Nursing Home Abuse and Injury Cases in Georgia

Elderly abuse from negligent nursing home in Georgia.

A national, privately-owned nursing home chain advertised its services with glossy brochures, showing its smiling staff serving 5-star dinners to happy residents in immaculate dining halls.  Pictures of nurses out of central casting were seen providing “concierge” medical care to healthy residents in beautiful bedrooms.  The goal, of course, was to induce residents and their families to believe that top-notch service was provided.  Both private insurance and taxpayer-funded Medicare was happily accepted. 

In reality, residents who were unable to feed or care for themselves routinely went without adequate nutrition and basic healthcare. In one instance, a diabetic patient died because he was not given a snack by a poorly trained and overworked nursing assistant.  A subsequent lawsuit by Williams Elleby Howard & Easter attorneys revealed the chain had a pattern of staffing shortages and inadequately trained staff that repeatedly resulted in substandard care.  After fighting hard to obtain internal records, the chain was required to turn over emails and memos that showed the profit motive behind these staffing shortages. 

“[R]esearch findings consistently show higher staffing levels are related to higher quality of care,” However, “under current government prospective payment systems, nursing homes make choices on how to allocate their resources. About 70% of nursing homes are for-profit facilities with an orientation to maximizing profits for owners and shareholders.”  

Failure to Meet Nurse Staffing Standards: A Litigation Case Study of a Large US Nursing Home Chain .

Providing substandard care including minimum staffing for residents, especially to increase profits, is illegal. 

Under federal regulations, nursing homes are required to:

  • Provide nursing care to all residents on a 24-hour basis in accordance with resident care plans.
  • Have a “licensed nurse to serve as a charge nurse on each tour of duty… and licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”
  • The facility must meet or exceed a minimum of 3.48 hours per resident day for total nurse staffing including a minimum of 0.55 hours per resident day for registered nurses 2.45 hours per resident day for nurse aides; and
  • aides must be “able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”

Code of Federal Regulations, 42 C.F.R. § 483.35.

A good way to research whether a nursing home has a history of poor staffing or other problems is to look on the Medicare’s “nursing home compare” website.  Medicare.Gov   This site provides information on nursing homes by location and includes comparisons on the quality of care and staffing. 

In many states, including Georgia, a nursing home that hurts someone by failing to follow regulations is liable for negligence and negligence per se.  For example, in 2006, the Georgia Court of Appeals specifically held that violations of nursing home staffing regulations allowed a resident’s family to sue for harm that resulted from the violations because “It is obvious that as a resident of the nursing home owned by [Defendant, Plaintiff’s] father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint… were among those these same statutes and regulations were designed to prevent.”    McLain v. Mariner Health Care, Inc., 279 Ga. App. 410, 413, 631 S.E.2d 435, 438 (2006).

Some of the most important questions to ask when looking at a potential nursing home negligence or malpractice case are:

  • Did the harm result from a violation of a federal or state regulation;
  • Was there a pattern of such violations;
  • Was there a profit motivation behind the violations?

Nursing home cases can be complex and difficult to prove. Having an experienced lawyer who knows the federal and state regulations is important so that victims can understand their legal rights and options.

The experienced medical malpractice attorneys at Williams Elleby Howard & Easter, handle negligent nursing home cases throughout the State of Georgia. If you would like to discuss your case, call today to schedule a free consultation at 833-534-2542.

If you or a loved one has been harmed because a nursing home failed to properly staff and provide proper care, Attorney Marc Howard along with the Williams Elleby Howard & Easter team, can help you understand your personal injury claim and work to get you the compensation you deserve.

Georgia’s O.C.G.A. 9-11-67.1 Automobile Wreck Pre-suit Demand

Georgia’s O.C.G.A. 9-11-67.1 Pre-Suit Car Wreck Demands

Pre-Suit Demands in Auto Wreck Cases and Why They Are Important! A History on Georgia’s O.C.G.A. 9-11-67.1.

In almost every car wreck case it is important to send the at-fault insurance company a pre-suit demand. In Georgia, the law that controls pre-suit demands for car wrecks is found at O.C.G.A. § 9-11-67.1. 

This statute was first enacted in 2013 and set out the requirements needed to send a valid pre-suit demand in a car wreck case. 
Those requirements (or material terms) were as follows:

  1. State a time which such offer must be accepted, which shall not be less than 30 days
  2. The amount of the monetary payment
  3. The party or parties the claimant(s) will release if accepted
  4. The type of release, if any, the claimant(s) will provide to each releasee; and
  5. The claims to be released.

The code section also stated that the recipient could seek clarification regarding terms, liens, subrogation claims, medical bills, records, and other relevant information, and such clarification would not amount to a counteroffer.

This law was enacted in response to what were traditionally called “Holt demands.” These Holt demands were sent to insurance companies giving them typically no more than ten days to respond to a policy limits demand, along with other conditions the offeror deemed fit. Failure by the insurance companies to comply with Holt Demands would then lead to a bad faith claim against the insurance company for failing to pay the policy limits in a timely manner, and situations where insurance companies were potentially paying well above their policy limits for acting in bad faith by failing to settle per the conditions of the Holt demand. O.C.G.A. § 9-11-67.1 was enacted to bring clear rules to these demands.

Like most laws, once the initial statute was enacted there were some things that needed to be further refined. Thus, the law was amended in 2022, which modified the material terms and required clarity with what type of release was being offered (whether a full or limited release), and an itemization of what was to be provided to each releasee.

Some additional changes required:

  • The demand to include medical or other records in the offeror’s possession to allow the adjuster to evaluate the claim;
  • If a release was not provided in the demand, sending a proposed release by the adjuster was not considered a counteroffer;
  • Limiting the material terms of a demand to those listed in the code section; and
  • If payment was required by a certain day, that date could not be less than 40 days from the receipt of the offer.

The biggest impact of the 2022 amendment was confirming that the only material terms that could be included in the demand were those listed in the code section, and any other stated material term had to be agreed upon by both parties. It also allowed the recipient to provide a proposed release when accepting a demand, and that by doing so did not amount to a counteroffer.

In 2024, however, the statute was amended for a third time. Unlike the prior amendment, this amendment made some notable changes to the material terms. Specifically, the material terms were amended to include the following:

  • You must include a specific date by which such an offer must be accepted, which shall not be less than 30 days.
  • You must include a specific date by which payment shall be delivered, which shall not be more than 40 days from the offer.
  • A requirement that in order to settle the claim, the recipient shall provide the offeror a statement under oath regarding whether all liability and casualty insurance issued by the recipient that provides coverage or may provide coverage has been disclosed, along with a date in which such disclosure must be made, but not less than 40 days from receipt of the offer.

The newest amendment also clarifies that any disagreement with an immaterial term does not subject the recipient to a civil action from an alleged failure to accept an offer. However, seeking to modify any of the material terms would not be deemed a clarification.

Importantly, and as stated above, this type of demand only applies to death or injury resulting from a motor vehicle collision and must be sent prior to the filing of an answer. There are other types of demands that are sent in other personal injury cases, including premises liability, medical malpractice, and product liability cases, to name a few.

As you can see, this law has had some significant changes over the years, which is why it is important to consult with a knowledge personal injury attorney when you or a loved one has been injured in a car wreck.  In this video, Attorneys Joel Williams and Chase Elleby discuss the steps involved in settling a car wreck case to ensure you receive the compensation you deserve.

Williams, Elleby, Howard, & Easter serves clients throughout the State of Georgia. If you or a loved one suffered a personal injury as a result of a car wreck, the attorneys at Williams, Elleby, Howard, & Easter can help you understand what possible claims you may have and work to get you the compensation you deserve. To schedule a free consultation, call 833-534-2542 today.

Animal Bite Injuries

A dog with sharp teeth aggressively barking.

WHAT IS GEORGIA’S DOG BITE LAW?

In Georgia, there is a statute regarding injuries caused by animals, including dogs. This is found in O.C.G.A. § 51-2-7. According to the 2024 version of this statute, a negligent owner of a violent dog that causes unprovoked harm can be held liable for damages. Specifically, the statute states:

A person who owns or keeps a vicious or dangers animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leach by an ordinance of a city, county or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.

Dogs can be loyal and loving members of the family. But with ownership comes responsibility, and the potential for liability from a dog bite or attack if you are not careful. According to an article written by Peter Tuckel and William Milczarski that was published in 2020, dog bites are a common cause of emergency room visits in the United States each year.

Dog bites, as you could imagine, can cause serious injuries and even death. When dangerous or vicious dogs cause harm, or when dog owners negligently permit dogs to attack others, dog bite victims may be entitled to compensation for the damages and injuries they suffer.

Whether a dog bite claim will be successful depends on a number of factors and are what we like to call “fact specific.” If you have suffered an injury as a result of a dog bite or dog attack, it is important to understand the law and to be aware of your rights. Of course, it is always best to consult with an attorney as soon as possible.

Four elements dog bite victims must prove to win their claim in Georgia:

  1. Vicious propensity. A dog that has a history of aggressive behavior towards people, or has been involved in past incidences of biting, may be considered “vicious or dangerous” under the statute. This element is automatically met if a dog was required by law to be at heel or leashed and was instead running free. S&S Towing & Recovery, Ltd. v. Charnota, 309 Ga. 117 (2020). Most cities and counties have ordinances requiring dogs to be on a leash. For example, in Cobb County, Georgia, dogs must be on a leash not exceeding six feet in length when away from their home. In addition, you can prove vicious propensity if you can gather evidence of prior bites or attacks. This can be done by sending an open records request to your local animal control agency for any and all complaints or incident reports regarding animals at a specific address.
  2. Careless management. Letting a dog off-leash in public or otherwise allowing it to roam free around others could meet this element. If a dog is on its owner’s property, careless management could occur if an owner knows the dog is aggressive to guests yet fails to contain or control it. Careless management could also occur if the owner does not have control of the dog while on leash and knew, or should have known, the dog could lunge or attack. If you undertake to restrain a dog, and do so in a negligent manner, you can be liable for that dog attacking or biting someone else. Myers v. Ogden, 343 Ga. App. 771 (2017).
  3. Unprovoked attack. To meet this element, a dog bite victim must not have provoked the dog into attacking. Unlike other types of torts, the doctrine of comparative negligence will not apply in this circumstance. If a person provokes a dog into attacking by antagonizing it, a dog bite claim will be completely defeated. Teasing, kicking, yelling, throwing objects, and other antagonizing behavior toward a dog that results in an attack or bite will not be recoverable.
  4. Attack causes injuries. As with any personal injury claim, a dog bit victim must prove that any injuries sustained were caused by the dog bite or the attack. This can include an actual bite from the animal, or an attack where the bog chases someone off leash causing that person to fall and become injured. In the second scenario there would be no “bite” but the attack and behavior of letting a dog run off a leash led to the injuries.

The Statute of Limitations for Bringing Dog Bite Claims

Under Georgia law, you have two years from the date of the incident to bring a claim for a dog bite or attack. The two-year period begins the moment that the victim knows that they have been injured by a dog bite. In certain circumstances this two-year period can be “tolled” or delayed, for instance when a victim is unable to bring a lawsuit because of their injury or because the defendant prevented them from doing so. When bringing a claim, the injured party is almost always bringing the claim against the dog owner’s homeowner’s insurance policy. If the dog owner does not own a home, or live in a home where coverage applies, we would look to renters’ insurance to cover any potential claim.

I have handled many dog bite cases in my career, and everyone is different. As an example, a prior client was bitten on the leg by a dog while running on a sidewalk. Not only was the dog off leash and roaming the neighborhood, after an investigation, we discovered that the owner in question had many prior offenses with dogs escaping their property. This was enough to make an allegation for punitive damages. In another case, my client was bitten by a dog at a park while the dog was on a leash. However, the owner knew the dog would lung and bit and failed to properly control their dog which resulting in a serious bite to the face. Finally, in another example, a client was attacked by a god while playing in a neighbor’s yard when the adult supervising the children carelessly let the dog out of the house. The adult was aware the dog was aggressive and had been barking excessively prior to being let outside. As soon as the dog escaped from the house, they attacked our client’s child and drug her into the bushes. In each of these examples, we were able to seek justice on behalf of our clients and secure favorable settlements.

Contact Williams Elleby Howard & Easter Today for More Information

The dog bite personal injury attorneys at Williams Elleby Howard & Easter, are dedicated to vigorously representing personal injury victims throughout Georgia. If you have been bitten or attacked by a dog, the injury attorneys at Williams Elleby Howard & Easter can help you understand your rights and get you the compensation you deserve. Call Williams Elleby Howard & Easter, to schedule a consultation today at (833) 534-2542.

The Impact of Falling Objects: Legal Rights and Compensation

Man with both hands on head, looking straight at the camera.

According to the U.S. Bureau of Labor Statistic (BLS), approximately 2.8 million workers are injured on the job each year, and more than 5,000 are killed. Many of these accidents are caused by falling objects. In fact, the United States Department of Labor has labeled falling objects as one of construction’s “fatal four” types of accidents. If you or a loved one has been injured by a falling object at a work site, you should be aware of your legal rights and options. Williams, Elleby, Howard, & Easter is dedicated to getting accident victims the compensation they deserve. To schedule a free case evaluation, call 833-LEGALGA today.

Falling Object Injuries on Work Sites

Whenever work is being done on multiple levels, there is always the risk that debris will fall or objects will be dropped. Employers have a duty under OSHA regulations to maintain a safe work site and ensure that workers have the proper protective gear. For example, OSHA Standard 1910.219 provides a long list of requirements to guard against handheld machinery used in overhead work causing injury. While, OSHA Standard 1917.112 requires the use of toeboards around edges of walkways to prevent objects from rolling off and injuring people below. Workers have a right to request an OSHA safety inspection if they feel conditions are unsafe, and employers are forbidden from retaliating against workers that make such a request.

Ultimately, however, for workers covered by Georgia’s Workers Compensation Law, a determination of fault is ultimately irrelevant in most cases. This is because Georgia workers automatically receive benefits when they are injured on the job, regardless of who is at fault. However, compensation is also limited.

Georgia’s Workers’ Compensation Law

Workers’ compensation functions by providing workers injured on the job with automatic compensation for harm and with benefits if they become disabled. Workers’ compensation insurance also provides benefits to dependents if a worker dies as a result of a job-related injury. The tradeoff, however, is that workers are prohibited from bringing lawsuits against employers (or co-workers) if they suffer harm in the course and scope of their employment.

Determining whether workers’ compensation applies is often complicated. In the State of Georgia, any employer with three or more employees is required to carry workers’ compensation insurance. When jobs utilize contractors and subcontractors, it is often unclear at first whether a particular worker will be covered by the law. The experienced personal injury attorneys at Williams Elleby, help worksite accident victims navigate the law so that their rights are protected.

Non-Worker Victims of Harm

Non-workers are not covered by Georgia’s Workers’ Compensation Law. For instance, if a pedestrian strolling past a construction site is struck by a falling object, she is free to bring a negligence claim against the party or parties responsible for dropping the object. She could also bring a premises liability claim against the owner of the property where the injury occurred.

Premises Liability vs Negligence: Who is Responsible

When a non-worker is injured by a falling object, she can bring a claim against any responsible parties. Many times, the person who drops the object is not the owner of the property where the injury occurs. In this situation, an injured party could have claims against both the person who dropped the object as well as the property owner.

First, the claim against the person who dropped the tool would be a simple negligence claim. In pursuing this claim, a skilled attorney would examine whether the person who dropped the tool took reasonable precautions to guard against dropping the object. The attorney could look to OSHA standards that might apply to the jobsite in question. For instance, OSHA Regulations require that construction sites employee a number of fall protection measures when erecting or working on scaffolding.  The attorney could then analyze whether the negligent party properly complied with the regulations to show that the worker did not act reasonably while completing work at the site.

Examples of Overhead Work Protection Measures:

  • OSHA Standard 1926.105 requires the use of overhead safety netting when work is completed more than 25 feet above the ground.
  • OSHA Standard 1910.145 requires the use of warning signs to warn of the risk associated with falling objects on a job site.
  • OSHA Standard 1917-112(d) requires the use of toeboards, or raised edges, to prevent items from rolling off of the edge while working overhead.

Second, there could be a premises liability claim against the owner of the property where the injury occurred. Premises liability claims can be brought when property owners are at fault for failing to keep dangerous conditions off their property. O.C.G.A § 51-3-1 provides that a landowner must take reasonable steps to keep its premises safe. Again, a skilled attorney could use the OSHA Regulations to show that the landowner was aware that work was taking place and failed to ensure that the proper safety protocols were met to prevent injury to people walking below.

Damages in a Personal Injury Suit

The final step in the process is determining the dollar amount of the injured person’s damages. Georgia personal injury law is intended to fully compensate victims for their harm. Compensation from a personal injury lawsuit, also called damages, is intended to pay for things like medical expenses, lost wages, and pain and suffering. In cases where a defendant exhibited intentional or reckless conduct, punitive damages may be available. However, injury claims covered by the Georgia Workers’ Compensation Law will be strictly limited to the compensation permitted under that law.  Georgia Worker’s Compensation Law provides a specific award schedule that dictates how much a worker’s injury is worth.

However, when a non-worker is injured, the measure of damages is more fluid. A skilled attorney can utilize the injured party’s medical bills, along with evidence of missed time from work, and general pain and suffering to advocate for a more accurate measure of damages. The attorney is able to make specific arguments about how long it took for the injured party to recover. The length of recovery is important as the attorney can attach a dollar amount to the time spent recovering. Attorneys also rely on witness testimony and other evidence to paint a vivid picture of how the injury affected the injured party. This provides the jury with a detailed perspective of the injury and the suffering it caused.

Real World Experience  

A few years ago, we were contacted by a man, Mr. Smith, who sustained a skull fracture when a tool hit him in the head while he was working at a retail store. Upon further investigation, we learned that Mr. Smith’s employer sent him to clean the floors at the retail store. Mr. Smith walked into a closet to get some supplies and was struck in the head by a falling tool. Unbeknownst to him, a man from another company was climbing a ladder inside the closet and dropped a tool, which struck Mr. Smith in the head.

This workplace injury involved all three claims we have discussed in this article- a workers compensation claim, a premises claim, and a negligence claim. First, Mr. Smith was on the job when the injury occurred. Therefore, we brought a workers compensation claim to obtain the benefits afforded to Mr. Smith under Georgia’s workers compensation system. Secondarily, we brought a premises claim against the retail store where Mr. Smith was working for failing to keep its premises safe. Finally, we brought negligence claims against both the worker who dropped the tool for failing to exercise due care in transporting the tool up the ladder and his employer for failing to adequately train its employee.

During the litigation, we argued that all parties involved violated multiple OSHA regulations on the date of the incident. We used those rules to point out that each of the defendants could have taken relatively simple actions to prevent this catastrophic injury from occurring. For example, the retail store could have required workers to post a sign warning of overhead work taking place or the worker climbing the ladder could have utilized a rope and bucket method to raise his tools up the ladder. As a result, we were able to successfully prove that the store, the worker, and the worker’s employer negligently breached their duty of care to Mr. Smith.

We also relied on the medical opinions of Mr. Smith’s treating physicians to prove that the tool hitting Mr. Smith caused his injuries. These opinions were crucial in proving Mr. Smith’s damages. We relied on these records to highlight the significance of the trauma, the need for surgical repair of Mr. Smith’s neck, and the permanence of his injuries. Normally, we would take a deposition of the treating physicians to elicit testimony as to whether the incident in question caused our client’s injury. However, here we were able to rely on Mr. Smith’s medical records because they clearly stated that Mr. Smith’s injuries were caused by the tool hitting him on the head.

We spent hours investigating and researching these issues to make sure we painted a clear picture of the injury, liability, and damages involved with this case. As a result, we utilized this information to secure a significant settlement for Mr. Smith that would compensate him for his injuries.

For More Information, Contact Williams Elleby Howard & Easter

Worksite accidents can be devastating, particularly when caused by falling objects. Victims need the support of qualified and experienced legal counsel on their side. The experienced personal injury attorneys at Williams Elleby Howard & Easter work hard to get accident victims the compensation they deserve.

Located in Kennesaw, Georgia, Williams, Elleby, Howard, & Easter serves clients throughout the State of Georgia. If you or a loved one has suffered an injury at a work site due to a falling object, the attorneys at Williams, Elleby, Howard, & Easter can help you understand what possible claims you may have and work to get you the compensation you deserve. To schedule a free consultation, call 833-534-2542 today.

Beyond Jail Time: The Civil Impact of Drunk Driving in Georgia

A clear glass of liquor on ice beside a set of car keys and handcuffs on a wooden table.

Drinking and driving is deadly. According to the National Highway Traffic Safety Administration (NHTSA), every day 37 people die in drunk-driving crashes, that’s one person every 39 minutes. Because the effects of drinking and driving are often catastrophic, the laws in Georgia to keep its citizens safe and keep people from drinking and driving carry some serious consequences, both criminally and civilly. Simply put, criminal cases involve jail time and fines and are prosecuted by the government, whereas civil cases involve money and involve disputes between people or organizations.

What is considered drunk driving?

Under Georgia law, it is illegal for people to drive a motor vehicle is their blood alcohol concentration percentages are as follows:

  • 08% or higher, if they are twenty-one years old or older operating a passenger vehicle (O.C.G.A. § 40-6-391)
  • 04% or higher, if they are operating a commercial vehicle (O.C.G.A. § 40-6-391)
  • 02% or higher, if they are younger than twenty-one years old.

What are the criminal consequences?

The consequences for drinking and driving vary depending on the circumstances. But generally speaking, if you are caught drinking and driving, according to the Georgia Governor’s Office of Highway Safety:

First Offense

  • Possible jail time up to one year
  • Fine of $300 minimum, up to $1,000
  • License suspension of up to one year
  • 40 hours of community service, which is a mandatory minimum
  • $210 license reinstatement fee

Second Offense:

  • Minimum mandatory 48 hours in jail, possible 90 days to one year
  • Fine of $600 minimum, up to $1,000
  • License suspense of three years
  • Minimum 30 days of community service
  • $210 set license reinstatement fee
  • A mandatory clinical evaluation, and if indicated, completion of a substance abuse treatment program at the offender’s expense

Third Offense:

  • Minimum Mandatory 15 days jail time
  • Fine of $1,000 minimum, up to $5,000
  • License revocation for five years
  • Minimum mandatory 30 days community service
  • Violators name, photo and address published in local newspaper at violators expense
  • Declared as habitual violator
  • Mandatory clinical evaluation and, if indicated, completion of a substance abuse treatment program at offender’s expense.

What are the civil consequences of drunk driving?

In addition to the criminal consequences of driving under the influence, there can also be civil consequences if you cause a wreck and injure someone while driving under the influence of alcohol. The injured party has to prove that the at-fault driver was negligent in causing the wreck.

In order to prove negligence in a civil case, you have to prove “1) a legal duty to conform to a standard of conduct; 2) a breach of this duty; 3) a causal connection between the conduct and the resulting injury; and 4) damages to the plaintiff.” Johnson v. American National Red Cross, 253 Ga. App. 587, 591 (2002). If the Plaintiff can prove these elements by what’s known as the “preponderance of the evidence”, then the at-fault party will be financially responsible to the Plaintiff for the damages awarded by a jury.

Negligence per se is a legal theory wherein an at-fault party’s unexcused violation of a law creates a presumption that the defendant is negligent. It doesn’t prove the negligence – it only creates a presumption that the defendant is liable for negligence.

In a car wreck scenario where a person suffers injuries and the at-fault driver committed a DUI, there is a presumption that because the at-fault driver was driving drunk, they are then negligent for causing the wreck. In order to get this presumption it must be established that the at-fault driver was driving over the legal limit (this can happen when they plead guilty to the offense). Once that is established, the injured party can claim that because they violated the law, they are presumably negligence. At this point, the burden then shifts to the defendant, who must prove that they were not negligent in causing the wreck even though they were driving under the influence. Negligence per se is a powerful tool in proving the negligence of another because it creates a burden-shifting presumption.

Punitive damages for drunk driving!

With a DUI case, in addition to compensatory damages, the injured party can seek punitive damages from the at-fault driver. Punitive damages are damages awarded as a punishment or to penalize and deter the at-fault driver from engaging in the behavior that caused the injuries. Normally, punitive damages are limited to $250,000.00 in Georgia, but that is not the case if the at-fault driver is driving under the influence of alcohol or drugs. O.C.G.A. § 51-12-5.1. Being able to pursue punitive damages greatly increases the value of your civil case against the at-fault driver and their insurance company.

If you have been injured in a wreck due to the negligence of another, especially by someone who was driving under the influence of alcohol or drugs, you must find a lawyer who will aggressively fight on your behalf to ensure justice is sought from the wrongdoer and their insurance company. Contact the personal injury law firm of Williams Elleby Howard & Easter at 833-534-2542.  Not quite ready to call? Check out our YouTube channel for additional resources and information in our video covering alcohol and its effect on personal injury cases.

Georgia Slip & Falls: What To Do If You Slip & Fall On Ice Or Snow

Woman slips and falls on an icy driveway.

According to the CDC, unintentional falls are the leading cause of nonfatal emergency department visits in the United States. When temperatures drop, the risk of slip and fall incidents increases dramatically. Colder weather means that Georgians will encounter more icy staircases and frozen puddles on sidewalks. This increased risk poses potential legal challenges for property owners and victims alike. In this post, we will explore the laws surrounding slip and fall incidents in Georgia due to icy conditions.

Premises Liability in Georgia:

To determine who is responsible for a slip and fall on ice, we must first understand the basics of Georgia premises liability law. Georgia law holds landowners responsible for maintaining safe conditions on their premises. O.C.G.A §51-3-1 states that an owner of land who invites people onto their property must exercise ordinary care in keeping the premises and approaches safe. This means that property owners should take reasonable actions to guard against danger on their property.

Types of Visitors:

However, the steps an owner must take depends on the status of the injured person at the time of the injury. The law places different duties on a landowner depending on the category of person who is injured. When you walk onto someone else’s property, you are either an invitee, a licensee, or a trespasser.

  1. An invitee is a person who is invited onto the property by the owner for both parties’ benefit. An example of an invitee is a customer entering a business to make a purchase.
  2. A licensee is a person on a property solely for her own interest. For example, Georgia law considers a social guest to be a licensee. See Stanton v. Griffin,361 Ga. App 205 (2021).
  3. Finally, a trespasser is a person who enters another’s property without permission.  Interestingly, a person can be considered a trespasser even if they enter another’s property accidentally. See Crosby v. Savannah Electric Co., 114 Ga. App. 193 (1966).

Duty to Visitors:

Georgia law provides different rules for landowners depending on the type of visitor.  A landowner owes a duty of ordinary care to an invitee. See O.C.G.A §51-3-1. This means that a landowner must take reasonable steps to make sure his property is safe for any invitee that comes onto the property.

However, a landowner owes a lesser duty to a licensee. A landowner must not injure a licensee willfully or wantonly. Stanton v. Griffin,361 Ga. App 205 (2021). In other words, the owner is only liable to a licensee if he intentionally injures the guest or acts in an extremely reckless manner.

Finally, a landowner owes no duty at all to a trespasser. See Crosby v. Savannah Electric Co., 114 Ga. App. 193 (1966). Therefore, it is difficult, if not impossible, for a trespasser to recover for an injury sustained on someone else’s property.

Comparative Negligence:

We must also consider whether the injured party contributed to her injury. Georgia recognizes the doctrine of comparative negligence. This allows a jury to consider whether the plaintiff did anything wrong to contribute to the injury. The jury can then assign a percentage of blame to either party depending on how much each party contributed to the injury. See Clark v. Rush, 312 Ga. App. 333 (2011). Therefore, if the injured party is found to be partially at fault for not taking reasonable precautions, their recovery may be diminished.

Bringing a Claim for a Slip & Fall on Ice:

Now that we understand the law, let’s discuss how it applies to a slip and fall on ice. Georgia law says that property owners must take appropriate steps to make their property safe. Negligence on the property owner may arise if they fail to:

  1. Monitor weather conditions: Property owners should stay informed about weather forecasts, especially in the winter months, and take preemptive measures to address potential ice accumulation.
  2. Remove ice promptly: If ice does accumulate, property owners are expected to promptly remove or mitigate the hazard. This may involve salting walkways, clearing snow, or posting warning signs.
  3. Warn visitors: In situations where the removal of ice is not immediately feasible, property owners must adequately warn visitors about the hazardous conditions.

Failure to take these reasonable steps could result in the property owner being held responsible for injuries that occur when someone falls. However, what is reasonable depends on the status of the person who was injured:

  1. For an invitee, the property owner could be at fault for simply failing to recognize that the ice formed and failing to take steps to remove it.
  2. However, a licenseewould not be able to recover unless she could show that the property owner intentionally put water on the sidewalk to cause the fall.
  3. Finally, a trespasser likely would not have a claim for injury no matter the actions of the property owner.

After determining whether the property owner acted reasonably under the circumstances, we must also determine whether the injured party acted reasonably. In other words, did she do anything that contributed to her injury:

  1. Did she recognize that there was ice on the sidewalk and decide to walk on it anyway?
  2. Did she see a sign warning not to enter due to ice and enter anyway?
  3. Was she distracted and not paying attention to her surroundings, which caused her to slip?

These are just a few examples of situations that could cause a jury to assign fault to the injured party and lower the amount she would recover based on Georgia’s comparative negligence rule.

Proving Liability:

To successfully pursue a slip and fall claim in Georgia, the injured party must establish the following elements:

  1. Duty of care: The property owner owed a duty of care to the visitor.
  2. Breach of duty: The property owner failed to meet the standard of care by neglecting to address the icy conditions.
  3. Causation: The breach of duty directly caused the slip and fall incident and subsequent injuries.
  4. Damages: The victim suffered measurable damages, such as medical expenses, lost wages, or pain and suffering.

We work through the invitee, a licensee, or a trespasser analysis to establish the duty of care that the property owner owed to the injured party. This involves asking questions to determine why the injured party was on the property at the time of the fall so that we can determine which category the person falls into. Once we know whether the injured party is an invitee, a licensee, or a trespasser we are able to determine the duty owed.

Subsequently, to determine whether the property owner breached her duty we examine the facts of the incident to determine whether the property owner acted with the level of care required under the duty analysis. For example, in the case of an invitee, we would try to determine how the hazard came to be on the property and whether the property owner took reasonable steps to protect against the hazard.

The next step is to determine causation. This simply means, did the hazard (the ice on the sidewalk) cause the injuries that the injured party is complaining of. Sometimes, this is very straightforward- a person slips on ice, falls, and breaks her arm. It is easy to understand that the fall caused the broken arm. However, in other situations, it is more complicated. For example, a person slips and falls on ice. Four days later, he starts having back pain. A year after that he has back surgery. In this situation, it takes months of examining medical records and talking with doctors to determine whether the fall on the ice caused the need for back surgery.

Finally, we examine the extent of the injury caused, the amount of medical bills incurred, any lost wages from missing time from work, and the overall pain and suffering to determine the total amount of damages caused by the fall. The damages calculation involves adding up all the losses the plaintiff sustained to determine the full value of the case.

Conclusion:

Navigating slip and fall incidents in Georgia resulting from icy conditions requires a careful examination of the circumstances and a thorough understanding of premises liability laws. If you find yourself in such a situation, seeking legal advice from an experienced personal injury attorney can be crucial in ensuring your rights are protected and justice is served. Call Williams Elleby Howard & Easter at 833-534-2542 to speak with an experienced attorney about your case.  Be sure to check out our YouTube channel for our video on this topic and many more topics.

Understanding the Types of Damages You May Recover from Personal Injury Case in GA

A male doctor holding up an x-ray, pointing something out to a surprised female patient.

If you’ve been injured due to someone else’s negligence or misconduct, you may be entitled to compensation for the damage you have suffered. Personal injury cases aim to provide financial relief to victims and help them recover physically, emotionally, and financially. In this blog post, we will explore the various types of damages that can be recovered in a personal injury case. You can also check out this video for a more in-depth analysis of the types of damages available in personal injury cases:

Understanding these types of damages is crucial for evaluating your case’s worth and ensuring you receive fair compensation. Let’s dive in!

     1. Economic Damages:

Economic damages, also known as special damages, cover the tangible financial losses incurred because of your injury. These damages are relatively easy to quantify and typically include:

     a) Medical Expenses: Compensation for past and future medical bills, including hospitalization, surgeries, medications, therapy, rehabilitation, and necessary medical equipment. In Georgia, trial judges normally provide the following instruction to juries regarding awards for medical bills: In all cases, necessary expenses resulting from the injury are a legitimate item of damages. “As to medical expenses, such as hospital, doctor, and medicine bills, the amount of the damage would be the reasonable value of such expense as was reasonably necessary.” 1 Ga. Jury Instructions – Civil § 66.040

     b) Lost Wages: Reimbursement for income lost due to the injury, including missed workdays, reduced work hours, or potential loss of future earning capacity. Just like for medical bills, trial judges in Georgia normally instruct the jury about lost wages:

  • “Loss of earnings from the time of the alleged injury to the time of trial is a legal item of damages, and (the amount that may be recovered) (its measure) is the value of the earnings that the evidence shows with reasonable certainty the plaintiff has lost as a result of the injury. You may consider what the plaintiff was making at the time of the injury, what was made since the injury, the amount customarily paid in the locality for the kind of work the plaintiff does, and similar matters. There must be some evidence before you as to the plaintiff’s loss.” 1 Ga. Jury Instructions – Civil § 66.100
  • If you find that the plaintiff’s earnings will be permanently (reduced) (destroyed), lost future earnings–just like lost past earnings–are to be determined on the basis of the earnings that the plaintiff will lose, and there must be some evidence before you as to the amount of such earnings. 1 Ga. Jury Instructions – Civil § 66.201

     c) Property Damage: Compensation for the repair or replacement costs of damaged property, such as a vehicle in a car accident. The amount that should be awarded in the difference between the fair market value of the damaged property immediately before the injury and the fair market value o the damaged item just after the damage. 1 Ga. Jury Instructions – Civil § 66.020

    d) Other Financial Losses: Compensation for out-of-pocket expenses related to the injury, such as transportation costs, home modifications, or hiring help for daily tasks.

2. Non-Economic Damages:

Non-economic damages, also referred to as general damages, focus on the intangible losses that are more challenging to assign a specific monetary value. These damages are subjective and vary from case to case. Common types of non-economic damages include:

     a) Pain and Suffering: Compensation for physical pain, discomfort, and emotional distress resulting from the injury. This includes factors like chronic pain, anxiety, depression, or loss of enjoyment of life. Georgia judges typically provide the following instructions to juries concerning pain and suffering damages:

  • “Pain and suffering is a legal item of damages. The measure is the enlightened conscience of fair and impartial jurors. Questions of whether, how much, and how long the plaintiff has suffered or will suffer are for you to decide. Pain and suffering includes mental suffering, but mental suffering is not a legal item of damage unless there is physical suffering also. In evaluating the plaintiff’s pain and suffering, you may consider the following factors, if proven: interference with normal living; interference with enjoyment of life; loss of capacity to labor and earn money; impairment of bodily health and vigor; fear of extent of injury; shock of impact; actual pain and suffering, past and future; mental anguish, past and future; and the extent to which the plaintiff must limit activities.” 1 Ga. Jury Instructions – Civil § 66.501
  • “If you find that the plaintiff’s pain and suffering will continue into the future, you should award damages for such future pain and suffering as you believe the plaintiff will endure. In making such award, your standard should be your enlightened conscience as impartial jurors. You would be entitled to take into consideration the fact that the plaintiff is receiving a present cash award for damages not yet suffered.” 1 Ga. Jury Instructions – Civil § 66.503

     b) Emotional Distress: Compensation for psychological trauma, mental anguish, and emotional suffering caused by the accident or injury.

     c) Loss of Consortium: This is a category of damages awarded to the spouse for the loss of companionship, affection, or intimate relations resulting from the injury. In Georgia, a married person has a right to recover for the loss of consortium, sometimes called loss of services, of the spouse. The services the law refers to are not only household labor but also society, companionship, affection, and all matters of value arising from marriage. There does not have to be any direct evidence of their value, but the measure of damages is their reasonable value, as determined by the enlightened conscience of impartial jurors taking into consideration the nature of the services and all the circumstances of the case. 1 Ga. Jury Instructions – Civil § 66.400

     d) Disfigurement or Scarring: Compensation for any visible marks, scars, or permanent disfigurement resulting from the accident or injury.

3. Punitive Damages:

Punitive damages, though less common, may be awarded in cases where the defendant’s conduct was particularly reckless, intentional, or malicious. These damages aim to punish the defendant and deter similar behavior in the future. However, their availability and limits vary depending on the jurisdiction and the circumstances of the case.

In the State of Georgia, punitive damages awards are governed by O.C.G.A. § 51-12-5.1. and are capped at $250,000.00 in most cases. Reid v. Morris, 309 Ga. 230, 234 (2020). Punitive damage awards are not subject to the statutory cap in cases where the defendant acted or failed to act while under the influence of alcohol or drugs. O.C.G.A. § 51-12-5.1(f).

4. Wrongful Death Damages:

In cases where a personal injury results in death, certain damages may be recoverable through a wrongful death lawsuit. Under the laws of the State of Georgia, wrongful death damages should reflect the “full value of the life of the decedent as shown by the evidence.” Brock v. Wedincamp, 253 Ga. App. 275 (2002).

In a personal injury case, understanding the types of damages you can recover is essential for assessing the potential compensation you may be entitled to. While economic damages cover the tangible financial losses, non-economic damages account for the intangible impact on your quality of life. Punitive damages and wrongful death damages serve specific purposes in cases involving severe misconduct or fatal injuries.

Call Williams Elleby Howard & Easter today to consult with an experienced personal injury attorney.  We will help you navigate the complexities of your case and ensure you receive fair compensation for the damages you have suffered.  833-LEGAL-GA.

Open Records Request in Georgia

A collection of words including: Evidence, Require Proof, Witness, Legal Trial, Law, Hearsay, Testimony, etc.

What is an Open Records Request, and why is it important for my case?

One of the first and most important steps in getting your personal injury case started, is to begin by obtaining all evidence and supporting documents. This is done by submitting an Open Records Request.

The Georgia Open Records Act states that records maintained by most government agencies, or private companies carrying out government functions, are open to the public and subject to inspection at a reasonable time and place.

This Act allows citizens and law firms to send requests to government agencies in order to obtain any evidence that may build a stronger case for an injured party.

What documents are requested through an Open Records Request?

When dealing with a car wreck case, some of the documents that are obtained through Open Records Requests are:

  1. 911 calls and CAD reports
  2. Accident Report
  3. Police Dash and Body Cam Footage from the responding police department
  4. Photographs
  5. Citations (traffic ticket) and the disposition of those citations.

For Premises Liability or Negligent Security cases, it is helpful to request a Crime Grid to get an idea of a history of past incidents at a particular location or area.

In cases where an injured party has suffered from a dog bite, an Open Records Request may be submitted to the local animal control agency to determine if a particular dog or location has had similar issues in the past.

All of these documents are extremely helpful and important in order to get started with a proper case investigation.

How do you submit an Open Records Request?

The first step in submitting an Open Records Request is to determine where you should send the request. E-911 Communication Centers, Police Departments, Clerk’s Offices, and Animal Control each are responsible for maintaining records and documentation that are accessible to the public. Therefore, you will need to determine which governmental agency is in possession of the documents you are wishing to obtain. Each County, State and City agency will have a different process for how they handle and fulfill requests.

Some departments will have an online portal in which you are able to submit your request, while others may have their own specific form to fill out and submit via mail, fax or email.

When submitting a request, it’s important to include any and all helpful information in order to help the agency to locate the documents you are requesting, such as dates, names, addresses, report numbers, etc.

Why are these supporting documents so important?

When submitting a demand to the insurance company or filing a lawsuit in order to settle your personal injury case, it is important to provide the insurer with ample evidence to substantiate your claim.

For example, if you are involved in a rear-end car wreck and the at-fault driver is issued a citation for following too closely, providing a copy of the disposition of a citation with a guilty plea shows the at-fault driver is admitting their negligence.

For cases involving dog bites, premises liability or negligent security, previous incidents help build a stronger case by showing the at-fault party was aware of a danger and did not act reasonably to remedy the danger.

What to expect once my Open Records Request has been submitted.

Once your request has been submitted, most Georgia agencies will have 3 business days to respond to your request and notify you the request was received.  Typically, they will provide you with a request number and the contact information of who is handling your request.

It is important to remember an agency may not be able to release all requested documents right away. If you have a car wreck case and the criminal case is still pending with the at-fault driver’s citation or arrest, or if the police department is still conducting their investigation, they will not be able to release all requested materials until the investigation or criminal case file is closed.

Always be sure to have a follow up system in place in order to ensure your request is fulfilled.

Written by Paralegal Kyle McManus

Motorcycle Wrecks

motorcycle accident injured attorney

Motorcyclists face unique risks every time they get on the road. Drivers often fail to pay attention to motorcyclists or aren’t aware of safety rules regarding motorcycles on the roads. When motorcycle wrecks occur, the consequences are usually most detrimental for the cyclist.

The personal injury attorneys at Williams Elleby Howard & Easter understand motorcycle accident cases and help accident victims get the personal injury compensation they are owed. If you have been in a motorcycle accident and would like to discuss your case, contact Williams Elleby Howard & Easter online or call 833-LEGALGA to schedule a free case evaluation today.

Motorcycle Accident Facts and Statistics

According to the National Highway Traffic Safety Administration (NHTSA), there were 5,014 motorcyclists killed in motor vehicle crashes in 2019, with motorcycle accidents accounting for 14% of all traffic fatalities. In Georgia, there were 93 fatal motorcycle accidents. Of those 93 killed riders, 16% were not wearing a helmet.

Multiple studies have proven the efficacy of wearing a helmet. The NHTSA has calculated that wearing a helmet can dramatically increase a motorcyclist’s chances of surviving an accident. According to the CDC:

  • Helmets saved approximately 1,859 lives in 2016.
  • Each year, the United States could save more than $1billion in economic costs if all motorcyclists wore helmets.
  • Helmets reduce the risk of death by 37% for motorcyclists and 41% for their passengers.
  • Helmets reduce the risk of head injury by 67%.

Georgia Law

All vehicle drivers and motorcycle riders have a duty to use reasonable care when on the road. If a driver or rider fails to meet this standard of care and causes an accident, injured victims are entitled to compensation. Determining whether a party was negligent or in breach of this standard requires a careful analysis of the facts. A presumption of negligence is created in Georgia when a driver or rider commits a traffic violation by violating one of Georgia’s “rules of the road.”

Motorcyclists generally must follow the same rules as all other motor vehicle operators, but there are some special rules that apply specifically to motorcycles. Motorcyclists are permitted to use a full lane of traffic, and two motorcycles are permitted to ride side-by-side in one lane. Motorcyclists are not allowed to pass a vehicle in the same lane of traffic, and riding between lanes of traffic (“lane splitting”) is prohibited in Georgia. Motorcyclists should also remember that Georgia law requires motorcyclists to wear a helmet.

Injured in a Motorcycle Accident? Call Williams Elleby Howard & Easter Today.

The experienced personal injury attorneys at Williams Elleby Howard & Easter are dedicated to getting accident victims the compensation they deserve. If you or a loved one has been in a motorcycle accident, call Williams Elleby Howard & Easter at 833-LEGALGA to schedule a free consultation today.

The Georgia Recreational Property Act

Georgia recreational property act

Fall is the perfect season for spending time outdoors with family, especially in the beautiful state of Georgia. Camping, hiking, fishing and hunting are just a few popular outdoor activities that Georgia residents enjoy doing. However, few people actually own land that can be used for such purposes. Instead, most people use public land or use private land that has been made available to the public.

Great places to spend time outdoors in the North Georgia area include:

Great places to spend time outdoors in the South Georgia area include:

When someone in Georgia suffers an injury on land that has been made available for recreational purposes, however, the Georgia Recreational Property Act (GRPA) bars the injured person from suing the landowner in most cases.

The purpose of this law is to encourage landowners to make their land available for recreational activities. Without the GRPA, many landowners would close off their land to the public to eliminate their risk of liability, and in doing so cut millions of people off from the ability to enjoy their favorite outdoor activities.

Activities Covered by the GRPA

Only land made available for recreational purposes is covered by the law. Several notable activities, such as cycling and running, are not actually covered by the law. The law strictly defines “recreational purposes” as:

  • Hunting
  • Fishing
  • Swimming
  • Boating
  • Camping
  • Picnicking
  • Hiking
  • Pleasure driving
  • Nature study
  • Water skiing
  • Winter sports
  • Viewing or enjoying historical, archeological, scenic, or scientific sites

Exceptions to the GRPA

There are two major exceptions to the GRPA that landowners and outdoor enthusiasts should be aware of. The GRPA does not apply when there has been a “willful or malicious failure” of the land owner to guard people against a dangerous condition. Therefore, landowners that make their land available to the public still have a duty to take action to prevent harm when they are aware of a dangerous condition on their property.

The GRPA also does not apply when a landowner charges a fee for the use of the land. Landowners should remember that they forfeit their immunity under the GRPA if they charge any fee in exchange for permission to use their land; but if the fee is collected for some other purpose, the GRPA will still apply. For instance, if a land owner profits by selling goods on the same property, the GRPA will still provide immunity despite the fact that they are making money as long as the purchases are not required in order to use the land.

For More Information, Contact Williams Elleby Howard & Easter

While participating in outdoor activities is a fun way to spend your time, injuries may happen. If you suffer an injury while doing a recreational activity, or if you are a landowner making your property available to others for recreational purposes, it is important to be aware of the Georgia Recreational Property Act and to protect your legal rights accordingly.

The experienced legal team at Williams Elleby Howard & Easter has deep knowledge of all aspects of Georgia tort law and represents clients in personal injury cases all throughout the state of Georgia. If you have suffered a personal injury and would like to discuss your case, contact Williams Elleby Howard & Easter today at 833-LEGALGA to schedule a free consultation.