Costa Concordia sinking highlights concern for cruise ship safety

The recent cruise ship tragedy in Italy involving the Costa Concordia (owned by a subsidiary of Carnival Cruises) has brought cruise safety to the front pages of newspapers across the world. But while major disasters such as the Costa Concordia sinking attract worldwide attention, numerous other mishaps ranging from minor irritations to life-threatening injuries can and do occur with regularity on board ships just as they do on land. These stories rarely make the news, although there are occasionally reports surface of passengers or crew who go missing, such as this British crew member of a Disney cruise ship who disappeared last year.

More common are injuries that occur on board ships in recreation areas such as pools, spas, gyms, and climbing walls. Just as on land, the owner of the ship owes certain duties to its guests to maintain a safe environment. In some cases, the cruise operator may be liable for injuries and mishaps that occur during shore excursions as well. There are often, however, contractual limitations on the ability to seek compensation against the cruise operator, so it is critical to review all relevant documents, tickets, and notices provided by the operator before choosing to seek compensation. While individuals can represent themselves in maritime litigation, and in negotiations with a cruise company or operator before litigation, an attorney with knowledge of the specialized rules and laws governing cruises and maritime law in general is often advisable.

Turkheimer & Hadden's attorneys are experienced litigators in complex personal injury, employment, and business matters. Please contact us at the number below if you would like to speak with us about your legal concerns.


Turkheimer & Hadden, LLC
Trial and Appellate Lawyers
142 Walker Street
Atlanta, Georgia 30313
(404) 890-7200
www.turkhadden.com

Turkheimer & Hadden attorney to speak at upcoming continuing education seminars

Turkheimer & Hadden partner John Hadden will speak at two upcoming seminars sponsored by the Institute for Continuing Legal Education in Georgia. On February 29, he will speak on preservation of error for appeal at the seminar "Handling Fall Cases Professionally" (Agenda). On March 16, he will speak on state vs. federal civil practice at the "Trial and Error" seminar, jointly sponsored by the State Bar's Young Lawyers Division and the ICLE. This seminar will be broadcast statewide.

Federal Appeals Court: Case against Countrywide (Bank of America) can proceed

A panel of the United States Court of Appeals for the Ninth Circuit has ruled that a lawsuit against the Countrywide unit of Bank of America Corporation could proceed to trial. As reported by Reuters, the plaintiffs filed suit against the home loan giant alleging violation of the federal Truth In Lending Act as well as claiming that that the lender refused to cancel the loan after they made a request to do so shortly after signing the papers.

The Hispanic plaintiffs claimed that a loan officer refused to leave their home until they agreed to sign documents they did not understand, refusing to reschedule to allow a relative who was more proficient in English to review the documents. Reuters also reports that Countrywide agreed to pay $335 million in penalties earlier this month based on U.S. Justice Department claims that it had discriminated against minorities by steering them toward more expensive loan products. According to the Washington Post, US Assistant Attorney General Tom Perez noted that “If you were African American or Latino, and you went to Countrywide for a loan, and you were qualified, you likely paid more simply because of the color of your skin.”

New York Times: Honda advises dealers to avoid selling Civics with air bag problems

According to a New York Times article this week, Honda has advised its dealers to stop selling certain models of its Honda Civic automobile until repairs are done to ensure that the air bag system is safe. The possible defect has been linked with 18 injuries and 2 deaths.

Honda has recalled over two million of the vehicles since 2008 for problems related to air bags.

Supreme Court revisits stream of commerce theory of personal jurisdiction

Note: The following article by John Hadden will appear in the Fall 2011 issue of The Sidebar, the newsletter of the American Association for Justice New Lawyers Division

United States Supreme Court Revisits Due Process Limitation on “Stream of Commerce” 
Exercise of Personal Jurisdiction

Ever since the United State Supreme Court established, in International Shoe v. Washington,¹ the modern conceptual boundaries of personal jurisdiction, it has periodically revisited the issue in the face of evolving world commerce. International Shoe held that a forum's exercise of personal jurisdiction did not violate federal Due Process so long as the defendant's conduct there evidenced certain “minimum contacts” and jurisdiction comported with “traditional notions of fair play and substantial justice.”² The Court ruled that a Delaware corporate resident doing business primarily in Missouri was subject to personal jurisdiction for a lawsuit brought in Washington state over the company's failure to pay unemployment taxes for employees working in Washington. But the Court noted that “single or isolated items of activities in a state . . . are not enough to subject [a defendant] to suit on causes of action unconnected with the activities there.”³

In so ruling, the Court created a distinction between what has come to be known as “general” personal jurisdiction, where the acts that create purported “minimum contacts” in the forum are not directly connected to the act or controversy giving rise to the lawsuit, and “specific” personal jurisdiction, where they are. Subsequently, in McGee v. International Life Insurance Co., the Court established that single or isolated acts related to the controversy would support specific jurisdiction.⁴

While these broad proclamations of “minimum contacts” and “fair play and substantial justice” today remain the outer boundaries of a Constitutional Due Process analysis of personal jurisdiction, they do not provide an easy answer for courts or practitioners dealing with practical, everyday questions involving the limits of a court's power. The Supreme Court has largely left it to the state and lower federal courts to develop their own jurisprudence over this domain within these Constitutional bounds. Nevertheless, the Supreme Court occasionally examines the issue and provides further guidance as to its limitations, particularly in the cases of defendants who place goods or services into the “stream of commerce.”

Notable decisions involving this evolving jurisdictional concept include World-Wide Volkswagen v. Woodson,⁵ which rejected a claim of personal jurisdiction in an Oklahoma state court based solely on the fact that the subject wreck occurred there, where the defendant had no other contacts with the forum; Helicopteros Nacionales de Columbia, S.A., v. Hall,⁶ also rejecting personal jurisdiction based on the defendant's regular purchases from the forum state, where the claim arose outside the forum; and Asahi Metal Industry Co. v. Superior Court,⁷ which once again rejected a claim of personal jurisdiction where the defendant placed an allegedly defective tire component into the stream of commerce that ended up in the forum state of California. The Asahi Court elaborated on the “fair play and substantial justice” aspect of International Shoe and held that jurisdiction was improper, in part, because the benefit to the plaintiff in maintaining jurisdiction in California was slight, while the burden on the defendant was severe.

This past summer, in Goodyear Dunlop⁸ and Nicastro,⁹ the Supreme Court issued its latest proclamations concerning the extent to which a forum can exercise personal jurisdiction based on a “stream of commerce” analysis in the context general and specific jurisdiction, respectively.

In Goodyear Dunlop, the parents of two minor children killed in a bus accident outside Paris filed suit in a North Carolina state court against Goodyear Tire and Rubber Company (Goodyear USA) and three foreign subsidiaries, one of which, based in Turkey, manufactured a tire alleged to have caused the bus wreck. Goodyear USA acknowledged that it regularly engaged in commercial activity in North Carolina and did not object to personal jurisdiction there. The remaining defendants did object, arguing that they had insufficient minimum contacts with the state to subject them to personal jurisdiction there, as the tires they manufactured were not typically sold in the United States. But the plaintiffs claimed, and the Supreme Court acknowledged, that at least some of the tires manufactured by the subsidiaries entered the stream of commerce and made their way to North Carolina, and further, that the tire involved in the Paris wreck bore marking permitting its sale in the U.S.¹⁰ The Court noted that the number of such tires reaching North Carolina was “tens of thousands out of tens of millions manufactured between 2004 and 2007.¹¹ The plaintiffs sought to invoke jurisdiction over the subsidiaries on the basis of this general stream-of-commerce contact.

Both the Supreme Court and the North Carolina appellate court agreed that the question was one of general, rather than specific, personal jurisdiction, since the case was neither related to, nor arose from, the tires that reached the state. The North Carolina court held that the subsidiary-produced tires reached North Carolina as a result of having been placed in the stream of commerce “without any limitation on the extent to which those tires could be sold” there, and therefore the companies had established sufficient minimum contacts to justify personal jurisdiction.¹² In a unanimous decision authored by Justice Ginsburg, the Supreme Court disagreed and reversed.

The Court noted that only two of its post-International Shoe cases, Perkins v. Benguet Consolidated Mining Co.¹³ and Helicopteros,¹⁴ had addressed the limits of general personal jurisdiction, which requires a showing that the foreign defendant's contacts with the state are sufficiently continuous and systematic to justify being brought into court. The Goodyear Dunlop Court reaffirmed Perkins as the prototypical case where general jurisdiction would be appropriate. In that case, the Court found jurisdiction to be appropriate in Ohio where, although the defendant was a Philippine company, it conducted all of its business activities in the forum state. It was, the Court held, essentially at home in Ohio, and had conducted virtually all of its operations from that forum during the period in which the act giving rise to the lawsuit had occurred. Turning back to the present case, the Court held that it presented a factual scenario closer to Helicopteros, where, although the defendant had engaged in substantial commerce within the forum state, it could not be considered “at home” there, and the Goodyear Dunlop Court declined to expand jurisdiction in that context. This ruling serves to affirm a sharp limitation of court power under the general-personal-jurisdiction theory.

In its other decision, Nicastro, the Court addressed the arguably more difficult question of whether a defendant was subject to jurisdiction in a forum (a New Jersey state court) where its product, finding its way to that forum, had caused injury. Since the product placed into commerce was, itself, the mechanism of the injury, the case involved an analysis of specific personal jurisdiction. Nicastro was injured by a metal-shearing machine manufactured in England and sold through a U.S. distributor. The New Jersey supreme court held that jurisdiction in the state was proper based on the existence of the U.S. distributor, the sale of at least one, but no more than four, of the company's machines in the state, and the attendance of company officials at trade shows in several U.S. states (but none in New Jersey).

A divided Supreme Court reversed the decision, with Justices Breyer and Alito concurring and agreeing with the reversal, but disagreeing that the case should serve as a vehicle for a broad pronouncement of jurisdictional doctrine, since the facts did not implicate modern international commerce concerns. Justice Ginsburg dissented, joined by Justices Sotomayor and Kagan.

The opinion by Justice Kennedy noted that an exercise of personal jurisdiction requires some act by which the defendant “purposefully avails itself”¹⁵ of the forum state. It acknowledged the uncertainty arising from its decision in Asahi with regard to the implications of a stream-of-commerce analysis and noted that by placing a product into that stream of commerce a defendant may have purposefully availed itself of the forum.¹⁶ Nevertheless, under the facts presented, the Court held that New Jersey lacked personal jurisdiction over the defendant, finding that the defendant's limited contacts with the state were insufficient to demonstrate such purposeful availment, despite the fact that it derived substantial income from U.S. sales. Thus, the Court held, the fact that a defendant's product reaches a forum state through the stream of commerce is, without more, insufficient to establish personal jurisdiction over the defendant. Justice Ginsburg's dissent argued that the majority's opinion “turn[ed] back the clock” to a time before the development of modern long-arm jurisprudence where manufacturers of dangerous products could escape accountability by selling their products through independent domestic distributors.¹⁷

In sum, Goodyear Dunlop and Nicastro embody the Supreme Court's reluctance to expand the jurisdictional reach of U.S. courts, and, at least in under the facts presented therein, to limit their availability in cases involving an invocation of personal jurisdiction based solely a defendant's participation in international commerce. The state and lower federal courts will likely reach varied decisions within the limitations of these decisions until the Supreme Court again decides to address the issue.

John D. Hadden is a member of the NLD Board of Governors for Georgia and chair of the Atlanta Trial Lawyers Association.

1326 U.S. 310 (1945).

2Id. at 316.

3Id. at 317.

4355 U.S. 220 (1957).

5444 U.S. 286 (1980)

6466 U.S. 408 (1984).

7480 U.S. 102 (1987).

8Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, 131 S. Ct. 2846 (June 27, 2011).

9J. McIntyre Machinery, Ltd., v. Nicastro, 564 U.S. ___, 131 S. Ct. 2780 (June 27, 2011).

10The Court noted, however, that this did not necessarily mean that the tires were intended for sale in the United States.

11Slip op. at 12, 131 S. Ct. at 2852.

12The North Carolina plaintiffs based jurisdiction on a provision of the state's long-arm statute that provided a forum in the state for any claim to the full extent of federal due process, regardless of where the tort and injury occurred. N.C. Gen. Stat. § 1-75.4 (1)(d). Not all states have such provisions and in those states, an exercise of personal jurisdiction may be limited even where federal Due Process is satisfied.

13342 U.S. 437 (1952).

14466 U.S. 408.

15Slip op. at 9, 131 S. Ct. at 2785 (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

16Slip op. at 16, 131 S. Ct. at 2788 (citing World-Wide Volkswagen, 444 U.S. at 298).

17Slip op. at 35-36, 131 S. Ct. at 2794-95.

Turkheimer & Hadden wins victory at Georgia Court of Appeals in Police Chase Case

The Georgia Court of Appeals yesterday affirmed a Fulton County judge's order denying the City of Atlanta's motion to dismiss a case on sovereign immunity grounds. The decision, holding that the case against the City of Atlanta could proceed, stated that:

the record shows that at approximately 5:00 p.m. on July 22, 2008, two APD officers identified a white Chevrolet Monte Carlo that appeared to be exceeding the speed limit, and which they believed matched the description of a vehicle that had been reported stolen earlier in the day. Upon learning that the vehicle's registration had been suspended [though the vehicle was not, in fact, stolen], the officers attempted to initiate a traffic stop by activating the emergency lights and siren of their marked City of Atlanta law enforcement police vehicle. The officers began pursuing the white Monte Carlo when its driver refused to stop or slow down and instead accelerated to the next intersection. One of the officers admitted that the pursuit of the white Monte Carlo violated the APD's written policy identifying the circumstances in which its officers were permitted to initiate and continue emergency vehicle pursuits. While the police pursuit was underway, the white Monte Carlo struck Lockett, a pedestrian who had been walking along the side of the road. (emphasis added)

Turkheimer & Hadden partner John Hadden, along with Christopher Graddock and Keenan Nix, represented the plaintiff on appeal.

Turkheimer & Hadden, LLC
44 Broad Street, Suite 600
Atlanta, Georgia 30303
(404) 890-7200
Trial and Appellate Lawyers

Note: Readers are reminded that despite our success in this case, every case is different, and past results do not guarantee future success.

Stefan Turkheimer appears on Fox 5 Atlanta ITeam news segment

Turkheimer & Hadden partner Stefan Turkheimer was recently interviewed for an investigative story by local broadcaster Fox 5 regarding alleged mistreatment of horses used to pull carriages in downtown Atlanta.

Link: Stefan Turkheimer appears on Fox 5

Turkheimer & Hadden wins victory at Court of Appeals

The Georgia Court of Appeals on Thursday upheld a jury verdict in favor of an injured deliveryman over the defendant homebuilder's claims that he had contributed to his injury or assumed the risk of that injury.  The plaintiff was seriously injured while making an early-morning delivery to a home site that was under construction by the defendant contractor.  The contractor had failed to put up barriers and warning devices that witnesses testified should have been present and which could have prevented the injuries.  The jury had found the contractor liable and further found that the plaintiff's negligence was less than the contractor's.

The case is Pritchard Bros., Inc., v. Houston, Georgia Court of Appeals case number A11A1076.  Atlanta Attorney Jay Sadd served as trial counsel, with John Hadden representing the plaintiff in the appeal.

Turkheimer & Hadden, LLC
44 Broad Street, Suite 600
Atlanta, Georgia 30303
(404) 890-7200
Trial and Appellate Lawyers

Note: Readers are reminded that despite our success in this case, every case is different, and past results do not guarantee future success.

Federal Government: FDA Approval Process Puts Patients at Risk

The General Accounting Office, part of the federal government, is criticizing the Food and Drug Administration over its streamlined procedure for approving medical devices such as hip implants and heart defibrillators following several high-profile device recalls.  The DePuy hip implant recall (manufactured by parent company Johnson & Johnson), in particular, has resulted in disabling injuries to many recipients of the devices.  Read more about this recall:


DePuy ASR Implants Associated with Cobaltism
Metallosis and DePuy ASR Hip Implants
List of Recalled Hip Implants

Turkheimer & Hadden, LLC
Trial and Appellate Lawyers
(404) 890-7200

Ford recalls trucks with defective airbags

Ford Motor Company has recalled nearly 1.2 million trucks suspected of containing defective airbags, according to the Associated Press.  The problem reportedly stems from airbags that improperly deploy, which can cause injuries or loss of vehicle control.  And according to the Los Angeles Times, the defect has led to at least 269 incidents, with over 1/3 of those resulting in injuries. 

Earlier this year, Ford recalled about 144,000 light trucks, but after investigation by federal authorities raised additional concerns, it substantially expanded the recall.

Turkheimer & Hadden, LLC
Trial and Appellate Lawyers
(404) 890-7200

Dangers of driving while using cell phones detailed

An article in this week's issue of the Economist presents new evidence on the dangers of using mobile phones while driving.  As we have previously written, the dangers of distracted driving are well documented, and have led to substantial personal injury settlements as well as action by state and federal governments to curb the problem.  Now research suggests that cell phone usage is more distracting that others activities undertaken by drivers such as eating, listening to the radio, or dealing with kids.

According to the article, cell phone usage differs from other language activities, such as speaking with someone actually in the car and listening to the radio.  It is more difficult to process communication when someone is not physically present.  The Economist article cited a Carnegie Mellon study that found a 37% decrease in activity in the brain's parietal lobe simply from listening to another caller.  As a result, some have argued that hands-free communications are not substantially safer, since the resulting distraction results not from physically holding a phone to one's head, but from the mental act of communicating without someone being present.

According to at least one study cited in the article, a driver using a cell phone is more collision-prone than a driver at the legal limit for alcohol consumption in Georgia; such drivers are 4 times as likely to cause a collision while on the phone as non-distracted drivers.  And drivers using a phone for text messages are several times more likely than drivers simply talking on the phone to cause a collision.

Our firm has represented numerous individuals injured in automobile collisions caused by drunk drivers and drivers distracted by cell phone use.  Please call us if we can answer any questions about your legal rights.

Previous posts:
City settles car accident case involving cell phone use for $1.5 million
Georgia enacts new laws prohibiting driving and text messaging while driving
United States Department of Transportation proposes ban on cell phone usage for commercial drivers

Turkheimer & Hadden, LLC
(404) 890-7200
Trial and Appellate Lawyers

Georgia Evidence Code Revised by Georgia General Assembly

On April 14, the Georgia Senate approved a sweeping revision to the Georgia Evidence Code, adopting the framework of the Federal Rules of Evidence first enacted in 1975, and replacing the current evidence scheme that was based largely on laws enacted during the Civil War.  Although the code does little to change the substance of Georgia law, it does substantially modernize the numbering of the code and codifies provisions that were previously found only in case law, bringing Georgia's legal system in line with the majority of state legal systems, as well as the federal system.  Georgia had previously adopted the Federal Rules of Civil Procedure in the 1970s, but had resisted adoption of the Federal Evidence Rules despite attempts to do so by various legislators, including now-governor Nathan Deal,for approximately 25 years.

State Bar of Georgia president-elect Kenneth Shigley has posed a blog entry with further information, including a link to a summary of the bill, on the Atlanta Injury Law and Civil Litigation Blog.

The new evidence code has an effective date of January 1, 2013.  It applies, however, to any trial starting on or after that date, regardless of when the lawsuit is filed.  Therefore, it is not at all unlikely that the new code would apply to the trial of a case filed today.

Governor Nathan Deal is expected to sign the bill into law soon.

Turkheimer & Hadden, LLC
(404) 890-7200
Trial and Appellate Lawyers

Georgia Court rules landowner can be liable for damages caused by aerial applicator acting as independent contractor

Yancey v. Watkins, Case no. A10A1636 (March 9, 2011)
Appeal from the Superior Court of Ben Hill County

The Georgia Court of Appeals for the the first time declared the aerial application of chemicals to crops, commonly known as "crop-dusting," an inherently dangerous activity that could render a landowner subject to liability even if undertaken by an independent contractor. 

In Yancey v. Watkins, the Georgia court reviewed the trial court's denial of summary judgment to two defendants who were allegedly liable for damage to a neighboring landowner's crops as a result of errant chemical application.  The two pieces of property in question were owned by the Watkins family and Ussery, who was assisted in his farming operations by his brother-in-law, Yancey.  In the fall of 2006, Ussery decided to use the services of a crop-duster to spread defoliant chemicals on his cotton crop.  Yancy assisted by purchasing the defoliant chemicals and delivering them to the airport for use by the crop-duster.  Unfortunately, some of the defoliant drifted onto the neighboring Watkins farm during application causing damage to the Watkins's pepper crop.  The Watkins then filed this lawsuit.

As an initial matter, the Court of Appeals held that because there was no evidence that Yancey was a partner or joint venturer with Ussery, but was rather akin to an employee, he could not, as a matter of law, be held liable for the damages.

The court then analyzed whether Ussery could himself be liable because he had hired the crop-duster as an independent contractor rather than an employee.  Generally, an employer is not liable for the acts of a contractor engaged in independent business and not under the direct control of the employer.  Although there are many exceptions and qualifications to the rule, the determination of whether someone is an independent contractor often depends on whether the employer controls the "time, manner, and method of performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract."  Slater v. Canal Wood Corp. of Augusta, 178 Ga. App 877, 878 (1986) (citing O.C.G.A. § 51-2-4).

After reviewing the evidence, the court found that the crop-dusting pilot was indeed an independent contractor, and thus Ussery would not typically be liable for his acts.  But the court's analysis was not complete.  One of the exceptions to the independent contractor rule is that the employer cannot escape liability where, "according to the employer's previous knowledge or experience, the work to be done is in its nature dangerous to others however carefully performed.  O.C.G.A. § 51-2-5. 

Finding first that Ussery himself had knowledge of the dangers of aerial application based on a prior experience, the court went further and held for the first time that the activity was inherently dangerous in general, and therefore landowners/employers who retained the service of crop-dusters cannot escape liability for damages caused by application of these chemicals.  The court thus sent the case back to the trial court for trial with respect to the claims against Ussery (and likely the crop-duster as well, who was named in the lawsuit but was not involved in the appeal).

Turkheimer & Hadden, LLC
Attorneys at Law
Trials and Appeals
(404) 890-7200

Georgia Court of Appeals upholds immunity for landowner conducted controlled burn

The Georgia Court of Appeals recently decided two cases addressing liability for agricultural operations.  In the first, the court held that a landowner who followed the advice of a forest ranger and obtained the advice of the forestry service was not liable for the death of a motorist who was killed because of reduced roadway visibility resulting from the burn.  In the second, the Court of Appeals held for the first time that aerial application of chemicals, or “cropdusting,” is an inherently dangerous activity, and therefore a landowner can be liable for the acts of an independent contractor doing work on the landowner's land.  The first case is discussed below, and the second will be summarized in a subsequent post.

Immunity upheld for prescribed burn of farmland
Morgan v. Horton, Case no. A10A1914 (March 4, 2011)
Appeal from the Superior Court of Brantley County

Ronnie Horton was killed on December 6, 2001, after his vehicle collided with a tractor trailer in rural Georgia.  The collision was a result, according to Horton's estate, or reduced roadway visibility caused by a nearby landowner, Morgan's, prescribed burn, or “burning off,” of a field.  The question addressed by the court was whether Morgan was entitled to immunity from liability caused by the burn because of a statute, O.C.G.A. § 12-6-148, that purports to limit a landowner's liability to third-parties.

Prior to undertaking the burn, Morgan, who had no experience with prescribed burns, contacted the forestry service for advice on the project and to obtain a permit for the burn.  The forest ranger, who had over 30 years experience with prescribed burns, instructed Morgan on how to properly divide the field into separate sections and to place firebreaks.  On the morning of December 4, the weather conditions appeared ideal and the ranger and Morgan began the burn, after obtaining the required permit.

By December 5, although small spots of brush continued to smolder, the fire was mostly burned out.  The ranger and Morgan continued to monitor the field throughout the day, and the state patrol told them that it would continue to monitor the visibility and inform the Department of Transportation if roadway visibility changed so that it could put out warning signs.

That night, conditions changed, and residual smoke began to hover in the area.  Between 6:00 and 7:30 am, the remaining smoke combined with fog and severely reduced the visibility on a roadway adjoining Morgan's land.  A truck driver traveling through the area stopped his vehicle because off the low visibility, and shortly thereafter, it was hit by Horton's truck, resulting in Horton's death.

Georgia law provides that

   (a) Prescribed burning conducted under the requirements of this part shall:
   (1) Be accomplished only when an individual with previous prescribed burning experience or training is in charge of the burn and is present on site until the fire is adequately confined to reasonably prevent escape of the fire from the area intended to be burned;
   (2) Be considered in the public interest and shall not create a public or private nuisance;
   (3) Be considered a property right of the landowner; and
   (4) Be conducted in accordance with a permit issued under Part 3 of this article.
(b) No property owner or owner's agent conducting an authorized prescribed burn under this part shall be liable for damages or injury caused by fire or resulting smoke unless it is proven that there was gross negligence in starting, controlling, or completing the burn.

Horton's estate argued that the immunity created by O.C.G.A. § 12-6-148 (b) was not applicable on several grounds.  First, it argued that since Morgan had never conducted a prescribed burn before, he was not entitled to the statute's protections under subsection (a)(1).  The court rejected this argument since the evidence showed that the forest ranger was actually in charge of the burn.  The court also held that this subsection contained no requirement that the ranger be on site for the entire time of the burn.   Second, the estate argued that because the fire continued to burn after the expiration of the permit, Morgan would have been required to obtain a new permit in order to claim the protections of the statute.  Once again, the court held that the statute did not contain such a requirement, and therefore found that subsection (b) was applicable to the case.

Although the court found that the statute applied, the estate also argued that the immunity provision was not absolute and did not apply where the defendant was was grossly negligent.  Gross negligence is defined as “the failure to exercise that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances; or lack of the diligence that even careless men are accustomed to exercise.” (Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 707 (2005).

The court agreed that Morgan could be subject to liability if the estate could prove that he was grossly negligent, but found that the record did contain any evidence suggesting such a gross lack of care.  Morgan was not, for example, required to take precautions above and beyond those required by the forestry service, nor was he required to forgo the burn entirely and use more costly and less effective methods to clear his land.  As a result, the Court of Appeals ordered the trial court to enter summary judgment in favor of Morgan and against the estate.

Turkheimer & Hadden, LLC
Attorneys at Law
Trials and Appeals

(404) 890-7200

Turkheimer & Hadden wins important victory for injured workers at Georgia Court of Appeals

The Court of Appeals of Georgia today released an opinion in the case of Austell HealthCare, Inc., v. Scott (Case No. A10A2346, March 11, 2011).  Turkheimer & Hadden partner John Hadden represented Dan Scott, who was injured in an automobile collision while on the job.  After recovering workers' compensation benefits, Mr. Scott filed suit against the at-fault driver and ultimately recovered a $76,000 settlement.  The workers' compensation insurer then attempted to obtain reimbursement for approximately $59,000 in medical costs and lost wages it had paid to him.  Georgia law provides for reimbursement of this type, but only where the injured person is fully compensated for his or her injuries.

In affirming the trial court's order dismissing the reimbursement claim being made by Austell HealthCare and Travelers Indemnity Company of America, the Court of Appeals held that an insurer has the burden of proving that the worker has been fully and completely compensated for medical expenses, lost wages, and pain and suffering as a result of a judgment or settlement.  In this case, the insurer had failed to do so, having been unable to present any evidence of full compensation.

The attorneys of Turkheimer & Hadden specialize in appellate litigation as well as workers' compensation, personal injury, and business litigation matters.

Turkheimer & Hadden, LLC
Attorneys at Law 
(404) 890-7200 

Note: Readers are reminded that despite success in this case, every case is different, and past results do not guarantee future success.

Georgia Court of Appeals upholds automobile insurance exclusion

The Court of Appeals of Georgia today upheld an exclusion in an automobile liability insurance policy that precluded coverage for a driver who borrowed the car of another but was not listed on the owner's policy.  In State Auto Mutual Insurance Co. v. Todd (Case no. A11A0046, March 4, 2011), the court held that the driver was excluded from coverage because she regularly used the vehicle that she was driving at the time that she was alleged to have committed a negligent act causing injury to a third party.

Automobile insurance policies routinely contain exclusions to coverage for drivers who are not listed on the policy or application for insurance but are nevertheless regular users of the vehicle.  The purpose of such exclusions, the court explained, is to allow non-regular, incidental use of a vehicle by a non-listed driver without increasing the premiums; when that other driver regularly uses the vehicle, on the other hand, the insurer may take on additional risk without a corresponding increase in premium.  The exclusion allows the insurer to prevent this additional, uncompensated risk, and Georgia courts have routinely upheld them as enforceable.

In this case, the court found that there was sufficient evidence that the allegedly at-fault driver regularly used the vehicle - she testified, for example, that she used it "[r]egularly, but maybe not on a daily basis," and that she sometimes kept it at her home - and therefore, as a matter of law, she fell within the "regular use" exclusion in the policy.  The auto insurer therefore had no obligation to provide coverage to her for claims made by the injured third party.

Turkheimer & Hadden, LLC
Attorneys at Law
Trials and Appeals  
(404) 890-7200

John Hadden to lead judicial panel discussion at continuing legal education seminar

On March 18, John Hadden will be moderating a panel of distinguished judges in a discussion of effective trial advocacy techniques.  The panel is part of the Trial & Error CLE sponsored by the State Bar of Georgia's Young Lawyers Division and the Institute for Continuing Legal Education in Georgia.  Judges Diane Bessen (Fulton County), J. Antonio DelCampo (DeKalb County) and Randy Rich (Gwinnett County) will be the featured panelists.

Complete information can be found on the ICLE's web site.

Turkheimer & Hadden partners recognized in SuperLawyers Magazine

Partners John Hadden and Stefan Turkheimer have been named Rising Stars in the 2011 SuperLawyers magazine.  According to Thomson Reuters, which publishes the list in Georgia along with Atlanta Magazine, Rising Stars comprise the best lawyers in the state under 40 years old or practicing for less than 10 years, and make up no more than 2.5 percent of lawyers in Georgia.

Turkheimer & Hadden in 2011 SuperLawyers

John Hadden meets with governor and GTLA leadership

On Wednesday, John Hadden, along with Georgia Trial Lawyers Association president Michael Warshauer and GTLA grassroots director Micah Gravley, met with newly elected Georgia governor Nathan Deal at the capitol.  Governor deal asked for our input on a bill overhauling the Georgia evidence code that is currently being debated by the general assembly.  Later in the day, we met with legislators and attended the Senate Judiciary Committee hearing.

Major banks forced to suspend foreclosures after 'robo-signing' of documents exposed

From the Georgia Trial Lawyers Association blog:

GMAC Mortgage, JPMorgan Chase and Bank of America recently announced that they were suspending foreclosures after lawsuits exposed fraudulent practices. Other banks charged with illegalities include Wells Fargo, CitiMortgage, HSBC and National City.
The Washington Post reported Oct. 9 that senior Obama administration officials were saying that "a nationwide moratorium on foreclosure sales may be inevitable, despite their grave reservations about the impact a broad freeze would have on the nation's housing market and economic recovery."
Problems turning up in courts across the country are varied, the New York Times reports, but all involve documents that must be submitted before foreclosures can proceed legally. Here are some of the more common shortcuts that have been exposed:

Thousands of documents have been signed by employees, dubbed "robo-signers," who admit they have not verified crucial information like amounts owed by borrowers.

Questionable legal notarization of documents has been common, in which, for example, the notarizations predate the actual preparation of documents—indicating that signatures were never actually reviewed by a notary.

Other notarizations took place so far from where the documents were signed that it was highly unlikely that the notaries witnessed the signings, as the law requires.

On other important documents, an official’s name is signed in radically different ways suggesting that some are forgeries.

Additional problems have emerged, the Times reports, when multiple banks have all argued that they have the right to foreclose on the same property, "a result of a murky trail of documentation and ownership."

Turkheimer & Hadden, LLC
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Eleventh Circuit Court of Appeals reverses decision on class action jurisdiction

Earlier this year, we reported that the Eleventh Circuit Court of Appeals, a federal appellate court based in Atlanta, had significantly narrowed the scope of federal jurisdiction in class action matters under the Class Action Fairness Act, or CAFA.  On Friday, in light of the parties' motions for reconsideration, the court reversed its prior decision and held that “subsequent reflection has led us to conclude that our interpretation [of CAFA] was incorrect.”

As a result of the revised decision, federal jurisdiction is not dependent on any individual class member having a claim in excess of $75,000 (exclusive of interest and costs) so long as the entire class claim involves the jurisdictional minimum under CAFA of $5,000,000.  This is the case both under original and removal federal jurisdiction.

The text of the decision can be found on the Eleventh Circuit web site here.  The case is Cappuccitti v. DirecTV, Inc., No. 09-14107 (October 15, 2010).

Turkheimer & Hadden
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Medtronics settles claims for device linked to 13 deaths

Bloomberg reports that Medtronic has agreed to pay $268 million to settle claims resulting from allegedly defective heart defibrulator components.  The company, which is the world's largest manufacturer of such devices, stopped sales of certain wire leads that were used in its Sprint Fidelis devices in 2007 after reports surfaced of possible defects in construction.  In 2009, the company acknowledged that the wires "may have been a possible or likely contributing factor" in 13 deaths.

Turkheimer & Hadden, LLC
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Civil justice system and trial lawyers protect senior citizens by exposing nursing home abuses

Kimberly Atkins writes on her blog at LawyersUSA (subscription required), "Civil suits help uncover abuses by nursing home and insurance companies, according to a new report by the American Association for Justice. 'Where regulatory and legislative bodies have been unable to cope with this distressing rise of neglect and abuse of our elderly, the civil justice system has stepped into the breach,' said AAJ President Gibson Vance, a partner in the Montgomery, Ala., office of Beasley Allen, in a statement accompanying the release of the report, 'Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans.'" The report "outlines how, through litigation, trial attorneys across the country have uncovered evidence of corporate programs aimed at terminating seniors' benefits as well as evidence of nursing home abuse and neglect."

The report referenced by Atkins, accessed at the link below, highlights a common theme of "abuse by insurance companies taking advantage of senior citizens." (PR Newswire).  Vance noted that "Corporate nursing homes and insurance companies have continually chosen to put profits ahead of the well-being of our most vulnerable population," and that because governmental oversight of these problems was simply not feasible in all or even most cases, the civil justice system and trial lawyers have stepped in to fill the gaps.

Sources:
American Association for Justice report
PR Newswire article
Photo credit: Simon Howden

Turkheimer & Hadden, LLC
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Pharmaceutical companies under investigation for bribery abroad

According to this week's Bloomberg Businessweek (October 11, 2010), US officials are investigating whether a number of drug manufacturers including Merck, Bristol-Myers Squibb, AstraZeneca, Baxter, and GlaxoSmithKline, paid bribes to regulators and government-employed doctors to facilitate approval of the companies' pharmaceuticals.  This action follows government settlements with a number of drug makers over improper marketing, including off-label use, of popular medications.  The investigation is said to include activities in Brazil, China, Germany, Italy, Poland, Russia, and Saudi Arabia.

Mercedes recalls 85,000 vehicles over steering system concerns

Following on the heels of similar recalls by Cadillac and Hyundai, Daimler has announced that it is recalling about 85,000 2010 and 2011 models over concerns that the vehicles' steering systems may malfunction, according to Fox News.  The recall affects 2010 C-Class cars and 2010 and 2011 E-Class coupes and cabriolets

Fisher-Price announces recall of 10 million toys and child products

The Houston Chronicle reported last week that that the Consumer Products Safety Commission and Fisher-Price have announced the recall of over 10 million products over safety concerns.  The affected products included Trikes and Tough Trikes as well as Easy Clean and Close to Me High Chairs.  The trikes contained a protruding key assembly that has been blamed for 10 injuries, six of which required medical attention, and the high chairs similarly contain a protruding peg blamed for 14 injuries, including seven requiring stitches and one tooth injury.

Other recalled products include: Baby Playzone Crawl & Cruise Playground toys, Baby Playzone Crawl & Slide Arcade toys, Baby Gymtastics Play Wall toys, Ocean Wonders Kick & Crawl Aquarium toys, 1-2-3 Tetherball toys, Bat & Score Goal toys, and Little People Wheelies Stand 'n Play Rampway toys.

Parents can visit http://www.service.mattel.com/ for more information.

Turkheimer & Hadden, LLC

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Amendment One on this fall's Georgia ballot is bad for Georgians

Amendment One, which appears on the general election ballot this fall in Georgia, purports to make Georgia more competitive by allowing companies to create "reasonable competitive agreements."  The truth is far different: what the actual amendment does is create a system whereby employers can fire employees and prevent those employees from working in the state or elsewhere for up to two years.  In other states, studies have shown that such laws REDUCE innovation and business opportunities. 

Therefore, we urge all Georgia voters to vote NO on Amendment One and preserve the rights of workers in our state.  Click here for an informative column by the AJC's Jay Bookman, where he explains just how the amendment is bad for Georgia and how it will make us less competitive.

Turkheimer & Hadden, LLC
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Hyundai recalls 140,000 vehicles

Hyundai Motor Co. has announced the recall of approximately 140,000 Hyundai Sonata automobiles amid complaints of steering problems that the company says could result in drivers losing control of their vehicles.  The Los Angeles Times reports that NHTSA (the National Highway Traffic Safety Administration) has been investigating reports since August of drivers reporting difficulty steering their cars, though Hyundai stated that fewer than ten cars had been reported with the problem.

Turkheimer & Hadden, LLC
Attorneys at Law
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Novartis is latest drug maker penalized for off-label marketing of pharmaceuticals

Novartis has become the latest drug maker to reach a substantial settlement over allegations of off-label marketing of popular prescriptions medications, following similar settlements of Pfizer/Wyeth, Forest Laboratories, and Allergan. Bloomberg reports that the $422.5 million settlement stems from improper marketing of epilepsy drug Trileptal for non-approved use in the treatment of bi-polar disorders.  Novartis also agreed to plead guilty to federal criminal charges alleging that it had improperly introduced mis-branded drugs into interstate commerce.

According to Patrick Burns, spokesman for Taxpayers Against Fraud, "Not only did [Novartis] steal from American taxpayers, it put patients at risk because doctors were prescribing medications for bipolar disorder that were not approved for that disorder and did not work as well as other medications that were approved."

"Novartis clearly had a systematic plan of bribing doctors in order to increase sales," said Burns.

The New York Times also reported the story.

Turkheimer & Hadden, LLC
Attorneys at Law
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Government advises against use of infant sleep positioners

As reported in multiple sources, the Food and Drug Administration and Consumer Product Safety Commission is advising parents against the use of infant sleep positioners since the devices may cause a suffocation risk for children.  The devices, which are intended to prevent sudden infant death syndrome (SIDS), have been implicated in at least twelve deaths.  According to the AP, the American Academy of Pediatrics has long advised against use of the devices, which often use foam to keep infants on their backs.

Articles:
New York Times
Associated Press

Turkheimer & Hadden, LLC
Attorneys at Law
404-890-7200