Miss Jackie, a retired police officer, needed to get her oil changed. So she found a local oil-change shop near her home in Lawrenceville, Georgia. The technician escorted Miss Jackie into the lobby and pulled her car into the bay over an open oil pit.
As she sat in the lobby, Miss Jackie realized that she had forgotten to tell the technicians something important about her car. Unfortunately, there was no employee at the desk in the lobby, and the door into the workshop had a prominent sign stating “Employees Only.”
Miss Jackie chose to go into the workshop anyway. Luckily, her car was in the first stall, and the technician was right in front of her as she came through the door. Jackie told the technician about her car and then turned to go back into the lobby.
Before she could get back into the lobby, a second technician at the rear of the car called for her attention. “Your tail light is out,” he said. “Would you like me to replace it?”
Miss Jackie replied, “Sure, how much?”
“$3.50,” the tech replied.
That seemed like a deal to Miss Jackie. “Sure, but let me show you how to open my trunk; the key will jam if you don’t do it right.”
The technician led Jackie to the rear of her car. As the he rounded the corner, he stepped over the open oil pit in the floor, straddling it and continuing to converse with Miss Jackie. After years of working in shops like this one, the presence of the oil pit was intuitive to him. He could walk around this shop wearing a blindfold without falling in the pits.
Unfortunately, the presence of the pit was so instinctive to him that he forgot to warn Miss Jackie. She had been inside the lobby when they pulled her car into the stall and did not know that a large portion of the oil pit was open behind her car.
As she rounded the rear of her car, she continued to converse with the tech, making eye contact with him. She stepped forward with her left foot, but instead of coming to rest on the concrete, her foot met with the open air of the oil pit, and down Miss Jackie went. As she fell, she bounced off her car, off the edges of the oil pit and even the steel ladder leading down into the pit. Thank God, another technician, Kamal, was already in the pit, preparing to work on Jackie’s car. He caught Miss Jackie as she was careening toward the bottom of the pit. When he stopped her fall, Miss Jackie was upside down, looking at Kamal’s work boots and the steel-grate platform at the bottom of the pit.
While a more serious injury had been averted by good fortune and Kamal’s quick reaction, Miss Jackie was still in tremendous pain, having sustained serious personal injuries. Her right knee had struck the pit ladder, her shoulder was fractured in several places and her shoulder tendons had been shreaded. Jackie called her daugher and had her pick Jackie up and driver her to Gwinnett Medical Center in Duluth, Georgia.
Georgia’s Comparative Negligence Rule. Is Miss Jackie to blame for her fall? In this regard, her case is an excellent example of Georgia’s Comparative Negligence Rule. Rule #1. In Georgia, the jury must compare the fault of Miss Jackie with the fault of the defendant. If the jury were to decide that Miss Jackie was equally at fault for her injury (i.e., 50/50), the jury would be required under the doctrine of comparative negligence to return a verdict in favor of the defendant and award nothing to Miss Jackie. Rule #2. However, if the jury were to decide that Miss Jackie was not as much to blame as the defendant (for example, only 49% at fault), this doctrine would allow them to compensate her but would require them to reduce her compensation by the percentage of her fault – 49% in the example. This second rule applies all the way down to 1%; in other words, if the jury were to decide that Miss Jackie was 1% at fault, they would be required to reduce her compensation by only 1%.
In most other states, comparative negligence is not the rule. Many states would allow Miss Jackie to recover even if her degree of fault was 99%, but the jury would be required to reduce her recovery by that percentage. Thus, Rule #1 of Georgia’s Comparative Negligence Rule is nothing short of high-stakes poker. If it’s a close call on which party bears the most fault, Miss Jackie faces the risk that the jury will not compensate her at all.
Your Choice of Trial Attorney makes all the Difference. Overcoming Georgia’s comparative negligence rule presents a unique challenge to clients like Miss Jackie. How would the jury apply this doctrine to Miss Jackie’s case?
Experts believe that juries don’t fully understand the verdicts that they return. For that reason, Mr. Freeman regularly attends national conferences on both jury psychology and the art of persuasion. From the moment he is retained as your trial attorney to the moment your trial begins, Mr. Freeman uses this training to devise a trial strategy that will overcome the legal and factual obstacles you face such as comparative negligence.
Mr. Freeman’s Investigation of Miss Jackie’s case. After extensive investigation and discovery, Mr. Freeman prepared Miss Jackie’s case for trial. His deposition cross-examination of the repair shop technicians and their supervisors revealed that the technicians had violated numerous company safety polices on the day of Miss Jackie’s fall: (1) as soon as Miss Jackie stepped out into the workshop, she should have been escorted back into the safety of the lobby; (2) if it was necessary for Miss Jackie to be in the workshop, she should have been warned of the open pit; and (3) the technician should not have stepped over the pit or straddled it. These admissions of safety rule violations became the foundation for Miss Jackie’s claims that her fall was their fault, not hers.
In addition, Mr. Freeman strategized that the defendant’s failure to have an attendant present in the lobby was the dominant cause of Miss Jackie’s fall. If the defendant had chosen instead to fully staff its oil-change facility, Miss Jackie could have conveyed the important information about her car to the attendant and never would have been confronted with the choice of entering the shop and ignoring the “Employees Only” sign on the shop door.
Depositions of corporate officers revealed that surveillance cameras had captured Miss Jackie’s fall but that the footage had not been preserved. This failure on the part of the defendant triggered the doctrine of “spoliation of evidence.” Because the defendant knew of the video evidence; knew of Miss Jackie’s fall; knew that the video would be useful to the plaintiff in proving her case; but allowed it to be automatically destroyed by the surveillance system after thirty (30) days, Georgia law permitted Mr. Freeman to request that the judge instruct the jury on the law of spoliation of evidence. This jury instruction provides that the defendant’s destruction of the video evidence gives rise to a presumption that the evidence would have been helpful to Miss Jackie’s case and that it was destroyed to cover up the defendant’s negligence.
After Mr. Freeman completed his investigation, he aggressively pursued an early trial date, and, at the same time, invited the defendant to pursue settlement of Miss Jackie’s case through non-binding mediation. With a trial date looming over the heads of the defendants and their insurers, the parties engage in hours of negotiations and argument in the presence of a neutral mediator. At the end of the day, the defendant and its insurance company agreed to settle Miss Jackie’s case by paying her $180,000.