Articles Posted in Premises Liability

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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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Several adults, and at least one teenager face charges arising out of a fatal drunk driving accident that killed a 16-year-old Villa Rica boy. The adults include fathers of some of the teenagers involved, as well as a liquor store owner.

The accident occurred over the weekend when a car full of teenagers crashed in Douglas County. According to the Georgia State Patrol, when the at-fault driver lost control of his SUV, and the resulting accident killed 16-year-old passenger. The SUV drivers was on bond for drug and alcohol charges at the time of the accident. Not surprisingly, the judge has denied his bond application this time around.

Investigations have been tracing the at-fault driver’s actions just before the accident. According to them, he first made a stop at a party being hosted by the teenage grandson of a Villa Rica man, who has now been charged in the accident for allowing underage drinking in his house. There, the at-fault SUV driver consumed an undetermined amount of alcohol, and then went on to his next stop, another party that was being hosted by another teenager. In that case too, the teenager had been allowed by his father to drink with his minor friends. This teenager purchased alcohol at a Douglasville liquor store, and the liquor store owner now faces charges. The at-fault SUV driver consumed more alcohol at the second party, and then drove on, resulting in the accident.
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A lawsuit filed by plaintiffs against MARTA concluded last week with a $1.4 million verdict in Fulton County Superior Court. Two years ago, Patricia Weeks missed a football game because a MARTA escalator abruptly switched directions, causing most of its riders to fall. Now Weeks, after suing MARTA, has been compensated for her injuries.
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As an experienced Georgia lawyer, I represent many clients who have been seriously injured or who have complex legal needs. This entry is one of a series of blog posts which address frequently asked questions. Knowing the answers to these common questions will allow those who need to hire a Georgia lawyer to make a more informed decision.

What should I look for in choosing a lawyer in Georgia to represent me?

Before hiring a lawyer in Georgia, you should conduct some basic background research to determine if the lawyer you are considering hiring is the right lawyer for the job. Many times the best marketer gets hired by the client, and this is a shame, because you deserve to have an experienced and dedicated lawyer representing you. As a general rule, staying away from the “heavy advertisers” such as those lawyers who advertise on daytime T.V., on the back of city busses, and on the front pages of the Yellow Pages is advisable. Many of these lawyers simply spend a lot of money on advertising and refer most of their cases to other lawyers who actually do the work.

Some factors which should be considered before hiring your lawyer are: (1) education–from which law school did the lawyer graduate. Law school educations vary greatly. Make sure your Georgia lawyer graduated from a top law school; (2) how much experience does this lawyer have. The practice of law is one of those professions that, with few exceptions, the more experience a lawyer has, the better. Lawyers often draw upon prior cases and situations in which they were involved to successfully prosecute current cases. The more experienced your lawyer is, the more prior experiences to draw from. Experience matters; (3) ask about courtroom experience and results. Many lawyers are vague about this. Many call themselves “litigators” yet have no direct trial experience. If you have an important case and go to trial, you will want an experienced trial lawyer (i.e., one who has ample “first chair” trial experiences and results to share with you) on your side at the courthouse. Ask specific questions and expect direct answers; (4) try to hire a lawyer that you like. I realize that, many times, you must make a fairly quick decision, and you have little chance to really get to know a lawyer before you hire them. But, try to get to know the lawyer you are considering hiring. Then, use your instincts and ask yourself, “is this someone who is trustworthy, likeable and easy to get along with?” You can usually answer this question. If the answer is, “no” or “I don’t know”, then keep searching and hire a different lawyer. A good trial lawyer is someone who can be trusted by all (by you, by opposing counsel and by the judges and courtroom staff). A good trial lawyer has a personality that people genuinely like and respect. A good trial lawyer instills confidence and competency in everyone involved. You should have these good feelings about your lawyer, or you should continue your search. “Why,” you may ask. Because your lawyer will need all of these skills to successfully prosecute your case, whether it involves negotiating with the other side’s insurance company, working with you, or trying your case in a court of law.
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On July 4, 2006, a family was traveling along Rte 29 when the limb from an oak tree fell on their car. Due to the fallen tree limb, the husband suffered a broken neck and permanently lost the use of his right arm. The driver lost control of the SUV after the tree limb landed on the car, which caused the SUV to hit the guard rail on the opposite side of the road.

The verdict was against the State for failing to properly maintain the roadway, as the oak tree had apparently been weakened by flooding and showed signs of rot, yet the State failed to take appropriate action to ensure the roadway was safe. $6 Million Article. While this wreck did not happen inside the City of Atlanta city limits, it is interesting to note how the City’s tree ordinance addresses potentially hazardous tree conditions.

According to the code, Hazardous tree means a tree with uncorrectable defects severe enough to pose present danger to people or buildings under normal conditions, as determined by the city arborist or city forester. Sec. 158-26 of the Code.

The City code addresses dead or diseased trees being a hazard in Sec. 158-110 as follows:

The provisions of this section shall apply to all property in the city, as follows:
(1) Generally. Any dead or diseased tree or part of a tree is a nuisance when, by reason of such condition, natural forces may, more readily than if such tree or part thereof were live or not diseased, fell or blow such tree or part thereof onto public ways or public property, off of the property of the owner of such tree, and thereby imperil life or property or impede traffic. When a dead or diseased tree which is alleged to constitute a nuisance is brought to the attention of the parks arboricultural manager or city arborist, the parks arboricultural manager or city arborist, in their discretion, may submit through the director, bureau of parks a written opinion to the director, bureau of buildings. Upon receiving a written opinion from the director, bureau of parks that any tree or part thereof is a nuisance as defined in this section, the director, bureau of buildings shall commence nuisance abatement proceedings.
(2) Notice to owner to remedy conditions; failure to comply. The director, bureau of buildings shall give written notice to the owner or the person in possession, charge or control of the

property where a tree nuisance as defined in this section exists, stating that in the city arborist’s opinion the tree or part of a tree does constitute a nuisance that shall be removed, and requesting that such removal be done within a reasonable time to be specified in such notice. In no event shall such reasonable time exceed ten working days. Such notice shall further state that unless the tree or part thereof is voluntarily removed within the time specified, the director may cause summons to be issued requiring the party notified to appear in the municipal court to have there determined whether the tree or part of a tree involved constitute a nuisance and should be abated. If the tree is not removed within the time specified by the director, the director may cause the owner of such tree, or the person in possession, charge or control thereof, to be summoned to appear before the judge of the municipal court to determine whether or not the tree or part of a tree involved constitutes a nuisance.

If the above situation applies, the owner (even if a governmental entity) is on notice of the hazard and is liable for all damages that flow from the hazard, such as falling limbs onto houses and cars or into the roadway which causes damages. If a private property owner in Georgia has prior knowledge that their tree is unsafe they will likely be liable for damages that stem from the tree throwing off limbs or falling. “Prior knowledge” can be established by a letter sent to the property owner putting them on notice or by obvious conditions that would indicate that the tree is unsafe such as falling limbs, rot or decay.
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Since we last reported on the Crocs-related escalator injuries on December 9, 2008, Atlanta Residents Injured By Faulty Escalators more news has developed which now points the finger at Crocs, in addition to faulty escalators. For a full breakdown of this developing area see the Snope.com article Danger Afoot. While it is clear that rubber shoes and escalators do not mix, everyone should take great caution when getting onto and off of escalators. I have especially noticed and increased incident rate of accidents while pedestrians are entering and exiting the escalators at the Atlanta Airport.

Regardless of which side you come down on this debate (e.g., is it the Crocs causing the injuries or is it the escalators that are causing the injuries), the important point to take away from this is: children are suffering injuries on escalators in record numbers. Whether they are being injured at Lenox Mall, Hartsfield Airport, on Marta escalators or in any number of locations around Atlanta, they are being seriously injured. All parents must take extra caution when shopping or traveling with young children.

If you do become involved in an incident stemming from a fall or other injury on an escalator, you must do all you can to preserve your legal rights. First and foremost, seek medical assistance if you are injured. If at all possible, you should also notify police or security and make absolutely certain that a police report or incident report is filled out. In addition, be sure that you obtain the police report number or incident report number (if available) and ask for a copy of the report. This will be invaluable later when you hire a lawyer and other information is sought from the potential defendants. These reports will not only clarify the facts of the incident such as exactly where on the premises you were injured, what caused the injury, who witnessed the incident, etc. but they also put the property owner on notice of the incident. Many times, if a police or incident report is not completed, we are not able to pursue a case.

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Most experienced injury lawyers agree that the owner of a chimpanzee shot and killed by police after it attacked a 55-year-old woman last week will likely be named in a lawsuit. The state could also be held liable in the incident because it should have known the animal was a risk to the public. The victim of the attack remains in critical condition at the Cleveland Clinic as doctors evaluate her injuries, according the the Hartford Courant.

In Georgia, a pet owner is held strictly liable for injuries caused by vicious wild animals belonging to her, because such animals are considered inherently dangerous. Candler v. Smith, 50 Ga.App. 667 (1935). A dog, as a matter of law, is not subject to the rules governing wild animals. Harper v. Robinson, 263 Ga. App. 727(1) (2003).

However, Georgia law provides for liability to pet owners who “knew or should have known of the [vicious] propensities.” OCGA Code Section 51-2-7. While the commonly quoted “one bite rule”, i.e., every dog is entitled to its first bite without the owner being liable to the bitten victim, illustrates one way in which an owner would be held liable, it is not the only way. For instance, even if a dog has never attacked or bitten someone before, the dog’s owner could be liable for damage caused by the dog if “the animal was required to be at heel or on a leash by an ordinance of a city [or] county and the animal was at the time of the occurrence not at heel or on a leash.” Id. In fact, most metro Atlanta, Georgia  Counties, including but not limited to Cobb, Fulton, DeKalb, Clayton, and Gwinnett have leash laws that require the dog owner to have control over their dog at all times. For instance, Gwinnett Counties’ leash law makes it clear that the dog must, at all times, be controlled by the owner to avoid the dog attacking someone. The requirements are even stricter if the dog has attacked an innocent bystander before. When the is an applicable animal control statute (a/k/a leash law), the “one bite rule” is superseded by the leash law and the dog’s owner, in most cases, is what lawyer’s refer to as negligent per se. In other words, the fact that the dog was able to attack someone in the neighborhood, proves that the leash law was violated and the owner is liable for all the damages caused by the dog’s attack.

It is important to note that dog attacks result in physical and emotional damages. If one has ever been attacked by a dog, you know just how scary the attack can be. Most people who suffer dog bite attacks, are victims of post traumatic stress disorder from the attack, and are fearful of dogs long after the attack, if not forever.

Dog bites can be very painful and, in some cases, they can inflict long-lasting emotional impacts on victims. Care should be taken by all responsible dog owners to ensure that their dogs are not left in a position to attack and hurt innocent victims.
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We hear about it during the busy Atlanta summer travel season. We hear about it during the busy Georgia holiday shopping season. Boys and girls of all ages being seriously injured when their little hands or feet are suddenly sucked into the openings by the moving stairs of escalators. While Marta, the large department stores and airports try to lay blame on the popular Crocs-type shoes, the real culprits are faulty escalators.

For instance, in 1996, long before Crocs were even on the market, a young boy in Houston lost three toes when his tennis shoe was sucked in by an escalator. “If escalators were designed properly and met all the standards, it wouldn’t matter that they [the injured children] were wearing Crocs,” said Scott Anderson, of Houston, Texas whose 4-year-old son was was seriously injured in the 1996 escalator accident.

Since the beginning of this year, over 140 injury incident reports have been filed with Georgia state regulators, with the vast majority occurring at Hartsfield-Jackson International Airport, MARTA and the various Atlanta area shopping malls such as Phipps Plaza, Lenox Mall and Perimeter Mall. Although rare, some of these incidents result in severe injuries such as head traumas, loss of limbs and permanent disfigurement. If you or a family member is injured in an escalator accident, you should immediately contact an experienced personal injury attorney and then (through your attorney) report the incident to the U.S. Consumer Product Safety Commission (“CPSC”). The CPSC’s web site is www.cpsc.gov/cgibin/incident.aspx or they can be reached by telephone at 800-638-2772.

While not every injury that occurs on an escalator is due to someone else’s negligence, many are. If you are seriously injured on an escalator and you suspect that the injury was caused by faulty equipment or negligence on the part of the premises owner/operators (some common premises owners or operators are MARTA, AATC–which operates Hartsfield-Jackson International Airport for the City of Atlanta and the Airlines, and the various malls in the Atlanta area such as Phipps Plaza, Lenox Mall and Perimeter Mall).

Robert J. Fleming, P.C. has successfully represented many clients injured on the premises of others. If you have been seriously injured, contact us today for a free initial consultation to discuss the specific facts of your case.
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