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Many car accidents are the result of a defect in the design or manufacture of part of the vehicle. A manufacturer may be held liable under Georgia law for such defective products. A jury may also find a manufacturer failed to adequately warn consumers about certain safety risks associated with a product.

Key Safety Systems, Inc. v. Bruner

On November 19, the Georgia Court of Appeals upheld a $4.7 million verdict holding a seat belt manufacturer partially liable for the tragic death of a 47-year-old mother of two. In September 2007, the victim was riding in the family’s Jeep Wrangler, which her daughter was driving. For undetermined reasons, the Jeep left the roadway and rolled over. Despite the fact mother and daughter were wearing seat belts, the mother was ejected from the vehicle and died. A witness at the scene testified that the victim, who survived for a short time following the rollover, said she could not understand why she was ejected as she was wearing her seat belt. The victim’s husband later testified his wife was “emphatic” in always wearing her seat belt.

The victim’s husband, acting on behalf of himself and his wife’e estate, sued the company that manufactured and installed the seat belts in the Jeep. (DaimlerChrysler, which produces the Jeep brand, was not named as a defendant.) At trial, the plaintiffs presented expert testimony from a mechanical engineer, who hypothesized “the latch plate at the top portion of the shoulder belt became loose at various points during the rollover, which allowed slack to form in the lap belt, which then allowed [the victim] to be ejected from the vehicle.” The expert also presented a video to the jury depicting this hypothesis, although he emphasized it was not a “simulation of the exact events of the crash in question.”

The defense objected to the expert’s testimony, but the trial judge allowed it. Ultimately, the jury determined the defendant was 80% liable for the accident and awarded the plaintiffs $4.7 million in damages. The jury apportioned the remaining 20% of the blame to the victim’s daughter, who was driving.

The Court of Appeals affirmed the jury’s verdict. The court noted the expert’s use of the video to illustrate “certain scientific principles” was “generally permissible” under Georgia law The trial court therefore did not err in admitting the evidence.

The appeals court further rejected the manufacturer’s argument it could not be liable for “failure to warn,” as there was no evidence the victim or her husband would have purchased a different vehicle had they known about the potential for a seat belt failure in the event of a roll over. The court said Georgia does not require “evidence of the particular alternate products” a victim might have purchased in order to establish a product liability claim. Additionally, the jury was entitled to find the victim’s dying declaration established she “did not understand that a risk still existed for ejection when an occupant of a vehicle is properly belted or that an adequate warning by [the defendant] would have prevented the harm.”

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With winter approaching, Georgia drivers need to be careful navigating potentially hazardous road conditions. Although local governments are responsible for most highway maintenance, Georgia law makes it difficult to hold officials responsible for failing to address even life-threatening hazards. The parents of a deceased child tragically learned this lesson recently from the Georgia Court of Appeals.

Jobling v. Shelton

On January 9, 2011, a major snowstorm hit Cobb County, Georgia, dumping upwards of six inches of snow on the area. Cobb County maintains about 2,500 miles of roads, and the County Department of Transportation was responsible for clearing ice and snow from all of them. The Department prioritized roads as “primary” or “secondary” and proceeded to treat all of them over a period of several days.

Five days after the storm, a resident emailed the Department to report ice on a particular secondary road. A few hours later, someone sent a second email to the Department reporting ice on the same road. Forty-one minutes after that email, a car traveling on the road in question “lost traction on ice” and crossed the median and circled into oncoming traffic. The car’s passenger, an 18-year-old Atlanta woman, died as a result of the accident.

The woman’s parents, acting as next-of-kin and executor of their daughter’s estate, sued the Department manager responsible for road maintenance. The parents said the manager “breached his ministerial duty to promptly respond to dangerous conditions caused by inclement weather.” The parents noted the fact the road remained icy five days after the storm, as well as the two emails on the day of the accident informing the Department of the ongoing hazard.

The trial court ultimately dismissed the parents’ lawsuit, citing the manager’s sovereign and official immunity under Georgia law. The Georgia Court of Appeals affirmed the trial court in a November 13 opinion. Judge Carla Wong McMillian, writing for the Court of Appeals, said it was undisputed the manager could not be sued in his “official capacity,” as all state and county employees are immune from lawsuit unless the government expressly waives such immunity.

But the parents argued the manager could still be sued in his “individual capacity,” as he breached a legally mandated duty to clear the road of ice. Judge McMillian, however, said the manager was entitled to “qualified immunity” on this issue, as he acted within his legal discretion to prioritize road maintenance. Public officials generally cannot be sued for an exercise of personal judgment, only a failure to carry out a “simple, absolute, and definite” act.

Here, Judge McMillian explained, the parents conceded the manager had “plainly discretionary” authority to assign road crews as he saw best. And the manager conceded he “had a duty to respond to road hazards in a reasonable fashion as they were brought to his attention.” The problem, he testified, was that he never saw the two emails from the day of the accident reporting icy conditions on the road in question. Had he seen those emails, that may have created a ministerial duty, Judge McMillian said, but as the parents could produce no rebuttal evidence demonstrating the manager had “actual knowledge” of the road conditions prior to their daughter’s accident, their lawsuit could not proceed.

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Parents expect their children to be safe while attending school. Safety is especially important when dealing with children who have learning disabilities or other special needs. Unfortunately, if a child is seriously injured at school, parents may have limited legal options for holding negligent teachers or administrators accountable.

Postell v. Anderson

Here is an illustration from a recent Georgia Court of Appeals decision. The victim in this case was a 14-year-old wheelchair-bound special needs student. The minor attended special education classes at an elementary school in Cherokee County, Georgia. One day, a teacher’s aide transported the victim to an outdoor activity where several other students were in attendance. During this activity one of the other special needs children, a kindergartner with a history of “behavioral problems,” assaulted another student. In the course of restraining this child, the teacher’s aide took her hands off the victim’s wheelchair, causing it to roll down a hill and flip over.

The victim’s parents sued the aide, seeking compensation for injuries their child sustained in the accident. The aide moved to dismiss, claiming she had “qualified immunity” from any lawsuit arising from her in-class actions. A trial court denied the aide’s motion, which she immediately appealed to the Court of Appeals. A three-judge panel subsequently reversed the trial court and dismissed the parents’ lawsuit.

Chief Judge Sara L. Doyle said the aide’s decision to abandon the victim’s wheelchair in order to help “discipline” the misbehaving kindergartner constituted a “discretionary” act entitled to qualified immunity under Georgia law. Basically, qualified (or official) immunity applies whenever a public employee exercises a function requiring discretion or individual judgment. In contrast, no such immunity exists when an employee negligently fails to perform a mandatory—or “ministerial”—duty required by law.

Here, the parents attempted to prove the aide’s actions were in fact ministerial. The parents cited testimony from the aide’s supervising teacher, who “cautioned” her to be careful in handling the victim’s wheelchair, noting it “was heavy” and “could get away from her.” The parents argued this constituted binding instructions the aide was required to follow. The Court of Appeals disagreed. Chief Judge Doyle said nothing in these warnings actually constituted “a specific directive giving rise to a ministerial duty.”

The appeals court also rejected the parents’ claim that the aide violated “the simple and absolute rule [that] states that a school professional must keep her hands on a student’s wheelchair until the brake is set.” Chief Judge Doyle said no such rule exists. Additionally, she noted the teacher’s aide “received no training on when it is safe or unsafe to take her hands off of a wheelchair or whether she is required to engage the brake on the chair when pushing a student in a wheelchair.” Typically, a ministerial duty only arises when a public employee fails to follow very specific training or instructions.

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Every parent dreads the prospect of taking a child to the emergency room following an accident. This dread can turn to horror if negligence on the part of medical personnel compounds the child’s injuries. Unfortunately, Georgia law makes it difficult to hold emergency medical providers accountable for malpractice. Under a 2005 “tort reform” law, a victim must prove by “clear and convincing evidence” that a provider of “emergency medical care” committed “gross negligence.” This is a significantly higher legal standard than traditional malpractice claims, where Georgia only requires proof of ordinary negligence by a “preponderance of the evidence.”

Nguyen v. Southwestern Emergency Physicians, P.C.

The Georgia Supreme Court recently addressed the application of Georgia’s emergency room law to a tragic case involving an 8-year-old girl. When the child was just six months old, she fell off a bed and hit her head on a blunt object. The child’s mother—who later described the head injury as the size of an apple, practically “another head” on her baby—took her to a hospital emergency room in Albany, Georgia.

At the hospital, a paramedic examined the child for “around three minutes” and assigned her to a “non-emergency” track, despite also noting a hematoma on the medical chart. A physician’s assistant then examined the child and determined it was unnecessary to order a skull X-ray or a head CT scan. The child was then discharged from the emergency department, about 20 minutes after the paramedic’s initial examination.

Two days later, the child stopped breathing. The parents returned to the same emergency room, where the doctors now determined she had suffered “a skull fracture” and had a “large subdural hematoma that was pressing on her brain,” requiring immediate surgery. A neurosurgeon at another hospital later said “the subdural hematoma had been developing for days or weeks.” Sadly, even with surgery the child suffered permanent brain damage and is unable to speak or walk.

The parents sued the hospital and emergency care providers who initially failed to diagnose the severity of their daughter’s injuries. The parents also sought a declaration that the defendants could not seek refuge under the Georgia emergency room law, which the trial court granted. The Georgia Court of Appeals reversed this decision, holding the issue was for a jury to decide. The parents then sought review from the Georgia Supreme Court.

In a November 2 opinion, the Supreme Court agreed with the Court of Appeals the parents were not entitled to summary judgment on this issue. The parents based their argument on the emergency room providers’ determination their daughter did not require “emergency care.” But as the Supreme Court explained, the “fact that she was given a non-emergency ranking…and treated as a non-emergency patient…does not prevent these evaluations from being ‘bona fide emergency services’” under Georgia’s emergency room law.

It is important to note the Supreme Court did not rule on the merits of the parents’ claims, only that they were not entitled to summary judgment on the applicability of the ER statute. The Court noted a jury could still find the hospital negligent, especially if it believes the mother’s testimony regarding the size and severity of her daughter’s head injury on the night of the first emergency room visit.

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In Georgia, there are special rules for government employees when it comes to personal injury lawsuits. You cannot sue a municipal employee for any “tort involving the use of a covered motor vehicle while in the performance of his or her official duties.” Instead, you must sue the local government that employed the negligent worker. Georgia law waives sovereign immunity in such cases up to a certain amount of damages.

Guice v. Brown

Recently the Georgia Court of Appeals held that a trial court erred when it failed to dismiss a lawsuit arising from a car accident involving an employee of the City of Rockmart in Polk County. The defendant was installing road signs and driving a city-owned truck. While returning to his office, he decided to cut through a shopping center parking lot to avoid traffic. As the defendant exited the parking lot and attempted to cross several lanes of traffic, he was struck by the plaintiff’s car.

After the plaintiff sued the defendant, the latter moved for summary judgment on the grounds he was acting within the scope of his city employment at the time of the accident. The plaintiff argued the defendant was not immune because he violated several state and local traffic ordinances in the course of the accident. For example, the plaintiff alleged the defendant was “criminally trespassing” on private property—i.e., the shopping center—and that he “interfered with the private property of another.” The trial judge denied the motion for summary judgment and said the plaintiff could present his arguments to a jury.

But the Georgia Court of Appeals reversed. A three-judge panel said none of the plaintiff’s evidence proved the defendant acted outside the scope of his employment. In fact, the appeals court said the plaintiff “failed to present any evidence or legal authority for such a violation.” First, although the plaintiff claimed the defendant violated several local traffic ordinances, he never actually provided the trial court with copies of the original ordinances, which is required by law. Second, there was no evidence the defendant disregarded or disobeyed a traffic signal, as the plaintiff alleged, when the defendant took his shortcut through the parking lot. The appeals court noted, “there is no evidence that he encountered one.”

Nor the did appeals court find merit in the plaintiff’s “criminal trespassing” argument. There was no evidence the defendant entered the shopping center “without authority or for an unlawful purpose.” The shopping center’s owner did not prohibit vehicles passing through the parking lot. Nor could the plaintiff “present any Georgia criminal law or other legal authority for the proposition that traveling across the shopping center without intent to shop there constitutes an unlawful purpose under the law.”

Based on all this, the appeals court concluded the plaintiff had no case. There was no credible evidence the defendant violated any traffic law, so there was no basis for holding that the defendant acted outside the scope of his employment. The Court of Appeals therefore ordered the trial court to enter summary judgment for the defendant.

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If you are injured on someone else’s property, you can normally bring a premises liability claim if there is evidence the owner was somehow negligent. Unfortunately, the rules are much different for injury victims if they are injured on government property. Both the federal and Georgia governments are normally immune from lawsuits unless they consent to be sued. With respect to the federal government, Congress adopted the Federal Tort Claims Act (FTCA), which authorizes individuals to bring personal injury lawsuits against the government under state law in certain circumstances.

What do we mean by “certain circumstances”? The FTCA does contain a number of exceptions, which courts are required to strictly construe in favor of the federal government, as it is presumed to have immunity unless expressly waived. One of the most common exceptions applies to “discretionary” actions by government employees. This exception holds that a person may not file a personal injury claim against the government based on an employee’s “failure to exercise or perform a discretionary function.” In other words, if an employee fails to carry out a duty mandated by law, a person can file a claim under the FTCA. But if the employee has any discretion to act (or not act), the government cannot be held liable.

Fagg v. United States

Here is a recent example of the FTCA in practice. This case involves a man who drove a delivery truck for an outside contractor hired by the United States Postal Service. (Although technically a private corporation, the Postal Service is still considered a federal agency for FTCA purposes.) In December 2013, the driver arrived at a Post Office in Conley, Georgia, when he was confronted by two armed robbers. One of the robbers shot the driver, seriously injuring him.

The driver subsequently filed a lawsuit against the federal government under the FTCA. The driver argued there had been two robberies prior to his incident at the same Post Office, which should have put USPS officials “on notice of a dangerous condition or likelihood of future robberies.” Indeed, the USPS apparently did respond to the two earlier robberies by providing armed guards for all deliveries, but such protection ended after a few weeks due to the cost. The driver argued that this amounted to a failure by the USPS to follow its own security regulations, thereby justifying a waiver of sovereign immunity under the FTCA.

The USPS and the court disagreed. U.S. Senior District Judge Clarence Cooper of Atlanta dismissed the driver’s lawsuit in a September 10 order. Judge Cooper said the Postal Service’s “temporary practice of providing armed guards” at the Conley Post Office was a clear “exercise of day-to-day management or operational duties,” which fell within the discretionary function exception to the FTCA. Judge Cooper cited binding precedent from the U.S. 11th Circuit Court of Appeals, which held in a similar case the Postal Service’s decisions regarding security could not be “second guessed” by injury victims or the courts.

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Every year thousands of people are injured by dog bites. Sadly, some of these injuries are fatal. According to, a nonprofit organization that tracks “dangerous dog breeds” in the United States, 42 people died following dog attacks last year. The organization also said 74 percent of all fatal dog attacks reported between 2005 and 2014 could be attributed to just two breeds – pitbulls and rottweilers.

Some state courts have taken notice of the pitbull’s propensity for attacking people. In 2012, the Maryland Court of Appeals adopted “a strict liability standard in respect to the owning, harboring or control of pit bulls and cross-bred pit bulls in lieu of the traditional common law liability principles.” This means pitbull owners are presumed to have knowledge of their animal’s “dangerous” propensities.

Although a handful of Georgia localities restrict pitbulls, there is no statewide ban on owning such dogs. Despite the breed’s reported propensity for aggressive behavior, victims of pitbull attacks cannot recover damages from dog owners simply by pointing to statistics or actions by other state courts. Georgia law has very specific requirements when it comes to holding dog owners liable.

Steagald v. Eason

For example, the Georgia Court of Appeals recently affirmed a lower court’s dismissal of a dog bite victim attack. The dog in this case was a pitbull. The owner was an adult living with his parents. The owner and his ex-wife previously “rescued the dog from the side of the road.”

The owner’s mother reported the dog “snapped at her” the first time she went to feed him. The parents’ neighbor also said the dog “growled, barked, and snapped at him.” Six days later, the neighbor’s wife approached the dog, who immediately “jumped up, latched onto her arm, and started biting down.” It took three men to get the dog to release the victim’s arm. While attempting to exit her neighbor’s yard, the victim fell down and the pitbull attacked her a second time, grabbing her leg. The victim subsequently required extended medical care.

Despite this harrowing report, the Georgia courts ultimately rejected the victim’s lawsuit against her neighbors. As the Court of Appeals explained, Georgia law holds a dog owner is only liable for negligence if he “has knowledge that the dog has the propensity to do the particular act” that caused the victim’s injury. In other words, if the owner does not know the dog has a history of biting people, he is not responsible for the dog’s actions.

The victim here argued the pitbull’s prior aggressive behavior towards her husband and the owner’s mother six days before her attack should have put the owner “on notice.” The Court of Appeals disagreed. The judges said the pitbull’s earlier “snapping” was likely caused by the animal’s unfamiliarity with his new surroundings and “was not unusual dog behavior.” In any case, the judges said there was no evidence the pitbull ever committed the exact same type of attack at issue in this case—i.e., an “unprovoked attack on a stranger coming into the yard.”

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If you are injured in a car accident caused by another driver’s negligence, you may have a case against the owner of the car under a legal principle known as negligent entrustment. Under Georgia law, an owner is liable for negligent entrustment if he or she allows someone to use a vehicle despite “actual knowledge” the person is incompetent to drive, either due to “age or inexperience,” “physical or mental condition,” or a “known habit of recklessness.” So, for example, if you allow your unlicensed 15-year-old child to drive your car and she gets into an accident that seriously injures someone, you are liable under negligent entrustment because you knew your child was not of legal driving age and lacked experience.

Brendle v. Templeton

Negligent entrustment is not always so obvious. Here is another illustration from a case currently pending before a federal court in Gainesville, Georgia. A driver fell asleep at the wheel and subsequently got into an accident, injuring the plaintiff. At the time of the accident, the driver was driving his sister’s vehicle, which she allowed him to use.

The plaintiff subsequently sued both the driver and the sister, alleging the latter was liable for negligent entrustment. More specifically, the plaintiff cited the fact that the driver was taking two prescription medications—along with two non-prescribed ones—that directly impaired his ability to drive. According to a report prepared by a police officer at the scene of the accident, the driver “was heavily under the influence” of drugs, noting his “speech was slurred, he was unsteady on his feet, all of his eye and body movements were in slow motion and his pupils were pinpoint.” The sister also told the police her brother “was not acting right” when he came to borrow her car, yet she apparently thought nothing of it.

Despite this, the sister maintained in court that she lacked “actual knowledge” of her brother’s impairment and asked the judge to grant her summary judgment. The judge declined to do so. While acknowledging the sister’s “knowledge of her brother’s daily prescription use” was not sufficient in and of itself to prove negligent entrustment, the fact that she told the police he “was not acting right” created enough of a factual dispute to survive summary judgment. Even though the sister is not professionally trained to spot whether a person is intoxicated or under the influence of drugs, the judge said she does “possess special information about her brother, including his typical mannerisms and behavior,” that could allow a jury to determine she had “actual knowledge” of her brother’s incapacity.

The judge did agree with the sister that the plaintiff presented insufficient evidence to prove her brother had a “known habit of recklessness,” which is also grounds for negligent entrustment liability. There was simply no evidence that the brother was driving recklessly at the time of the accident—he merely fell asleep, purportedly due to his intoxicated state. Furthermore, this standard requires a “habit” of reckless driving. The plaintiff could only cite a single prior accident involving the brother from several years earlier, which the judge noted was apparently due to another driver’s negligence.

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If an employee is injured on the job or in the course of employment, he or she may be entitled to workers’ compensation benefits under Georgia law. But what happens when an employee’s accident or injuries can be attributed to the negligence of someone other than the employer? While workers’ compensation does not preclude the employee from suing such persons, any subsequent award may be subject to “subrogation lien” filed by the employer.

Basically, a subrogation lien protects the employer’s ability to recover any money it paid out in workers’ compensation benefits. Georgia law establishes certain conditions for enforcing subrogation liens. The lien cannot “exceed the actual amount of compensation” paid to the employee, and the employer may not recover unless “the injured employee has been fully and completely compensated” for all “economic and non-economic losses.” It should also be noted if the employee fails to sue the negligent third party within one year, the employer (or its workers’ compensation insurer) may bring such a lawsuit itself.

Best Buy Co. v. McKinney

Georgia courts will not enforce subrogation liens that do not strictly comply with the law. For example, in a recent case the Georgia Court of Appeals rejected an employer’s subrogation lien because it failed to prove the employee had been “fully and completely compensated for his losses.”

The employee in this case was injured when he fell from a forklift at work. The fall caused “several facial bone fractures and brain damage.” The employee was “permanently disfigured” and continues to experience serious “cognitive problems.” Accordingly, the employer paid (and continues to pay) workers’ compensation benefits.

Two years after the accident, the employee sued a product liability claim against the manufacturers of the forklift. As permitted by Georgia law, the employer intervened to protect its potential subrogation lien. The victim and the liability defendants eventually settled for an undisclosed amount.

The employer then moved to enforce its subrogation lien. The employer noted it had paid over $173,000 in workers’ compensation benefits, which an expert witness argued “fully and completely compensated” the employee for his “head injuries.” Neither the trial judge nor the Court of Appeals agreed with this assessment.

The key problem, the Court of Appeals explained, was the employer failed to show what portion of the employee’s settlement was for “economic losses” rather than non-economic losses. This is critical because a subrogation lien may only be enforced against compensation for economic losses, and if the employer cannot identify which is which, the lien is unenforceable. (The settlement itself did not apportion damages between economic and non-economic.)

Additionally, the employer’s expert offered only “speculative” testimony which failed to consider the specific details of the employee’s injuries. Indeed, at trial the expert conceded he never interviewed the victim or reviewed his medical records. The expert merely opined the employee received more through settling his product liability case than a jury would likely have awarded at trial. This was not enough, the appeals court said, to prove the employee had been fully compensated.

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Premises liability refers to a property owner’s responsibility for any hazard on his or her land that causes injury to someone. In Georgia, premises liability is based on the owner’s “superior knowledge” of the hazard. That is, if the owner knew about a dangerous condition in advance and the injured person did not, the victim may sue for damages.

Forest Cove Apartments, LLC v. Wilson

Likewise, if the victim had “equal knowledge” of the hazard, Georgia courts will dismiss any premises liability claim. Here is a recent example. This case involves a contractor hired to repair several apartment units in an Atlanta public housing complex. Throughout 2011, the contractor and her crew repaired the joist supports under the subfloors of 26 apartments.

About a month after completing those repairs, the apartment manager asked the contractor to return and look at another unit where there was a reported mold problem. The contractor inspected the apartment, which she said “reeked of mold” and noted a seven-to-eight inch hole in the bathtub. Based on this assessment, the manager asked the contractor to inspect the subfloor underneath the bathroom floor. She did so the next day and discovered “horrendous” damage beyond the scope of what she initially expected.

While working in the damaged bathroom, the joist the contractor was standing on gave way, and she “fell into the downstairs kitchen onto an open hot oven, sustaining multiple injuries.” She subsequently filed a premises liability lawsuit against the owner and the manager of the apartment complex. Before the trial court, the defendants argued the contractor had “equal knowledge” of the defective floor joist and therefore they could not be held responsible. The judge rejected the defendants’ motion for summary judgment, but a three-judge panel of the Georgia Court of Appeals reversed, holding the contractor could not recover any damages.

The Court of Appeals agreed with the defendants the contractor “was aware of the hazardous condition of the floor joists before her fall,” as she had previously repaired the exact same defects in 26 other units in the defendants’ complex. She also personally inspected the unit where the accident occurred. Indeed, the court noted the contractor was speaking on the phone with the apartment just before the accident, informing him about the multiple problems with the unit. “Given this combined uncontroverted evidence,” the court said, “it is clear that [the contractor] had at least equal knowledge of the hazardous condition of the floor joists before she fell from the upstairs bathroom.”

The Court also added while an employer must generally keep his premises safe for employees, “an independent contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” Given the contractor here was responsible for removing damaged subfloors as part of their repair work, she alone was responsible for ensuring the safety of the work site.