Jury Awards Less Than Amount Offered at Mediation in Tractor Rollover Case

Shannon Harris, et al. v. Adam Harris, et al., Superior Court of Barrow County, Civil Action No. 15-CV-001163

In September, 2017, Lee Pruett tried a case before a Barrow County jury and, along with Co-Counsel Bill Cowsert of Cowsert Heath in Athens, obtained a verdict in an amount which was more than $10,000 less than their client’s last offer at mediation one month prior.  The case, Harris v. Harris, involved a tractor rollover in which the Plaintiffs’ nine-year-old son sustained lacerations and multiple facial fractures. Defendant Adam Harris, the boy’s uncle, allowed the boy to drive the tractor as they tried to remove a dead tree stump, and he admitted liability for the accident. Thus, the case went to the jury solely on the issue of damages. The Defendant conceded all of the incurred medical expenses but disputed future medicals and the Plaintiffs’ contention that the injuries had caused a change in their son’s personality. In closing, the Plaintiffs’ attorney asked for $1.5 million. The jury returned a verdict for $170,614.

Court of Appeals Reversal Leads to Big Win for DeKalb County

Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. July 28, 2015)

In a big win for DeKalb County, the Georgia Court of Appeals reversed itself on the issue of whether lay testimony as to speed, based only on the experience of impact, constituted admissible evidence to defeat summary judgment.

On May 3, 2011, Plaintiffs were driving on Custer Ave, attempting to cross Moreland Ave, when they crashed into the front of a DeKalb County fire truck entering the intersection on Moreland Ave, in route to an emergency call, with lights and sirens activated, and the air horn sounding. DeKalb County, represented by Levy & Pruett, filed a Motion for Summary Judgment on the grounds that there was no evidence that the firefighters breached any duty or that any alleged breach constituted the proximate cause of this collision. The trial court agreed and entered summary judgment for DeKalb County on April 1, 2014. Plaintiffs then appealed the trial court’s Order. Surprisingly, on June 17, 2015, the Court of Appeals reversed the trial court’s grant of summary judgment because “a genuine issue of material fact exists as to whether the fire truck proceeded past the red signal ‘only after slowing down as may be necessary for safe operation’ OCGA § 40-6-6 (2), and ‘with due regard for the safety of all persons.’” Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015). Specifically, the Court relied on the Plaintiff passenger’s “guestimate” that the fire truck was traveling 60-70 mph at the time of impact, based only on how the impact felt, and reasoned that there was a question of fact as to whether the fire truck slowed down before entering the intersection.

On June 25, 2015, we filed a Motion for Reconsideration on behalf of the County, arguing that the Court of Appeals’ opinion that an individual can testify to the speed of a vehicle based only her subjective experience of the collision was without precedent. Moreover, we argued that the Court failed to address the case of Boatner v. Sims, 115 Ga. App. 284 (1967), which specifically found that evidence of speed with nothing more than the witness’s selfserving testimony based on experiencing the impact, was inadmissible. A month later, on July 28, 2015, the Court of Appeals issued a second opinion granting in full DeKalb County’s Motion for Reconsideration, a rarity in appellate procedure. In a complete reversal, the Court found that Plaintiff’s “testimony that the car was traveling 60 to 70 mph could not be rationally based [only] on her perception of how the impact felt” because she was not an accident reconstructionist and had never before been hit by a car traveling at that speed. Brown v. DeKalb County, et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-9, 7 (Ga. App. July 28, 2015). On reconsideration, the Court of Appeals relied on Boatner v. Sims, emphasizing the lack of a rational link between Plaintiff’s opinion based only on experiencing the impact and the speed of a vehicle she never saw.

Summary Judgment Granted in Food-Borne Illness Case

Charles Craft v. MEEK MD5, LLC
Chatham County Superior Court
Civil Action File No. CV11-0752-BA
Defendant’s Motion for Summary Judgment granted January, 2013
Georgia Court of Appeals affirmed December 27, 2013

Plaintiff alleged that on October 1, 2010, he ate chicken nuggets purchased at Defendant’s franchise restaurant and, approximately three-and-a-half hours later, began to experience nausea and diarrhea.  Three days later he was diagnosed with Salmonella.  Plaintiff claimed medical bills of $21,777.05 and over $135,000 in lost income and loss of earning capacity.  He alleged the chicken nuggets were undercooked and were the proximate cause of his injuries.

Levy Pruett Cullen represented the Defendant restaurant. The parties conducted discovery, including the depositions of Plaintiff and employees of Defendant, and Defendant retained Dr. Allen Sklaver as its expert in food-borne illness. By affidavit, Dr. Sklaver testified that Department of Health records showed no other cases of salmonella traceable to Defendant’s restaurant, that the restaurant’s cooking temperatures insured that no pathogens could survive, that in most cases of Salmonella it takes at least six hours for the symptoms to begin, and that Plaintiff could have gotten the pathogen in the fruit and cheese he ate in the preceding days or from contaminated water he got in his mouth at work. Defendant filed a Motion for Summary Judgment, arguing that under Georgia law, when a plaintiff has no direct evidence that the defendant’s food was unwholesome, only circumstantial evidence that he became sick after eating it, the plaintiff must exclude every other reasonable hypothesis for the cause of the illness. The trial court agreed that Plaintiff had failed to meet this burden, and the trial court granted summary judgment to Defendant. In an unpublished opinion, the Georgia Court of Appeals affirmed the grant of summary judgment in favor of Defendant.

Court of Appeals Affirms Summary Judgment for Newnan Hospital

Houston v. Newnan Hospital, Georgia Court of Appeals
Civil Action File No. A09A0688
Newnan Hospital Motion for Summary Judgment Affirmed May 5, 2009

The Plaintiff was a patient at Newnan Hospital where he was treated and discharged the same day. He had been given narcotic medication and was told not to drive for a certain number of hours. Plaintiff denied anyone gave him such an instruction. Soon after being discharged, Plaintiff drove from the hospital. A nurse called the Newnan police department to inform them that Plaintiff was driving under the influence of prescription drugs. The City of Newnan police arrested Plaintiff for DUI. In the subsequent criminal trial, Plaintiff was found not guilty. He then brought suit against the hospital and the nurse for a number of claims, including malicious prosecution.

Levy Pruett Cullen filed the Answer on behalf of the hospital and the nurse and proceeded to defend the case.  We had all of the Plaintiff’s claims except malicious prosecution dismissed based on the applicable statutes of limitations. We then filed a Motion for Summary Judgment on the remaining claim of malicious prosecution. In the motion, we argued that the Plaintiff had failed to prove the essential elements of the cause of action: he failed to show an absence of probable cause for his criminal prosecution for DUI, he failed to show malice on the part of Defendants, and he failed to show that Defendants instigated his arrest or prosecution.    

We pointed out that at the Plaintiff’s criminal trial, his motion for directed verdict was denied. Under Georgia law, that ruling constitutes a binding determination that probable cause exists. Thus, we argued that it was impossible for Plaintiff to prove an absence of probable cause. We argued that the Plaintiff had failed to prove malice because there was no evidence that the nurse’s actions were motivated by personal spite against Plaintiff or a general disregard directed by chance against Plaintiff.  Finally, we argued that Plaintiff had failed to show the Defendants had instigated his arrest for DUI.  We pointed out that the nurse did nothing more than inform the police that the Plaintiff was driving a vehicle under the influence of narcotics, and that the police officer made his own investigation and independent decision to arrest Plaintiff.  

The Coweta County State Court granted our Motion for Summary Judgment. The trial court found that Plaintiff had failed to prove two essential elements of his claim for malicious prosecution: Plaintiff had failed to show an absence of probable cause for his DUI criminal prosecution, and he had failed to show malice on the part of Defendants. Plaintiff appealed to the Georgia Court of Appeals. In an unpublished opinion, the Court of Appeals affirmed the grant of our motion. The Court held that the evidence supported the trial court’s judgment and that there was no reversible error of law.  

Property Owner Not at Fault in Auto Accident

Howard v. Gourmet Concepts International, Inc.
242 Ga. App. 521, 529 S.E.2d 406

The Plaintiff alleged she was severely injured when she turned left from a stop sign on a side street and was struck by another vehicle on the main road. The Plaintiff sued the driver of the other vehicle, his employer, the county, and Gourmet Concepts, owner of the property adjacent to the intersection. Plaintiff alleged Gourmet Concepts negligently maintained trees and shrubs on the property, causing a hazardous condition that obstructed her view of the oncoming traffic. Defendant Gourmet Concepts, represented by Lee Pruett, argued Plaintiff failed to prove that Gourmet Concepts had knowledge of prior accidents, and that the trees and shrubs were not the proximate cause of the accident. The State Court of Dekalb County granted Gourmet Concepts' Motion for Summary Judgment. The Georgia Court of Appeals affirmed.

Court of Appeals Affirms Summary Judgment on Procedural Grounds

Covault v. Harris, 337 Ga. App. 301 (2016)

In Covault, Plaintiff and Defendant were involved in an automobile accident while traveling northbound on Peachtree Street in Atlanta. Plaintiff alleged he was injured in the accident and filed suit on January 26, 2015.  Levy Pruett Cullen argued that Plaintiff failed to properly serve Defendant in accordance with the statutory service requirements for substitute service upon a nonresident individual under the Georgia Nonresident Motorist Act, O.C.G.A. § 40-12-1, and the Court of Appeals agreed.

Summary Judgment in Favor of Trucking Company

Candace Kelley v. Garvin Fowler and Relwof Farms Trucking, Inc., et al.
State Court of Worth County
Civil Action Number: ST-08CV148
Summary Judgment Granted on August 12, 2011

The Plaintiff was injured in an automobile collision with a pick-up truck owned by Defendant Fowler and operated by his farmhand. The Plaintiff alleged that the driver of the pick-up truck failed to yield the right of way at a stop sign and that she suffered serious leg injuries as a result of the collision.

Defendant Fowler owned and operated a cotton farm and was also the president and sole shareholder of a trucking company that hauled peanuts, fertilizer, vegetable boxes, and military equipment. In an attempt to recover under both businesses' insurance policies, the Plaintiff sued the farm and the trucking company. Levy Pruett Cullen defended the case on behalf of the trucking company, the deeper pocket of the two.

There was only one full-time employee of the farm, a man whose primary responsibilities included driving tractors, harrowing land, planting it, and harvesting. In 2007, in order to earn extra money, the farmhand also began working for the Defendant’s trucking company. The farmhand was not a driver for the trucking company. Instead, he performed minor servicing of the trucks, such as changing tires. 

On the day of the accident, the farmhand worked for the farm the entire day. Nevertheless, the Plaintiff argued that both the farm and the trucking company should be held liable for her injuries. The Plaintiff contended that the fact that the farmhand was paid by the trucking company on the day of the accident demonstrated that he was acting within the scope of his employment with the trucking company on the date and time of the accident. Second, the Plaintiff argued that regardless of the respondeat superior issue (when a party is responsible for acts of their agents), the Plaintiff could recover against the trucking company under a theory of reverse piercing of the corporate veil (the theory that a corporation can be held liable for the acts of the individual owner). 

The trucking company, represented by Levy Pruett Cullen, filed a Motion for Summary Judgment on the grounds that the Plaintiff failed to show that the driver was acting within the scope of his employment with the trucking company at the time of the accident and that there was no basis for piercing the corporate veil. The Court agreed and granted summary judgment in favor of the trucking company on August 12, 2011.