Confidential Settlement for Premises Liability Accident
Confidential Settlement for Motorcycle Wreck
$705,000 Verdict in Commission Dispute Case
Confidential Settlement in Golf Cart Injury
$1.9 Million Recovered in Pay Dispute
Confidential Settlement For Atlanta Chiropractic Malpractice
Confidential Settlement in Commission Pay Dispute
Confidential Settlement In Dental Malpractice Case
$3.25 Million For Alleged Fraud in Sale of Business
$5.5 Million Medical Malpractice Verdict
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We have handled a number of cases involving clients who were severely injured while crossing both within a cross walk and outside of a cross walk. Despite popular belief, there are times when an injured pedestrian may recover for the negligence of a driver even if the accident does not happen within the confines of the cross walk. The rights and duties of pedestrians in Georgia are outlined below.

Ga. Code § 40-6-92.

(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway.

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I am looking at a case for a woman who has tongue cancer which appears to have not been treated appropriately by her general dentist, either prior to the diagnosis or after it. The standard of care for dentistry mandates that a general dentist properly screen every patient for oral cancer, especially during a “routine cleaning.” 

Who gets oral cancer?:

Short answer, men are twice as likely than women to contract oral cancer. Men who use snuff of chewing tobacco are 50 times more likely to contact oral cancer. Heavy users of alcohol are also more likely to contact oral cancer during their lifetime, However, this is not the end of the inquiry, as it should be noted that 25% of those who get oral cancer are not men and drink alcohol only occasionally. This is why dentists must screen all patients for oral cancer.

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Causation (i.e., that the negligence causes or substantially contributed to the injuries that the Plaintiff is complaining of in the lawsuit) is one of the key legal hurdles that injured plaintiffs must overcome to prove their case at trial. Most times, it is best to have a treating doctor give testimony on causation to satisfy this legal requirement of proving your case. In Georgia, a physician’s testimony on causation may be introduced during the litigation in the form of an affidavit or Medical Report in certain situations at the pre-trial level. Below is a sample affidavit outlining this type of testimony.

AFFIDAVIT

STATE OF GEORGIA §

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In Georgia, when a Plaintiff is injured by the negligence of another and the Plaintiff has a pre-existing condition or other peculiar situation which compounds the damages in the case, all of the damages suffered by the Plaintiff are recoverable in the lawsuit and it is not a good defense to argue that the damages are not what normally would occur based on the negligence.

A typical jury charge (with supporting legal citations) which would be given to the jury by the trial judge to demonstrate this legal proposition at trial is: I further charge you that a previous medical condition, from whatever the cause or source, if aggravated, or made symptomatic, or made worse by the negligence of another, is compensable in damages to the extent of such aggravation or worsening, regardless of whether a new injury or new infirmity is created thereby. In this regard, it is the law of Georgia that a Defendant, when committing a negligent or wrongful act, takes a plaintiff as he finds him physically, and is not allowed to complain that the injury, if found to be negligently or wrongfully committed, would in a normal person cause less injury than it does in a person already impaired. The law is that an aggravation or worsening of a previous condition or a prolonged recovery from an original condition, through additional trauma negligently inflicted, is a compensable injury for which damages will lie. In regard to the above, recovery for damages is permitted to the extent that you the jury, find by a preponderance of the evidence, that there has been an aggravation, worsening or added injury proximately resulting from the negligence of the Defendant. Atlantic & Birmingham Railroad Company v. Douglas, 119 Ga. 658 (1903); Bary v. Latham, 81 Ga. 640 (1888); Cobb & Eldridge, Ga. Law of Damages (2d Ed.).

Another example of the same type of charge (with supporting legal citations) is: A driver who causes injury to another through negligence takes the injured person “as is.” The fact that the injuries and damages arising out of an incident were not anticipated will not relieve a person from liability and monetary damages for any and all injuries and damages that were proximately caused by negligence. Therefore, you are instructed that even if you find that the plaintiff in this case was unusually susceptible to injury and damage, that fact will not relieve the defendant from liability and monetary damages for whatever injuries and damages, if any, that you find were proximately caused by an act of negligence committed by the defendant. Modern Trials, 2d Ed., Vol. 5, Section 66.6 (9); Coleman v. Atlanta Obstetrics & Gynecology Group 94 Ga. App. 508, 390 S.E. 2d 856, 858.  The Defendant takes the Plaintiff in whatever condition he finds her. A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act is negligent. Restatement (2d) of Torts 461; Coleman v. Atlanta Obstetrics & Gynecology Group, 194 Ga. App. 508, 390 S.E. 2d 856, 858.

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The initial inquiry by trial courts in Georgia in slip and fall cases can result in summary judgment and end Plaintiff’s case before the jury has a chance to render a verdict.  However, attempts by the defendant stores to move for summary judgment and escape liability for the injuries caused by their negligence are substantially hampered by Georgia case law from the 1960’s. In fact other jurisdictions have cited a 1967 Georgia case as precedent for the evolving principle that a store’s “mode of operation” can fulfill the superior knowledge or constructive notice requirement in a premises liability case. Colonial Stores, Inc. v. Donovan, 154 S.E.2d 659 (Ga. App. 1967), addresses hazards created by the manner of displaying merchandise in a retail store. Pursuant to the Colonial Stores, Inc. decision:

“A person who maintains a place of business to sell goods or services owes a duty to a customer of using ordinary care to keep the premises in a safe condition and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care.  A storekeeper who balances merchandise on display in a precarious manner (or allows another to so arrange a display) should anticipate that slight force, not sufficient ordinarily to suggest to the actor who does not know of the peril that injury will result, may be sufficient to cause injury, and the storekeeper is not relieved of the consequences of this negligence by an intervening act which he should have anticipated. Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect.  Ordinarily, whether the owner or occupant of land exercises ordinary care in keeping premises in a safe condition, upon which an invitee goes and is injured, whether the invitee could have avoided injury in the exercise of ordinary care, or whether both were negligent in some degree, as the proximate cause of an injury, or the absence of any negligence, are questions for jury determination, which the court will not decide as a matter of law on demurrer except as to acts declared by law to be negligence, or palpable and indisputable cases where reasonable minds cannot differ as to the conclusion to be reached.”

Citing Colonial Stores, Inc., in Keaton v. A.B.C. Drug Co., 467 S.E.2d 558, 561 (Ga. 1996), the Georgia Supreme Court affirmed a reversal of summary judgment for the defendant premises owner.  Importantly, the Supreme Court of Georgia focused on the manner in which the merchant/store owner displayed merchandise which created the likelihood that a spill would occur rather than the spill itself and held: the merchant had constructive knowledge of a hazard, superior to the knowledge of the plaintiff, under the following circumstances. The jury was authorized to find that by placing a caustic substance contained in a package without some sort of leakage preventer, such as a protective wrap, at a level above the eyes of an average adult, ABC should have anticipated that in the event of a leakage, injury would result. Further, by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person’s ability to exercise caution by checking to see if the cap was loose.  Clearly, had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level.  Also, the ability of a plaintiff to avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level.” (internal citations omitted)

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Many times a doctor expert is deposed but the chance to follow up with documents is not realized because of the lack of a notice to produce being sent with the deposition notice. This notice is also referred to as a Duces Tecum in some jurisdictions. Whatever the nomenclature, the notice requests pertinent documents that allow the opposing lawyer to follow up on questions with the produced documents. It is a very valuable pleading in many civil litigation cases. Below is a sample Notice of Intention to Take Oral Deposition and Duces Tecum.

PLAINTIFF’S NOTICE OF INTENTION TO TAKE ORAL VIDEOTAPED DEPOSITION,

DUCES TECUM, OF DR. ________

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I have noticed a marked increase in declaratory judgment actions being filed by insurers of defendants in personal injury, premises liability, wrongful death and dog bite cases. The usual basis for the declaratory judgment action is that the insurer asserts in its pleadings that there is no insurance for the event that caused the injury, most often claiming that an exclusion in the policy applies. It has been my experience that most declaratory judgment actions are mere posturing by the defendant’s insurer and any response to a declaratory judgment actions should not concede any issues that are in contention. Below is a sample response to a declaratory judgment action. Similar responses have been filed in other cases. Obviously, every case is different and the following is solely as sample and should not be used for anything but educational purposes or for a new lawyer to familiarize herself with what a response might look like before drafting her own response to a motion for declaratory judgment.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

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As recently reported by the AJC, the Supreme court of Georgia, has recently weighed in on the subject dog bite cases. What it was important for the court to address this issue, the court did nothing more than make clear what the law has always been, or at least should have been construed. Under Georgia law, a person who owns a vicious dog can be found liable if the animal gets free and attacks someone. But the law does not presume that dogs are vicious; in fact, they are considered to be “a harmless species.” For dog-bite victims to prevail, the plaintiff must show the dog owner knew that his dog had a propensity for violence. In the past, Georgia’s courts have cited the “first bite rule” — that the dog had previously bitten someone and the owner knew about it. But, what about if the dog had gotten away in the past and had  viciously attacked other dogs but not people or had shown a vicious propensity but had not actually bitten other people before the attack in question. The Georgia Court of Appeals had previously dismissed the plaintiff’s suit, finding that the prior incidents of defendant’s dog snapping at family members of the Plaintiffs amounted to “merely menacing behavior,” particularly with no evidence the dog had previously attacked anyone. Since the litigants in this case are neighbors, the decision certainly has potential for a far-reaching impact on litigation that occurs quite often in Georgia, i.e., one neighbor being bitten by another neighbors dog or dogs.

On Monday, the Georgia Supreme Court overturned that ruling and said a jury should decide whether the defendants had reason to know that their family dog was vicious. According to the well-written opinion, “a rational finder of fact could infer reasonably, we think, that [defendant’s dog] snapping at [Plaintiff’s family] amounted to the dog attempting to bite [],” Justice Keith Blackwell wrote. “An attempt to bite in the absence of provocation most certainly may be proof of a propensity to bite without provocation.”

In the past, Georgia’s courts have cited the “first bite rule” — that the dog had previously bitten someone and the owner knew about it. However, as I have written many times in the past, this is not really the law in Georgia (it applies in only very few circumstances) and, now the Georgia Supreme Court has made clear that this is no longer the case.
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Obviously, driving on the wrong side of the road and causing an accident is negligence, regardless of where you are driving and regardless of the reason that you are driving on the wrong side of the road. In Georgia, a negligent driver was sentenced to 10 years in prison for this negligence. According to the AJC article, the driver in this case caused serious harm and resulted in the long prison sentence after his car hit another car head-on, causing a five-car pile-up, while other victims were treated for minor injuries in the wreck. The driver pleaded guilty to two counts of serious injury by vehicle and one count of reckless driving. He will be on probation for five years after his prison term ends. This situation involved a terrible crash that has changed a family’s life forever. The seriousness of the situation cannot be overstated.

The maximum sentence for serious injury by vehicle is 15 years in prison. However, the 10-year sentence was apparently agreed to by the district attorneys’ office (“DA”), the family of the victim and the defendant. Driving on the wrong side of the road on an interstate (in this case I-75) is so negligent that one wonders if it rises to the conscious indifference to the life and welfare of others which is one of the inquiry’s a civil court would make to help determine if punitive damages might be appropriate in a civil case under similar circumstances. While the public is convinced that juries routinely award massive sums as punitive damages. The truth is that punitive damages are very seldom awarded. Punitive damages are requested in approximately 1000 Georgia tort cases each year, but are awarded in only a small percentage of those cases. The law in Georgia limits punitive damages to a particular purpose: “Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.”  The actual language in the Georgia code is found in O.C.G.A. Sec. 51-12-5.1(c) and says, “punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”  O.C.G.A. Sec. 51-12-5.1(b). In most cases Georgia law caps punitive damages at $250,000. O.C.G.A. Sec. 51-12-5.1(g).  However, punitive damages are not capped in two noteworthy instances:  (1)  where the jury finds that the defendant acted or failed to act “with the specific intent to cause harm,” and where (2) the defendant acted or failed to act under the influence of alcohol or drugs “to that degree that his or her judgment is substantially impaired,” but “such damages shall not be the liability of any defendant other than an active tortfeasor.”  O.C.G.A. Sec. 51-12-5.1(f).

Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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Many people are of the opinion that distracted driving is more dangerous than smoking. Let’s think of all of the ways that Georgia drivers can become distracted and cause accidents on the Georgia roadways. Believe me, as an Atlanta personal injury lawyer that has represented hundreds of injured clients, I have heard about most of these ways. Not long ago, there was a famous case in Cobb County in which a driver was pulled over by the police and cited for EATING A HAMBURGER WHILE DRIVING, or (“AHWD”) as I like to call it. I do remember that the charges against this man were eventually dropped (someone correct me if I am wrong about this). However, the point that should be noted is: It IS a crime and the driver should be cited, if he is eating the hamburger and enjoying it so much that his attention is taken away from the road and he endangers the lives of others. I love hamburgers and the crew in my office has been on a constant hunt for the best hamburger in Atlanta, but not behind the wheel. Eating a hamburger is no different from some of the other, more common, ways that drivers become distracted on Georgia roads such as: Driving Under the Influence (“DUI”) of drugs or alcohol, checking their smart phone, texting, changing the radio stations, inputting new information on the navigation app, taking pictures from bridges and of scenery, talking to others in the car that are in the back seat, teenagers playing jokes and covering the eyes of the driver, eating breakfast (yes, I’ve had clients that have been hit and seriously injured by an at-fault driver that was eating her morning bowl of cereal), eating lunch (yes, I have had clients who have been hit and seriously injured by an at-fault driver that was eating lunch, but not the hamburger eater above, eating dinner (yes, I have had clients who have been hit and seriously injured by an at-fault driver that was eating dinner behind the wheel), engaging in sex acts while driving, throwing garbage out the window, searching for something on the floorboard of the car, putting on makeup, taking off makeup, shopping for makeup (make up and driving have a way of ending up in related wrecks), Snap chatting, Facebooking, watching TV and movies, trying to take off the seatbelt, trying to put on the seatbelt, … the list is endless.

The point is: almost any activity, which on its face may seem innocuous, becomes a potentially serious and life-threatening situation if done behind the wheel of a car or truck. Don’t do it.

Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.