Atlanta Injury Lawyer Blog

Articles Posted in Personal Injury

Published on:

photo_356_20051102Although it’s an obvious concern, a plaintiff should always make sure that he’s both suing the proper party and filing his action in a court that has the authority to bring the selected party into court. When a plaintiff fails to assure either factor, he or she risks creating an avoidable hassle that ultimately delays recovery for his or her losses. In its recent ruling, Walden v. CSX Corporation, Inc., a Georgia federal court addressed whether to grant a defendant’s motion to dismiss in light of the fact the plaintiff appeared to make not one, but both, of the aforementioned errors.

Walden involved a train accident in Richmond County, Georgia in June 2012. On the 24th of that month, the plaintiff alleges that a train owned by the defendant, CSX Corporation, dragged him over 50 feet, resulting in injuries that required hospitalization. On the two-year anniversary of this accident, the plaintiff brought a personal injury suit against CSX, alleging negligence on the part of CSX. The case was originally filed in state court, but CSX had the case removed to federal court based on the diversity of citizenship of the parties. Following removal, CSX made a motion to dismiss, asserting various grounds for dismissal, including the court’s lack of personal jurisdiction. The plaintiff failed to respond to this motion, which strongly intimated that the plaintiff might have sued the wrong corporate entity.

Continue reading →

Published on:

photo_3959_20071030Although falling from a horse is not among the sources of injury one would typically contemplate if he or she were asked to consider Atlanta-area personal injury litigation, the facts of a recent federal case, Brit UW Limited v. Hallister Property Development, LLC, are unlike those associated with most personal injury actions.

Brit is actually the second lawsuit filed regarding the incident at hand. The first case followed an accident at Goat Farm, a living and workspace community for artists located in Atlanta, where the plaintiff in the first suit, a resident on the property, was paralyzed after being thrown from a horse. The defendant in the original suit is a limited liability corporation that purchased the property in 2008. The corporation is composed of two members who hoped to eventually develop the land into large-scale residential and commercial space. However, at the time of the accident, the majority of the land was underdeveloped and served as a site for both animals and small residential studios and working spaces for artists. One of the two members of the corporation actively manages the property and agreed to have a friend store a horse on Goat Farm. On the day of the horse’s arrival, the property manager and the horse’s owner agreed to let the plaintiff sit on a horse and helped him mount the animal. Although the plaintiff did not expect to ride, the horse jolted after he was mounted and threw the plaintiff into a flagpole, leading to back injuries and paralysis. Following the accident, the plaintiff brought suit in Fulton County State Court, arguing various theories of premises liability and negligence that made the Goat Farm owners liable for his serious injuries. The defendant then requested defense and immunity from its insurance provider, the plaintiff in the second lawsuit. The insurance provider and the defendants reached an impasse in negotiations about obligations pursuant to the insurance agreement, and the insurance provider brought a declaratory action suit against both the defendant and the plaintiff in the original lawsuit in federal court to determine what rights existed under the insurance contract.

Following limited necessary discovery, the insurance provider moved for summary judgment, arguing that the injury was not covered by the terms of the contract, and, even if it was, the members of the corporation failed to provide reasonable notice as required by the insurance agreement. Under Georgia law, an insurance agreement is interpreted using the same rules that apply in standard contract interpretation. SawHorse, Inc. v. S. Guar. Ins. Co. of Georgia, 269 Ga. App. 493, 494-95 (2004). Accordingly, the parties to an insurance agreement are bound by the agreement’s plain and unambiguous terms, but ambiguities are construed against the insurance provider since it is the drafter of the contract. Id. at 494. With respect to this case, two issues needed to be resolved:  whether the insurer had a duty to defend the insured in this action, and whether the insured gave timely notice of the action as required by the agreement.
Continue reading →

Published on:

photo_2006_20061006When it comes to negligence, not even a church is beyond the reach of the law. In a recent case brought before the Georgia Court of Appeals, Henderson v. St. Paul Baptist Church, the court needed to determine whether the district court had properly granted summary judgment in favor of St. Paul Baptist Church, which had been sued in a premises liability action. Although the trial court had originally granted summary judgment in favor of St. Paul, the appellate court reversed, finding that questions of material fact existed, which precluded granting the motion for summary judgment.

The plaintiffs in this action were visiting pastors to St. Paul who were invited by the lead pastor to conduct a revival service. Upon arriving at the church, where there is no designated parking area, the plaintiffs saw the lead pastor, who motioned to them and indicated that they should park behind his car, which was situated next to recently planted shrubbery. The plaintiffs parked behind the lead pastor’s vehicle. While exiting the vehicle, one of the plaintiffs noticed that the ground between the shrubs and the car was entirely covered in pine straw. Although the ground was concealed, the plaintiff nonetheless decided to exit the vehicle because she had just seen the lead pastor and his wife exit their vehicle without injury. After walking only a few steps, the plaintiff fell into a trench that was obscured by the pine straw and had been dug only a month earlier in order to keep the newly planted shrubs hydrated. As a result of her fall, the plaintiff suffered a spiral fracture of her leg.

Following the accident, the plaintiffs, the injured visiting pastor and her husband, the other visiting pastor, brought premises liability and loss of consortium claims against St. Paul. After discovery, St. Paul moved for summary judgment, arguing that the church could not as a matter of law be held liable because the injured plaintiff had deviated from the designated route to the front of the church and, instead, fell while taking a shortcut through a flower bed to a side entrance. The trial court agreed with this view of the facts and granted the motion for summary judgment. The appeals court, however, disagreed and unanimously reversed.
Continue reading →

Published on:

photo_933_20060126Although proving substantive claims already places a heavy burden on a plaintiff, procedural roadblocks often also arise to the chagrin of hapless litigants. In particular, issues related to proper service of process and initiation of the suit within the applicable statute of limitations period can hamper ill-advised plaintiffs with otherwise meritorious claims. A recent decision from the Georgia Court of Appeals, Callaway v. Goodwin, demonstrates the importance of these procedural requirements.

Callaway arose from a motor vehicle accident on August 10, 2010. In Georgia, the statute of limitations for bringing a personal injury action is two years. See Ga. Code Ann. § 9-3-33. In this case, the plaintiff did not file suit until August 7, 2012, only three days before the expiration of the statute of limitations. On that day, the plaintiff filed the complaint as well as a properly addressed summons for service on the defendant and a check for the service fee to obtain proper service through the Walton County Sheriff’s Office. However, the Sheriff’s office did not effectuate service of process on the defendant until August 22, 2010, 12 days following the expiration of the statute of limitations. Following receipt of the summons and complaint, the defendant moved for dismissal of the action, arguing that service of process was not perfected within the statute of limitations period and that the plaintiff otherwise failed to demonstrate diligence in perfecting service of process within the statutory period. The trial court granted the motion, and the plaintiff initiated this appeal.

Pursuant to Georgia law, “[w]hen a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible.” Akuoko v. Martin, 298 Ga. App. 364-365 (1) (680 SE2d 471) (2009). Generally, the trial court has considerable discretion in determining whether a party has shown diligence to effect service of process, and an appeals court will only reverse a diligence determination if the trial’s court determination constitutes an abuse of discretion. Id. at 365. In reaching its conclusion to grant the motion to dismiss, the trial court erroneously found that the plaintiff had only paid the court filing fees and not the services of process fees when she filed her complaint and summons. However, evidence proffered by the plaintiff to both the trial court and on appeal showed that all applicable service and filing fees had been paid at the time of filing.

Continue reading →