personal injury

Do I Need to Preserve My Wrecked Car Following an Accident?

November 18, 2016 | Benjamin S. Persons, IV

In any kind of personal injury lawsuit, it is critical for the parties to the case to preserve any evidence that may be relevant to the litigation. If a party intentionally or negligently destroys relevant evidence, this is known as spoliation, and a judge may impose sanctions, up to and including dismissing the case (if the plaintiff is at fault) or issuing a default judgment against the defendant. However, a court must also consider all relevant facts and circumstances in deciding whether or not sanctions are necessary.

Cooper Tire & Rubber Company v. Koch

A recent Georgia Court of Appeals decision illustrates how not all spoliation is fatal to a plaintiff’s case. This decision involves an ongoing product liability claim arising from a fatal car accident. The victim was driving his vehicle on a Georgia interstate “when his left rear tire detached,” according to court records. The vehicle “swerved out of control,” hit a guardrail, overturned “several times,” and finally came to a stop in a ditch.

Georgia Judge Erred in Requiring Expert Testimony to Prove Woman Died in House Fire

October 31, 2016 | Benjamin S. Persons, IV

Expert testimony is often a critical component of a personal injury case. Judges and jurors are not technical experts and often require assistance in understanding evidence. When it comes to “simple negligence,” though, expert testimony is generally unnecessary. A jury does not need help when common sense is sufficient to weigh the evidence and reach a logical conclusion.

Gardner v. Clark

The Georgia Court of Appeals recently addressed a tragic case in which a trial judge improperly demanded expert testimony where none was necessary. The plaintiffs in this case were the children of a woman who died in November 2009. The mother lived in a mobile home that she rented from the defendant.

Hospital Wheelchair Accident is Negligence, Not Malpractice

October 16, 2016 | Benjamin S. Persons, IV

There are stricter rules in Georgia for bringing a medical malpractice lawsuit versus other types of personal injury claims. Not surprisingly, hospitals often try to classify ordinary negligence cases as malpractice in order to make it more difficult for the plaintiff to pursue his or her claim.

Byrom v. Douglas Hospital, Inc.

The Georgia Court of Appeals recently rejected just such an attempt. The plaintiff in this case had gone to a local hospital to undergo tests for a surgical procedure. A nurse transported the plaintiff, who normally walks with a cane, by wheelchair from the exam room to the waiting room.

Insurer Not Liable For $1.2M Judgment in Fatal DUI Accident

October 9, 2016 | Benjamin S. Persons, IV

Most car accident lawsuits in Georgia are handled by the negligent driver’s insurance company. If an insurer refuses to settle a personal injury claim “in bad faith,” said insurer may be liable for any judgment against the insured in excess of the policy’s normal limits. In other words, the insurance company may not place its own interests ahead of those of its policyholders by dragging its feet to avoid settling an apparently valid personal injury claim.

Linthicum v. Mendakota Insurance Company

But an insurance company’s obligation is only to act reasonably when attempting to negotiate a settlement. It is not necessarily liable just because no settlement is reached. A recent decision by a federal judge in Savannah illustrates this point.

Family Fights Marietta Nursing Home for Justice in Mother’s Death

October 2, 2016 | Benjamin S. Persons, IV

Many elderly Georgia residents are victims of nursing home abuse and neglect. In order to avoid potential personal injury and wrongful death lawsuits from injured patients, many nursing homes insist their residents sign “alternative dispute resolution” (ADR) agreements that require any negligence or malpractice claims be submitted to binding arbitration. While arbitration can be beneficial in certain cases, it still requires a potentially vulnerable nursing home resident to forfeit access to the courts and other important legal rights.

Kindred Nursing Centers LP v. Chrzanowski

Georgia courts tend to enforce ADR agreements even where there is evidence that a nursing home resident was not necessarily in their right mind when they purportedly agreed to arbitration. A recent decision by the Georgia Court of Appeals illustrates the uphill climb victims of nursing home abuse—or in the case, their families—face in seeking their day in court.

Georgia Woman May Sue Doctor Following False Arrest for Prescription Abuse

September 23, 2016 | Benjamin S. Persons, IV

Many medical malpractice cases involve a physician who prescribed the wrong type or dosage of medication, causing physical harm to the patient. Such negligence is obviously horrific and inexcusable. But the Georgia Court of Appeals recently considered a different sort of negligence case involving a physician and an incorrect prescription.

Carter v. Cornwell

The plaintiff in this case is a Georgia woman who suffers from chronic pain. She had been under the care of the defendant, her physician, for 16 years. During an office visit in 2014, the defendant issued the plaintiff a prescription for 120 pills of hydrocodone. But the defendant subsequently altered the prescription to 180 pills before the plaintiff left his office.

Macon Shooting Victim Allowed to Proceed With Civil Suit Against Restaurant Owner

September 10, 2016 | Benjamin S. Persons, IV

While many premises liability claims are based on the existence of a physical hazard—i.e., a customer slips and falls on a puddle of water—there are also cases in which a property owner may be liable for the criminal acts of third parties that cause personal injury to a patron. Recently, the Georgia Court of Appeals addressed the issue of how long a crime victim has to file such a claim.

Harrison v. McAfee

In June 2011, a group of masked men robbed a restaurant in Macon, Georgia. During the robbery, one of the assailants shot a restaurant patron. To date, none of the alleged criminals have been identified or arrested.

Can a Long-Term Illness Cause a “Sudden Emergency”?

August 20, 2016 | Benjamin S. Persons, IV

In Georgia, a defendant in a personal injury case arising from a car accident may argue what is known as the “sudden emergency” defense. Put simply, this means the defendant alleges he or she was presented with a sudden emergency and had insufficient time to react. If this was the case, the sudden emergency relieves the defendant of any and all liability for any accident arising from the sudden emergency.

Woodard v. Dempsey

The key to this defense is that the defendant could not have reasonably foreseen the emergency—otherwise it is not really a “sudden” emergency. An ongoing federal lawsuit in Atlanta illustrates how factual disputes over whether a defendant has alleged an actual emergency may arise.

Georgia Judge Settles Question of Who Owned Car on Day of Fatal Accident

August 13, 2016 | Benjamin S. Persons, IV

Insurance policies frequently cover any damages incurred due to a car accident. But it is not unusual in Georgia for insurance companies to disclaim or otherwise reject coverage if the insured does not strictly comply with all terms of the policy. In some cases, insurance companies may end up fighting among themselves over who is liable for any damages arising from a personal injury claim.

Selective Insurance Company of America v. Russell

A federal judge in Gainesville recently addressed such a case. This is one of two lawsuits arising from a 2011 car accident. Two vehicles collided, resulting in the death of a passenger in one of the cars. The driver of Car A and the estate of the deceased passenger sued the driver of Car B in Georgia state court.

Georgia Homeowner’s Policy Does Not Cover “Accidental” Shooting

August 5, 2016 | Benjamin S. Persons, IV

A homeowner’s insurance policy typically covers the policyholder’s liability for personal injury claims that occur on the property. For example, if someone slips and falls in your home and subsequently sues you, your homeowner’s insurance policy will pay for any damages. But not every injury that occurs on a property is necessarily covered by a homeowner’s policy, which can leave a defendant on the hook for potentially millions in damages while making it more difficult for the injury victim to receive prompt compensation.

Trustgard Insurance Co. v. Herndon

One common homeowner’s insurance policy exclusion is for criminal acts. The Georgia Court of Appeals recently addressed the applicability of such an exclusion. This case has its roots in an extramarital affair. The defendant was a married man in an “intimate relationship” with another woman, who also assisted him with maintaining his rental properties.