Georgia Slip and Fall Laws

Worker falling on wet floor inside building

A serious fall can happen in an instant, turning a normal day into a blur of pain, embarrassment, and confusion. One moment you are walking through a store, an office building, or a parking lot, and the next you are on the ground, injured by a hazard that never should have been there. While your first priority is getting the medical care you need, you will soon find that the Georgia slip and fall laws can be surprisingly complex. slip and fall accident lawyer in Kennesaw, Georgia can help you navigate these legal challenges and protect your rights.

Let’s review the relevant premises liability laws that may apply to your situation. Understanding your rights and the challenges you may face when bringing a personal injury claim is the first step toward securing the justice and compensation you deserve.

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What Makes a Slip and Fall More Than Just an Accident?

Two yellow caution signs are placed on the steps of an escalator. The signs warn people to be careful while using the escalator

It is a common misconception that if you fall on someone else’s property, they are automatically responsible for your injuries. Determining who was at fault is more complicated than you may expect. The law recognizes that sometimes, accidents just happen. A legal claim only arises when a property owner’s negligence caused your fall.

This area of law is called premises liability. The core idea behind premises liability is that property owners have a legal responsibility—a “duty of care”—to maintain their property in a reasonably safe condition to prevent foreseeable harm to visitors. When they fail in this duty, and that failure directly causes an injury, they can be held financially responsible for the resulting damages. Proving this failure is the key to a successful slip and fall case.

The Heart of Slip and Fall Legal Actions: The Property Owner’s Duty of Care

In Georgia, the specific level of care a property owner must provide depends on why you are on their property. The law defines three categories of visitors, and the owner’s legal duty changes for each one.

The Invitee: The Highest Level of Protection

An “invitee” is someone who has been invited onto a property for the owner’s commercial benefit. This is the category most slip and fall victims fall into. For example, if you are a customer in a grocery store, a diner in a restaurant, a guest in a hotel, or a client in an office building, you are considered an invitee.

Property owners owe the highest duty of care to invitees. They must not only warn you of known dangers but also exercise ordinary care to actively inspect their property to discover and correct any potential hazards. This means they cannot simply claim they didn’t know about a spill; they have a responsibility to look for dangers and make them safe.

The Licensee: A Social Guest

A “licensee” is a person who is on the property for their own convenience or pleasure, with the owner’s permission but without any business purpose. The most common example is a social guest, like a friend you invite over to your home for dinner.

The duty of care owed to a licensee is lower. A property owner is not required to inspect for unknown dangers. Their only duty is to warn a licensee of any known, man-made hazards that the guest is unlikely to discover on their own. For example, if you know a step on your back porch is broken, you have a duty to tell your friend about it.

The Trespasser: A Limited Duty

A “trespasser” is someone who enters a property without any permission. Generally, property owners owe no duty of care to a trespasser. Their only obligation is to refrain from willfully or wantonly injuring them. There are some exceptions, particularly for children, under what is known as the “attractive nuisance” doctrine.

Proving Your Case: The Challenge of Whether the Property Owner or Manager Had Knowledge

The biggest hurdle in almost every Georgia slip and fall case is proving that the property owner or manager had “knowledge” of the dangerous condition that caused your fall. Simply showing that a hazard existed is not enough. Under Georgia law, you must prove that the manager or owner had either “actual” or “constructive” knowledge of the hazard.

What is Actual Knowledge?

This is the most straightforward type of knowledge. “Actual knowledge” means the property owner or one of their employees literally knew about the specific hazard and failed to take reasonable steps to fix it or warn visitors. For example, if a grocery store employee sees a customer drop a jar of salsa on the floor and then walks away without cleaning it up or placing a warning sign, the store has actual knowledge of the dangerous condition.

What is Constructive Knowledge?

In most cases, proving actual knowledge is difficult. This is where “constructive knowledge” comes in. Constructive knowledge means the hazardous condition existed for a long enough period of time that the property owner should have known about it if they had been conducting reasonable inspections of their property.

To prove this, you must present evidence about timing. How long was the puddle of water on the floor? When was the last time an employee walked down that aisle? Security camera footage can be invaluable in these cases because it can show exactly when a hazard appeared and how long it was left unaddressed before the fall. Without proof of a sufficient amount of time passing, an owner may successfully argue they had no reasonable opportunity to discover the danger, and the case might be dismissed.

The “Open and Obvious” Defense: A Common Legal Hurdle for Fall Victims

Even if you can prove the owner had knowledge of the hazard, the fight is not over. The most common defense tactic used by insurance companies is to argue that the danger was “open and obvious.” They will claim that the hazard, whether it’s a puddle of water, a broken piece of pavement, or a box in the store aisle, was so clearly visible that you should have seen it and easily avoided it.

Under Georgia law, visitors also have a duty to exercise ordinary care for their own safety. If a hazard is truly open and obvious, an owner may not be held liable because it is expected that a reasonably prudent person would have recognized and avoided it.

However, this is not an absolute defense. A skilled slip and fall attorney may be able to counter this argument by using the “distraction doctrine.”

For example, in a retail store, owners use bright displays, colorful signs, and eye-level product arrangements specifically to draw your attention away from the floor. It is reasonable and foreseeable that a customer’s attention will focus on the shelves, not scanning the floor for hazards. Proving that you were reasonably distracted can overcome the “open and obvious” defense.

Georgia’s Comparative Negligence Rule: What If You Are Partially at Fault?

Insurance companies will also try to argue that even if the property owner or manager was negligent, you were too. They might say you were looking at your phone, walking too fast, or not paying attention. This strategy takes advantage of Georgia’s modified comparative negligence law (O.C.G.A. § 51-12-33).

This rule states that you can still recover damages as long as you are found to be less than 50% responsible for the accident. However, your total financial recovery will be reduced by your percentage of fault. Also, if you are found to be 50% or more at fault, you are barred from recovering any compensation at all.

This reduction of damages and the 50% bar is why insurance companies fight so hard to shift even a small amount of blame onto you.

What Kind of Compensation Can Be Recovered?

Judges gavel resting on a sound block in front of an open book with it's pages flipped open.

If you can successfully prove your case, you may be entitled to recover compensation for a wide range of losses, which the law refers to as “damages.” These are generally broken down into two categories.

Economic Damages

These are your specific, calculable financial losses, including:

Non-Economic Damages

These compensate you for the intangible, personal losses you have suffered, including:

  • Physical pain and suffering
  • Emotional distress and mental anguish, including PTSD, anxiety, etc.
  • Permanent scarring or disfigurement
  • Loss of enjoyment of your life

Finding the Right Help for Your Georgia Slip and Fall Case

As you can see, Georgia’s slip and fall laws are filled with complex rules and potential pitfalls. Proving the property owner’s knowledge, overcoming the “open and obvious” defense, and fighting back against unfair blame-shifting are significant challenges. It is nearly impossible to navigate this process against a well-funded insurance company and its team of lawyers without a legal professional in your corner. You need an advocate on your side who understands this landscape and is dedicated to protecting your rights.

Trust the Slip and Fall Team at Williams Elleby Howard & Easter to Protect Your Future

The experienced premises liability attorneys at Williams Elleby Howard & Easter are committed to helping victims of negligent property owners and managers. We understand the pain and frustration you are feeling, and we are here to handle the legal burdens so you can focus on what matters most: your recovery. We will conduct a thorough investigation, build a powerful case based on the facts, and fight tirelessly to secure the justice and maximum compensation you deserve.

We handle all cases on a contingency fee basis, which means you will never pay us a fee unless we recover compensation for you. If you have been injured in a slip and fall accident, call us today at (404) 389-1035 or complete our online contact form for a free, confidential consultation to learn more about your rights and how we can help.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Real-World Example of a Pedestrian Accident Claim

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

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

For those injured in a pedestrian accident, Georgia law provides a means to seek compensation, but a thorough investigation and strong evidence are essential to proving the case. Victims need the support of qualified and experienced legal counsel on their side. The experienced personal injury attorneys at Williams Elleby Howard & Easter work hard to get victims the compensation they deserve.

Located in Kennesaw, Georgia, Williams Elleby Howard & Easter serves clients throughout the State of Georgia. If you or a loved one has suffered an injury in a pedestrian crash, the attorneys at Williams, Elleby, Howard, & Easter can help you understand what possible claims you may have and work to get you the compensation you deserve. To schedule a free consultation, call 404-389-1035 today.

What is Medical Malpractice?

Words in magnifying glass -Malpractice Professional negligence

Why Are Medical Malpractice Cases So Difficult?

 Finding a reputable medical malpractice lawyer in Georgia can be a challenging process due to the complexity of both the medical and legal aspects of medical negligence cases. In this blog post, we will explore why it can be so difficult to find the right lawyer, while also covering the different types of medical malpractice and how to navigate the legal process in Georgia.

What is Medical Malpractice?

Medical malpractice occurs when a healthcare professional, such as a doctor, nurse, or surgeon, fails to meet the standard of care, causing harm or injury to a patient. A standard of care refers to the level of care that a reasonably competent healthcare professional is expected to provide in a similar situation. When a medical provider deviates from this standard and causes harm, this is considered malpractice, or medical negligence.

Common types of medical malpractice include:

Misdiagnosis or Delayed Diagnosis

 Misdiagnosis is one of the most frequent and devastating forms of medical malpractice. It occurs when a doctor fails to diagnose a condition correctly or completely overlooks a diagnosis, leading to delayed or improper treatment. In some cases, this can result in a patient’s condition worsening or even becoming fatal.

Surgical Errors

 Surgical errors can be catastrophic and include mistakes such as performing the wrong procedure, damaging surrounding organs or tissue, or leaving surgical instruments inside a patient’s body. Such errors are often avoidable and may violate of the standard of care.

Medication Errors

 Medication errors occur when a healthcare provider prescribes the wrong medication, the wrong dosage, or fails to account for a patient’s allergies or medical history. These mistakes can lead to severe health complications, including permanent injury or death. This this type of error is very common in hospital and nursing home settings where medication reconciliation is not done properly.  It may also be the result of malpractice by a pharmacist.

Birth Injuries

 Birth injuries involve harm done to the mother or child during prenatal care or labor and delivery. Common causes of birth injuries include improper handling of the baby, failure to monitor the baby’s health, or delayed intervention during a difficult delivery. Birth injuries can lead to long-term medical conditions or even death.

These are just a few examples of the broad range of situations that can give rise to medical malpractice claims. However, to successfully pursue a claim, patients must navigate the complex legal and medical landscape that governs malpractice law.

Why is Finding a Medical Malpractice Lawyer So Challenging?

While the idea of pursuing a medical malpractice lawsuit might seem straightforward—after all, if you’ve been harmed by negligence, you deserve compensation—medical malpractice cases are some of the most complex and difficult types of personal injury cases. Here are some key reasons why:

Medical Expertise

One of the primary reasons why medical malpractice cases are so difficult is that they require extensive medical knowledge. Lawyers who handle these cases must not only be skilled in legal strategy but also understand the medical procedures and concepts involved. Some personal injury lawyers may not have the expertise needed to handle complex medical malpractice cases effectively.

Expense

The financial cost associated with medical malpractice cases is another reason why these cases are so challenging. Expert witnesses, depositions, investigations, and the collection of medical records all contribute to the cost of a malpractice case. Hiring qualified medical experts to testify can be extremely expensive—some experts charge as much as $2,000 per hour to review medical records.

Additionally, the cost of gathering evidence, consulting specialists, and possibly hiring additional investigators can create significant upfront expenses for a malpractice lawsuit. Many law firms take these cases on a contingency basis, meaning they only get paid if the plaintiff wins the case. However, even contingency-fee law firms often require substantial financial investment at the beginning of the case to cover expert fees and other expenses.

Strict Legal Requirements

Georgia, like most states, has strict laws and requirements when it comes to medical malpractice claims. One of the most critical requirements is the statute of limitations. In Georgia, medical malpractice claims must be filed within two years of the alleged incident. This timeline can be complicated.  For example, in misdiagnosis cases, “[t]he misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.” Kaminer v. Canas, 653 S.E.2d 691 (Ga. 2007).  This could result in a state of limitations expiring or being almost expired before a patient even knows there was a misdiagnosis. 

In order to pursue a medical malpractice claim in Georgia, the plaintiff must provide an affidavit from a qualified medical expert. Ga. Code 9-11-9.1. This expert must testify under oath that the healthcare provider’s actions deviated from the standard of care, which often requires a highly specialized understanding of the medical field in question. This expert testimony is crucial in proving that the provider’s actions directly resulted in the patient’s injury or harm. If this affidavit is not submitted or is found to be insufficient, the case can be dismissed outright.

Georgia Rule of Evidence 702 has very specific requirements for experts in malpractice cases. For example, in a case involving surgical errors, the lawyer must work with an expert surgeon who has significant experience in the type of surgery involved to establish that the procedure was improperly performed. This requires careful selection of experts, making the process not only legally difficult but also scientifically complicated. 

Strict procedural rules, such as adhering to tight deadlines, submitting the right documents, and ensuring that expert testimony is presented correctly, can further complicate the process for someone unfamiliar with legal technicalities.

Complex and Time Consuming Legal Process

Medical malpractice cases are notoriously difficult to win, primarily due to the burden of proof required. The plaintiff (the patient) must demonstrate that the healthcare provider was negligent and that this negligence directly caused harm. This is not always a straightforward process and involves presenting substantial evidence.

Proving negligence in medical malpractice often requires expert testimony, medical records, depositions from witnesses, and potentially multiple rounds of litigation. The burden of proof is on the patient, but unlike a car wreck case or slip and fall case, that burden can only be met by presenting expert testimony that satisfies the judge.  Ga. Code. 24-7-702 (“Rule 702’). 

The legal process can be lengthy and drawn out. Lawsuits may drag on for months or even years, with multiple motions, pre-trial hearings, and discovery phases. This protracted timeline can be exhausting for patients and families seeking justice, adding a layer of frustration to an already challenging experience.

Limited Availability of Lawyers Specializing in Medical Malpractice

Due to the technical nature of medical malpractice law and the high stakes involved, many lawyers hesitate to take on such cases. A typical medical malpractice claim is lengthy, resource-intensive, and expensive, as it often involves hiring expert witnesses, conducting thorough investigations, and preparing for potentially long court battles.

For this reason, there are fewer lawyers who specialize in medical malpractice, particularly those who are willing and able to take on complex cases. Finding a lawyer who is both qualified and willing to invest the time, resources, and expertise necessary for a successful outcome can be a major challenge.

Moreover, lawyers who handle medical malpractice cases must have a deep understanding of medical terminology and procedures. They also need to be familiar with Georgia’s unique laws surrounding malpractice claims. This specialized knowledge means that not all personal injury lawyers can handle medical malpractice cases—adding to the difficulty of finding the right legal representation.

How to Navigate the Legal Process.

Given the complexity of medical malpractice cases, it’s crucial to approach the legal process carefully and strategically. Here are some steps to consider when navigating this difficult terrain:

Consult with a specialized attorney

 It’s essential to consult with a lawyer who has experience specifically in medical malpractice. Such a lawyer will have the knowledge of medical terminology, procedures, and Georgia’s malpractice laws needed to build a strong case. They will also be able to guide you through the intricate legal process.

Gather all relevant medical records

 In a medical malpractice case, documentation is critical. The more organized and thorough your medical records are, the better. Ensure that you have all records related to your treatment, including hospital records, test results, prescriptions, and communication with healthcare providers. These documents will form the foundation of your case.

Consult medical experts

 Medical experts are vital to any malpractice case. A reputable malpractice lawyer will have access to a network of experts who can provide testimony on whether the standard of care was breached. This testimony can make or break your case, so choosing the right experts is crucial.

Be prepared for a lengthy process

 Medical malpractice cases can take years to resolve, so it’s important to be patient and persistent. You may face multiple legal challenges along the way, and your lawyer will need to prepare for long, complex proceedings. Patience and determination are key to navigating the process successfully.

Conclusion

The process of finding a reputable medical malpractice lawyer in Georgia can be daunting, but with the right approach, it is possible to find an attorney who can help you navigate the complex medical and legal terrain. Medical malpractice cases are difficult not only because of the technical legal requirements but also because of the medical expertise needed and the significant financial resources involved.

What are Georgia’s Car Seat Laws?

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

What Are Georgia’s Car Seat Laws?

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

Where Should My Child Be Seated in The Car?

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

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

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

Georgia Law on Car Seats for Newborns and Infants:

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

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

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

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

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

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

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

Eight to Eighteen Years:

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

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

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

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

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

Child Safety Seat Tips:

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

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

Mediation Process in Personal Injury Cases

Personal Injury lawyers shaking hands after a successful negotiation.

Understanding Mediation in Personal Injury Cases: A Path to Settlement

When pursuing a personal injury claim, the process of settling your case can take many different routes. In some instances, claims are settled before a lawsuit is even filed or shortly after a lawsuit is filed. In some cases, a settlement may not occur until just before the trial is set to begin. One of the key tools in the settlement process is mediation – a method used by attorneys in personal injury cases to help parties reach a resolution before the case goes to trial.

What is a Mediation in a Personal Injury Case? What is a Mediator?

Mediation is a structured, formal process used to resolve disputes between parties. Using a mediator is part of the overall ADR (alternative dispute resolution) process, which includes arbitration and other dispute resolution services. It is essentially a settlement conference, typically overseen by a neutral third party known as a legal mediator. Mediators are often experienced professionals, such as retired judges or lawyers who have extensive experience in the legal field in which you are mediating. For example, in the personal injury space, you can expect to have a mediator that was an insurance defense lawyer and maybe even a plaintiff’s attorney so that the parties can rely on their experience when trying to resolve the dispute. Their role is not to make binding decisions but to facilitate a productive discussion between the parties involved, helping them weigh the strengths and weaknesses of their respective cases. The goal is to encourage settlement by making both sides more aware of their options, and also their risks.

While some cases may be mediated prior to filing a lawsuit, mediation typically occurs after the lawsuit has been filed, and the discovery process has been completed so both sides are armed with the knowledge to allow them to make a sound decision on whether to resolve the case at mediation. The discovery phase of a personal injury lawsuit is when both sides exchange information about the case, including exchange documents, pictures and videos, and also taking depositions of witnesses and experts, allowing each side to understand the other’s position.

What Happens During the Mediation Process?

At the start of mediation, both parties typically participate in a general conference. In this initial meeting, both the plaintiff and defendant (and their respective lawyers) usually present the key points of their case. The plaintiff will outline the strengths of their case, as well as the weaknesses of the defendant’s case. Likewise, the defense lawyer will do the same, allowing both sides to gain a clearer understanding of each other’s arguments. The actual injured party typically does not speak during this time, nor are they required to answer any questions.

After this conference, the parties separate into their individual rooms. The mediator will then move between the rooms, discussing each side’s position, exploring offers and counteroffers, and providing insights into the risks and benefits of continuing the case versus settling. The mediator’s goal is to bridge the gap between the parties, gradually moving both toward a compromise.

The Goal of Settlement: Finding the Middle Ground

The success of a mediation ultimately hinges on whether the least amount the plaintiff is willing to accept is less than or equal to the most amount the defendant is willing to pay. To visualize this, think of buying a car. The car salesman has a price, but they know the buyer won’t pay the full price. Likewise, the buyer knows they won’t pay the sticker price but will make a lower offer. The negotiation process involves moving toward a price where both the buyer and the seller are satisfied. Similarly, in mediation, if the defendant’s maximum offer meets or exceeds the plaintiff’s minimum acceptable settlement, a resolution is reached.

However, not all cases settle during mediation. If the parties can’t agree, the case will proceed toward trial. Despite this, mediation tends to have a high success rate, largely because experienced attorneys can assess the risks involved and recommend a reasonable settlement value.

Do You Have to Testify at Mediation?

A common question clients ask before attending mediation is whether they will have to testify or make a statement. In most cases, the answer is no. While the process may vary from case to case, it is not necessary for the client to testify, and it is certainly not required. The role of the client is to make the final decision about what they are willing to accept in terms of a settlement, based on the attorney and mediator’s advice and suggestions. Most of the talking during mediation is between the client and the lawyer while the mediator is out of the room. Sometimes, the mediator will ask questions, but this is done without the other side in the room, or their lawyers, and is usually only to get a further understanding of the issues. Which leads me to my last, and final point….

Is the Mediation Confidential?

Anything that is discussed in mediation is strictly confidential. This includes what is said between the parties and any discussion with the mediator outside the presence of the other side’s attorneys. The mediator is only allowed to tell the other side what you and your lawyer allow the mediator to say. The process is confidential to encourage the parties to be open and forthright in their attempt to resolve the case without the fear of anything being said in the mediation to be used against them in court. You cannot go to trial after a failed mediation and proclaim “the defendant only offered us $5 at mediation! Can you believe that?!”

Is Mediation the Best Course of Action for Your Case?

Mediation is an effective tool in personal injury cases, providing a way to settle disputes before they reach the courtroom. It allows both parties to present their case and receive expert advice from a neutral mediator, which can guide them to a mutually agreeable settlement. However, the success of mediation ultimately depends on the willingness of both sides to compromise.

If you have been injured due to someone else’s negligence, it’s important to understand the options available to you, including the possibility to mediate your personal injury case. At Williams Elleby Howard and Easter, we offer free consultations to help guide you through your personal injury claim and determine the best course of action for your situation.

Call us today at 833-LEGALGA or visit us at gatrialattorney.com for more information.  Call Us! It Won’t Hurt ™

Georgia Personal Injury Claims and AI

A glowing AI micro precessor chip floating just above a dark circuit board.

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.
A piece of paper showing showing a Cobb County Georgia jury award of $1,840,000 on 12/15/2023.

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

Woman reading a magazine while riding in a self-driving car, with digital displays showing autonomous vehicle 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.