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seat beltUnder Georgia law, motorists are required to wear approved seatbelts when driving and while riding as a passenger in a car or truck, and for a good reason. Studies have repeatedly shown that seatbelt use can reduce both the frequency and severity of injuries sustained in Georgia car accidents.

As a general rule, when a plaintiff’s negligence contributes to the accident resulting in their injuries evidence of the plaintiff’s negligence is admissible. This evidence may be used to defeat a plaintiff’s claim against a defendant or to reduce the total amount of damages owed to the plaintiff by the defendant. A common question when it comes to seatbelt use is whether a motorist’s failure to use a seatbelt can be used against them in a claim for damages against another driver that caused an accident.

States are split on this issue. Some states allow seatbelt non-use evidence to be used as substantive evidence of a plaintiff’s negligence in the liability phase of a trial. In these states, jurors are able to apportion fault to the plaintiff based on the plaintiff’s failure to wear a seatbelt. Other states do not allow this evidence to be considered in the liability phase of a trial, but allow jurors to consider seatbelt nonuse evidence when calculating damages. This has the effect of reducing a plaintiff’s damages award for the “preventable” injuries that could have been avoided had the plaintiff been wearing a seatbelt.

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georgia lawIn Georgia negligence claims, several different types of damages may be awarded to plaintiffs who are successful in proving their case. Damages awards are often composed primarily of “compensatory” damages, which are designed to compensate a plaintiff for their injuries. The goal of compensatory damages is to make a plaintiff “whole” again, or at least to the greatest extent possible.

Compensatory damages can be broken down into general and special damages. General damages are damages that are presumed to result from the negligent act, without evidence showing a specific amount, such as past and future pain and suffering. Special damages are damages that have to be proven for a plaintiff to recover them, such as medical expenses, property damage, and lost income.

In addition to compensatory damages, punitive damages may be awarded in some situations. In contrast to compensatory damages, punitive damages are meant to punish the defendant rather than compensate the plaintiff. Under O.C.G.A., 51-12-5.1, a punitive damages award is appropriate only in claims where 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.”

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product liabilityIn a recent Georgia food poisoning case, the Georgia Supreme Court reversed the lower courts’ decision to dismiss a plaintiff’s case. The case presented the court with the opportunity to discuss the appropriate burden a plaintiff bringing a food-poisoning case has at the summary judgment stage. Ultimately, the court concluded that the lower courts imposed too high a burden on the plaintiffs’ case when they required the plaintiffs to make “every other reasonable hypothesis regarding the cause of their illness.”

The Facts of the Case

The plaintiffs were two wedding guests who became violently ill several days after consuming food prepared by the defendant caterer at the wedding rehearsal dinner. The plaintiffs filed a Georgia products liability case against the caterer, claiming that the food was “defective, pathogen-contaminated, undercooked, and negligently prepared.”

The defendant caterer filed a motion for summary judgment, arguing that the plaintiffs’ case should be dismissed because they did not present sufficient evidence that the defendant’s food caused their illness. In support of its motion, the defendant caterer made the following arguments:

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road constructionIn a recent case, a plaintiff brought a wrongful death claim against the Georgia Department of Transportation (GDOT) and construction contractors on behalf of her parents who died in a car accident. According to the court’s written opinion, in October 2011, the plaintiff was driving behind her parents’ car on a Georgia interstate when a vehicle hit the side of her parents’ car, which then veered off the road, hit the guardrails and a concrete bridge piling and burst into flames.

The plaintiff filed a personal injury case, claiming that the construction contractors who did construction work were liable for her parents’ deaths. The trial court dismissed the case, but the plaintiff appealed. She argued in part that the construction contractors were liable because the GDOT had not accepted the contractors’ work and reassumed control of the site before the accident occurred.

In 2010, the GDOT had entered into a contract with two construction companies to resurface the asphalt along a portion of the highway. A fence and guardrail company was supposed to complete improvements to the guardrails as well. The construction contractors completed the work, and the GDOT inspected the project and issued a maintenance acceptance letter with regard to the project. The final inspection was completed in November 2010. Then GDOT issued a maintenance acceptance letter in December 2011, and in the letter, reassumed control of the highway portion on January 4, 2011.

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vehicle injuryRecently, a state appellate court issued a written opinion in a Georgia car accident case discussing the issue of a plaintiff’s diminished future earning capacity, as well as the expert testimony necessary to establish such a claim. The court ultimately determined that the jury’s award was supported by the evidence and affirmed the $2 million verdict.

The Facts of the Case

The plaintiff, who was a competitive high-jumper, was involved in a serious car accident with the defendant. Initially, the plaintiff designated an expert who was to testify regarding the impact the accident had on the plaintiff’s personal life and athletic career. The court created a timeline for the case, and assigned certain deadlines. The deadline for the disclosure of witnesses was set for May 12, 2017.

On May 12, 2017, the plaintiff substituted the expert he planned to call as a witness, and amended a previous statement to the court, clarifying that he would be seeking compensation for “diminished earning capacity, diminished ability to work, labor or earn wages.”

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car accidentRecently, a state appellate court issued an opinion in a Georgia car accident case discussing what venues are appropriate in a case brought against multiple motorists, one of which was an uninsured motorist (UIM). The case required the court to determine if the venue-selection clause in the state’s UIM statute applies to cases involving a named defendant in addition to an unknown, “John Doe” defendant. Ultimately, the court concluded that the UIM statute did apply, and affirmed the lower court’s decision to deny the named defendant’s request to transfer venue to his home county.

Georgia’s Uninsured Motorist Statute as Applied to Hit-and-Run Drivers

When a motorist causes an accident, anyone injured as a result of that driver’s negligence can pursue a claim for damages against the driver. However, after a Georgia hit-and-run accident, the injury victim will not be able to file a case against the driver because his identity is unknown.

Thankfully, most Georgia insurance policies contain UIM coverage and a plaintiff can proceed with a case against the hit-and-run driver by naming “John Doe” as a defendant. Under the state’s UIM statute, any “John Doe” driver is deemed to be uninsured and “shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action.”

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Recently, a state appellate court issued a written opinion in a Georgia premises liability case, dismissing the plaintiff’s claims against the defendant due to the fact that the plaintiff waited too long to file her case. In deciding the case, the court had to consider whether a clause in the residential lease between the two parties that limited the amount of time the plaintiff had to file a lawsuit against the defendant was enforceable. Ultimately, the court concluded that the clause was enforceable, and thus, the plaintiff’s case was time-barred.

Legal News GavelThe Facts of the Case

The plaintiff slipped and fell after stepping on a curb that crumbled when she stepped on it. The curb was located in a common area in the apartment complex where the plaintiff lived. Approximately two years after she fell, the plaintiff filed a personal injury lawsuit against the defendant corporation that owned and operated the complex.

Prior to moving into her apartment, both the plaintiff and a representative of the defendant signed a residential lease agreement. Contained in that agreement was a clause whereby the plaintiff agreed that any claims against the defendant would be brought within one year. The normal statute of limitations for a personal injury case in Georgia is two years. The defendant argued that the lease agreement was binding and that the plaintiff was required to have brought her case within one year of her injury.

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parking lotRecently, a state appellate court issued a written opinion in a Georgia premises liability lawsuit that was filed against a Chick-Fil-A fast-food restaurant after the plaintiff tripped and fell in the restaurant’s parking lot. Relevant to this appeal was the plaintiff’s claim that she did not notice the cement parking barrier that caused her to trip because she was distracted by a car in the restaurant’s drive-thru lane. Ultimately, the court concluded that the plaintiff could not benefit from the “distraction doctrine” because she failed to prove that a hazard existed in the first place.

The Facts of the Case

The plaintiff parked in the defendant restaurant’s parking lot, entered the restaurant without issue, and ordered her food. When she was leaving the restaurant, she left the same way she had come in. However, in order to get back to her car the plaintiff had to cross the drive-thru lane. As the plaintiff was walking across the drive-thru lane, she was distracted by a car waiting in line.

The plaintiff returned her attention to where she was going and, before she got to her car, she tripped on a low cement parking barrier. As a result of her fall, the plaintiff suffered a broken arm. She later filed a premises liability lawsuit against the restaurant.

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In a recent case, the Supreme Court of Georgia decided that a wrongful death lawsuit can be limited by a previous personal injury settlement. The case is an important decision for Georgia personal injury and wrongful death plaintiffs.

Legal News GavelThe Facts of the Case

A woman was in a car accident that left her in a permanent coma. Her husband filed a personal injury lawsuit on her behalf against Toyota, alleging that her Toyota vehicle had a defective seatbelt latch and door-locking mechanism. The case went to trial, but before the jury returned a verdict, the plaintiff and Toyota entered into a “high-low” settlement agreement.

The agreement provided that if the jury found in favor of Toyota, the plaintiff would still recover a certain amount of money. However, if the jury found in favor of the plaintiff, Toyota would only be liable up to a certain amount of money. Thus, the agreement guaranteed the plaintiff a recovery, but a limited one.

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Following the procedural rules is important in any claim, but this is particularly the case in a Georgia medical malpractice claim, as failing to follow the procedural requirements can result in dismissal of a claim right from the start. Understanding the exceptions is just as important, as one recent case showed.

Legal News GavelIn that case, a woman filed a medical malpractice claim against a doctor and his practice. The defendants argued the case should be dismissed because the woman failed to file an expert affidavit with the complaint, and the defendants claimed she also failed to retain an attorney more than 90 days before the expiration of the statute of limitations.

The plaintiff had alleged she was injured during a cervical node excision performed on August 1, 2014. The plaintiff filed the medical malpractice claim on August 1, 2016. She did not file an expert affidavit, but attached the affidavit of her attorney who testified that the woman had retained him on July 29, 2016. He testified that because the statute of limitations would expire within ten days of the filing, an expert affidavit could not be prepared in time. The woman amended her complaint on September 13, 2016, attaching the expert affidavit as required.

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