Atlanta Personal Injury Lawyers Blog

I read an AJC on line article today about a 7 year old boy who drowned at a pool at a Suwannee apartment complex. As a father of two children, I cannot imagine the pain the family must be feeling. As a personal injury lawyer representing clients in Atlanta and north Georgia, I am curious about how such a tragedy occurred. According to the article, the young boy was pulled out of the water when discovered floating face down. It is unclear how long the boy was underwater before he was pulled out. A later written AJC on line article indicated that the boy was at the pool with his mom and other members of their church.

Although there is nothing to bring this young boy back to life, the parents of the child may have a claim to recover wrongful death damages for his death. For this to happen, the circumstances surrounding the death need to show that someone other than a family member was negligent in allowing the boy to drown. For instance, if the apartment provided a life guard service, there may be a question as to whether the life guards on duty failed to provide adequate protection for the swimmers. Issues can also arise regarding the slope of the pool and whether a safety line is in place. The facts could also support that another swimmer was responsible. There are many possibilities.

These types of cases are difficult to pursue successfully. Because the circumstances surrounding a drowning are so important to proving liability, the sooner a lawyer is involved, the sooner he or she can investigate the facts surrounding the incident to preserve evidence, including witness statements. Memories fade quickly and can be influenced and physical evidence tends to be lost and destroyed very quickly if they are helpful to prove a person or an entity was at fault causing the drowning. Hiring an attorney quickly ensures a proper investigation memorializing witness interviews and discovering and safekeeping physical evidence.

Experienced attorneys are also required to pursue drowning cases because expert testimony is often required to properly prove both liability and damages issues. For instance, expert testimony is required to determine whether a slope of a pool is appropriate. Also, wrongful death damages are measured as the full value of the life of the deceased individual, and evidence of this often includes complicated expert testimony about what a person might earn during a normal life.

It is very sad the little boy somehow drowned last weekend. Hopefully, if the parents are interested in pursuing a possible claim for their son's death, they consult with competent legal counsel as soon as they are up to it.

As an Atlanta injury lawyer practicing in north Georgia, I get a number of calls a year from potential clients who suffer serious injuries caused by unleashed dogs chasing them. Typically, the client is running from the dog and trips and falls and sometimes is knocked down by the dog. I got another such call today from a Gwinnett County woman whose son severely broke his arm when he fell running from a dog he believed was going to bite him. She asked if she had a claim for his injuries.

In Georgia, a claim for damages for injuries caused by a chasing dog can be successful even if the dog does not bite. As I mentioned in an earlier blog, the owner of a dog can be liable for injuries caused by the dog if the owner acted negligently. Georgia Statue § 51-2-7 provides:

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

Nothing in the Statute requires the dog to bite for the owner to be liable for the injuries. Rather, in the context of the chasing dog, it is enough that the dog "causes injury" while off the owner's property and in violation of the local leash law or ordinance. In the case of the woman that called me today, if the dog chasing her son was off the owner's property and not on a leash, there is a good chance a successful claim can be made. According to the mother, this is exactly what happened, and she said her son in no way provoked the animal to attack him.

This is very similar to another recent case our firm successfully handled for a man who was chased by a dog while riding his bicycle on neighborhood streets in Atlanta. In the case, the dog was also off the owner's property and not on a leash. The dog caused our client to swerve off the roadway and into a ditch causing serious injuries including a severely broken collar bone that required surgical repair. The case was settled for a significant amount of money that covered all the medical bills and a substantial award for pain and suffering.

If you or a loved one has been injured by a chasing dog, please feel free to contact me to discuss whether you have a potential claim against the owner of the dog. The lawyers in our office have handled many of these cases and have the resources to properly investigate and prosecute your claim.

I have recently been retained by two clients to pursue premises liability claims for injuries resulting from two separate criminal assaults in south Atlanta. As an Atlanta personal injury lawyer, I regularly get calls from victims of crimes or their family members where an individual is criminally attacked and assaulted. The assaults may include beatings, muggings, car jackings, shootings, stabbings, robbery and rape and often times result in catastrophic psychological and physical injuries and death.

Inadequate security at hotels and motels, apartment complexes, gas stations, convenient stores, shopping malls, parking lots, movie theaters, bank ATM's, as well as other retail businesses, is the reason many of these attacks occur. An owner or operator of a business must exercise ordinary care in keeping their premises safe. This duty includes protecting patrons and business guests from injury and death caused by foreseeable criminal acts of third parties.

Whether damages can be recovered against the land or business owner or operator depends on whether the crime was "foreseeable" and the security was inadequate. There is a huge body of case law on what makes a crime foreseeable. In making this determination, the courts look at previous similar criminal activity in the area. Generally, the prior criminal activity must be substantially similar, but does not have to be identical.

Substantially similar means the prior crimes should have put an ordinary prudent person on notice that the patron or guest was facing an increased risk of attack. It is a comparison of the nature of the crimes that determine similarity - was it a crime against a person or against property alone - and not a comparison of the details of the crime or even the degree of force used. Making an appropriated showing of substantial similarity and the foreseeabilty of the crime is critical to the success to recovering damages in these types of cases.

If you can convince the court and jury that the crime is foreseeable, you then next need to show that the security measures were inadequate and that adequate security would have prevented the attack. This can also be difficult, but is often much easier to prove than whether the crime was foreseeable because many businesses are concerned about costs, and things like putting up fences, installing and monitoring security cameras, providing adequate lighting and hiring security guards all cost money, but don't make money. Also, juries can understand that these types of security measures do prevent crime.

The two new cases I have are going to take a lot of time and energy and legal skill to properly handle. These are not simple fender bender claims and cannot be handled by just any lawyer. If you or a family member has been a victim to a crime and think you may have a claim against the owner or operator of the land or business where the attack occurred, please make sure the lawyer you talk to can handle this type of case.

In my practice as an Atlanta personal injury lawyer, I am getting more and more phone calls from individuals to represent them in premises liability cases. Specifically, I have had several recent calls where someone is seriously injured after falling while visiting a store or restaurant or similar business. In Georgia, individuals injured because of a fall may be compensated for those injuries if the fall was caused by the negligence of the owner or occupier of the property involved. Slippery floors and other surfaces caused by water, grease, food, as well as many other foreign substances, are often the reason someone is negligently injured in a fall. Poorly designed, manufactured or maintained curbs, steps and walkways may also cause falls.

Falls can result in very serious, even catastrophic, injuries. Some cases I have handled have involved complex fractures and other serious injuries to hips, ankles, rists, arms, elbows and shoulders, leading to surgeries and further medical complications and even death. Older individuals are especially likely to be badly injured by a fall caused by the negligent acts of others.

Georgia law requires land owners and occupiers to exercise ordinary care for the safety of others. Specifically, O.G.C.A § 51-3-1 provides

Where an owner of occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

Land owners can breach this duty of care in many ways, including, but not limited to:

1. failing to use ordinary care to keep the premises and approaches safe;
2. failing to properly inspect and maintain the premises and approaches:
3. knowingly allowing its invited guests to utilize an unsafe area of the premises;
4. failing to post warning signs or warning markings in the area;
5. failing to properly train and supervise their employees in regard to the care of the premises; and
6. failing to retain, entrust, hire, train and supervise employees.

Each of the above acts and omissions can support an independent act of negligence on the part of the land owner which can be the proximate cause of the injuries and damages sustained in a fall.

If you are injured by a negligent land owner you may recover damages for your personal injuries, pain and suffering, lost income, diminished capacity to earn, disability, disfigurement, mental anguish, loss of capacity to enjoy of life, as well as other damages. Almost any business or individual can be liable for negligently injuring another on their property or property they control. Apartment complexes, movie theaters, gas stations, grocery stores, hotels and motels, commercial buildings, restaurants, and retail stores are a few examples.

If you have any questions about, or would like to discuss, whether you might have a claim arising out of a fall you feel was caused by a land owner's negligence, please call our offices to speak with one of our attorneys. The injury lawyers of our firm have handled hundreds of premises liability cases and would welcome the opportunity to talk to you about your claim.

As an Atlanta injury lawyer, I know that not all settlement liens are created equal. Each type of lien comes with its own set of rules, potential flexibility, and risks to those who choose to ignore them. Recently, the United States District Court for the Northern District of West Virginia ruled that a plaintiff's personal injury attorney who did not timely reimburse Medicare, after a case has been settled and a lien amount determined, may be held individually liable for the entire amount of the lien. See United States of America v. Paul J. Harris, Civil Action No. 5: 08CV102. The law of this Virginia case is applicable to Georgia as well.

The Harris case involved a fall from a ladder purchased from a local retailer in which James Richea was injured. Mr. Richea retained attorney Paul J. Harris to pursue a premises liability claim against the retailer for his personal injuries. Medicare had paid approximately $22,500 for Mr. Richea's medical care resulting from the fall. Settlement discussions ensued, and the case was ultimately settled for $25,000.

Once an agreement had been reached with the retailer, attorney Harris contacted Medicare and furnished the details of the proposed settlement. Based upon the amount of the settlement, the amount of the original Medicare lien, and the other costs and expenses associated with the case, Medicare determined that it was owed approximately $11,000 from the proceeds of the settlement. By statute, attorney Harris had 60 days thereafter to make the reimbursement to Medicare. When he failed to do so, suit was filed against him, personally, for the entire amount of the lien, plus interest and certain other costs.

Attorney Harris filed a Motion to Dismiss, pursuant to FRCP 12 (b) (6), asserting that a lawyer, in representing a client, cannot be held individually liable under 42 U.S.C. 1395y (b) (2) when he distributes settlement funds with the prior knowledge and consent of the government. Because he had forwarded the details of the settlement to Medicare before disbursing the money to his client, attorney Harris asserted that he could not be held individually liable for the lien amount.

The U.S. District Court disagreed, and denied attorney Harris' Motion to Dismiss. In so doing, the Court ruled that the Medicare Secondary Payer Statute ("MSPS") gives the government the right to enforce its lien against the injured party's attorney. In support of this position, the Court cited 42 C.F.R. 411.24 (g), one of the federal regulations implementing the MSPS. That section provides as follows:

"Recovery from parties that receive primary payments. CMS has a right of action to recover its payments from any entity, including a beneficiary provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment." Id. (emphasis supplied).

Because the government is authorized by statute to recover such payments from any entity, including an injured party's attorney, Attorney Harris's Motion to Dismiss was denied in its entirety. The seriousness with which claimants and attorneys must treat Medicare and Medicaid liens is well known. However, this case serves as a reminder of just how few options are available to attorney's who either choose to ignore these liens, or simply become too impatient to allow the very slow lien process to run its course.