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Earlier this month, a New York appellate court issued an interesting opinion involving a plaintiff’s late-filed case against a school district. In the case, Newcomb v. Middle Country School District, the court held that the plaintiff should have been allowed to file his claim after the initial deadline had expired because he had good reason for the late filing, and the defendant did not suffer substantial prejudice.

School SignThe Facts

The plaintiff’s 16-year-old son was struck by a hit-and-run driver as he was crossing the street near a school. The driver was not immediately arrested, but the plaintiff did report the accident to the school board. After the driver’s subsequent arrest, the plaintiff attempted to obtain the police department’s criminal investigation file but was prevented from doing so because the case against the driver was still open.

Nine months after the accident, the police department’s file was turned over to the plaintiff. In the file were pictures of the accident scene. Specifically, there were pictures of a sign that may have obstructed a motorist’s view of pedestrians where the plaintiff’s son was struck. The sign was on school property, but it had been taken down in the time between the accident and the trial.

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Earlier this month, the Georgia Court of Appeals issued a written opinion in a product liability case, discussing the spoliation doctrine and how it should be applied when evidence was destroyed by a party before trial. In the case, Cooper Tire & Rubber v. Koch, the court determined that the plaintiff’s destruction of certain evidence that was relevant to her product liability case against the defendant was not a violation of the spoliation doctrine and did not require the court to impose sanctions against her.

TiresThe Facts of the Case

Koch was driving eastbound on Interstate 16 in a Ford Explorer when his tire blew out. The blow-out caused Koch to lose control of the vehicle, ultimately ending in an accident that seriously injured Koch. After the accident, Koch was taken to the intensive care unit for recovery.

While her husband was in the hospital, Mrs. Koch received a call from the towing company, telling her that she was incurring a daily storage fee for her husband’s vehicle. She explained that she could not afford the fee. The owner of the towing company told her that she could sign the title over to him so that he could sell the totaled vehicle for scrap to satisfy her debt. She discussed this with her husband, who agreed but asked that the towing company owner “save the tires.” Shortly after this, Koch died, and his wife filed a wrongful death lawsuit against the manufacturer of the blown-out tire.

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The judicial system in most states consists of three levels of courts, including in Georgia. The lowest court, where a trial is held, initially determines which evidence is admissible and makes rulings on issues of law that arise during the trial. The trial court also hears all post-trial motions from both parties. The intermediate court, often called a court of appeals, is the first level of review if a litigant believes that the trial judge made an incorrect ruling of law. Finally, the highest court in the state, usually called the supreme court, hears the next level of appeals. Most often, a state supreme court’s decision on an issue of state law is final and unreviewable.

GavelBy far, trial courts hear the most cases. As a case moves up through the appellate process, courts take on fewer cases. Since there are so many cases in which litigants seek appellate review, courts enact strict rules that must be followed before a case can be reviewed. This ensures that only the most diligent litigants obtain a review of their case. One very important rule of appellate review is that a litigant seeking appellate review must have objected to the alleged error at trial. If a litigant fails to object below, the appellate court will generally dismiss the appeal. A recent case illustrates how the application of this strict principle can prevent appellate review of even seemingly meritorious issues.

Small v. Sayre:  The Facts

Mr. Small was driving a car with his wife and daughter when they were rear-ended while stopped at a traffic light. The Smalls filed a personal injury case against the other driver, Sayre, who conceded that the accident was his fault but argued that the accident was not the cause of the injuries sustained by the Smalls.

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Earlier last month, an appellate court in North Dakota issued a written opinion affirming the dismissal of a plaintiff’s premises liability lawsuit against the government entity in charge of maintaining the park where the plaintiff’s injury occurred. In the case, Frith v. City of Fargo, the court clarified that the applicable statute of limitations in the plaintiff’s case imposed a three-year timeframe in which the lawsuit must be filed. Since the plaintiff filed her lawsuit after three years had elapsed since her injury, the lower court was proper in dismissing the lawsuit.

FootpathThe Plaintiff Trips While Rollerblading in a Park Maintained by the Defendant

The plaintiff, Frith, was injured on July 7, 2012, when she fell while rollerblading in Fargo Park, a park that was operated by the defendant. Evidently, Frith ran over an area of soft material used to cover up cracks in the pavement. As she ran over the patching material, she lost her balance and fell.

Frith filed a premises liability lawsuit against the Park District of the City of Fargo, claiming that the City was negligent in allowing the dangerous condition to exist on the pathway. The lawsuit was initially filed in July 2015, just days before the three-year anniversary of the injury. However, since the plaintiff failed to properly serve the City, she had to re-serve the City, and the lawsuit was not technically filed until September, when the plaintiff effectuated proper service.

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When someone purchases an insurance policy, they are essentially entering into a contract with the insurance company. In return for the premium paid by the insured, the insurer will cover certain costs that are outlined in the insurance policy. In auto insurance policies, these costs are usually related to property damage and personal injuries.

Signing a ContractSometimes, however, an insurance company will not agree with the insured on how much the insured should receive on a claim. For example, if an insurance company disagrees with an estimate to repair a car damaged in a car accident, the insurance company may only offer a portion of what the insured spent on the repairs. In some cases, an insurance company will outright deny the claim, refusing to pay anything at all. In Georgia, when an insurance company fails to engage in a good-faith effort to settle a claim, they may be subject to additional damages under what is essentially a breach-of-contract theory. A recent case illustrates one woman’s bad-faith claim against her own insurance company.

Peden v. State Farm:  The Facts

Peden was over at a friend’s house for the friend’s birthday celebration. For her birthday, Peden’s friend had received a new car. At some point in the evening, the group of friends got into the car for what they thought would be a photo op. However, once they were all in, the friend’s fiancé got into the driver’s seat and took the car for a joy ride. He was intoxicated.

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Last month, an appellate court in Connecticut issued a written opinion in a car accident case brought by an injured high school student and his parents against the school administrators at the teen’s school. In the case, Strycharz v. Cady, the court was tasked with determining whether the school’s administrative staff was protected from legal liability under governmental immunity. Ultimately, the court determined that most of the administrative staff was immune from legal liability, but a valid question existed regarding whether the assistant principals were protected.

Parking LotThe Facts of the Case

Strycharz was a student at Bacon Academy, a public school with bus service throughout the local community. On the day in question, Strycharz rode the bus to school but upon exiting the bus did not proceed directly into the building. Instead, he and a friend decided to go across the street to smoke a cigarette before beginning the school day. On his way across the street, Strycharz was struck by another student’s car. He suffered a serious injury as a result and filed a personal injury lawsuit against the driver, the school administrators, and several other town officials.

Before the case reached trial, the school administrators asked the court to dismiss the case against them, based on the fact that they were government officials carrying out a discretionary duty. Specifically, they claimed that it was up to them to determine how to protect students coming to and from school, and since the duty was discretionary, government immunity attached, making them immune from legal liability. The court noted that all of the administrators except for the assistant principals had a discretionary duty and dismissed the case against those defendants. Regarding the assistant principals, the court held that there was a ministerial duty to ensure the safe travel of students to and from the school bus into the school, but the duty was fulfilled by the assistant principals’ actions.

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Earlier this month, an appellate court applied the attorney work product privilege to protect the undisclosed findings of a plaintiff’s unused expert. In the case, Malashock v. Jamison, the court determined that a plaintiff does not waive the work product privilege when they initially designate an expert as one who will testify during the trial but then later determine not to have the expert testify at trial.

ATVThe Attorney Work Product Privilege

Most people have heard about the attorney-client privilege that acts to protect information conveyed to an attorney by his or her client in almost all cases. The attorney work product privilege is similar, in that it prevents an opposing party from obtaining certain information. However, unlike the attorney-client privilege, the work product privilege protects any information prepared in anticipation by a party’s attorney. For example, a memorandum written from an attorney to their client expressing concerns about weaknesses in the client’s case would almost certainly be protected.

A Plaintiff Discloses an Expert and Then Changes His Mind

In the case, Malashock v. Jamison, the plaintiff was injured while riding a utility vehicle that the defendant had sold him. The plaintiff filed a lawsuit against the defendant, claiming that the vehicle was unreasonably dangerous and not properly serviced. To help prove his case, the plaintiff designated four expert witnesses. One of the witnesses was to explain to the jury the forces involved in the accident and how the vehicle’s frame performed under the stresses of the accident. No specific information was released about the expert’s proposed testimony.

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Most people who have been to an amusement park, ski resort, or concert venue have seen the small print printed on the back of their ticket. Far fewer people have actually taken the time to read and understand what the text says. However, this language is very important because it contains crucial information about the rights the ticket holder has should something go wrong while they are participating in the activity. And regardless of whether the ticket holder knows it, in most cases, proceeding to engage in the activity can actually act as an acceptance of the terms contained in this small print.

ContractOne important term that businesses often slip into the small print is an arbitration clause. An arbitration clause is a contractual term between two parties that acts as an agreement not to use the court system should something go wrong. Rather than use the court system, the injured or aggrieved party agrees to submit their claim to an arbitration panel that will decide whether the claim has merit and if so, how much the injured party is entitled to receive.

Arbitration has many benefits for businesses, including lowering the cost of defending a claim and keeping the results of all claims confidential. Additionally, since the business determines which arbitration company hears the claims against it, the results tend to favor businesses over those who are seeking relief. Generally speaking, arbitration should be avoided by personal injury plaintiffs, if possible. However, since companies often slip arbitration clauses into their contracts, sometimes victims do not have a choice.

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Earlier last month, an appellate court issued a written opinion discussing whether a casino has a duty to protect passengers as they board a free shuttle operated by the casino. In the case, Huang v. The Bicycle Casino, the appellate court determined that the lower court erred when it held, as a matter of law, that the defendant did not owe the plaintiff a duty of care to prevent other passengers from trampling her as she was boarding the bus. Although the court did not reach a final decision on whether the casino was acting as a common carrier, the language used by the court indicated its willingness to consider the issue in future cases presenting similar facts.

Crowded BusThe Facts of the Case:  A Woman Is Trampled as She Boards a Casino Shuttle

Huang was planning on visiting the defendant casino. To get there, she planned to take a free shuttle offered by the casino. However, she was not alone in her desire to use the free shuttle. In fact, there were between 40 and 70 other people waiting for the same shuttle, which only had 40 seats.

The casino did not do anything to ensure the orderly boarding of the shuttle, and the shuttle stop was described as chaotic by those present. As the shuttle approached, the crowd ran toward it with many people trying to board at the same time. As Huang approached the shuttle doors, the crowd surged and caused her to slip. As a result of her fall, she sustained a serious injury. She subsequently filed a personal injury lawsuit against the casino.

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Earlier last month, the Georgia Court of Appeals issued a written opinion in a premises liability case brought by a woman who slipped and fell in the defendant’s grocery store. In the case, Youngblood v. All American Quality Foods, the court ultimately determined that there was insufficient evidence showing that the defendant grocery store knew of the dangerous condition causing Youngblood’s fall. The court also held that, even if the defendant did have actual knowledge of the hazardous condition, store employees took reasonable care in tending to it.

Wet FloorThe Facts

Youngblood was shopping at the defendant grocery store when she slipped in a puddle of water in the beverage aisle. There was no evidence indicating where the puddle of water came from, and Youngblood testified that she did not see the puddle before stepping in it. At some point around the same time as Youngblood’s fall, another customer told the store’s management that there was a spill in the beverage aisle. It was not established whether this was before or after Youngblood’s fall. However, by the time a store employee arrived at the spill with cleaning supplies, Youngblood had already fallen.

As a result of her fall, Youngblood sustained injuries and filed a personal injury lawsuit against the store. The store argued that there was no proof that it had knowledge of the spill prior to Youngblood’s fall, and even if the other customer did alert management to the spill moments before the fall, the employees acted in a reasonable manner in tending to the spill.

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