Jorelys Rivera's Mother Files Suit Against Apartment Complex: MyFoxATLANTA.com
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Tuesday, February 14, 2012
Friday, January 27, 2012
Gwinnett jury returns $2.3 million verdict in slip-and-fall lawsuit against Kroger
| Friday, January 27, 2012 Spoliation mars Kroger's defense Jury awards $2.3M to slip-and-fall victim after judge finds company destroyed video of accident |
(John Disney, Daily Report)
Plaintiff's attorney Lloyd Bell: "We couldn't believe it. The camera had obviously caught everything."
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A Gwinnett County State Court jury last week awarded $2.3 million to a man who was hurt slipping in a Kroger grocery, which saw its defense struck after a judge concluded the company destroyed a video of the accident.
Gwinnett County State Court Judge Joseph C. Iannazzone ruled in December that Kroger "spoliated evidence" and "acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions."
As a result of the spoliation order, the three-day trial was for damages only. And the judge's bad faith ruling allowed the plaintiff to ask for litigation expenses, for which the jury awarded $675,782.40.
The jury also awarded $700,000 for future pain and suffering, $200,000 for past pain and suffering, $477,496 for future lost wages, $77,083 for past lost wages, $100,000 to the plaintiff's spouse for loss of consortium and $134,877 for past medical expenses, according to the final judgment, entered Jan 20.
"We are very pleased with the jury's verdict," said plaintiff's attorney Lloyd N. Bell of the Bell Law Firm, who tried the case along with Bruce Berger of the Berger Law Firm. "It is unfortunate that Kroger chose to drag my client and his family through three years of brutal and exhausting litigation, rather than owning up to its misconduct."
Defense attorney Douglas A. Wilde, a solo practitioner based in Tyrone, referred a call for comment to Glynn Jenkins, director of communications and public relations for the Atlanta division of The Kroger Co. Glynn responded with the following statement: "The safety of our customers is important to Kroger. 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."
Plaintiff Charles Craig Walters Jr. has been unable to work since the fall in May 2008, Bell said. At the time, Walters was a 49-year-old landscaper shopping with his teenage daughter.
The judge's spoliation order said Walters "alleges that he was looking for hot dogs near the rear of the store in the meat department when he began to slide and fell to the floor." When Walters got up, he observed a "little pile of goo" on which he had slipped, the order said. Kroger manager Peyton Kelley arrived, and then an unidentified customer wiped up the substance and determined it was a banana.
Half an hour later, the store manager said he observed a woman checking out who had a baby in a shopping cart eating a piece of banana, the order said: "It is Kelly's belief that the baby had dropped the piece of banana on which Walters had slipped."
The importance of the video was to show when the spill happened and how long it remained on the floor before Walters slipped on it, as well as whether any Kroger employees had reason to know about it. "Walters argues that the spoiled video could have shown that Kroger created the hazard," the judge's order stated. The judge noted that spoliation creates a "presumption against the spoliator that the evidence favored the spoliator's opponent. The video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor."
Also, Kroger maintained the video would not have mattered because the camera was not pointed to the exact spot where Walters fell. The defense later produced a "sample video" from the camera in the area showing that Walters' fall would not have been in the picture.
But during a deposition at the store, plaintiff's lawyers asked the manager to show them the live video feed from the same camera on his computer. "Although the manager had sworn just moments before that the video camera had never been moved since the store opened in 2004, when he pulled up the live video, we saw it was pointing to the exact location of the fall," Bell said. The plaintiffs alleged that the camera must have been moved to create the sample video and then moved back.
"We couldn't believe it. 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," said Bell. The plaintiffs filed a motion to strike the defendant's answer as a sanction, which the judge granted.
Kroger's attorney argued that Walters' back problem was not caused by the fall but by "pre-existing degenerative and or congenital conditions and not by any act or omission of the defendant," according to the defense outline in the consolidated pretrial order.
Another point for the defense was that Walters did not call an ambulance or seek immediate medical care. Bell said his client told his daughter when he got to their car that his legs didn't feel right and his toes were tingling. But he waited two weeks to call his orthopedist, who had a three-week wait for appointments.
However, it happened that the plaintiff had seen his orthopedist three days before the fall for work-related shoulder pain. The plaintiff's attorneys were able to introduce evidence from that appointment showing that Walters reported no neck or back pain. "He had a good baseline," Bell said.
Jurors were qualified to make sure they had no conflicts with three insurers for Kroger: Ace American Insurance Co.; Illinois Union Insurance Co.; and Factory Mutual Insurance Co.
The defense objected unsuccessfully to qualifying the jury on Illinois Union and Factory Mutual, which Bell said carry excess verdict coverage for the grocery store chain. Bell said he believes Kroger covers the first $1 million and that Ace covers the next $3 million. Mentioning all three insurers during voir dire could be perceived as a hint to the jury of how much coverage is available to the defendant, but Georgia law requires that they be named.
The case is Walters v. Kroger, No. 09-C-14740-S4.
Staff Reporter Katheryn Hayes Tucker can be reached at ktucker@alm.com
Gwinnett County State Court Judge Joseph C. Iannazzone ruled in December that Kroger "spoliated evidence" and "acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions."
As a result of the spoliation order, the three-day trial was for damages only. And the judge's bad faith ruling allowed the plaintiff to ask for litigation expenses, for which the jury awarded $675,782.40.
The jury also awarded $700,000 for future pain and suffering, $200,000 for past pain and suffering, $477,496 for future lost wages, $77,083 for past lost wages, $100,000 to the plaintiff's spouse for loss of consortium and $134,877 for past medical expenses, according to the final judgment, entered Jan 20.
"We are very pleased with the jury's verdict," said plaintiff's attorney Lloyd N. Bell of the Bell Law Firm, who tried the case along with Bruce Berger of the Berger Law Firm. "It is unfortunate that Kroger chose to drag my client and his family through three years of brutal and exhausting litigation, rather than owning up to its misconduct."
Defense attorney Douglas A. Wilde, a solo practitioner based in Tyrone, referred a call for comment to Glynn Jenkins, director of communications and public relations for the Atlanta division of The Kroger Co. Glynn responded with the following statement: "The safety of our customers is important to Kroger. 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."
Plaintiff Charles Craig Walters Jr. has been unable to work since the fall in May 2008, Bell said. At the time, Walters was a 49-year-old landscaper shopping with his teenage daughter.
The judge's spoliation order said Walters "alleges that he was looking for hot dogs near the rear of the store in the meat department when he began to slide and fell to the floor." When Walters got up, he observed a "little pile of goo" on which he had slipped, the order said. Kroger manager Peyton Kelley arrived, and then an unidentified customer wiped up the substance and determined it was a banana.
Half an hour later, the store manager said he observed a woman checking out who had a baby in a shopping cart eating a piece of banana, the order said: "It is Kelly's belief that the baby had dropped the piece of banana on which Walters had slipped."
The importance of the video was to show when the spill happened and how long it remained on the floor before Walters slipped on it, as well as whether any Kroger employees had reason to know about it. "Walters argues that the spoiled video could have shown that Kroger created the hazard," the judge's order stated. The judge noted that spoliation creates a "presumption against the spoliator that the evidence favored the spoliator's opponent. The video might have established either actual or constructive knowledge by Kroger of a foreign substance on the floor."
Also, Kroger maintained the video would not have mattered because the camera was not pointed to the exact spot where Walters fell. The defense later produced a "sample video" from the camera in the area showing that Walters' fall would not have been in the picture.
But during a deposition at the store, plaintiff's lawyers asked the manager to show them the live video feed from the same camera on his computer. "Although the manager had sworn just moments before that the video camera had never been moved since the store opened in 2004, when he pulled up the live video, we saw it was pointing to the exact location of the fall," Bell said. The plaintiffs alleged that the camera must have been moved to create the sample video and then moved back.
"We couldn't believe it. 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," said Bell. The plaintiffs filed a motion to strike the defendant's answer as a sanction, which the judge granted.
Kroger's attorney argued that Walters' back problem was not caused by the fall but by "pre-existing degenerative and or congenital conditions and not by any act or omission of the defendant," according to the defense outline in the consolidated pretrial order.
Another point for the defense was that Walters did not call an ambulance or seek immediate medical care. Bell said his client told his daughter when he got to their car that his legs didn't feel right and his toes were tingling. But he waited two weeks to call his orthopedist, who had a three-week wait for appointments.
However, it happened that the plaintiff had seen his orthopedist three days before the fall for work-related shoulder pain. The plaintiff's attorneys were able to introduce evidence from that appointment showing that Walters reported no neck or back pain. "He had a good baseline," Bell said.
Jurors were qualified to make sure they had no conflicts with three insurers for Kroger: Ace American Insurance Co.; Illinois Union Insurance Co.; and Factory Mutual Insurance Co.
The defense objected unsuccessfully to qualifying the jury on Illinois Union and Factory Mutual, which Bell said carry excess verdict coverage for the grocery store chain. Bell said he believes Kroger covers the first $1 million and that Ace covers the next $3 million. Mentioning all three insurers during voir dire could be perceived as a hint to the jury of how much coverage is available to the defendant, but Georgia law requires that they be named.
The case is Walters v. Kroger, No. 09-C-14740-S4.
Staff Reporter Katheryn Hayes Tucker can be reached at ktucker@alm.com
Learn more and visit us at www.BellLawFirm.com.
Sunday, December 18, 2011
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.
Please visit us at our new website - www.BellLawFirm.com
- Judge Stephen Dillard, Georgia Court of Appeals
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.
Please visit us at our new website - www.BellLawFirm.com
Friday, December 2, 2011
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.
Please visit us at www.BellLawFirm.com
Wednesday, October 19, 2011
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.
Please visit us at www.BellLawFirm.com.
Saturday, July 16, 2011
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.
Wednesday, June 29, 2011
Summer Safety
Water-related accidents happen fast, without warning and are often visually hard to detect in a busy pool, or at the beach. Children in particular, don't necessarily yell or scream or make a lot of noise when they are in danger in the water. Above all, stay alert when watching your kids in the water, and realize that even if someone is a strong swimmer, their activity needs to be supervised.
And as you head to the nearest watering hole to cool off, keep these safety tips in mind, and have a great summer!
• Residential pools must be secured by a fence at least four feet tall or an automatic pool cover.
• Keep the area around your pool free of furniture or items that someone could trip over.
• Keep children away from pool drains, pipes and other openings to avoid entrapments.
• Make sure your children are not wearing any loose jewelry, hair accessories or clothing that could get caught in pool drains or other pool equipment.
• If you have a home spa, install and use a child-proof, locked safety cover to keep children out.
• Before allowing kids to dive, make sure the water is at least 10 feet deep.
• Always watch your children when they are in the water, even if they know how to swim.
• Do not drink alcohol if you are supervising young swimmers.
• Adults watching a group of children swim should assign at least one adult to the exclusive task of watching the children.
• Adults supervising young children should practice “touch supervision” and be close enough to reach the child at all times.
• Take a class in CPR. Children 13 and older should also learn CPR.
• If you are using a public pool or beach, only swim where lifeguards are on duty and in their lifeguard’s stand. Stay and watch your children even if there is a lifeguard on duty.
• Avoid swimming at the beach on windy days. Wind can create undertows and dangerous swimming conditions.
• Do not body surf or allow your child to body surf. Body surfing is one of the leading causes of catastrophic spinal cord injuries.
Learn more and visit us at www.Belllawfirm.com or call us at (404) 249-6767
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