Legislation

Georgia Court of Appeals Allows Anti-Gang Activity Lawsuit to Proceed

April 17, 2020 | Benjamin S. Persons, IV

In the 1990s, the General Assembly adopted the Georgia Street Gang Terrorism and Prevention Act (GSGTPA). This law gives prosecutors and local governments powerful tools to address “criminal gang activity” in their jurisdictions. The Act also permits victims of gang violence to file personal injury lawsuits for triple damages. The law does not specify the particular types of lawsuits that can be filed, or even who the possible defendants must be, only that the “finder of fact”–i.e., a jury–must first decide if the plaintiff’s action is “consistent with the intent of the General Assembly” when it adopted the GSGTPA.

Star Residential, LLC v. Hernandez

The Georgia Court of Appeals recently addressed the application of the GSGTPA to a personal injury lawsuit, Star Residential, LLC v. Hernandez, brought by a man against the owner and operator of his apartment complex. Specifically, the plaintiff said he was “shot from behind in an unprovoked attack and robbery” committed by three unidentified men. The plaintiff was paralyzed as a result of his gunshot injuries.

Georgia Justices Reject Emotional Distress Claim Over Mishandling of Child’s Remains

March 17, 2017 | Benjamin S. Persons, IV

An often overlooked element of many personal injury cases is the emotional harm sustained by the victim. Georgia courts have long recognized “negligent infliction of emotional distress” as a tort, but recovery is generally limited to cases in which the emotional distress is connected to a “physical impact.” In other words, if you are physically hurt in a car accident, you can sue the negligent driver for your emotional trauma, but you cannot seek damages for purely emotional scarring, i.e. watching a loved one die in an accident.

Coon v. Medical Center, Inc.

In 2000, the Georgia Supreme Court made an exception to the “physical impact rule,” holding that when a parent and child are both physically injured in the same accident, the parent can seek damages for the emotional distress caused by watching the child “suffer and die.” Recently, the state Supreme Court declined to extend this exception to another case in which a mother suffered emotional harm after watching a hospital mishandle the remains of her daughter.

Understanding the Legal and Safety Risks of Texting While Driving

January 7, 2017 | Benjamin S. Persons, IV

“Keep your eyes on the road,” is something every parent tells their teenager when teaching them how to drive. But paying attention to the road has become increasingly difficult in recent years with the advent of smartphone technology that makes it easy for people to text or chat with their friends while driving. “Distracted driving” is now considered a public safety problem on par with drunk driving.

More Than 3,000 Distracted Driving Deaths Every Year

The dangers of distracted driving are quite real. According to a recent New York Times article, the National Highway Traffic Safety Administration found that 272 teenagers were killed throughout the country in 2015 in “distraction-affected” car accidents. Overall, 3,263 out of 3,477 crash-related deaths in 2015–94%–involved distracted driving.

Bar Owner Not Liable for Customer’s Drunk Driving Death

November 21, 2014 | Benjamin S. Persons, IV

Is a bar owner liable for the death of a customer who drinks to excess and kills himself in a subsequent automobile accident? In Georgia, the answer is usually “no.” The Georgia Supreme Court recently elaborated on this principle in rejecting a wrongful death lawsuit brought by the wife of a man who died precisely in this manner.

Dion v. Y.S.G. Enterprises, Inc.

In September 2011, a man entered a sports bar at around 2:30 in the afternoon. He proceeded to drink for the next eight hours, leaving the bar just before 11 p.m. He was visibly intoxicated and a bar employee unsuccessfully attempted to take the man’s car keys. After leaving the bar, the man got into a single-car accident and died. His reported blood-alcohol level at the time of his death was .282, more than three times the legal limit.

Georgia Court of Appeals Dismisses Negligence Lawsuit Over Chemical Fire

January 3, 2014 | Benjamin S. Persons, IV

Does a company admit negligence when its spokesman apologizes for an accident on its property? The Georgia Court of Appeals recently considered such a case and held that such an apology is not, without additional evidence, enough to sustain a lawsuit against the company. The appeals court affirmed a trial judge’s decision to award summary judgment to the company.

Law v. BioLab, Inc.

In the early morning hours of May 25, 2004, a fire erupted at the BioLab chemical plant in Rockdale County. BioLab manufactures water treatment products for swimming pools and spas. According to the U.S. Environmental Protection Agency, the fire occurred in a building that housed “approximately 12.5 million pounds of pool chemicals and oxidizers.” Rockdale County officials ordered a mandatory evacuation for a 1.5-mile radius surrounding the BioLab site.

Federal Judge Says Insurer Liable for “Uninsured Motorist” Coverage In Accident Caused by Georgia County School Bus

December 30, 2013 | Benjamin S. Persons, IV

An “uninsured motorist” policy provides coverage to the insured when he or she is the victim of an accident caused by another party that has insufficient resources to pay the full amount of any legal damages. In this context, “uninsured” also means under-insured. Thus, for example, if Driver A is in an accident caused by Driver B, and Driver B’s insurance only covers half of the damages awarded in a subsequent lawsuit, Driver A’s uninsured motorist carrier would pay the remaining half.

But what if Driver B is an agent of the State of Georgia? Normally, state agencies (and their employees) enjoy “sovereign immunity” from most civil lawsuits. The idea is that a state cannot be sued in its own courts without its consent, which is normally granted through legislation. However, when a local government in Georgia purchases liability insurance, sovereign immunity is waived up to the limit of said policy. What does this mean for accident victims with uninsured motorist coverage? A federal judge in Savannah recently attempted to answer this very question.

FCCI Insurance Company v. McLendon Enterprises, Inc.

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 Child Safety and Product Liability Update – Drop-Side Cribs Outlawed For Causing Numerous Infant Deaths

September 19, 2011 | Benjamin S. Persons, IV

The traditional drop side crib that millions of parents have trusted and relied on to cradle their babies for generations has now been outlawed by the government. After many recalls and the deaths of over 30 infants and young toddlers over the last 10 years, drop side cribs will no longer be a choice for parents when shopping for a crib. The Consumer Product Safety Commission came to a unanimous vote to ban all operations involving the drop side crib in which on side moves up and down, so that a mother or father can easily remove their child. The ban of all operations, involving this crib include: a ban of manufacturing, selling, or reselling in any way. The government has approved a new standard that ensures the safety of all children that need to be in a crib. Cribs will only have fixed sides so children can’t climb out or fall out over the side. The government has also banned all child care institutions, as well as hotels, from using drop side cribs in their establishments.

Drop sides cribs have been criticized for decades for many reasons. These drop side cribs have been known to have malfunctioning hardware, cheaper plastics, and most commonly, assembly problems. Assembly problems have caused numerous instances in which the drop side rail detaches from the crib itself. When this detaching happens, it commonly creates a V-gap between the mattress and side rail. This can cause an infant or toddler to get stuck in this V gap and suffocate causing a needless death. A mother in New York lost her 10 month old son in 1997 when his side rail detached and his neck became trapped between the mattress and side rail. A mother wants to feel a sense of safety when she puts her infant or toddler down to sleep and not have to worry about them possibly suffocating or dying through the night. It is an awful feeling to wake up to your son or daughter trapped and not be able to help them.

Are Physician’s Assistants More Likely To Commit Medical Malpractice than Doctors?

August 26, 2011 | Benjamin S. Persons, IV

A new study published by the Journal of the American Academy of Physicians Assistants finds that a majority of emergency room doctors do not believe the Physician Assistant’s (PA’s) are not more likely to commit malpractice. The study questioned 1000 members of the American College of Emergency Physicians in 2004 and then again five years later. 72% of doctors disagreed or strongly disagreed that PA’s were more likely to commit malpractice and the number dropped to 68% in 2009. The study also stated that doctors believe increased utilization of PA’s in emergency rooms may improve patient communication, decrease wait times, increase patient satisfaction, and therefore decrease malpractice risk.

Doctors in the study said they felt the most important factors in decreasing the risk of malpractice with PA’s was increased clinical experience, completion of post-graduate residency programs, and appropriate supervision by physician.

As a Georgia Medical Malpractice Attorney I can only hope this study is accurate as both PA’s and nurse practitioners are being used more and more frequently in most areas of health care, and I have seen the horrific consequences that can result from medical malpractice. Over 225,000 people die each year due to medical malpractice, with nearly half of those being in the emergency room, according to the Journal of the American Medical Association. In fact, medical malpractice is the third leading cause of death in the United States after heart disease and cancer.

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.