Atlanta Injury Lawyer Blog

On January 20, 2012, a Gwinnett County jury awarded a $2.3 million verdict against Kroger in Gwinnett County. See 1/26/12 Atlanta Journal-Constitution article. The case was important because it involved a legal issue called "spoliation."

Mr. Craig Walters had slipped on crushed fruit near the deli, and suffered a spinal cord injury. Mr. Walters was seriously injured, and he had to have rods and screws placed in his back.

The case was tried by a good friend of mine, Lloyd Bell. Like me, Lloyd is an Atlanta personal injury lawyer.

Mr. Walters' case was not tried in the usual way. As it turned out, the judge found that Kroger had had a video of the fall, which it had destroyed. Based on the destruction of evidence, the judge determined in advance of trial that Kroger was negligent, and sanctioned Kroger by refusing to let it argue that the fall was Mr. Walters' fault. The only issue at trial was how badly Mr. Walters had been hurt.

A few years ago, I wrote an article for the Georgia Bar Journal, "Spoliation of Evidence", on the destruction of evidence, and I wanted to talk about "spoliation" in my next few blog entries.

First, of course, you need to know what spoliation is. Spoliation "is the destruction or the significant and meaningful alteration of evidence." Sharpnack v. Hoffinger Industries Inc., 231 Ga. App. 829, 499 S.E.2d 363 (1998).

I want to address up front the point that bugged me no end when I first began to learn about spoliation. Shouldn't it be spoiliation? I was driven crazy by the fact that absolutely everyone was spelling the word wrong! Didn't anyone else notice that an "i" was missing?! Even the courts didn't seem to know how to spell the term!

As it turns out, the words "spoil" and "spoliation" both come from the same Latin root word, but the spelling of the root word is not what I thought it would be. The root of both words is the Latin word spoliare, which means "to plunder." While we have added an "i" to the word "spoil", the original Latin word did not have an "i" between "the "o" and the "l".
In legal terminology, "[s]poliation' is a word of evil connotations, and the dictionaries make it synonymous with pillaging, plundering, and robbing." Wichita Royalty Co. v. City Nat. Bank of Wichita Falls, 109 F.2d 299 (5th Cir. 1940). In evidentiary terms, the idea is that one party robbed the other party of victory by destroying the evidence that would have helped the second party win the case.

For good reason, the law frowns on litigants who destroy - or "spoliate" evidence. The law has provided, "omnia praesumuntur contra spoliatorem," or "all things are presumed against a despoiler or wrongdoer." Georgia case law has made the same presumption. "Spoliation of evidence raises a presumption against the spoliator." Bennett v. Associated Food Stores, 118 Ga. App. 711, 716 (2), 165 S.E.2d 581 (1968); Martin v. Reed, 409 S.E.2d 874, 200 Ga. App. 775 (1991).

When a party tilts the field, justice cannot be rendered. As an Atlanta lawyer, regardless of the type of cases I handle, I understand and applaud the law's attempt to even the playing field.

In my previous post titled Who Can Bring a Wrongful Death Lawsuit Under Georgia Law?, I talked about Georgia's wrongful death statute, which provides that when someone commits a tort that kills someone else, the family of the person who was killed can file a lawsuit to recover damages. See O.C.G.A. § 51-4-1, et seq. As a lawyer, I use that statute when I bring a Georgia wrongful death lawsuit on a family's behalf.

I mentioned in my previous post that the Georgia wrongful death statute is considered to be "in derogation of common law." That phrase is so strange that I thought that as an Atlanta, Georgia, legal blogger, I would devote one of my entries to explaining what on earth the "common law" is, and why something would be "in derogation of" it.

My Black's Law Dictionary defines the common law as "those principles and rules of action. . . which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs, . . . particularly the ancient, unwritten law of England." One California case drew a bright line, saying that the common law was any law "of England and the American colonies before the American revolution." People v. Rehman, 253 Ca.2d 119, 61 Ca. Rptr. 65, 85.

In other words, the common law is the law that arose after years and years of courts making decisions. The courts were acknowledged to have the inherent authority to define what the law was, and over time a consensus and clear rules emerged from the courts' decisions.

Judge Learned Hand, a brilliant and eloquent jurist who sat on the United States Second Circuit Court of Appeals from 1924 to 1951, likened the common law to a coral reef that builds up slowly over time:

(Common law) stands as a monument slowly raised, like a coral reef, from the minute accretions of past individuals, of whom each built upon the relics which his predecessors left, and in his turn left a foundation upon which his successors might work.

(Judge Hand's picture is at the front of this blog.) Since the courts were the ones defining and creating the "common law", they reasoned that could be flexible when they interpreted it. If a new situation arose, and the common law did not really fit the situation, the common law could be adjusted.

When the legislature passes a statute that creates new law, however, the courts find the statute is "in derogation of the common law." To say that the law is "new" is really a misnomer. Take Georgia's wrongful death statute, for instance. The first statutory cause of action for wrongful death, Lord Campbell's Act, was passed in 1846 by the British Parliament. "In 1850, Georgia patterned its first wrongful death statute after Lord Campbell's Act. In 1933, the Georgia legislature enacted Code Ann. § 105-1309, which created and established a new property cause of action in favor of the next of kin of the deceased, which had not previously existed." Stewart v. Bourn, 250 Ga. App. 755, 756-757 (Ga. Ct. App. 2001). Clearly, then, there is nothing particularly "new" about Georgia's wrongful death statute!

The courts had been a part of creating the common law, and so they felt they could adjust it. Since the "new" statutory law was "in derogation of" the traditional law, the courts concluded that they had to strictly interpret what the legislature wrote, enforcing that law exactly as written.

Today's entry is really for other lawyers here in Atlanta, or really anywhere in the state of Georgia.

As a lawyer who handles serious injury lawsuits, I sometimes have to deal with a very sad reality. Sometimes the plaintiff who has come to me is very, very seriously injured - so much so that he or she is dying.

In many instances, the case can still be proven even after the plaintiff dies. But for some cases, the testimony of the dying person is absolutely essential to making the case. What do you do when you need the testimony right now, before you even file suit? In that case you need to do what is called "perpetuate" the testimony.

The statute that governs the issue is O.C.G.A. § 9-11-27, "Depositions before action or pending appeal." And, although I am referring to the situation where a party is dying, the statute could apply to any situation where you are concerned that a witness' testimony is critical to your case, and the witness may not be available at the time of trial.

According to the statute, you "may file a verified petition in the superior court of the county where the witness resides."

The petition has to have several elements:
(1) entitle it with the name of the petitioner who needs the testimony;
(2) explain that the "petitioner expects to be a party to litigation but is presently unable to bring it or cause it to be brought";
(3) state what facts you expect to prove;
(4) explain your "reasons for desiring to perpetuate" the testimony;
(5) name or describe the people you "expect[] will be adverse parties", and state their addresses, if you know them;
(6) state the name and address of the person you want to depose, and what you expect the testimony to be about; and
(7) request an order authorizing the petition to take the depositions "for the purpose of perpetuating their testimony."

You then serve a notice on each expected adverse party, attaching the petition, explaining that you plan to ask the court for an order at a specific time and place.

The notice should be served at least 20 days before the date of hearing. If you cannot make service, the court can order service by publication and appoint someone to represent the persons who have not been served, and to cross-examine the deponent. The petitioner has to pay a reasonable fee to the attorney. The court also has to appoint a guardian ad litem to represent an expected adverse party who "is a minor or an incompetent person and does not have a general guardian."

In deciding whether to enter the order, the court should consider whether: "the perpetuation of the testimony may prevent a failure or delay of justice." If the court grants the order, the order should designate the people whose depositions will be taken, and state the subject matter, and state whether the deposition is to be taken by oral examination or written interrogatories.

You also can request depositions while an appeal is pending (or about to be pending) to perpetuate the testimony of witnesses "for use in the event of further proceedings in the trial court."

I am an Atlanta, Georgia personal injury lawyer, and in a car wreck case I handled recently, the defendant insurance company argued that it had never received notice of the car accident. The evidence was crystal clear, though, that the insurance company knew all about the car accident.

The insurance company moved for something called "summary judgment". "Summary judgment" is a quick judgment, made by the judge, even before a trial gets started. The idea behind summary judgment is to avoid wasting a jury's time if there really is not a case. Courts only want a jury to spend time hearing any type of case - be it personal injury or negligence lawsuit, or a car accident lawsuit or truck accident lawsuit- if the case meets the minimum legal requirements to be a case.

As the attorney for the car accident victim, I showed the court the letter to the insurance company telling them about the wreck, and the testimony of the company that had owned the vehicle that they had called the insurance company and reported the accident. The judge denied the Defendant's motion for summary judgment on that issue. The case settled at that point, but if it had not then we still would have gone on to a trial before a jury, even though we had won the motion for summary judgment. In our case the motion had decided just one issue in the case: whether the insurance company had notice of the car wreck. It did not decide who caused the wreck or what the damages to my client were. A jury still would have needed to decide those issues.

Courts are not supposed to grant summary judgment motions routinely. In general, in our justice system we prefer to let the jury decide lawsuits. In Georgia, the standard for summary judgment is very high:

"In general, `negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts. . . . Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant's favor.'"

Godinho v. City of Tybee Island, 231 Ga.App. 377, 380, 499 S.E.2d 389 [21] (1998) (city failed to meet burden on its motion for summary judgment), quoting from Sykes v. Colony Regency Partners, 226 Ga. App. 804, 806, 487 S.E.2d 408 (1997). See also English v. City of Macon, 259 Ga.App. 766, 577 S.E.2d 837 [13] (2003).

"[Q]uestions of negligence, diligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them except in plain and indisputable cases." Jordan v. City of Rome, 417 S.E.2d 730, 203 Ga. App. 662 [23] (1992) (record presented factual disputes as to whether city and chief of police received notice, whether the notice was sufficient to alert them, and whether they then reacted appropriately).