If you are in an accident, and you sue the other driver for negligence, can the other driver turn around and argue your employer—who is not a party to the lawsuit—was partially to blame for letting you drive its car? That was the unusual question presented to the Georgia Court of Appeals. In a decision issued on July 16, a seven-judge panel of the Court rejected what it dubbed a “creative argument” by a defendant trying to mitigate her own potential liability.

Zaldivar v. Prickett

In 2009, two vehicles collided at an intersection. Although both drivers suffered injuries, only one driver sued the other for negligence. The other did not file a counterclaim.

Under Georgia law, the owner of a premises is liable for any injuries arising from a failure to “exercise ordinary care” in keeping said premises safe. A recent decision from the Georgia Court of Appeals illustrates how this duty is applied in “slip-and-fall” cases where there is an alleged hazard the owner failed to warn invited persons about.

Henderson v. St. Paul Baptist Church

The plaintiffs in this case were two visiting pastors, a husband and wife, invited to speak at a church in Clinch County. The church did not have a designated parking lot, so the local pastor directed the plaintiffs to park behind his own car on the left side of the building. The plaintiffs parked their car as directed, behind their host’s car and near some some shrubbery. One of the plaintiffs, the wife, later exited the car and walked towards the church’s front entrance. She walked through the ground near the shrubbery, which was covered in pine straw. Assuming it was safe, she stepped over the pine straw, which was in fact covering a hole. She fell into the hole and broke her leg.

On July 10, the Georgia Court of Appeals ruled a lawsuit against the state’s Department of Transportation (DOT) could go forward. The lawsuit arose from a deadly accident at a recently redesigned road in Atlanta. The DOT argued it could not be held liable under the doctrine of “sovereign immunity,” but the appeals court said some of the plaintiff’s claims could still proceed.

Department of Transportation v. Kovalcik

In 2006, the DOT and the City of Atlanta agreed to renovate a section of Peachtree Road. The City hired a company to develop construction plans for the road, while the DOT awarded construction contracts. Construction took place in 2006 and 2007. The DOT conducted a final inspection of the road in January 2008.

Under Georgia law, an emergency room doctor (or other emergency health care provider) is not liable for malpractice unless there is “clear and convincing evidence” of “gross negligence.” This rule only applies when a patient is treated in “an emergency department” or taken to surgery from an emergency department. But what constitutes the “emergency department” of a hospital? The Georgia Court of Appeals recently clarified this issue.

Nisbet v. Davis

The Court of Appeals reviewed a trial judge’s denial of summary judgment to a physician at Gwinnett Medical Center in Lawrenceville. The plaintiff is the surviving spouse of a woman who died while under the physician’s care. The deceased had undergone surgery at another hospital in 2009 where the surgeon accidentally perforated her bowel twice. The next day, the woman complained of breathing problems, and she went to the Gwinnett Medical Center’s emergency department for treatment.

Georgia law declares “communications between [a] psychiatrist and patient” privileged and therefore excluded as evidence in a civil proceeding. But what happens when the patient is deceased and his heirs have reason to believe the psychiatrist may be responsible? A divided Georgia Supreme Court recently addressed that question.

Cooksey v. Landry

A young man committed suicide in 2012. He had been under a psychiatrist’s care for many years. A month before the man’s death, the psychiatrist prescribed two common antidepressant drugs. These drugs carried what is known as a “Black Box Warning,” which is the strongest warning the Food and Drug Administration may require for a legal product. The FDA cautioned that use of these two drugs can lead to “an increased risk of suicidal thinking and behavior in young adults.”

Not all motor vehicle accidents involve cars or trucks. Even the misuse of something like a golf cart may give rise to a personal injury lawsuit. And as with any accident litigation, the roles and responsibilities of the insurance companies may prove critical.

Golf Cart Accident

For example, the Georgia Court of Appeals recently weighed in on a personal injury lawsuit arising from a golf cart accident. The incident occurred in a planned community in Fayette County. A man was driving his motorized golf cart on one of the community’s paths when he struck and injured a woman. She sued for negligence.

In a June 19 decision, the Georgia Court of Appeals awarded summary judgment to the defendants in a personal injury lawsuit arising from serious burn injuries suffered by a 13-year-old child. The Court of Appeals, reversing a trial judge’s earlier decision, said the child had assumed the risk of standing too close to the fire that caused his injuries. Despite the child’s age, the court said he was old enough to understand the potential risks and consequences of his actions.

Taylor v. McGraw

The child and his grandfather were attending a backyard marshmallow roast at the defendants’ home. The defendants ignited a wood-burning fire in a metal barrel. One of the defendants instructed his children to take some sawdust from a nearby shed and throw it into the fire. This caused the fire to flare up. Shortly thereafter, the adults left the children alone with the fire. The victim and two of the defendants’ children then proceeded to get more sawdust and throw it into the fire. This “made the fire shoot up,” according to one of the defendant’s children and burned the victim.

In a June 11 decision, the Georgia Court of Appeals reversed a trial court’s judgment in favor of an auto insurer that sought to deny uninsured motorist coverage to an insured accident victim. The appeals court addressed the conditions by which an insurer may apply a “named driver exclusion” clause. The trial court said such a clause could be enforced in this case, but the appeals court disagreed.

Roberson v. 21st Century National Insurance Company

The case arose from a 2009 automobile accident. The plaintiff was driving his police cruiser in Macon when another vehicle struck him. The plaintiff filed a personal injury lawsuit against the driver and owner of the other vehicle. He also served his wife’s insurance company because she had a personal automobile policy that included uninsured motorist coverage.

On June 5, the Georgia Court of Appeals issued an important decision in a dispute between an accident victim and his insurance company over whether his policy covered uninsured and underinsured motorist damage. The case centered on the victim’s allegation that the insurance agent that sold him the policy illegally forged his name on a waiver depriving him of such coverage. The insurance company argued that even if the victim’s name was forged, it relied in good faith on the waiver. The trial court sided with the insurance company and granted it summary judgment. The Court of Appeals reversed and returned the case for trial.

Assaf v. Cincinnati Insurance Company

While walking alongside a road, the victim was struck and injured by an automobile. The vehicle was not insured. Accordingly, the victim filed a claim with his own automobile insurance insurance company for uninsured/underinsured motorist coverage. The victim said his policy covered up to $1 million in coverage.

Prescription drugs often produce significant negative side effects in patients. But under Georgia law, the burden is generally on the prescribing physician, not the drug’s manufacturer, to warn patients of any risks. The Georgia courts refer to this as the “learned intermediary” rule. The manufacturer still has a duty to warn physicians of risks, but it is then up to the physician to serve as the “learned intermediary” between the drug company and the patient.

While a typical manufacturer has a duty not to market defective products, the learned intermediary rule often shields drug companies from the injuries its products may cause. A recent example comes from a federal appeals court which, applying Georgia’s learned intermediary rule, upheld a trial court’s dismissal of a woman’s lawsuit against the manufacturers of an antibiotic that produced a severe allergic reaction.

Brown v. Roche Laboratories, Inc.