Articles Posted in General Negligence

Proper notice to governmental defendants in Georgia is an important legal requirement which must be addressed well before suit is filed. The Georgia Court of Appeals issued a ruling in Davis v. Morrison, A17A2095, 2018WL796323, which apparently expands the existing ante litem notice requirements under O.C.G.A. 36-11-1 to include individual notice to sheriffs who are sued in their official capacity. 

Davis was an automobile wreck case in which the plaintiff was struck by a sheriff’s deputy while the deputy was driving a county-owned truck and on business related to his duties as sheriff. Pursuant to O.C.G.A. § 36-11-1, the plaintiff sent a proper and timely ante litem notice was timely served on the County, and addressed to the County Board of Commissioners, the County Administrator, and the County director of human resources. It is undisputed that the sheriff’s department was not served an ante litem notice. Plaintiff sued the County and the deputy individually and in his capacity as an employee of the county. The defendants moved for summary judgment, arguing (i) that the County cannot be liable for the negligence of the deputy sheriff; (ii) that the deputy sheriff cannot be sued the official capacity as an employee of the County; and (iii) even if Plaintiff had named the Sheriff of County, Plaintiff did not properly serve the sheriff (as opposed to the County) with an ante litem notice.

The Trial Court held that because no ante litem was served on the sheriff, plaintiff was barred from recovery, citing O.C.G.A. §§ 36-11-1, 36-92-1 and Ray v. City of Griffin, 318 Ga. App. 426 (2012). Curiously, the trial court made this finding in exactly one sentence, with no discussion of how it arrived at this conclusion. Ray v. City of Griffin only discusses O.C.G.A. § 36-92-1; there is no ante litem discussion.

Anti litem notices are required notices that must be given to governmental entities before they can be properly sued in Georgia. Great care must be used in identifying and notifying potential governmental entities that a lawsuit is being contemplated by the injured party. Sometimes the governmental entity does not identify itself as such and it is impossible to ascertain from the information supplied to the public that the potential defendant is, in fact, a governmental entity and entitled to anti litem notice.

Robert J. Fleming has been handling wrongful death cases, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of negligence for over 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities such as Alpharetta, 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 to discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

In most personal injury lawsuits, medical bills make up a large portion of the damages that the Plaintiff is seeking in the suit. Still, in others, the pain and suffering portion of the damages being sought are based heavily on the amount of medical bills. In other words, if the injured Plaintiff has a lot of medical bills, it follows hand-in-hand that she has suffered a great deal and should be awarded for this inconvenience, suffering and pain. In order to place the correct emphasis on medical bills, the proper jury charge is critical. One such charge addresses the concern that the jury may  assume there is health insurance which covers (and has paid for) the medical bills being sought by the Plaintiff and addresses the Georgia legal concept of collateral estoppel. It is as follows:

If you find the Plaintiff is entitled to damages,  you should give no consideration to other potential sources of payment or benefit to either party as you consider the issue of damages.  You are not permitted to consider or speculate whether the Plaintiff has  been or will be compensated, in whole or in part, by any other source or  whether some third-party has made or will make any payment for expenses  or damages that you find the Plaintiff has suffered as a result of the  matters alleged in this case.

In other words, it should be on no concern to the jury as to whether the Plaintiff has medical insurance that may cover some or all of the medical bills being sought in the case nor should the jury guess or speculate about this.  In addition, with the advent of document production and editing software, it is much easier to make redactions in  bills so that references to insurance are removed from the jury’s purview and this, at a minimum should be done in every case in which the medical bills will be going back to the jury as an exhibit to consider and take into account in order to arrive at an amount of damages that will fairly and adequately compensate the Plaintiff in the lawsuit.  In order to protect against the jury penalizing the Plaintiff for making the correct legal redactions, the Plaintiff attorney in the case should strongly consider a jury charge such as the following:

In the news recently was the story of a woman who pretended to be a lawyer at the Towns County, Georgia Detention Center in April. She was arrested earlier this month by the Towns County Sheriff’s office and has been charged with practicing law without a license.

While your current lawyer may or may not be well suited to represent you, I doubt that you are in the position of being represented by someone who doesn’t even have a law license. Well, I certainly hope not. So, with that in mind, let’s look at what might be important to you if you ask: Is the lawyer I have the best choice for me and my case in Georgia?

There are many factors to take into account when trying to answer this question. First, you must ask whether the lawyer has the skill and training in the particular area of law in which your case falls. This is a pre-requisite for any attorney that you hire in Georgia. However, based on the news story at the top of this post, maybe the first questions should be whether person you hired is actually a lawyer (a thinly veiled attempt at humor). In any case, your lawyer should have adequate training and experience in the specific area of law that the case involves. Some common areas of law are car accidents, slip and falls, premises liability, medical malpractice, etc. All of these areas involve unique issues and laws that require a good amount of familiarity that usually can only be obtained by handling these cases over the course of many years.

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.

PLAINTIFF’S REQUESTS TO CHARGE

Plaintiff respectfully requests the Court to give the charges attached hereto. Plaintiff requests the Judge to charge the following separate charges, each of which have been numbered separately and are to be considered a separate and distinct request, as if each numbered request to charge were submitted to the Judge separate from all other numbered requests to charge. This is expressly not a request to charge the following attached requests to charge collectively or en bloc. Plaintiffs reserve the right to submit additional charges as appropriate.

Respectfully submitted this the __________day of __________________, 20____.

With the ringing in of the new year came the latest edition of the “Real” Yellow Pages and a host of imitators. I normally throw them right into the recycling bin because, as a hard-working and ethical lawyer who has built his practice on past performance in the courtroom and client satisfaction and referrals, it is difficult to read the Yellow Page Ads that some lawyers run. Truth be told, I know some of these lawyer and more importantly, I know the quality of law that they practice. To be kind–they are usually not the best choice when one is seriously injured and looking for a lawyer in Atlanta that will take the case on, work the case up, and resolve it or try it to a jury quickly. Rather it has been my experience that most of the heavy Yellow Pages advertisers are in the business of getting lots of cases in, settling the easy ones and referring out the hard ones to lawyers who will put the effort into getting a good result for the client by working the case up the proper way and pushing the case to fruition. This often entails written discovery, depositions of the parties, depositions of the experts, motion, oral argument and, if the case cannot be resolved at mediation, trying the case to a jury.

It is astounding, but the “best lawyers in Atlanta” are almost all NOT in the Yellow Page Ads. In addition, the two page spreads are dominated by law firm mills (heavy use of paralegals, advertising for low-lying fruit and who sign up and refer out to real trial lawyers the difficult but valuable cases).
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A consumer fraud class-action lawsuit has been filed in US District Court. The suit claims that JPMorgan Chase uses false documents to misrepresent itself as having standing in bankruptcy cases. Rather than pay the fees associated with proving the succession of ownership, Chase just creates its own documents. Some of these alleged “false document” filings may have directly effected Atlanta homeowners.

Initially, the case began with one client but turned into a class action suit when a pattern was seen in cases where chase was involved. Oddly enough, Chase is the rightful owner of the loan, but the bank just doesn’t want to spend the money and time needed to confirm it.

Most of the time Chase has legal standing in bankruptcy court. However, the bank doesn’t spend the money to prove their authority to act. Thus not allowing individuals their chance in court, by using counterfeit affidavits, endorsements, deeds, and other certificates to prove its rights as a lender in numerous bankruptcy cases.

In my over twenty years of experience as an Atlanta lawyer, I have often heard clients comment on how they did not know how to go about retaining legal counsel. Many times, people may have a quick legal question or wonder how much their case is worth. There really is no down-side to calling an experienced Atlanta lawyer to get some answers.

If you believe you have a legal claim, the first thing to do is call a lawyer for an initial consultation. Lawyers almost always offer free consultations, in person or over the phone. These consultations are an opportunity for you to see whether you feel comfortable with this person representing you and for the lawyer to determine whether you have a valid legal claim that he or she wishes to take on. The information you share with a lawyer during a consultation will remain confidential, even if you do not end up retaining that lawyer.

If you delay in contacting a lawyer, you run the risk that your legal claim will expire before you can file your complaint. For instance, in Georgia, the statute of limitations (the time you have to file a claim) in medical malpractice cases is two years from the first alleged act of malpractice. Similarly, the statute of limitations for auto accident cases in Georgia is two years from the date of the accident. For dental malpractice, the statute of limitations (the time you have to file a claim) in Georgia is two years from the first alleged act of malpractice. Two years is not a lot of time if you have to order records, have your case reviewed, obtain an affidavit from a medical expert, and prepare the appropriate filings. And, I talked to some unfortunate potential clients who have been led on by insurance adjusters, mistakenly believing that the insurance company was, in good faith, trying to settle their case, but were summarily dismissed immediately after the expiration of the statute of limitations. For all intents and purposes, they lost their case because the believed the insurance company adjuster that they would take care of them.

We recently posted a blog about premises liability and an Atlanta MARTA rider’s suit against MARTA. That case ended on Friday with a jury award of 1.4 million to the plaintiff.

This verdict re-affirms the importance of property owners’ responsibility to maintain a safe environment for guests an invitees on that property. The jury did not find Elevator Specialists, Inc., the company MARTA fired in 2007, to be liable. MARTA and the remaining firm contracted to maintain station escalators, Schindler Corp., had a responsibility to anyone riding their escalators to keep them in safe working condition.

MARTA is governed by a board, consisting of representatives appointed from the city of Atlanta (3 members), and the remainder of the counties of Fulton (3 members), Clayton (2 members) and DeKalb (4 members). Additionally, there is 1 member from the Georgia Department of Transportation, and 1 member from Georgia Regional Transportation Authority) who also serve on the MARTA Board of Directors.

Positions on the MARTA board are directly appointed by the organizations they represent. Although the state of Georgia does not contribute to MARTA’s operational funding, it still has voting members on the MARTA board. A similar situation existed for both Clayton and Gwinnett counties during most of MARTA’s history; as a consequence of passing the authorization referendum but not the funding referendum.

The highest position at MARTA is the general manager and chief executive officer. In October 2007, Dr. Beverly A. Scott was named the new general manager. Prior to joining MARTA, Dr. Scott served as GM/CEO of the Sacramento Regional Transit District. She has over 30 years of experience in the transportation industry. After 5 years at MARTA, she decided not to renew her contract with MARTA’s Board of Directors. Scott’s last day was December 9, 2012. Keith Parker is MARTA’s General Manager/CEO. Prior to Dr. Scott, MARTA’s General Manager was Richard McCrillis from 2006 to 2007. In October 2007, McCrillis retired after 22 years of service at MARTA.

The Georgia General Assembly has a standing committee that is charged with financial oversight of the agency. During the 2009 legislative session, Representative Jill Chambers,  introduced a bill that would place MARTA under GRTA, and permanently remove the requirement that MARTA split its expenditures 50/50 between capital and operations. This would allow MARTA to avoid service cuts at times when sales tax revenue is low due to recession, without having to ask the state legislature for temporary exemptions (typically a 55/45 split) as it has received before. The bill was not passed, but the funding restrictions were removed in 2015.

Due to it’s quasi-governmental structure, suing MARTA has it pitfalls. If you have suffered a serious injury on MARTA premises or due to the negligence of MARTA, you should hire an experienced Georgia lawyer who is well versed in how to sue MARTA.
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