Our team at the Haug Law Group regularly receives large verdicts and settlements for our clients, but we are not afraid to try cases of moderate to minor damages. An example of this can be seen through our victory in a Magistrate Court trial on July 7, 2016. A single-mother was involved in an automobile accident where she was struck from behind on Interstate-285 by an F-150 truck that veered into her lane. As a result of the collision, our client underwent 3 months of treatment, and incurred approximately $7,000 in medical expenses. Prior to trial, the opposing counsel was unwilling to consider any pain and suffering damages, and her highest offer was $4,000.00. Maintaining this stance at trial, the opposing counsel attempted to downplay our client’s treatment as unreasonable. Our team objected to this reasoning, asserting that our adversary could have sought the opinion of an expert to determine the reasonableness of the treatment obtained. We asserted, and the Judge agreed, that the opposing counsel was not a medical provider, and consequently was not in a position to determine the reasonableness of our client’s treatment. Also, we argued to the Court our client’s decreased quality of life since the accident. She unfortunately had to deal with loss of sleep and a reduction of activities in her daily life, and deserved $5,000.00 in pain and suffering. The Court ultimately awarded our client $7,000.00 in medical expenses she incurred, plus $4,500.00 for pain and suffering. At the conclusion of the trial, the Judge stated that she wished our case had appeared first that day, so that the other attorneys could see an example of how “it was supposed to be done.” As opposed to settling for the $4,000 originally offered, our team was able to increase our client’s compensation for their injuries by 162.5%. *It is important to understand that no two cases are alike, and no recovery or amount of recovery can be guaranteed. We would be more than happy to discuss your case with you and evaluate it for you. Please call us at 1-844-428-4529. Also, you can visit our website at www.hauglawgroup.com.

Almost everyone is familiar with the idea that if a person dies as a result of the negligence of another, damages could be recovered in a wrongful death lawsuit. However, perhaps not as common is the idea that one could also recover for prenatal harms. There are three different kinds of prenatal harms recognized at common law. They are wrongful life, wrongful birth and wrongful conception.

The state of Georgia is one of a few states that does not recognize wrongful birth claims. However, a Georgia sperm bank, Xytex Corp. and a local fertility clinic are now at the center of at least two lawsuits. The plaintiffs thought their sperm donor was a neuroscientist, when in fact he turned out to be a convicted felon with mental health issues. Previous litigation was dismissed because Georgia does not allow wrongful birth claims. At issue is how the sperm doner was described on Xytex’s website.

A wrongful birth claim results when a child is born that would not have been in the absence of medical malpractice. In general, these cases fall into three categories: 1) births caused by failed sterilization procedures, 2) the failure to inform parents of a birth defect or abnormality of their unborn child, and 3) failed abortion attempts.

In a wrongful life claim, the child is the plaintiff and the damages are the cost of the child’s support. In a wrongful birth claim, the plaintiff is the parent and the damages are the cost of the child’s support. Both allow recovery for the birth of unhealthy children. These sound like the same thing, especially since the damages are the cost of the child’s support under both theories of recovery, but it does matter which claim is chosen. If the child recovers, it’s her money and would last a lifetime. If the parent recovers, the parent can only recover for support up until age 18. Recovery is limited, however, to the extraordinary expenses of raising the child, not the normal and foreseeable costs of raising a healthy child. Wrongful Conception, where it is allowed, differs from wrongful birth and wrongful life in that it allows for the recovery of unwanted healthy children.

Dog owners can recover the value of medical costs in a Negligence Action in Georgia.

In Georgia, when a person is injured in an accident due to the negligence of someone else, she can often recover money damages for her personal injuries, including her medical costs. If that same person passes away due to the negligence of someone else, her estate may have a claim for wrongful death. However, what happens when a pet animal is injured or killed due to the negligence of another?

The general rule is that an animal, even if it is a loving member of your family, is considered personal property, and if that animal is killed, the owner would only be able to recover the fair market value of the animal. A court will take the animal’s training, temperament, and use into consideration, when determining fair market value, but will not consider the value of the animal to the owner. Rather, it will only consider the value of the animal in a fair market.

In a recent Georgia case, the Supreme Court of Georgia still refused to allow dog owners to recover for their sentimental value for their dog, a mixed breed dachshund named Lola. The owners brought suit against a boarding facility after Lola died from kidney failure allegedly caused by the boarding facility’s negligence. The court reasoned that “the unique human-animal bond, while cherished, is beyond legal measure.”

The owners also sought to recover the value of the medical services provided to Lola. They spent nearly $67000 on Lola’s medical care at a specialized animal hospital in Florida for a period of nine moths before Lola passed away. The boarding facility argued that recovery should be limited to the fair market value of the dog, but the court held that, in addition to the fair market value, Lola’s owners could also recover for the reasonable value of medical expenses they incurred while trying to save Lola. The court held that the jury could consider the reasonableness of the medical treatment and costs in determining how much the owners could actually recover.

If someone is injured in another’s home, the homeowner could be liable for any damages caused. Common problems include falling on slippery or insecure surfaces, being injured in pools or trampolines, lawnmower accidents, and accidents involving pets or unsafe conditions on the property. You can protect yourself from liability by knowing the situations that could lead to trouble:

1) Failing to maintain your property .

2) Creating a condition on your property that could lead to injury.

3) Having a known hazard on your property and failing to protect others against it with warnings or barriers.

4) Failing to safely maintain or creating a hazard that could attract children.

5) Engaging in actions that could damage to your neighbor’s property.

Avoiding these situations and protecting yourself from liability starts with keeping your home safe. The American Bar Association has provided a handy checklist of suggestions you can use to ensure a safe home:

Repair steps and railings.
Cover holes.
Fix uneven walkways.
Install adequate lighting.
Clear walkways of ice and snow as soon as possible.
Be sure children do not leave toys on steps and sidewalks.
Replace throw rugs that slip or bunch up.
Reroute extension cords that stretch across traffic lanes.
Repair frayed electrical cords.
Keep poisons and other hazards out of the reach of children, even if you don’t have children.
Warn guests about icy conditions and other hazards.
Restrain your pet.
Erect barriers to your swimming pool; an automatic pool cover or a tall fence with a good lock that you lock, and an alarm on any door leading to the pool.
Remove all guns or keep them securely locked and out of sight, where children cannot see them or gain access to them.
Remove nails from stored lumber; secure any lumber piles.
Don’t leave ladders standing against the side of the house or garage.
Don’t let children stand nearby when you mow the lawn.
Don’t let your guests drink and drive or drive under the influence of drugs.
(https://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/safehome_checklist.html)

By acting reasonably, paying attention, and correcting problems, you can protect yourself from liability and make sure your home is safe for both your family and others!

Prior to 1946, the government could not be sued based on the doctrine of Sovereign Immunity. However, today, if a person is injured because of the acts of a government employee acting within the scope of employment, the injured person can sue the government for personal injury, wrongful death, and property damage. Therefore, if a visitor slips and falls on negligently maintained stairs at a federal building, that visitor would have a claim for negligence under the Federal Tort Claims Act.

State governments have their own immunity laws. In Georgia, sovereign immunity is waived in certain situations. If a driver is injured in an accident due to a malfunctioning street light or perhaps an obstructed stop sign, she may be able to recover damages from the government entity responsible for the stop light or sign. Her first step would be to file a notice of claim to let the government know that she has been injured. For cities, this must be filed within six months after the accident and within a year after the accident for counties and state entities.

Filing this notice is very important and can cause a victim to lose her case if she doesn’t follow the rules. For example, in a case wherein a Waynesboro police officer drove his patrol car into the back of the victim’s automobile, the victim she lost her negligence case. The court dismissed the case, finding that the victim did not file appropriate notice within six months of the accident. The court further noted that a state statute prevented the victim for suing the victim from suing the officer personally.

Because of the formalities requires and protective rules, it can therefore be difficult to sue the government, but it is not impossible. Hiring a good lawyer that understands the rules and limitations is a good way to start!

Defenses to Negligence Claims in Georgia

Suppose a driver turns left at a red light in front of a second driver’s car, causing a car accident. The first driver is clearly negligent. However, let’s assume the accident could have been avoided entirely had the second driver not been speeding. Courts have three different ways of apportioning the blame – and thus the liability – in cases where both parties are negligent: Contributory Negligence, Comparative Negligence and Assumption of the Risk.

First, the doctrine of Contributory Negligence may be used to completely bar a plaintiff who contributes to the accident. In the car wreck example above, if the second driver was indeed speeding and contributed to the accident, she would not be able to recover any damages in a jurisdiction that adopts the rule of contributory negligence.

Comparative Negligence is a defense that may be used to reduce the recovery of a Plaintiff that contributes to the accident. Her recovery will be reduced by the percentage of her negligence. Most jurisdictions have adopted this approach, including Georgia.

Specifically, Georgia follows a modified comparative negligence approach: Plaintiff will only recover if she is less than 50 percent at fault. In other words, if she is 40 percent at fault, he damages will be reduced by 40 percent, leaving her with 60 percent of her damages. Let’s say that Plaintiff suffers $100,000 in damages but is found to be 40 percent at fault. She would only be able to recover $60,000 because her recovery would be reduced by 40 percent, or $40,000.

Our neighbors, Alabama and North Carolina, follow a pure comparative negligence system, where damages are apportioned to each party regardless of each party’s percentage of fault. In other words, if Plaintiff is found to be 80 percent at fault, she could still recover 20 percent of her damages from Defendant. In Georgia, because she is more at fault than the defendant, she would be barred from recovery.

Another defense to negligence is assumption of the risk. A Plaintiff that voluntarily undertakes the risk that results in her injury is also barred from recovery. In order to prove assumption of the risk, Plaintiff must voluntarily choose to expose herself to a known risk. In other words, she knows and appreciates the risk, but still chooses to expose herself to the danger.

Let’s say you sign a waiver form before going skydiving. That would be an express assumption of the risk. You know the danger of skydiving, but voluntarily choose to expose yourself to it. Or, let’s say you get a recall notice informing you that the brakes on your car are defective and you notice that they are slipping, but you choose to drive your car anyway without getting the braes repaired. That is an assumption of the risk as well.

Assumption of the risk can be implied by the factual situation or expressly, when the plaintiff explicitly agrees to accept the risk involved. Many jurisdictions absorb implied assumption of the risk into comparative negligence rather than treating it as a completely separate defense. Georgia has both a comparative negligence statute and an assumption of the risk statute.

Negligence Per Se Atlanta Georgia

If an individual is injured because of the actions of another, she may be able to recover her damages if she can prove that the other person was negligent. As mentioned in previous posts, to prove that another person has acted negligently, you generally must demonstrate that the person acted unreasonably under the circumstances, which can sometimes be hard to do.

Under Georgia state law, one way you can prove unreasonable conduct is to show that the Defendant violated a statute. For example, let’s assume that the Defendant was speeding or ran a red light. As a result, the Defendant caused an auto accident, and another driver on the road was injured. We all know that both speeding and running a red light are against the law in every state in the United States. However, that does not automatically mean that the Defendant is liable for the Plaintiff’s injuries under the doctrine of negligence per se. Instead, you have three requirements to prove to invoke the doctrine:

1. The injured Plaintiff must be within the class of persons that the law was intended to protect. In the case of the speeding car, the law against speeding was designed to protect drivers. Therefore, if another driver is hit by a speeding car, she is within the class of people the statute is designed to protect.
2. Again, in the case of the speeding car, the law was intended to protect against people suffering an injury as a result of an automobile accident. Because the Plaintiff was injured in a car accident, she suffered the type of harm the statute was meant to protect against.
3. Finally, you have to show that the Defendant’s violation of the statute was not excused. In other words, if the Defendant has an excuse for breaking the law, the doctrine of negligence per se will not apply. In the case of the speeding car, if the Defendant was speeding because he was rushing to the hospital to save a dying passenger in the vehicle, his conduct may be excused, and negligence per se will not apply. However, if there was no excuse for his speeding, the Plaintiff may be able to prove negligence per se and avail herself of the doctrine to prove that the Defendant owed her a duty of care to drive at the speed limit, and he breached that duty of care by recklessly driving over the speed limit.

Here’s the twist: Just because a Plaintiff can prove negligence per se does not mean that the Plaintiff automatically wins her negligence case. Rather, she must also still prove causation and damages. For example, if the accident was caused because the Plaintiff swerved to avoid a hazard in the road and not because the Defendant was speeding, then the Defendant will not be liable for negligence because the Plaintiff cannot prove both actual and proximate cause.

Swanson v. Tackling: A Georgia Dog Bite Case

In a recent Georgia case, a seven year old boy was bit on the head by one of Defendant’s Great Dane dogs while he was visiting their home. He suffered serious and disfiguring injuries as a result. His mom filed a personal injury suit against the dog’s owners.

When the boy and his parents arrived at the home, they were introduced to the dogs who were behind a gate in another room. One of the dogs put her head over the gate barked in the young boy’s face. This made the mother nervous and she requested that the dog be kept away from her son, although she did not share this information with the owners. The next day, the young boy asked if he could give one of the dogs a stuffed toy. In an attempt to get the toy, the dog bit the boy’s arm. The boy began to scream and cry and when he bent his head down, the dog bit him. the dog’s owner testified that “prior to this incident, the dog had never bit, chased, jumped on, or even growled at anyone.”

The trial court ruled in favor of the dog owners on the grounds that there was no issue of material fact for a jury to consider because the dog had never displayed any vicious behavior or evinced a propensity to bite anyone prior to biting the boy. The appellate court agreed and ruled in favor of the dog owners.

In a dog bite case, Georgia law allows a plaintiff to recover based on a dangerous animal liability theory or a premises liability theory. However, in order to succeed, the plaintiff must show evidence that the dog had a vicious propensity in order to prove that the owner had superior knowledge of the danger. In order to infer this knowledge, there “must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.” Although the dog owner doesn’t have to be aware of the dog’s propensity to act in exactly the same way that causes the injury at issue, that previous incident must be the same type as the incident at issue. Finally, it is well settled under Georgia law that “a dog’s menacing behavior alone does not demonstrate its vicious propensity or place its owner on notice of such propensity.”

As mentioned, Georgia courts allow recovery under a dangerous animal liability theory or a premises liability theory. Also, if a person voluntarily undertakes to restrain a dog and fails to do so and an injury results, the owner can be held liable. In this case, there was no evidence that the mom asked the Defendants to restrain the dog or that they promised to do so. Therefore, while the Court was sympathetic with regard to the boy’s injuries, it had to rule in favor of the dog owners.

2016 WL 718465

Proving Negligence Actions in Georgia: Unreasonable Conduct

When a person has been injured in an accident, she may be able to recover damages for her injuries if she can prove that the accident was caused by the negligence of another. In other words, if someone acted unreasonably and caused injury as a result, that person may be liable.

Proving negligence isn’t always easy. A plaintiff must show that 1) Defendant owed her a duty of care, 2) Defendant breached that duty of care, 3) the Defendant’s breach caused the plaintiff to be injured, and 4) Plaintiff suffered damages as a result.

In general, we all owe a duty of reasonable care to those around us. In other words, we should drive safely, look where we are going, and just exercise general common sense so that we don’t cause anyone else to be hurt by our actions. It is when we act unreasonably that we can get into trouble! If a plaintiff can prove unreasonable conduct, she can prove that Defendant breached his duty of reasonable care, which is often the hardest thing to prove in a negligence case. After all, reasonable minds may differ as to what is considered reasonable.

Luckily, courts have a method to help determine when Defendant’s conduct amounts to unreasonable conduct. It is called the “Learned Hand Test.” It is called this because it was first used by a judge named Learned Hand. It basically says that if the probability and gravity of harm outweigh the burden of protecting against the harm, the Defendant has acted unreasonably in failing to protect against the harm.

Think of it this way: Defendant has a swimming pool in her back yard. There is no fence around the pool or her yard and her neighborhood has lots of children in it. One of the neighborhood kids falls in the pool and drowns. The question becomes whether Defendant has breached her duty of care owed to that child by not installing a fence. When we apply the learned Hand Test, we first ask about the probability of harm. In this case, the probability of harm is high. There are lots of children in the neighborhood. Children are attracted to swimming pools. The probability of a child falling in and getting injured is very high.

Next, we look at the gravity of harm. If a child falls in a pool, he could drown. Therefore, the gravity of harm is great as the result could be death.

Finally, we look at the burden to protect against the harm and measure that against the probability and gravity of the harm. The cost of putting up a fence is very low compared to the risk of a child falling into the pool and drowning. Therefore, Defendant acted unreasonably by not putting up a fence and breached her duty of care to that child.

Of course, Plaintiff will also have to prove causation, which leaves us a topic for further discussion!

Products Liability Cases in Georgia

If a consumer is injured while using a defective product in Georgia, she may be able to recover for her personal injuries. There are several theories under which she may be able to win.

Negligence

The first theory of recovery to consider when someone is injured by a product is negligence. To prove negligence, the customer must show that the manufacturer or retailer owed her a duty of care, that they breached that duty, and that the breach caused the injury.

A manufacturer must use reasonable care when designing and manufacturing its product. It is not required to anticipate unusual possibilities or make a completely safe product. It is also not required to ensure the product’s safety. It will not be liable if it designs and manufactures the product with due regard for the circumstances and purpose for which the product will be used.

The manufacturer’s failure to warn is generally the most frequently encountered in negligence cases. That does not mean it must warn of any and all possible dangers, no matter how remote. Rather, a manufacturer must warn against dangers that are foreseeable.

The failure of the manufacturer to warn of foreseeable dangers or to use due care in the design or manufacture of its product is a breach of their duty of care. If a consumer is then injured as a result of that failure, the manufacturer will be liable for damages.

Strict Products Liability

Strict products liability is another theory upon which an injured consumer can recover. Georgia Statute section 51-1-11 imposes liability upon the manufacturer of a defective new product regardless of the amount of care exercised by the manufacturer. Courts will hold a manufacturer liable if the product “was not merchantable and reasonably suited to the use intended,” or if the product is defective at the time it leaves the manufacturer’s hands.

A product defect exists when the product has not been properly designed, manufactured, packaged, or accompanied by adequate warnings. Whether a product is defective must be considered in the overall context of the design, function, and intended use. The danger must not be obvious and liability does not extend to unforeseeable misuse or abnormal use of the product. Georgia courts have also found strict liability in cases where there was no adequate warning.

Express and Implied Warranty

Consumers injured by a product in Georgia may also be able to recover under theories of breach of either express or implied warranties, or both. If the seller makes a statement of fact about the quality character or title to goods at the time of sale, it can be considered an express warranty. Statements of opinion are not susceptible to factual proof and are therefore not considered express warranties. Implied warranties, including the implied warranty of fitness for a particular purpose and an implied warranty of merchantability accompany the sale of goods by law.