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Nursing home arbitration clauses have recently come under heavy scrutiny. These clauses, which may act to prevent a party from filing a lawsuit in a court of law, are often contained in large blocks of small print, making it unlikely that the person signing the contract fully understands the importance of the rights they are giving up. As a result, courts routinely invalidate nursing home arbitration agreements when the inclusion and enforcement of the clause would violate general contract law.

Signature LineHowever, in a recent U.S. Supreme Court opinion, the Court found in favor of a nursing home, upholding the arbitration agreement that the plaintiffs signed.

The Facts of the Case

The plaintiffs were the surviving loved ones of two family members who died while in the care of the defendant nursing home. Prior to admitting their loved ones to the nursing home, they obtained a valid power of attorney document, giving them the ability to “dispose of all matters” related to their loved ones.

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In a recent decision, a Georgia court of appeals dismissed a woman’s lawsuit against the Georgia Department of Transportation (DOT), finding that she failed to satisfy the requirements in her “ante litem,” or pre-lawsuit, notice. The woman sued the DOT, alleging that one of its employees had negligently caused a crash in which the woman was injured. The DOT argued that the case should be dismissed because the woman’s ante litem notice did not specify the amount of damages claimed.

Rule BookIn Georgia, the Georgia Tort Claims Act requires a party with a tort claim against the State to provide the State with written notice before filing the claim. The notice has to specify the “amount of loss claimed.” The notice must provide this information “to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances.”

In the woman’s ante litem notice, which she filed about a week after the crash, she stated that as a result of the collision, she suffered great pain and suffering. She claimed her total damages had “not yet been determined” because she was “still under the care of her treating physician,” and she would “claim the full amount of damages allowed by law.”

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The are many types of motor vehicle accidents, as well as many different causes. After an accident occurs, if the parties cannot come to an agreement on who is responsible, it is left up to a jury to determine who was at fault in causing the accident, who is entitled to receive compensation for their injuries, and how much each party should receive. While some accidents do not present much difficulty to the courts in determining who was at fault, at other times, the process can be quite complex. This is especially the case when there are multiple vehicles involved, or when the fault is shared among all parties.

School BusIn situations in which each motorist may be partially at fault for the accident, Georgia courts use the rule of “modified comparative fault” to determine who is entitled to recover and which damages they should receive. Under the doctrine, any party who is less than 50% at fault for the accident can seek compensation from the other parties involved. However, if they are successful, their damages award will be reduced by their own percentage of fault.

For example, if a motorist is involved in an accident with another driver and is determined to have incurred $500,000 in damages, but he is also determined to be 10% at fault for the accident, he will receive $450,000 instead of the total $500,000.

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Georgia courts have the power to issue legally binding rulings in the matters that are properly presented before them. However, before a court can hear a case and issue a ruling, certain procedures must be followed. One of the first procedures that must be followed in any personal injury lawsuit is for the plaintiff to serve notice of the lawsuit to each and every party who is named as a defendant.

Handing Off PapersIn Georgia, proper service must contain the parties’ names, the name and address of the plaintiff’s attorney, and the time and date that the defendant must appear before the court. Service can be made by a sheriff, a process server, or anyone else specifically appointed by the court to effectuate service. If a plaintiff fails to properly serve one or more defendants, the plaintiff will almost certainly run into problems down the road. A recent case in front of the Georgia Court of Appeals illustrates the issue of how improper service can significantly delay a plaintiff’s case and potentially result in an early dismissal.

The Facts of the Case

The plaintiff was involved in an accident with a school bus. The plaintiff filed a personal injury lawsuit, claiming that the school bus driver was negligent in the operation of the vehicle and that the school district was also liable through the theories of vicarious liability, negligent entrustment, and negligent hiring.

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Earlier this month, the Georgia Court of Appeals issued a written opinion in a premises liability lawsuit that was brought against the Metropolitan Atlanta Rapid Transit Authority (MARTA). The case, which was filed by a woman who had slipped and fallen on a train platform, was dismissed by the lower court. In the most recent appellate opinion, the court affirmed the dismissal of the plaintiff’s case, based on the finding that the accumulated rainwater should have been expected and that it did not constitute a dangerous condition.

Train StationThe Facts of the Case

The plaintiff was planning to take a train operated by MARTA. According to the court’s opinion, it had been raining for most of the day. As the plaintiff approached the station, she entered a covered platform area. A few feet from the door of the platform, there was a small puddle of rainwater that had accumulated. No one knew how long the puddle had been present, but the plaintiff claimed that the area where the puddle had formed was darker, and she argued that this suggested there had been an accumulation of water there on-and-off for a number of months or years.

As the plaintiff stepped into the puddle, she slipped and fell. She then filed a premises liability lawsuit against MARTA, claiming that MARTA was negligent in maintaining the train platform and that it should be held liable for her injuries.

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Earlier this month, the Court of Appeals of Georgia issued a written opinion in a premises liability case brought by several tenants and their guests against the landlord that owned the home. Ultimately, the court determined that the landlord could not be held liable because of the higher burden premises liability plaintiffs face when naming an out-of-possession landlord as a defendant.

Wooden DeckThe Facts of the Case

The defendant purchased a rental property in 1987. Shortly after purchasing the home, he had a contractor replace the rear deck. The landlord did not supervise the construction of the deck, but he was aware that the deck was fastened to the home using nails rather than lag bolts.

In 2010, the landlord rented the home to the plaintiffs. As a part of the lease agreement, the tenant retained exclusive possession of the property. However, the landlord agreed to make the necessary repairs when notified by the tenant.

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Earlier this month, the Court of Appeals of Georgia issued a written opinion in a premises liability case brought by a man who had slipped and fallen at the defendant’s restaurant. Although the defendant did not initially reply to the plaintiff’s complaint, and a default judgment was entered against the defendant, that judgment was reversed on appeal because the plaintiff had never properly served the defendant.

StepsThe Facts of the Case

The plaintiff slipped and fell while at a restaurant owned by the defendant. After his fall, the plaintiff filed a personal injury lawsuit against the restaurant where he fell. As required by law, the plaintiff attempted to serve the defendant restaurant with notice of the pending case.

The restaurant, however, had a common name, and the owner of the restaurant owned similarly named restaurants. As a result of this confusion, the plaintiff ended up serving the correct owner of the restaurant, but he filed the complaint against one of the owner’s other restaurants. The owner responded that he would not be answering the complaint because it was filed against the wrong entity.

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Last month, the Supreme Court of Georgia issued a written opinion in a dog bite case, explaining which elements a plaintiff must prove in order to be successful. The case presented the court with the opportunity to discuss when a trial judge can make a determination, as a matter of law, that the plaintiff’s case is insufficient. Ultimately, in this case, the court held that the plaintiffs presented sufficient evidence to survive the defendants’ summary judgment challenge.

PitbullThe Facts of the Case

The plaintiff was bitten by a neighbor’s dog while she was visiting the neighbor in their back yard. The defendants had only had the dog for a little over a week at the time of the attack. Prior to the attack, the dog had snapped at humans twice, once at one of the defendants and once at the plaintiff’s husband. On the day of the attack, the plaintiff entered the defendants’ back yard and approached the dog, which was on a leash. The plaintiff extended her hand gently toward the dog, and the dog lunged at her. As the plaintiff tried to get away, the dog latched onto her leg. The plaintiff and her husband filed a personal injury lawsuit against the defendants.

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In a recent case, a husband and wife brought a Georgia medical malpractice claim, alleging that the man’s doctors and nurses failed to correctly position and reposition him before and during surgery, causing a permanent injury to his arm. However, a Georgia appellate court recently decided that the plaintiffs failed to show that the defendants’ actions or inactions caused the man’s injury.

SurgeonThe plaintiff underwent a robotic-assisted laparoscopic prostatectomy surgery, an operation for prostate cancer. The man had to be positioned with his arms tucked to his side, and his body was wrapped with sheets and towel clips. The surgery lasted over nine hours, and his body was never repositioned. After the surgery, the man complained of pain in his shoulders and arms. He underwent a second surgery on the next day to relieve pressure in his right arm, but he lost the complete use of his right arm and hand.

The plaintiffs presented a medical expert, who testified that he was not certain what led to the man’s injury, and it could have been the way he was positioned, the length of the surgery, or both. He also could not say at which point during the surgery the injury developed. He said that they believed the way he was positioned or the failure to reposition him, or a combination of these actions, caused the injury.

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In Georgia, and in most other states, generally, when your are injured on the job your only remedy is for benefits under the applicable workers compensation laws.  In Georgia, this is known as the exclusive remedy doctrine.  The benefit of this doctrine to injured workers is that they do not have to prove that a party was negligent in order to be compensated.  Proving negligence can be very difficult in some cases.  Rather, they simply need to prove that they were working and while working, were injured.  The downside to workers compensation’s exclusive remedy is that a workers’ recoverable damages are limited.  For example, an injured worker is not entitled to receive compensation for pain and suffering or punitive damages.    Continue reading