Marietta Injury Lawyer Blog

Georgia Court Rejects Lawsuit Against Special Needs Teacher’s Aide

November 13, 2015 | Benjamin S. Persons, IV

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.

Parents of Brain-Damaged Child Denied Summary Judgment Against Emergency Room

November 8, 2015 | Benjamin S. Persons, IV

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.

Georgia City Worker Not Responsible for Car Accident

November 1, 2015 | Benjamin S. Persons, IV

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.

Driver Shot at Georgia Post Office Can Not Sue Federal Government for Damages

October 25, 2015 | Benjamin S. Persons, IV

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

Pitbull Attack Victims Face Hurdles in Georgia Courts

October 19, 2015 | Benjamin S. Persons, IV

Every year thousands of people are injured by dog bites. Sadly, some of these injuries are fatal. According to DogBites.org, 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.

When is a Car Owner Liable for “Negligent Entrustment” of a Vehicle?

October 16, 2015 | Benjamin S. Persons, IV

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.

Georgia Court Holds Employer Not Entitled to Share of Injured Employee’s Negligence Settlement

October 9, 2015 | Benjamin S. Persons, IV

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

Atlanta Apartment Owner Not Responsible for Repair Contractor’s Injuries

October 2, 2015 | Benjamin S. Persons, IV

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.

Georgia Judge Reduces Damage Award Against Car Manufacturers

September 25, 2015 | Benjamin S. Persons, IV

Georgia is a “comparative fault” state. This means in a personal injury lawsuit, any damages awarded a plaintiff must be reduced in proportion to his or her share of the liability. For example, Driver A and Driver B are in an automobile accident. Driver A sues Driver B for negligence, and a jury awards Driver A $10,000 in damages. If the jury also determines Driver A was 30 percent responsible for the accident, the judge would accordingly reduce the damage award from $10,000 to $7,000.

Bullock v. Volkswagen Group of America, Inc.

A federal judge in Columbus recently applied Georgia’s comparative fault rule to a product liability case. The plaintiffs are a husband and wife who were in a single-car accident. They alleged a defect in the vehicle’s turbocharger caused it to suddenly accelerate. The wife, who was driving at the time, said she lost control of the vehicle, which left the road and flipped over, seriously injuring her. Her husband also sought damages for his wife’s injuries under a “loss of consortium” claim. The couple named the manufacturers of the car and the turbocharger as defendants.

Negligent Driver’s Late Notice Means Victim Cannot Recover Insurance Benefits

September 21, 2015 | Benjamin S. Persons, IV

In personal injury cases, such as those arising from car or truck accidents, it may not be enough to prove the other driver was responsible. A victim may find it is impossible to recover damages even from an insured defendant if the insurer can prove the defendant did something which renders the policy inapplicable. In other words, a defendant’s own carelessness can leave a plaintiff with a worthless judgment.

Progressive Mountain Insurance Company v. Cason

Here is a recent example from a federal case involving a Georgia truck accident. The victim was driving his truck on Georgia Highway 232 when he was rear-ended by a second truck. As a result of the accident, the victim suffered a “severe concussion,” which caused him to miss several months of work. The victim claimed the second driver was at fault for the accident because he was speeding and did not look where he was going just before the collision occurred.