Failure to Warn Claims in Georgia: Understanding Your Rights and Responsibilities

signage with WARNING written in bold white letters and Product Recall written in black letters

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

What Is a Failure to Warn Claim?

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

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

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

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

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

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

Example Cases of Product Liability Failure to Warm

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

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

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

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

Common Premises Liability Situations Involving Failure to Warn

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

  • Slip and Fall Accidents: These are among the most frequent premises liability claims. A store or restaurant may be liable if it fails to warn customers about a wet or slippery floor, uneven surfaces, or ice on walkways.

  • Unsafe Conditions in Apartment Complexes: Landlords and property managers are responsible for warning tenants and visitors about dangers in common areas, such as broken stair railings, poorly lit hallways, or uneven walkways.

  • Hazardous Construction Zones: Property owners undertaking renovations or repairs must warn visitors of potential dangers, like exposed wiring or unstable flooring, that could lead to injury.

  • Swimming Pool Accidents: Public pools, hotel pools, and apartment complexes with pools must have adequate signage warning about depth levels, the absence of lifeguards, or slippery surfaces to avoid injuries.

Notable Georgia Cases on Failure to Warn in Premises Liability

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

  • Robinson v. Kroger Co. (1997): This case is one of the most influential Georgia premises liability cases. A woman slipped on water in a Kroger store, and the Georgia Supreme Court ultimately ruled that property owners have a duty to exercise ordinary care in keeping premises safe for invitees. This case clarified that property owners must be proactive in detecting and warning about hazards, even if a visitor also has a responsibility to look out for potential dangers.

  • Ga. Trails & Rentals, Inc. v. Rogers (2021): In this case, the plaintiff was injured while riding his dirt bike at a track owned by Ga. Trails. The Plaintiff ran off of the side of the track and landed on an uncovered drainage culvert, which almost amputated the Plaintiff’s leg. A Georgia jury found that the property owner was liable for failing to repair the culvert and also failing to warn the Plaintiff about this danger by marking it with some sort of flag or cone.

  • Sturbridge Partners, Ltd. v. Walker (1997): This case involved an apartment complex owner’s liability after a tenant was assaulted on the property. While not strictly a failure to warn case, the Georgia Supreme Court held that landlords must take reasonable steps to ensure tenants’ safety if they are aware of heightened risks, which can include warnings about potential dangers.

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

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

  • Open and Obvious Danger: Property owners are generally not required to warn about dangers that are considered open and obvious to a reasonable person. For example, a large hole in the ground that is clearly visible may not require a warning sign because Georgia law presumes that the a visitor would see the hazard and appreciate the danger, thereby having equal knowledge of the potential harm. See Valdosta State Univ. v. Davis, 356 Ga. App. 397 (2020).

  • Comparative Negligence: Georgia follows a modified comparative negligence rule. A visitor must also exercise care for his or her own safety. If the injured party is found partially at fault for their injuries, their recovery may be reduced by their percentage of fault. If they are 50% or more at fault, they may be barred from recovery altogether. For example, if a person is texting and not paying attention to their surroundings when they slip on an unmarked wet floor, a court may find them partially responsible for their injuries. In Georgia, a Plaintiff cannot recover if he is 50% or more at fault for his injuries. O.C.G.A. § 51-12-33(g).

  • Lack of Constructive Knowledge: Property owners may also argue they were unaware of the hazardous condition and had no reasonable opportunity to discover it. For example, if a spill occurred just minutes before an accident, the owner might argue they did not have enough time to address it or put up a warning. See The Kroger Co. v. Schoenhoff, 324 Ga. App. 619 (2013).

Importance of Adequate Warnings on Properties in Georgia

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

For those injured due to a failure to warn, Georgia law provides a means to seek compensation, but a thorough investigation and strong evidence are essential to proving one’s failure to uphold their duty of care. Victims need the support of qualified and experienced legal counsel on their side. The experienced personal injury attorneys at Williams Elleby Howard & Easter work hard to get victims the compensation they deserve.

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

Georgia Personal Injury Claims and AI

What is AI? In its most basic sense, AI is artificial “intelligence” that allows machines or computers to perform tasks that would normally require human intelligence. Google Cloud gives us a straight-forward analysis of AI that includes brief answers to questions like: How does AI work? What types of AI exist? How does AI learn? What are some benefits of AI? 

AI can benefit our lives in many ways, but we should proceed with caution, especially when utilizing AI in conjunction with personal injury claims. When it comes to personal injury claims, this author, believes that current AI technology is a flawed tool for estimating the value of a person injury claim. My law partner and I dig into the “Why” in this video:

Don’t have time for a ten-minute video, no problem. Let’s take a real-world case example to understand the “Why”:

I provided Microsoft Copilot with the following prompt:

What is the value of a personal injury case with the following facts in the State of Georgia? A man visits a restaurant/bar and consumes 7 alcoholic drinks over a 4-hour period. When the bar closed, an employee asked the man to take some items outside. The man did so and was unintentionally locked out of the bar. It was very cold and raining outside. The man attempted to gain re-entry by knocking on the door and calling the employee. He was unsuccessful. Therefore, he tried to walk around the building to gain access through a rear entrance. As he walked around the building, he fell 11 feet off a concrete retaining wall and sustained significant injuries. The retaining wall was located in a dark unlit area of the property. The bar owner knew the retaining wall was a hazard; yet, no guards or railing were placed around the retaining wall. The most severe injuries were a moderate TBI and lower back disk injury. He was hospitalized for 5 days and incurred approximately $350,000 in medical bills. What is this case worth?

I received the following Answer:

I’m really sorry to hear about the injuries sustained in this incident. Determining the exact value of a personal injury case can be complex and depends on various factors, including the severity of the injuries, medical expenses, lost wages, and pain and suffering.

Given the details you’ve provided, the case involves significant injuries, including a moderate traumatic brain injury (TBI) and a lower back disk injury, with substantial medical bills of approximately $350,000. In Georgia, personal injury settlements can vary widely, but severe injury cases can sometimes reach settlements in the range of $200,000 to $500,000 or more.

It’s important to consult with a personal injury attorney who can evaluate all aspects of the case, including liability, negligence, and the extent of damages, to provide a more accurate estimate.

Would you like some help finding a reputable personal injury attorney in Georgia?

There is a lot to unpack here but I must start with the fact that CoPilot undervalued this case by over $4,000,000.00. This is the actual jury verdict our firm obtained in December of 2023 showing exactly what a 12-person jury awarded in a case with these facts:

A redacted legal document, specifically of a verdict form from a personal injury case in Cobb County Georgia where the plaintiff was found 25 percent at fault and the defendant was 75 percent at fault.
The second page of a redacted verdict form from a personal injury case awarding the plaintiff $1,840,000 for attorney's fees and expenses of litigation.

You can learn more about this specific case here:     

But, I digress. Why, in this example does AI attempt to provide a numerical answer? Perhaps, it is because I asked it to. But why not answer the question in a way that acknowledges AI’s current shortcomings? An answer that simply encouraged me to seek the advice of an experienced lawyer would be more helpful and minimize the risk that I would be misled by the response.

The injured person would need to consult an experienced lawyer and discuss several issues that would arise in a case like this. So, what are some variables an experienced lawyer should consider in estimating case value?

  1. How can Georgia’s comparative fault laws effect a personal injury recovery? In Georgia, a jury can allocate percentages of fault between the Plaintiff, Defendant, and Non-Parties. The juries’ allocation of fault between those persons will determine whether the Plaintiff may recover and whether the Plaintiff’s total damages will be reduced. Georgia’s comparative negligence laws, would completely bar a recovery if the jury determined that the Plaintiff was 50% or more at fault. O.C.G.A. § 51-12-33(g). If the jury found the Plaintiff to be more than 0% but less than 50% at fault, the judge would be required to reduce the total damages awarded to the Plaintiff in proportion to his or her percentage of fault.
  2. Where would the lawsuit be filed? In legal circles, we call that “jurisdiction” and “venue.” Jurisdiction and venue matter! If a federal court has jurisdiction over the case, a lawyer must be admitted to practice before that court and intimately familiar with its local rules. Also, if a state court has jurisdiction, a lawyer must know what county is appropriate for filing suit. This is referred to as “venue.” Jury verdicts vary tremendously between counties in the State of Georgia and, on average, there is a clear difference in the amounts awarded by juries in traditionally conservative venues versus progressive venues.
  3. What is the legal status of the injured person? Was he an invitee, licensee, or trespasser? The duty owed by a property owner is different depending on whether the injured person is a business customer (invitee), social guest (licensee), or trespasser.
  4. Does the amount of time someone will suffer from the injury affect case value? Yes! The lawyer needs to determine whether the injuries are permanent. This is done by consulting with reputable medical professionals who can offer opinions about how the injuries will affect, if at all, the injured person over the remaining years of his or her life. Juries tend to award higher damages if the injured person suffers from his or her injuries for a long period of time.
  5. What if I’m injured, and the property has no insurance? If the property owner or occupier has no unencumbered assets and no insurance, the injured person may not want to bring a claim. After all, the “value” of the case is $0, if there is no person, entity, or insurer to pay for the damages. However, if the property owner has sufficient liability insurance to pay for the injured person’s damages, it may be worthwhile to bring a personal injury claim.

The list of variables one must consider when estimating the value of an injury case is lengthy, but the lesson here is that everyone should use extreme caution when using AI to assign “value” to personal injury claims. AI’s ability to provide an accurate response is limited by the information it is provided. If the person who submits an inquiry to AI does not know the proper variables to include in a question, he or she is likely to receive an inaccurate answer. AI is also limited by what it has “learned” and what information is available when it formulates an answer. AI will undoubtedly make many aspects of our lives easier, but it has a long way to go before it can be relied upon to provide reliable legal advice.

CoPilot did acknowledge that “It’s important to consult with a personal injury attorney who can evaluate all aspects of the case…” Kuddos to CoPilot for acknowledging this important fact; however, CoPilot made a monumental error that could harm the consumer by offering to find a “reputable” personal injury attorney in Georgia. I responded, “Yes” (and am not including CoPilot’s response here because I do not feel it is appropriate to provide additional publicity to one of the firms that was recommended).

CoPilot recommended four personal injury law firms. One of those firms was highly reputable and I would not hesitate to hire them for my own case. However, one of the firms is being sued in a class action in the State Court of Gwinnett County, Georgia for violating O.C.G.A. § 33-24-53 (Unlawful Solicitation of Personal Injury Victims), O.C.G.A. § 16-14-4 (Racketeer Influenced and Corrupt Organizations Act), and O.C.G.A. § 10-1-391 (Fair Business Practices Act). The style of the case can be found on the Georgia Court of Appeals website. Why would CoPilot recommend a law firm that is facing such accusations?

All in all, if you are injured and curious about the value of your case, don’t trust AI to provide a value or to recommend a law firm. Do your own research. Talk to lawyers and search for credible information on law firm websites and YouTube Channels. Many reputable law firms provide accurate and free information if you simply look for it. For example, you can find advice on anything from finding the right lawyer for your case to What is a Neck Injury Worth to How Long Will My Workers Compensation Case Take?

The decisions one makes after a personal injury will greatly impact his or her finances. Those decisions should be made with the advice of a reputable and experienced lawyer. CoPilot and I agree on this basic principle. Call a good lawyer. It won’t hurt.

Nursing Home Abuse and Injury Cases in Georgia

Elderly abuse from negligent nursing home in Georgia.

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

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

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

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

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

Under federal regulations, nursing homes are required to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some additional changes required:

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

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

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

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

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

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

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

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

Autonomous Vehicles and Georgia Personal Injury Law

young woman reading a magazine in a autonomous car. driverless car. self-driving vehicle. heads up display. automotive technology.

Navigating a New Legal Landscape: Self-Driving Cars and Georgia Personal Injury Law

What once seemed like a futuristic pipedream is now a reality- The Insurance Institute for Highway Safety expects there to be 3.5 million vehicles with self-driving capabilities on the road by 2025. While this technological advancement promises greater convenience and safety on the roads, it also raises complex legal questions, especially concerning personal injury claims.

Understanding Self-Driving Technology

Self-driving cars, also known as autonomous vehicles, utilize advanced sensors, cameras, and artificial intelligence algorithms to navigate roads without human intervention. Tesla, a frontrunner in this field, has been developing its FSD mode, which aims to enable fully autonomous driving capabilities. While most major automakers’ new vehicles provide backup sensors, front crash warning systems, laser-guided cruise control and lane assist features to help cars remain in the correct lane, Tesla is the first to take the next step toward providing a truly autonomous vehicle.

Tesla’s Full Self-Driving (FSD) Mode

Tesla’s FSD mode represents a significant leap forward in autonomous driving technology. It incorporates features such as Autopilot, Navigate on Autopilot, and Traffic Light and Stop Sign Control. These features allow the vehicle to practically drive itself. Once engaged, the system will drive the vehicle with virtually no human intervention. It is capable of seeing and reacting to other vehicles on the road, changing lanes, reading road signs, obeying traffic lights, yielding to pedestrians, navigating to locations, and parking itself all without human intervention. While these features offer convenience and enhanced safety, they also pose two major questions: (1) are they safe and (2) what are the legal considerations in the event of accidents or injuries.

Are Autonomous Vehicles Safe?

Determining the safety of autonomous vehicles is difficult because there is currently no reliable way to confirm whether a driver was using the automated driving mode at the time of a crash. However, most safety agencies agree that automated driving systems offer significant potential to reduce traffic crashes. The National Highway Traffic Safety Administration (NHTSA) of the U.S. Department of Transportation reports that 94% of crashes in the United States are caused by some sort of human error, with the leading causes being driving under the influence, distracted driving, and driving while tried. Therefore, the Department of Transportation found that automated driving systems “have the potential to significantly reduce highway fatalities by addressing the root cause of these tragic crashes.”

However, the question still remains as to whether these systems are “safe enough” to rely on for day-to-day use. I have spent the last three months driving a Tesla with Full Self-Driving capabilities and am not ready to say that it is “safe enough.” While I am, by no means, a safety expert, I can definitely say there were moments where, if left unchecked, the car would have caused a crash.

FSD technology does so many things well. However, there are certain situations where it fails miserably and others where it is just annoying. It fails miserably at seeing large white objects on clear sunny days. I have twice been in situations where I was stopped at a stop sign and the car almost pulled out directly in front of a large white vehicle crossing the intersection in front of me. Had I not been paying attention and disengaged the system, the FSD would have caused a crash in both instances. The FSD is annoying in the time it takes to make decisions in certain situations. At times, I can sense the car “thinking” about whether an action is safe. This feels like it takes forever and really slows down other traffic in the area. For example, when the car parks itself, it stops in the middle of the parking lot for a significant amount of time as it measures/plans its path to park. Also, when waiting to pull out from an intersection, the car will wait quite a while when there is no traffic coming to ensure it is safe to go. While these delays are probably safer, it does seem to cause congestion and annoyance to other drivers.

Despite my anecdotal evidence of issues with the technology, Tesla has published data showing that its FSD technology is safer than human driving. Tesla’s data reveals that it recorded one crash for every 7.65 million miles driven using its FSD technology, while the most recent data available from NHTSA reveals that, in the United States, there was one crash approximately every 670,000 miles driven. Thus, Tesla claims that its FSD technology is 1,100% safer than the average American driver.

Legal Implications of Autonomous Vehicles

Determining liability in a crash involving an autonomous vehicle will likely be much easier due to the technology available on the vehicles. All autonomous vehicles are equipped with multiple cameras, which record and store data in real time. Therefore, after a crash, it is much easier for the responding office to pull the video from the car to see exactly what happened in the wreck and determine who was at fault. The driver of the autonomous vehicle is still responsible for the actions of the car; thus, fault would still lie with the autonomous vehicle driver even if the crash occurred while operating in self-driving mode.

The more complicated question involves insurance coverage. Who must pay for the crash? To date, Georgia law has not passed any statutes directly addressing insurance coverage as it relates to autonomous vehicles. Therefore, normal negligence and insurance law applies, which would make the driver of the at-fault vehicle and her insurance company responsible for the damage caused by the crash.

However, in a crash involving serious injuries where a malfunction of the autonomous driving software caused the crash, an injured party may be able to pursue a products liability claim against the manufacturer of the car/software. These cases can be complex; nevertheless, it is most certainly an avenue that an experienced personal injury attorney would explore should the facts warrant it.

The Rise of Robo-Taxis: What You Need to Know

Beyond individual ownership, the concept of Robo-taxis, or autonomous ride-hailing services, is on the horizon. Companies like Tesla and Waymo are exploring the potential for deploying fleets of self-driving vehicles for on-demand transportation. While this promises greater accessibility and efficiency, it also raises questions about insurance coverage, regulatory compliance, and passenger safety. Deploying these types of vehicles on Georgia’s roads will most certainly require new laws to determine what types of insurance coverage is required and who would be responsible for providing that coverage. Only time will tell how this plays out in the Georgia Legislature.

How to Protect Your Rights in a Self-Driving Future

In the face of rapid technological advancement, it’s crucial for individuals to stay informed and proactive about their legal rights. If you’re involved in an accident involving a self-driving car, here are some steps to take:

   1. Seek Medical Attention:

           Your health and safety should always be the top priority. Seek medical attention for any injuries sustained in the accident.

   2. Document the Scene:

           Gather evidence, including photographs of the accident scene, vehicle damage, any relevant road conditions, and check with the autonomous vehicle driver to see if there is video of the crash.

   3. Contact Law Enforcement:

            Report the accident to the police and obtain a copy of the accident report.

   4. Consult with an Attorney:

            A skilled personal injury attorney can help preserve evidence, assess your case, advise you on your legal options, and represent your interests in negotiations or litigation.

Conclusion

Self-driving cars hold the promise of a safer and more efficient transportation future. However, as with any technological innovation, there are legal considerations that must be addressed. By understanding your rights and seeking knowledgeable legal representation, you can navigate the complexities of personal injury claims in the age of self-driving cars. The experienced personal injury attorneys at Williams Elleby Howard & Easter work hard to get accident victims the compensation they deserve.

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

Medical Malpractice Misdiagnosis

Female patient in a hospital bed holdong her face.

Misdiagnosis Medical Malpractice Lawsuits in Georgia

Although not every case of misdiagnosis in Georgia leads to injury or a medical malpractice lawsuit, the impact of serious injuries resulting from misdiagnosis is significant. In 2023, joint researchers from the Johns Hopkins School of Medicine and Harvard Medical School  determined that annual misdiagnoses in the United States resulting in serious injury ranged from 598,000 to 1,023,000 patients.  Newman-Toker DE, Nassery N, Schaffer AC, et al Burden of serious harms from diagnostic error in the USA BMJ Quality & Safety 2024;33:109-120. The study defined “serious” as any case involving permanent injury (morbidity) or death (mortality). 

Additionally, the National Academies of Sciences, Engineering, and Medicine (NASEM) published a consensus report which emphasized the urgent need for change to address diagnostic errors, which pose a major challenge to healthcare quality. The Committee defined a misdiagnosis as “the failure to

  • (a) establish an accurate and timely explanation of the patient’s health problem(s) or
  • (b) communicate that explanation to the patient.”

NASEM, 2015, Improving Diagnosis in Health Care. Washington, DC: The National Academies Press.  

Should I File a Lawsuit for Misdiagnosis?

When injured patients and their attorneys are considering whether to file a medical malpractice lawsuit based on a misdiagnosis or delayed diagnosis, several critical questions come into play:

  1. Accuracy and Timeliness of Diagnosis:
  • Was the initial diagnosis accurate and timely? A misdiagnosis occurs when a healthcare provider fails to establish an accurate and timely explanation of the patient’s health problem.
  • Evaluating the accuracy and timing of the diagnosis is crucial in determining whether there was negligence or error.
  1. Harm Caused by Misdiagnosis:
  • Did the misdiagnosis result in serious harm that could have been avoided? Patients must demonstrate that the harm they suffered directly resulted from the misdiagnosis.
  • This harm can include permanent injury (morbidity) or even death (mortality).
  1. Expert Testimony and Support:
  • Can all aspects of the case be supported with testimony from medical experts? Expert opinions play a significant role in medical malpractice lawsuits.
  • Expert witnesses can provide insights into whether the misdiagnosis fell below the standard of care and caused harm.
  1. Justification for Legal Action
  • Are the injuries severe enough to warrant pursuing a medical malpractice lawsuit? Legal proceedings can be expensive and time-consuming, especially when they involve medical malpractice.
  • Weighing the severity of injuries against the costs involved is essential when deciding whether to proceed with legal action.

Seeking Compensation for Misdiagnosis in Georgia Requires the Help of an Experienced Medical Malpractice Attorney

Imagine these scenarios: A pregnant woman is told everything is normal at a prenatal appointment, but she is showing signs of premature labor.  A brain infection is thought to be cancer, subjecting the patient to dangerous radiation therapy that makes the infection worse and causes brain damage.  Critical imaging showing internal bleeding is not communicated in a timely manner, resulting in the patient’s death.  These are all examples of medical misdiagnoses cases that resulted in tragic outcomes and, eventually, medical malpractice lawsuits filed by Williams Elleby Howard & Easter.

When a misdiagnosis results from negligence, Georgia laws provide a remedy for the victim. Like most states, Georgia requires every licensed treater to exercise “reasonable care and skill” when treating a patient.  Ga. Code § 51-1-27.  In limited circumstances involving patients admitted through an Emergency Department (“ED” or “ER”), a treater is immune from malpractice claims unless the treater is guilty of “gross negligence,” which is a failure to exercise even slight care.  Ga. Code § 51-1-29.5 .

The duty to exercise care when treating patients applies to anyone providing treatment for compensation including medical doctors, nurse practitioners, physicians’ assistants, laboratories, chiropractors, and physical therapists.  In the case of a failure to communicate a condition to a patient, there can also be claims against staff at hospitals, doctor’s offices, and laboratories.

Proving Harm in Misdiagnosis Cases

Even if a negligent misdiagnosis occurred, Georgia law also requires a patient to prove that the misdiagnosis “caused or contributed to cause … harm.  In the legal world, we refer to this concept as “proximate causation.” To meet this burden, a medical malpractice plaintiff must present expert testimony.” Harvard v. John D. Archbold Mem’l Hosp., Inc., 365 Ga. App. 171, 174, 877 S.E.2d 816, 819 (2022).   For instance, in 2022, the Court of Appeals of the State of Georgia reviewed a case involving a stroke victim who did not get timely treatment due to delayed lab work and CT scan results.  However, the patient’s expert witness could not testify that the delay made a difference “to a reasonable degree of medical certainty,” or more likely than not.   So, the Court held that the case could not proceed to trial.  Harvard, 365 Ga. App. at 176.  

Moreover, injured patients and their attorneys must assess the economic viability of filing a medical malpractice lawsuit. At its core, the question is whether the damages resulting from malpractice outweigh the substantial financial costs associated with legal proceedings. Most medical malpractice lawsuits require more than $100,000.00 in expenses to pursue. These expenses encompass things like expert witness fees, filing fees, record retrieval fees, medical illustration and animation fees, deposition fees, and more. Additionally, the patient’s attorney invests countless hours in the case. Therefore, evaluating whether the case justifies the financial and time commitments becomes crucial for both the patient and their legal representative.

The Time Limit for Bringing a Misdiagnosis Lawsuit in Georgia

In misdiagnosis cases, understanding the time frame for filing a lawsuit is crucial.  In Georgia, nearly all medical malpractice cases adhere to a 2-year statute of limitations, requiring patients to file a lawsuit within 2 years from the date of negligence.  Ga. Code § 9-3-71. The Supreme Court of Georgia emphasizes that, “except in the most extreme circumstances,” the statute of limitations begins to run “immediately upon the misdiagnosis.”  However, there’s an exception: if the misdiagnosis results in a “new injury” such as a pre-cancerous mole progressing to metastatic cancer.  Amu v. Barnes, 283 Ga. 549, 551, 662 S.E.2d 113, 116 (2008). Since a patient might not know about the misdiagnosis initially, the clock could start ticking before they realize the need to investigate potential malpractice.  Like any malpractice case, seeking advice from a qualified attorney promptly is advisable.

Misdiagnosis Medical Malpractice Attorneys in Georgia

Medical malpractice cases can be complex and difficult to prove. This is especially true when it comes to misdiagnosis cases. Even though these claims can be difficult to win, victims of harm should still understand their legal rights and options.

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

If you or a loved one has been harmed because a doctor failed to properly diagnose an illness, Williams Elleby Howard & Easter, can help you understand your misdiagnosis claim and work to get you the compensation you deserve.

Distracted Driving is a Real Problem in Kennesaw, GA

distracted driving accidents deadly

Automobile Accidents are a Real Problem in Cobb County, GA

According to Georgia Automobile Crash Data published by the Georgia Department of Transportation (“GDOT”) on its crash data portal, there were 25,716 accidents in Cobb County, Georgia during 2022. 10,603 people were injured in those accidents and 77 died.  These statistics are alarming but they are down right scary when we break them down further. These statistics suggest that in 2022, on average, 70.45 accidents occurred every day in Cobb County. Again, on average, 29.04 people are hurt in these accidents every day and someone died every 5.18 days.

Distracted Driving is a Dangerous Habit for Many Georgia Drivers

A major cause of deadly traffic accidents is distracted driving. In today’s high paced world, drivers can be distracted by many things ranging from cell phones to kids arguing in the back seat. 52,149 of the 57,605 distracted driver convictions reported to the Georgia Department of Driver Services in 2021, were for violations of O.C.G.A. § 40-6-241(c) Unlawful Use of Wireless Device. Of all the counties in Georgia, Cobb County had the third most convictions for violations of O.C.G.A. § 40-6-241(c). The only Georgia counties with more convictions for Unlawful Use of a Wireless Device were Fulton and Gwinnett Counties. Detailed distracted driver data reports for Georgia can be found on the Georgia Department of Driver Services website.

Despite extensive research showing just how big of a problem distracting driving is, drivers continue to engage in behavior that causes them to lose focus on the road. People often underestimate the risk of talking on the phone, text messaging, eating while they drive, or overestimate their ability to multitask. But with lives at stake, practicing safe driving habits is crucial.

Careless Tractor Trailer Drivers Drive While Distracted

Just a few years ago, this author was contacted by a potential client after he was rear-ended by a tractor trailer driver on Interstate-285 outside of Atlanta. At first glance, the case seemed to be fairly routine but things got interesting when I filed suit and obtained the tractor-trailer driver’s cell phone records.

During the lawsuit, I served written discovery on the tractor-trailer driver, his employer, and his insurance company. Initially, they vehemently denied that he was using his cell phone at the time of the crash. Specifically, the driver claimed he was checking his mirrors as a safety measure prior to the crash:

His cellular provider’s records told a different story. The driver was, in fact, engaged in a lengthy text messaging conversation during his trip and at the time of the crash. This was easily proven by comparing the Georgia Crash Report – Crash Date & Time to the driver’s cell phone records as shown below:

When this tractor trailer driver was texting and driving, he knew that his actions were dangerous. He said so in his deposition testimony:

6         Q.  Did you know at the time of this
7.    wreck and did you believe at the time of this —
8.    that this wreck occurred that texting and driving
9.    was, as on this video we just watched, one of the
10.  most dangerous things you can do while driving a
11.  vehicle?
12.       A.  Yes, I was aware.
13.       Q.  And did you it anyway?
14.        A.  Yes.

This driver’s dangerous choice to text and drive caused significant injuries to my client that resulted in a very expensive and risky neck surgery. As a consequence of this driver’s choice to text and drive, my client will never be the same. He has internal hardware to stabilize his spine and he will never again be the same father and husband he once was. In addition to my client’s serious injuries, this driver’s employer had to pay a large amount of money to settle this claim.

Nobody “won” in this situation. A man’s life was forever altered and a company lost a lot of money due to its driver’s dangerous choice to text and drive. We should all keep this lesson in mind so we don’t make the same dangerous mistake.

Common Bad Habits to Avoid While Driving in Georgia

  1. Texting. This is a bad and dangerous habit in Georgia and throughout the country. Texting while driving is extremely dangerous. Some research shows that the dangers of texting and driving can be as profound as those associated with drinking and driving. Texting and driving should always be avoided for safety reasons. Moreover, it is illegal to do so in Georgia and punishable by a fine. 
  1. Using apps or other phone functions. Equally dangerous is using your phone to access apps, music, or any other functions. For instance, one study suggested that the rising popularity Pokemon Go was causing more accidents on the road because game-obsessed drivers sometimes try to play as they drive. Like texting, using smartphone applications while driving should always be avoided.
  1. Talking on the phone. Some studies show that even hands-free cell phone conversations present a significant risk. Although hands-free calling is a safer way to communicate than texting, you should be aware that it still presents a risk on the road.
  1. Eating and drinking. Some people eat and drink when they drive. In fact, at one time or another most people have probably tried to grab a bite or sip on a soda while behind the wheel. While there are some circumstances where this might be safe, you should never eat or drink anything that takes both hands, is messy, or can be easily spilled.
  1. Any other multitasking. There are countless other ways a person can be distracted trying to multitask as they drive. Anytime you are taking attention away from your driving to do something else, it can be a problem and a safety hazard.

Distracted Driving Poses Significant Financial Risks

Distracted driving poses significant financial risks, impacting individuals and society at large. Lets explore some financial consequences that may arise from this dangerous behavior:

  1. Increased Auto Insurance Premiums: Traffic violations related to distracted driving lead to higher automobile insurance premiums. When you receive a citation for distracted driving, your automobile insurance costs can increase significantly. According to The Zebra, a 2024 cell phone violation can increase your insurance premiums by 21.56%. Repeated offenses can compound these costs resulting in prohibitively expense automobile insurance premiums. 
  1. Insurance Claims and Payouts: Insurance companies are in the business of making money. Distracted driving accidents result in property damage and personal bodily injury payouts. An “at-fault” distracted driving accident will almost certainly increase the at-fault driver’s premiums. However, the financial fallout does not stop with that driver. When more distracted driving accidents occur, automobile insurers will have higher overall claims expenses. This means that those increased expenses will be passed along to the public in the form of higher premiums.
  1. Property Damage and Repairs: Distracted driving often results in crashes, leading to property damage. Repairing or replacing damaged vehicles can be expensive, especially in the modern world where vehicle maintenance and repair costs continue to rise.
  1. Medical Expenses: Distracted driving accidents can result in injuries to drivers, passengers, and pedestrians. Medical expenses, including hospital bills and doctor visits can quickly add up.
  1. Legal Fees and Fines: Most states have enacted laws that impose monetary fines on individuals who plead guilty or are convicted of distracted driving. For example, in Georgia, the monetary fines can be found at O.C.G.A. § 40-6-241(f)(1).
  1. Lost Wages and Productivity: When distracted driving leads to accidents, the accident victims often miss time from work to deal with car repairs, doctor’s appointments, etc. This can result in lost income for the victims and lost productivity for employers when their employees are unable to perform their job duties efficiently.
  1. Vehicle Depreciation: Most of us know that the resale value of a damaged vehicle is much less than a non-wrecked vehicle. Even after repairs, potential buyers may hesitate to purchase a car with an accident history.
  1. Business Costs: When commercial vehicles are involved in distracted driving accidents, the businesses often face repair costs, insurance claims, and lost revenue. For example, when a tractor trailer driver is involved in a distracted driving accident, the trucking company will likely face several claims that include damaged cargo, property damage, worker’s compensation, and even third-party bodily injury. It may not end there. If the company has a history of distracted driving accidents caused by its drivers, it may face regulatory penalties and lose business from customers that hire it to transport goods.

Distracted Driving is a Top Concern for Automobile Accident Lawyers

Personal injury automobile accident lawyers are usually interested in whether the at-fault driver was distracted at the time of the wreck that injured their client. There are many reasons for this but the primary reason is that injury claim and lawsuit awards are usually larger when the are aggravating circumstances that contribute to the wreck.

So, why are monetary awards typically larger when someone causes a wreck while they are distracted? In this author’s experience, it is because the distracted driver is less sympathetic than an attentive driver who simply made a mistake.

In most situations, a conscious choice must be made to take whatever action caused the distraction. For example, someone must choose to use their cell phone. They must choose to wear earbuds. They must choose to check their email. They must choose to play a game. They must choose to apply makeup. A conscious choice is much different from an innocent mistake where someone, for example, misjudges the distance between themselves and another driver.

Additionally, drivers that violate a distracted driving law may be negligent per se. This means the law presumes that the distracted driver breached their duty of care and is negligent as a matter of law. In negligence per se cases, the injured party (usually the Plaintiff) only needs to prove that the negligent acted “caused” their damages (and of course, what those damages are).

The lesson here is quite simple. Distracted driving exposes drivers to significant financial burdens so don’t do it.

Be Safe: Focus on the Road When Driving

Driving isn’t a time to lose focus. Every day, most Americans drive and it is easy to get complacent. Distracted driving not only jeopardizes lives but it also results in substantial financial burdens. By staying focused on the road, we can mitigate the risks of driving and promote safer driving practices for everyone.

If you’d like more information, or if you’ve been injured by a distracted driver, feel free to contact the personal injury lawyers at Williams Elleby Howard & Easter at (833) 534-2542 in Kennesaw, Cobb County, Georgia today.

Animal Bite Injuries

A dog with sharp teeth aggressively barking.

WHAT IS GEORGIA’S DOG BITE LAW?

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

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

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

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

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

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

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

The Statute of Limitations for Bringing Dog Bite Claims

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

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

Contact Williams Elleby Howard & Easter Today for More Information

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

The Impact of Falling Objects: Legal Rights and Compensation

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

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

Falling Object Injuries on Work Sites

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

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

Georgia’s Workers’ Compensation Law

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

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

Non-Worker Victims of Harm

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

Premises Liability vs Negligence: Who is Responsible

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

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

Examples of Overhead Work Protection Measures:

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

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

Damages in a Personal Injury Suit

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

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

Real World Experience  

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

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

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

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

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

For More Information, Contact Williams Elleby Howard & Easter

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

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

$6,440,000 Personal Injury Verdict Awarded in Cobb County, GA

A judges wooden gavel is resting on top of the left side of a red hardcover book with the word LAW in gold writting writting with a white paper rolled into a scroll with the words Personal Injury wrtting on the scroll.

A Georgia jury in the State Court of Cobb County awarded a man post-apportionment damages of $3.45 million with an additional $1.84 million in attorney’s fees for injuries he sustained after falling into an unguarded concrete pit beside a golf course clubhouse in Hiram, Georgia.

Insurance Company Rejects Lower Settlement Offers

The verdict came after the Defendant’s insurer rejected numerous offers to settle for less than the insurance policy limits. Plaintiff’s counsel, Joel Williams of Williams Elleby Howard & Easter and Matthew Stoddard of The Stoddard Firm, said that multiple attempts to settle the case were made throughout the course of litigation, culminating with Plaintiff proposing a high-low agreement of $465,000 – $1.5 million after closing arguments (The high low agreement would have limited the Defendant’s exposure to $1.5 million [an amount within the insurance policy limits] if the verdict were for a higher amount but guaranteed the Plaintiff at least $465,000 if the verdict was for less). However, the Defendant’s insurance company declined all of Plaintiff’s offers to settle within its insured’s policy limits, forcing the case to trial and subsequent verdict.

The case was defended by Beth Bentley and Bill Casey of Swift, Currie, McGhee, & Hiers. Stoddard and Williams were complimentary of the professionalism displayed by Bentley and Casey. Williams’ stated, “Beth and Bill are excellent lawyers that did the best they could with a tough set of facts.”

Facts Leading to Fall from Unguarded Concrete Pit

The case initiated from an incident on February 6, 2021, when Plaintiff was invited to a country club in Hiram, GA to pick up his girlfriend who was the bar & grill manager at the club. The Plaintiff arrived at the bar and had some drinks while waiting for his girlfriend to finish her shift. As the bar was closing, Plaintiff’s manager/girlfriend asked him to go put some DJ equipment in his truck. The plaintiff walked outside and put the equipment in his truck. It was a cold and rainy night, so Plaintiff wanted to get back inside. He tried to re-enter the bar & grill, but the Defendant’s employees had locked all the doors and turned off all exterior lights. Plaintiff attempted to call his girlfriend to open the door.

When Plaintiff’s phone calls went unanswered, he decided to walk around the building and see if any other doors were unlocked. He made it around one side of the building when he fell nearly 12 feet from an unguarded retaining wall and into a concrete pit where he landed on his head, broke multiple bones, and sustained a brain injury. In this picture, emergency worker’s can be seen attending to the injured Plaintiff at the bottom of the dark and unguarded pit:

A white building with a deck, without any lights on, in the night.

Plaintiff’s Injuries

Plaintiff was rushed to the emergency room where he spent nearly a week in the hospital. Upon release, he began treating with an orthopedic surgeon who eventually recommended that he undergo a cervical fusion surgery. He had the procedure and recovered well. However, his life was forever changed by the seriousness of his permanent injuries. Plaintiff’s past medical bills at the time of trial were about $362,000.00.

Defendant Failed to Act on Warnings

Testimony revealed that approximately four months prior to the fall, the Defendant hired a landscaping company to remove bushes and trees that acted as a natural barrier around the edges of the concrete pit. The bushes can be seen in this photo (sorry, the picture quality is poor but it is the best picture available):

Picture of bushes and trees in front of a building.

At the time of removal, the landscape company warned Defendant that the pit was dangerous and that they should install a fence to guard the pit. There was also evidence that the unguarded pit violated municipal safety codes previously adopted by the City of Hiram. In additional to violating safety codes, the evidence showed that the Defendant had another concrete pit on the opposite side of its building that was guarded by a metal railing as shown in this photograph:

There is a railing beside a paved concrete slab in front of a white building with a deck.

Furthermore, one of Defendant’s employees testified that she observed children playing tag near the pit. Another employee testified that Defendant discussed concerns about a drunk person falling into the pit at a management meeting prior to the fall. The Defendant’s owner, testified that safety was the company’s number one priority and that the Defendant intended to place a fence along the pit due to safety concerns. Despite all this, a fence was not installed before Plaintiff’s fall because it remained on a to-do “list” while the company completed other projects during its “slow season.” Shockingly, some of those other projects included installing decorative split rail fencing around other areas of the golf course.

The Defenses

Stoddard and Williams said the Defense asserted a plethora of defenses. The defense argued that Plaintiff was a trespasser who never paid for his drinks (despite testimony from the club manager that he saw a tab with Plaintiff’s name on it); that Plaintiff was drunk at the time of the fall; that Plaintiff should have used his phone’s flashlight to see where he was going; that Plaintiff was not allowed on the part of the property where the fall occurred; that Plaintiff left a path and walked through the woods to reach the pit; and finally, that Plaintiff’s spinal injuries were degenerative and not caused by the fall.

Trial Begins

Trial began on December 18, 2023, before Judge Jane Manning in the State Court of Cobb County. Plaintiff’s counsel relied on testimony from Plaintiff, his ex-girlfriend/bar manager, the landscaper, ex-company employees, and Plaintiff’s treating physicians. Defense counsel called two of the Defendant’s employees, along with a code expert, toxicology expert, and neurologist to dispute liability and causation.

In the lead up to trial and throughout, Plaintiff continued to make offers within Defendant’s policy limits to resolve the case. However, Defendants declined all of Plaintiff’s offers, never offering more than $585,000. After a four-day trial, the jury spent about five hours deliberating before returning a verdict for $4,600,000 in compensatory damages. The jury apportioned 25 percent of the fault to Plaintiff, reducing the total compensatory award to $3,450,000. The jury also found there was bad faith in the underlying transaction and awarded $1,840,000 in attorney’s fees pursuant to O.C.G.A. § 13-6-11. In awarding attorney’s fees, the jury found that the Defendant’s conduct demonstrated a conscious indifference to the consequences of its actions (i.e. failing to act on its admitted knowledge of the danger, its failure to heed warnings from its landscaping contractor, its failure to comply with code, and other things).

A verdict form from the state court of Cobb County in the state of Georgia, showing the plaintiff in this case was 25% at fault and the defendent was 75% at fault.
A piece of paper showing showing a jury award of $1,840,000 on 12/15/2023.

Stoddard and Williams agree that this is a very sad case involving serious life altering injuries and that this tragedy is made worse by the fact that the Defendant is now facing a judgment that exceeds its insurance limits due to its insurer’s refusal to accept multiple settlement offers within its insurance limits. Plaintiff’s counsel, Joel Williams, explained, “This is the perfect example of what happens when insurance companies refuse to protect their insureds. Insurance companies readily accept our premium payments but they often fall short when we need them to do what we pay them to do: Protect us, and our assets, when we face liability claims. Special interest groups love to blame lawyers for so-called “nuclear” or “excess” verdicts but the truth is that we would rarely see large jury verdicts if insurance companies would accept reasonable settlement offers and protect their insureds when they are given an opportunity to do so, as we did numerous times prior to the verdict in this case.”