Georgia Open Carry Laws Addressed by Supreme Court of Georgia

Openly Carry a Firearm in Georgia

For the second time, the Supreme Court of Georgia took up a case involving the right to openly carry a firearm at the Atlanta Botanical Garden (“The Garden”). Again, the case has been returned to the lower court.

This recent decision in Georgiacarry.org., Inc., et al. v. Atlanta Botanical Garden, Inc. results from a lawsuit first filed in 2014. The lawsuit, brought by gun rights advocates GeorgiaCarry.Org, alleges that The Garden’s ban on firearms is unconstitutional. While The Garden cites O.C.G.A. § 16-11-127, a law that gun bans are lawful on private property, the suit argues that the Botanical Garden is public property leased to a private entity.

The case went to the Supreme Court of Georgia the first time after the trial court initially dismissed the case. The plaintiff appealed, and the Supreme Court agreed that the case was improperly dismissed. Therefore, the Supreme Court of Georgia remanded the case back to the trial court for further proceedings.

After the first remand, the trial court ruled against the plaintiff by deciding that The Garden has the right to prohibit firearms on its own premises. However, on appeal, Georgia’s highest court again sided with the gun group. According to a decision issued in October of 2019, the Court agreed the trial court should have heard the case instead of disposing of it through a summary judgment motion. The ruling was based in part on the fact that the lease between the City of Atlanta and The Garden was not in evidence. According to the opinion, the terms of the lease should be considered in determining whether The Garden may ban firearms. The Court specifically held,

“In this case, because the City is a public entity, if it is the holder of the present estate, then the leased premises is not private property within the meaning of the statute because property owned by a municipality is not “private property.” If the City thus owns the property, then the Garden has no right to exclude the carrying of firearms on the leased premises because it is not ‘in legal control of private property through a lease.’ If, on the other hand, by the terms of the 50-year lease with the City, the Garden holds the present estate in the property, then the property is ‘private property,’ the Garden is a ‘private owner,’ and it had the right to exclude Evans from carrying a firearm on the premises.”

The trial court will have a chance to determine the outcome of this case in the future. It is safe to assume the Georgia Supreme Court could have another say, as well.

Open Carry and Shooting Injuries

While the right to openly carry a firearm is a hot-button political topic, there is no debating the devastation that can occur from a gunshot wound. Firearms have the potential to lead to a large number of fatal injuries in a small amount of time. However, they also commonly result in serious but non-fatal injuries. While the amount of research around open carry and its impact on gun violence has only just begun, many anti-gun groups suggest loosening gun laws correlate to more shooting injuries. Other groups such as The Heritage Foundation dispute that higher rates of gun ownership are associated with higher rates of violent crime.

Shooting Injuries and Civil Lawsuits

If you have suffered injuries following a shooting, you could have a viable injury claim against several parties. First, the person responsible for shooting could face civil liability in addition to criminal charges. Whether the shooting was intentional or an act of negligence, you could have legal recourse against that person.

In addition to the shooter, Georgia law allows civil claims against property owners and occupiers when the shooting is the result of inadequate security measures. If you suffered shooting injuries on the property of another person, there is a chance you could have a negligent security claim against the property owner or manager. If the owner or occupier was aware of the increased risk of violent crime on the property and did not take steps to stop it, you could have a claim against them for failing to adequately protect you.

How a Gun Injury Lawyer Could Help a Shooting Victim

Williams Elleby attorneys have developed a reputation for defending the legal rights of shooting victims throughout Georgia. Regardless of whether the shooter or a careless property owner was at fault, our team can help you determine whether you have a viable case. To learn more, give us a call at 833-LEGALGA (833-534-2542) to schedule your free consultation.

Allstate and Bad Faith Insurance Claims in Georgia

Personal Injury and Bad Faith Insurance Claims in Georgia
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 by calling 833-LEGALGA or (833-534-2542).

Don’t Believe the Lies about Runaway Jury Verdicts

Lies about Runaway Jury Verdicts

When there is a big jury verdict in a personal injury case, you hear about it in the news. But what you don’t hear about are the thousands of other cases where victims receive little to no compensation. A $10,000 jury verdict doesn’t have the shock appeal that the news today often seeks. 

Due to this disparity in reporting, it can feel like juries in Georgia personal injury cases are out of control, regularly awarding multi-million dollar verdicts in personal injury cases. This simply isn’t true. In fact, juries sometimes award those injured in personal injury cases far less than they deserve.  Rockdale Hospital v. Evans, a case that was recently decided by the Supreme Court of Georgia, is an example of such a case.

Victim Suffers Catastrophic Injuries After Hospital Discharge

In 2012, Janice Evans awoke in the middle of the night with the worst headache of her life. Nausea, vomiting, and diarrhea followed. Shaun Evans, her husband, initially believed she was suffering from a bad bout of food poisoning; when the symptoms didn’t subside in almost two days, he took her to the emergency room at Rockdale Hospital.

Mrs. Evans complained of a headache that she rated as an 8 out of 10 on the pain scale. During her entire stay, her systolic blood pressure was over 200. While high blood pressure and headaches can be signs of brain bleeding, no one focused on the root cause of her pain.

After being discharged, Mrs. Evans continued to suffer from nausea, vomiting, and headaches. On January 22, 2012, Mr. Evans called 911 when Mrs. Evans was unable to get up from the couch. It was eventually determined that she had a blood clot in her brain and had suffered several strokes caused by a ruptured aneurysm. She underwent multiple surgeries in subsequent months. 

Unfortunately, Mrs. Evans never recovered. She is now permanently disabled and requires 24-hour care. She utilizes a feeding tube, cannot speak, and has severe cognitive and physical impairments.

Jury Awards $0 For Pain and Suffering

Mr. Evans brought suit against Rockdale Hospital for medical malpractice and loss of consortium. The Hospital defended itself by pointing the finger at the victim for not seeking care early enough and claiming that pre-existing conditions were to blame.

Following trial, the jury awarded $1.2 million for Mrs. Evans’ past medical expenses. However, the jury found that Mrs. Evans was not entitled to any compensation for future medical expenses, future lost wages, or for past or future pain and suffering. The trial court upheld the verdict.

Appellate Court’s Attempt to Do Justice is Thwarted

The jury’s decision to find the hospital liable for Mrs. Evans’ medical expenses, but award no compensation for pain and suffering, makes no sense, particularly given how catastrophic her injuries were. The Evans’ attorneys agreed and appealed the decision. The appellate court also agreed, holding that the award of $0 for pain and suffering was “clearly inadequate.”

Rockdale Hospital appealed the appellate court’s decision to the Supreme Court of Georgia. Unfortunately, the Supreme Court of Georgia reversed the Court of Appeals. Relying largely on the text of Georgia Code OCGA § 51-12-12, the Court held that approving the jury verdict was not an abuse of the trial court’s discretion and should be upheld.

The fact that Mrs. Evans will receive no compensation for her pain and suffering is a miscarriage of justice, but her case underscores the importance of bringing a strong medical malpractice case at the trial level. It also serves as a reminder of the people who suffer when juries return unreasonably low verdicts. To learn more about medical malpractice cases in Georgia, you can view this video by attorney Joel Williams, founder of Williams Elleby.

If you have been injured in an accident and think someone else is at fault, the Georgia trial attorneys at Williams Elleby would like to help you understand your situation and options. Call us at 833-LEGALGA to schedule a free consultation.

Post Accident PTSD: What to Look For After a Georgia Car Accident

man suffering from PTSD

Post-traumatic stress disorder, or PTSD, is a mental health disorder that is triggered by a dangerous or shocking event, including Georgia car accidents.  PTSD is commonly associated with military veterans returning from war, but military members are not the only ones who can suffer from PTSD. Anyone can experience PTSD after a traumatic event.

About 8% of Americans suffer from PTSD at least once during their lives. Motor vehicle accidents are the most common cause of PTSD in the general population but any traumatic accident can cause PTSD. Those directly involved in the accident and those who witnessed the accident can develop PTSD.

If you or a loved one has experienced or witnessed an accident, you should be aware of the signs of PTSD and know what to do if they develop.

Signs of Post-Accident PTSD

It could be days, weeks, or even months after an accident before symptoms of PTSD become apparent. The following are some of the common signs and symptoms of PTSD following an accident:

  • Unexpected or recurring flashbacks of the accident.
  • No memory of certain parts of the accident.
  • Nightmares or other sleeping difficulties.
  • Difficulty concentrating.
  • Avoidance of reminders of the event, for example, avoiding driving after a car accident.
  • Avoidance of feelings related to the accident.
  • Negative mood changes such as decreased interest in hobbies and leisure activities, as well as overly negative thoughts about self and others.
  • Persistent feeling of being on edge.
  • Emotional outbursts.
  • Being easily startled, e.g., jumping when a loud noise is heard.
  • Physical manifestations of stress such as hair loss, fragile nails, headaches, weight loss, and neck and should aches.
  • Panic attacks.
  • Physical of arousal such as higher heart rate, sweating, and shortness of breath when at rest.
  • Substance abuse.

PTSD does not require all of these signs and symptoms to be present and can manifest in other ways as well. PTSD shows up differently in different people.

What to Do for Post-Accident PTSD

If you or a loved one are experiencing any signs of PTSD, you should seek medical treatment immediately. Contact a mental health professional directly or make an appointment with your primary care physician who can refer you to the appropriate mental health care professional. If immediate help is needed, call the 24/7 Georgia Crisis Hotline at (800) 715-4225. Whomever you reach out to, do it as soon as possible. PTSD is a very treatable disorder but can have devastating consequences if left untreated.

You should also tell your Georgia accident attorney if your PTSD symptoms are present or if there has been a PTSD diagnosis. The cost of PTSD care and treatment may be recoverable as part of damages in your personal injury case, but your attorney has to know about it to help you receive the compensation you are entitled too.

At Williams | Elleby, we understand that the mental suffering caused by traumatic accidents can continue long after the accident itself is over.  Georgia law allows PTSD victims to recover for their pain and suffering and Williams Elleby works hart to ensure that those impacted by accidents are fully compensated. If you or a loved one has been in an accident in Georgia, call (833) LEGALGA to schedule a free consultation with our team.

Responsibilities of “In Possession” and Absentee Landlords

Responsibilities of Landlord Premises Liability Personal Injury Attorney Georgia

In Georgia, landlords are required by law to meet certain safety and maintenance requirements. When a landlord negligently fails to keep his premises reasonably safe for use and someone is injured or killed while they were on or near property, they may be able to file a premises liability lawsuit against the landlord. In Georgia, landlord premises liability lawsuits and the recovery of damages depends on whether a landlord is an “absentee” or “in possession” landlord.

What Is an “In Possession” Landlord?

An “in possession” landlord is either a person or entity that occupies the property or otherwise maintains substantial ownership and control over the property, even after it is rented out to a tenant. Reserving the right to periodically inspect the property does not usually constitute being “in possession” of the property.

Responsibilities of an “In Possession” Landlord

A landlord that is “in possession” of a property is usually governed by the stricter standards that apply to property owners. Georgia law states that a property owner must exercise ordinary care to keep a property safe for any “invitee” who approaches, exits, or is present on the property.

An invitee is one who is induced by express or implied invitation to come onto an owner’s property. During the term of their lease, a tenant would be an invitee of the apartment, condominium, or office building where they live or work. Under this standard, the landlord owes a duty of care to keep his premises safe. He is liable for damages when injuries are caused by his failure to exercise ordinary care.

The duty to keep premises safe is not limited to just the construction and maintenance of buildings or other physical structures located on the property. The owner/landlord is obligated to keep outside ramps and stairs, driveways, sidewalks, curbs, and parking lots in good repair. For any lawns, landscaping must also be kept in a safe condition. Additionally, Georgia courts have held that the duty to keep premises safe may also include the obligation to provide adequate security and required fire protection.

What Is an Absentee Landlord?

An absentee landlord is either a person or entity that owns and then rents out property. If the landlord does not occupy the property and does not exercise much day-to-day control over the property, they are considered to be “not in possession” and therefore absent. Simply put, if the landlord does not live, reside somewhere on the property, or access the property most days, they are an absentee landlord.

Responsibilities of an Absentee Landlord

Georgia statute states that when a landlord is not in possession of rental property, his or her liability is limited to those damages from “defective construction” or from failure to “keep the premises in repair.” This is a lower standard of care than would be required if they were in possession of the property.

Defective Construction

An absentee landlord may be liable for defective construction if they:

  • Did the construction work themselves;
  • Directly supervised the construction work; or
  • Had knowledge of the defective construction.

Keeping the Premises in Repair

In addition to construction defects, injuries can also occur when a landlord fails to repair a hazardous condition on the property. In order to be liable for failure to repair, Georgia courts have generally found that the landlord must have had knowledge of the hazardous condition needing repair. If the landlord knew about a potentially hazardous condition and did not take steps to repair it within a reasonable amount of time, the landlord may be found liable for resulting injuries. In some cases, landlords have also been found liable for hazards they should have known about based on performing regular inspections.

For More Information, Contact Williams Elleby

If you, a friend, or a family member have been injured while on someone else’s property, contact  Williams Elleby, to schedule a free consultation by calling 833-LEGALGA.

Are There Limits on the Amount of Interest a Litigation Funding Company Can Charge in Georgia?

Personal Injury Cases Litigation Funding Georgia Attorney

There are a lot of questions surrounding how litigation funding works and what interest rates they are allowed to charge. This has been a point of contention over the course of the last few years, with a number of lawsuits and even a class action challenging the litigation funding industry’s interest rates. In October of 2018, the Supreme Court of Georgia decided the issue once and for all.

What Is Litigation Funding?

To understand the question, it is helpful to first understand what litigation funding is. Litigation funding, also known as legal financing, is the process of paying for some or all of the expenses of a lawsuit up front. If the lawsuit is successful, the funder is repaid in full plus interest. If the plaintiff is unsuccessful and does not recover anything, the litigation funder will also receive nothing. Because of the risk involved, the interest rate applied by litigation funding companies can be quite high.

Litigation funding is typically used in cases that are going to require serious resources to prosecute but have a high potential for success. Litigation funding is growing in popularity, but it isn’t a new idea. This type of funding has been legal in the United Kingdom since 1967, and it has been fairly common in most major countries since the early 2000s.

Georgia Law Related to Litigation Funding

In the case of Ruth vs. Cherokee Funding, LLC, a number of Georgia residents that received litigation funding from Cherokee filed suit against the company. The lawsuit alleged that Cherokee had charged exorbitant interest rates that were illegal under state law. Specifically, the suits charged that Cherokee violated:

  • The Georgia Industrial Loan Act (GILA)
  • The Payday Lending Act (PLA)

According to the plaintiffs, the money paid by Cherokee amounted to loans under both PLA and GILA. Both statutes cap the interest rates for loans under a certain dollar amount, which meant that if the courts agreed with the plaintiffs that litigation funding were loans, Cherokee would have been in violation of both statutes. Cherokee’s attorneys, however, argued that the payments were not loans but investments in the outcome of the lawsuit. Georgia law does not contain a limit on interest for investments, so this distinction is critical.

Loan vs. Investment

When the issue came before the Supreme Court of Georgia, the Court weighed whether or not the funds paid out by a litigation funding company were loans or not. In the end, the Court ruled on behalf of Cherokee on both the GILA claim as well as the PLA claim. The Court reasoned that the funds provided by litigation funding companies were not loans under Georgia law because, unlike loans, there was no guarantee that these funds would ever be paid. Because the plaintiffs would not have owed Cherokee anything had the lawsuit been unsuccessful, the Court found that the PLA and GILA did not apply and Cherokee was not bound by their interest rate limits.

While litigation funding is necessary in some cases, in most others it may make more sense to work closely with a Georgia personal injury attorney to ensure that a lawsuit has the resources it needs. To discuss your personal injury claim, contact Williams Elleby, today at 833 – LEGALGA.

Georgia’s Dram Shop Law & Drunk Driving

Drunk Driving and Dram Shop Statute in Georgia

If you have been injured in a vehicle collision with a drunk driver in Georgia, you may be able to pursue a claim against the restaurant or bar that over served the drunk. In Georgia dram shop lawsuits, the drunk driver isn’t the only party you can hold responsible. If an establishment knowingly over served the driver with alcohol prior to the accident, you may also have a claim against that establishment   . This claim may be brought thanks to what’s known as Georgia’s dram shop liability laws.

What Is a Dram Shop Law?

Georgia is one of 30 states nationwide to adopt some form of dram shop liability. While dram shop lawsuits are somewhat uncommon, Georgia juries have previously rendered significant verdicts against establishments that overserved drivers.

If a proprietor of a bar or one of their employees knowingly serves alcohol to a visibly intoxicated person, they may face liability if the intoxicated person goes on to injure someone in an alcohol-related accident.

In addition to visibly intoxicated patrons, dram shop laws also apply to anyone who serves a person less than 21 years of age. It makes no difference if the minor used a convincing fake ID to obtain alcohol; it is up to the establishment to determine when an ID is valid.

However, there are some exceptions to the rule. If the drunk driver consumes their own alcohol at the establishment, there is no liability on behalf of the owner or any employees. This is especially true in cases where an establishment does not sell alcohol at all. Additionally, there is an exception if the proprietor or employee has reason to believe the driver would not be driving later. Examples include if the driver had walked to the bar or had a cab waiting. Dram shop laws don’t apply in these situations.

Enforcement

It is up to business owners and employees to act with care when serving alcoholic beverages. The Georgia Department of Revenue is empowered to regulate alcohol license infractions, one of which has restrictions on overserving alcohol to patrons. But an investigative report has shown that they make little effort in actively policing bars and restaurants in an effort to curb overserving. While other states actively investigate bars to determine if they avoid overserving, the Georgia Department of Revenue has a reputation for not being as vigilant.

Discuss Georgia Dram Shop Laws With Our Georgia Dram Shop Lawyers

If you or a loved one have been injured in a Georgia traffic collision by a drunk driver, you may be entitled to seek monetary compensation from the responsible party. That compensation may include your medical bills, pain and suffering, property damage bills, lost wages, and punitive damages. And if the drunk driver that struck you was over-served by a Georgia bar or night club, you may be able to seek recovery from the establishment as well as the driver.

Attorney Joel Williams has a proven track record of recovering significant damages on behalf of his clients. Our experienced Georgia personal injury attorney, Joel carefully investigates every case to identify any legal issues and to provide his clients with an understanding of what to expect with an injury lawsuit. Contact Williams Elleby today at 833-LEGALGA today for a free consultation.

Is an Apartment Building Liable for a Broken Security Gate?

Who Is Liable for Broken Security Gate and Personal Injury?

Georgia landlords have a duty to fix broken security gates in order to keep residents safe. This is especially true when they have notice of criminal activity nearby. If there is a history of break-ins or robberies in the area, your landlord may be required to provide heightened security. When a complex falls into disrepair, your landlord may be on the hook for injuries suffered as a result of negligent security. One of the most common cases of negligent security is the failure to repair a faulty security gate. And, unfortunately, the consequences of a defective security gate can be deadly.

Liability for Negligent Security in Georgia

The owners and managers of Georgia apartment complexes owe a duty to both tenants and visitors to take steps to prevent crime on their premises. O.C.G.A. § 51-3-1. Any apartment complex that fails to take reasonable steps to ensure the safety of their tenants could be held liable for the damages that result from crime on the property. Walker v. Aderhold Properties, Inc., 303 Ga. App. 710 (2010).

Landlords and property managers are not liable for every crime that occurs at a Georgia apartment complex. There are two primary requirements that must be met for liability to apply to a landlord:

  • The criminal actions must have been foreseeable
  • The landlord must have failed to take reasonable measures to prevent crime

Foreseeable Threat

To be liable to a crime victim, a landlord or property manager must have been able to foresee the possibility of the crime in question. Drayton v. Kroger Co., 297 Ga. App. 484 (2009). The best way to prove a crime was foreseeable is to determine if similar criminal activity has occurred on or around the complex. If the apartment has had a string of break-ins, or if the surrounding neighborhood has a history of muggings, the threat may have been foreseeable to the point that your landlord should have taken steps to prevent it. In assessing the foreseeability of similar crimes, Georgia courts will “inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785 (1997).

Reasonable Measures

The second requirement is that the landlord failed to take “reasonable” steps to address the threat. Whether or not a step is reasonable is entirely subjective and determined on a case by case basis. Matt v. Days Inns, 212 Ga. App. 792, 794 (1994). If a negligent security lawsuit ends up going to trial, it will be up to the jury to determine if the steps taken were reasonable. But when it comes to the failure to repair a broken security gate, a strong case can be made that it is unreasonable allow a gate to remain in disrepair. After all, the gate is there for a reason.

While landlords and management companies might point to the cost of maintaining security gates, those costs are less than other security measures that may be necessary in areas where violent crime is rampant. Additionally, any savings from failing to maintain a security gate can quickly be wiped away by one incident of vandalism or property damage. Plus, it is a small price to pay for a landlord to protect their tenants.

Discuss Your Case With A Georgia Negligent Security Attorney

If you were a victim of crime at your Georgia apartment complex, you may have a claim based on your landlord’s failure to provide adequate security. A Georgia premises liability lawyer can review your case and determine if your landlord failed to take reasonable steps to protect you. To learn more, contact our firm at 833-LEGALGA for a free consultation. If you aren’t ready to speak to an attorney, you can learn more about negligent security cases on our YouTube Channel.

Punitive Damages in a Georgia Personal Injury Case

Drunk Driving in Personal Injury Case Involving Punitive Damages in Georgia

A Georgia personal injury lawsuit is a civil case, not criminal, so there is no jail or prison time at stake; however punishment may be available in the form of punitive damages. Sometimes a defendant’s behavior is so shocking and appalling that the law wants to do all that it can to prevent it from happening again. One way the law can do this is by making a defendant pay punitive damages. Punitive damages are also known as exemplary damages — damages meant to make an example out of the defendant so that behavior doesn’t continue.

Punitive Damages vs. Compensatory Damages

Compensatory damages in a personal injury case serve to compensate the victim for what they lost or spent, or any expenses accrued due to the accident. Compensatory damages are available to compensate a victim for a loss.

Punitive damages serve an entirely different purpose. Their purpose is not to compensate the plaintiff, although the plaintiff does receive the damage award. Courts and juries award punitive damages when the behavior of the defendant demonstrates an intentional disregard for the rights of another. Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590 (2013). The purpose is to punish and deter the defendant from repeating the same action. As such, courts don’t award punitive damages in every personal injury case. Another important difference is that punitive damages have to be requested when the complaint is filed; otherwise, they cannot be pursued at trial — they are not automatically awarded.

Burden of Proof for Being Awarded Punitive Damages

The victim plaintiff must prove by “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Caldwell v. Church, 341 Ga. App. 852 (2017) quoting O.C.G.A. § 51-12-5.1. A good example of clear and convincing evidence under Georgia law is evidence that an adverse driver was drunk or under the infuence of drugs when he or she caused a car crash. This meets the “clear and convincing evidence” standard required for punitive damages.

Limits to Punitive Damages in Georgia

In most cases where punitive damages are awarded, Georgia has set a maximum limit of $250,000.

This maximum limit does not apply to product liability cases. There is also no maximum limit when a court finds that a defendant “acted or failed to act with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol [or] drugs.”

This means that if the defendant intended harm either by deliberately acting or doing nothing at all and allowing harm to come to the victim, the defendant could face punitive damages. If the defendant harmed the victim due to being intoxicated on either drugs or alcohol, punitive damages are likely to be awarded.

Contact Our Georgia Personal Injury Attorneys Today

If you or a loved one is a victim of a personal injury, punitive damages can and should be explored. You will need an experienced attorney in Georgia who can help you navigate the complex system. If you have questions about the law and your rights, contact our firm to schedule a free consultation by calling 833-LEGALGA.

What Is an Attractive Nuisance?

Pool Safety and Attractive Nuisance Personal Injury Laws in Georgia

Children are naturally curious about their surroundings and can be harmed by what the law considers to be an “Attractive Nuisance.” Under Georgia law, any feature that could (a) draw the interest of a child and (b) potentially harm them is known as an attractive nuisance. The perfect example is a swimming pool. If a landowner fails to take appropriate steps to protect the public from this hazard, they could be liable for any injuries suffered by a child.

The combination of a child’s natural curiosity and the inability to identify potential hazards can be a recipe for disaster when a child is looking for a place to play and comes across a dangerous feature on another person’s property. If your child is injured due to an attractive nuisance in Georgia, you may be entitled to recover for your child’s medical bills. If your child dies after encountering an attractive nuisance, we can help you understand the challenges that are involved with bringing a wrongful death claim for the loss of a child.

Attractive Nuisance Liability in Georgia

For a landowner to be liable under the Attractive Nuisance theory, a few things must be proven. After all, not every nuisance is attractive and not every injury was feasibly preventable. A landowner is liable under the Attractive Nuisance theory if:

  • There is a dangerous condition on their property;
  • The hazardous condition was likely to attract young children;
  • A child, incapable of understanding the danger due to their age, was injured by the condition;
  • The landowner failed to take steps to guard against the injury; and
  • That preventing access to the condition or rendering it harmless was feasible without obstructing its intended purpose.

See Gregory v. Johnson, 249 Ga. 151, 154-155 (1982). In other words, a landowner owes a duty to any child that might be injured by a condition on their property that is attractive to the child. This is the case as long as it was feasible for the landowner to prevent access to the condition or render it harmless without obstructing the condition’s purpose. For example, an oil pump that might appear to a child as a teeter-totter may not be rendered entirely safe without affecting its ability to pump oil.

If all of the conditions described above are met, the landowner may be found liable for the injuries of the child. It is important to note that the duty owed to a child in these circumstances is much higher than that owed to an adult trespasser. In many cases, a landowner may be liable to a trespassing child for a dangerous condition but liability would not lie for injuries to a trespassing adult in the same situation. These nuisances can be either privately owned or public property.

Examples of Attractive Nuisances

Every premises liability case is different. However, there are a variety of examples that come up frequently in Attractive Nuisance lawsuits. Here are some of the most common examples of an attractive nuisance:

  • Railroad turntables
  • Empty swimming pools
  • Construction sites
  • Wells
  • Power lines
  • Man-made fountains
  • Abandoned cars
  • Farm equipment

These are only a few of the possible Attractive Nuisances that are common in Georgia. In many of these examples, the circumstances in each case could affect whether Attractive Nuisance liability applies. For example, farm equipment that was storable inside secure fencing might be an attractive nuisance, while equipment at a location where fencing is impossible may not qualify.

Premises Liability Attorney in Georgia

Every Attractive Nuisance case is different and will require extensive research and investigation. If your child or loved one suffered an injury on the property of another, it is possible that the property owner is liable for their damages. To discuss your options with an experienced premises liability attorney, contact us today at 833-LEGALGA.