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train-bus-crashA recent train – tour bus collision in Biloxi, Mississippi, that killed four and left many injured, has been investigated by the NTSB (National Transportation Safety Board)  for several weeks and their findings will soon be made public.

A crash survivor gave his statement after the incident and stated that the bus got stuck on the crossing which may indicate that the crossing was poorly designed and maintained.  Questions that may arise in this scenario is whether the city properly warned approaching vehicles of low ground clearance.

The City of Biloxi is looking into closing several of its railroad crossings in an effort to improve motorists’ safety but the crossing where this collision occurred is not on the closure list.  It is not clear where liability may lie in this case but several scenarios are possible.  For instance, the train could have been travelling at an unsafe speed, the tour bus driver may have been negligent in not keeping a proper look out and failed to assure that it was safe to cross the tracks.  Alternatively, the state or a governmental unit or even the railway may bear some responsibility for designing and maintaining an unsafe crossing.

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In a recent case, a Georgia appeals court considered whether a plaintiff was entitled to recover damages after she tripped on a corn hole game at a car dealership. The plaintiff had gone to the car dealership to look at pickup trucks with her boyfriend. While visiting the dealership, the two walked across the sales floor inside the showroom with a salesperson. There were vehicles on display and a “corn hole” game near the offices for customers to play while they were in the process of purchasing a vehicle. The game had two wooden ramps across from each other, and customers would take turns tossing bean bags into a hole in each ramp.

Knee X-RayThe couple spoke to a salesperson in an office, walked across the sales floor and went outside, and then came back inside, walking across the sales floor again and into an office. As the woman was exiting the office, she turned back to answer a question, then turned around again to walk out, and tripped on the corn hole game. She fell and suffered a torn meniscus in her knee. The woman sued the car dealership for negligently maintaining the corn hole game on the sales floor and failing to warn her of its presence.

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Plaintiffs in personal injury cases, including premises liability cases, must present evidence proving each of the elements of the claim. In Georgia, for a premises liability case to be successful, there must normally be proof that the property owner knew or should have known there was a hazardous condition on their land, that the property owner failed to remedy the hazardous condition, and that the plaintiff was injured due to the presence of the hazardous condition.

FriesIf a plaintiff is unable to provide a court with proof of each of these elements, then the court will dismiss the plaintiff’s case upon motion from the defendant. A recent case highlights how the inability of a plaintiff to remember exactly how she fell prevented her from recovering for her injuries.

The Facts of the Case

The plaintiff was visiting a fast-food restaurant on a rainy day. The entrance to the restaurant consisted of two different sets of glass double-doors. The plaintiff made it through the first set of double-doors without issue, but couldn’t open the second set of doors.

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In a recent case, a Georgia appeals court determined a gas company was not responsible for a home explosion after the company’s employee left a warning card about a leak for the homeowner, and the homeowner disregarded the instructions on the note, causing an explosion. In November 2010, an explosion occurred in a detached apartment on the homeowner’s property. The owner had turned off the natural gas to the apartment and to his house because no one was living in the apartment and because he was not using it in the house. The owner then rented the apartment to a co-worker and asked the natural gas company to turn the gas back on.

ExplosionAn employee from the gas company came over, unlocked the meter, and turned the gas on. When he did so, he saw that the meter showed there was a leak in the fuel line or an open line, so he turned the gas back off. He did not lock the meter. He did not know at the time there was an apartment behind the house. He left a warning card at the house that explained the meter could not be turned on until a leak had been fixed. The employee noted on the card that the meter was off but was unlocked for a plumber.

The owner’s stepson’s girlfriend was home at the time and signed the warning card. The employee also said he left a card on the meter, although the owner said he did not see a card when he returned home. The owner explained that he saw the warning card but did not understand that he had a leak. The owner then asked a friend, who had done odd jobs for him in the past, to come turn his gas on. A couple of days later, the coworker moved into the apartment along with a friend. He ignited a lighter to light an incense, and there was an explosion that set the apartment on fire. The coworker and his friend were hospitalized for burns.

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Accidents happen all the time, can happen to anyone, and in many cases, more than one person or entity is at fault. In some cases, the injured party themselves may share in the fault for the accident. However, even when the injured party is partly at fault, they can often still recover compensation as long as the negligence of another party is greater than their own.

Operating RoomContributory and Comparative Negligence

Comparative fault generally considers the fault of the plaintiff in determining if the plaintiff can recover and how much is recoverable. The rules on contributory and comparative negligence are set forth in O.C.G.A. § 51-11-7 and § 51-12-33.

Under Georgia law, if a plaintiff could have avoided the resulting injury by exercising ordinary care, a plaintiff cannot recover.  This particular defense is very difficult for a defendant to prove and, in my practice, I have yet to see it succeed for a defendant.  In addition, a plaintiff who is more than 50 percent liable for his or her injury cannot recover. However, if a plaintiff is 50 percent or less at fault, the plaintiff can still recover for their injuries, and the damages are reduced by the percentage of their fault.

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A delivery driver brought a claim against a gas station after he was hit by another car while he was at the gas station. The driver had come to the station to deliver gasoline and was measuring the station’s gas levels when a customer’s car backed into him. He then brought a premises liability claim against the station.

Fueling UpIn the recent case, a Georgia appeals court considered whether the station could be held liable for having created a hazard that increased the driver’s risk of injury. The delivery driver had come to the station to deliver gasoline, and after filling out forms and making the delivery, he went to measure the station’s gasoline tank levels. He was required to do this both before and after delivering the gas. When he went to measure the tank levels after the delivery, he brought an orange traffic cone with him and placed it in the tank area. The tank area was located in the parking spaces near the front of the store. The driver was measuring the tank level when he dropped a tank cap into the tank well. As he got onto his hands and knees to retrieve it, another car backed into him, injuring him.

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In a recent case, a Georgia court of appeals upheld a jury award against a doctor after a patient underwent a procedure to relieve back pain. The woman alleged that she suffered catastrophic brain damage from oxygen deprivation after she had a procedure done to relieve her back pain. While her lawsuit was still pending, the woman died, and her husband then amended the lawsuit to add a wrongful death claim.

Operating RoomAccording to the allegations, the woman experienced chronic back pain and began being treated by an anesthesiologist and pain management specialist in 2008. The doctor gave her two epidural steroid injections during two separate visits at that time. When the woman went to receive a third injection, the procedure did not go according to plan. The doctor was running late, and the woman ended up waiting about 50 minutes in the operating room after she had begun receiving a pain reliever and propofol, a medication that decreases consciousness and memory.

The doctor began the procedure about 10 minutes after he arrived, and the oxygen monitor signaled that the woman’s oxygen level had dropped below 90 percent. The doctor told the nurse to increase the woman’s oxygen flow, and he concluded she was still breathing. The surgical tech was concerned the woman was not breathing and asked the doctor several times if she could turn the oxygen level up higher, but he told her not to do that. The doctor continued the procedure and maintained that the woman was still breathing despite poor oxygen readings. The doctor finished the procedure and then gave the woman sedation reversal drugs and increased her oxygen flow.

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The parents of a seventh grader filed a wrongful death lawsuit against a teacher after their child died under her care. The parents alleged that the teacher, who left her classroom unsupervised in violation of a school policy, caused the death of their child. In a recent opinion, a Georgia appeals court dismissed the lawsuit, finding the teacher was entitled to official immunity. The teacher was working at Benjamin E. Mays High School, a public school in Atlanta. The child was a seventh-grade student in the teacher’s classroom, which shared a bi-fold wall with another classroom.

ClassroomAccording to the allegations, one afternoon, the teacher left the classroom. While the teacher was gone, the child and another student engaged in horseplay. The child fell, and the other student landed on top of him. The teacher returned about 15 minutes later and then left again. The child then collapsed and became unconscious. The teacher returned about 15 minutes later and called 911. The child was pronounced dead at the hospital. The autopsy revealed that he died from blood loss, resulting from the dislocation of his collarbone.

Purportedly, the teacher originally was not truthful when asked about the incident, telling the principal she was in the classroom the entire time. Soon afterward, it was revealed that the teacher had left the classroom. It was unclear why the teacher left the classroom. In her deposition, the teacher said that she had asked the teacher in the adjoining room to listen for her class when she left the first time, but not when she left the second time. The school had a policy that stated that students were never to be left in the classroom unsupervised.

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In a recent case in front of a Georgia appellate court, a man filed a premises liability claim against the property management company that managed his apartment complex after he was shot when his home was burglarized. However, in the case of George v. Hercules Real Estate Services, Inc., the court affirmed a lower court’s decision to grant summary judgment in favor of the property management company.

Door KnobAccording to the facts as recounted in the most recent court opinion, the plaintiff moved into an Atlanta apartment in November 2010. On June 11, 2011, the plaintiff’s apartment was burglarized between midnight and 2:00 a.m. The property management company repaired the front door and installed a metal burglar guard. The plaintiff also bought a gun after the incident for protection. On July 27, 2011, the man was home with a friend when someone knocked on his door. He looked outside but could only see that someone was outside, and he could not see who it was. He opened the door and propped his foot against it, but a second person appeared, and the two forced their way into the man’s apartment. The plaintiff shot at the intruders, but they fired back, and the plaintiff was shot four times.

The plaintiff alleged the company was negligent in failing to keep the premises in proper repair, failing to provide adequate security, and failing to keep the premises safe. In support of his claim, he provided evidence that there had been prior crimes at the apartment complex before this incident occurred.

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