Personal Injury

Georgia Appeals Court Reviews Tragic Car-Truck Accident, Finds Neither Driver Responsible

August 4, 2013 | Benjamin S. Persons, IV

Sometimes there’s a deadly automobile accident where neither driver is legally at fault. The Georgia Court of Appeals recently made just such a finding with regards to a June 2010 highway accident just outside of Albany. While a trial judge thought there were issues for a jury to sort out, a three-judge panel of the Court of Appeals unanimously agreed the undisputed facts showed neither party could be held legally responsible.

The accident involved a woman driving her car on a northbound lane. A truck in the southbound lane suddenly veered across the turning lane and struck the car. The woman driving the car suffered a broken leg and other injuries. The man driving the truck sustained a head injury and could not recount the details of the accident to a police. It was later discovered the truck driver had suffered a stroke just before the accident, and he died a few weeks later.

The automobile driver sued the truck driver’s estate for negligence. The truck driver’s executor responded by filing a negligence counterclaim against the automobile driver. The trial judge refused both parties’ motions for summary judgment but allowed them to appeal that decision to the Court of Appeals.

Georgia Appeals Court Reinstates Lawsuit of Unarmed Man Shot by Off-Duty Police Officer

July 26, 2013 | Benjamin S. Persons, IV

An off-duty police officer providing security for an apartment building shoots an unarmed man who was simply delivering some medication to a disabled relative. Is the apartment building owner liable? Maybe, according to a recent decision by a divided Georgia Court of Appeals.

The victim in this case visited his aunt’s apartment building and parked in a handicapped-designated space. This aroused the suspicion of the off-duty officer. It was the officer’s first day working private security for the building. He had been hired by another police officer, who previously monitored the building alone.

After the victim completed his delivery and exited the building, the off-duty officer confronted him. The officer later testified that the victim panicked, entered his car and ingested what the officer (falsely) claimed was cocaine. The officer tried to physically block the victim’s car and repeatedly shouted him to stop. Ultimately, the officer smashed a window in the victim’s car and fired his weapon. The officer later claimed–again, falsely–that the victim was reaching for a gun.

Georgia Supreme Court Rules for Insurance Company In Long-Running Gas Explosion Case

July 5, 2013 | Benjamin S. Persons, IV

Insurance policies, such as those insuring commercial properties, usually contain a subrogation clause. In this context, subrogation means that when the insured suffers losses as the result of a third party’s conduct, the insurance company assumes the right to sue that third party for damages. Having paid the insured person’s claim, the insurance company then seeks compensation from the party who caused the claim to be paid in the first place.

But what happens when the insured party believes it has not been fully compensated for his or her loss? Must the insurance company “make whole” the insured before pursuing its own subrogation rights? This past May, the Georgia Supreme Court addressed that question and answered “no,” at least with respect to insurance policies covering commercial properties.

Justices Decline to “Invent a Right” To Be “Made Whole”

Georgia Court Upholds Disputed Accident Settlement, Reverses Award of Attorney’s Fees

June 29, 2013 | Benjamin S. Persons, IV

What constitutes a binding settlement in a personal injury matter? The Georgia Court of Appeals recently addressed this question in a case arising from a 2010 motor vehicle accident. The parties disagreed as to whether their settlement talks produced an enforceable agreement.

The accident in question seriously injured one man, who incurred significant medical expenses. The driver of the other vehicle that caused the victim’s injuries had an insurance policy with a $25,000 limit. The victim offered to settle with the driver for that amount.

The victim requested a $25,000 check, together with a limited-liability release and proof of the coverage limit by a certain date. The driver’s attorney responded by seeking clarification with respect to the terms of the limited-liability release. The attorney provided sample language and invited comments from the victim and his attorney. The victim’s attorney then responded with his own draft of a release. The driver’s attorney responded with additional proposed revisions.

Georgia Supreme Court Addresses Impact of 2008 Amendment to Uninsured Motorist Insurance Requirements

June 28, 2013 | Benjamin S. Persons, IV

Although personal injury is generally regulated by state law, federal courts often hear such cases because of what’s known as diversity jurisdiction. That is to say, when the plaintiff and defendant are citizens of different states, the defendant may seek to transfer–or remove–the case from state to federal court. Diversity can exist even if one or both parties are a corporation or similar entity; a corporation is a “citizen” of the state where it is incorporated or has its principal place of business.

When federal courts hear personal injury cases, they must still follow the established law in the state where the plaintiff filed suit. On occasion, a federal court will ask the state’s supreme court to clarify certain questions of state law. The Georgia Supreme Court did just that in a June 17 opinion arising from a personal injury lawsuit.

Does a 2008 Law Change a Policy Issued In 2001?

FDA Issues a Class I Recall of More Than Five Million CooperVision Contact Lenses

November 17, 2011 | Benjamin S. Persons, IV

CooperVision Inc. announced this week they are expanding a recall first issued in August and are recalling more than five million contact lenses. The contacts were sold under the brand name Avaira, and are being recalled because they may be tainted with silicone oil residue that could result in blurred vision, eye injuries, and severe pain. The recall comes after the FDA issued a Class I warning about the lenses last month. Class I warnings are the most serious warning issued and involve problems in which there is a reasonable chance of serious health consequences or death.

By the end of October the FDA had received more than forty reports of problems associated with the contact lenses. According to the FDA, at least fifteen of the lenses were sold under the Avaira Toric label, and at least two were sold under the brand name Avaira Sphere. Avaira Toric users have reported a wide range of problems with the lenses, from hazy vision to the much more serious condition of torn corneas that require emergency surgery.

Some Product Liability Attorneys have accused CooperVision of issuing a “stealth recall” that did not properly alert many consumers to the possible danger.The FDA apparently agrees and has said that the company should have put more effort into making customers of the recall.

Workers Compensation Insurance Company Initially Denies Claim of Man Injured While Risking His Life for Others During Tornado

November 16, 2011 | Benjamin S. Persons, IV

Joplin, Missouri was destroyed by an EF-5 tornado in late May of this year. The storm resulted in at least 160 deaths and more than 900 injuries in the small town. One of those injured was Mark Lindquist, a social worker who risked his life in an effort to save three developmentally disabled adults during the storm.

On the day of the storm, Lindquist had just driven the three men to a group home when the tornado warning sirens went off. Without any time to carry the men to safety, Lindquist put a mattress over the men and laid on top of it for their added protection.

Lindquist was found after the storm buried in rubble with large chunks of flesh torn off, and impaled by a piece of metal. Mark was in a coma for three days, and the injuries to his body were so severe that it had become swollen and unrecognizable. Lindquist hospital bills totaled more than $2.5 million, and he requires 11 daily prescriptions as a result of the injuries he sustained.

Though this is an amazingly heroic story, Lindquist’s worker’s compensation insurance company, Accident Fund Insurance Company of America was not impressed by Mr. Lindquist’s actions, and initially decided to deny his claim commenting that he was at no greater risk than the general public at the time he was involved in the Joplin tornado.

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.

Georgia Child Safety and Product Liability Update – Jogging Strollers Recalled for Choking Hazard

October 14, 2011 | Benjamin S. Persons, IV

As a Georgia products liability lawyer and father of three I’m always interested in safety recalls with child safety implications. Hundreds of thousands of the popular B.O.B. jogging strollers are being recalled because of a choking concern. The U.S. Consumer Product Safety Commission made the announcement this week of the voluntary recall by the manufacturer, B.O.B. Trailers Inc. The recall involves all B.O.B. Strollers manufactured between November 1998 and November 2010. Strollers manufactured after October 2006 have a white label attached to the back of the strollers with the manufacturing date printed on, and strollers with no manufacturing date listed were produced before October 2006 and are also part of the recall.This is not the first recall of the year for B.O.B. as 357,000 of its strollers were recalled in February due to a drawstring on the stroller that posed a strangulation hazard.

The Consumer Product Safety Commission says the recall is due to the fact that the logo embroidered on the back of the stroller’s canopy backing patch can detach, which poses a significant choking hazard to baby’s and young children. The C.P.S.C. has received six reports of children mouthing the logo, with two of those incidents resulting in choking. In each of the reported incidents, the children were seated in a car seat attached to the stroller.

Over 400,000 of these strollers were sold in the United States between November 1998 and October 2011. REI, Babies R’Us and Amazon.com are among the retailers who sold the product. The strollers were sold in single seat and double-seat models and are embroidered with the BOB, Ironman, or Stroller Strides brand name on the canopy.

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.”