Common Myths about Personal Injury Attorneys

Blurry image of a man in a suit in the background pointing toward a collection of lawyer associated words in the foreground.

For those that have never needed a personal injury attorney, it might be easy to believe or perpetuate the common myths we hear about our profession.  Let’s address the common myths we hear and explain what really happens at a personal injury firm.

Myth #1: Lawyers Will Sue for Anything

Technically you can sue for anything, but good lawyers consider the cost and if there is a credible claim to be made. Most personal injury attorneys are fronting their own money and advancing case expenses for your case.  Attorneys will only bring claims they believe have merit or a reasonable chance for success.

Myth #2: Lawyers Take All The Money

Personal injury attorneys work on contingency, meaning they do not get paid unless their clients get paid.  Injury attorneys earn a percentage of the recovery, the amount settled for or awarded at trial.  The percentage amount varies based on the type of case and whether the case is in suit or not in suit. Most attorneys charge somewhere between 30% and 40% for the vast majority of injury cases.

Myth #3: Lawyers Chase Ambulances

Any reputable lawyer is not going to “chase down” cases however, there are some lawyers and even non-lawyers that try to find cases and then sell those cases to other lawyers.  Unfortunately, this does happen, but it is not fair to assign that stigma to all personal injury attorneys. Reputable attorneys do not find you in the emergency room or contact you after an injury.  If an attorney is approaching you about a car wreck offering his or her representation, please know that is unethical and against the law.  You do NOT want an attorney that chases you because that means they are so desperate for clients that they are willing to violate legal and ethical rules just to gets clients.

Myth #4: All Cases are Worth A Million Dollars

You don’t want a million-dollar injury case because if your case is worth that much, something life altering happened and you are terribly injured.    Each case is different and evaluated on many factors that include property damage, severity of injury, treatment, pain and suffering, missed work, and so on.  Personal injury attorneys try to get you what is fair and reasonable based on your unique case.

Myth #5: All Personal Injury Lawyers Try Cases

It is important to know that not all personal injury attorneys try cases.  Some attorneys will not even put cases in suit, meaning they won’t file a complaint or do litigation to get maximum value for your case.  These attorneys look to settle cases early and as fast as possible because that is their business model.  Injury victims should always ask about a lawyer’s trial experience before deciding whether to hire the lawyer.

Myth #6: Lawyers are Too Expensive

Some people believe you have to pay a retainer in order to hire an attorney.  That is not the case with personal injury attorneys.  Again, most injury lawyers work on a contingency fee basis, meaning they don’t get paid until they obtain a financial recovery for their client.  Contingency fees are variable as discussed in Myth #2 above; however, if an injury attorney wants to charge 45%-50% for a simple car wreck case, they are likely asking too much. Take your time and interview several attorneys, ask about their contingency fee, then choose the right one for you. 

Myth #7: Lawyers Drive Away Business from the State

This myth was generated by politicians. Any reputable business is going to have insurance. Attorneys will almost always give corporations and individuals the opportunity to settle their case within their insurance limits.  Good attorneys are not in the business of forcing people into bankruptcy or running businesses into the ground.  Of course, attorneys want to ensure their clients are fully compensated for their damages. However, forcing someone into bankruptcy doesn’t benefit anyone, not even the injured client because the full judgement is rarely collectible when the defendant is in bankruptcy.  Politicians might try to speak about a rare case to vilify someone or increase their political platform, but those politicians are usually speaking on behalf of the insurance industry and the lobbyists who fund their election campaigns.

Myth #8: My Lawyer Can Solve My Problems

An individual lawyer cannot solve all of your legal problems.  Attorneys, just like doctors, specialize.  For example, our firm can help you with personal injury matters such as a car wreck case, slip and fall, bicycle accident, medical malpractice, burn injuries and more, but we are not the firm to call when you are getting a divorce or find yourself in a criminal case.  Remember to seek out and ask for an attorney that has expertise in your area of need.

What’s the Deal with Domesticating Foreign Subpoenas?

Hand holding a pen about to sign a subpoena.

How to: domesticating a foreign subpoena in another state.

POV: It’s a dark and stormy Thursday afternoon and you’re a young, bright-eyed, paralegal working for the best personal injury firm that’s ever existed when the founding partner comes to you with a rather unique ask; conduct some research on how to domesticate a foreign subpoena in another state. He hands you one of the thickest books you’ve ever seen, and you accept this new challenge with genuine enthusiasm, although, you can’t help but notice the devious smile that slowly creeps across his face as he slips quietly back into his office. Your newfound enthusiasm is quickly replaced with dread. This formidable task grows all the more daunting as you clutch the 1,359-page book on Georgia’s Civil Procedure tightly against your chest and contemplate your life choices that have led up to this moment.

If you can relate in any way to the story above, then you have come to the right place. Welcome! As the young, bright-eyed, paralegal who was assigned the aforementioned task, and as a result is now an expert on the topic, I’m here to share my knowledge with the world!

While the thought of having a foreign subpoena for discovery (i.e., a deposition) domesticated in another state may seem daunting as first, the process is actually quite simple. Depending on which state the case is in and which state your witness is in, you may be able to rely on the Uniform Interstate Depositions and Discovery Act (UIDDA) for guidance which makes the process the same for the 30+ states that have adopted it.

The example scenario is as follows: you’re working on a case and having trouble tracking down a witness that you need to depose, a tale as old as time. After doing some digging, you discover that the witness has, since the time of filing the initial lawsuit, moved out-of-state to Tennessee. You take a deep breath and login to your trusty Westlaw account to embark on a journey where you’ll hopefully learn something new: how to domesticate and serve a foreign subpoena in Tennessee. Your research will likely lead you to Tennessee Code § 24-9-203 which states that “a party may submit a foreign subpoena to a clerk of courts in the county in which discovery is sought to be conducted in this state.” Simply put, once you’ve successfully obtained your subpoena from the Georgia court where your lawsuit is pending you will mail the subpoena, now file stamped, to the appropriate clerk of courts in the Tennessee county where the witness resides. From there, your successfully domesticated foreign subpoena can be served on your witness by the Sheriff or by a private process server who understands the rules of civil procedure in Tennessee.

If you have a case that resides in a state that has adopted the UIDDA, but a witness that resides in a state that hasn’t adopted the Act, the process will look a little different. Once you’ve put on your thinking cap, you’ll have to initiate this arduous process with an Order to Take Out of State Deposition, a Commission to Take Out of State Deposition, a Stipulation to Take Out of State Deposition, or a Letter Rogatory. Next, you will have to request that a subpoena be issued from the court in the state where your witness resides by either submitting an application, filing a petition, by providing documents to the court or having an attorney file a petition. After you’ve successfully jumped through all the necessary hoops your subpoena should be ready to be served! At this point, you will need to consult with the state in which your case originated and a process server to determine who is authorized to serve the subpoena. Suffice to say, the exact process will vary depending on which states are involved so it is always best to comply with an individual state’s process as closely as possible to ensure that your subpoena is successfully issued, domesticated, and served on your witness in a timely manner.

Pro tip: When in doubt, reach out! Contact the clerk of courts office in the county where you are trying to have your subpoena domesticated and pick their brains on how to comply with their state’s rules and regulations. So go forth and utilize your resources, work smarter not harder, and tell no one of your dastardly plans to become the smartest person in the room. Good luck!

Written By Paralegal Rachel Wilson

Is It Against the Law to Not Wear Face Masks in Georgia During the COVID-19 Pandemic?

A large syringe and a citrate tube both labeled COVID-19 in front of a blurry view of a COVID-19 molecule.

What Does the Georgia Government and CDC Recommend?

As the number of positive COVID-19 cases, hospitalizations, and deaths rise in Georgia, many of us are reaching for our face masks as we enter the workplace, run our errands, and enjoy our favorite activities. While many Georgians are willing to wear their face masks to protect themselves and others from the spread of infection, some residents choose not to. This has left many Georgians wondering what the laws and recommendations are for wearing face masks.

Local and State Enforcement

Recently, several cities and counties in Georgia created their own face mask mandates. For example, Atlanta Mayor Keisha Lance Bottoms signed an executive order on July 8th requiring residents and travelers passing through Hartsfield-Jackson International Airport and within Atlanta’s city limits to wear face masks inside commercial buildings and when social distancing is impossible. Exceptions to the order include children under 10, people with medical conditions, and when people are in their own vehicles. Residents and visitors in violation of the order can receive a citation or even be arrested. If arrested and convicted, the offender may have to serve 6 months in jail or pay a fine of $1,000.00.

Other cities and counties around Georgia that passed their own face mask mandates include Athens Clark County, Avondale Estates, Brookhaven, College Park, Decatur, Dekalb County, Doraville, Dunwoody, East Point, Fairburn, Savannah, South Fulton, and Union City.

The individual city and county mask mandates came to a grinding halt on July 15th when Georgia Governor Brian Kemp signed an executive order blocking local governments from issuing face mask mandates that are more restrictive than his executive order. Governor Kemp is encouraging the wearing of face masks outside the home but not requiring them, which is in direct conflict with many local mandates. His executive order makes the local mandates unenforceable, but some cities remain defiant. The governor is currently suing Mayor Keisha Lance Bottoms for continuing to impose the city’s more restrictive face mask mandate.

CDC Recommendations

Face Coverings

Currently, the CDC is recommending that anyone over the age of 2 wear a cloth face covering when out in public, when around others who do not reside in the same household, and when a social distance of 6 feet cannot be maintained. The CDC specifically mentions “cloth” face coverings in an effort to reserve surgical masks and N95 masks for first responders.

Unless seeking medical treatment, those who have been diagnosed with COVID-19 or are suspected to have the virus should remain at home. Sick family members should isolate themselves in one area of the home to avoid contact with other members of the family and pets. The infected person should wear a mask when interacting with others, including at home. Care givers should also wear a mask while caring for a sick family member in addition to frequently washing their hands, sanitizing surfaces, and avoiding touching their face.

Going Out in Public

The CDC informs us that there are potential risks involved with going out in public right now. The more people we are around and the longer we are around them, the higher our chances are of contracting COVID-19. In an attempt to make our public outings safer, we should make sure we are wearing cloth face coverings, socially distancing at a distance of 6 feet apart, choosing activities in outdoor spaces, and practicing good hand hygiene. The CDC also put forth guidelines and operating procedures for restaurants, pools and beaches, and amusement parks to help us stay safe during outings.

When accessing a restaurant, to decrease the risk of infection, the CDC recommends that patrons continue to wear face coverings when not eating and drinking and continue to maintain a safe social distance. If possible, dining outside is preferable. Staff members should be required to wear face coverings. The restaurant’s bathrooms should be adequately supplied with soap to enable patrons to wash their hands when entering and leaving the restaurant. The CDC rates restaurants that are only using the drive-thru, curbside pick-up, and delivery options as having the lowest risk for transmission of the virus. Restaurants that pose the highest risk are those that are not practicing social distancing and allowing for both inside and outside dining.

If you decide to access pools and beaches, the CDC recommends face coverings when not swimming in the water. Although there is currently no evidence showing the transmission of COVID-19 through water at pools and beaches, these venues should also be taking extra safety measures. Some of these measures include cleaning and disinfecting frequently touched surfaces, such as railings and lounge chairs, and properly washing and sanitizing towels, if provided to patrons. Pools and beaches should be posting signs as to how to stop the spread of the virus and promoting social distancing in and out of the water.

When accessing amusement parks, make sure to following the CDC’s guidelines for wearing face coverings, social distancing, and practicing good hand hygiene. One can also make sure that the CDC’s recommendations for the safe operation of traveling amusement parks and carnivals are being followed. Some guidelines include the staff wearing face coverings, frequently washing their hands, and staying home when sick. Signs should be posted as to how to reduce the transmission of the virus in addition to PA system announcements and messages on social media. Surfaces should be frequently cleaned and disinfected, including those used by patrons during games, such as balls, hammers, and toy guns. Lines should be eliminated whenever possible, or there should be signs or tape on the ground to keep patrons 6 feet apart. Rides and attractions should have reduced seating capacity to further promote social distancing.

Can Georgia Businesses Be Held Liable if Customers Contract Covid-19?

As businesses reopen and try to get back to a new normal, there are some concerns about whether customers can sue if they contract the virus at a business. To avoid this issue, some business owners have begun asking customers to sign waivers of liability or releases to protect their businesses from lawsuits. It would be difficult to prove that someone was infected with the virus at a particular business location when there is up to a 2 week incubation period. Proving that a business did not follow operating guidelines set forth by the CDC would be less of an uphill battle.

However, on June 26, 2020, the Georgia General Assembly passed Senate Bill 359 which will protect businesses, health care providers, and others from civil lawsuits results from COVID-19 infections. There are exceptions based on gross negligence, wantonness, and intentional acts. Businesses also need to post a warning sign at the entry point that includes specific statutory language in the size and font specified in Senate Bill 359.

Some businesses are taking matters into their own hands and requiring patrons to wear face masks if they want to enter the property and posting their policies on their website letting visitors know they are responsible for assuming the risk of contracting the virus. Six Flags Over Georgia, for example, developed and posted its own health and safety plan that follows the CDC guidelines. Some of their policies include the wearing of face masks, except when riding water attractions, and temperature checks as guests and employees enter the park. Their health and safety policy clearly states that they cannot promise guests will not be exposed to the virus during their visit. If guests decide to visit the park, they are agreeing to take on that risk, which is a way for the park to protect itself during the pandemic.

What Should I Do if I Am Not Legally Required to Wear a Mask?

During these unprecedented times, try to keep yourself and your family safe by following Governor Kemp’s executive orders and the guidelines set forth by the CDC. Wearing a face covering when leaving your home, although not legally required in Georgia, is an easy and effective way to slow the spread of COVID-19 and is highly recommended. If you are visiting restaurants, pools, or amusement parks, make sure these businesses are following the CDC’s recommended operating guidelines.

If you feel that you sustained an injury that was a result of someone else’s negligence during this difficult time and to see if you may have a legal case, please contact Williams Elleby Howard & Easter at 833-LEGALGA (833-534-2542) for a free consultation. We look forward to hearing from you.

Preparing for a Consultation with a Georgia Personal Injury Lawyer

Legal Advice and Consultation With Georgia Personal Injury Lawyer

If you need to consult with a personal injury attorney in Georgia, there are some things you should know prior to meeting with the attorney. There are many fine personal injury attorneys in Georgia but you need to find the one that is the best attorney for your case. This begins with the initial consultation.

What Is a Lawyer Consultation?

Most personal injury consultations are free of charge. The vast majority of Georgia personal injury lawyers work on a contingency fee basis and will only get paid if you win your case.

Think of your initial meeting like an interview — you are interviewing the attorney and the attorney is interviewing you. A bad lawyer can kill your case so be sure you are comfortable with the lawyer’s skills and professional accomplishments before you agree to hire his or her firm. It is a huge red flag if the attorney sends an investigator or paralegal to meet with you during the initial consultation. Stay away from attorneys that don’t attend initial consultations because they are likely too busy to handle your case if they can’t make time for an initial consultation.

During your initial meeting, you will share details and talk about your accident or injury. The attorney should be listening carefully to determine whether they can help you, and whether you have a valid claim. When sitting face-to-face with the attorney, you can get a feel for who they are and how they might work. Don’t overlook this point because you are entrusting them with your case.

What to Expect During a Consultation with a Personal Injury Lawyer

During the consultation, you can expect to discuss the facts of your case, any evidence you may have, whether the facts of your case meet the legal requirements for a lawsuit, and your eligibility for any compensation. You should also discuss the steps involved in bringing a personal injury case as well as things you should and should not do in regards to your injury.

The Facts

An attorney will need to know the events that led to your accident or injury. Where you were, what you were doing, your relationship to the defendant, were you driving, were you a pedestrian, what sort of vehicles were involved, were there any warning signs of danger, was the floor wet, and many other facts that help create a picture of what happened. If you took notes immediately after your accident, this is one instance where they will be valuable.


An attorney should not expect you to have every single bit of evidence at this stage in your case; however, do share with the attorney contact information for any witnesses, photos of the scene, police reports, medical records, and any other proof to support your case.

Legal Requirements

This is the part of the consultation where the attorney will assess whether the at-fault party should be required to pay you damages. If the facts of your case don’t meet the legal requirement to file a lawsuit, the attorney should let you know. At this stage, the attorney has only your version of the facts to go on, so you should answer all of their questions honestly and truthfully.


If you have met the legal requirements for a lawsuit, during the consultation the lawyer will go over the types of compensation you may be awarded, either in a settlement or if you win your case at trial.

You should also discuss the importance of identifying all sources of insurance because the vast majority of defendants in Georgia personal injury cases do not have enough assets to pay a substantial judgment.

For Your Free Consultation, Contact Williams Elleby Howard & Easter

Our attorneys are here to help you figure out what to do next. If you have been injured in Georgia and have questions about the law and the facts of your case, contact Williams Elleby Howard & Easter to schedule a free consultation by calling 833-LEGALGA.

How a Bad Lawyer Can Kill Your Case

bad lawyer kill case

Lawyers have an enormous responsibility to deliver honest and competent service to clients. Even the best lawyers do not win every single case they take, but lawyers have an obligation to provide quality work and to decline representation if they lack the time, competence, or motivation to deliver adequate service. When a lawyer makes inexcusable mistakes that cause a client to lose their case, the (former) client can bring a legal malpractice lawsuit against the offending attorney to recover damages. These claims are difficult to prove because a plaintiff must prove that they would have won their case but-for the attorney’s mistake. Unfortunately, clients who hire bad lawyers are often simply out of luck after they lose their case. Below are some of the ways that a bad attorney can kill your case. 

Missing Deadlines 

According to a study conducted by the American Bar Association, situations where an attorney failed to meet a deadline for a client account for more than 17% of all legal malpractice claims in the United States. This makes missing deadlines far and away the number one cause of legal malpractice. Amazingly, in 6.6% of the legal malpractice cases included in the study, the lawyer allegedly did not even knowabout the deadline. Missing deadlines is particularly egregious because there is usually no way to undo the damage done. When it happens, the client simply misses out on their chance to present to the court whatever it was that was supposed to be filed. 

Negotiating Poorly 

A personal injury lawyer should be able to properly value a case and ensure that a client does not accept an unreasonable offer. You should expect your personal injury attorney to be able to persuasively argue your case to a court. They ought to be able to do the same thing when they discuss your case with the opposing party. A failure to effectively negotiate can result in a pitiful settlement agreement. 

Failing to File the Right Motions or Evidence 

In every case, there are key documents and key evidence that must be filed by a plaintiff at different stages of litigation. While all lawyers make strategic decisions about exactly what to file and when to file it, a bad lawyer will fail to present things to the court that would have helped win the case. That isn’t something any personal injury victim wants to happen. 

Failing to Communicate 

All lawyers in Georgia have an obligation to provide prompt and reasonable communication with clients. This means that lawyers must apprise clients of their legal options and make sure clients know about settlement offers. A failure to communicate with a client can result in mistrust, a deterioration of the attorney-client relationship, and can ultimately be a major detriment. 

Don’t Risk Blowing Your Case, Call Williams Elleby Howard & Easter 

The experienced personal injury attorneys at Williams Elleby Howard & Easter, work hard to deliver the best possible service to each of their clients, with the goal of maximizing compensation in every case. If you would like to schedule a free consultation, contact Williams Elleby Howard & Easter, by calling 833-LEGALGA today.

The Summary Judgment Motion

summary judgement motion

After a personal injury lawsuit is filed, the process of pretrial litigation begins. A defining feature of this process is the filing of motions. Motions are simply requests by a party for a court to order or decide something. For instance, in a personal injury case, filing motions can be necessary to protect a party’s rights when it comes to issues surrounding the procedure of the litigation, the process of discovery, or with regards to what evidence should or should not be admitted. Experienced attorneys who are good at “motion practice” can often win cases or force settlements before trial. Of all the pretrial motions that might be filed in a personal injury case, none is more significant than the motion for summary judgment. 

A motion for summary judgment asks the court to render a final judgment on an issue. Generally, motions for summary judgment are filed by defendants in personal injury lawsuits. However, either party is free to file a motion for summary judgment. For instance, in cases where the facts clearly show that a defendant is liable, it may be possible to have a judge decide the issue of liability in favor of the plaintiff before the trial occurs by filing a summary judgment motion. 

Defendants will often file summary judgment motions even when they have only a small chance of success. The reason is that if key issues such as liability can be decided on summary judgment, the time, expense, and stress of litigation and trial is completely avoided. Therefore, the mere fact that a defendant files a motion for summary judgment is not a signal that there is anything wrong with the plaintiff’s case. The summary judgment stage is just part of the litigation process. 

The Summary Judgment Standard 

The Official Code of Georgia § 9-11-56 establishes that a defendant may file a motion for summary judgment at any time after a lawsuit has been filed. A plaintiff must wait at least 30 days. The essential standard for a motion for summary judgment is that an issue can only be decided if there are no genuine issues of material fact. In other words, a judge may not decide key factual issues at the summary judgment stage. The party that files a summary judgment motion has the duty of proving that there are no genuine disputes of material fact as to the issue that they are requesting judgment on. 

The Summary Judgment Process 

After a party files a motion for summary judgment, the other party will have the opportunity to file an opposition brief. The initial party will then be able to file a reply. Upon request (and only upon request), the court will also usually schedule a hearing at which the parties will have an oral argument. Here, the parties will give a succinct summary of their argument and answer any questions the judge has. In many cases, a judge will decide the summary judgment at this hearing. Sometimes, a judge will consider what the parties have to say and make a ruling at a later date. 

To Discuss Your Case, Contact Williams Elleby Howard & Easter 

Personal injury plaintiffs placed in a position of opposing a motion for summary judgment should understand that summary judgment motions can resolve an entire case. The experienced attorneys at Williams Elleby Howard & Easter, have deep knowledge of Georgia negligence law and understand how to argue both for and against summary judgment in personal injury cases. If you have suffered a personal injury and would like to discuss your case, contact Williams Elleby Howard & Easter, today by calling 833-LEGALGA or visit us at our Kennesaw, Georgia office on Frey Road near Kennesaw State University.

Watch Your Children Closely: Child Sex Trafficking is a Major Problem in Georgia 

child sex trafficking Georgia

On June 6, 2018, the Atlanta-Journal Constitution reported that nearly 160 children were rescued in a major sex trafficking sting in Atlanta. Some of the children rescued were as young as three years old. The sting netted nearly 150 arrests. The special agent in charge of the operation, Matt Alcoke, told reporters these types of crimes are of high concern for investigators “because the victims are so vulnerable as children and because the offenders could be from just about any walk of life, from a gang member all the way up to someone who is highly successful and wealthy.” 

Unfortunately, human trafficking is not a new phenomenon for Georgia. According to the National Human Trafficking Hotline, there were 276 human trafficking cases reported in Georgia in the year 2017. The actual incidence of human trafficking is likely much higher as criminals operating human trafficking rings try to hide in the shadows. 

The Official Code of Georgia Title 16 Chapter 5 Article 3 criminalizes the trafficking of any person “for labor or sexual servitude” and includes more severe penalties for trafficking of children. Additionally, Atlanta’s mayor, Keisha Lance Bottoms, has said she is committed to stopping the spread of human trafficking in the city. Despite the best efforts of law enforcement, parents and guardians must also work to keep their children safe. 

Sex Traffickers Target Children 

Sex traffickers often target children. The Georgia Department of Education explains: 

Trafficking can involve school-age children — particularly those not living with their parents — who are vulnerable to coerced labor exploitation, domestic servitude, or commercial sexual exploitation (i.e., prostitution). 

Sex traffickers target children because of their vulnerability and gullibility, as well as the market demand for young victims. Those who recruit minors into prostitution violate federal anti-trafficking laws, even if there is no coercion or movement across state lines. The children at risk are not just high school students — studies demonstrate that pimps prey on victims as young as 12. Traffickers have been reported targeting their minor victims through telephone chat-lines, clubs, on the street, through friends, and at malls, as well as using girls to recruit other girls at schools and after-school programs. 

Civil Claims for Sex Offenses in Georgia 

It is possible for victims of sexual crimes to bring personal injury lawsuits against the person or persons responsible under Georgia law. Victims of sexual abuse have a right to hold perpetrators accountable in civil court and are entitled to compensation for their physical, emotional, and financial injuries.  If the crime occurs at a place of business such as a hotel or apartment complex, the victim may have a negligent security claim.  If you or a loved one has been the victim of sex trafficking or any other type of sexual assault, it is important to be aware of your legal rights and options. 

For More Information, Contact Williams Elleby Howard & Easter, Today 

Williams Elleby Howard & Easter, is dedicated to getting justice for all types of personal injury victims in civil court. Located in Kennesaw, Georgia, Williams Elleby Howard & Easter, serves clients throughout the state of Georgia. If you would like more information about this issue or would like to discuss your case, contact Williams Elleby Howard & Easter, today to schedule a free consultation by calling 833-LEGALGA.

Georgia Assumption of Risk Doctrine

fault assumption risk liable Georgia

Under the classic assumption of risk doctrine, a defendant is not liable for harm caused if the plaintiff voluntarily and knowingly assumed the risk. Georgia courts have long accepted the doctrine of assumption of risk. Assumption of risk is an affirmative defense to liability, although Georgia courts will sometimes integrate assumption of risk into a comparative fault analysis.

The Court of Appeals of Georgia has held that a defendant may successfully assert assumption of risk as a defense when defendant shows that the plaintiff:

1. Had actual knowledge of the danger in question;
2. Understood and appreciated the risks associated with such danger; and
3. Voluntarily exposed himself or herself to those risks.

Examples of Assumption of Risk Being Applied in Georgia Courts

Georgia courts have accepted assumption of risk defenses in many types of personal injury cases, including premises liability and product liability cases. The cases highlighted below show how Georgia courts apply doctrine in different types of cases.

Teems v. Bates, 684 S.E.2d 662 (2009)

In this case, teenager Janna Teems was injured after falling off of the top of a car driven by her friend, Matthew Bates. Teems wanted to ride on top of the car for fun as Bates drove around in a parking lot, but Bates drove faster than Teems expected (10-15 mph) and fell from the car. She was seriously injured and required weeks of hospitalization.

Teems sued Bates for negligence, but the trial court found that Teems assumed the risk of harm and ruled in favor of Bates. The appeals court affirmed this decision, finding that:

“When a person knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care for one’s own safety, that person cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of the other person.”

This case shows that when a plaintiff assumes a major risk, the assumption of risk doctrine will apply even when the defendant’s conduct was clearly negligent.

Landings Association, Inc. v. Williams, 728 S.E.2d 577 (2012)

This case shows how assumption of risk is applied in premises liability cases. In this case, 83-year-old Gwyneth Williams was killed by an alligator as she walked on a pathway along a man-made lagoon. Her family brought suit against the property owners. However, it was well-known in that area that alligators lived in the waters of the property. Moreover, the property owners warned residents in the area about the presence of the alligators. The Georgia Supreme Court found that although the property owners had a duty to keep the premise reasonably safe, that in this case Williams assumed the risk that an alligator could harm her.

Wilson v. Bicycle South, 915 F.2d 1503 (1990)

This product liability case was decided in the US Court of Appeals for the 11th Circuit, which is located in Atlanta. Although the case was decided in a federal court, Georgia state law was applied. The court determined that if a plaintiff voluntarily decides to use a product, despite knowing about a product’s defect and being aware of the danger the defect presents, they cannot recover in a product liability claim if the product harms them because they assumed the risk.

For More Information, Contact Williams Elleby Howard & Easter, Today

The attorneys at Williams Elleby Howard & Easter, are dedicated to helping personal injury victims with all types of personal injury claims, including auto accidents, “slip and fall,” premises liability, and product liability claims. If you would like more information or would like to discuss your case, call Williams Elleby Howard & Easter, today to schedule a free consultation at 833-LEGALGA.

Georgia’s Good Samaritan Law

Georgia good Samaritan law

We all have a duty to act with reasonable care towards others. This is the basic principle underlying all of Georgia tort law. A secondary principle is that generally speaking, none of us have a duty to go out of our way to help each other. We have a duty not to cause harm, but there is no legal requirement that we give aid to others.

Putting these two legal principles together creates a problem when people need emergency medical care. If someone decides to help, they put themselves at risk of legal liability if they make a mistake and cause further harm. But if they decide to do nothing, they have no legal liability for what happens. The recent tragic case of Lorraine Bayless highlights this problem.

Lorraine Bayless was living at Glenwood Gardens, an elderly care facility, when she stopped breathing. Someone at Glenwood Gardens called 911, and the emergency dispatcher on the phone urged them to start CPR. But there was a strict policy at Glenwood Gardens for employees not to provide medical care, and the employee stated that she couldn’t help because her boss told her not to do anything.

The 9-11 dispatcher asked if, even though the employees were instructed not to perform CPR, if any one could help Bayless stay alive. The employee, instructed by her boss not to do anything that could incur liability for the facility, stated the only thing she could: “Not at this time.” By the time the EMS crew arrived, Lorraine Bayless was dead.

To encourage people to help those in need, Georgia has a law protecting people from legal liability when they give medical aid to someone in an emergency. This is called the Georgia Good Samaritan Law. Under this law, if you try to help someone by giving CPR or any other emergency medical care, you cannot be held liable for any mistake you make under the Georgia Good Samaritan Law.

Georgia’s Good Samaritan Law

Georgia’s “Good Samaritan law” is found Title 51 Chapter 1 Section 29 of the Official Code of Georgia. It states:
Any person, including any person licensed to practice medicine and surgery, and including any person licensed to render services ancillary thereto, who in good faith renders emergency care at the scene of an accident or emergency to the victim or victims thereof without making any charge therefor shall not be liable for any civil damages as a result of any act or omission by such person in rendering emergency care or as a result of any act or failure to act to provide or arrange for further medical treatment or care for the injured person.

Under this law, a person giving aid cannot be found liable for negligence and a doctor or health professional giving emergency aid without charge is immune from a medical malpractice suit.

Contact the Kennesaw, GA Personal Injury Attorneys at Williams Elleby Howard & Easter, to Discuss Your Case

The Kennesaw, GA personal injury attorneys at Williams Elleby Howard & Easter, fully understand Georgia personal injury law. If you have any questions about this issue or would like to discuss your case, contact Williams Elleby Howard & Easter, at 833-LEGALGA today.

Why You Should Be Cautious About Online Activity Following a Georgia Auto Accident

social media case personal

You should be cautious about online activity following a Georgia automobile accident. Social media evidence can play a key role in personal injury cases. Personal injury defense lawyers monitor claimants’ social media accounts to find out if they are exaggerating their injuries. If a plaintiff claims that they have a severely injured back, but is later seen snowboarding on Instagram or Facebook by the opposing party, it can completely kill their case. But it isn’t just those faking injuries that have something to fear from social media; legitimately injured victims of accidents can lose out on compensation because their social media image makes them look like they are doing better than they actually are.

As one article bluntly puts it, “appearing happy on social media may be used against you in a court of law.” The article goes on to discuss the case of Fotini Kourtesis, a Canadian woman that sued a man for rear-ending her as she drove to work in the year 2000. Fotini was 18 years old at the time of the crash, and claimed that the crash left her in chronic pain and unable to enjoy life the way she once did. According to her own testimony, and the testimony of her friends and family, Fotini was telling the truth.

But then the opposing party found some photos of her on Facebook, posted after the accident occurred, which completely changed the outcome of the case. The photos showed Fotini smiling and dancing with her family. She appeared to be having fun. Forini claimed that she was merely posing as a happy person for the sake of having positive looking family photos, but that in reality she was suffering. But in the end, the photos destroyed her “loss of enjoyment of life” claim. The judge stated, “even if posed, the photographs were taken in an active social life setting” and this is how Kourtesis still “enjoys life.”

Why Deleting Social Media Information May Not Be the Answer

At this point you may be thinking that all you have to do is delete incriminating social media evidence before the other side sees it. Actually, doing this could lead to more problems. This is because litigants in a case have a duty to preserve all relevant evidence – including social media evidence.

A party to “contemplated or pending” litigation that destroys evidence “necessary” to the other party’s case can be sanctioned for spoliation in Georgia. This duty to preserve evidence extends to social media evidence. In a recent Virginia case, Lester v. Allied Concrete Co., the court sanctioned both the plaintiff and his counsel for, in part, “spoliation of Facebook evidence.” In that case, the lawyer helped his client “clean up” his Facebook page by deleting incriminating content before complying with a discovery request issued by the opposing party.

Personal injury cases can be complicated, and personal injury victims should rely on qualified and experienced legal counsel to get the compensation they deserve. If you have been the victim of a personal injury in the State of Georgia, contact the Kennesaw, GA accident injury attorneys at Williams Elleby Howard & Easter, to schedule a free consultation at 833-LEGALGA.