Atlanta Injury Lawyer Blog

Articles Posted in Wrongful death

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pen and inkSince passage of the Federal Arbitration Act of 1925, arbitration clauses have become a commonplace, if not boilerplate, provision utilized in contracts executed in the United States. However, given the ubiquity of adhesion contracts, many people are often unaware they are waiving the right to have their grievances decided in court and, more importantly, many of the procedural safeguards that exist in the judicial setting. However, even when parties have agreed to arbitrate, one can occasionally avoid compelled arbitration. Avoidance of mandatory arbitration is at the core of today’s case, Sunbridge Retirement Care Associates, LLC v. Smith (PDF-embedded link).

Sunbridge concerns an arbitration agreement between Cartersville Heights Care and Rehabilitation Center (“Cartersville”), a skilled nursing and rehabilitation center and the plaintiff in this action, and the daughter of a now-deceased resident of the facility. The agreement was executed on November 24, 2009, when the resident was in the admission process. The daughter had the power of attorney to enter into agreements on behalf of the resident, and she signed the arbitration agreement, which provided that “any and all claim or controversies arising out of or in any way relating to this agreement, the admission agreement or any of the resident’s stays at the Facility … shall be submitted to binding arbitration.” The agreement further provided that “the arbitrator shall apply the [National Arbitration Forum (“NAF”)] Code of Procedure,” which in turn provides that the Code governs the arbitration proceedings, unless the parties agreed otherwise. The Code further provided that in the event the parties are denied an opportunity to arbitrate, they retain the right to seek legal or other remedies.

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Blood Pressure CheckSince certain subject matter falls beyond the knowledge or experience of an average juror, cases will occasionally require that a plaintiff or defendant provide expert testimony that will assist the jury in making necessary factual determinations for resolving a case. In particular, expert testimony is often necessary in medical malpractice cases, since many jurors lack sufficient medical knowledge to make determinations regarding a medical provider’s negligence. In a recent decision, Freeman v. LTC Healthcare of Statesboro, Inc. (PDF-embedded link), the Georgia Court of Appeals addressed who can provide this necessary expert testimony.

Freeman arose from an alleged act of medical malpractice at Westwood Nursing Center, a long-term care facility. The plaintiff in this action is the husband of a patient who died shortly after arriving at Westwood. The deceased had undergone brain surgery the month before and experienced severe complications, including quadriplegia. Medical orders accompanying the transfer instructed that the deceased receive albuterol and that her oxygen be monitored and tracheostomy tube suctioned. The day of her transfer, Westwood’s medical records show that a feeding tube was placed but does not indicate that any of the other treatments were followed. Shortly before midnight, a nurse noticed that the deceased was in distress, and by the early morning the deceased passed away as a result of respiratory failure.

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photo_12054_20090622Successfully asserting negligence claims against the State or a municipality can be a difficult task. However, success is possible. In a recent decision, City of Atlanta v. Kovalcik (PDF-embedded link), the Georgia Court of Appeals affirmed the denial of summary judgment in a negligence suit brought against the City of Atlanta for its failure to maintain adequate lighting at a newly redesigned intersection where the daughter of the plaintiffs was involved in a fatal car accident.

The car accident at issue in this case occurred on a night in March 2008. However, the events leading to this accident began four years earlier. In February 2004, the Georgia Department of Transportation and the City of Atlanta entered into an agreement to undertake certain improvements, including a project to redesign a portion of Peachtree Road in Atlanta. In pertinent part, the agreement provided that the city would accomplish the design activities in accordance with Georgia Department of Transportation (“DOT”) guidelines and that the DOT would “review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement.” Pursuant to a separate agreement between the City of Atlanta and the Buckhead Community Improvement District (“BCID”), BCID retained URS Corporation to develop construction plans, including road design, signage, pavement markings, curbs, traffic signals, and landscaping. These plans were ultimately approved by the DOT. Following approval of the plans, the DOT awarded a construction contract to Infrasource Paving and Concrete Services and contracted with Parsons Brinkerhoff Shuh & Jernigan for other construction, engineering, and inspection services. Active construction on this project ended in October 2007, and a final inspection was performed in January 2008.

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LawPrior to the day of a possible trial, there can be months –if not years – of legal proceedings designed to remove non-meritorious claims from the court’s consideration or narrow the issues that may ultimately be brought before a jury. Among the most important steps prior to trial is the summary judgment phase. Following sufficient discovery, a party will move for summary judgment and argue, in essence, that even looking at the adduced evidence in a manner favorable to the other party there are no material issues of fact for a jury to decide and that it is entitled to judgment as a matter of law. Considering an examination of the evidence is critical for making this determination, since there will often be arguments concerning what evidence is properly before the court for consideration and what evidence can permissibly be disregarded. This battle is on display in Blake v. Kes, Inc., a recent decision from the Georgia Court of Appeals.

Blake arose from the death of a developmentally disabled adult at a residential habilitation facility in Lithonia, Georgia. The decedent had been diagnosed with several developmental disabilities from birth, including organic personality disorder, moderate intellectual disability, and partial complex seizures. The decedent spent his days at the habilitation facility in accordance with a contract between the facility and his parents. Beyond his aforementioned disabilities, the decedent had a history of absconding from designated areas at the facility and required constant line-of-sight supervision in addition to medication. On the day of his death, the decedent arrived at the facility around 9 AM and upon arrival complained of dizziness and a poor overall feeling. At around noon, while eating lunch, the decedent asked if he could leave and return to his assigned task of cleaning the computer desk, but a caregiver told him he had to finish his meal and then rest thereafter. However, when this caregiver stepped out of the room for a moment, the decedent left the room and walked out of the building. Staff began to track the decedent’s movements, and security camera footage shot at 12:19 PM later showed that the decedent walked alongside a parked van, faltered, leaned into the van, and then fell forward. Shortly afterwards, a facility worker arrived at the decedent, who was unresponsive, breathing faintly, and had a weak pulse. The workers called 911 and performed various resuscitation techniques. Emergency personnel arrived later and continued performing emergency care. However, the decedent remained unresponsive and was pronounced dead at the hospital. The decedent’s cause of death was listed as “cardiac arrest status post likely seizure.”

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photo_2775_20070813Under the common law, a purveyor of alcohol could not be found negligent for furnishing liquor to an intoxicated person who caused injury to another. With respect to injuries caused by the intoxicated person, the intoxicated person would be held liable, but the person who furnished the liquor to the would-be or already intoxicated person was not subject to negligence liability because there was insufficient “proximate cause” between furnishing the alcohol and the injuries the intoxicated person caused. Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 511-512 (1) (614 SE2d 745) (2005). Although this was a well-established rule, the legislatures of many states realized that freely providing booze to another could foreseeably lead to the injuries, especially if one considers the relative ubiquity of intoxicated driving. Consequently, states including Georgia passed Dram Shop legislation that abrogated the common law and imposed liability on those who sell liquor under certain circumstances. The scope of Georgia’s Dram Shop Law was recently addressed in a case from the Supreme Court of Georgia, Dion v. Ysg Enterprises, Inc..

Dion arose from a motor vehicle accident in the early hours of September 16, 2011. On that evening, the husband of the plaintiff in this action died in a single-car wreck. The decedent had been drinking at Depot Sports Bar and Grill for approximately eight hours, and his blood alcohol level was measured at .282. While he was at the bar, the decedent was visibly intoxicated. In fact, an employee had asked for the decedent’s keys, which the decedent refused to relinquish. Following the death, the decedent’s widow brought a wrongful death action against Depot Sports Bar and Grill, arguing that the actions of the bar’s employees were negligent and that their conduct was the proximate cause of the decedent’s accident and death. The defendant moved to dismiss, arguing that Georgia Dram Shop Law barred the widow’s claim. The trial court concurred and granted the motion, but the widow appealed.

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ResearchWith further progress in modern medicine and the concomitant increase in life expectancy, an increasing number of Americans find themselves living for a longer period of time than their predecessors. Increased life expectancy is certainly a positive, but many among America’s elderly population now find themselves living in nursing homes or other assisted living facilities and depending on others to provide them with care. While much of the care provided by nursing home professionals conforms to standards we expect, there remain cases when care does fall far short. One instance of possible elder negligence is at issue in a recent decision from the Georgia Court of Appeals, McKean v. GGNSC Atlanta, LLC.

McKean arose from the death of an elderly resident at Golden Living Center nursing home. The resident had been admitted to Golden Living on March 9, 2012, and remained at the facility until her death on May 19. At the time of her admission, the resident had been suffering from the recent onset of paraplegia caused by a subarachnoid hemorrhage. During the short period of time between the admission and her death, the resident developed various serious medical issues. Following the death, the son of the resident brought suit against Golden Living in his capacity as executor of his late mother’s estate in the State Court of Fulton County. The cause of these medical issues is still in dispute, since shortly after the case was brought the defendant moved to dismiss and compel arbitration, arguing that an Alternative Dispute Resolution (ADR) agreement signed by the son required that all disputes between the parties to the agreement shall be resolved through an alternative dispute resolution arbitration process. The trial court granted the motion, and the plaintiff appealed.

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photo_26696_20130806Given the pervasiveness of workplace injuries, every state in the Union, including the state of Georgia, has enacted a workers’ compensation scheme to resolve claims arising from death or injuries at the workplace. Although the overall legal propriety of workers’ compensation schemes is well settled, questions regarding the constitutionality of certain provisions are still occasionally raised. For instance, in a recent decision, Barzey v. City of Cuthbert, the Supreme Court of Georgia addressed the constitutionality of certain provisions of Georgia’s workers compensation scheme that bar a non-dependent heir from bringing a claim to recover for a worker’s death, even if that heir happens to be the worker’s only heir at law.

In 2010, the worker at issue in Barzey was killed while acting in the course of his employment with the City of Cuthbert. After the worker’s death, the worker’s mother, his sole heir at law, filed a lawsuit against the City, which sought a judgment declaring that she had a right to bring an action against the city for the worker’s death. Although she acknowledged that the Workers’ Compensation Act expressly provides that compensation for a deceased employee “shall be payable only to dependents and only during dependency,” O.C.G.A. § 34-9-265 (c), and that reasonable expenses for burial “shall be the only compensation” when “the employee leaves no dependents,” O.C.G.A. § 34-9-265 (b)(1), the mother argued that these provisions, as applied to her situation, violated rights to substantive due process and equal protection under the United States Constitution. The trial court granted the city’s motion to dismiss, holding that the plaintiff’s constitutional claims were without legal basis and meritless.

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Road goes into the distanceIn a recent decision, the Georgia Court of Appeals looked at common questions concerning when an employer may be held liable for the acts of an employee. The facts underlying this decision, CGL Facility Management, LLC v. Wiley, are incredibly unfortunate. While driving to Augusta in a pickup truck provided by his employer, the employee at issue in the litigation crossed the center line on a stretch of highway and collided head-on with a vehicle being driven by the decedent. Shortly after the accident, the employee underwent a blood test that came back positive for the presence of both amphetamine and methamphetamine. The decedent’s husband, acting as a personal representative for her estate, brought a wrongful death suit against both the driver and his employer, CGL Facility Management.

At the trial level, the plaintiffs predicated the employer’s responsibility in this case on several differing theories of vicarious liability, including respondeat superior and negligent hiring, retention, training, entrustment, and maintenance. Following discovery, CGL moved for summary judgment, arguing that it could not be held liable based on the plaintiff’s proffered theories of liability. Without explanation, the trial court denied the motion for summary judgment but granted CGL’s application for immediate review by the appellate court on the issue. The appeals court reversed the trial court determination on the claims of respondeat superior and negligent hiring, retention, training, and maintenance, but it agreed with the trial court that the employer could be liable under a negligent entrustment theory of liability.

Undoubtedly, Georgia law does not make an employer liable for any and all injuries caused by the acts of employees. Instead, an injured party must demonstrate that an employee’s conduct falls within some applicable theory of vicarious liability that would make the employer liable for the harmed caused. The most common form of employer vicarious liability is known as respondeat superior, which essentially makes an employer liable for injuries that occur within the employee’s scope of employment. In Georgia, when an employee is involved in a collision while operating a vehicle owned by an employer, a presumption is created that the employee was acting within the scope of his or her employment. However, this is a rebuttable presumption, and the appeals court concluded that CGL had rebutted the presumption, since the evidence showed that the employee was driving to work at the time of the crash and not actively engaged in any business for the employer. In fact, the employee held a supervisory position and would rarely use the vehicle while on the job. Since the plaintiff did not proffer additional direct or circumstantial evidence demonstrating that the employee was acting within the scope of his employment, summary judgment in favor of CGL was appropriate.

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file0001080745110Anyone who routinely watches the evening news is well aware that high-speed police chases are not uncommon. While considerable reporting time is spent discussing these events, one wrinkle that is sometimes overlooked in these discussions is the risk for pedestrians and other motorists occasioned by the decision to give chase. Indeed, given the risk of third-party injury, many law enforcement agencies, including the City of Atlanta Police Department, have developed guidelines for high-speed pursuits designed to minimize the danger they create for the general public. However, the existence of a chase protocol does not always mean adequate compliance with that protocol, which is the key subject addressed in a recent decision from the Georgia Court of Appeals, City of Atlanta v. McCrary (PDF File).

McCrary involved the death of two people who were hit by a fleeing suspect on the night of January 28, 2008. On that day, an officer noticed a car with an improperly completed drive-out tag. When the officer turned on his siren and lights, the driver of the vehicle accelerated, and the officer began to give chase. There is some factual dispute about what happened afterwards. In his deposition testimony, the officer stated that he soon realized he lacked a sufficient legal basis for either starting or continuing the chase and that he consequently terminated the pursuit and turned off his lights and siren. The officer further stated that about a mile after he had ceased following the suspect, he once again happened upon the vehicle, which had collided head-on with another car that was occupied by the two deceased victims. The fleeing suspect, however, stated in an affidavit that he never lost sight of the police cruiser or its flashing lights.

The estates of both deceased parties brought wrongful death suits against the City of Atlanta, alleging that the officer and the city were negligent, that the officer’s decision to initiate a high-speed chase violated the department’s high-speed pursuit policy, and that the city had maintained a nuisance that endangered the public by failing to enforce its pursuit policy and by failing to train and supervise its officers pursuant to the policy. The city moved for summary judgment, arguing that its liability was limited to $700,000, but the trial court, finding a question of material fact with respect to the nuisance claim, declined the motion.
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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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