Atlanta Personal Injury Lawyers Blog

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.