Category: Georgia Law

Georgia Comparative Fault Law

Imagine this scenario: Two cars are involved in an accident. One party suffers serious injury. The police arrive and prepare a report. An ambulance appears with medical personnel to treat the injured. Medical personnel remove the injured party from his car, place them on a stretcher, and put the injured person in the back of the ambulance. Shortly thereafter, the ambulance takes the injured party to the nearest hospital.
The injured party sues the other party for negligence. The injured party, who became the plaintiff, says that the accident occurred because the other party, the defendant, was negligent in operating his or her vehicle. The defendant counters that the plaintiff was also at fault because the injured party was speeding at the time of the accident. When this case goes to a jury, the jury will decide fault. The Georgia comparative fault rule will be in play, which, after each party’s proportionate fault is determined, may limit the reward available to the plaintiff.

Negligence Claim

The plaintiff must first prove the defendant was negligent in order to recover a reward from the defendant or his insurance company. To successfully prove negligence, a plaintiff needs to demonstrate the following:

1. The defendant had a duty to conform to a certain standard of conduct;
2. The defendant breached that duty;
3. Such breach of duty was the actual (“but for” the defendant there would not have been an accident) and proximate (the defendant’s action was    reasonably foreseeable) cause of injury;
4. The plaintiff suffered damages.

The standard of conduct for the first prong is what an ordinary person would do in such a situation.  If the defendant does not meet that standard, then he or she can be found negligent if the event caused the plaintiff’s damages.
If the plaintiff is able to prove that the defendant was negligent, the defendant may counter that comparative fault applies. In other words, he or she could argue that the plaintiff was also at fault. If the defendant were capable of proving comparative fault, the plaintiff’s recovery would be limited or even eliminated.

Georgia Comparative Fault Law

In personal injury cases, Georgia applies the comparative fault standard. Under this law, a plaintiff who demonstrates injury due to the defendant’s negligence can recover monetary damages provided that a jury determines the plaintiff is less than fifty percent at fault for the accident. In our example, if the jury finds that the plaintiff was somewhat a fault, but less than fifty percent, he or she could be awarded damages; however, if the jury finds that the plaintiff is at least fifty percent responsible for the accident, then the plaintiff cannot recover any damages. This is also known as partial comparative fault.
If the jury determines that the plaintiff is at fault but by less than fifty percent, then the plaintiff’s award will be reduced in a way that is proportionate to his or her fault. For example, if the jury awards $100,000 in damages and that the plaintiff was forty percent at fault, the plaintiff will recover $60,000, which accounts for the plaintiff’s portion of fault.

Contact Personal Injury Attorney Joel Williams if You Are Involved in an Accident

If you are involved in an accident, contact the personal injury law firm of Joel Williams, a Kennesaw, Georgia lawyer who fights for injury victims. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA for a free consultation.

Cyclist-pedestrian accidents are surprisingly frequent. Although there are no statistics available for Georgia specifically, studies indicate that there are thousands of such accidents nationwide each year. While most of these accidents result in only minor injuries, they can also cause more serious physical harm, and in some tragic cases, even death.

When Cyclists and Pedestrians Collide, who is at Fault?

Fault in these cases depends on the particulars of the collision. In some cases, the cyclist is at fault, while in others the pedestrian is to blame. Sometimes both parties share the responsibility. Cyclists and pedestrians each have a duty to act with care and obey the rules of the road. If either party fails to act reasonably under the circumstances, they have breached their duty and are negligent.

Violating Georgia traffic laws, or “rules of the road,” can create negligence. This means that if a Georgia traffic law is broken, negligence is presumed. If a plaintiff can prove that the other party violated a rule of the road, then the burden shifts to the defendant to refute the presumption of negligence and show that they acted with reasonable care.

In most cases, violating a rule of the road means that a person is negligent as a matter of law. However, this isn’t always the case; sometimes a defendant can show that under the particular circumstances, they acted with reasonable care despite violating a traffic rule. A careful assessment of the particular facts of each case is necessary.

Rules of the Road

The most important thing for cyclists to be aware of is that bicycles are considered “vehicles” under the Georgia traffic code. This means that generally speaking, cyclists must follow the same rules of the road as motor vehicles.

What about Sidewalks?

Whether cyclists are allowed to ride on sidewalks is largely up to the laws of local towns and citiies. For instance, Atlanta has determined that it is illegal for adults to ride a bicycle on the sidewalk. This means that if there is a collision between a cyclist and a pedestrian on a sidewalk in Atlanta, the cyclist will be presumed negligent. In other cities and towns this may not be the case.

Special Rules for Cyclists

• Cyclists must ride as close to the right-hand side of the road as is practicable, except when turning left. § 40-6-294.
• Cyclists must be able to maintain at least one hand on the handlebar always. § 40-6-295. This rule doesn’t necessarily mean that cyclists must have a hand on the handlebar at all times, but it does mean that they cannot ride in a way that prevents them from doing so.
• A bike light is required to ride a bike at night. § 40-6-296.
• Cyclists under the age of 16 are required by law to wear a helmet. § 40-6-296.

Special Rules for Pedestrians

• Any pedestrian crossing a street at any point other than a marked crosswalk must yield the right of way to all vehicles, including bicycles, which are on the roadway. § 40-6-92.
• Pedestrians cannot start walking across a street when a “DON’T WALK” traffic signal is showing. § 40-6-22. If a pedestrian is already in the intersection when this signal comes on, they maintain the right-of-way until they exit the road.

Contact Williams Elleby Howard & Easter for More Information

If you have been involved in a cyclist-pedestrian accident, it is important to contact an experienced personal injury attorney to ensure that your rights are protected. Attorney Joel Williams is dedicated to helping clients throughout Georgia in these types of cases. If you would like more information about this issue or would like to discuss your case, please contact Williams Elleby Howard & Easter, at 833 – LEGALGA, or use our website tool to request a free consultation online.

Georgia property owners generally have a duty to exercise reasonable care in the inspection and maintenance of their property to prevent harm to others. If a property owner fails to fulfill this duty, anyone injured on their property can bring a premises liability claim against them. Sometimes people that never stepped foot on a property can bring a similar claim if a property owner’s negligence caused them harm.

Importantly, property owners owe different duties to different types of people. Therefore, premises liability cases revolve around two key questions:

1. What duty did the property owner owe to the particular plaintiff in question?
2. Did the property owner do enough to prevent the harm that occurred in light of that duty?

Duties to those coming onto the property

Under Georgia premises liability law, the duty a landowner has to someone coming onto their property depends on whether that person is an invitee, licensee, or trespasser. Landowners owe the greatest duty to invitees, which are those persons that were invited onto the property for the benefit of the landowner. Invitees primarily include customers of a store or clients of a business. Licensees are those that are given permission to access property, but not necessarily for the benefit of the landowner. A social houseguest would be considered a licensee. Finally, trespassers are those that have no right to be on a property. Despite this, Georgia law still holds that landowners have some duty to trespassers.

Invitees

The most common type of premises liability claims are those made by invitees against businesses. Businesses have a duty to patrons and clients to inspect and maintain premises to keep them safe. This duty includes keeping customers safe from hazards in a store that could cause slip-and-fall accidents, maintaining the structure of premises to prevent other types of accidents, and even taking reasonable steps to keep a business area safe from the foreseeable criminal activity of others. Homeowners may have similar duties if they invite guests over for business purposes.

Licensees

If a person has permission to be on a property but isn’t considered to be an invitee, they will be considered a licensee. A property owner has a duty to warn licensees of obvious dangers, but unlike with invitees, there is no blanket duty to take steps to safeguard licensees from all potential hazards.

Trespassers

Duties to trespassers are limited. Generally, as long as a landowner isn’t purposefully causing or inducing the harm, they will not be liable. There is one major exception to this rule—the attractive nuisance doctrine. Under this doctrine, property owners have a duty to safeguard trespassing children from any “attractive” hazards that may be on their property. A landowner can fulfill their duty either by ensuring that their property is free from hazards, or by taking steps to make sure their property is inaccessible to trespassing children. See Gregory v Johnson, 249 Ga. 151 (1982).

In Georgia, the most common application of this rule involves inadequately fenced-off swimming pools, although any hazard that could reasonably be expected to attract children onto a property could be considered an attractive nuisance (i.e., trampolines, swing-sets, equipment, trees, etc.) If your property has any products or conditions that children might foreseeably be attracted to, you should have your property fenced off from the public to avoid liability.

Duties to Those not on the Property

The duty of property owners extends to those off the property as well, such as neighbors and people just passing by, but only if the harm was foreseeable. For instance, if a landowner negligently permits an old tree to decay and fall over onto an adjacent property, they could be liable for any damage that is caused to a neighbor. Similarly, owners of buildings can be liable if parts of the building fall off due to poor maintenance and cause injury or property damage to someone walking down the adjacent sidewalk. Generally, any instance of foreseeable harm occurring from a property owner’s failure to maintain or inspect their property could create liability.

Whether a property owner is liable in these circumstances depends on whether the property owner acted reasonably to prevent the harm. In other words, the landowner must have been negligent in some way. For example, just because a tree falls over does not mean a landowner is liable for the damage—if the tree showed no outward signs of decay or blew over in a hurricane, the landowner isn’t liable.

If you would like more information about this issue, contact Williams Elleby Howard & Easter at 833 – LEGALGA.

Wrongful Death in a Nursing Home

Georgia has specific nursing home abuse laws designed to go beyond the federal regulations to better protect residents of nursing homes. One requirement is that the facility is a safe place to live. If that right is violated, a resident can sue the facility, which would then face financial penalties or even a loss of certification. The facility must also discuss these regulations carefully with a resident and his or her family when they enter the home.

If the facility is not safe and a resident dies as a result, the resident’s family members can sue the nursing home for wrongful death.  Georgia state law defines wrongful death as the death of a person caused by the “negligent, reckless, intentional, or criminal” acts of another person or entity, which includes a nursing home.

Arbitration Agreements Are Non-binding

The Centers for Medicare and Medicaid Services, or CMS, issued a rule that bars nursing homes from requiring residents to sign arbitration agreements as a condition of admission to the facility. The reasoning behind this rule is that such forced arbitration agreements prevented nursing home residents and their family members from filing a lawsuit against the nursing home when the resident was injured or killed. Thus, even if a resident signed an arbitration agreement with the nursing home, his family may still sue the home for wrongful death.

Falls in Nursing Homes

In the United States, one in three seniors age sixty-five and older will fall during a given year according to the National Conference of State Legislatures. Of seniors who fall during a given year, 25,000 die from those falls. The state of Georgia saw fifty-two seniors die from falls in 2010. The CDC estimates that over forty percent of seniors who move into assisted living homes do so because of falls.

Moreover, seniors who have a fear of falling increase their chances that they will fall.

The CMS provides the following statistics regarding seniors falling in nursing homes:

• Approximately five percent of adults sixty-five or older live in nursing homes yet nursing home residents account for twenty percent of slip and fall deaths amongst seniors.
• A nursing home with one hundred beds annually generally reports between one hundred and two hundred falls per year. There are likely many more that go unreported.
• Between half and three-quarters of nursing home residents fall every year.
• Approximately thirty-five percent of falls occur among people who have difficulty walking.

Nursing Home Duty of Care

Nursing homes can be liable for wrongful death because they have a duty of care to their residents. They must make sure that the facility is safe. Dangerous conditions include failure to install proper railings, lack of available staff to assist residents, failure to promptly clean spills, and poor lighting.

In addition, inadequate medical treatment, weak rehabilitative programs, and lack of proper nutrition can be factors in causing a wrongful death in a nursing home.

Contact Attorney Joel Williams if a Loved One Has Been the Victim of a Wrongful Death

If you have a loved one who has been a victim of wrongful death in a nursing home, contact a lawyer who will zealously fight to get you just compensation.  If you have questions or would like to discuss your case, please call our office in Kennesaw, Georgia today at 833 – LEGALGA for a free consultation.