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photo_5592_20080409A common issue that arises in slip-and-fall litigation is whether the business owner had knowledge of the foreign substance on which a plaintiff slipped and fell. Given that employees are generally not inclined to acknowledge their actual knowledge of the dangerous condition, plaintiffs must typically use direct or circumstantial evidence to show “constructive knowledge” of the foreign substance. Thus, many cases turn on what evidence the plaintiff and the defendant present to show or rebut constructive knowledge of the foreign substance. This battle is pointedly illustrated in Alatrista v. Publix Super Markets, Inc., a recent decision from the Atlanta Division of the U.S. District Court for the Northern District of Georgia.

This case arose from a slip-and-fall at a local Publix Supermarket. The plaintiff in this case and her boyfriend were shopping at the supermarket when the plaintiff slipped and fell on a puddle of clear liquid on the floor of the main aisle just beyond the cash registers at the store. The plaintiff testified that she had not seen the puddle prior to falling, and that, even after the fall, the puddle was not visible from a standing position. The plaintiff’s boyfriend also testified that he inspected the area after the fall and stated that the puddle was difficult to see. Publix has a stated “Don’t Pass It Up — Pick It Up” policy, and four employees testified that they, in accordance with this policy, inspected the area shortly before the incident. Each employee testified that he or she did not see any foreign substance when he or she passed the area and that he or she would have cleared the substance had he or she noticed it. The plaintiff brought suit against Publix for injuries associated with the fall, and, following discovery, the Publix moved for summary judgment, arguing that there was no issue of material fact for a jury to determine with respect to Publix’s constructive knowledge of the alleged puddle such that it was entitled to judgment as a matter of law.

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photo_6322_20080613Although it’s sensible to believe a city may be held liable to failing to act when such failure results in the injury to one of its citizens, cities are often not as accountable for the injuries of citizens as many may think they are. Issues regarding municipal liability at the center of a recent decision from the Georgia Court of Appeals, City of Atlanta v. Demita, in which the court addressed a somewhat novel question regarding when a municipality may be held liable for maintaining a nuisance in the construction or upkeep of a municipal storm water drainage system.

The alleged nuisance at dispute in this litigation was located on a low-lying stretch of Oakridge Avenue in Atlanta, Georgia. In 2002, the plaintiff in this case purchased a newly constructed home located at this part of Oakridge Avenue. The street is owned and maintained by the city. The home was part of new fill-in construction in the area, and prior to this construction, water would run east to west across the street, which runs north to south. However, following construction, this home and the home across the street are at the thoroughfare’s low point, and water has pooled in the area during the duration of the plaintiff’s occupancy. There is no storm drain, sewer grate, manhole, retention pond, or catch basin on the street into which runoff water can drain. On days of heavy rainfall, water pools above the curb and overflows onto the plaintiff’s property, which has caused the property to sustain erosion, soil saturation, garage and crawlspace flooding, and other damage.

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photo_24041_20130404Although information asymmetry between physicians and patients makes it difficult for one to determine whether he or she has a potential claim for medical malpractice, Georgia law nonetheless requires that one promptly bring his or her claim or bear the risk of losing it. This harsh procedural truth is at the heart of the Middle District of Georgia’s recent decision in Phillips v. Clements, in which the court upheld the dismissal of a medical malpractice claim that was brought more than two years following a physician’s alleged act of malpractice.

The act that gave rise to the Phillips v. Clements litigation occurred on or about October 20, 2008. At that time, the injured party was four years old and was harmed as a result of allegedly mis-filled prescription medication. The minor’s mother originally brought suit on behalf of her daughter on March 22, 2012, but she voluntarily dismissed her case on February 13, 2013. On October 17, 2013, the minor’s grandmother filed this suit seeking recovery on behalf of the same injured child. However,the defendants moved for the claims to be dismissed as time-barred under Georgia law or, alternatively, for summary judgment to be granted in their favor since the plaintiff had failed to proffer a standard of care expert, which is necessary to prove pharmaceutical malpractice under Georgia law.

First, under Georgia law, an action based on a pharmacist dispensing prescription medication falls within the purview of “medical malpractice” for purposes of the statute of limitations. Robinson v. Williamson, 245 Ga. App. 17, 19, 537 S.E.2d 159, 161 (2000); see O.C.G.A. § 9-3-70.

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People boarding busWhen initially pleading a case, attorneys will typically maintain a litigant’s injury is compensable under several distinct theories of liability. However, as the Georgia Court of Appeals recent decision in Demott v. Old Town Trolley Tours of Savannah, Inc. demonstrates, alternative pleading, although often efficacious, does not assure recovery.

The plaintiff in Demott was injured in Savannah on November 17, 2008. On that day, the plaintiff and several family members went to the Savannah Visitor Center in order to procure tickets and take the Savannah Old Town Trolley Tour. After parking and entering the Visitor Center to purchase tickets, the plaintiff walked across the parking lot to a kiosk to inquire about where she and her family should board the trolley. The kiosk attendant informed her that she and her family could board back at the entrance to the Visitor Center. While making her way back across the parking lot, the plaintiff tripped in a pothole and fell.

The plaintiff originally brought a premises liability suit on March 16, 2010 against the City of Savannah. However, after realizing that Old Town, not the City of Savannah, owned the parking lot, the plaintiff amended the complaint on November 16, 2011 to include a premises liability claim against Old Town. However, Old Town argued that this claim fell beyond the two-year statute of limitations period for personal injury actions, see O.C.G.A. § 9-3-33, and moved for summary judgment. In response, the plaintiff again amended the complaint to assert a breach of contract claim based on Old Town’s duty to its riders as a common carrier. While the trial court acknowledged that this is a distinct claim, the court found that the injury did not occur based on a breach of the contractual duty to safely carry and transport the plaintiff and granted the motion for summary judgment.
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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.
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photo_8995_20090111Although the jury is a fixture in popular notions of the law, there is a considerable amount of work that must be undertaken before a jury ever hears or decides the issues of any particular case. Of particular importance in the progression of tasks before trial is the summary judgment stage. After discovery, a party usually moves for summary judgment, and the court must determine whether a dispute of material fact exists for a jury to decide, and, if not, whether one side is thus entitled to judgment as a matter of law. Although premises liability cases are incredibly fact-sensitive, a defendant will invariably move for summary judgment, leaving a plaintiff to prove there is a material dispute of facts such that a reasonable jury could find in his or her favor. In a recent case, Ali v. Wal-Mart Stores East, L.P., a plaintiff successfully overcame the summary judgment hurdle and assured that his case would be heard by the jury.

Ali arose from a fall at a Wal-Mart in Snellville, Georgia. While grocery shopping, the hapless plaintiff fell over a pallet jack that had been positioned behind him by an employee. The plaintiff alleged that he had been selecting butter when the pallet jack was placed behind him and that he had no knowledge of the instrument’s position before falling and suffering serious injury. The plaintiff brought an action against Wal-Mart solely asserting premises liability. Wal-Mart moved for summary judgment, arguing that the plaintiff had failed to proffer sufficient evidence to support a premises liability claim under Georgia law.

The court first outlined the standard for awarding summary judgment, including the important element that all factual inferences are to be drawn in favor of the party against whom summary judgment is being sought. Pursuant to Georgia law, business owners owe a duty of reasonable care to shoppers and can be held liable for failure to keep their premises safe. See O.C.G.A. § 51-3-1. In order to establish liability in a “slip and fall” case, a plaintiff must prove both of the following elements. First, the defendant must have had actual or constructive knowledge of a defect or hazard on the premises. Second, despite exercising ordinary care for his or her personal safety, the victim must have lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control. See Am. Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444 (2009). The court specifically noted that questions regarding the reasonableness of a business’ duty to inspect or a plaintiff’s exercise of care in avoiding hazards are appropriately left for a jury and that, in accordance with Georgia law, summary judgment should only be granted when the evidence is obvious and indisputable. See Robinson v. Kroger Co., 268 Ga. 735, 748 (1997).
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photo_5255_20080312As we have discussed in previous posts, filing a legal claim against the state or federal government is not always a straightforward process. Successfully asserting a claim against a governmental body often depends on satisfying requirements set forth in legislation regarding sovereign immunity, and many sovereign immunity waiver statutes impose unexpected notice obligations that, if not fulfilled, preclude legal action. In a recent case, Campeau v. United States, the United States District Court for the Northern District of Georgia addressed whether the plaintiff had complied with several notice provisions provided under the Federal Tort Claims Act (FTCA).

Campeau involves the unfortunate death of the plaintiff’s husband on December 7, 2010 as a result of complications from electroconvulsive treatment performed at the Atlanta Department of Veterans Affairs Medical Center. Since the alleged wrongful death occurred at a VA Medical Center, the plaintiff needed to file her lawsuit against the federal government. However, pursuant to 28 U.S.C. § 2675(a), a wrongful death action may not be instituted against the federal government “unless the claimant shall have first presented the claim to the appropriate Federal agency” and pursuant to 28 U.S.C. § 2401(b), a tort claim is barred unless the aforementioned claim is presented within two years of the time the claim accrues and the action is commenced within six months of the agency’s notice of final determination or inaction. At issue in Campeau was whether the plaintiff had properly complied with the filing requirements under § 2675(a).

In July 2012, an administrative claim form comprehensively setting forth the circumstances of the deceased’s death was submitted by the deceased’s mother as Administrator of his Estate with the decedent’s wife listed as a witness to the claim to the Department of Veterans Affairs. On December of 2012, a virtually identical amended claim form was submitted to correct an error listing the claim amount under personal injury rather than wrongful death. On April 7, 2013, the VA replied and denied the personal injury claims and further stating that the plaintiff’s mother was not the proper party to assert the wrongful death claim under Georgia law and that the wrongful death amended form was otherwise untimely. In response, a Second Amended Complaint form now listing the decedent’s wife as the claimant was submitted to the VA, with attorneys for the estate noting that since the VA did not address the merits of the wife’s wrongful death claim it was “[their] understanding … there has been no final disposition as to [her] claim as there has not been any final agency action regarding that claim and we have not exercised our option to file suit pursuant to 28 U.S.C. § 2675(a).” The VA acknowledged receipt but stated that it would be treated as a new claim. Attorneys for the estate disputed the characterization and, instead, argued that it should be treated as an amendment to the original claim filed in July of 2012.
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crash-car-748825-mGiven the ubiquity of motor vehicle accidents, numerous states have enacted legislation seeking to assure some level of recovery through compulsory insurance coverage and hopefully dissuade litigation as a result. However, although the availability of insurance recovery has purged some judicial resolution of auto-accident fault, the courts have not been completely freed from questions of law involving auto accidents. For instance, in Carter v. Progressive Mountain Insurance, the Supreme Court of Georgia weighed in on the proper interpretation of OCGA § 33-24-41.1, a statute governing how a claimant may settle claims with a third party’s insurance provider while still seeking recovery from his or her personal insurance provider.

This case arose from a car accident on February 22, 2010, when a motorist who was alleged to be under the influence of alcohol struck the claimant. The claimant sued the other motorist and served Progressive Mountain Insurance, her personal under-insured motorist insurance provider. The claimant executed a limited liability release with the other motorist’s insurance provider, GEICO, for the full amount of its $30,000 per-person liability limit, with $29,000 allocated to punitive damages and the remaining $1,000 allocated to compensatory damages. Progressive objected to the allocation and moved for summary judgment on the claimaint’s right to under-insured motorist benefits. The trial court granted the motion, ruling that by conditioning that $29,000 be allocated to punitive damages, the claimant had failed to satisfy the prerequisites for the receipt of under-insured motorist benefits. The Court of Appeals of Georgia concurred and held that by not allocating the entire policy limit to compensatory damages, the claimant had failed to exhaust the limits of the policy and accordingly forfeited her right to under-insured motorist benefits.

However, in an unanimous decision, the Supreme Court of Georgia reversed the Georgia Court of Appeals and held that a claimant may, in conformity with OCGA § 33-24-41.1, settle claims with a third party’s insurance provider and allocate the overwhelming majority of the settled amount to punitive damages while still seeking under-insured coverage from his or her personal insurance provider for the remaining amount of actual compensatory damages. The Supreme Court held that the Court of Appeals erred in holding that no allocation to punitive damages may be made in the limited release, since the text of OCGA § 33-24-41.1 contained no language that would foreclose such an allocation. Specifically, the court noted that the section of the statute that requires payment be “based on injuries” does not prohibit the allocation of punitive damages, since the availability of punitive damages necessarily depends on there being some form of compensatory injury. Therefore, such payment would still be “based on injuries.”
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medical-doctor-1314902-mIn light of the poor health of many who enter medical facilities, death is not an uncommon occurrence. Although many of these deaths can be attributed to factors beyond the control of any physician, some can be traced to the negligent conduct of practitioners, leaving doctors and the loved ones of those deceased to wrangle in court. To the chagrin of many of these bereaved plaintiffs, however, the standard for demonstrating negligence liability in medical malpractice actions associated with wrongful death in Georgia is quite different from the burden in a typical negligence suit. In its recent decision in Reeves v. Mahathre, the Georgia Court of Appeals illuminated how some of these differences function in practice and gave further guidance to future litigants on the evidentiary burden they face when asserting a medical malpractice claim.

This case arose from the death of an elderly patient with a history of hypertension and diabetes, who came into the emergency room at Dorminy Medical Center complaining of nausea and abdominal pain. The attending physician, one of the defendants in this case, took a medical history and performed a physical examination of the patient. After these preliminary undertakings, the physician ordered a series of tests, which included a complete blood count, blood-chemistry analysis, urinalysis, and an upright kidney-ureter-bladder x-ray. Although the patient’s white blood cell count was elevated, indicating possible infection, the other tests came back normal, and the physician prescribed the patient pain medication with instructions to see her primary care physician in two days. The following morning, the patient went to her primary care physician and was later that afternoon admitted as an inpatient to Dorminy Medical with increased abdominal pain, fever, and an elevated white-blood-cell count. Shortly thereafter, a CT scan was performed, which showed that the patient was suffering from a kidney stone. Dorminy Medical did not have an available urologist on call but consulted with one at Tift Regional Medical Center. The urologist said Tift Regional did not have any available beds, but the decision was made to transfer the patient promptly the following morning. The following morning the patient was transferred to Tift Regional, which is approximately 30 miles from Dorminy Medical, but by the time she arrived, she was in critical condition and could not undergo anesthesia necessary for surgery. The patient never stabilized and died later that afternoon as a result of urosepsis.

Following the death, the estate of the deceased brought a wrongful death suit against, among others, the attending physician and his employer, Ben Hill Emergency Group, LLC. The estate alleged the physician was negligent in the care he provided. Specifically, they argued that the attending physician was negligent in failing to order a CT scan or formally diagnose the deceased’s condition prior to discharging her from the emergency room during the initial visit. The physician moved for summary judgment, arguing that he did not breach the applicable standard of care and, even if he did, the plaintiff had failed to establish a causal connection between his care and the patient’s death. The trial court concurred and granted the motion.
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