Atlanta Injury Lawyers Blog

Published on: January 23, 2010

Georgia Severance Pay

Employers have been negatively impacted by the sour Georgia economy and many have been cutting costs to remain profitable. Unfortunately for many hard-working Georgians, some employers have been cutting costs by offering less (or in some cases none at all) severance packages to terminated employees. As a Georgia lawyer with a great amount of experience representing terminated workers; executives who are not fully paid salary owed to them, and salespeople who are not paid commissions owed to them upon termination, I am seeing a strong surge in the amount of claims related to these areas over the last 2 years. This post focuses on severance pay.

Absent a written contract which requires certain payments upon termination, severance payments are not required in Georgia. However, many employers choose to provide severance packages to terminated employees for a number of reasons. Some companies provide severance pay to garner goodwill with their employees (this goodwill extends not only to the fired employee, but also to the current employees who see how well the terminated employee is treated and, hence, view the employer in a better light). However, some employers use severance payments as a shield against any future liability or waiver of all future claims and lawsuits by the terminated employee. This is where it gets complicated and when you should consult with an experience Georgia lawyer if you are put in this situation.

Many times the employer will offer a severance package and present it to the terminated employee with a “full release of liability.” The offer of severance will be open for a short time and is expressly conditioned on the employee signing the release by the deadline imposed by the employer.

While this may be “good business” for the employer, it may not be in your best interest to sign the release and take the severance being offered. This is a difficult decision that should be discussed with a good attorney to make sure you do not leave any money on the table, or that you do not release valuable legal claims that you may have. Some fired employees may have potential lawsuits related to outstanding commissions that are being wrongfully withheld by the employer, final paychecks which have been withheld, unlawful discrimination, OSHA violations, Fair Labor Standards Act (“FLSA”) violations, or any number of other valuable claims. At a minimum, your potential claims should be discussed with an experienced Georgia business lawyer prior to signing anything given to you.

As a practical matter, most employers provide a 21-day period to review the severance package being offered and the package states that the company urges the terminated to consult with a lawyer. Obviously, the company puts this language in the agreement as a protection against the terminated employee claiming that they did not know what they were signing or did not understand the effect of the document they signed. In most cases, the legal effect of signing the documents that come with a severance package that is being offered to you is that you release any and all claims against the company that you have, or may have in the future related to any conduct of the company up to the date you sign the release. Since this is a broad release, you should be absolutely sure be certain that you know: (1) what potential claims and causes of action you may have based upon your employment; and (2) the money that you are receiving is worth foregoing these causes of action.
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Published on: January 4, 2010

Dangerous Crosswalk in Dekalb County Georgia

by Robert J. Fleming

Once again, we are reminded of the dangerous road and side-walk conditions which some Atlanta pedestrians are subjected to while they are walking and biking on city and county roads. According to recent reports, an Atlanta resident suffered a serious ankle injury and was rushed to Emory Hospital for treatment when she fell while trying to cross North Decatur Road where it intersects with Oakdale Drive. The injured woman and her husband reported the dangerous intersection (which legally constitutes a “nuisance”) to the Atlanta Journal Constitution in hopes that the broken concrete and sunken roadway would be repaired by the county before someone else is injured.

Generally, the local municipality charged with maintaining the roadway and sidewalk in good condition (i.e., safe and free from dangerous defects and/or hazards) is legally responsible to a pedestrian who suffers an injury if the municipality knew or should have known about the dangerous condition and failed to make adequate and timely repairs. Depending on the circumstances, the liable municipality in the Atlanta area would be The City of Atlanta, Dekalb County, Fulton County, the City of Decatur, Cobb County, Clayton County, the City of Marietta, the City of Brookhaven, the City of Johns Creek, the City of Chamblee, Gwinnett County, etc.

What is especially worrisome about dangerous intersections is that, not only does the injured pedestrian fall and suffer from any number of injuries related to the fall (e.g., broken ankle, broken arm, torn rotator cuff, head injuries), but once they fall, they risk being run over by passing cars on busy streets and intersections. This is why local city and county agencies must be vigilant about making these needed repairs.

To their credit, the cities of Chamblee and Brookhaven have installed miles of new sidewalks and cross walks along Buford Highway which goes a long way in alleviating the dangerous conditions that pedestrians that use the Buford Highway corridor face. However, there still exists many other dangerous stretches of road along Buford Highway and other main streets in and around Atlanta that pose a daily hazard to those people who walk along the roads. This would include commuters who travel by bus, bicycle riders and others who are simply walking or riding along the road and have no safe area to traverse.
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Published on: January 1, 2010

Help For Atlanta Residents Seeking Nursing Home Care

by Robert J. Fleming

As an experienced medical malpractice lawyer in Georgia, I am often asked to recommend a good nursing home. While I am reluctant to give specific recommendations, I do understand how important this decision is and offer some helpful advice here. First, the Georgia Department of Community Health maintains records on nursing and assisted living homes/facilities. Second, Georgia nursing homes are governed by O.C.G.A. 31-8-130. Finally, and most important by far, get as many references as you can from each facility and actually follow-up with the references.

Considering the horrific accounts of neglect, abuse and mistreatment that are reported about many Georgia nursing homes, mental institutions and treatment facilities, the above steps are important. Not only is there not enough staff to care for the residents, many times the staff members that are on duty do not possess the training and skills to properly carry out their duties. This leads to inattentiveness, mistakes and, ultimately, inadequate care.

A good checklist of important factors to consider when looking into nursing home choices is published by medicare.Is the nursing home Medicare certified? Some, but certainly not all important considerations are:

Published on: December 23, 2009

What Important Factors Should I Consider When Hiring A Georgia Lawyer

by Robert J. Fleming

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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Published on: December 22, 2009

AT&T Employees Sue for Overtime Pay

by Robert J. Fleming

Current and former AT&T employees have banded together and sued the communications giant claiming up to $1 billion in unpaid overtime pay. The class action lawsuit was filed in federal court in San Francisco and Atlanta and stems from the alleged misclassification by AT&T of former BellSouth Corp. managers who joined AT&T when it merged with BellSouth in 2006. The suit alleges that, although classified by AT&T as managers, the employees’ duties were essentially non-management. If it is determined that these employees were misclassified, they will be eligible for overtime pay and back pay under the Fair Labor Standards Act (FLSA).

AT&T’s wireless operations are headquartered in Atlanta, Georgia https://www.robertjfleming.com/lawyer-attorney-1371077.html.
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Published on: December 11, 2009

Atlanta Georgia Car Accident Forum–Continued

by Robert J. Fleming

As an experienced Georgia personal injury lawyer, I represent many clients who have been seriously injured in a car accident. 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 injured in Georgia car accidents to be better informed about the litigation process. Being better informed allows you to make the best choice when hiring a lawyer to represent you once you have been seriously injured in a wreck and realize that, due to the severity and complexity of the situation, you need adequate legal representation.

I am not the “suing type.” Is there any way my claim can be resolved without filing a lawsuit?

When representing clients who have suffered serious injuries in a car wreck, our main goal is to “make you whole.” In other words, we strive to fully compensate you for your injuries as quickly as possible, but a settlement never comes at the expense of taking less than the full value of the case.

If the insurance company properly evaluates the case and agrees to pay the amount of money necessary to compensate you for your injuries, the case will settle without having to file a lawsuit. However, many insurance companies do not negotiate in good faith. These insurance companies make lowball offers of settlement (offers that the insurance company knows are well below what a fair settlement should be), and hope that the client takes the offer instead of filing a lawsuit. This situation also happens when the insurance company is dealing with a lawyer or law firm who has a reputation for settling cases and not filing suit. The major insurance companies keep detailed databases on who they deal with on all types of cases. If they know that the lawyer on the other end is not likely to file suit, their offer will reflect this and be lower.

In the end, the decision whether to settle the case or file a lawsuit is the client’s. It is our job as your lawyer to counsel you and give you the information needed to make an informed and intelligent decision. Based on the facts of your case and your injuries, along with other settlements and verdicts, we can accurately value your case and help you make this decision.

If the decision is to file suit, Robert J. Fleming is there every step of the way. Many times, the case settles after suit is filed but before trial for much more than the last offer on the table prior to filing suit. Some cases, just have to be tried before a jury in order to get the plaintiff properly compensated.
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Published on: November 23, 2009

City of Atlanta Potentially Liable For Hazard

by Robert J. Fleming

There is a storm grate located within the City of Atlanta in front of the famous Oakland cemetary. It is a very large concrete storm drain cover which is dislodged and causing a hazard. The storm drain is located on Memorial Drive in front of Oakland cemetary.

Interestingly, the Atlanta citizen who complained about the damaged storm drain cover noted that there was accumulated dirt and weeds growing in and around it. This strongly indicates that the damaged storm drain cover has been dislodged and causing this dangerous condition for over a year. This is important because the City of Atlanta, as a municipality, is liable for all injuries caused by the defective storm grate once the City knew or should have known of the defective condition. Once this is established, the defective condition is considered a nuisance and liability attaches to the City. Other ways in which the knowledge of the City can be proven is by establishing that other people have been injured by the defective condition and filed claims against the City or by showing that others have complained to the City about the defective condition prior to the injury in question.

There have been many cases in which the City has avoided liability by claiming that it did not have prior notice of the dangerous condition which caused the incident. This is a proper defense for the City, especially if there is not proof that the dangerous condition has existed for an extended period of time. However, once weeds start growing over the dangerous condition, and leave and other debris become embedded in the hazard, strong evidence supports that the City will not be able to escape liability by claiming it did not know. That is so because the standard of notice to the City in these situations is: “knew or should have known” of the dangerous condition.

The problem with particular storm grate cover is that part of the cover rests in the gutter and the other end is thrust up in the air where it can easily snag bicyclists or pedestrians who are trying to pass by. This is a potentially deadly situation because a bicyclist or pedestrian who is ensnared in the grate and is thrown into the street could very easily be run over and killed by a passing car.
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Published on: November 20, 2009

Georgia Falling Tree Limb $6 Million Verdict

by Robert J. Fleming

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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Published on: November 3, 2009

City of Atlanta Pays $325,000 For Injury on Broken Water Meter

by Robert J. Fleming

The Atlanta City council has approved a $325,000 payment to a woman who tripped and fell on a broken City of Atlanta water meter. The injured Atlanta citizen originally sought over $1 million when she hurt herself when she stepped through a broken water meter cover that was not properly maintained by the city.

While the City of Atlanta is often immune from the type of negligence claims asserted against private entities, there are many legal theories under which people hurt by the wrongful acts of the City of Atlanta can recover. One such theory is nuisance. Under a nuisance claim, the injured party claims that the City of Atlanta has maintained a dangerous condition and has not corrected the danger, even after the City knew, or should have known of the danger. Many times, the plaintiff is able to prove that the City knew about the dangerous condition by securing documents via a Freedom of Information Act (FOIA) request. The documents that are produced in response to the FOIA request often have citizen complaints of the hazardous condition, incident reports that document other injuries caused by the dangerous condition, failed attempts by City workers to fix the problem, and other documents that prove notice to the City of the problem. I have found this to be especially true in cases involving City of Atlanta dangerous road conditions, dangerous sidewalk conditions (including dangerous curbs and uneven sidewalks, which are a tripping hazard) and, as in the present case, water meters which the City has notoriously failed to properly maintain. In fact, at one point, the City was installing covers on the water meters which were the wrong size. This made the situation worse, as it created an unsafe condition by hiding the meter, but if someone stepped on the cover, it collapsed into the meter (along with the pedestrians foot, etc.).

In order to maintain a nuisance claim against the City, one must first “put the City on notice.” Under Georgia law, before an action for personal injury or injury to property can be brought against the City or other municipal entity, one must first send a written ante-litem notice. This is a legal requirement that has been recently changed and has come under a bit of scrutiny as some entities that are entitled to an anti-litem notice are not obvious. In other words, the entity may technically be a governmental entity (and entitled to receive an anti-litem notice prior to being sued), but have a name that does not indicate to the public that is anything but a private, for profit, business. These situation must be properly investigated to make sure that: (1) the correct entity is identified; and (2) if the entity is considered a governmental entity, that a proper anti-litem notice is sent to preserve all claims against the target entity and all other potential defendants.
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Published on: October 9, 2009

Georgia Car Accident Forum (Continued)

by Robert J. Fleming

As we have been discussing, as an experienced Georgia personal injury lawyer, I have represented many clients who have suffered serious injuries in automobile accidents. While every case is different and no two clients are alike, I am writing a series of blog posts which address frequently asked questions. Knowing the answers to these common car accident questions will allow those injured in Georgia car accidents to be better informed about the litigation process.

Who pays for my medical bills?

The negligent driver is responsible for paying your medical bills. However, the negligent driver (or, in most cases, their insurance company) will not pay for medical bills until the whole case is settled for a lump sum amount. Therefore, your medical bills must be addressed prior to settlement. Some possible ways to manage your medical bills until your case settles are: (1) If you have health insurance, submit the bills to your health insurance company; (2) submit the bills to your automobile insurance company to be paid under the med pay portion of your automobile insurance policy; (3) ask the hospitals and doctors who have treated you for your automobile accident related injuries to delay collection efforts until your case resolves, at which time the outstanding medical bills can be properly addressed; (4) seek a Letter of Protection from your attorney to the medical care provider stating that the doctors’ bills will be “protected” in any settlement. This allows the doctor to continue providing the care and treatment you need, while not having to worry about getting paid; and (5) in rare cases, an injured person can receive money from case funding companies.
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