Personal Injury

Appeals Court Holds Estate Cannot Directly Sue Insurer Over Fatal Van Accident

March 19, 2015 | Benjamin S. Persons, IV

Motor carriers—persons and corporate entities who contract for the transportation of household goods or passengers—must carry insurance in order to legally operate in Georgia. Georgia law further provides a person injured as the result of a motor carrier’s negligence may directly sue the carrier’s insurance company for damages. But there are exceptions to this rule, as the Georgia Court of Appeals explained in a recent decision.

Mornay v. National Union Fire Insurance Co.

This case arose from the death of a 69-year-old woman who had been living in a nursing home. The woman was also receiving Medicaid benefits. The State of Georgia had a contract with a motor carrier to provide transportation services for Medicaid patients. The contractor, in turn, hired a subcontractor to help carry out the state contract.

Georgia Appeals Court Holds Road Contractor Not Responsible for Car Accident

March 14, 2015 | Benjamin S. Persons, IV

In a product liability case, a plaintiff attempts to hold a defendant responsible for the negligent design of a product that caused injury. But, what if the “product” is a public roadway maintained by private contractors? Can a plaintiff injured in an automobile accident caused by a defectively maintained road sue the contractor responsible for the maintenance? The Georgia Court of Appeals recently addressed this question.

Brown v. Seaboard Construction Company

The plaintiff in this case was injured in a one-car accident. She was a passenger in a vehicle traveling down a causeway. The car hit a pothole filled with water, causing the vehicle to hydroplane and collide with a nearby guardrail.

Why Do Federal Courts Have Jurisdiction Over Some Georgia Personal Injury Cases?

February 27, 2015 | Benjamin S. Persons, IV

Most personal injury cases are filed in state court. That is because most torts, including personal injury, are governed by state law. There are, however, times when a personal injury case is filed in state and then removed (transferred) to a federal court. This is typically done by out-of-state defendants, usually corporations, who believe the federal court gives them an advantage.

Federal courts are generally thought to be friendlier towards defendants than state courts. One reason for this is that, although state law still governs the underlying personal injury lawsuit, federal courts follow different rules regarding the admission of evidence than state courts. The federal rules are uniform throughout the country, while the rules in a Georgia state court are specific to the state.

That said, a defendant cannot remove a case from state to federal court unless certain legal requirements are met. First and foremost, there must be complete “diversity” among the parties. This just means the plaintiff and defendant must be residents of different states. For example, if a Georgia plaintiff files a personal injury lawsuit against a business incorporated in Florida, there is complete diversity.

Indemnification Clause Does Not Protect Railroad From $16 Million Judgment

February 17, 2015 | Benjamin S. Persons, IV

Indemnification is an important concept in personal injury law. Basically, if A indemnifies B, and C sues B for negligence and wins, B can then sue A to recover some or all of the cost of paying the damage award to C. Business contracts often contain indemnification clauses to address potential personal injury lawsuits arising from the relationship.

CSX Transportation, Inc. v. General Mills, Inc.

Here is a recent example of how courts apply Georgia law to indemnification clauses. This dispute involved an alleged breach of contract. The parties were CSX Transportation, the railroad company, and cereal manufacturer General Mills, which operates a plant in Newton County. General Mills hired CSX to construct a private “sidetrack” connecting its plant with CSX’s main railroad line. Under the agreement, General Mills had the right to handle some of the “switching” operations—the process of moving and connecting railroad cars to a train—independent of CSX. Accordingly, the contract contained an indemnification clause whereby General Mills “assume[d] all risk of loss, damage, cost, liability, judgment and expense (including attorneys’ fees) in connection with any personal injury” arising from any switching it oversaw.

Federal Judge Says Mother Cannot Sue for Stillborn Child’s “Pain and Suffering”

February 13, 2015 | Benjamin S. Persons, IV

The death of a child is always a tragedy for the parents. When that death is the result of negligence or medical malpractice, the parents will understandably seek justice against the responsible professionals. But, justice is a more complicated matter when the child dies before birth. A recent decision by a federal judge in Atlanta addresses the difficulty raised when trying to decide when life begins for purposes of the law.

Durden v. Newton County

This sad case arises from a 2012 incident involving a pregnant woman incarcerated in Newton County. An Alabama-based contractor helped provide the woman’s medical care while in prison. The prison and the contractor understood this was a “high-risk” pregnancy.

Federal Judge Says Mother of Injured Child May Sue Mall Manager

January 9, 2015 | Benjamin S. Persons, IV

A key step in bringing any personal injury lawsuit is deciding what court to file in. While personal injury claims are mostly governed by state law, federal courts have jurisdiction to hear cases where there is “complete diversity” among the parties. This means that none of the plaintiffs can reside in the same state as any of the plaintiffs. For example, if the plaintiff is a Georgia resident and there is one defendant who resides in Florida, there is complete diversity and the case should be heard in federal court. However, if there is a second defendant who also resides in Georgia, the case would be tried in state court. (Corporations usually “reside” in the state of their incorporation, not necessarily where they do business.)

Ishmael v. General Growth Properties, Inc.

Here is an illustration of how courts sort out jurisdiction. This case arises from a toddler injured at a mall in Augusta. The child fell into a water fountain located inside the mall. The child’s mother sued a number of defendants, accusing them of maintaining a “dangerous condition” by locating the fountain near a children’s play area.

Supreme Court Rejects New Trial Based on Alleged Juror Bias

December 19, 2014 | Benjamin S. Persons, IV

While many personal injury lawsuits settle without the need for a trial, plenty of cases still go before a jury. Jurors are supposed to be fair and impartial. Attorneys for both sides question prospective jurors to screen them for possible biases. But the system is not perfect. The United States Supreme Court recently dealt with a case where there was evidence of juror bias that may have unduly affected the verdict in favor of a defendant.

Warger v. Shauers

Personal injury cases, such as those arising from an automobile accident, are almost always tried under the law of the state where the accident took place. But when the parties are from different states—say, the plaintiff lives in Georgia and the defendant is an insurance company based in Delaware—the case is tried in a federal court. This means that, while the underlying negligence claim is decided according to the forum state’s laws, the rules governing the trial itself are determined by Congress and the Supreme Court.

City Not Liable for Accident Caused by Officer “On Loan” to County

December 1, 2014 | Benjamin S. Persons, IV

Normally, if an employee acting within the scope of his or her employment commits negligence, the employer is considered liable. Under Georgia law, one exception to this rule exists when the employer “lends” the employee to another employer. If the employee then commits negligence while working on loan to the second employer, the first employer is not liable. The Georgia Court of Appeals recently applied this “borrowed-servant” exception in a personal injury lawsuit brought by a woman injured by a police officer.

Garden City v. Herrera

The incident took place in July 2010. The victim was driving her vehicle in Chathan County. A Garden City, Georgia, police officer, was driving his vehicle and struck the victim’s car. The victim suffered serious injuries as a result and sued numerous parties, including the City of Garden City.

Appeals Court Says Hero Security Officer Cannot Recover Against Mall Owner

November 10, 2014 | Benjamin S. Persons, IV

In March 2007, a security officer working at an Atlanta mall intervened to stop a robbery at a jewelry store. The officer shielded a mall patron’s body as one of the robbers opened fire. The officer was seriously injured and died several years later. Two other people were also injured by gunfire.

Unfortunately, the security officer’s heroism that day did not help his estate in court. The officer initially filed a premises liability lawsuit, accusing the mall’s owners of negligence in managing the property. A trial court granted these defendants’ motion for summary judgment, and in opinion issued on November 3rd of this year, a three-judge panel of the Georgia Court of Appeals affirmed.

Swope v. Greenbriar Mall Limited Partnership

Store Owner Not Liable for Hazard Created by Child Running in the Aisles

October 27, 2014 | Benjamin S. Persons, IV

What is the liability of a store owner for a potential tort committed by members of the public? The Georgia Court of Appeals recently addressed this question. The case involved a woman who claimed she was injured as the result of a collision with an unsupervised child.

Ingles Markets, Inc. v. Carroll

According to the plaintiff, she visited a grocery store in Villa Roca, Georgia, one afternoon in February 2012. As she walked down a store aisle, the plaintiff said a boy—about 11- or 12-years old—ran down the aisle, knocked into her, and caused her to fall. The plaintiff then filed a personal injury lawsuit against the child’s parents and the store.