is made up of local citizens, men and women from the community who are in the best position to evaluate how the conduct at issue compares with the standards of the community in which they live.

•  The composition of the jury is not known in advance of the trial, thus reducing the likelihood of undue influence being exerted on the jurors from either side.

•  Jurors cannot be paid by either side. They can only consider evidence that meets a certain threshold of reliability and can only consider testimony given under oath. They cannot be approached by one party outside the presence of the other party. (Compare this with the legislative process, where access to the decision maker often depends on contributions having been made by an interested party; testimony is frequently not given under oath; no reliability threshold for evidence is required; and interested parties usually lobby the decision maker outside the presence of the other interested parties).

•  Jurors commonly complete their service in just a few days or weeks and then return to their private lives. Judges are often on the bench for many years, and in some cases for life, leaving them vulnerable to ongoing efforts to influence their decisions.

•  It may be easy to find one errant adjudicator who is out of touch with their community (such as a judge). It's much harder to find 12 ordinary citizens who will come to an outrageous result, and even if they do, there are mechanisms in place to correct such a result.

In spite of all of these advantages, there is a widespread effort underway to take away our right to a trial by jury. Those pushing this wrong-headed agenda claim that it will reduce the costs of healthcare and eliminate “frivolous lawsuits.” But what they are really saying is, “We don't trust our fellow citizens to resolve disputes. Lobbyists and politicians know better.” And truth be told, the agenda behind the agenda has less to do with lowering the cost of healthcare and eliminating frivolous suits and more to do with immunizing wrongdoers from the consequences of their behavior. The question is, will we trust our fellow citizens along with the Founders and a thousand of years of history, or will we trust professional politicians and the lobbying corps to look out for our best interests?

Scrapping the jury system will not bring about the lofty goals the tort “reformers” claim to be seeking. The only sure-fire result of such action is that the outcome of disputes will be decided in advance by politicians and the lobbyists of special interest groups that influence them. Is that justice?

I couldn't have said it better myself.  For too long the corporate elitists have succeeded in hijacking conservatism and using it to defeat accountability for harm they do to ordinary people.  Enough is enough.  

The Court of Appeals last week restricted the use of medical narrative reports in injury cases, holding it was reversible error to admit a neurologist’s unedited notes from the patient's medical visits. The notes did not comply with O.C.G.A. § 24-3-18’s requirements for medical narratives, because they contained unexplained medical terms and test results and were not organized or structured to make them more readily understandable to the jury.

Frankly, if I have to pay a doctor to write a narrative, I'd just as soon pay a few hundred dollars more and take the doctor's deposition on video for use at trial, with the doctor explaining everything with some visual aids.

Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

Representative Mary Margaret Oliver of Decatur has introduced in the General Assembly HB 5 regarding use of wireless communication devices while driving.  It would amend OCGA 40-6-241 to include the following:

(a) For purposes of this Code section, the term:

(1) 'Device' means a cellular, hands-free, or mobile telephone, wireless communication device, personal digital assistant, radio, or citizens band radio; and
(2) 'Engaged in a call' means talking or listening via a device and shall include holding such device to activate, deactivate, or initiate a function of such device.
(b) A driver shall exercise due care in operating a motor vehicle on the highways, roadways, and streets of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle
(c)(1) Except as provided in subsection (d) of this Code section, any driver who shall knowingly:
(A) Operate a motor vehicle which is involved in an accident resulting in death or bodily injury of any person or in property damage; and
(B) Be engaged in a call at the time of the accident shall be guilty of driving while distracted.
(2) The inference that the driver of such motor vehicle was driving while distracted may be rebutted by evidence tending to show that engaging in a call at the time of the accident did not contribute to the accident.
(d) Subsection (c) of this Code section shall not apply to:
(1) Engaging in a call for the sole purpose of communicating with any of the following regarding an emergency situation: an emergency response operator; a hospital, physician?s office, or health clinic; an ambulance company or corps; a fire department; or a police department; and
(2) Any of the following persons while in the performance of their official duties: a law enforcement officer; a member of a fire department; or the operator of an emergency vehicle designated as such under Code Section 40-8-92.
(e)(1) Any person convicted of a violation of subsection (b) of this Code section shall be guilty of a misdemeanor punishable as provided in Code Section 40-6-1.
(2) Any person convicted of a violation of subsection (c) of this Code section shall be guilty of a misdemeanor punishable by a fine not to exceed $500.00 and assessment of points pursuant to Code Section 40-5-57.

All you folks who check and send email while you drive down the expressway at 80 mph, take note.  However, this bill looks overly broad. It creates a rebuttable presumption of distraction if a person just has the radio on listening to NPR (some folks in the legislature would probably support a rule of negligence per se for anyone who listens to NPR), there is no such presumption created when a driver is putting on makeup, eating a sloppy burrito, reading the newspaper, changing clothes, etc.  I respect Rep. Oliver, but this proposal needs more work.

I love it when I see a court use my points to rule my way on an unrelated case.

We have a case in which we represent the estate and siblings of a young man who was killed by a drunk driver.  Their father had more DUI's than anyone in the history of Georgia on spent most of the deceased son's life in prison including a conviction for DUI/vehicular homicide. On one of his times out of prison he physically abused the son.  A  juvenile court made a judicial finding of physical abuse and gave custody of the kid to an adult brother.  Of course, when the young man was killed several years later by a drunk driver, the father who was a DUI recidivist promptly filed suit for wrongful death.  Representing the siblings of the decedent -- the other adult offspring of the abusive drunk -- I filed a petition to determine heirship.  A Superior Court judge agreed with our position that the father forfeited parental rights by cruel treatment when he was adjudicated to be guilty of physical abuse, did not appeal, and did not take advantage of the opportunity for family reunification. We also had arguments about abandonment, but there was some small shred of evidence of de minimis support that made that a jury issue.  Well, we won summary judgment in the Superior Court and the father appealed to the Georgia Court of Appeals.

Now in another case, the Court of Appeals has adopted virtually the same arguments we used in our appellate brief in another case, finding that another deadbeat dad forfeited his parental rights, including the right to recover for wrongful death of the child,  through abandonment. In Baker v. Sweat, A06A0892 (decided October 13, 2006), the administrator and siblings of a deceased adult were ready to settle with the insurance company for the wrongful death with deadbeat dad showed up claiming all the money. Much as in our case, there was a long, sad litany of the sperm donor's failure to support the child or engage in the child's life. The Court held:

If it is established that a parent has lost his or her parental power under OCGA § 19-7-1 (b), the parent’s right to share in the proceeds of a claim for the wrongful death of his or her child is also forfeited.

OCGA 19-7-1 (b) provides for loss of parental rights through either abandonment or cruel treatment.  Since anything can go wrong at any time, we are keeping our fingers crossed that we will get the same result in our case.

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

On May 1, in the case of Arkansas Dept. of Human Services v. Ahlborn, the U.S. Supreme Court held a State's Medicaid department will be limited to reimbursement from only that portion of a judgment or settlement that represents payment for medical expenses. States are now prohibited from being reimbursed for Medicaid costs from settlement proceeds that were intended to cover items other medical expenses such as pain and suffering and wage loss. The US Supreme Court held that the federal anti-lien statute prevents States from attaching or encumbering the non-medical portion of the settlement or judgment.

In the slip opinion released May 1st, the Court stated,

"[t]here is no question that the State can require an assignment of the right, or chose in action, to receive payments for medical care. So much is expressly provided for by §§1396a(a)(25) and 1396k(a). And we assume, as do the parties, that the State can also demand as a condition of Medicaid eligibility that the recipient "assign" in advance any payments that may constitute reimbursement for medical costs. To the extent that the forced assignment is expressly authorized by the terms of §§1396a(a)(25) and 1396k(a), it is an exception to the anti-lien provision. See Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, 537 U. S. 371, 383-385, and n. 7 (2003). But that does not mean that the State can force an assignment of, or place a lien on, any other portion of Ahlborn's property. As explained above, the exception carved out by §§1396a(a)(25) and 1396k(a) is limited to payments for medical care. Beyond that, the anti-lien provision applies."

So what does this mean? In the U.S. Supreme Court's own words, States may not demand reimbursement from portions of the settlement allocated or allocable to non-medical damages; instead, States are given only a priority disbursement from the medical expenses portion alone.

One obvious question is the potential for the settling parties to allocate the recovery in a way that cuts out the Medicaid interest. The Court discussed this, stating that "the risk that parties to a tort suit will allocate away the State's interest can be avoided by either obtaining the State's advance agreement to an allocation or, if necessary, by submitting the matter to a court for decision." We have had experience hammering out settlements in which the settling parties submitted orders for the trial court to enter on stipulated facts approving an allocation that severely cut the Medicaid recovery basically along the lines approved by the Supreme Court on Monday.

Some folks are pushing the use of Qualified Settlement Funds (QSF) to create a breathing space between execution of a settlement with the defendant and possible purchase of a structured settlement annuity and/or creation of a special needs trust.

I also wonder whether this ruling might in any way foreshadow a future ruling on ERISA reimbursment claims. Stay tuned.

The Fireman's Rule in Georgia provides that a public safety officer may not recover for the negligence that caused the situation to which he responded. It is based on a public policy of the State of Georgia that a public safety employee cannot recover for injuries caused by the very negligence that initially required his presence in an official capacity and subjected the public safety employee to harm. That public policy precludes recovery against an individual whose negligence created a need for the presence of the public safety employee at the scene in his professional capacity. The first policy reasons behind this rule is the assumption of risk doctrine.

[I]t is the nature of the job undertaken for the employee to be subjected to risks of injury created by people he or she is called upon to serve. By accepting that job the employee assumes a general or primary risk of injury. . . . The justification for imposing this general or primary risk is that the employee is paid to encounter it and trained to cope with it.

Second, the courts have held that it would be too burdensome to charge all who negligently cause a need for emergency services with the injuries suffered by the first responders trained to come and deal with the effects of those inevitable, although negligently created, occurrences. Citizens should be encouraged and not in any way discouraged from relying on those public employees who have been specially trained and paid to deal with these hazards.

In Kapherr v. MFG Chemical Inc., Case # A06A0184, decided December 29, 2005, the Georgia Court of Appeals held that this "Fireman's Rule" applies to emergency medical technicians.

Since my days as a young prosecutor, I have observed the mayhem wrought by drunk drivers. Therefore, I am pleased to sponsor the updated web site for Mothers Against Drunk Driving (MADD) Georgia chapter.

When drunk drivers cause wrecks, Georgia jurors are often ready to send a message that such conduct is unacceptable, even if the actual injury is relatively small. Such verdicts are routinely affirmed by our appellate courts. In Craig v. Holsey, 264 Ga. App. 344 (2004), the jury returned a verdict of $8,801.40 in actual damages and $200,000.00 in punitive damages. On appeal, the large punitive damages award was upheld as being not grossly excessive. Id. at 350. In another case, based upon medical bills of only $643.00, the jury returned a verdict for actual damages of $3,000.00 and for punitive damages in the amount of $300,000.00. Langlois v. Wolford, 246 Ga. App. 209 (2000).

Generally, if a drunk driver who causes a wreck has a record of other DUI incidents, there is a high potential for a punitive verdict. If a thorough examination of his life reveals no other incidents, a jury is somewhat less likely to return a high punitive verdict. Whenever there is sufficient insurance coverage or recoverable assets to make a large verdict collectable, it is worthwhile to thoroughly investigate the drunk driver's prior and subsequent record. At times we have checked records in every locality where a drunk driver has lived, attended college, worked or vacationed to determine whether there were DUI charges even if they were dismissed or plead down to a lesser charge.

The Georgia State Tort Claims Act includes a minefield of procedural requirements for presuit notice of claim and service of claims and suits upon various officials. However, a recent decision written by Supreme Court Chief Justice Leah Sears avoids draconian literalism in at least one of those procedural requirements. It is so technical, and the Department of Administrative Services is so painstaking in flyspecking cases for technical defects, we never handle a tort claim against a state agency without not just rereading the statute but practically diagraming the sentences in the applicable sections of the statute.

OCGA § 50-21-35 states:

In all civil actions brought against the state under this article, to perfect service of process the plaintiff must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual address. The time for the state to file an answer shall not begin until process has been served upon all required persons. A copy of the complaint, showing the date of filing, shall also be mailed to the Attorney General at his or her usual office address, by certified mail or statutory overnight delivery, return receipt requested and there shall be attached to the complaint a certificate that this requirement has been met.

In Camp v. Coweta County, S05G0892, decided January 17, 2006, the Supreme Court held:

Because the statute clearly differentiates between the mailing requirement and the requirements for service of process, we hold that mailing a copy of the complaint to the Attorney General is not necessary to perfect service. Also, because no statutory authority prohibits a late mailing or the filing of an amended complaint, we hold that a plaintiff should be allowed to cure a defect in his compliance with the mailing requirement so long as the delay in providing a copy of the complaint to the Attorney General has not caused prejudice to the State.

This is a sensible decision allowing the injury victims a modicum of procedural grace. However, we will still diagram the sentences in the statute every time we handle one of these cases.

Yesterday the Georgia Court of Appeals ruled for the defense in a sexual harrassment tort suit, rejecting the theories that the employer had ratified the fellow employee's inappropriate advances, as well as claims against the employer based on theories of negligence and intentional infliction of emotional distress. See the full text below.

On 11/8/05, the Georgia Court of Appeals reversed an order of summary judgment in favor of the Georgia Department of Transportation in a case where there was circumstantial evidence that a young driver's wheels had dropped off the edge of the pavement, causing the driver to lose control and fatally strike a tree. The court held there was a genuine issue of material fact regarding whether drop-off on shoulder of road caused driver to lose control of her car, precluding summary judgment in parents' suit against DOT for wrongful death of passenger killed in car-tree collision.

The Georgia Court of Appeals recently upheld a trial court decision to deny summary judgment in a premises liability case where a customer tripped over gasoline hoses at a convenience store gas station. The defendant had superior knowledge that the length of the non-retractable hoses attached to its gasoline pumps could create a tripping hazard to its customers.

Rozy Investments Inc. v. Bristow, below.

Last year, the Tenneessee Supreme Court, in Blair v. West Town Mall, adopted the "mode of operation" doctrine in premises liability cases, holding that "that a premises owner had constructive notice of the presence of a dangerous condition by showing a pattern of conduct, a recurring incident, or a general or continuing condition indicating the dangerous condition's existence." (Thanks to John Day for pointing this out.)

The "mode of operation" doctrine is particularly applicable in cases involving retail chains with virtually identical operations and hazards occurring in thousands of locations.

Although the Tennessee court cited only Tennessee precedents, a 1967 Georgia case has been cited by courts in several other states as precedent for the evolving principle that a store's "mode of operation" can fulfill the superior knowledge or constructive notice requirement in a premises liability case. The seminal case on this point is Colonial Stores, Inc. v. Donovan, 115 Ga. App. 330, 154 S.E.2d 659 (1967), which addressed hazards created by the manner of displaying merchandise in a retail store.

A person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition [cit.] and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care. [cit.] A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which he should have anticipated. [cit.] Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect. [cit.] Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached." 115 Ga. App. at 331-32 (emphasis supplied)

Citing Donovan, in Keaton v. A.B.C. Drug Co., 266 Ga. 385, 387, 467 S.E.2d 558, 561 (1996), the Georgia Supreme Court affirmed a reversal of summary judgment for the defendant. The Court shifted the emphasis from an immediate spill to the merchant's manner of displaying merchandise so as to create the likelihood that a spill would occur, holding that the merchant had constructive knowledge of a hazard, superior to the knowledge of the plaintiff, under the following circumstances.

The jury was authorized to find that by placing a caustic substance contained in a package without some sort of leakage preventor, such as a protective wrap, at a level above the eyes of an average adult, ABC should have anticipated that in the event of a leakage, injury would result. [cit.] Further, by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person's ability to exercise caution by checking to see if the cap was loose. Clearly, had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level. Also, the ability of a plaintiff to avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level." 266 Ga. at 387.

In Rhodes v. K-Mart Corp., 240 Ga. App. 57, 522 S.E.2d 563 (1999), the court reversed summary judgment for the defendant, holding that "a jury issue was created as to whether K-Mart should have anticipated that placing a previously opened box containing a fan on a high shelf would cause injury. A jury issue also exists as to whether K-Mart should have been aware of the hazardous condition." 240 Ga. App. at 59.

In Wallace v. Sears, Roebuck & Co., 196 Ga. App. 221, 396 S.E.2d 41, (1990), the Court of Appeals reversed summary judgment, holding that "the premises were not 'otherwise safe' because appellee itself had created the possibility of misuse of its skateboards by displaying them in such a manner as to give children ready access to them." 196 Ga. App. at 222 (emphasis supplied). Similarly, in Cox v. K-Mart Enterprises of Georgia, Inc., 136 Ga. App. 453, 221 S.E.2d 661 (1975), the Court reversed summary judgment, citing Donovan as authority for the principle that a "person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition . . . and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care." 136 Ga. App. at 454.

In 2002, the Georgia Court of Appeals reversed summary judgment in a static defect fall case, in which merchandise was displayed by an unprotected ramp and ledge. In Myers v. Harris, 257 Ga. App. 286, 570 S.E.2d 600 (2002), the Court held, with regard to the store operator, that "there is a question of fact as to whether the configuration of the merchandise display by Son-Rise was such that the injury sustained was proximately caused by its negligence and whether Myers exercised reasonable care for her own safety." 257 Ga. App. at 288. (emphasis supplied)

Also in 2002, in Wal-Mart falling merchandise case, the Connecticut Appellate Court cited Georgia's Donovan case as authority for proposition that "[w]hether a storekeeper has displayed merchandise in an unsafe manner such that injury to customers is foreseeable is for the fact finder to determine and is to be answered by considering all of the surrounding circumstances." Meek v. Wal-Mart Stores, Inc., 72 Conn. App. 467, 476, 806 A.2d 546, 555 (2002). The Court in Meek further articulated the "mode of operation" theory, holding that "[i]njuries also may result indirectly from a proprietor's defective or negligent display of merchandise that nonetheless are wholly to be expected from the store's mode of operation and may be taken into account by the fact finder when it considers whether the method of display was unsafe." 806 A.2d at 556. (emphasis supplied)

The Michigan Court of Appeals cited Donovan in Osiecki v. Wal-mart Stores, 1997 Mich. App. LEXIS 2131 (Mich. App. 1997), as authority for the proposition that

[A] rational trier of fact could conclude that defendant breached its duty of due care for business invitees by displaying merchandise in such a precariously balanced manner that slight force, not sufficient ordinarily to suggest the existence of a hazard to a customer unaware of the peril, may be sufficient to cause injury, particularly where the storekeeper must anticipate that, in a self-serve retail operation, application of such force by customers is not only foreseeable but intended by the retailer.

The Donovan doctrine has been further developed in "negligent activity" or "mode of operation" cases arising in courts throughout the United States. The Florida Supreme Court concisely summarized the rule as follows:

[T]he negligent mode of operation theory merely recognizes the common-sense proposition of negligence law that the duty of care required under the circumstances may consist of taking reasonable precautions so as to minimize or eliminate the likelihood of a dangerous condition arising in the first instance. Markowitz v. Helen Homes, 826 So. 2d 256, 260 (Fla. 2002)

In Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 733 P.2d 283 (1987), the Arizona Supreme Court held, the "'mode-of-operation' rule looks to a business's choice of a particular mode of operation and not events surrounding the plaintiff's accident . . . [P]roof of a particular mode-of-operation simply substitutes for the traditional elements of a prima facie case -- the existence of a dangerous condition and notice of a dangerous condition."

In another Wal-Mart case, the Hawaii Supreme Court approved the "mode of operation" doctrine as a "logical extension of the traditional rule of premises liability, " holding

where a plaintiff is able to demonstrate that the business proprietor adopted a marketing method or mode of operation in which a dangerous condition is reasonably foreseeable and the proprietor fails to take reasonable action to discover and remove the dangerous condition, the injured party may recover without showing actual notice or constructive knowledge of the specific instrumentality of the accident. Gump v. Wal-Mart Stores, Inc., 93 Haw. 417, 420-21, 5 P.3d 407, 410-11 (2000).

Plaintiff was entitled to a new trial on damages in his wrongful death action against the defendant doctor after his child was delivered stillborn, since the jury's award of zero damages after returning a verdict in favor of the plaintiff and his wife was contrary to the law and inconsistent with the evidence. See Court of Appeals opinion below.

Richard S. Markovits, a professor at the University of Texas Law School, has recently published an interesting but academically dense article, "Liberalism and Tort Law: On the Content and Economic Efficiency of a Liberal Common Law of Torts." While I wish he hadn't used the political perjorative "L word" ("liberal"), I'll assume he intended the first dictionary definition: "Not limited to or by established, traditional, orthodox, or authoritarian attitudes, views, or dogmas; free from bigotry." (I don't normally spend time perusing such theoretical articles, but noticed this one in abstract on the Legal Theory Blog.)

Patrick Hindert over at his blog Beyond Structured Settlements has an interesting post that lists some recommended articles and resources relating to personal injury settlement planning. Among these are:
- Getting To Yes: Helping Reluctant Clients See The Benefits Of Settlement, Elaine McArdle, Lawyers Weekly USA (11/2004) offers up tips on bringing clients around to settlement. As the article discusses, some clients simply need time to accept that settlement might be optimal; for others, an explanation of financial benefits or talk with an impartial third party like a mediator or another lawyer may work.
-- Database of judicial decisions on expert testimony, available at reasonable prices, via the "Daubert Tracker" at mdexonline.com .
-- CrossExam.com database to review an expert's deposition transcripts from prior litigation.

Two cases decided in November 2004 help to clarify the often befuddling concept legal doctrine of "proximate cause" in Georgia jury instructions. In John Crane Inc. v. Jones, 278 Ga. 747, 604 S.E.2d 822 (2004), the Supreme Court of Georgia held that it is error to charge that each of multiple defendants must have been a "substantial contributing factor" in causation, as any contributing factor is sufficient. Similarly, in Thompson v. Thompson, 278 Ga. 752, 605 S.E.2d 30 (2004), the court held that it was reversible error to use the "dominant cause" phrase to explain proximate cause.

These decisions are significant both in simplifying the often confusing issue of proximate cause for jurors, and perhaps in leading to clarification of jury instructions generally.

According to an article in the New York Times on 3/6/05, lawyers in states with caps on noneconomic damages have been largely successful in recasting damages to fit the available categories. The article is titled "Go Ahead. Test a Lawyer's Ingenuity. Try to Limit Damages." It cites a new study by Catherine M. Sharkey, a law professor at Columbia, to be published in the New York University Law Review in May. Prof. Sharkey analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere - figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors' wealth and ages.

Nineteen years ago, the Georgia Supreme Court decided the case of Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), holding that any party who brings or defends an action, or any part thereof, that lacks substantial justification or is imposed for delay or harassment, could be liable for a common law tort of abusive litigation to the opposing party who suffers damage thereby, as a counterlaim in the same civil action.

Injury law is primarily tort law. So what is a tort? (No, it's not a French pastry.)

A Georgia statute defines a "tort" as "the unlawful violation of a private legal right other than a mere breach of contract, express or implied," and states that "a tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual."

Every tort claim must include four basic elements: