The Law Offices of Turkheimer & Hadden, LLC

Sharon Stone Paying Workers a Sliver of What is Owed?

noreply@blogger.com (Stefan Turkheimer) — Thu, 24 May 2012 17:42:00 +0000

Sharon Stone recently was sued by one of her domestic workers over an overtime pay dispute, and the complaint contains allegations that Stone discriminated against her employee, Erlinda Elemen, by making derogatory comments about her accent, the food of her people, and that "Filipino people were stupid."

While discrimination based on national origin, as is alleged in the complaint, is clearly outlawed by Title VII of the Civil Rights Act of 1964, determining overtime liability in the Sphere of Domestic Workers can be a difficult task. Generally, those workers who live on the premises of the employer are not eligible for overtime (but minimum wage rules still apply) whereas those that come and go are eligible for overtime wages and the Fair Labor Standards Act's overtime regulations would apply to them. However, there are exceptions that cut both ways, and it is best to consult an FLSA Specialist, such as Stefan Turkheimer, John Hadden, or Jordan Britt to determine whether the FLSA overtime rules apply to a specific job.

Employers such as Stone fall into two categories: The Quick and The Dead. Those that immediately fix the wage and hour problems as soon as they can and pay what they owe to their employees will not have to pay heavy penalties in the form of attorney's fees, but those who refuse can be held responsible for all of the fees of the underpaid worker's attorney. This rule of the FLSA prevents an employee who was wrongfully denied overtime pay from having to pay anything up front to hire an attorney.

Source: TheWrap.com

New law imposes new legal requirements for owners of dangerous and vicious dogs

noreply@blogger.com (John D. Hadden) — Tue, 22 May 2012 23:18:00 +0000

A new bill recently signed into law by Governor Nathan Deal provides extensive rules governing ownership of dogs deemed dangerous and vicious and provides substantial penalties for failure to properly control dogs that may pose a danger to the public.

House Bill 685, which is effective July 1, 2012, revises several portions of Title 4 of the Official Code of Georgia to require, among other things, a "certificate of registration" for certain categories of dogs. Significantly, the law does not specify particular breeds, but rather creates two categories of dogs to which the law applies. Specifically, the law creates a distinction between "dangerous" and "vicious" dogs, with the latter category generally comprising animals capable of causing serious injuries. For both categories, owners must demonstrate that they maintain a proper enclosure for the pet to prevent its escape from their property and that they have warning sides visible from all entrances to the property. For dogs considered vicious, the law additionally requires that the owner maintain no less than $50,000 in liability insurance to cover damages to a third party caused by the dog and that the dog be tagged with an embedded microchip identifying the owner.

It is not entirely clear whether owners have an affirmative duty to seek classification of dogs they believe may be vicious or dangerous under the terms of the law. But if the local dog control officer receives notice from someone of a potentially dangerous or vicious dog, the officer must undertake an inspection under the rules set forth in O.C.G.A. §4-8-23. The rules also provide from the right to a hearing and subsequent appeal by a dog owner.

The law prohibits those convicted of of certain felonies from obtaining certificates of registration for vicious dogs, and also prohibits issuance of more than one certificate per household or ownership of more than one vicious dog per person. Finally, the law established strict requirements, such as leash lengths and muzzle and crate criteria, that apply any time a dog covered by the law is taken off of the owner's property. A dog owner previously convicted of violation of the new law who is found guilty of a second offense is punishable, in some circumstances where the dog causes serious injuries to another person, by imprisonment of up to 10 years and a fine of up to $10,000.

Earlier this year, the Atlanta Journal-Constitution reported on the trial of a dog owner whose animal had caused serious personal injuries to a 10-year-old girl. The owner was convicted of six misdemeanors and sentenced to 16 months in jail. The young victim lost an arm. In addition to criminal liability, victims of dog attacks may be able to pursue civil remedies against negligent owners.

The entire bill, including legislative history, can be accessed here. Selected provisions of the bill are produced at the bottom of this article, with portions of particular interest in bold (including definitions for "dangerous" and "vicious" dogs).

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

O.C.G.A. §4-8-20

This article shall be known and may be cited as the 'Responsible Dog Ownership Law.'

O.C.G.A. §4-8-21

(a) As used in this article, the term:

(1) 'Classified dog' means any dog that has been classified as either a dangerous dog or vicious dog pursuant to this article.

(2) 'Dangerous dog' means any dog that:

(A) Causes a substantial puncture of a person's skin by teeth without causing serious injury; provided, however, that a nip, scratch, or abrasion shall not be sufficient to classify a dog as dangerous under this subparagraph;

(B) Aggressively attacks in a manner that causes a person to reasonably believe that the dog posed an imminent threat of serious injury to such person or another person although no such injury occurs; provided, however, that the acts of barking, growling, or showing of teeth by a dog shall not be sufficient to classify a dog as dangerous under this subparagraph; or

(C) While off the owner's property, kills a pet animal; provided, however, that this subparagraph shall not apply where the death of such pet animal is caused by a dog that is working or training as a hunting dog, herding dog, or predator control dog.

(3) 'Local government' means any county or municipality of this state.

(4) 'Owner' means any natural person or any legal entity, including, but not limited to, a corporation, partnership, firm, or trust owning, possessing, harboring, keeping, or having custody or control of a dog. In the case of a dog owned by a minor, the term 'owner' includes the parents or person in loco parentis with custody of the minor.

(5) 'Serious injury' means any physical injury that creates a substantial risk of death; results in death, broken or dislocated bones, lacerations requiring multiple sutures, or disfiguring avulsions; requires plastic surgery or admission to a hospital; or results in protracted impairment of health, including transmission of an infection or contagious disease, or impairment of the function of any bodily organ.

(6) 'Vicious dog' means a dog that inflicts serious injury on a person or causes serious injury to a person resulting from reasonable attempts to escape from the dog's attack.

(b) No dog shall be classified as a dangerous dog or vicious dog for actions that occur while the dog is being used by a law enforcement or military officer to carry out the law enforcement or military officer's official duties. No dog shall be classified as a dangerous dog or a vicious dog if the person injured by such dog was a person who, at the time, was committing a trespass, was abusing the dog, or was committing or attempting to commit an offense under Chapter 5 of Title 16.

O.C.G.A. §4-8-23

(a) For purposes of this Code section, the term:

(1) 'Authority' means an animal control board or local board of health, as determined by the governing authority of a local government.

(2) 'Mail' means to send by certified mail or statutory overnight delivery to the recipient's last known address.

(b) Upon receiving a report of a dog believed to be subject to classification as a dangerous dog or vicious dog within a dog control officer's jurisdiction, the dog control officer shall make such investigations as necessary to determine whether such dog is subject to classification as a dangerous dog or vicious dog.

(c) When a dog control officer determines that a dog is subject to classification as a dangerous dog or vicious dog, the dog control officer shall mail a dated notice to the dog's owner within 72 hours. Such notice shall include a summary of the dog control officer's determination and shall state that the owner has a right to request a hearing from the authority on the dog control officer's determination within 15 days after the date shown on the notice. The notice shall also provide a form for requesting the hearing and shall state that if a hearing is not requested within the allotted time, the dog control officer's determination shall become effective for all purposes under this article.

(d) When a hearing is requested by a dog owner in accordance with subsection (c) of this Code section, such hearing shall be scheduled within 30 days after the request is received; provided, however, that such hearing may be continued by the authority for good cause shown. At least ten days prior to the hearing, the authority conducting the hearing shall mail to the dog owner written notice of the date, time, and place of the hearing. At the hearing, the dog owner shall be given the opportunity to testify and present evidence and the authority conducting the hearing shall receive other evidence and testimony as may be reasonably necessary to sustain, modify, or overrule the dog control officer's determination.

(e) Within ten days after the hearing, the authority which conducted the hearing shall mail written notice to the dog owner of its determination on the matter. If such determination is that the dog is a dangerous dog or a vicious dog, the notice of classification shall specify the date upon which that determination shall be effective. If the determination is that the dog is to be euthanized pursuant to Code Section 4-8-26, the notice shall specify the date by which the euthanasia shall occur.

(f) Judicial review of the authority's final decision may be had in accordance with Code Section 50-13-19.

O.C.G.A. §4-8-27

(a) It shall be unlawful for an owner to have or possess within this state a classified dog without a certificate of registration issued in accordance with the provisions of this Code section. Certificates of registration shall be nontransferable and shall only be issued to a person 18 years of age or older. No more than one certificate of registration shall be issued per domicile.

(b) Unless otherwise specified by this Code section, a certificate of registration for a dangerous dog shall be issued if the dog control officer determines that the following requirements have been met:

(1) The owner has maintained an enclosure designed to securely confine the dangerous dog on the owner's property, indoors, or in a securely locked and enclosed pen, fence, or structure suitable to prevent the dangerous dog from leaving such property; and

(2) Clearly visible warning signs have been posted at all entrances to the premises where the dog resides;

(c) Except as provided in subsections (e) and (f) of this Code section, a certificate of registration for a vicious dog shall be issued if the dog control officer determines that the following requirements have been met:

(1) The owner has maintained an enclosure designed to securely confine the vicious dog on the owner's property, indoors, or in a securely locked and enclosed pen, fence, or structure suitable to prevent the vicious dog from leaving such property;

(2) Clearly visible warning signs have been posted at all entrances to the premises where the dog resides;

(3) A microchip containing an identification number and capable of being scanned has been injected under the skin between the shoulder blades of the dog; and

(4) The owner maintains and can provide proof of general or specific liability insurance in the amount of at least $50,000.00 issued by an insurer authorized to transact business in this state insuring the owner of the vicious dog against liability for any bodily injury or property damage caused by the dog.

(d) No certificate of registration shall be issued to any person who has been convicted of two or more violations of this article.

(e) No person shall be the owner of more than one vicious dog.

(f) No certificate of registration for a vicious dog shall be issued to any person who has been convicted of:

(A) A serious violent felony as defined in Code Section 17-10-6.1;

(B) The felony of dogfighting as provided for in Code Section 16-12-37 or the felony of aggravated cruelty to animals as provided for in Code Section 16-12-4; or

(C) A felony involving trafficking in cocaine, illegal drugs, marijuana, methamphetamine, or ecstasy as provided for in Code Sections 16-13-31 and 16-13-31.1 from the time of conviction until two years after completion of his or her sentence, nor to any person residing with such person.

(g) Certificates of registration shall be renewed on an annual basis. At the time of renewal of a certificate of registration for a vicious dog, a dog control officer shall verify that the owner is continuing to comply with provisions of this article. Failure to renew a certificate of registration within ten days of the renewal date or initial classification date shall constitute a violation of this article.

O.C.G.A. §4-8-29

(a) It shall be unlawful for an owner of a dangerous dog to permit the dog to be off the owner's property unless:

(1) The dog is restrained by a leash not to exceed six feet in length and is under the immediate physical control of a person capable of preventing the dog from engaging any other human or animal when necessary; or

(2) The dog is contained in a closed and locked cage or crate.

(3) The dog is working or training as a hunting dog, herding dog, or predator control dog.

(b) It shall be unlawful for an owner of a vicious dog to permit the dog to be:

(1) Outside an enclosure designed to securely confine the vicious dog while on the owner's property or outside a securely locked and enclosed pen, fence, or structure suitable to prevent the vicious dog from leaving such property unless:

(A) The dog is muzzled and restrained by a leash not to exceed six feet in length and is under the immediate physical control of a person capable of preventing the dog from engaging any other human or animal when necessary; or

(B) The dog is contained in a closed and locked cage or crate; or

(2) Unattended with minors.

(c) A person who violates subsection (b) of this Code section shall be guilty of a misdemeanor of high and aggravated nature.

(d) An owner with a previous conviction for a violation of this article whose classified dog causes serious injury to a human being under circumstances constituting another violation of this article shall be guilty of a felony and upon conviction thereof shall be punished by imprisonment for not less than one nor more than ten years, a fine of not less than $ 5,000.00 nor more than $ 10,000.00, or both. In addition, the classified dog shall be euthanized at the cost of the owner.

(e) Any irregularity in classification proceedings shall not be a defense to any prosecution under this article so long as the owner of the dog received actual notice of the classification and did not pursue a civil remedy for the correction of the irregularity.

O.C.G.A. §4-8-32

Except as otherwise specified in this article, any person who violates any provision of this article shall be guilty of a misdemeanor.

O.C.G.A. §4-8-33

(a)(1) Any dog classified prior to July 1, 2012, as a potentially dangerous dog in this state shall on and after that date be classified as a dangerous dog under this article.

(2) Any dog classified prior to July 1, 2012, as a dangerous dog or vicious dog in this state shall on and after that date be classified as a vicious dog under this article.

(b) The owner of any dog referred to in subsection (a) of this Code section shall come into compliance with all current provisions of this article by January 1, 2013.

Changes ahead for litigators with new Georgia evidence code - revised by Georgia General Assembly in 2011

noreply@blogger.com (John D. Hadden) — Mon, 21 May 2012 17:42:00 +0000

On January 1, 2013, Georgia's new evidence code will go into effect, bringing with it one of the most significant changes to Georgia court in history. Representing the first wholesale revision of the Code since 1863, the new Georgia evidence provisions, located in Title 24 of the Official Code of Georgia, Annotated, in large part adopt the Federal Rules of Evidence, which have governed federal litigation since 1975.

Georgia Law of Torts - Trial Preparation and Practice (published by West, a Thomson Reuters business), co-authored by partner John Hadden along with Kenneth Shigley, contains a comprehensive overview of the new evidence code, including a complete cross-reference table of the old and new codes as well as a table detailing the substantial changes ushered in by the new rules. Among the substantial changes to the rules are an expansion of the hearsay doctrine, including admissibility of opinion testimony contained in business records; the ability for attorneys to unilaterally issue subpoenas; expansion of the use of habit and routine evidence; application of journalist privilege to electronic media; and changes to the law governing the use of prior inconsistent statements in court.

The new code was passed during the 2011 Georgia General Assembly and the text of the bill (House Bill 24) can be located on the General Assembly's web site: TEXT OF HB 24

Police call results in pedestrian fatality

noreply@blogger.com (John D. Hadden) — Wed, 16 May 2012 02:00:00 +0000

The Atlanta Journal-Constitution reports that a Dekalb County police officer responding to a fatal shooting at the Starlight Six Drive-In movie theater struck and killed a pedestrian earlier today. Although police reported that the pedestrian victim was not in a crosswalk when he was hit, witnesses also stated that the law enforcement vehicle was speeding and did not have its blue lights activated. The investigation is ongoing, according to police, and it does not appear that fault for the pedestrian's death has been determined. Georgia law, codified at O.C.G.A. 40-6-6, allows police vehicles to exceed the speed limit when necessary for law enforcement purposes. But the law also requires in such circumstances that both the vehicle's siren and blue lights be activated. While governmental entities enjoy broad sovereign immunity in many cases, a partial immunity waiver exists where damages are caused by the negligence of a police vehicle. Whether the officer was negligent in this case is unknown.

Our firm represents those injured by the wrongdoing of others, including police departments, and recently secured a victory at the Georgia Court of Appeals in a police pursuit case against the City of Atlanta. Partner John Hadden will be a featured speaker on litigation involving law enforcement at a seminar sponsored by the National Business Institute later this summer:[SEMINAR INFORMATION]

Time to raise the minimum wage? Employers' failure to pay proper wages compounds economic difficulties

noreply@blogger.com (John D. Hadden) — Mon, 14 May 2012 17:08:00 +0000

A recent article in The Atlantic, citing a report by the National Employment Law Project, addresses the prospect of an increase in the national minimum wage, currently set at $7.25 per hour. According to the NELP report, the present minimum wage, unchanged since 2009, is well below the historical standard once inflation and cost of living adjustments are taken into account. For example, the report claims that using the 1968 rate as the baseline, today's minimum wage should be $10.55 once adjusted for inflation.

Regardless of whether the minimum wage is raised in the near term, the reality is that many employers are failing to pay workers the full amount due under federal wage-and-hour laws even under the current rate. The Fair Labor Standards Act, or FLSA, requires employers to pay workers the minimum wage for all of the time they spend working, plus time-and-a-half for all overtime work, meaning all time in excess of 40 hours per week. Although a number of exceptions or exemptions apply to these rules, typically (though not always) for higher-paid workers who receive a salary or for commissioned sales employees, it is not unusual for employers to incorrectly claim such as exemption and fail to pay proper wages. The fact that a worker receives a salary, rather than payment by the hour, does not exempt the employer from these rules, although many employers attempt to claim otherwise.

Additionally, employers sometimes fail to consider all work as "on the clock." For example, if an employee is required to eat lunch at his or her desk, or is required to wear special protective clothing that takes time at the workplace to put on, those activities may be compensable work time even though the employer claims they are not. In such cases, the employer may be liable for back pay to any employee not receiving compensation for those activities.

A minimum wage increase would be of immediate benefit to many workers currently earning the minimum wage, and would potentially benefit those earning higher wages if employers raise wages across the board. But as many as 70% of employers, according to the Labor Department, are violating FLSA rules on wages in some way, meaning that American workers are being deprived of substantial wages that are rightfully theirs. Fortunately, federal law provides substantial remedies in favor of those workers. If you or someone you know has not been paid proper wages, or has been asked to work "off the clock," you may have a valuable legal right to pursue those claims.

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

Turkheimer & Hadden Partners Lead Seminar Tracks at Georgia Trial Lawyers Annual Convention

noreply@blogger.com (John D. Hadden) — Tue, 01 May 2012 01:54:00 +0000

The Annual Convention of the Georgia Trial Lawyers Association begins next week at the Loews Hotel in Atlanta. Partners Stefan Turkheimer and John Hadden are heavily involved in this event. John is co-chair of the New Lawyers track, featuring lectures from successful young lawyers from around the state as well as special guest John Morgan, founder of the law firm Morgan & Morgan. Stefan is chair of the Employment Law track, which includes presentations by prominent employment litigators discussing wage-and-hour (FLSA), Americans with Disabilities Act, sexual discrimination/harassment, and whistleblower (qui tam) cases. John Hadden will be a speaker at this track on screening cases for possible overtime/Fair Labor Standards Act violations.

Turkheimer & Hadden, LLC
Trial & Appellate Lawyers
(404) 890-7200
TrialLawyersAtlanta.com

Georgia Doctor Dispels Myth of "Defensive Medicine"

noreply@blogger.com (John D. Hadden) — Fri, 27 Apr 2012 17:33:00 +0000

Dr. Kelly Thrasher, an Atlanta internal medicine specialist, authored an op-ed in today's Atlanta Journal-Constitution tackling the argument that medical malpractice claims increase "defensive medicine" and unnecessary tests, ultimately leading to more expensive health care costs. Dr. Thrasher recounts the story of a patient on whom he performed what some might have deemed an unnecessary test, only to discover a life-threatening medical condition. Calling the defensive medicine argument a "convenient distraction" from the real problems facing the health care system, Thrasher calls for better relationships between doctors and patients and less involvement by special interest groups seeking to ignore the dangers posed by preventable medical errors.

YLD Litigation Committee Welcomes Georgia Supreme Court Justice David Nahmias

noreply@blogger.com (John D. Hadden) — Wed, 25 Apr 2012 22:27:00 +0000

L-R: John Hadden, Justice Nahmias,
Brandon Smith, Lara Percifield

Georgia Supreme Court Justice David Nahmias was the guest speaker at today's "War Stories in Litigation," sponsored by the Litigation Committee of the State Bar Young Lawyers Division. Turkheimer & Hadden partner John Hadden serves as co-chair of the Litigation Committee.

Justice Nahmias, a Harvard Law School grad and Harvard Law Review editor who was appointed to the state high court in 2009, previously served as the United States Attorney for the Northern District of Georgia, where he had previously worked as an Assistant US Attorney. During his time in that office, he was involved in the investigation into, and then prosecution of, Olympic Park bomber Eric Rudolph, which he spoke about today. He also spoke about his time as counsel to the US Attorney General, where he assisted with investigations into Al Qaeda following the September 11, 2001 attacks.

The War Stories Program was created to give younger lawyers the opportunity to meet with more experienced judges and litigators from around the state. This year we were joined by lawyers BJ Bernstein and Jim Butler, and past programs have included Governor Roy Barnes, Tommy Malone, Adam Malone, Emmett Bondurant, Tom Carlock, Lin Wood, and many others. Brandon Smith served as subcommittee chair for the War Stories program this year.

Turkheimer & Hadden wins victory at Georgia Court of Appeals

noreply@blogger.com (John D. Hadden) — Tue, 24 Apr 2012 05:01:00 +0000

Turkheimer & Hadden partner John Hadden, along with co-counsel Ben Windham and John Bell, recently won an important victory at the Georgia Court of Appeals reversing the decision of a trial judge granting summary judgment to the defendants. The Court of Appeals ruling allows the case to proceed to trial.

The case concerned the extent to which an individual is considered an employee, as opposed to an independent contractor, of an employer. The defendants argued that the individual who caused a traffic collision (with resulting catastrophic injuries to the plaintiff) was an independent contractor for whom they were not liable. The trial court ruled in favor of the employer, but the Georgia Court of Appeals reversed, finding there to be genuine issues of material fact as to the defendants' control over the driver's actions.

The case is Broadnax v. Daniel Custom Construction et al., Case no. A11A2124 (March 29, 2012).

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

Georgia General Assembly Passes "Taxpayer False Claims Act"

noreply@blogger.com (John D. Hadden) — Fri, 20 Apr 2012 12:30:00 +0000

The Georgia General Assembly has passed, and Governor Nathan Deal has signed, a bill intended to prevent government fraud and taxpayer waste arising from abuse of government programs. The bill applies broadly to state government and agencies, Medicaid (a joint state and federal program), and local governments. It provides for substantial penalties for those taking action to defraud the government, including repayment of the amounts defrauded, and allows so-called "whistleblowers," or those who report government fraud, to be compensated with a portion of the recovered funds.

The federal government has a similar rule, known as the "False Claims Act" (located in the US Code at 31 U.S.C. §§ 3729–3733) that provides substantial penalties for those abusing federal programs for monetary gain. Like the Georgia law, the Federal FCA allows whistleblowers to recover potentially substantial amounts for turning in those involved in defrauding the government.

The bill was signed into law on April 16, 2012, and becomes effective on July 1, 2012.

Full text of bill
Atlanta Journal-Constitution article

Turkehimer & Hadden
Trial and Appellate Lawyers
(404) 890-7200
TrialLawyersAtlanta.com

Georgia Law of Torts - Trial Preparation and Practice

noreply@blogger.com (John D. Hadden) — Tue, 10 Apr 2012 15:41:00 +0000

Turkheimer & Hadden partner John Hadden has authored and published, along with State Bar of Georgia President Kenneth Shigley, an authoritative treatise on Georgia tort law, with an emphasis on courtroom advocacy and case preparation. The book, Georgia Law of Torts - Trial Preparation and Practice, is published by West, the nation's leading publisher of legal resources and is available for order from the West web site.

The book covers all aspects of the preparation of a tort and personal injury case from initial investigation to appellate procedure, and includes an overview of the history of tort law, comprehensive comparison and cross-reference tables for the new Georgia evidence code (going into effect on January 1, 2013), jury psychology, lien resolution, mediation advocacy, and trial procedures and advocacy in state and federal courts.

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

Innocent lives destroyed by negligent police pursuits

noreply@blogger.com (John D. Hadden) — Mon, 09 Apr 2012 15:19:00 +0000

A recent Atlanta Journal-Constitution article took an in-depth look at some of the tragic outcomes of high-speed police chases when innocent bystanders become involved. Focusing on two high-profile cases - the death of Kathy Porter, wife of Atlanta Braves trainer Jeff Porter, and a recent verdict $2 million verdict against Gwinnett County for the death of Wille Allen Sargent, Jr., following a collision with a county law enforcement vehicle that was en route, 34 miles per hour over the speed limit, to back up another officer.

In some cases, police pursuits may be necessary. But virtually all law enforcement agencies, from local police to the State Patrol, have strict guidelines about when those pursuits should take place, which is generally only where there is evidence of a serious crime or a risk of immediate harm. Even in those limited circumstances where a high-speed police pursuit is appropriate, strict rules govern how it is conducted. Sadly, law enforcement officers fail to follow the proper rules and procedures far more often than is reasonable.

Last fall, in the case of City of Atlanta v. Lockett (312 Ga. App. 19, 717 S.E.2d 529 (2011)), Turkheimer & Hadden partner John Hadden won an important victory at the Georgia Court of Appeals on behalf of an innocent bystander who was injured during an Atlanta Police Department pursuit where the evidence showed Atlanta officers violated both the rules governing when a high-speed pursuit should take place as well as the procedure to be followed once the pursuit is underway. As a result, our the innocent bystander suffered serious injuries. The City of Atlanta argued that it was entitled to sovereign immunity for actions arising from the decisions of APD officers leading to the pursuit. The Court of Appeals disagreed, and the case was remanded to the State Court of Fulton County. This summer, John Hadden will lecture on this case and other issues surrounding police negligence and pursuits at a continuing legal education seminar sponsored by the National Business Institute.

Turkheimer & Hadden is a firm dedicated to obtaining justice for innocent victims injured by the negligence and wrongdoing of others and holding wrongdoers, including law enforcement officers, accountable for their acts.

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

Turkheimer & Hadden partners to be featured lecturers at upcoming seminars

noreply@blogger.com (John D. Hadden) — Fri, 24 Feb 2012 22:32:00 +0000

Stefan Turkheimer and John Hadden have been asked to participate in a number of upcoming continuing legal education seminars. In the next month, John Hadden will participate in three continuing education seminars sponsored by the Institute for Continuing Legal Education in Georgia - Handling Fall Cases Professionally (February 29), Trial and Error (March 16), and Plaintiff Personal Injury (March 30). He will be speaking on preservation of error for appeal, procedural differences between state and federal courts, and pretrial preparation.

In May, Stefan Turkheimer will chair the employment law track of the Georgia Trial Lawyers Association's annual convention, while John Hadden will serve as co-chair of the new lawyers track.

Finally, in August, John will be speaking at the seminar "Handling the Police Liability Claim" sponsored by the National Business Institute.

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

Fewer workplace injuries in Tampa over the past few years

noreply@blogger.com (A. Jordan Britt) — Thu, 09 Feb 2012 16:59:00 +0000

Healthday has a report that traumatic orthopaedic injuries for workers has declined in Florida over the past few years, with one possible cause being the downturn of the economy, particularly the housing market. Although a definite correlation between the reduction in injuries and the bad economy is not established by the data on orthopaedic injuries, the seemingly sensible theory is that there are fewer construction jobs being worked, resulting in fewer workplace injuries. Another theory is that workers are being more careful and taking less risks, not wanting to injure themselves in tough economic times. Another, more insidious possibility that Healthday fails to consider is that workers, fearing that they might lose their jobs, are simply not reporting workplace injuries, and are instead trying to work through the injury or seek medical attention on their own outside of the workers' compensation system. Many employers are not very hospitable to injured workers, and with good jobs at a premium, workers may be placing their jobs above their health. Of course, suffering a workplace injury is not a reason to lose one's job. If workers have been chilled from properly reporting workplace injuries, it is another tragic consequence of the bad economy.

Costa Concordia sinking highlights concern for cruise ship safety

noreply@blogger.com (John D. Hadden) — Sat, 21 Jan 2012 01:39:00 +0000

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

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

noreply@blogger.com (John D. Hadden) — Sat, 31 Dec 2011 14:30:00 +0000

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

noreply@blogger.com (John D. Hadden) — Fri, 30 Dec 2011 23:00:00 +0000

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

noreply@blogger.com (John D. Hadden) — Fri, 21 Oct 2011 16:23:00 +0000

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 Dunlop^⁸ 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

noreply@blogger.com (John D. Hadden) — Fri, 14 Oct 2011 12:00:00 +0000

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

noreply@blogger.com (John D. Hadden) — Fri, 09 Sep 2011 21:44:00 +0000

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

noreply@blogger.com (John D. Hadden) — Mon, 15 Aug 2011 18:59:00 +0000

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

noreply@blogger.com (John D. Hadden) — Wed, 20 Apr 2011 10:49:00 +0000

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

noreply@blogger.com (John D. Hadden) — Tue, 19 Apr 2011 14:56:00 +0000

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

noreply@blogger.com (John D. Hadden) — Mon, 18 Apr 2011 16:21:00 +0000

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

noreply@blogger.com (John D. Hadden) — Fri, 15 Apr 2011 15:37:00 +0000

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