Legal News & Updates

Requests for Admissions in Automobile Accident Cases

         After filing a lawsuit, the next step is beginning the discovery process. “Discovery” is the formal term for saying that the parties will exchange information and documents about the case. This process typically lasts six months in Georgia, but obviously the time period depends on the nature of the case. For example, complicated products liability cases tend to last longer than an admitted liability automobile accident. For the next series of blog posts, we are going to discuss three useful discovery tools, requests for admission, interrogatories, and requests for production of documents.

          The first type of discovery tool we are going to discuss are requests for admissions. Georgia law, O.C.G.A. 9-11-36, is pretty involved in this area as you can imagine:

(1) A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

(2) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney; but unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission; and, when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; he may, subject to subsection (c) of Code Section 9-11-37, deny the matter or set forth reasons why he cannot admit or deny it.

(3) The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. Paragraph (4) of subsection (a) of Code Section 9-11-37 shall apply to the award of expenses incurred in relation to the motion.

(b) Effect of admission. Any matter admitted under this Code section is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. Subject to Code Section 9-11-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits. Any admission made by a party under this Code section is for the purpose of the pending action only and is not an admission by him for any other purpose, nor may it be used against him in any other proceeding.

          Well, that was a long statute… So what does it mean?  What does a request look like? How can a we apply it to my case? Think of a request for an admission as a “yes” or “no” question. It’s a great way to streamline issues for a case, such as confirming the correct court, establishing that the defendant was served with the lawsuit, and even trying to establish liability against the defendant.

          Here’s a general template for a request of admission:

IN THE STATE COURT OF [INSERT] COUNTY

STATE OF GEORGIA

[INSERT YOUR NAME],

Plaintiff,                                                                                         Civil Action File No.:

                                                                                                    JURY TRIAL DEMANDED

[INSERT DEFENDANT’S NAME],

Defendant.

PLAINTIFF’S FIRST REQUESTS FOR ADMISSION TO DEFENDANT

_____________________________________

          Pursuant to O.C.G.A. § 9-11-36, you are hereby required to answer in the form provided by law the following Requests for Admission:

1.

          You have been correctly named in the present case insofar as it concerns the legal designation of names.

2.

         You have been properly served as a party defendant.

3.

          Process is sufficient with regard to you in this case.

4.

          Service of process is sufficient with regard to you in this case.

5.

          [INSERT COURT NAME] has jurisdiction over the subject matter of this case.

6.

          [INSERT COURT NAME] has personal jurisdiction over you as a party defendant in this case.

7.

          Venue is proper in [INSERT COURT NAME].

8.

          Plaintiff states a claim upon which this Court can grant relief.

9.

          Plaintiff has not failed to join a party under O.C.G.A. § 9-11-19.

10.

          You negligently caused the collision that is the subject of this case.

11.

          Plaintiff was not at fault in the collision causing his injuries.

12.

          Plaintiff did nothing wrong with regard to the collisions causing his/her injuries in this case.

This _____ day of _________, ________.

Respectfully submitted,

____________________________________

[INSERT NAME, ADDRESS, AND CONTACT INFORMATION]

          We recognize that the key to a successful case is moving forward effectively and efficiently with it. Our firm doesn’t wait to the last minute to get things done for you. We do it right away (and even ahead of schedule)! Please contact us at (404) 566-5880 or information@patricktriallaw.com if you have any questions about your case and need legal assistance.

 

The Importance of a Right to a Trial by Jury

          Congratulations to Dillan and Isaiah! They were the winners of the 2016 Kevin Patrick Law Essay Contest. This year’s topic was “Why is the right to a trial by a jury of our peers such an important part of the Constitution?”  These two students offered wonderful insights into the Sixth Amendment of the United States Constitution. We are highlighting for you portions of their essays:

Dillan’s Essay

       The balancing act of justice. The Constitution of the United States of America was written in 1787 by 4 of 7 America’s founding fathers. And they were Alexander Hamilton, James Madison, John Adams, and Thomas Jefferson. One of the founding fathers, Alexander Hamilton, came to America alone at the age of 15.       

         Sixth Amendment guarantees a cluster of rights designed to make criminal prosecutions more accurate and fair under the law. The institutions of American criminal justice have changed to an extent that is clearly noticeable over the past several centuries, forcing courts to consider how old rights apply to new institutions and procedures. At that time there were local sheriffs but no professionalized police forces; instead ordinary men took turns serving as a peace officer with limited policing authority, typically in a small town.

         […]

          Jury service is the most common way in which citizens are able to have a direct role in our country’s judicial process. 

Isaiah’s Essay

          A jury of one’s peers does not mean a black defendant must be tried by a black jury or a female defendant must be tried by an woman panel. The objective is to select an impartial jury from a randomly selected juror pool who will be fair, listen to the facts of the case, and render and just verdict based on the evidence.

          Serving on a jury is the most direct and impactful way for citizens to connect to the constitution. It is more active and participatory than voting. Citizens can help perpetuate our system of laws, and stabilize our democracy. For a jury pool, the U.S. Supreme Court has held that courts may not remove a potential juror based solely on his or her race or gender.

          […]

       At Kevin Patrick Law, we believe that our work extends well-beyond the courtroom. We strive to be part of the community. If we can ever assist you or your organization, then please feel free to get in touch with us at kevin@patricktriallaw.com or (404) 566-8964.         

What does an automobile accident lawsuit look like in Georgia?

After an automobile accident, there are a number of questions, especially if an insurance company is not having meaningful negotiations, and you may begin to wonder: “What is my next step?” Well, the next step often times involves putting together a lawsuit. Formally, a lawsuit is called a complaint, which is the mechanism to bring your case before a judge and, ultimately, a jury. Drafting a lawsuit requires legal expertise, but there typically is a general framework for one, and it looks like this:

IN THE STATE COURT OF [INSERT] COUNTY

STATE OF GEORGIA

[INSERT YOUR NAME],

Plaintiff,                                                                                     Civil Action File No.:

                                                                                                 JURY TRIAL DEMANDED

[INSERT DEFENDANT’S NAME],

Defendant.

COMPLAINT FOR DAMAGES

           COMES NOW [INSERT YOUR NAME] (“Plaintiff”), by and through undersigned counsel and files this Complaint for Damages against [INSERT DEFENDANT’S NAME] (“Defendant”), and avers as follows:

PARTIES AND JURISDICTION

1.

            Plaintiff is a resident of Georgia and is subject to the jurisdiction of this Court.

2.

           Defendant resides at [INSERT DEFENDANT’S ADDRESS] in [INSERT] County and may be served with the Summons and Complaint at this address.

3.

          Defendant is subject to the jurisdiction of this Court and venue is proper.

BACKGROUND

4.

          On or about [INSERT DATE], Plaintiff was lawfully operating a vehicle eastbound on [INSERT ADDRESS OF ACCIDENT] in the city of [INSERT], [INSERT] County, Georgia.

5.

           Defendant was operating his vehicle traveling [INSERT FACTS, i.e. “directly behind Plaintiff’s vehicle”].

6.

          Defendant negligently [INSERT FACTS, i.e “followed too closely and struck the rear of Plaintiff’s vehicle”].

7.

          As a result of the collision, Plaintiff suffered injuries to his/her body.

COUNT 1: NEGLIGENCE

8.

          Plaintiff re-alleges and incorporates herein the allegations contained in paragraphs 1-7.

9.

          Defendant owed a duty to Plaintiff to exercise ordinary and reasonable care in the operation of his/her vehicle and to adhere to the laws of the State of Georgia in the operation of said vehicle.

10.

           Defendant was negligent and breached this duty.

11.

          Defendant was negligent in the following manner:

                   [INSERT REASONS, i.e. “Following too closely.”]

12.

          Defendant was negligent for [INSERT REASONS, i.e. “Following too closely.”] pursuant to O.C.G.A. § [INSERT LAW, i.e. “40-6-49”], which constitutes negligence per se.

13.

         Plaintiff did not cause or contribute to the incident and was not negligent in any manner.

14.

          As a direct and proximate result of Defendant’s negligence, Plaintiff sustained injuries to his/her body.

15.

          Defendant’s negligence is the sole and proximate cause of Plaintiff’s injuries.

16.

          As a result of Defendant’s negligence, Plaintiff has incurred special and compensatory damages, including past, present, and future medical bills, lost wages, and pain and suffering.

WHEREFORE, Plaintiff prays that he/she have a trial on all issues and judgment against Defendant as follows:

That Plaintiff recover the full value of past and future medical expenses and lost wages in an amount to be proven at trial;

That Plaintiff recover for mental and physical pain and suffering and emotional distress in an amount to be determined by the enlightened conscience of the jury;

That Plaintiff recover such other and further relief as is just and proper; and,

That all issues be tried before a jury.

This _____ day of _________, ________.

Respectfully submitted,

____________________________________

[INSERT NAME, ADDRESS, AND CONTACT INFORMATION]

At Kevin Patrick Law, LLC, we have the legal expertise to handle automobile accident cases, and we have successfully tried these cases in Georgia. A complaint may look simple, but there are a lot of pitfalls if you don’t have a lawyer or even the “right” lawyer. We never settle for less and are here to help! Please contact us at (404) 566-5880 or information@patricktriallaw.com if you have any questions about your case and need legal assistance.

 

What are letters of representation, and why should you send them?

 

One of the first steps in a personal injury case is determining the amount of available insurance coverage for the at-fault party. The amount of available insurance oftentimes will dictate the amount of the maximum recovery in a case. Some companies and people carry large insurance policies, but there are also situations where they are either uninsured or carry small insurance policies. For example, all drivers of automobiles are required by Georgia law to have insurance coverage of $25,000, but obviously cases involving serious injures, especially ones that require surgery or long-term care, may easily exceed that amount. So a key first step in evaluating a case and your possible recovery involves getting the insurance information. Georgia, unlike some other states, has a law, O.C.G.A. 33-3-28, that requires people and companies to provide this information.

Here is a general template of the letter we send to the at-fault party’s insurance company:

[Insert Date]

SENT VIA CERTIFIED MAIL/ RETURN RECEIPT REQUESTED

[Insert Address]

RE: Letter of Representation and Request for Insurance Policy Information

Our Client:
Claim No.:
Date of Injury:
Policy Holder:

Dear Sir or Madam:

We have been retained to represent the interests of [Insert Client Name] who suffered personal injuries as a result of an automobile accident on [Insert Date] at [Insert Location]. All future correspondence and communication should be directed to our firm. The purpose of this letter is to notify you that our client may have a claim against any policy(ies) issued by your company depending on the amount of coverage, if any, for the at-fault driver.

Pursuant to O.C.G.A. 33-3-28, we request that you provide us in writing with the following information

a. Any and all known policies of insurance insuring the above-referenced policy holder including, but not limited to any excess or umbrella insurance;
b. The exact name of the insurer;
c. The name of each insured; and,
d. The limits of coverage.

You may provide a copy of the declaration page of any policy in lieu of this information. We trust that you will provide this information within the statutory time period. We are enclosing an affidavit executed by our client for your records. Also, our client expressly withdraws any Authorization for Release of Information or similar type of release. You do not have permission to contact our client’s employers or medical providers.

If you need anything further from us at this time, then please contact me at your earliest convenience.

With warmest wishes, I remain

Very truly yours,

Kevin Patrick

Enclosure: Affidavit

Also, there is usually an affidavit that accompanies the letter:

AFFIDAVIT REQUESTING POLICY LIMITS

STATE OF GEORGIA               )

COUNTY OF [Insert Name]   )

My name is [Insert Name]. I am over the age of eighteen (18) and do not have any legal disabilities.  I was involved in an [Insert Description of Accident] that occurred on [Insert Date] in [Insert Location]. This affidavit is given pursuant to O.C.G.A. § 33-3-28. I request all insurance policy information, including limits of coverage, for all policies of insurance, including primary, excess, umbrella, etc., that may cover the injuries I suffered in this incident. I have a right to this information, and I request that it be produced in a timely fashion in accordance with Georgia law.

                                                                                   

[Insert Name]

The foregoing affidavit was acknowledged before me on [DATE].

                                                                                                                                   

                                    Signature of Notary Public – State of Georgia

                                    Personally known to me            OR Produced Identification                        

                                                                                                                                   

                                    Type of Identification Produced

Obviously, this letter can be modified to the particular facts and circumstances of the case and can be updated to include a person’s own insurance company to find out about their own insurance coverage, such as un/under-insured motorist coverage, because sometimes the at-faut party does not have enough insurance to compensate injured people. Most importantly, feel free to contact our office if you have any questions about legal representation and this type of letter.

Reflections on the State Bar of Georgia Young Lawyer’s Division

As we conclude the bar year and near the end of our YLD journey, I would like to take this opportunity to recognize the commitment made by my former law firm to supporting young lawyers, the life-long values fostered through the YLD and other members of the profession, and the importance of having a caring and supportive family:

I am forever grateful to Goodman, McGuffey, Lindsey & Johnson, LLP, for not only hiring me as a young associate many years ago, but also encouraging me to become actively involved in the YLD. During one of my first mid-year reviews, I was deeply touched when a senior partner asked me, “Kevin, what can we do to support you?” The firm truly recognized that the practice of law goes well beyond billable hours, and they invested in the future of our profession. Civic and professional development for young associates is paramount to a rewarding and fulfilling legal career. They were and still are my role models. Years from now, I certainly hope to extend the same encouragement and support to a younger lawyer embarking on a legal career.

Like the firm, the YLD teaches young lawyers the “right” way to practice law. The judiciary, senior members of the bar, and leadership of the YLD all took the time to serve as mentors for us. For example, I still remember Chief Justice Hugh P. Thompson speaking to the Litigation Committee. His humorous, but sage advice to “stop digging if you find yourself in a ditch” carries with all of us. During my first out-of-state YLD meeting to Washington, D.C., I recall former presidents of the State Bar, like Ken Shigley, sitting with us at dinner. The simple act of breaking-bread with us made us feel welcomed and appreciated as young lawyers. Along with the judiciary and members of the bar, former leaders of the YLD, like Sharri Edenfield, still remain actively engaged in YLD events, such as the Signature Fundraiser and Leadership Academy.

Most importantly, I am thankful for my parents, Charles and Denise Patrick, encouraging me to enter into the practice of law. I remember them sitting in the courtroom watching me participate as a junior and senior at The Walker School in the high school mock trial program. At the University of Georgia, my mother recalled the words of John Milton and encouraged me to study the Classics, especially the legal system during the Roman republic. And finally, Mom and Dad were ever so supportive during the first year of law school and were there along with my relatives to celebrate my graduation from Mercer University. My parents made countless sacrifices, believed in me, and ultimately recognized law was one of the noblest professions. From the bottom of my heart, thank you!

Valuation and Settlement Strategies for Day Care Negligence Cases

Daycare negligence cases present novel issues relating to valuation and settlement because the emotional and psychological damages can be difficult to quantify. Medical bills do not always accompany those damages. Furthermore, children may be unable to articulate the problems caused by an abusive situation at a daycare facility until they are more mature. By that point, the statute of limitations may have expired for certain claims.

The facility and insurance carrier usually attempt to downplay the value of case by harping on modest medical expenses, but there are other types of damages in these situations. For example, the increased costs of childcare can be multiplied over the course of several years, and parents have a right to be reimbursed for their time away from work for doctor’s appointments. A common approach for the facility and insurance carrier in calculating the total settlement offer is to simply multiply the special damages by a factor of one or two. The plaintiffs can combat this approach with dialogue along these lines: “We can all agree that this case isn’t just another soft tissue car accident case, right?” Emotional value carries a premium.

One way to maximize the ultimate value of a case is through a structured annuity settlement. An annuity is a contractual agreement with a financial institution designed to turn a lump sum settlement into periodic payouts over time. The gross payouts from an annuity has the potential to exceed the settlement amount itself. Whether this is a good option in any particular case will depend on the unique financial situation of the child’s family. A structured annuity settlement, if untouched, may help the family pay for higher education.

O.C.G.A. § 29-3-3 governs the settlement of minor’s claims. This statute is complex, but as a general rule of thumb, a parent or natural guardian is permitted to settle a minor’s claim without becoming the conservator or seeking approval from the court when the gross amount is less than Fifteen thousand dollars ($15,000.) From a practical perspective, a settlement for small claims right below this threshold helps to avoid protracted litigation and possible attorney’s fees.

Treating a child’s case as a ‘run of the mill’ accident violates everyone’s fundamental sense of right and wrong. As trial lawyers, we hold the keys to helping secure a brighter future for injured children and their families.

Juan’s Law: Saving Georgia’s Day Care Children

Given our firm’s focus on daycare negligence, we were delighted to meet Mrs. Jacqueline Boatwright-Daus, who as Mrs. Georgia International 2016, is championing the prevention of daycare injuries. She graciously put together an article for lawyers in the state of Georgia about her son’s story:

Fact Finding

After weeks of searching, I’d finally found the child care center for my 3 month old son. It was perfect; clean, small, and close to home. I spent two or more hours quizzing the center owner from my prepared list of questions. My eyes fixated on the owner’s body language, waiting for her to blink, or show any form of nervousness with each asked question, a fixation so strong that it was only broken when she dropped her pen and bent down retrieve it, revealing what sealed the deal; her state issued licensed. Twelve months later, that license would deem worthless in my opinion. My then 14 month old son was found head first in an unattended bucket of mop water containing bleach and other chemical at his state licensed child day care center leaving him semi-comatose and ventilator dependent. For next 10 years, our lives were emotionally, physically, and financially broken. His name was Anthony DeJuan Boatwright affectionally known as “Juan.”

Failure and Fault

To add insult to my son’s injury, I would find out that the state of Georgia does not require state licensed child care centers to carry any form of liability insurance nor to inform unsuspecting parents. This had to be one of, it not the greatest oversights in the history of law making. My plumber was licensed, insured, and bonded, so was the contractor that did work on my home. In fact, I had to have liability insurance on my car, my house, and the lovely pool in my back yard. Truth be told, I felt I’d failed my son; but I knew in my heart my state and the child care center failed my son and me by not sharing information that could have possibly impacted my decision in choosing a child care center. In the midst of being broke, busted, and borderline disgusted, I knew that my son’s life had to mean something. The world never got to know the little boy whose only clear articulated words were “thank you.” He never made it out of daycare.

Fight or Flight

After nearly losing everything I’d worked so hard to obtain, I chose to spend the rest of my life fighting for the children who were presently attending child care and those who were yet to come. I won my first battle in 2004 when then Governor Perdue signed Juan’s Law, requiring child care centers in Georgia to inform parents of their insurance status by posting if they were uninsured and by getting parents to sign an affidavit stating the parents were aware that they were leaving their child with an uninsured, although state licensed, child care center. My second battle was won in 2006 when then Governor Tim Kaine of Virginia signed Juan’s Law. Persuading the federal government of their involvement resulted in the US House passing The Anthony DeJuan Boatwright Act in 2007 and again in 2009. Should this pass out of the Senate, this would cover the nearly 40 other states that do not require child day care centers to carry liability insurance and I know save millions of lives of children around our country.

In sum, the efforts made by Mrs. Boatwright-Daus continue to help our children in day care facilities, but we must continue to press these issues in order to carry on the legacy of Juan.

Remembering “Old Ironsides” on Memorial Day Weekend

As we are beginning the Memorial Day weekend, we wanted to share with everyone the history behind Oliver Wendell Homes, Sr.’s famous poem “Old Ironsides,” which was written on September 16, 1830:

Aye tear her tattered ensign down

Long has it waved on high,

And many an eye has danced to see

That banner in the sky;

Beneath it rung the battle shout,

And burst the cannon’s roar;—

The meteor of the ocean air

Shall sweep the clouds no more.

Her deck, once red with heroes’ blood,

Where knelt the vanquished foe,

When winds were hurrying o’er the flood,

And waves were white below,

No more shall feel the victor’s tread,

Or know the conquered knee;—

The harpies of the shore shall pluck

The eagle of the sea!

Oh, better that her shattered hulk

Should sink beneath the wave;

Her thunders shook the mighty deep,

And there should be her grave;

Nail to the mast her holy flag,

Set every threadbare sail,

And give her to the god of storms,

The lightning and the gale!

The USS Constitution earned the nickname “Old Ironsides” during the War of 1812. This frigate with 44 guns defeated the British ship, HMS Guerriere, which interestingly was commissioned by the French, but later stolen by the British.  In any event, the Constitution was one of the original six frigates in the United States Navy. This ship was commissioned by the Naval Act of 1974.  After the Revolutionary War, the United States was heavily in debt and had actually disbanded the Continental Navy. Our first president George Washington gave the ship the name the Constitution for obvious reasons.

Turing now to the poem and author, Oliver Wendell Holmes chose for a moment to abandon his studies of law. He began to pursue poetry. During this time, he came across an article in the Boston Daily Advertise about plans to scrap this ship in September 1830. Holmes’ poem was published the following day and garnered attention throughout many cities, like New York and Washington.  As a result of his poem, the plans to scrap “Old Ironsides” were scrapped by the Navy, and now, it’s the oldest commissioned ship still floating in the world!

 

Discovery, Depositions, and Trial Considerations in Daycare Cases

As in most personal injury cases, the Georgia Civil Practice Act and the Rules of Evidence govern daycare negligence cases. There are, however, a number of special considerations for these types of cases.

  1. Confidentiality

Judges and their staff attorneys appreciate being informed of the sensitive nature of discovery before an actual discovery dispute arises. The most egregious cases, such as those involving sexual abuse and molestation, may require the entry of a protective order.[i] A protective order may offer some peace of mind for parents deciding whether to move forward with a lawsuit. While some information—such as communication between a psychologist and a patient[ii]—is never discoverable, a protective order can further ensure that a permanent public record of the intimate factual allegations will not haunt a child. Another occasionally overlooked step to ensure privacy in these types of cases is simply referring to a child by his or her initials.

If there is a companion criminal case, the prosecutor’s investigative file may contain critical details about the incident. A pending investigation is not subject to an open records request.[iii] Similarly, records from the Department of Family and Children Services are usually confidential and exempt from disclosure.[iv] For pending investigations, the parties may be able to serve a subpoena duces tecum for these documents without having to wait for a final disposition of the criminal case. The government and the parties usually recognize that information about a child victim needs to limited to the respective cases. If there is an agreement, they can enter a stipulation in the civil case. Provisions in the stipulation oftentimes mirror language in a protective order, like agreeing not to release documents to the media or hold a press conference.

  1. Child Witnesses

The United States Supreme Court wrestled with issues surrounding a child’s competency to testify as far back as 1895.[v] Georgia follows the general presumption that children who understand the nature of an oath are considered competent witnesses.[vi] An actual oath is not needed in Georgia.[vii] Assuming that a child is competent to testify, there are practical ways to ensure credible testimony in a relaxed environment. A deposition, for example, can take place in a ‘safe location,’ such as an interview room at a clinic, as opposed to a sterile office environment. Depositions are not endurance contests, especially with children, so taking breaks for a snack will help to alleviate stress during the deposition.

Along with these considerations, the questions themselves during a deposition or a trial are important for addressing memory issues. A useful strategy starts with exploring basic topic about the child’s home, school, and family. These questions lay the foundation for a compelling testimony. Questions then can transition into more specific aspects about the daycare facility. For example, typical questions include the names of teachers and friends, which can be easily compared with the true facts. Eventually, the questions will flow into the incident itself, like “Did you see Ms. Smith in the room when it happened?” or “Were the big and little kids all playing together?” Courts may allow a more conversational and relaxed approach in contrast to an adult deposition.

  1. Parents’ Participation

Since a parent or natural guardian brings daycare negligence claims on behalf of their child, they have a right to attend the deposition.[viii] An attorney as a counselor needs to weigh the dynamics in the individual case. In some situations, the presence of a parent helps a child feel comfortable and safe during a deposition. In other situations, a child may feel compelled by the parent to give the “right” answer to avoid getting into trouble. Additionally, a parent may feel offended by certain questions or topics, which will unnecessarily interject even more emotion into an already emotional case, potentially driving a wedge into meaningful future settlement discussions.

A concerted effort to move a case expeditiously to trial takes on particular importance in a daycare negligence case given the emotional implications coupled with the capabilities of young witnesses.

  1. Current and Former Employees of the Daycare

An important category of witnesses is the current and former employees. They are likely to possess crucial knowledge about the common practices and procedures at the facility. A successful theme for the cross-examination of daycare employees can be rooted in a statement that everyone must agree with, for example: The safety of the child is the most important duty for a facility. .

An employee will agree with this statement, of course. Along with general safety standards, DECAL’s regulations are meant to protect a child from harm. The failure to follow these standards needlessly exposes children to harm. Former employees can bolster this theme by offering testimony about a pattern of substandard care by the facility. In the end, the employees’ testimony may reveal that children and families in the community at-large face mounting danger by virtue of the facility’s mistakes and omissions.

[i] O.C.G.A. § 9-11-26(c).

[ii] O.C.G.A. § 24-5-501(a)(5)-(8).

[iii] O.C.G.A. § 50-18-72(a)(4).

[iv] O.C.G.A. § 49-5-40(b).

[v] See Wheeler v. U.S., 159 U.S. 523, 524 (1895)(determining a child was competent to testify when he acknowledged that if he told a lie, then the ‘bad man’ was going to get him, and furthermore, if he told a lie to the court, then he would go to jail).

[vi] O.C.G.A. § 24-6-601 et seq.

[vii] See, e.g., Smallwood v. State, 165 Ga. App. 473, 473 (1983) (holding that a four-year-old child’s statement that “Jesus don’t like it [if] you don’t tell the truth” was sufficient to establish competency).

[viii] O.C.G.A. § 24-6-615.

Reflections on the 20th Anniversary of the Atlanta Olympics

July 19th will mark the 20th anniversary of the Atlanta Olympic games. An attorney, Mr. William “Billy” Payne, championed the effort to bring the games to Georgia. Last month, Mr. Payne graciously took the time to share with us his memories from the Olympics. The lessons underscoring them serve as fine examples for attorneys throughout our state.

 

Legal Background

Mr. Payne earned his undergraduate degree from the University of Georgia in 1969. As the son of a No. 1 NFL draft pick, Mr. Payne also played for the football team. His football skills led to a post-graduate scholarship to the law school. Mr. Payne graduated from law school in 1973 and entered into private with a firm in Atlanta that represented MARTA. Mr. Payne then transitioned to a larger law firm. After spending approximately five years with that firm, Mr. Payne opened a practice with six other lawyers. Mr. Payne, like many other attorneys starting a practice, remembers the humble beginnings, such as running titles at the various courthouses throughout Georgia. Mr. Payne later built the firm into a successful commercial real estate practice with large national clients.

 

A Dare to Dream

After several years of practice, Mr. Payne wanted to do more good than to simply earn a living for his family. Mr. Payne was inspired by his faith. When he was returning home from a dedication of a new church at his parish on Sunday, February 8, 1987, Mr. Payne recalled all of the wonderful smiles and began thinking about his other dreams. Mr. Payne happened to pencil down bringing the Olympics to Atlanta early the following morning. He notably gets up every morning at 5:30 to begin the workday. Mr. Payne’s dream certainly seemed improbable, if not impossible, ever to come to fruition at the time. Despite the myriad of obvious challenges, Mr. Payne dared to dream, and dreams do come true.

 

Importance of Friends

After Mr. Payne shared his dream with his wife, who is without question his best friend, she told him to contact his friends about actually pursuing an Olympic bid. Mr. Payne began reaching out to a number of his colleagues practicing at King & Spalding among other firms. His first telephone call went to his most conservative friend. At first, Mr. Payne recalls a profound silence when he broached his idea, but then his friend responded, “That’s a great idea. How much money can I give?” Mr. Payne’s wife, unbeknownst to him, listed to the conversation to ensure that he would accurately recount it later to her. Mr. Payne’s friends all supported him. In sum, Mr. Payne knew that the collective efforts of friends were immensely more valuable than any single individual effort.

 

Overcoming Challenges

Since the 1996 Olympics marked the centennial anniversary of the games, Athens, Greece initially appeared to be the most compelling location for them. Mr. Payne recounted that the international community had a very limited knowledge of Atlanta, Georgia beyond the Civil War and the struggle for civil rights. In fact, one person even asked Mr. Payne whether gambling was permitted near the games because that person confused Atlanta with Atlantic City in New Jersey. Mr. Payne, nevertheless, continued to persevere with his quest. He stressed the community spirit, as well as volunteerism in Atlanta with the Olympic committee. These common values made the difference because Atlanta was officially announced as the site for the games on September 18, 1990.

 

Best Memory of the Games

While Mr. Payne holds many fond memories of the Olympic games, his finest memory involves Mr. Mohammad Ali lighting the Olympic flame. Mr. Ali’s role was kept as a secret until the very last moment. To this end, Mr. Payne remembers standing in tunnel in the stadium, which was already full of the athletes, and telling Ms. Janet Evans, who is widely considered the best female distance swimmer, “Now give the torch to Mohammed Ali.” Her knees buckled at the news. Mr. Payne recalls being overcome with profound emotion at the historical significance of the lighting of the Olympic flame by Mr. Ali. Simply put, it was the greatest single moment of the games.

 

At the conclusion of our conversation with Mr. Payne, he reminded us that the story of the Olympic games ended where it began. “[A]chieving the improbable and impossible is beyond the talent of any one person, and accordingly, we as individuals must turn to friends.” The bonds of trust from friendships brought the Olympics to Atlanta. Most importantly, these values are the central component to leading a fulfilling life.

What types of lawsuits can I bring against a daycare facility?

People often wonder about the types of cases that can be brought against a daycare facility. It’s a complicated question. While the particular facts of the incident will dictate the cause(s) of action, this article will focus on five of the more common types of claims against the daycare facility:

  1. Negligence

As with any personal injury case, standard for basic negligence in a daycare negligence case is the “degree of care which is exercised by ordinary prudent persons under the same of similar circumstances.”[i] An example of basic negligence is an employee simply lifting a child off a changing table by one arm, leading to a dislocated elbow. Other examples include staff giving the wrong prescription medication to children or feeding a child a lunch with a known allergen, such as peanut butter. [ii]

  1. Negligence per se

These claims may be ripe against a daycare facility based on the findings from DECAL’s investigation as long as there is a casual connection between the harm and the type of harm the statue was designed to protect.[iii] A common example is improper classroom ratios. DECAL regulations require a 1:10 staff to child ratio for two year old children.[iv] When these ratios are exceeded by the facility, employees are not always able to meet the needs of individual children. This may result in life-threatening scenarios, such as a child being left to asphyxiate in a crib.

  1. Res Ipsa Loquitur Negligence

This doctrine allows for an inference of negligence when an injury ordinarily does not occur in the absence of negligence.[v] For example, a doctor determined a broken femur could not have resulted simply from a child running and falling in the classroom.[vi] Instead, the doctor opined that the injury could only have resulted from a fall greater than the height of a child or from a significant twisting of the child’s foot when it was locked into place. Res ipsa loquitur was warranted in this situation, giving an inference of negligence. Courts are, nevertheless, mindful that this doctrine “should be applied with caution and only in extreme cases.”[vii]

  1. Negligent Supervision

Unlike premises liability claims, which typically require a specific showing of a prior similar act on a defendant’s property; claims for negligent supervision of a child do not necessarily require a prior similar act. The standard for these types of cases is “whether the danger of the type of harm the child suffered was reasonably foreseeable.”[viii] For example, a child being abducted from a daycare, getting struck by a car in the street, or drowning in a swimming pool are reasonably foreseeable dangers even though they may not have previously occurred at that particular facility.[ix] Of course, daycare facilities do not have the duty to foresee and guard against every possible hazard.[x] As a practical matter, a good question to ask when distinguishing between whether harm is foreseeable or not is “Do parents ordinarily worry about this type of situation hurting their children?”

  1. Punitive Damages

Punitive damages are available under O.C.G.A. § 51-12-5.1 to punish and deter a defendant when there is clear and convincing evidence of exceptionally bad conduct. Punitive damages cases involve aggravating circumstances.[xi] A claim for punitive damages against a daycare is usually only viable when there are prior similar incidents. However, a single incident of heinous conduct, such as using torture as a form of discipline on a child, may warrant the imposition of punitive damages. DECAL records are an important resource for finding prior incidents.

Pleading punitive damages, if warranted, poses a delicate situation because they are usually excluded from available coverage, which most likely triggers a reservation of rights letter. An insured may then lean heavily on the insurer to settle a case because the threat of a bifurcated trial creates very real risk of exposing the facility’s business assets.

[i] O.C.G.A. § 51-1-2.

[ii] Out of an abundance of caution or for tactical reasons, such as venue, a complaint may contain a separate count specifically naming the individuals involved in the incident. Additionally, there may be another count alleging respondeat superior liability under O.C.G.A. § 51-2-2 against the daycare facility based on that person’s actions in the course and scope of employment.

[iii] O.C.G.A. § 51-1-6.

[iv] O.C.G.A. § 591-1-1-32(1).

[v] O.C.G.A. § 24-14-9.

[vi] See Persinger v. Step By Step Infant Dev. Ctr., 253 Ga. App. 768, 770-771(2002).

[vii] Id. at 771.

[viii] See Wallace v. Boys Club of Albany, Ga., Inc., 211 Ga. App. 534, 536-537 (1993).

[ix] Id.; see also Applebrook Country Dayschool, Inc. v. Thurman, 278 Ga. 784, 786 (2004)(allowing expert testimony regarding infant sleep positioning in a negligent supervision case to assist the jury in determining whether the daycare breached its duty of care).

[x] See Doe I v. Young Women’s Christian Ass’n of Greater Atlanta, Inc., 321 Ga. App. 403 (2013)(holding that a sexual assault on a child by an older child was not reasonably foreseeable because there was a lack of evidence showing a proclivity by the older child to engage in acts of sexual violence or admissible evidence of other sexual assaults on the premises).

[xi] O.C.G.A. § 51-12-5.1(a).

Investigating a Daycare Negligence Case in Georgia

As parents are increasingly working outside of the home, children are spending more time at daycare facilities. Parents entrust these facilities with  the care of their vulnerable young sons and daughters, but unfortunately, these facilities too often fall short of their duties and responsibilities.

In this series, we will first focus on investigating daycare negligence cases, and then the next parts will explore litigating, and ultimately resolving these types of cases.

PRE-SUIT INVESTIGATION

The critical pre-suit component of a potential daycare negligence case is distinguishing between a simple childhood accident and an actionable claim against a daycare facility.[i]

Bright from the Start: Georgia Department of Early Care and Learning’s (“DECAL”) mission and vision, which is rooted in giving exemplary care and increasing the access to quality care, offers a valuable framework for these cases.[ii] This agency is tasked with a number of responsibilities, such as the licensing and monitoring of all center-based and home-based childcare facilities across our state in addition to providing technical assistance and professional development to early childhood educators. A daycare facility’s statutory obligations are set forth under O.C.G.A. § 591-1-1 et seq. These regulations encompass a wide array of areas ranging from admission standards and field trips to kitchen operations and parental access.[iii]

Failure to perform a criminal records check for employees and volunteers and improper staff to child ratios can play a critical role in establishing liability against the daycare facility.[iv] Daycare facilities have a duty to report “[a]ny serious illness of injury requiring hospitalization or professional medical attention other than first aid.”[v] These reports are available online.[vi] However, many of these facilities are derelict in this duty.[vii] An investigation will typically commence within one to three days of the report, and Bright from the Start will issue a written report within thirty to forty-five days.

Along with DECAL’s investigation, pragmatic issues also need to drive the pre-suit investigation phase of these cases:

  1. Verify Insurance Information

Georgia does not require daycare facilities to have insurance.[viii] If a daycare facility does not maintain insurance, then the facility must place a conspicuous sign alerting the families. Facilities have been known, however, to neglect posting this signage. A candid conversation needs to take place at the initial meeting with the family, especially in situations with catastrophic injuries. Simply put, a request for disclosure of insurance policy limits under O.C.G.A. § 33-3-28 needs to be sent at the earliest possible stage.

  1. Preserve Evidence of the Claim

Visual evidence is critical to a daycare negligence case. A preservation of evidence letter premised on O.C.G.A. § 24-14-22 is a valuable way to ensure that all relevant evidence is retained by the daycare facility. Daycare facilities are placing surveillance cameras within the classrooms with more regularity these days. Footage of the incident itself helps to substantiate or perhaps even rebut the underlying claims. Some footage, has revealed sordid treatment of a child by the staff, such as such as allowing a disabled child to get repeatedly attacked with a broom by other children. Other footage has revealed staff yelling directly into a child’s ear as a form of discipline. This type of footage helps a jury (and an adjuster) to become more attuned to the stark realities of these terrible situations.

Aside from developing liability arguments in a case, photographs are equally valuable for demonstrating the full measure of damages. Children are very resilient. The physical injuries and symptoms may seemingly disappear within a month of the incident. With the reality of a jury trial more than a year in the future, pictures taken immediately after the incident, ensure that a facility does not minimize the severity of the incident. These photographs are also useful in negotiating the claim, and can be sent with the demand package. The juxtaposition of a picture of the injured child before and after the incident is particularly effective For those cases that do go to trial, jurors will be able to see for themselves the pain and suffering endured by the child victim.

  1. Seeking Alternate Daycare

In addition to the emotional toll after an incident, parents are also tasked with the difficult decision of finding alternative care. Alternate care may rest with a friend, family member, or another facility. If a child remains at the same daycare facility, then there are very real risks to a case. An insurance adjuster and defense counsel may suggest that the parent’s decision to keep the child at the same facility means the facility was not dangerous in reality. Fortunately though, a family is usually well positioned to seek reimbursement for some, if not all, of extra daycare expenses for a reasonable amount of time.

Attorneys need to be an emotionally supportive and trusted advisor to clients during the investigative phase because emotions are still very raw at this stage

[i] See La Petite Acad. v. Turner, 247 Ga. App. 360, 362 (2000)(concluding that a daycare facility has “no duty to foresee and guard against every possible hazard”); see also Persinger v. Step By Step Infant Dev. Ctr., 253 Ga. App. 768, 769 (2002).

[ii] Ga. Dept. of Early Care and Learning, Mission and Vision Statement, http://decal.ga.gov/Bfts/MissionStatement.aspx (last updated 2016).

[iii] Id.

[iv] See, e.g., O.C.G.A. § 591-1-1.09(1)(a) (“[e]very actual and potential Director, Employee and Provisional Employee of a Child Care Learning Center must have a Satisfactory Records Check Determination […]”; O.C.G.A. § 591-1-1.32(1) (setting forth specific grouping of children for care and staff to child ratios).

[v] O.C.G.A. § 591-1-1.29(c)(2) (requiring a report within twenty four (24) hours to DECAL concerning “[a]ny serious illness or injury requiring hospitalization or professional medical attention other than first aid of a child while in the care of a Center”).

[vi] Ga. Dept. of Early Care and Learning, Provider Site Search, http://decal.ga.gov/ProviderSearch/SiteSearch.aspx?childcare=y&newsearch=y (last updated 2016).

[vii] Fortunately, parents and guardians also have the ability to report incidents. Complaints can be made via email to ccscomplaints@decal.ga.gov or by calling (404) 657-5562.

[viii] O.C.G.A. § 20-1A-4.

Are daycares in Georgia required to have insurance?

A key, but oftentimes overlooked, question to ask a potential daycare for your child is whether or not the daycare actually has insurance. As parents, we sometimes assume that a daycare has insurance; however, Georgia law does not require your daycare to carry insurance. If the daycare doesn’t have insurance, then the daycare has to post a conspicuous sign and notify parents and guardians in writing about this danger.

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The Georgia Department of Early Care & Learning – Bright From the Start (“DECAL”) handles most of the aspects for daycares, like ensuring that uninsured daycares notify people. The exact wording of the law dealing with insurance is set out under a statute, O.C.G.A. § 20-1A-4(9):

The Department of Early Care and Learning shall have the following powers and duties:

[…]

(9) To recommend in writing to the owner of any early care and education program licensed by the department that such program carry liability insurance coverage sufficient to protect its clients. Any such program which after receiving such recommendation is not covered by liability insurance shall post that fact in a conspicuous place in the program and shall notify the parent or guardian of each child under the care of the program in writing. Such notice shall be in at least 1/2 inch letters. Each such parent or guardian must acknowledge receipt of such notice in writing and a copy of such acknowledgment shall be maintained on file at the program at all times while the child attends the program and for 12 months after the child’s last date of attendance. Failure to do so may subject the owner of the program to a civil fine of $1,000.00 for each such infraction; (emphasis added)

Sometimes the uninsured daycares will neglect to notify parents despite this mandate from DECAL. Parents and guardians should always remain proactive and ask this questions before enrolling their children. In the event that there is an unfortunate accident caused by the a mistake by the daycare or its employees, there needs to be insurance in place to compensate adequately the child and family for the harms and losses.

While many parents are dismayed to learn that some daycares do not have insurance, this law at least is a step in the right direction for Georgia parents with children in daycares. Years ago, daycares did not even have to notify parents about insurance, or the lack thereof. Governor Sonny Perdue signed a bill in to law in 2004 known as “Juan’s Law” after a terrible tragedy struck a young boy and his family.

So please take a moment to ask this important question next time you are looking at a daycare for your son or daughter and remind your loved ones to do the same. If you have any questions about it, feel free to give us a call or send an e-mail. We are here to help you and your family!

A Reflection on the Importance of Mentors

As we welcome the springtime months, we often set expectations and goals for our future legal endeavors, like beginning a new practice, making partner or simply trying a case. These plans inspire us to forge ahead into these beautiful months. A mindfulness of our past experiences, especially the role of mentors, should also guide these future aspirations. So accordingly, I would like to devote this editorial to a mentor of mine, Chief Judge John H. Bailey Jr. of the Northern Judicial Circuit Superior Court, and share one of the many important lessons that he taught me during my clerkship with him several years ago.

Mentors help us bridge the gap between the technical aspects of law school and the life of the law, which according to Oliver Wendell Holmes Jr., is experience. To illustrate this point: first, Judge Bailey knew from experience that the practice of law extends well beyond a bare interpretation of a statute. Non-lawyers have a tremendous amount of wisdom to offer all of us. By listening to the bailiffs and deputies, we learned about the root causes of disputes and dynamics in the local community. Second, the experience with Judge Bailey fostered an enduring appreciation for individuals, like Mrs. Pam and Mrs. Susan, who worked tirelessly behind the scenes to ensure an efficient calendar and timely transcripts. Third and most importantly, Judge Bailey instilled a fundamental sense of fairness in all of us. He would often remark, “No matter how small the pancake, it always has two sides.” At the most basic level, he taught us that the practice of law is distinctly human.

The lessons learned from Judge Bailey continue to grow in meaning even after the clerkship. A mentor is truly a life-long friend. Judge Bailey celebrated with us at our wedding and shared in our joy when we welcomed our first child. Fellow young lawyers, I respectfully ask that each of you take a moment to thank the mentors in your lives. One day we can carry on this fine tradition of mentoring others in our profession.

The Basic Principles of Kevin Patrick Law

As an experienced and respected Georgia personal injury attorney, I devote my practice to helping individuals and families throughout the state. I handle wrongful death and other serious injuries, as well as trucking and automobile accidents. You are not alone. Along with these types of cases, a particular area of focus for me is daycare abuse cases. I am the father of a four month old son. I firmly believe that the young, who are sometimes the most vulnerable, deserve to be treated with the highest level of care and support. The practice of law is more than a job to me. I am committed to preserving the constitutional right to a trial by jury and ensuring equal justice for all people in our community. To this end, I am admitted to practice before the United States Supreme Court, Supreme Court of Georgia, Eleventh Circuit Court of Appeals, and all other state and federal courts in Georgia.

I founded Kevin Patrick Law with four guiding principles:

Cases involve real people:

Your case is not just another file. I will always make the time to meet with you in person about your case. I want to make sure your family knows just how important they are to my practice. Your child will also get a stuffed-animal. Other firms use investigators to assess your case, but here you will actually get to talk to an attorney. I am happy to come to see you and your family at your home, the hospital, or even a favorite restaurant. You will be treated like close friends and family.

There is no substitute for hard work:

Advertisements on the television and radio promise easy solutions and quick-fixes. I don’t take shortcuts with your case. Hard work is the key to a successful case and firm. In fact, I only take a select number of cases in order to meticulously prepare each one for trial. Other attorneys recognize that I am willing to go the extra mile for my clients, which in turn leads to better financial recoveries for you.

Watch-out for insurance companies:

After representing insurance companies and other large corporations for several years, I came to the stark realization that they put profits above people. Insurance companies intimidate and take advantage of good, hardworking people. Now that I understand these unfair tactics, I am able to protect you and your family by navigating around them to achieve maximum settlements.

Do the little things right:

You can expect that your phone calls and e-mails will be promptly returned by me. I ultimately work for you. It’s not uncommon for a client to call the office at 9:00 pm only to have me answer the phone. You matter!