What Are Pain and Suffering Damages?

A woman laying in a hospital bed with her hand covering her eyes.

If you have suffered an injury in a Georgia vehicle accident, it is probably no surprise to you that it is possible to recover the costs of your medical treatment and other bills from the responsible party. It’s not difficult to place a monetary value on these economic damages; your attorney would merely seek to recover the amount of your medical bills or lost wages. However, these are not the only type of damages available to you when you’ve suffered an injury due to the negligence of another. Under Georgia law, you may also seek recovery for your pain and suffering.

A monetary judgment against the person responsible for your injuries can’t heal the physical or emotional suffering you’ve endured. In the case of life-altering injuries, money is a poor substitute for the things you may no longer be able to enjoy in life. But while monetary damages can’t heal your pain, they can be one means to help restore your previous quality of life. But unlike medical bills, there isn’t a bottom line figure that you can point to when evaluating your pain and suffering claim. So how would your Georgia personal injury attorney show a jury how much your suffering is worth?

What Is Pain and Suffering Under Georgia Law?

The availability of pain and suffering damages for civil actions in Georgia courtrooms is set out by statute. According to O.C.G.A. 9-10-184:

In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.

This language is vague, but a series of Georgia court decisions have given courts some guidance on what constitutes pain and suffering. Some of the factors that courts will consider in evaluating pain and suffering injuries include:

  • Whether the pain interfered with your healthy living.
  • Whether the pain interfered with your enjoyment of life.
  • If your pain and suffering led to a loss in your ability to earn money.
  • If your bodily health has been impaired long-term or permanently.
  • The shock from the severity of the impact.
  • Fear and worry over the extent of your injuries.
  • Your mental anguish, now and in the future.

Unlike specific acute injuries like cuts and broken bones, it can be hard to describe pain and suffering to a jury. Thankfully, skilled injury attorneys can use your medical history and witness testimony to paint an accurate picture of your pain and suffering. Your attorney can rely on your medical records to show that you have regularly complained about pain since the accident occurred. You, as well as friends, family, and co-workers may also be called to testify as to the effect the pain and suffering has had on your life and ability to care for yourself.  If the pain is likely to be permanent, skilled attorneys have many tools, including mortality tables, to help juries calculate the length of time an injured victim is likely to suffer.

Questions? Talk to One of our Georgia Personal Injury Attorneys

If you have suffered an injury in a car accident in Georgia, contact a personal injury lawyer today. Trained professionals have extensive experience representing car accident victims and can answer any questions you have about whether pain and suffering damages are available in your case. For answers, contact Williams Elleby Howard & Easter at 833-LEGALGA for your free consultation today.

7 Ways to Maximize Your Settlement After a Back Injury 

maximize settlement back injury

Sustaining a back injury is a difficult thing to endure. There are several types of back injuries that personal injury lawyers encounter on a regular basis, such as whiplash, herniated discs, spinal cord injuries, and spondylolisthesis. No matter what type of back injury a person suffers, they are almost always serious and painful. They are also the type of injuries that tend to cause permanent disability or lingering discomfort and thus often have a lasting impact on a person’s life. 

When back injuries are caused by negligence, victims are entitled to compensation for their harm. Hiring an experienced personal injury attorney is the best way for an accident victim to ensure that they receive everything they deserve.  Below are some other important things to keep in mind. 

1. Carefully Document Everything 

A claim is only as valuable as the evidence backing it up. If an allegation can’t be proven, it isn’t worth much in a court of law. This is why you should carefully document everything you can about the accident. It is a good idea following an auto accident to contact police and ask for a police report. You should also carefully document all of the medical care you receive, any expenses related to the accident, and record any work that you have missed as a result of the personal injury. 

2. Get Medical Care From a Back Injury Specialist 

It is essential in any back injury case to have detailed and thorough medical records in support of the claim. Personal injury victims need to present clear evidence that an injury was caused by the accident and not by something else. A doctor who is a back injury specialist will be able to explain with greater precision how the accident caused the injury and what the extent of damage is. The defendant is also likely to have their own medical expert testify that your injury is not as bad as you claim. It is important to have the support of someone qualified to refute this. 

3. Appreciate the Full Value of Your Claim 

When a personal injury plaintiff wins a judgment in a Georgia court, they are entitled to both “special” and “general” damages. Special damages compensate victims for both past and future medical expenses, past and future lost wages and other quantifiable financial loss. General damages compensate for the non-economic loss, like pain and suffering. Personal injury victims should carefully consider all their potential damages and consult with an attorney if they aren’t sure what their case is worth. 

4. Negotiate 

Too often victims take the first offer that is made to them because they think that is all they deserve or will be able to get. It is almost always a good idea to negotiate because insurance companies will almost always initially offer less than a claim is worth. 

5. Avoid Social Media 

One of the worst things about a back injury is how much it can impact a person’s daily life. This loss of enjoyment is a type of pain and suffering that is compensable. If a plaintiff can no longer do certain activities, for instance, they may be entitled to compensation on that basis. Savvy defense lawyers will often closely watch a plaintiffs’ social media profiles to try to find evidence that a plaintiff is exaggerating how bad their injury is. This is not always fair, because while a person may look like they are having fun and being active on social media, they may be suffering in private. The best practice is to avoid allowing a defense lawyer the opportunity to take any of your photos out of context by simply abstaining from all social media while your case is pending. 

6. File Your Claim in Time 

All civil claims must be made within a certain time period or else they will be completely barred. Under the Georgia Statute of Limitations for tort claims, personal injury lawsuits for back injuries must generally be made within two years of the date of the accident. It is important to begin pursuing compensation well in advance of this. 

7. Get Your Settlement in Writing 

Personal injury settlement agreements should always be in writing. If a settlement isn’t in writing, it may not be enforceable. Although Georgia does recognize oral agreements as valid, they can be difficult to prove. 

For More Information, Contact Williams Elleby Howard & Easter 

If you would like more information or would like to discuss your case, contact Williams Elleby Howard & Easter, by calling 833-LEGALGA today.

Is Property Damage Included in a Personal Injury Lawsuit? 

personal injury lawsuit property damage

In almost all auto accident cases, the victim has both a personal injury and a property damage claim. Under Georgia law, these are two distinct claims. A plaintiff can claim both personal injury and property damages in a single lawsuit, but the court will consider them individually rather than as one claim. 

Generally, auto accident victims will pursue personal injury and property damages separately. The biggest reason for this is that a property damage claim is much easier to resolve. It is not unusual for a settlement to be reached within a few days or weeks of an accident for a property damage claim. In the vast majority of cases, the property damage claim is resolved much quicker than the personal injury claim. 

Can Property Damage Be Included as Part of My Settlement? 

Although property claims are distinct from personal injury claims, your property damage can be considered as part of an overall settlement agreement. After all, a settlement is a private agreement between two parties and can generally include whatever terms the parties agree to. If a plaintiff has a personal injury and a property claim, it is possible to settle both in one agreement. 

Types of Damage Recoverable in a Property Damage Claim 

Property damage lawsuits are designed to compensate victims for vehicle damage, any other property damage that occurred as a result of an accident, and any costs associated with the vehicle damage. Common types of damages include: 

  • The cost of repairing or replacing the vehicle; 
  • The cost of repairing or replacing personal items that were inside the vehicle and were damaged as a result of the accident; 
  • Towing expenses if the vehicle had to be towed after the accident; 
  • Rental car expenses if the victim needed to rent a car following the accident; and 
  • The cost of repairing any other property damage that occurred as a result of the accident. 

The Statute of Limitations for Personal Injury and Property Damage Claims 

Civil lawsuits must be filed within a certain period of time under something referred to as statutes of limitations. Each state in the United States has different statute of limitations laws that establishes how long a tort victim has to bring a claim. In Georgia, personal injury and property damage claims are governed by different limitations periods. Under the Official Code of Georgia Title 9 Chapter 3 Section, auto accident victims must file a personal injury lawsuit within two years of the date of an accident and must file property damage claims within four years. 

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

The experienced personal injury attorneys at Williams Elleby Howard & Easter, work hard to maximize compensation for personal injury victims in Georgia. Although our focus is on personal injury law, we will seek compensation for property damage as well when our clients also have property damage claims. 

Located in Kennesaw, Georgia, Williams Elleby Howard & Easter, serves clients throughout the State of Georgia in both state and federal courts. Williams Elleby Howard & Easter, is dedicated to providing thorough, accessible, and effective service to each personal injury client it serves. If you would like to learn more or would like to schedule a free case evaluation, contact Williams Elleby Howard & Easter, today by calling 833-LEGALGA.

Georgia’s Open Records Act and Its Exceptions 

Georgia open records act

Nearly 100 years ago, the great Supreme Court justice Louis Brandeis wrote “sunlight is said to be the best of disinfectants.” What he meant by this was that shining a light on the conduct of government was the best way to make sure government agencies and politicians operated honestly and properly maintained records. In keeping with this ideal, the federal government passed the Freedom of Information Act (FOIA) in 1967. “The basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society.” Since this time, advocates for open government have succeeded in getting similar laws passed in all 50 states. Georgia’s version of the FOIA is called the Georgia Open Records Act and is found in The Official Code of Georgia § 50-18-70. 

These laws not only encourage government to operate as it should, but they also ensure that members of the public have access to information they deserve to have access to. Under the law, records maintained by most government agencies or private companies carrying out government functions are open to the public and subject to inspection at a reasonable time and place. This can include personal injury victims that want to get information about their accident. The justification of the Georgia Open Records Act is described in its first section: 

“The General Assembly finds and declares that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions. The General Assembly further finds and declares that there is a strong presumption that public records should be made available for public inspection without delay. This article shall be broadly construed to allow the inspection of governmental records.” 

Exceptions 

There are a number of exceptions to the Georgia Open Records Act. In total, there are 20 exceptions that are not open for public inspection. These include medical records, confidential government information, and records of law enforcement. Georgia Uniform Motor Vehicle Accident Reports are an exception to the Georgia Open Records Act, except upon a written statement of need by the requesting party. However, the term “need” is defined broadly under the law; anyone with a personal connection to an auto accident is considered to have a legitimate need to see the accident report. 

Using Public Records in Personal Injury Cases 

The Georgia Open Records Act can be useful for plaintiffs in personal injury cases. Government records can often help to show whether a defendant or potential defendant in a case is liable. Thus, making requests under the Georgia Open Records Act is often one of the first investigatory steps to take following an accident. The law specifically says that auto accident reports are to be made available to a person that “was allegedly or actually injured by the accident.” The law also has a section that applies to anyone involved in any type of lawsuit against a government agency. It states: 

“Requests by civil litigants for records that are sought as part of or for use in any ongoing civil or administrative litigation against an agency shall be made in writing and copied to counsel of record for that agency contemporaneously with their submission to that agency. The agency shall provide, at no cost, duplicate sets of all records produced in response to the request to counsel of record for that agency unless the counsel of record for that agency elects not to receive the records.” 

For More Information, Contact Car Accident Attorney in Kennesaw 

If you or a loved one has been injured in an accident, you should consult with an experienced personal injury attorney to better understand your legal rights and options. It is crucial for accident victims to gather evidence as soon as possible following an accident. The experienced Georgia personal injury attorneys at Williams Elleby Howard & Easter, have deep knowledge of Georgia tort law, know how to thoroughly gather evidence in preparation of a personal injury lawsuit, and are dedicated to maximizing compensation for each of their clients. For more information or to discuss your case, contact Williams Elleby Howard & Easter, today to schedule a free consultation by calling 833-LEGALGA.

What Does “Total Loss” Mean Following an Accident

total loss car accident

After a serious auto accident, figuring out how to deal with a heavily damaged vehicle is not always a simple matter. In some cases, a car may be so damaged that it is not possible or feasible to have it repaired. When a vehicle is considered a “total loss,” an insurance company will not typically pay to repair it. Instead, the insurance company will pay the owner for the value of the vehicle, or in some cases, replace the vehicle with a comparable one. 

Dealing with insurance companies can be frustrating and stressful, especially if you do not understand the law. The experienced personal injury attorneys at Williams Elleby Howard & Easter, help accident victims who have suffered a personal injury with all aspects of their auto accident claims. If you would like to discuss your case, contact Williams Elleby Howard & Easter, today by calling 833-LEGALGA. 

Total Loss Insurance Claims in Georgia 

A vehicle is considered “totaled” if the cost of repairs is greater than the value that the vehicle would have after repairs. However, many insurance companies consider not only whether a vehicle is totaled, but also whether it is a “total loss.” Generally, a vehicle is considered a total loss if the cost of repairs plus the salvage value of the vehicle is greater than the value the vehicle would have after repairs. This is commonly referred to as the total loss formula. 

Cost of Repairs > Value of Repaired Vehicle = Totaled 

Cost of Repairs + Salvage Value > Value of Repaired Vehicle = Total Loss 

Some states also have laws that create a total loss threshold, which dictate when an insurance company may consider a vehicle a total loss. Most states that have laws like these hold that an insurance company may only consider a vehicle a total loss if the cost of repairs is 75-80% of the value of the repaired vehicle. However, Georgia does not have statutory or regulatory total loss threshold. Insurance companies are free to make this determination on their own based their own total loss thresholds or the total loss formula. Therefore, whether a vehicle is considered a total loss following an accident depends not just on the extent of the damage, but also on the insurance company. 

Total loss vehicle claims are governed by the Title 120 Chapter 2 Section 52.06 of the Official Code of Georgia. Under this law, “if the insurer determines the insured vehicle to be a total loss, and the insurance policy provides for the adjustment and settlement of first party vehicle claims on the basis of actual cash value or replacement, the insurer may elect to pay a cash equivalent settlement or replace the insured vehicle.” 

What Do I Do if the Insurance Company Says My Vehicle is a Total Loss 

If you have been in an accident and your insurance company has declared that your vehicle is a total loss, you should be prepared for the fact that you will only receive the fair market value of the vehicle. Georgia states that the fair market value is whatever it would cost “to purchase a comparable automobile by the same manufacturer, same model year, with similar body style, similar options and mileage, including all applicable taxes, license fees and other fees incident to the transfer of ownership of a comparable automobile.” By law, insurance companies are able to come up with this cost by simply finding comparable vehicles in the area that are for sale, or by consulting with the Kelley Blue Book (or a similar accepted source) valuation for a vehicle. 

Insurance companies also have the option of providing an insured with a comparable replacement vehicle. The law states that “the insurer may elect to replace the insured vehicle, including all applicable taxes, license fees, and other fees necessary to transfer ownership.” However, an insured is under no obligation to accept an offered replacement vehicle. If a replacement vehicle is rejected, the insured gets the cash value. 

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

Williams Elleby Howard & Easter, is dedicated to helping accident victims get the compensation they deserve. The personal injury attorneys at Williams Elleby Howard & Easter, understand how stressful motor vehicle accidents can be for victims and their families. That is why they work hard to provide thorough, compassionate, and effective service to each of their clients. If you have been in an accident and would like to discuss your case, contact Williams Elleby Howard & Easter, today by calling 833-LEGALGA.

Georgia’s “Move Over” Law: What You Need to Know

Georgia move over law

Most of us know that when a police car, fire truck, or ambulance is traveling down the road with sirens blaring, the law requires us to slow down, yield the right of way, and move over to the shoulder of the road if possible. Upon the approach of an authorized emergency vehicle or police vehicle that is making use of its siren, all other drivers must:

Yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb of the roadway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle or law enforcement vehicle has passed, except when otherwise directed by a police officer.

However, fewer people understand that they are also required to leave plenty of room when passing by police or emergency vehicles that are parked on the side of the road. This duty is defined by Georgia’s “Move Over” law, which is found in Title 40 Chapter 6 Section 16 of the Official Code of Georgia. A recent report by Atlanta news station CBS 46 found that many drivers were completely unaware that this law even existed. Below is the essential information about Georgia’s Move Over law that every Georgia driver should know.

WHAT THE MOVE OVER LAW SAYS

Georgia’s Move Over law states that when a driver approaches a stationary police, emergency, accident recovery, or Department of Transportation vehicle that is displaying flashing lights, the driver shall approach “with due caution” and unless otherwise directed by a peace officer:

(1) Make a lane change into a lane not adjacent to the authorized emergency vehicle if possible in the existing safety and traffic conditions; or

(2) If a lane change would be impossible, illegal, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

Therefore, the first course of action should always be to change lanes. If this can be accomplished safely, a driver need not necessarily slow down as long as they are otherwise driving safely. If changing lanes isn’t possible or would be illegal or unsafe, a driver must slow down to below the posted speed limit.

CONSEQUENCES FOR VIOLATING THE MOVE OVER LAW

The Move Over law is intended to keep roadside emergency crew and law enforcement personnel safe from passing motorists. Accidents, especially those that cause fatalities, are the most serious consequences. According to the Governor’s Office of Highway Safety (GOHS), before the law was passed in 2003, “Georgia road crews, traffic enforcement officers, and other first responders endured needless years of roadside deaths and injuries due to careless errors made by distracted drivers as they sped by police making traffic stops and emergency crews working roadside jobsites.” Although the law has made things much safer, the GOHS has stated that violations are “still far too common.”

The Move Over law authorizes a penalty of up to $500 for violators. However, if an accident occurs, the legal consequences of violating the Move Over law can be much more serious. Additional charges, such as reckless driving, are common in these types of cases, and of course charges could be much more serious if a police officer or emergency crew member is struck. Moreover, in the event that there is a civil lawsuit for damages, a driver violating the law may be presumed negligent. This is referred to as negligence per se, and when this doctrine applies it is much easier for a plaintiff to win a claim against a defendant.

FOR MORE INFORMATION, CONTACT WILLIAMS ELLEBY HOWARD & EASTER, TODAY

Staying safe should always be the number one priority when getting behind the wheel. To this end, all Georgia drivers have a duty to operate their vehicles with reasonable care, which includes adhering to Georgia’s rules of the road. Everyone has a duty to operate their vehicles with reasonable care, but many people make unsafe mistakes simply because they don’t know what their duty is in a given situation. This is why knowing the law is essential to driver safety. When accidents do occur, it is also imperative for all parties involved to be aware of their legal rights and options.

The Kennesaw personal injury attorneys at Williams Elleby Howard & Easter, have deep knowledge of Georgia traffic accident laws. They provide thorough, accessible, and effective service to each of their clients, with the goal of maximizing compensation in each case. Williams Elleby Howard & Easter, offers free case evaluations and accepts cases on a contingency-fee basis. If you would like more information, or if you have been in an accident and would like to discuss your case, contact Williams Elleby Howard & Easter, today by calling 404-389-1035.

Bicycle Wrecks

bicycle accident wreck injured

Each year in the United States there are hundreds of thousands of accidents between automobiles and bicycles. Because of their vulnerable position, these accidents often have severe consequences for the cyclists involved. It is crucial for both motorists and cyclists to understand their rights and duties under Georgia law.

If you have been injured in a bicycle wreck and someone else was at fault, you need a qualified and experienced bicycle wreck injury attorney to represent you. Williams Elleby Howard & Easter, is dedicated to getting accident victims the compensation they deserve. To discuss your case, contact Williams Elleby Howard & Easter, to schedule a free case evaluation today online or by calling 833-LEGALGA.

Duties of Motorists and Cyclists to Each Other

Motorists and cyclists each have a duty to act with reasonable care while on the road. Drivers, as well as cyclists, must follow the “rules of the road” outlined by Title 40, Chapter 6 of the Georgia Code. If either a cyclist or motorist violates a traffic law, they can be considered at-fault in an accident. In some cases both parties are at-fault, and the issue becomes determining to what degree each party was at fault.

Specific Laws Applying to Cyclists

There are a few specific laws that apply to cyclists in Georgia. These are found in Chapter 6 Article 13 Part 1. Under O.C.G.A. § 40-6-294, “every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable, except when turning left or avoiding hazards to safe cycling.” This generally means a cyclist must remain in a bike lane or on the shoulder of the road unless they are turning left; however it is important to note that if there is a “hazard to safe cycling” then cyclists are allowed to move into the main lane of traffic temporarily.
Bicycles must only be used by one person at a time, unless it is designed to carry more than one person. When riding at night, bicycles must have a white light in the front and a red light or reflector on the back. Adults are not required to wear helmets when riding a bicycle; however children under the age of 16 are required to wear a helmet. Cyclists should also remember that riding a bicycle while legally intoxicated is illegal.

If You Have Been in a Bicycle Wreck, Contact Williams Elleby Howard & Easter, to Discuss Your Case Today

Bicycle wreck accidents claims, like other types of personal injury claims, can be complex. It is imperative for victims of harm to have qualified and experienced legal counsel on their side. A Kennesaw, Ga personal injury attorney that understands bicycle wreck cases and is familiar with local courts can ensure that your compensation is maximized.

If you have been involved in a bicycle wreck, the qualified bicycle wreck attorneys at Williams Elleby Howard & Easter, can help you understand your rights and get you the compensation you deserve. If you would like more information, Williams Elleby Howard & Easter, is here to help. Call today to schedule your free consultation at 833-LEGALGA.

Concussion Related Injuries

concussion injury attorney accident

A concussion is a type of serious traumatic brain injury (TBI) caused when someone suffers a blow to the head. Repeated head traumas can worsen a TBI significantly. According to the CDC, millions of people are hospitalized each year with TBI, and around 150 people die in the United States every day due to TBI related injuries. This means that TBIs accounts for about a third of all injury deaths in the United States.

Auto accidents, falls, physical assaults, and sports-related head trauma are some of the most common causes of concussions. In many instances, concussions occur that were entirely preventable. When anyone in Georgia suffers a TBI because of another person’s negligence or other wrongful conduct, the victim is entitled to compensation for their harm.

If you or a loved one has suffered a concussion or similar injury due to the negligent or otherwise wrongful conduct of someone else, it is important that you be aware of your legal rights and options. Concussions and other brain injuries can have a severe and lasting impact on a person’s life. Williams Elleby Howard & Easter, is dedicated to getting brain injury victims the compensation they deserve. If you would like to discuss your case, call Williams Elleby Howard & Easter, at 833-LEGALGA today.

Compensation for Concussion Related Injuries

Georgia law categorizes damages into two categories: special damages and general damages. Special damages compensate a person for their economic loss, such as their medical expenses and lost wages. General damages compensate for non-economic losses, such as pain and suffering or emotional distress.

Both special and general damages are available to concussion victims in tort cases. However, unlike most other types of injuries, the harm a concussion victim suffers is often not readily apparent to others. Concussions can cause short and long-term psychological and emotional problems that other people can’t see. TBIs can cause memory problems, trouble focusing, anxiety, mood changes, and trouble sleeping. These issues can also have lasting effects on a person’s family and community.

In order to get compensation for this type of harm, victims need detailed and thorough medical evidence and testimony from expert witnesses explaining to the court the extent of the harm. In some cases, testimony from friends, family, and colleagues can be useful as well. The personal injury attorneys at Williams Elleby Howard & Easter, have experience handling these types of cases and know what evidence is required. If you have suffered a TBI and you have a viable claim against the responsible party, they can help you gather the evidence you need and build your legal case.Ultimately, Williams Elleby Howard & Easter, is dedicated to helping each of their clients get justice and maximize their compensation.

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

Personal injury cases can be complex. This is especially true when the plaintiff has a TBI. If you have suffered a TBI, you need qualified and experienced legal counsel on your side. Call Williams Elleby Howard & Easter, to schedule your free consultation today at 833-LEGALGA today.

Georgia Assumption of Risk Doctrine

fault assumption risk liable Georgia

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

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

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

Examples of Assumption of Risk Being Applied in Georgia Courts

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

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

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

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

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

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

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

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

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

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

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

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

The Mediation Process

mediation process personal injury

Mediation is a form of alternative dispute resolution whereby a neutral third party facilitates an agreement between the parties. It is a shorter and cheaper way to settle a dispute than litigation, and has the benefit of giving the parties full control of the outcome. It does, however, require parties to compromise. Unlike civil litigation, mediation is not an adversarial process; rather, the focus is on compromise. Mediation is a viable option in personal injury cases in Georgia.

Deciding if Mediation is Right for Your Personal Injury Case

The biggest reason to choose mediation is that it avoids expensive and lengthy litigation. The cost of court fees, expert witnesses, and other litigation costs can be significant. And, the expense of litigation is generally not compensable as a part of the damages in a case unless “the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.”

Mediation is also attractive because trials can be unpredictable. Mediation takes away the uncertainty of a jury or bench trial and lets the parties control the outcome. They can also take into account nuances and subtleties in the facts and the parties’ interests that would be lost at trial.

Finally, mediation is relatively risk-free. When a personal injury victim has an excellent case, they can always reject any settlement offers made during mediation and continue on towards trial instead. If you have been injured due to the wrongful actions of another, the attorneys at Williams Elleby Howard & Easter, can help you understand whether mediation is a good option for you.

Choosing When to Mediate

When the facts of a case are clear, it may be the case that both parties will be willing to mediate a claim right away. But in many personal injury cases, it isn’t clear whether mediation is the right choice until after the discovery phase has occurred and all of the relevant evidence is uncovered. At this point, each party has a good idea of how the case is likely to go, and they are thus in a better position to decide whether they want to take the risk of trial.

When a personal injury victim has a solid case, they will often choose to wait until after the summary judgment stage before agreeing to mediation, because after a claim survives this stage the final settlement value of the case will rise. Conversely, if the plaintiff’s claim is more questionable, a plaintiff may be eager to reach a settlement before reaching the summary judgment stage. Ultimately, an experienced personal injury attorney can determine when during the process mediation would be appropriate.

Choosing a Mediator

When parties agree to mediate, they are free to agree to any trusted third party they would like to act as their mediator. A personal injury mediator should be a practicing or retired attorney that understands Georgia tort law. The Georgia Commission on Dispute Resolution can help parties find a mediator. There are also private mediation firms with many excellent mediators. Three of the most popular in Georgia are Henning Mediation & Arbitration Service Inc. (https://www.henningmediation.com), Bay Mediation & Arbitration Services (https://www.bayadr.com), and Miles Mediation & Arbitration Services (https://milesmediation.com) . In other cases, the parties can request that the judge appoint a mediator.

Presenting Position Papers

The first step in mediation is to present the other side with a summary of your claim in the form of a position paper. This can also be a formal settlement demand. The mediator should also be given a copy of this document. A plaintiff’s position paper will address the merits of the claim and state the damages that are being demanded. A defendant may also have a position paper prepared.

Negotiating in a Joint-Session

After position papers have been presented and read, each side will explain their case. The purpose of this joint-session meeting is to make sure that each side fully understands the perspective and legal arguments of the other side. The mediator will objectively explain to both parties the likely outcome of a trial.

Holding Private Meetings as Needed

Following the initial joint-session meeting, the mediator will privately discuss with each side the strengths and weaknesses of their case. Any information learned by the mediator in these private sessions should remain confidential. The mediator will go back and forth as needed, acting as an intermediary to broker a compromise between the parties.

Reaching an Agreement

When the mediator feels that the parties are close to reaching a final agreement, the parties will come together again to discuss and then sign a settlement agreement. Most mediations can be completed in a few hours and take place in a single day.

If You Think You May Have a Personal Injury Claim, Contact Williams Elleby Howard & Easter, to Discuss Your Case

If you have been injured in an accident and would like to schedule a free consultation to discuss your case, call Williams Elleby Howard & Easter, at 833-LEGALGA today.