Recently, an appellate court reversed a lower court’s decision to grant the summary judgment motion of a property management in a Georgia slip-and-fall lawsuit. The case stems from an accident where a 60-year-old woman slipped and fell at her apartment complex. According to the facts as laid out by the court, the plaintiff was walking to get the mail when she tripped on an undetermined obstruction.

Evidently, the plaintiff sued the owner of the complex and the property management company under a premises liability theory. The trial court denied the owner’s motion for summary judgment but granted the property management company’s motion. The woman appealed the decision and argued that the property management company should be liable because they had sufficient control over the property.

Under Georgia law, owners and occupiers have specific statutory duties to the property they control. These individuals and entities must exercise “ordinary care in keeping the premises safe”. In certain instances, property management companies are considered independent contractors. However, these contractors may have the status of an occupier if they are in control of the property. In fact, in some cases, Georgia property management companies have the same duties as the actual owner of the property. The transfer of responsibility may lead to the owner not owing a duty to an injury victim if they surrender possession to the independent contractor.

Recently, an appeals court issued an opinion addressing governmental immunity in Georgia personal injury lawsuits. The lawsuit stems from the tragic death of a five-year-old boy who died after being struck and killed when exiting a school bus.

According to the opinion, the bus driver stopped the bus near the child’s home, and then activated the vehicle’s flashing lights, stop sign, and crossing gate. The child was previously instructed to look back at the bus driver before crossing the double-yellow line. However, the boy stepped off the bus, saw his mother, and started to cross the road without looking back. As the boy stepped off the bus, the bus driver saw an oncoming truck, at which point she honked the horn and waved to the child. Unfortunately, it was too late and the boy was struck and killed by the oncoming vehicle.

The family filed a Georgia wrongful death lawsuit against the bus driver, claiming that she was negligent in allowing the child off the bus without assuring that there was no traffic. The lower court granted summary judgment in favor of the bus driver based on governmental immunity. The plaintiffs argued that governmental immunity should not bar their case because the driver had a duty to keep students on the bus until all of the traffic stopped. The plaintiffs claimed that this duty was “ministerial” and “absolute”; therefore, governmental immunity should not apply.

This week, citizens in Smyrna and Covington learned that the EPA has identified their communities as having elevated cancer risks due to the release of a toxic gas called ethylene oxide.  In Smyrna, the plant that releases ethylene oxide is run by Sterigenics, and in Covington, the plant is known as BD Bard.   The EPA confirmed that ethylene oxide is a carcinogen in 2016, having previously found it was a probable carcinogen, and further determined it was 30 times more likely to cause certain cancers than scientists had known.   Scientific studies have linked exposure to ethylene oxide to a variety of cancers, including Non-Hodgkin’s lymphoma, Multiple Myeloma, Leukemia, and Breast Cancer.  If you live in those affected areas, you can protect your loved ones by:

  • Organizing with your neighbors and being vocal, especially to the media.
  • Demand that the polluter cease emitting ethylene oxide into your community’s air.

In a recent case, a state appellate court reversed a Georgia trial court’s ruling and found that a plaintiff did not need to present an expert affidavit in her lawsuit against a health clinic. According to the opinion, the plaintiff filed a personal injury lawsuit against a health clinic after she sustained injuries because of a botched blood draw. The woman alleged that the blood draw was performed negligently and without her permission. The clinic filed a motion to dismiss the lawsuit, claiming that the plaintiff needed to file an expert affidavit. In response, the plaintiff argued that the blood draw was non-consensual. However, the trial court granted the clinic’s motion to dismiss, and the plaintiff appealed.

The appellate court reviewed Georgia Code § 9-11-9.1, which addresses the requirement of affidavits in professional malpractice lawsuits. Generally, when a plaintiff files a lawsuit against a Georgia health-care facility based on vicariously liability and professional malpractice, they must submit an expert affidavit. Expert affidavits are used to determine whether a defendant has complied with the professional standard of care required of them. Generally, a plaintiff must establish that the medical professional owed them a duty, the defendant breached a generally accepted professional standard of care, that this breach caused the plaintiff harm, and that the plaintiff suffered a compensable injury.

Typically, to establish the standard of care, the plaintiff must present an affidavit from a qualified expert and this affidavit must be filed with the lawsuit. This expert must be able to testify to their qualifications and be able to establish at least one negligent act or omission by the defendant. However, this is not applicable when professional skills or judgment are not involved. The court found that a technician does not fall into any of the enumerated categories in the statute, and thus, an expert affidavit was not necessary.

Plaintiffs pursuing a Georgia personal injury claim must establish four elements to prove their case: 1.) a duty owed by the defendant to the plaintiff against an unreasonable risk of harm; 2.) the defendant’s breach of that duty; 3.) a legally attributable causal connection between the breach and the injury; and 4.) a loss or damage that resulted from the breach. A plaintiff normally has the burden to prove all of the elements, meaning that a plaintiff should provide sufficient evidence to allow a fact finder to reasonably conclude that it is more likely than not that the defendant was negligent by establishing each element.

The element of causation can be difficult to prove in some cases, particularly in cases involving multiple parties and defendants. The mere possibility the defendant caused the plaintiff’s loss is not sufficient to prove the element of causation. In addition, the plaintiff must prove not only that the defendant’s conduct was the actual cause of the plaintiff’s loss, but also that it was a proximate cause of the loss, which requires a showing that there is sufficient connection between the defendant’s conduct and the injury.

Multi-party cases can also involve complicated issues of contributory and comparative negligence. Generally, if a plaintiff had a certain degree of fault in causing the crash, the plaintiff cannot recover for his or her injuries. However, normally if a plaintiff is found to be less than 50 percent at fault, the plaintiff can still recover some compensation, although their damages award will be reduced by their percentage of fault.

In May 2019, a state appellate court issued a written opinion in a Georgia slip-and-fall case discussing whether the plaintiff’s claim against a homeowner could proceed to trial based on circumstantial evidence of the homeowner’s negligence. Ultimately, the court concluded that because the defendant homeowner’s testimony directly contradicted the inferences the plaintiff asked the court to make, the plaintiff’s evidence was insufficient. Thus, the court dismissed the plaintiff’s case.

The court explained the facts as follows: the plaintiff was attending a friend’s birthday when she slipped and fell on an extension cord. Although the party was at the defendant’s home, the defendant was not present at the time of the plaintiff’s fall. Evidently, the defendant had allowed a friend to use his property to host the party, and the defendant was not involved in the planning or execution of the event.

The plaintiff based her case on a claim that the defendant was negligent in the upkeep of his home. Specifically, by allowing an extension cord to run down a set of outdoor steps, creating a hazard to guests. The defendant claimed that he did not place the cord along the steps and had no knowledge of who did. He admitted that he owned similar extension cords and that he was doing yard work earlier that day, but explained that the tools he was using in the yard were all gas-powered and none used an extension cord.

In a recent case before the Supreme Court of Georgia, the court considered whether a plaintiff could recover for emotional distress without any proof of physical injury. According to the court’s opinion, one of the plaintiffs in the case was involved in a crash with the defendant. The evidence presented at trial showed that the defendant failed to stop at a stop sign and crashed into the plaintiff’s car. The plaintiff and his wife sued the defendant alleging negligence and gross negligence. They sought compensation for permanent injuries, past and future pain and suffering, loss of earnings and diminished earning capacity, and loss of consortium and loss of services.

After a jury trial, the jury found in favor of the plaintiffs for a total of $14,550,000, including $7 million for pain and suffering, and $4 million for future pain and suffering. The jury found the husband was 25% at fault, and thus the plaintiffs were awarded the reduced amount of $10,912,500. The defendant appealed the verdict, arguing that the trial court should have given the jury an instruction on the “impact rule.”

The impact rule states that a plaintiff can recover for emotional distress only if there is some impact resulting in physical injury to the plaintiff. Under Georgia law, there are three elements to the impact rule. First, the plaintiff must have suffered some type of physical impact. Second, the physical impact must cause physical injury to the plaintiff. Third, the physical injury must cause the plaintiff’s emotional distress or mental suffering.

On March 12, 2019, a state appellate court issued a written opinion in a Georgia slip-and-fall case discussing whether the plaintiff’s claim against a security company was properly dismissed at the summary judgment stage. Ultimately, the court concluded that the property owner had a non-delegable duty to ensure the safety of its guests, and as a result, the defendants did not owe the plaintiff a duty of care. Thus, the court affirmed the dismissal of the plaintiff’s case.

According to the court’s opinion, the plaintiff and her spouse visited AmericasMart in downtown Atlanta to pick up a gift for a friend. The couple obtained their security badges without issue, but as the plaintiff walked through the security checkpoint, she tripped on a rubber mat that was under a table where the security officer sat. The plaintiff seriously injured her hip, requiring surgery and subsequent physical therapy. At the time, a security guard who was employed by a company that was contracted to provide security to AmericasMart.

The plaintiff filed a premises liability lawsuit against AmericasMart, the security company, as well as the security officer. The security company and the officer moved for summary judgment, claiming that they were not owners or occupiers of the area where the plaintiff fell, and that they owed her no duty of care. The trial court agreed with the defendants and granted their motion for summary judgment. The plaintiff filed an appeal.

In March 2019, a state appellate court issued a written opinion in a Georgia personal injury case discussing the element of causation, as well as the type and quantity of evidence that a plaintiff must present to survive a defense motion for summary judgment. Ultimately, the court concluded that the plaintiff failed to present any evidence showing that the defendant’s actions caused her injuries. Thus, the court affirmed the lower court’s decision to grant the defendant’s motion for summary judgment.

According to the court’s opinion, the plaintiff was a homeowner who hired the defendant to install a smoke detector system in her home. In the months after the installation, the plaintiff called the defendant several times because the system was not working. The last time the defendant was at the plaintiff’s home was November 2007.

In August 2008, the plaintiff was cooking on the stove when she went to lie on the couch. The plaintiff inadvertently nodded off, and after an estimated three or four minutes, she woke up to the smell of smoke. The plaintiff went into the kitchen, but because of the smoke, she was unsure whether the source of the smoke was the pan or the chicken that she was cooking. As the plaintiff turned the stove knob to the off position, she poured flour into the pan, in an attempt to smother the flame. The contents of the pan bubbled over onto her hand, causing serious burns. The smoke detector did not sound an alarm, and it was later determined that the smoke detector did not have a required piece installed.

In March 2019, a state appellate court issued a written opinion in a Georgia premises liability case discussing whether the lower court correctly limited the plaintiff’s closing argument by preventing her from arguing that the defendant grocery store destroyed video of the incident. Ultimately, the court concluded that the plaintiff’s closing argument was properly limited because she did not obtain an advance ruling on the issue.

The term spoliation refers to a party’s failure to preserve relevant evidence or a party’s destruction of evidence that it knows, or has reason to believe, will be relevant to an upcoming legal proceeding. If a court determines that a party spoliated evidence, there are a variety of possible sanctions, including an adverse inference instruction. An adverse inference instruction informs the jury that the spoliating party had an obligation to preserve evidence but failed to do so, and that the jurors may assume that had the evidence been presented, it would not have been favorable to the party that destroyed or failed to preserve it.

As explained in the appellate opinion, the plaintiff was shopping in the produce department at the defendant grocery store when a stack of boxes fell and crashed into her. The plaintiff was pushed into a display, and sustained a serious injury that worsened over time. The plaintiff later filed a premises liability lawsuit against the grocery store.