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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.

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In March 2019, a state appellate court issued a written opinion in a Georgia premises liability lawsuit requiring the court to determine if the defendant hotel had a duty to rescue the plaintiff, who had a stroke while inside his hotel room. Ultimately, the court determined that the hotel had no duty to rescue the plaintiff from a situation that the hotel did not create.

According to the court’s opinion, the plaintiff was an overnight guest in the defendant hotel. When the plaintiff woke up, he experienced numbness and tingling on the left side of his face and hand. The plaintiff went back to sleep and, after reawakening, collapsed as he tried to get out of bed.

The plaintiff believed he was having a stroke, and tried to call “0” on the hotel phone. However, no one answered. The plaintiff then called “66,” the number he believed to be the hotel’s emergency number. Again, no one answered. The plaintiff then called 911. When the emergency responders arrived at the hotel, there was no employee at the front desk. The emergency responders eventually found their way to the plaintiff’s room, and took him to the hospital where it was determined that the plaintiff had suffered a stroke.

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Earlier this month, a state appellate court issued a written opinion in a Georgia premises liability lawsuit discussing whether an apartment complex could be held liable for the death of a resident. Ultimately, the court concluded that the apartment complex’s failure to install balcony railings of sufficient height was not excused based on the complex’s “grandfather” status under the local building codes.

According to the court’s opinion, a man lived on a third-floor apartment in the defendant apartment complex with his wife and child. One day, the man was outside of a first-floor apartment drinking beers with some fellow residents. The man’s wife went to bed at 10:00 that evening, and at one point in the evening, the man returned to the apartment to get a shirt. However, the next morning, the man was found dead, 18 feet below the rear balcony of his apartment.

Evidently, when police officers arrived on the scene, they noticed that the rear balcony railing was “shorter than normal” and measured only 29 inches tall. Law enforcement determined that the man fell to his death and that no foul play was involved. The man’s blood-alcohol content was .265.

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In a recent Georgia personal injury case, the parents of a young man sued the Georgia Department of Juvenile Justice alleging that their son was injured while he was detained at a youth detention facility. The parents alleged that an employee at the facility negligently closed an automatic steel door, causing the son’s finger to be amputated. Within a month of their son’s injury, the parents provided an ante litem notice to the Department. The notice did not provide an exact amount of loss claimed, but stated that the son required surgery, amputation, and continuing treatment. The notice also indicated that the boy’s mother had to miss work to bring her son in for medical treatment, so there would be “additional claims for monetary loss and mileage.” The claim further stated, “please advise if this ante litem notice is not sufficient to apprise you of the claims.”

The parents later filed a lawsuit, and the Department argued that the parents’ ante litem notice did not include the specific amount of loss claimed, as required under the Georgia Tort Claims Act. The trial court dismissed the claim on that basis, and the parents appealed. On appeal, the parents argued that their notice was sufficient, and that the court should not have dismissed the claim.

The Georgia Tort Claims Act (GTCA) allows for a waiver of the state’s immunity under certain circumstances. Under the GTCA, one prerequisite to filing a claim against the State is to provide notice of the claim to the State before filing suit. Under OCGA § 50-21-26, the notice must include the name of the state entity, the acts that are the basis for the claim, the time and place of the injury, the specific acts that caused the loss, the nature of the loss suffered, and the amount of the loss claimed.

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In a recent Georgia car accident case before a state appellate court, the plaintiff filed claims arising out of a car accident that killed her husband and seriously injured her son. She filed a claim against the local Emergency Medical Services (EMS), alleging that they failed to properly treat her husband’s and son’s injuries. She also filed a claim against the local County Road Superintendent (Superintendent), alleging that he failed to inspect and maintain the road. Both defendants claimed they were entitled to immunity. The trial court agreed, dismissing the claims against them, and the plaintiff appealed. On appeal, the court considered whether the defendants were protected by immunity.

According to the court’s opinion, the plaintiff’s husband was driving with his 12-year-old son in Atkinson County when he hit a hole in the road, and after he regained control of the truck, he hit a second hole and crashed into a tree. EMS responded to the scene and found the husband trapped on the driver’s side, and the son seated on the passenger side. The son allegedly told one emergency medical technician (EMT) to check on his father who was unconscious, but the EMT told him that they had to “get [him] out first.” The EMT told the son to jump off the truck, and when he said he could not jump, the EMT told him that jumping was the way he would get off. The son did so, and “had to walk” to the stretcher. However, the EMT who assisted the son testified that he picked up the son, laid him onto a stretcher, and carried him to the ambulance. The father was unconscious but breathing, and was removed from the truck, but stopped breathing while he was in the ambulance. EMS tried to resuscitate the husband, but he died of his injuries.

If a lawsuit is filed against a public entity or a public official, the public entity or official may be protected by official immunity. A public official is protected by official immunity if the official “has engaged in discretionary acts that are within the scope of his or her authority, and the official has not acted in a willful or wanton manner; with actual malice; or with the actual intent to cause injury.” In contrast, official immunity does not protect against ministerial acts that are performed negligently. Generally, ministerial acts are acts that are “simple, absolute, and definite,” and require “merely the execution of a specific duty.” In contrast, discretionary acts are acts that “call for the exercise of personal deliberation and judgment,” and acting on one’s own conclusions “in a way not specifically directed.”

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Earlier this year, a state appellate court issued a decision in a Georgia premises liability case that arose out of a slip-and-fall accident that took place inside the defendant grocery store. The court was presented with the question as to whether the plaintiff presented sufficient evidence that the defendant grocery store was aware of the hazard or should have been aware of the hazard that caused the plaintiff’s fall.

According to the court’s written opinion, while the plaintiff was shopping at the defendant grocery store, he slipped in a puddle of liquid and fell to the ground. The plaintiff claimed that he did not see the puddle before stepping in it. As a result of the slip-and-fall accident, the plaintiff injured his shoulder and head, and later filed a premises liability lawsuit against the grocery store.

At trial, surveillance video was presented, showing a store employee walking by the area of the spill moments before the plaintiff’s fall. The employee did not stop to clean up the spill and by all indications did not see the spill. The defense also presented evidence of the store’s safety inspection plan. Apparently, store employees were responsible for sweeping and mopping the floors four times a day. Before beginning these routine sweeps, the employee was to input a code into the store’s computer system, logging in the sweep.

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Earlier this month, the state’s supreme court issued a written opinion in a Georgia dog bite case discussing if a landlord could be liable for injuries that were caused by a tenant’s dog. Ultimately, the court concluded that the plaintiff failed to show that any potential negligence on the landlord’s part was the cause of her injuries.

The Facts of the Case

According to the court’s opinion, the plaintiff was walking her dogs when she was attacked by several dogs that had escaped from a fenced yard a few blocks away. Evidently, the dogs belonged to a family who rented a home that was owned by the defendant. The plaintiff first filed a claim against the dogs’ owners, but later joined the landlord as a defendant. This case involves only the landlord’s potential liability.

The plaintiff’s claimed that the dogs were able to escape from the fenced yard because the landlord failed to repair a broken gate latch. Apparently, shortly after moving in, the gate latch broke. To keep their dogs in the backyard, the tenants came up with a temporary solution involving tying a leash to the fence and using cement blocks to prevent the gate from opening. On the day of the attack, the dogs broke free. It was assumed that the landlord knew the latch was broken and that the tenants kept dogs on the property.

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Georgia personal injury cases generally have to abide by a two-year statute of limitations. This means that plaintiffs have two years after a car crash or other personal injury incident to file a lawsuit in court. However, there are exceptions to that rule, as one recent Georgia case demonstrates. In that case, the plaintiff was able to file the claim beyond the two-year statute of limitations because of the issuance of a traffic citation as a result of the crash.

The Facts of the Case

According to the court’s opinion, the crash occurred between two cars in Fayetteville, Georgia in 2014. The collision took place on October 16, and thus, the statute of limitations would normally have run on October 16, 2016.

The plaintiff filed her lawsuit on November 10, 2016, and the defendant argued that the case was filed after the statute of limitations and should be dismissed. However, the plaintiff contended that the statute of limitations was tolled because the defendant was issued a traffic citation due to the crash.

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Earlier this month, a state appellate court issued a written opinion in a Georgia car accident case requiring the court to determine if the plaintiff’s recovery amount should be reduced by the amount of money that the insurance company paid the plaintiff before the case was resolved. Ultimately, after closely reading the language in the insurance contract, the court concluded that such an offset was appropriate, reducing the plaintiff’s recovery amount by over $22,000.

The Facts of the Case

According to the court’s opinion, the plaintiff had an insurance policy with the defendant insurance company. The case arose when the plaintiff was injured in a Georgia car accident with an uninsured driver. Evidently, the uninsured driver failed to yield at an intersection, striking the plaintiff’s vehicle. The matter of whom was at fault was not important to the court’s opinion; it was assumed that the other driver was responsible for the accident.

The plaintiff filed a personal injury lawsuit against the uninsured driver, and a jury returned a general verdict in the plaintiff’s favor for $157,400. The plaintiff’s insurance company paid the judgment, but requested that the total amount be reduced by the amount of money it paid to the plaintiff during the pendency of the lawsuit.

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Parties in a personal injury case have to take great care in maintaining evidence that may be relevant to the case, even if litigation has not yet begun. In one recent case before Georgia’s Supreme Court, the Court considered whether the defendant was properly sanctioned for failing to preserve evidence. The case may not seem as though it pertains to Georgia personal injury cases, however, the court’s decision applies equally to personal injury cases in which one of the parties is alleged to have destroyed, altered, or failed to preserve necessary evidence.

The Facts of the Case

A woman took photos of what she claimed was a bug in her food while she was eating at a work cafeteria. She emailed photos to the building superintendent, and also sent the photos to Walgreens to be printed before delivering them to her superintendent the following day. The food vendor was removed from the list of qualified vendors and later filed a claim as a result of the incident. Almost ten years later, the vendor became aware that there were printed photos in addition to the emailed photos. The superintendent did not provide the photos to the food vendor and admitted that he lost the printed photos at some point. The digital versions were still available, and the superintendent and the employee testified that the photos were identical, although the defendants disputed that fact.

The plaintiff filed a motion for sanctions for spoliation of evidence due to the defendant’s failure to preserve the printed photos. The trial court found that the superintendent had been aware of the claim but still failed to preserve the printed photos or provide them to his employer’s lawyers. As a result, the trial court imposed a sanction for failing to preserve the printed photos. It decided it would provide a jury instruction stating that “spoliation of evidence creates a rebuttable presumption that the evidence would have been harmful to the spoliator.”

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