Court Decisions

Georgia Court of Appeals Holds State Must Pay Attorney Fees Under “Offer of Settlement” Rule

June 21, 2013 | Benjamin S. Persons, IV

In 2005 the Georgia legislature adopted a controversial tort reform law that included an “offer of settlement” provision. Under this rule, either party in a tort action can make a pretrial settlement offer. If the other party rejects they offer, they can be held liable for the offering party’s attorney fees depending on the outcome of the subsequent trial. In the case of a plaintiff’s offer, the defendant is liable if the jury returns a judgment that is more than 125% of the rejected offer. Conversely, the plaintiff is liable if the jury returns an award that is less than 75% of a rejected defense offer.

A Prisoner Successfully Sues the State

While the offer of settlement rule clearly applies to personal injury lawsuits among private parties, what about torts committed by employees of the State of Georgia? The Georgia Court of Appeals recently addressed this question arising from a lawsuit brought by an inmate at Walker State Prison in Rock Springs. The inmate, David Lee Couch, had volunteered to help paint the prison warden’s home. The house was under renovation, and Couch fell through a rotted part of the floor. He said he was never warned about the dangerous condition of the floor before entering the home, which was owned by the Georgia Department of Corrections.

Tesla Motor’s Libel Suit Against Top Gear Hits A Roadblock

March 7, 2013 | Benjamin S. Persons, IV

As a fan of the BBC series Top Gear and a civil litigation lawyer, it was with peaked interest I read the recent decision of Tesla Motors v. British Broadcasting Corporation, England and Wales Court of Appeals (Civil Division). The story of this case began with a 2008 Top Gear episode with a road test of the Telsa Roadster, conducted and narrated by the show’s host Jeremy Clarkson. During the episode, Jeremy put the vehicle through it’s paces and was rather critical of it’s performance. Tesla Motors was not pleased and sued BBC for libel alleging Top Gear made false statements about the Roadster, specifically comments by Jeremy that the vehicle only made it 55 miles on the track instead of Tesla’s promoted range of 200 miles.

As an American personal injury lawyer, I admittedly know very little about the merits of pursuing a libel suit in the United Kingdom’s court system. However, it makes no sense for a car manufacturer to blame it’s lackluster sales on a Top Gear episode. Anyone that watches the show knows its primary goal is to entertain car enthusiasts. Top Gear doesn’t claim to be some sort of British Consumer Reports conducting objective scientific tests on the best cars to buy. A typical test is conducted on a track at breakneck speed or some sort of crazy race against a jet, train or dog sled. Rarely will the average motorist ever find himself driving a vehicle under the insane conditions a car finds itself on Top Gear, which is exactly what Lord Justice Martin Moore-Bick wrote in the published opinion.

Is it Illegal to Flash Your Headlights at Other Motorist to Warn of Speed Traps? Florida Man Wins Suit that Allows Motorists to Flash Lights

November 11, 2011 | Benjamin S. Persons, IV

At some point you or someone you know has probably flashed their headlights into oncoming traffic to warn them of an upcoming speed trap, and probably never worried about the fact there may be a crime being committed. But is it really illegal? This situation is exactly what got Erich Campbell, a college student from Land O’ Lakes, Florida, ticketed in December of 2009. Though Mr. Campbell felt he was just being helpful, the Florida Highway Patrol did not share his sentiment, and wrote him a citation for flashing his lights to warn oncoming of traffic of a speed trap. He told the Florida Highway Patrol at the time that he had no idea providing a warning to fellow motorist was a violation of any laws.

After researching the situation, Mr. Campbell decided he was not going to take the ticket lying down, and felt what he did was completely permissible under the law. In September he filed a lawsuit on his own behalf, as well as for every other in driver in Florida ticketed for the same violation over the previous six years. The lawsuit accused police of misinterpreting state law and violating motorists’ free speech rights. He further claimed that there was no law on the books that would prevent him from warning other motorist of police up ahead. Campbell’s attorney said he felt that police were misinterpreting a law that’s meant to ban drivers from having strobe lights in their cars or official looking blue police lights. Campbell said that most of the tickets that were issued were, “Frustrated police officers who feel they were disrespected. When someone comes along and rats them out, they take offense to it.”

Georgia Supreme Court to Decide Property Owner’s Responsibility For Fatal Alligator Attack

October 25, 2011 | Benjamin S. Persons, IV

The Georgia Supreme Court has agreed to hear a case that tests the extent to which property owners are responsible for others injured by animals on their property.

The Homeowners Association of The Landings, a subdivision on Skidaway Island, just outside of Savannah, GA, is being sued in relation to the death of Gwyneth Williams. Williams, 83, was house sitting at her daughter’s home inside the Landings, and was attacked by an 8-foot alligator in October 2007. The alligator was later killed, and both Williams’ hands as well as one of her legs was found inside the stomach of the animal
In Georgia, the law normally protects property owners from lawsuits stemming from accidents caused by wild animals, but lawyers representing Williams’ family say this is a different situation. Attorney Michael Connor says that there nothing at all wild about the property in question, “It is a very contrived environment. There are 160 lagoons on the development. And all those lagoons are man made.”

Connor further explains, “The landings stocked the lagoons with the fish, which fed the alligators, and connected the waterways to create an “alligator superhighway.” He says the Landings, “Knew the alligators were dangerous,” and they have had prior reports of problems. Connor feels that the alligator could, and should have, been easily discovered and removed by a responsible maintenance program by the HOA of the Landings.

Jonas Jennings, Sues His Former Football Coach, Jim Donnan, Alleging Donnan Lured Him Into a Ponzi Scheme

October 5, 2011 | Benjamin S. Persons, IV

In a case that may have particular interest to University of Georgia Football Fans, ex-UGA football coach Jim Donnan is being sued by one of his former players Jonas Jennings, who was a standout for the Dawgs between 1996 and 2000, and entered the NFL Draft in 2001. Jennings is suing his old coach for $950,000 in lost principal and earnings he says was promised to him for investing in the company GLC Limited, a company Donnan was working for on a commission basis. GLC was pitched by Donnan as retail liquidation company, with it’s principal business being in the re-sale of consumer products.

In the lawsuit Jennings blames Donnan, who he describes as a father figure and mentor, for deceiving him into investing money to go to furniture and appliances that were to be sold at a profit. Jennings says Donnan portrayed himself as officer or someone with control over GLC to lure Jennings into investing.The lawsuit alleges that in reality Jennings money was used in a Ponzi Scheme for the benefit of Donnan (who was not an officer), with Jennings’ capital going to prior participants in the same investment, rather than to purchase inventory for a viable business enterprise.

Jennings is only one small part of Donnan’s troubles, as the FBI and IRS began investigating his activities with GLC back in April of this year, and the findings seem to paint a troubling picture. Donnan was the first major investor in GLC, investing more than $5 million of his own money, and was chiefly responsible for gaining additional capital for the company. Bankruptcy court documents for GLC, who filed for protection earlier this, show that investors sank nearly $82 million into GLC, but that less than $12 million was actually spent on inventory, with at least $13 million in missing investor money.

According to GLC, Donnan made more than $14.5 million through commissions of 15 to 20 percent for any investment he solicited. Oddly the investors he solicited, including former University of Oklahoma coach Barry Switzer, Virginia Tech football coach Frank Beamer, and Texas Tech football coach Tommy Tuberville all lost substantial sums of money.

In July of this year GLC also sued Donnan, who they say in the lawsuit, “Is substantially, if not principally, responsible for the initiation and operation of a far-reaching Ponzi scheme that defrauded GLC and it’s investors of approximately $27,752,159.”

The Supreme Court of Georgia Ruled a Jury Will Be Allowed to Hear Unusual Medical Malpractice Suit

September 29, 2011 | Benjamin S. Persons, IV

The Georgia Supreme Court recently published an opinion in the case of O’Brien v Bruscato, allowing suit to go forward involving a mentally ill Georgia man that brutally killed mother. Vito Bruscato, the father and guardian of Victor Bruscato brought a medical malpractice suit against Victor’s psychiatrist for discontinuing his medication shortly before the homicide of Victor’s mother. Victor, who had a history of violence, crushed his mother’s head with a battery charger and proceeded to stab her 72 times on August 15, 2002 at the family’s Norcross Home. During his interview with police, Victor Bruscato, told them he knew killing his mother was wrong but that “the devil made him do it.”

The suit alleges Dr. O’Brien’s negligence in discontinuing his son’s medication caused him to become psychotic and kill his mother. The two drugs, Zyprexa and Luvox, are powerful prescription that Bruscato was taken off of several weeks before killing his mother. The court records in the case indicate that Victor Bruscato was assigned to Dr. O’Brien in 2001in a community health center in Gwinnett County. Expert witnesses have testified that anti-psychotic drugs he was prescribed were helping him manage his violent tendencies. In May 2002, O’Brien discontinued the medications because he wanted to make sure that Bruscato wasn’t developing a “dangerous syndrome.” After the discontinuation of the medication, Bruscato claims he began having nightmares and the claimed the devil was ordering him to do bad deeds.

The Supreme Court noted in it’s decision that an expert psychiatrist testified “the chemical changes that resulted from withholding medication caused Bruscato to decompensate and experience the return of the most severe symptoms of his medical disorder, including auditory command hallucinations, agitation, and hostility. The expert concluded that O’Brien’s treatment manifested gross negligence and a disregard of the consequences of leaving a historically violent and potentially psychotic patient unmedicated.”

Appeals Court Rejects Medical Monitoring for Toxins in 2007 Train Derailment

September 15, 2011 | Benjamin S. Persons, IV

In an interesting decision out of the 6th Circuit, a three-judge panel of the U.S. Circuit Court of Appeals upheld a judgment for CSX Transportation Inc. last week in a case brought by a group of citizens seeking medical monitoring for the small Ohio town of Painesville, after a train derailment in 2007. When the train derailed it was carrying substances that included glycerin, alcohol, ethanol, and butane. All of theses substances are known to be dangerous when inhaled in large quantities, and butane is an extremely volatile substance, and inhaling it can cause, narcosis, asphyxia, and cardiac arrhythmia. After the accident more than 500 families were evacuated in the half-mile area surrounding the site. In addition, some of the 3000 gallons of Ethanol that was spilled leaked into a nearby creek. CSX admitted in court filings that improper track maintenance, including using the wrong size rail as part of a repair, caused the crash.

The residents who brought the suit against CSX were attempting to persuade the court to force CSX to pay for the expense of medically monitoring the area for an extended period of time to assess any risk the spill might be causing to the residents near the site of the derailment. The appeals court said the plaintiffs failed to produce evidence creating a genuine issue. Instead, the court says, that they relied on a conclusory statement by a doctor that, “a reasonable physician would prescribe for the Plaintiff and the putative class a monitoring regime.”

Daniel Bechenel Jr., a lead lawyer in the case, called the derailment an example of railroads putting people in danger and imminent risk by cutting safety precautions and repair standards. Though this may be true, the Appeals Court felt that the overall risk was too small to force CSX to pay for the medical monitoring.

Recent Georgia Supreme Court Decision a Victory for Victims of Drunk Drivers

July 19, 2011 | Benjamin S. Persons, IV

The Georgia Supreme Court in Flores et al. v. Exprezit! Stores 98-Georgia, LLC, ruled last week that a convenience store can be sued if it sells alcohol to a visibly intoxicated person who subsequently injures others. The original suit involved a Clinch County convenience store that sold a twelve pack of beer to a visibly intoxicated man, Billy Joe Grundell. About four hours after the purchase, Grundell’s vehicle crossed the center lane of a highway and collided with a van head-on in an accident that took his life as well as five others, including children who were six and three months old. At the time of the accident Grundell’s blood alcohol level was twice the legal limit.

The decision revolved around the interpretation of Georgia’s “Dram Shop Act,” which provides that a person who sells, furnishes, or serves alcohol to an intoxicated person of lawful drinking age shall not be liable for injury, death, or damage that person causes because of their intoxication. However, the act also states that a person who knowingly sells alcohol to a noticeably intoxicated person when they know that person will soon be driving may become liable.

Fulton County Judges’ Crack Down on No Show Jurors

July 7, 2011 | Benjamin S. Persons, IV

Thomas Jefferson wrote, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” Jury duty, like voting, is a right and privilege of every citizen. Every day people are empowered to decide important issues that potential impact everyone in our community.

An alarming story came out in the The Atlanta Journal Constitution on Sunday that almost half of jurors summoned for jury duty in Fulton County fail to show. A crackdown has begun on jurors who skip jury duty by the Fulton County courts, but has so far provided little response. Last month, the Superior Court sent out 15,000 letters to no show jurors and warned them of contempt of court charges, $500 fines, and 20-day jail stays if they didn’t reschedule or explain themselves. To date only 48 percent of people receiving the letters have either called or written back.

When jurors do respond the most common reasons given for skipping were: “I never got the summons, “I traveled out of state,” and “I moved.” Regardless of the reason this is a very serious problem that is very costly for Fulton County and ultimately you the taxpayer. Furthermore, it’s important to remember that our entire system of justice comes down to one person: you, the juror. Taking the time to serve as a juror, to listen to all the evidence and to decide honestly and fairly is perhaps the most important duty a private citizen can perform. There is no question that everyone’s time is valuable, and that taking the time to serve as a juror might seem inconvenient, but it is time well spent, as our justice system depends on it. Citizens of this country enjoy freedoms and legal rights many in other countries only dream of. The protection of our rights and liberties is achieved through a strong court system, and serving as a juror is a cornerstone of the system.

Hot Coffee The Movie; A Documentary About The Enemies of Civil Justice

June 29, 2011 | Benjamin S. Persons, IV

Winston Churchill once said “A lie gets half way around the world before the truth has a chance to get its pants on.” Unfortunately this is the case with the civil justice system. If you are an HBO subscriber, the new documentary “Hot Coffee” is definitely worth taking the time to watch. The documentary, made by Susan Saladoff, takes a look at tort reform in America, and provides a look into the other side of the argument of so called “frivolous,” lawsuits. “Hot Coffee” tells the story of four families who have been left emotionally and financially devastated by caps on punitive damages and mandatory arbitration. It also seeks to dispel the myth that American courts are currently flooded with “frivolous” lawsuits.

One of the main stories of the documentary is the lawsuit of Stella Liebeck, better known as the woman who sued McDonald’s over burns she received from a cup of coffee purchased from the restaurant chain. This is the lawsuit that everyone seems to use when they use the term “frivolous” lawsuit. What the documentary points out is that McDonalds and other corporations used this case by twisting the facts to promote tort reform, claiming that this was a ridiculous lawsuit, and turning Ms. Liebeck into the punch line of jokes all over the country. In reality Ms. Liebeck was a 79-year-old woman who was burned so severely while attempting to put cream and sugar in her cup of coffee that she required skin grafts. When Ms. Liebeck brought the suit she was only attempting to cover the difference in her medical cost and what Medicare was paying. On top of that, McDonalds had already received over 700 complaints of coffee burns that they were keeping at between 180 and 190 degrees Fahrenheit, but these are the details that McDonalds managed to keep out of the media all these years to promote their own interest.

Ms. Saladoff says she made the documentary because she wants people to be empowered to take our justice system back. She believes that the American civil justice system has been hijacked by groups like the U.S. Chamber of Commerce who are only concerned with the economics of big business interest, and have no concern for the public at large. Saladoff has also created a Hot Coffee “Take Action” page, for people feel strongly about her film, where she shows many things you can do to fight against corporate interest trying to take away American’s rights in the civil justice system.