Articles Posted in Personal Injury

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Not all personal injury claims involve physical acts. For example, if someone steals your private data, that can provide the basis for a personal injury lawsuit. Courts throughout the country have struggled, however, to define the precise threshold when a “legally cognizable” injury occurs. Does someone actually need to use the data obtained via hacking or other illicit means before you can bring a claim? Or does the mere fact that theft has occurred allow you to sue the person whom you trusted to keep the data secure in the first place?

Collins v. Athens Orthopedic Clinic, PA

A recent decision from the Supreme Court of Georgia, Collins v. Athens Orthopedic Clinic, PA, attempts to provide some answers to these questions. This case involves a June 2016 data breach in which an unknown attacker “stole the personally identifiable information, including Social Security numbers, addresses, birth dates, and health insurance details, of at least 200,000 current and former patients” of the defendant, an Athens-based healthcare provider. A number of patients whose data was compromised by this breach subsequently filed a lawsuit in Georgia state court, alleging the defendant refused to meet the attacker’s ransom demand, and as a result the hacker put “some of the stolen personal data” up for sale.

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Personal injury claims, such as those arising from car or truck accidents, normally fall under state law. There are some special situations in which federal law may come into play, however. For example, if a railroad employee is injured in the course of his or her work, the employee can sue the employer under the Federal Employers’ Liability Act (FELA).

Norfolk Southern Railway Co. v. Hartry

The Supreme Court of Georgia recently addressed a case involving the FELA, Norfolk Southern Railway Co. v. Hartry. This particular lawsuit arose from a June 2010 accident at a public railway-roadway crossing. The plaintiff was working as an engineer on a Norfolk Southern train.

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Many auto accidents are caused by drivers operating vehicles on behalf of their employers. When this happens, the employer is typically liable for the employee’s negligence under a legal principle known as “respondeat superior.” If the employer admits respondeat superior applies, then the injured victims are normally barred from bringing separate claims against the employer for “negligent hiring, hiring, retention, supervision, training, and entrustment.”

There is an exception to this rule, however, if the plaintiff seeks punitive damages arising from the accident. Again, punitive damages are not typically awarded in personal injury cases. In this context, punitive damages are only available if the plaintiff can prove the defendant employer itself was negligent to the point where it engaged in “willful misconduct, malice, [or] fraud.”

Kraese v. Jialiang

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In a premises liability claim, an accident victim alleges that a property victim’s negligence caused his or her injury. Depending on the facts of the case, the property owner may raise one or more defenses, including what is known as “assumption of the risk.” Basically, this means that the evidence shows the plaintiff “had full knowledge” of the particular hazard that caused the injury, that the plaintiff “understood and appreciated” this risk, and that they “voluntarily chose to act” of their own free will knowing they might be injured.

Hoose v. United States

A recent decision from a federal judge in Macon, Hose v. United States, illustrates how assumption of the risk is applied by courts in practice. This case involved a personal injury lawsuit against the federal government. The plaintiff was making a delivery to Robins Air Force Base (RAFB). According to the plaintiff, he regularly made deliveries to the commissary at RAFB and was thus familiar with its layout.

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In November 2015, two men stopped at an Atlanta gas station and convenience store. One man stepped out to get gas while the other was taking a nap in the front seat of the act. Shortly thereafter, a third man wearing a white hat confronted the man pumping the gas. This led to an exchange of gunfire. One of the bullets hit the second man in the car.

Khalia, Inc. v. Rosebud

The gunshot victim subsequently filed a personal injury lawsuit against the company that owned the convenience store. Evidence presented at trial indicated the store was a “well-known scene of illegal drug transactions” and, notably, at least “two incidents of prior gunplay.” Indeed, there had been another shooting at the same convenience store just three days before the incident that injured the plaintiff.

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Following most car accidents, the victim has the right to file a personal injury lawsuit against the negligent driver in state court. What happens when the negligent driver is an employee of the federal government acting in their official capacity? To put it another way, can you sue a federal worker for an auto accident the worker caused when he or she was on the job?

The short answer is no, you cannot sue the employee directly. The longer answer is that you can bring a personal injury claim against the United States government. Under a law known as the Federal Tort Claims Act (FTCA), the U.S. government waives its normal immunity from being sued in its own courts and effectively “steps into the shoes” of the negligent employee. The FTCA basically allows you to sue the federal government and recover damages under state personal injury law.

There are certain rules you must follow before bringing a lawsuit under the FTCA. Normally, you must first file an administrative claim with the federal agency that employed the negligent worker. This administrative claim must be filed within two years of the original accident or injury and include the exact amount of money you are seeking in damages.

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In many successful personal injury cases, the defendant’s insurance company ends up paying most of the judgment. You might therefore think it would “save a step” just to sue the insurance company directly. In most cases, such “direct action” is not permitted under Georgia law. The legal theory behind this is that an insurance policy is a contract between the insurer and the insured, and the injured person is a third party who is not “privy” to this agreement.

However, Georgia law makes an exception to the prohibition on “direct action” when the insured party is a “motor carrier.” That is to say, if you are injured in an accident caused by a motor carrier, you may file directly sue both the carrier and its insurance company for damages.

Mitchell v. Dixie Transport, Inc.

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Tort law is designed to remedy injuries caused by acts of man, as opposed to “acts of God.” Under Georgia law, this means that you cannot hold a defendant liable for “an accident produced by physical causes which are irresistible or inevitable, such as lightning, storms, perils of the sea, earthquakes, inundations, sudden death or illness.” In other words, if there is no “human agency” involved, there is no viable personal injury claim.

Head v. De Souse

But “act of God” does not mean a defendant can escape liability simply by pointing to a natural phenomenon that might have played some role in the accident. A recent decision from the Georgia Court of Appeals, Head v. De Souse, offers a helpful illustration of this point. In this case, a teenage driver attempted to dismiss a personal injury lawsuit based on the fact there was sun in her eyes at the time of the underlying accident.

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The dangers of asbestos have now been known for decades. Any exposure to asbestos fibers can lead to the development of mesothelioma, a deadly form of lung cancer, and other illnesses. In many cases, asbestos-related illnesses do not manifest symptoms until decades after the exposure.

Davis v. John Crane, Inc.

The Georgia Court of Appeals recently issued a decision in what is just the latest in a series of asbestos-related personal injury lawsuits. In Davis v. John Crane, Inc., the Court addressed a pair of related claims arising from the death of John F. Davis, a former worker at a fiberboard mill owned by Louisiana Pacific Corporation. As part of his job, David routinely “swept up dust and debris around the mill and assisted in the removal of gaskets on the mill’s boilers,” according to court records. This exposed Davis to a number of asbestos-containing parts.

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The Georgia Court of Appeals recently issued a decision, Handberry v. Manning Forestry Services, LLC, addressing an unusual personal injury claim. This case involved a man who died after falling into an abandoned well. The plaintiff, the victim’s widow, subsequently sued a number of defendants that she alleged were negligent in failing to address the hazard posed by the well prior to her husband’s death.

According to court records, the victim was driving a four-wheeler on private property with the permission of the owner. At some point, one of the four-wheeler’s tires “entered a well that was hidden by vegetation.” The vehicle overturned, throwing the victim into the well, where he sustained fatal injuries.

The defendants in this case included several companies that previously performed work on the property in question. The plaintiff based her claims on a specific Georgia statute, OCGA § 44-1-14, which deals with the “abatement of hazard” from an “abandoned well or hole.” In this context, an abandoned well is “any man-made opening on the surface of the earth which is 10 feet or more in depth and which has not been used for a period of 60 days.”

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