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Gwinnett jury returns $2.3 million verdict in slip-and-fall lawsuit against Kroger.

Gwinnett jury returns $2.3 million verdict in slip-and-fall lawsuit against Kroger

 By Andria Simmons

The Atlanta Journal-Constitution A Gwinnett County jury has returned a verdict of $2.3 million in damages in a slip-and-fall lawsuit against Kroger Co. after a judge determined Kroger destroyed and manipulated important video evidence involving an injured customer. The lawsuit arose out of a May 2008 incident in which Craig Walters, 49, was shopping at a Kroger grocery store on Ridge Road near Douglasville. The lawsuit was filed inGwinnett County because that’s where the company’s registered agent is located. Walters slipped on crushed fruit on the floor near the deli and fell onto his back. According to Walters’ attorney, Lloyd N. Bell, Walters suffered a serious spinal cord injury from the fall, requiring surgery and the placement of multiple rods and screws to stabilize his spinal cord. His medical bills amounted to about $135,000, and he was unable to work, the lawsuit said. Walters previously had been a commercial landscaper. Initially, lawyers for Kroger claimed the in-store video footage from the time of the accident had been taped over, and that videos are only kept for 17 days unless there is a reason to hold them longer. The store’s lawyers also said the cameras did not point in the area where the accident occurred anyway, and provided sample images taken from the camera to prove it. However, while the manager was giving a deposition at the Douglasville store, lawyers for Walters asked for a demonstration of the store’s video surveillance system. The demonstration revealed the camera was centered directly on the spot where Walters fell. “We couldn’t believe it,” Bell said in a written statement. “The camera had obviously caught everything that had happened — when the fruit fell to the floor, how long it was there, Walters slipping and falling on it — and they deliberately erased it, lied to us, and gave us a phony sample of video footage to throw us off their trail.” Gwinnett State Court Judge Joseph C. Iannazzone sanctioned the company and issued an order finding Kroger had “spoliated” [destroyed] video evidence. The judge also determined the company was negligent and scheduled a trial on the limited issue of what damages Walters was entitled to receive. A jury returned the $2.3 million verdict Jan. 20 at the conclusion of a three-day trial. A representative for Kroger said the company was evaluating whether to file an appeal. “The safety of our customers is important to Kroger,” company spokesman Glynn Jenkins said.  “We are sorry that Mr. Walters had an unfortunate experience in one of our stores. However, we disagree with some of the decisions made in the recent trial and are currently evaluating our future course of action.”
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SUNDAY, DECEMBER 18, 2011, Harper v. Barge Air Conditioning

The Georgia Court of Appeals Re-Affirms the Right to a Fair and Impartial Jury

[W]e remain steadfast in our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial…- Judge Stephen Dillard, Georgia Court of Appeals

On December 16, 2011, in the case of Harper v. Barge Air Conditioning, Inc., the Georgia Court of Appeals re-affirmed its commitment to safeguarding the right to a fair and impartial jury. The Court determined that my client, Jocelyn Harper, who suffered severe brain injury after exposure to carbon monoxide at her place of employment, was denied a fair trial when the trial court allowed two prospective jurors to remain on the panel after they expressed clear bias in favor of the defense.  For example, one of the jurors was the personal accountant of the defense lawyer and a client of the defense lawyer.  During jury selection (“voir dire”) I asked the accountant whether he would “be inclined to try to find in [defendant's] favor.” The prospective juror responded, “What do you think?  Of course.”  Despite a motion to strike the juror for cause, the trial court allowed him to stay on the panel along with another juror who expressed similar bias. In a strongly worded opinion, The Court of Appeals reversed the trial court, and made it abundantly clear that it will safeguard the right of Georgia citizens to a fair and impartial jury trial.  As Justice Dillard wrote:

Accordingly, we reverse the judgment in favor of Barge and remand the case for a new trial. In doing so, we “deplore the significant burden a [second] retrial will impose, not only on the parties, but on the community as well,” and “[w]e are particularly troubled by the trial court’s willingness to infect a trial with this kind of error when a solution (excusing the juror[s] for partiality) was so readily available.”  Nevertheless, we remain steadfast in our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial, and we will continue to remand this case back to the trial court until Harper is provided with same.
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Georgia Lawyers Disbarred for Unethical Conduct

           

The Georgia Supreme Court recently disbarred two personal injury lawyers who were caught using “runners” to seek out and solicit clients.  In the Matters of Thomas C. Sinowski and Steven F. Freedman, the Court concluded Attorneys Sinwoski and Freedman violated multiple Bar Standards and are now forbidden from further practicing law – a professional “death penalty.” 

The use of “runners” is an unethical practice where a lawyer will pay non-lawyers to approach potential clients and refer them to the lawyer. Oftentimes, the runners will stake out hospitals or trauma care centers hunting for people involved in serious car wrecks.  The runners will “innocently” approach a grieving family member, maybe at a vending machine or in the lobby, and “suggest” they contact a certain lawyer. The practice undermines public confidence in the legal profession further contributing to the false perception that all personal injury attorneys are unethical “ambulance chasers.”  Even worse for the clients, the attorneys who use runners quickly develop a reputation for poor legal work and selling out their clients for a quick settlement.

The use of runners continues throughout Georgia, and the public should be alert to the practice.  For example, just a few days ago, I was contacted by a young woman who had been in the hospital for 6 weeks.  She was involved in a terrible car accident which resulted in multiple fractures of her vertebrae.  When I met her in the hospital, she told me a lawyer from one of the large “billboard advertising firms” had come by her hospital room about 3 days after the wreck pushing her to sign a attorney contract.  Fortunately, the client had the good sense to keep all the paperwork, the name of the attorney and the pertinent details to support a Complaint to the State Bar – which is forthcoming.

It is unfortunate that every profession has its share of “bottom dwellers” who will engage in unethical and illegal conduct to try and gain advantage.  The legal profession is no different.  With its recent decision disbarring Sinowski and Freedman, the Georgia Supreme Court has demonstrated that such conduct will not be tolerated in Georgia.  

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New Documentary Debunks Urban Legend of McDonald’s Coffee Case

          This past weekend, I had the pleasure of listening to Susan Saladoff discuss her new documentary, “Hot Coffee”, which recently aired on HBO. Of course, the provocative title – “Hot Coffee” – refers to the much-maligned civil lawsuit involving an elderly lady, Stella Liebeck, who suffered burns after she spilled McDonald’s coffee in her lap. The case became corporate America’s rallying cry for so called “tort reform” – an organized effort to restrict civil lawsuits and limit the compensation injured people could receive from a jury. After watching the documentary, however, a much different picture emerges. First of all the idea this was a minor burn case is totally false. The documentary shows the actual photographs used at trial depicting Ms. Liebeck’s injuries. Imagine blackened, charred skin throughout her groin and inner thighs – unforgettable and deeply troubling images. She required multiple skin grafts and lengthy physical therapy. She never fully recovered from her injuries. Also, the popular media image of the diminutive grand-mother from New Mexico is that of a greedy, money-hungry woman looking for “jackpot justice” from a wealthy corporation. The truth is that Ms. Liebeck asked McDonald’s to pay only her out-of-pocket medical bills that were not covered by Medicare. McDonald’s offered her $800 to go away. Only then did Ms. Liebeck retain an attorney to pursue a claim. Below is a link to the official trailer of “Hot Coffee”. I urge you to watch it and share your comments. The movie is also available on Netflix. Hot Coffee Trailer
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Is “Stolen Valor Act” Constitutional?

          The U.S. Supreme Court recently granted certiorari in the case of U.S. v. Alvarez, which presents the question of the constitutionality of the “Stolen Valor Act.” The Stolen Valor Act prohibits people from falsely claiming they have been awarded military decorations and medals, and states that:

“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”

The lower courts that have considered challenges to the act have reached different conclusions. In July 2010 a federal district court in Denver ruled that the act violates free speech, and rejected the argument that lying about having military medals dilutes their meaning and significance. A month later, the 9th U.S. Circuit Court of Appeals also considered the issue in a separate case (the Alvarez case), and held that the “speech” involved in the case — lying about being awarded military medals — was within the scope of the First Amendment. The 9th Circuit therefore applied “strict scrutiny review to the Act, and [held] it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest.” The court observed that if the Stolen Valor Act was constitutional, as argued by a dissenting judge, then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech. I suspect the Supreme Court will strike down the act as unconstitutional, while rightly condemning those who would peddle lies about imagined battlefield glory. It is hard to imagine that a court which regards a stripper’s activities as protected “free speech” would uphold an act criminalizing true speech, however malignant.

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