Pedestrian Accidents in Georgia: Statistics, Legal Insights, and Safety Tips

Who’s At Fault in a Georgia Pedestrian Accident?
Understanding Fault and Proving Liability 

Between 2018 and 2022, Georgia was the ninth (9th) most deadly state for people walking. Georgia averaged 2.66 deaths per 100,000 people per year. Given this grim statistic, is it important to understand how Georgia law determines who is at fault after being struck by a vehicle while walking.

There are four main situations where a pedestrian can be injured by a motor vehicle:

      1)  while crossing a street inside a crosswalk;
      2)  while crossing a street outside of a crosswalk;
      3)  while walking on a sidewalk or along the edge of a roadway; and
     4)  while walking through a parking lot.

It is important to address each category separately as the law is different for each.

What is Georgia’s Law for Pedestrian Accidents Occurring Inside a Crosswalk?

A driver must stop for a person crossing in a crosswalk if the pedestrian is within the lane the driver is driving or immediately approaching that lane. Further, a pedestrian must not enter the crosswalk when an approaching vehicle is so close that the vehicle would be unable to stop in time. Pedestrian accidents that occur in a crosswalk are governed by O.C.G.A § 40-6-91, which states that the driver of a vehicle must stop and yield to any pedestrian who is walking on the half of the roadway on which the driver is driving or turning onto. Further, the driver must stop if the pedestrian is approaching the lane in which the driver is driving. Finally, the statute makes it illegal for a pedestrian to dart into a crosswalk in front of an approaching vehicle.

STOP for a pedestrian in a crosswalk when the pedestrian is anywhere on your side of the road.  Side of the road means all lanes of traffic going in one direction.

STOP for a pedestrian in a crosswalk when the pedestrian is approaching and in the lane next to your side of the road.

Before turning right or left on a green light, STOP for pedestrians.  They have the right of way.

O.C.G.A § 40-6-91 attempts to place responsibility on both the driver and the pedestrian to act responsibly when approaching an intersection. In short, the law says that a driver should stop for any pedestrian already in the roadway or approaching the driver’s lane of travel, while a pedestrian should not run out in front of an approaching vehicle.

O.C.G.A § 40-6-22 clarifies when pedestrians can enter a crosswalk at intersections with special pedestrian-control signals. We have all seen the signals at crosswalks that say “WALK’ and “DON’T WALK”, but there has been some confusion over what the flashing “DON’T WALK” means. Obviously, “WALK” means that pedestrians can enter the crosswalk. O.C.G.A § 40-6-22 requires that no pedestrian enter a cross walk when a signal exhibits either a solid or flashing “DON’T WALK.” The flashing “DON’T WALK” means that any pedestrian already in the crosswalk should continue to cross to the sidewalk or safety island, but no other pedestrian should enter the crosswalk until the next “WALK” signal.

What is Georgia’s Law for Pedestrian Accidents Occurring Outside of a Crosswalk?

The analysis of a crash occurring outside a crosswalk is governed by O.C.G.A § 40-6-92. This section is a little more complicated than the previous code section. First, § 40-6-92 (a) requires that when a pedestrian is crossing a road somewhere other than at a crosswalk, he must yield the right of way to all vehicles upon the roadway unless he has already entered the roadway. This is similar to the crosswalk code section in that a pedestrian cannot dart into traffic in front of a vehicle that has no time to avoid striking the pedestrian. § 40-6-92 (b) states that if a pedestrian tunnel or overhead bridge is present, and the pedestrian chooses to not use it when crossing the road, then he must yield the right of way to all vehicles present on the roadway and only cross once the road is clear. Finally, § 40-6-92 (c) requires that anytime a person intends to cross a road between two traffic-control signals (red lights), that person must utilize one of the crosswalks provided at the red light. The diagram below illustrates the three different scenarios that can arise when crossing outside of a crosswalk.

There is a common misconception that it is considered “jaywalking” whenever a pedestrian crosses a road outside of a crosswalk. However, as O.C.G.A § 40-6-92 and diagram above point out, this is not the case. If a pedestrian crosses between two red lights without using a crosswalk, he is violating the law. Yet, if he crosses a road anywhere else, then he is not violating the law. Nevertheless, all pedestrians must still use caution to not enter the roadway in an unsafe manner or dart out in front of oncoming traffic. Once a pedestrian has entered the roadway and established himself within the lane of travel all oncoming vehicles on his side of the road must yield to the pedestrian.

What is Georgia’s Law for Pedestrian Accidents Occurring While Walking on a Sidewalk or Along the Side of a road?

If a pedestrian is struck by a vehicle while walking on a sidewalk (not crossing a road), then the driver of the vehicle is almost certainly at fault. A driver who leaves the roadway and strikes a pedestrian would likely be found in violation of O.C.G.A. §40-6-48, which requires all vehicles to be driven within a single lane. This violation is commonly known as Failure to Maintain Lane. The driver would also likely be a violation of a litany of other statutes related to keeping proper control of the vehicle.

However, there are more rules involved for pedestrians walking along the side of a roadway and not using a sidewalk. First, O.C.G.A. §40-6-96 requires all pedestrian to use a sidewalk if one is present. When there is not a sidewalk present, but there is a shoulder available, then Georgia law requires all pedestrians to walk along the shoulder of the road as close to the outside edge as possible. Finally, when there is no shoulder or sidewalk available, pedestrians must walk as close as possible to the outside edge of the roadway and, on any two-lane roads, they must always walk on the left-hand side towards the flow of traffic. The statute also requires that all pedestrians walking along the roadway yield the right of way to all vehicles driving on the roadway.

What is Georgia’s Law for Pedestrian Accidents Occurring in a Parking Lot?

There are no specific laws in Georgia that apply to a pedestrian crash that occurs in a parking lot. Parking lots are private property; therefore, Georgia’s traffic laws do not apply. As a result, Georgia’s ordinary negligence laws apply in determining fault in these types of cases. Generally speaking, drivers should expect that people will be walking in a parking lot; thus, all drivers should exercise caution and lookout for pedestrians while navigating a parking lot. If a driver fails to keep a proper lookout and strikes a pedestrian, then he is likely at fault for the crash. However, should a pedestrian dart into the path of a vehicle, that pedestrian would likely be found to be at fault.

Who’s At Fault When a Pedestrian Is Hit By a Car?

In most cases, the person who violates a statute is at fault for a crash. We have discussed the law for each common type of pedestrian crash. In each case, Georgia law provides rules for both pedestrians and drivers. The person who violates a Georgia statute is usually found to be at fault under the doctrine of negligence per se. This means that when a person violates a statute, they are automatically considered to have breached their duty of care and are therefore negligent as a matter of law. However, Georgia’s ordinary negligence law also applies, which attempts to weigh how a reasonable person would act under similar circumstances to determine who acted unreasonably and was, thus, at fault for the crash.

When a pedestrian crash occurs, it is vital to preserve as much evidence from the crash scene as possible. This evidence could include statements from witnesses; photographs of damage to the vehicles or surrounding property; photographs of skid marks on the road; or video of the crash from nearby surveillance cameras. This information is necessary to determine which statutory framework applies to the crash and to help paint a picture of how the crash occurred for attorneys, insurance companies, and future jurors. Many times, the parties involved will have varying accounts as to whether the pedestrian darted into traffic or exactly what lane the pedestrian was in when the impact occurred. Evidence from the scene is the only way to provide a definitive answer as to what occurred. Without this information, the case becomes a word versus word situation that makes it virtually impossible for anyone to determine liability.

A Real-World Example of a Pedestrian Accident Claim

I was contacted by the wife of a man who was struck by a vehicle while crossing a crosswalk at the exit of a gas station. There was a question as to whether the man had stepped into the crosswalk in front of the moving vehicle or whether the man was established in the crosswalk and the vehicle failed to stop. I immediately went to the scene to see what evidence could be preserved. Upon arrival there were no skid marks present due to the low-speed nature of the crash, and I had been told there were no witnesses. However, as I walked the area, I noticed that the gas station’s surveillance camera was pointed directly at the intersection. I went inside and the clerk was nice enough to let me view the footage.

Obviously, video footage of the crash is the best type of evidence in this situation. The footage showed the car stopped at the crosswalk as the man approached, appearing to yield to the on-coming pedestrian. Then, after the man was halfway thought the crosswalk, the car accelerated forward striking him and knocking him to the ground. It was clear that the driver had stopped at the intersection, became distracted by something else, and never looked forward before accelerating. Without the video footage it would have been impossible to determine the truth as to what happened because the driver claimed the man stepped into the intersection unexpectedly and she had no time to stop and, due to the nature of his injuries, my client never had the chance to tell his side of the story. The footage proved to be the answer as to who was at fault.

For those injured in a pedestrian accident, Georgia law provides a means to seek compensation, but a thorough investigation and strong evidence are essential to proving the case. 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 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 in a pedestrian crash, 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 404-389-1035 today.

What are Georgia’s Car Seat Laws?

Child sitting in front facing car seat with a thumbs up.

What Are Georgia’s Car Seat Laws?

Georgia has specific laws that require certain car safety seats for children. Children’s lives are precious, priceless and irreplaceable, so of course you want to protect them in every way you can. One of the ways that you can ensure your child’s safety is by utilizing the proper car seat every time you put them in a vehicle. However, it can be tricky to know what car seat your child needs. Today we will discuss what Georgia law tells us about your child’s car seat needs. Georgia has a statute, O.C.G.A. 40-8-76, which lays out child safety seat requirements. Georgia’s Car Seat Safety Statute is a primary law rather than a secondary law, meaning that you can be pulled over and cited for a violation, even if you have not committed another traffic violation.

Where Should My Child Be Seated in The Car?

First and foremost, children under the age of 8 should always be in the back seat as required by Georgia law. It is recommended that children under the age of 13 ride in the back seat. All children under the age of 8 must be seated in the back seat in a proper safety seat based on their age, height and weight. Motor vehicle crashes are the number 1 cause of death of children in the US age 14 and under. Children seated in the front have a 40% to 70% higher risk of injury or death than children seated in the back. The linked study indicates that the center rear seat is the safest, with a risk reduction of 9%-24%. The reason that the center rear seat is the safest is because it is the position in the vehicle where the passenger is least likely to suffer an airbag injury or fatality. Children in the front seat are more likely to suffer injury or death caused by airbag deployment.

Which Car Seat is Right for My Child According to the Law?

Every child is different and Georgia laws account for that. Let’s look at age, weight and height requirements for child safety seats.

Georgia Law on Car Seats for Newborns and Infants:

You want to make sure your infant is protected in a rear-facing car seat until they are over the age of one year AND over 20 pounds. If your one-year-old is not yet 20 pounds, keep them in a rear-facing seat at least until they reach that milestone. It is recommended to keep your child rear-facing as long as possible. Even if your child is over 20 pounds, you may keep them in a rear-facing seat as long as that seat is rated for their weight and height per the manufacturer’s instructions.

Rear facing seats have harness-type straps that go over the head and should fit snuggly across the shoulders and chest. Some of these rear facing seats are designed to be rear facing only, while others are convertible models that can be adjusted to suit your child’s needs as they grow. Rear facing only seats usually come with a base that stays in the car, and the seat itself clicks onto the base. This makes it easier to transport your child to and from the car and also helps to ensure that the seat stays properly installed in your vehicle.

Georgia Law on Car Seats for Toddlers (One to Three Years):

Once your infant has reached one year AND 20 pounds, you can then transition them to a forward-facing car seat with a harness if you choose to do so. Just like the rear-facing seats, these front facing seats have harness-type straps that go over the head and should fit snuggly across the shoulders and chest. Your child should remain in a forward-facing seat with a harness until they are at least four years old AND over 40 pounds. Again, safety is our number one priority, so even if your child is over the age of four and over 40 pounds, you may choose to keep them restrained by a harness in a rear or front facing seat so long as the seat is rated for their weight and height per the manufacturer’s instructions.

Georgia Car Seat Laws for Young Children (Four to Eight Years):

Finally, your child is ready to graduate into a big kid booster seat! This means they have reached age four and are over 40 pounds. Your child should remain in a booster seat until they have reached the height of 4’9”. Children using booster seats are 59% less likely to be injured in a crash than those using a seatbelt alone, per the Georgia Department of Highway Safety. In this age range, children should remain in the back seat.

Children under 4’9” cannot safely sit in a car’s seat with the seatbelt alone, because the seatbelt will not fit them properly. The purpose of the booster seat is to position the child and the seatbelt so that your child is properly secured. Some of these seats have high backs, while some of them are backless. High-back booster seats are for smaller children, while the backless seats are for taller children.

Eight to Eighteen Years:

Once your child has reached the height of 4’9”, they may graduate from the booster to a regular car seat with seatbelt. Once your child reaches the age of 8, he or she may ride in the front seat, with either a booster, or without once they meet the height requirement. It is important that the seatbelt fit the child properly. The lap belt should sit snugly across the upper thighs (not the stomach), and the shoulder belt should rest snugly across the chest (not the neck or face). Your child should be tall enough to sit in the seat with their back to the seat and their knees bent over the edge of the seat comfortably. Your child needs to be able to maintain this seat position throughout the entirety of your trip, otherwise, they need to remain in a safety seat.

How Can I Be Sure My Child’s Safety Seat is Properly Installed?

According to a 2002 study, 81 percent of children are incorrectly restrained when traveling in a vehicle. In Georgia, you can go to your local fire department or any of the other locations linked below to learn how to properly install a car seat.

Georgia Department of Highway Safety’s list of Child Safety Seat Fitting Locations.

A Child Passenger Safety Technician (CPST) can also help you properly install your child’s car seat.

Child Safety Seat Tips:

  • When the child is seated in a seat with a harness, the retainer clip at the top of the harness should sit at armpit level.
  • Harness straps should be flat and untwisted and should be adjusted snugly.
  • Lap belts should be fitted low and snugly across the hips.
  • Shoulder belts should not sit across the face or neck, and should never be behind the child’s arms or back.
  • Make sure your child’s safety seat is correctly rated for their height and weight per the manufacturer’s instructions. Always follow the manufacturer’s instructions for your child’s safety seat.
  • Do not use a secondhand safety seat or a seat that has been in a collision or has been recalled. The National Highway Traffic Safety Administration has a tool that allows you to search and see if your child’s seat has been recalled. It is also important to register your car seat! Complete the registration that comes with your child’s car seat to receive notifications if the seat is ever recalled.
  • Your child should not wear a large or puffy coat when in a safety seat, as this can prevent proper fitting of the harness, shoulder or lab belts. We’ve included a link to some tips to help keep your child warm and safe in the winter months while on the road.
  • Car seats should be used for travel only. Do not allow your child to remain strapped into a car seat outside of the vehicle. This practice has resulted in unfortunate infant deaths. Car seats are not a replacement for cribs or bassinets.
  • Do not use a seat that is too old, or has any visible damage, such as cracks or missing parts.
  • Be a role model! Always wear your seatbelt (It’s the law, after all!) and help your child build the healthy habit of always buckling their seat belt when on the road. Remember, click it or ticket!
  • Never leave your child unattended in or around a vehicle.

Your child’s safety is your highest priority as a parent. Ensuring that they are properly restrained every time you drive is the best way to keep your kids safe on the road. We have linked a recent Car Safety Seat Product Listing to help you choose the seat that is right for your child.  For more child passenger safety information, please visit the Georgia Governor’s Office of Highway Safety website.

Failure to Warn Claims in Georgia

Product Recall problem warning signage for production industry.

In Georgia, a “failure to warn” claim arises when someone is injured or suffers damages due to a dangerous condition on a property or a defective product. This type of claim can arise in product liability cases where a product was sold without proper warnings about potential risks, and in premises liability cases where a property owner fails to warn visitors about known dangerous conditions on the property. In both scenarios, injured parties can seek compensation by proving that the responsible party was aware of the danger, had a duty to provide adequate warnings, and failed to do so resulting in the party’s injury. Below, we’ll explore failure to warn claims in Georgia, focusing on both premises and product liability cases, the elements of a successful claim, and recent trends in Georgia’s legal landscape.

What Is a Failure to Warn Claim?

A failure to warn claim arises when an individual is injured because they were not adequately informed of a foreseeable danger associated with a product or property. The basis for these claims is the notion that people have the right to be warned of any potential risks they may face so they can make informed choices about whether to proceed.

  1. Product Liability Cases: In the context of product liability, failure to warn claims are brought when a manufacturer or distributor neglects to provide adequate warnings or instructions about the risks of using their product. For example, a pharmaceutical company may be held liable if it fails to inform consumers of dangerous side effects associated with a drug.
  2. Premises Liability Cases: In premises liability, failure to warn claims apply to property owners who do not alert visitors to hazards on their property, such as wet floors, steep staircases, or other dangerous conditions. For instance, a grocery store may be liable if it fails to put up a wet floor sign and a customer slips and falls.

What are the Elements of a Product Liability Failure to Warn Claim in Georgia?

In Georgia, as in many other states, certain elements must be established to successfully bring a product liability failure to warn claim. These elements include:

  1.  Duty to Warn: The defendant (product manufacturer or distributor) has had a duty to warn the plaintiff about the risk. This means they were in a position to know about the risk and were responsible for informing others about it. See, Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1995).
  2. Breach of Duty: The warnings provided were either nonexistent, insufficient, or unclear, leading the plaintiff to be unaware of the danger. A breach occurs by “(1) failing to adequately communicate the warning to the ultimate user or (2) failing to provide an adequate warning of the product’s potential risks.” Key Safety Sys. v. Bruner, 334 Ga. App. 717, 719 (2015).
  3. Causation: The lack of warning must be directly linked to the injury. “A mere possibility of such causation is not enough.” Blondell v. Courtney Station, 300 LLC, 362 Ga. App. 1, 7 (2021). In other words, the plaintiff must show that the harm could have been prevented had they been properly warned.
  4. Foreseeability: The defendant must have been aware or reasonably could have been aware that the risk existed and that it posed a danger to users. See, Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 75 (1995).
  5. Damages: Finally, the plaintiff must show that they suffered actual harm or injury as a result of the lack of warning.

Each of these elements must be met to establish liability in a failure to warn case.

Example Cases of Product Liability Failure to Warn

  1. Medications and Medical Devices: Numerous failure to warn cases related to pharmaceuticals are filed in Georgia every year. For instance, if a drug manufacturer fails to disclose severe side effects that could occur with their product, they could be held liable if a consumer suffers those side effects and had no prior warning. See Swinney v. Mylan Pharmaceuticals, Inc. et al. 
  2. Industrial Machinery: In cases involving industrial equipment, failure to warn claims arise if the manufacturer does not provide an adequate warning as to the dangers presented by using the equipment. For instance, in 2016, a worker brought a failure to warn claim against the manufacturer of an industrial conveyer system alleging that it was foreseeable that a user might stand in a non-designated working area, which could result in the user becoming entangled in the conveyer system and sustaining catastrophic injuries.  See Dennis v. D&F Equipment Sales, Inc.

What are the Key Elements of Premises-Based Failure to Warn Claims?

For a successful failure to warn claim in Georgia premises liability cases, the injured party must prove the following elements:

  1. Duty to Warn: The property owner or manager owed a duty of care to the injured party. Georgia law differentiates between invitees, licensees, and trespassers, with the highest duty of care owed to invitees (those on the property for a business purpose or mutual benefit). For invitees, property owners must exercise ordinary care to keep the property safe and warn of potential dangers. Licensees (those who enter for their own purposes) are owed a lesser duty, while trespassers are rarely owed any duty except in certain situations.
  2. Knowledge of the Hazard: The property owner must have known or reasonably should have known about the dangerous condition. This is often called “constructive notice,” meaning the hazard existed long enough that a reasonable property owner would have noticed and addressed it. See Moran v. Team Elite Realty, 361 Ga. App. 329 (2021). For example, a restaurant owner may be liable if a spill was left unattended long enough for a reasonable employee to have noticed and cleaned it up.
  3. Failure to Warn: The property owner must have failed to provide an adequate warning of the danger. This could mean not placing a warning sign near a hazard, such as failing to put up a “Wet Floor” sign when mopping. Georgia law requires a property owner to “to give a warning adequate to enable the [visitor on] the premises to avoid harm where the danger is not apparent. See Card v. Dublin Constr. Co., 337 Ga. App. 804, 807 (2016).  In cases where a hazard cannot be immediately remedied, such as ongoing construction, warning signs, barriers, or caution tape may be necessary.
  4. Injury Caused by the Hazard: “Causation is always an essential element in slip or trip and fall cases.” Richardson v. Mapoles, 339 Ga. App. 870, 872 (2016). The injured party must show that the hazardous condition and the lack of warning directly caused their injuries. For example, if a visitor trips over a broken step that was unmarked and suffers a broken ankle, they would need to prove that the lack of warning about the damaged step was the direct cause of their injury.

Common Premises Liability Situations Involving Failure to Warn

Several common scenarios in Georgia can lead to failure to warn claims in premises liability cases:

  • Slip and Fall Accidents: These are among the most frequent premises liability claims. A store or restaurant may be liable if it fails to warn customers about a wet or slippery floor, uneven surfaces, or ice on walkways.
  • Unsafe Conditions in Apartment Complexes: Landlords and property managers are responsible for warning tenants and visitors about dangers in common areas, such as broken stair railings, poorly lit hallways, or uneven walkways.
  • Hazardous Construction Zones: Property owners undertaking renovations or repairs must warn visitors of potential dangers, like exposed wiring or unstable flooring, that could lead to injury.
  • Swimming Pool Accidents: Public pools, hotel pools, and apartment complexes with pools must have adequate signage warning about depth levels, the absence of lifeguards, or slippery surfaces to avoid injuries.

Notable Georgia Cases on Failure to Warn in Premises Liability

Several significant cases in Georgia have helped define the scope of a property owner’s duty to warn:

  • Robinson v. Kroger Co. (1997): This case is one of the most influential Georgia premises liability cases. A woman slipped on water in a Kroger store, and the Georgia Supreme Court ultimately ruled that property owners have a duty to exercise ordinary care in keeping premises safe for invitees. This case clarified that property owners must be proactive in detecting and warning about hazards, even if a visitor also has a responsibility to look out for potential dangers.
  • Ga. Trails & Rentals, Inc. v. Rogers (2021): In this case, the plaintiff was injured while riding his dirt bike at a track owned by Ga. Trails. The Plaintiff ran off of the side of the track and landed on an uncovered drainage culvert, which almost amputated the Plaintiff’s leg. A Georgia jury found that the property owner was liable for failing to repair the culvert and also failing to warn the Plaintiff about this danger by marking it with some sort of flag or cone.
  • Sturbridge Partners, Ltd. v. Walker (1997): This case involved an apartment complex owner’s liability after a tenant was assaulted on the property. While not strictly a failure to warn case, the Georgia Supreme Court held that landlords must take reasonable steps to ensure tenants’ safety if they are aware of heightened risks, which can include warnings about potential dangers.

What are the Defenses in Premises-Based Failure to Warn Claims?

Property owners often raise certain defenses in response to failure to warn claims in Georgia premises liability cases. These include:

  • Open and Obvious Danger: Property owners are generally not required to warn about dangers that are considered open and obvious to a reasonable person. For example, a large hole in the ground that is clearly visible may not require a warning sign because Georgia law presumes that the a visitor would see the hazard and appreciate the danger, thereby having equal knowledge of the potential harm. See Valdosta State Univ. v. Davis, 356 Ga. App. 397 (2020).
  • Comparative Negligence: Georgia follows a modified comparative negligence rule. A visitor must also exercise care for his or her own safety. If the injured party is found partially at fault for their injuries, their recovery may be reduced by their percentage of fault. If they are 50% or more at fault, they may be barred from recovery altogether. For example, if a person is texting and not paying attention to their surroundings when they slip on an unmarked wet floor, a court may find them partially responsible for their injuries. In Georgia, a Plaintiff cannot recover if he is 50% or more at fault for his injuries. O.C.G.A. § 51-12-33(g).
  • Lack of Constructive Knowledge: Property owners may also argue they were unaware of the hazardous condition and had no reasonable opportunity to discover it. For example, if a spill occurred just minutes before an accident, the owner might argue they did not have enough time to address it or put up a warning. See The Kroger Co. v. Schoenhoff, 324 Ga. App. 619 (2013).

Importance of Adequate Warnings on Properties in Georgia

Failure to warn cases underscore the importance of proactive communication from property owners and manufacturers. These cases remind us that those with knowledge of a hazard have an obligation to take steps to minimize risk to consumers, visitors, employees, and tenants by utilizing timely, visible warnings about any known dangers.

For those injured due to a failure to warn, Georgia law provides a means to seek compensation, but a thorough investigation and strong evidence are essential to proving one’s failure to uphold their duty of care. 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 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 due to a failure to warn, 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.

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.

Hotel Premises Liability Cases

hotel liability case

Understanding Hotel Premises Liability Cases

Georgia is a unique state in terms of its geography, history and culture. According to the Georgia Department of Economic Development, our state welcomed a record 111.7 million visitors in 2018. Millions of these people stayed in our hotels, and Georgia tourism has become a $68.96 billion industry.

The hotel industry profits enormously from tourism and travel in Georgia. In return, hotels that do business in Georgia have a duty to keep their hotels safe for visitors. Despite this duty, thousands of personal injuries occur each year in Georgia hotels. Some of these accidents are unavoidable, and other times hotel patrons irresponsibly cause harm to themselves in ways the hotel can’t control. But in a majority of cases, a hotel is at fault for failing to maintain the safety of the hotel premise.

Georgia Premises Liability Claims Against Hotels

Premises liability claims in Georgia derive from Title 51 Chapter 3 Section 1 of the Official Code of Georgia. This law holds that when landowners invite others onto their property, including when hotels invite people to stay in the hotel, they must “exercise ordinary care in keeping the premises and approaches safe.” This duty of ordinary care means hotel rooms and other hotel spaces must be free from conditions that could cause harm. It also means hotels must take reasonable precautions to maintain hotel security and ensure areas like workout rooms and swimming pools are safe for guests.

When is a Hotel Liable for Injuries?

There are many instances in which a hotel may be liable, and there are a few cases that have taken place in our area. If you’ve been harmed because of an unsafe condition that existed in a hotel, you may be entitled to compensation. The key to determining if a hotel is liable for the harm depends on whether the hotel failed to “exercise ordinary care.” There are several important factors that go into this determination, including:

  1. The condition that caused the harm must be dangerous or unreasonable
  2. The hotel must have failed to remedy the condition and/or failed to warn hotel patrons about the risk, even though it had the opportunity to do so
  3. The dangerous condition must have caused the harm

What is Involved in a Hotel Premises Liability Case?

These elements may seem simple, but hotel premises liability cases are often highly complex and hotly contested. Hotels will fight tooth and nail to avoid liability in court. Hotels that are a part of a larger chain may put up a particularly tough fight. Proving that a condition was dangerous and that it was the cause of the harm often requires expert witnesses and eyewitness testimony. In some cases, a medical expert may also be necessary to explain to the court exactly how the hotel defect caused the harm.

However, it is not enough to prove that a dangerous condition existed and caused the harm. A hotel must have negligently failed to fix the problem. This means it must be proved that a hotel knew or should have known about the condition and failed to fix the problem or warn patrons about it.

Georgia courts follow the “superior knowledge” doctrine, which holds that a hotel must have had superior knowledge of the dangerous condition when compared to the plaintiff. Therefore, if a plaintiff was aware of the danger but ignored the risk, the business may not be liable, even if they knew or should have known about the risk. Proving that a hotel could have or should have remedied the problem can also require large amounts of evidence, such as hotel records or surveillance footage.

If You’ve Been Injured While Staying at a Georgia Hotel, Call Williams Elleby Howard & Easter Today to Discuss Your Case

If you or a loved one has been injured in a Georgia hotel, the legal team at Williams Elleby Howard & Easter can help you get the compensation you deserve. Williams Elleby Howard & Easter offers free consultations and accepts cases on a contingency fee basis. Located in Kennesaw, Georgia, Williams Elleby Howard & Easter represents clients in all areas of Georgia. To discuss your case, call 833-LEGALGA (833-534-2542).

 

Allstate and Bad Faith Insurance Claims in Georgia

Blue paper with a white rip in the center with the title, Bad faith insurance claims."

Many insurance companies have a well-earned reputation for being difficult to deal with. In our experience, Allstate is among the worst because it often drags out even the simplest of claims for months or even years longer than necessary. Serious negotiations are part of the claims process; however, there is an important line between negotiating in good faith versus bad faith. While many insurance companies walk a fine line between good and bad faith, Allstate has developed a reputation among Georgia lawyers for pushing those boundaries. This is especially true when Allstate’s insured causes a crash.

Duties of Automobile Insurers under Georgia Law

Georgia law imposes important duties on car insurance companies. If a claim is brought against you, most injured claimants will give your insurance company an opportunity to settle the claim within your policy limits. If the injured party has a lawyer, the claim will usually be sent to your insurance company in compliance with the terms of O.C.G.A. § 9-11-67.1. This statute lays out the basic requirements of a pre-suit settlement demand where the injured person’s attorney will give your insurer an opportunity to settle the claim and protect your personal assets.

When your insurance company receives an offer of settlement, it must put your interests ahead of its own. “[W]here a person injured by the insured offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay the verdict rendered against the insured even though the verdict exceeds the policy limits. The reason for this rule is that the insurer may not gamble with the funds of its insured by refusing to settle within the policy limits.” McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1984).

If an insurance company receives a legitimate settlement offer pursuant to O.C.G.A. § 9-11-67.1 and refuses to pay, you will likely get sued. When the lawsuit results in a verdict and judgment that exceeds your policy limits, you are legally responsible for paying the amount that exceeds your policy limits. Your insurance company will be responsible for paying any amount within the liability limits of your policy.

In situations like this, all may not be lost. After a judgment in excess of your policy limits is entered against you, you may be able to bring a claim against your insurance company for the excess amount if your insurer refused to settle for an amount within your policy limits.

Bad Faith Automobile Insurance Claims in Georgia

Georgia allows for bad faith claims with multiple types of insurance policies. The most common type of “bad faith” claim is one that is brought after an insurer rejects a time limited offer of settlement that an attorney sends in compliance with O.C.G.A. § 9-11-67.1.

O.C.G.A § 9-11-67.1 settlement offers are sent to the insurer of a driver that caused a wreck. When an insurance company fails to use good faith in negotiating car accident claims, it can leave its insured open to substantial financial exposure and mental anguish.  The insurer also exposes its insured to protracted litigation, the time and expense of attending depositions, participating in discovery and attending trial, the emotional anguish of reliving the collision and harm caused, and other financial loss such diminished credit ratings.

Therefore, Georgia allows an insured to sue his or her own insurance company when it acts in bad faith during settlement negotiations. In order to succeed in a bad faith lawsuit against a liability insurance carrier, the insured will need to prove:

  1. The insurer failed to give equal consideration to the interests of its insured,
  2. The insurer failed to accord its insured the same faithful consideration it accords its own interest,
  3. The insurer refused to settle because of an arbitrary belief that the insured was not liable, or
  4. The insurer refused to entertain a settlement offer with no regard given the position of its insured.

See Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992) and O.C.G.A. § 9-11-67.1.

If an insured is successful in his or her bad faith claim, special damages, general damages, punitive damages, and legal fees may be available.

There are also laws discouraging bad faith negotiations with uninsured motorist claims. Uninsured motorist policies protect you when the person that causes an accident lacks enough liability insurance to cover your damages. Under current Georgia law, bad faith penalties for claims against an uninsured motorist insurance carrier are not as severe as those available for liability claims. Yet, if the insurance company makes a frivolous or unfounded denial, they could open themselves up to penalties. If litigation is required to recover on a bad faith claim, the plaintiff could also recover the cost of their attorney fees. You should always seek the advice of a reputable Georgia lawyer if you are considering bringing any type of bad faith claim.

Allstate and Their Approach to Settlement

Allstate’s aggressive approach to avoiding responsibility on liability claims has come back to haunt them more than once. Few of these instances are as memorable as a 2017 decision in Madrigal v. Allstate.

In that case, there was substantial evidence that Allstate’s insured was responsible for an accident. When the third party sought the full policy limits of $100,000, Allstate rejected it outright. In the days that followed, Allstate developed additional information that pointed to their insured as responsible for the claim. This included an independent witness that contradicted their insured’s account of what happened.

Ultimately, a jury found Allstate’s actions to be in bad faith and returned a verdict for more than $14 million.

Duty of an Insured Cooperate with the Insurance Company

Although automobile insurers must work to protect their insureds, their insureds also have a duty to cooperate with their insurer. Most automobile insurance policies contain what is commonly referred to as a “cooperation clause.” The “cooperation clause” requires an insured to cooperate with his or her insurance company anytime the insurer investigates or defends any claim brought against its insured. Quite simply, you have a contractual duty to cooperate with your automobile insurance company after you cause a wreck. In this context, cooperation means that you must timely report any accident, give your insurer a recorded statement, and attend any necessary legal proceedings like a deposition or a trial.

If you willfully and intentionally refuse to cooperate with your insurer, the insurer may deny coverage for any civil claim brought against you.

How an Attorney Could Help

One important thing to consider in these cases is that insurance companies like Allstate treat their policyholders differently if they have competent legal representation. While an insurer might be willing to string you along, they are more likely to deal fairly if they know your attorney is ready to take action against a bad faith settlement offer. If you find yourself in this situation, contact the Georgia trial lawyers at Williams Elleby Howard & Easter by calling 833-LEGALGA or (833-534-2542).