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Inadequate Minor Settlement – Not Enforceable Until Judicial Approval

What are your options as a parent if you agreed to take a settlement offer made by an insurance company but no judge has yet approved the settlement and you have just realized the offer is too low?

Georgia law contains a safety net for you, if you find yourself in that situation. O.C.G.A. § 29-3-3 establishes that no settlement for a minor in excess of $15,000 is enforceable without judicial approval.  

If the offer to settle your child’s claim was greater than $15,000.00 your agreement to accept that amount is not legally binding because you did not have legal authority to accept it. A parent may accept such an offer ONLY AFTER a judge reviews and approves the proposed settlement.

Typically the way this issue comes up is when a parent has been trying to negotiate with an insurance company without having an attorney. Often when an attorney does get involved it is because the parent realizes something is not right. Sometimes a judge will tell the parent they need to consult with an attorney about the adequacy of the settlement.

With minor settlements, the “guardian” is normally the parent. That is the language the probate court uses to refer to the person who is requesting the legal authority to compromise (aka settle) a minor’s claim.

Parents are sometimes left in the dark by insurers with regard to important issues that effect how much would be fair compensation for their child. There may be an issue of the parent not knowing the extent of the future treatment their child will need. Another common issue that gets overlooked is the subrogation/reimbursement rights of health insurance and employee funded ERISA health plans. More often, the parent is simply misled by the insurer with regard to the reasonable settlement value.

You may be facing a motion to enforce the purported settlement. A motion to enforce asks a judge to force you to take a purported settlement based on the legal theory that you previously agreed to settle all your child’s claims. The problem with such an argument is that Georgia law does not give the right to settle a child’s claim to the guardian. That right belongs to the Courts alone. Only after the Court confers authority can a guardian enter into a binding settlement. Until judicial review and approval occurs there can be no enforceable settlement.

Incidentally, I have argued elsewhere that the Courts have assumed too much power over family life. I’m an advocate for scaling back the jurisdiction of courts over family matters. But the law as it exists in Georgia at this time clearly puts the power of settlement in the judges’s hands.

If you find yourself in this situation, please call me to discuss.


Attorney Pete Pearson has been working for injury victims for 20 years. Located in the Greater Atlanta Metro Area, he serves clients all over the State of Georgia. He has a sub-specialty in child injury law. You can talk to Attorney Pearson for a free initial consultation by clicking here or by calling him at Six-Seven-Eight 358-2564.




How Do I Get My Doctor To Help Me Document The Full Extent Of My Child’s Head Injury?

The head is the most common body region injured in motor vehicle crashes for children age birth to seven years and head injury outcome in children can be worse than similar injuries sustained by adults.

Children who suffer traumatic brain injuries (TBIs) can experience lasting or late-appearing neuropsychological problems. For this reason, head injuries should be of particular concern to parents of children injured in motor vehicle traffic crashes. Proper diagnosis and treatment is critical. So is marshalling the legal evidence necessary to prove the link between the crash or other trauma and your child’s deficits. Proving future deficits is one of the most vexing issues that arise in child head injury cases.

In children, some neurological deficits after head trauma may not manifest for many years. Consider that frontal lobe functions develop relatively late in a child’s growth, so that injury to the frontal lobes may not become apparent until the child reaches adolescence when higher level reasoning develops. Since the frontal lobes control social interactions and interpersonal skills, early childhood brain damage may not manifest until such frontal lobe skills are called into play later in development. Likewise, injury to reading and writing centers in the brain may not become apparent until the child reaches school age and shows signs of delayed reading and writing skills.

How can you obtain compensation now for deficits that may not show up until many years later? How can you prove now what may happen later? Head injury legal claims are challenging precisely because of these kinds of considerations.

The standard for admitting evidence on considerations of this nature is “a reasonable degree of medical certainty.” Your child’s doctor must be willing to testify to a “reasonable degree of medical certainty” that the trauma sustained by your child caused or will cause the future deficits. What does this phrase “a reasonable degree of medical certainty” mean?

It’s been observed that the phrase is almost an oxymoron. Normally the word “certainty” means certain. But the adjective “reasonable” negates the absolute connotation of the word “certainty.” But if you push past the awkwardness of the phrase to how it is employed in the courtroom it makes more sense. In actual trial practice the evidentiary standard is “more likely than not” or “more probable than not.” This is a lower standard of proof than certainty and also lower than the “beyond a reasonable doubt” standard (which is the standard used to convict a defendant in criminal cases). Essentially the standard is whether your doctor can say that it is “more likely than not” that the trauma will cause your child to suffer a particular deficit in the future.

Many medical doctors don’t understand what I said in the last paragraph. They don’t want to get involved with a legal claim unless there is overwhelming proof that the trauma caused a deficit. They in effect think there must be enough evidence to prove it “beyond a reasonable doubt.” They are not aware of the correct legal standard. This is unfortunate as it results in many families not getting enough compensation to provide for the future care of their injured child.

I talk with my client’s doctors before they give any testimony and educate them on the correct standard of proof. I ask them to tell the truth, no matter what that may be. I request that they review their treatment of the child with an eye toward helping the family prove all related deficits that have or may flow from the trauma. I encourage them to understand that the law only allows the family “one bite of the apple”, one chance to get justice, and that when the legal claims ends they can never reopen the case even if it turns out their child has far more profound deficits than we proved.

If your child has suffered a head injury, you are dealing with one of the most complex and challenging of all claims. You would benefit greatly from talking to an attorney. There are many related issues that arise in the context of child TBI claims that are not for the uninitiated. Please call me if, due to the fault of another, your child has sustained a brain injury. The call is free, you are under no obligation to hire me, and I will do my best to point you in the right direction.

Sources: http://www-nrd.nhtsa.dot.gov/Pubs/811325.pdf


Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.


Georgia Pool Rules – Child Injury in Swimming Pools, Spas, and Recreational Water Parks

I’ve just reviewed Georgia’s “pool rules”, a scintillating read.

The Georgia Department of Public Health (DPH) promulgates rules that apply to most swimming pools, spas and recreational water parks. The goal of the DPH rules is to minimize illnesses and injuries at these facilities.

Why would I spend a perfectly good afternoon reading a 50 page regulation? For you, my dear readers, for you.

Parents of children who have been injured come to my blog looking for information. I want to provide the information parents need to make a decision about whether legal action is proper. I also want to provide parents with the best legal analysis of Georgia’s “pool rules.”

Every legal claim starts with an analysis of what duty was violated. There has to be a violation of some duty or there is no legal claim. It’s imperative to discover what duties apply. In the context of child injuries that occur in or near water, one important source of duties is the State you live in. In Georgia the State agency that is tasked with oversight of pools, spas, and recreational water parks is DPH and a working knowledge of the rules made by that agency will help you discover what duties might apply to your situation.

(Keep in mind that DPH is not the ONLY source of duties that might apply to your situation. Many Georgia counties have county pool regulations. If you want to know if your county has county-specific regulations, you can find out here (if your county is in white it has county-specific regulations that go beyond the State regulations). Federal law creates other duties (such as the Federal Pool and Spa Safety Act of 2007).

The rules and regulations created by DPH are long and complex. Most folks are not going to wade through them. Please consider this my effort to provide you with a crash course in water safety. I won’t hit upon every single rule but I will highlight those I think are most significant.

Before I jump in to details, let me alert you that the DPH rules are limited in scope – they do not apply to every body of water now existing in the State of Georgia. Some are expressly exempt: such as private pools and hot tubs/spas, apartment complex pools, country club pools, subdivision pools that are open only to residents of the subdivision and their guests, and there are a few other categories of pools/spas/baths that fall outside the scope of the application of DPH rules.

DPH rules DO apply to all other swimming pools, spas, and recreational water parks located within the State of Georgia. The rules prescribe minimum design, construction, and operation requirements that are intended to safeguard the health and safety of the public.

Here is my list of important rules that may create a legal duty and the violation of which may provide a basis for a successful legal claim:

  • Barrier Hazards – All outdoor swimming pools and spas shall be provided with a barrier. A barrier is a fence, wall, building wall or a combination thereof, which completely surrounds or covers the swimming pool or spa and obstructs access to the swimming pool, spa or recreational water park. One safety purpose of a barrier is to keep unsupervised kids out. The top of the barrier must be at least four feet high. All access gates must be self-latching. Pedestrian access gates must also be self-closing. When the release mechanism of the self-latching device is less than 4.5 feet from the bottom of the gate the mechanism must be located on the pool side of the gate and the gate and the barrier shall have no opening greater than one-half inch within 18 inches of the release mechanism (to keep little hands from reaching through). Installation of a safety cover over the pool does not exempt a pool operator from erecting a barrier. Installation of a safety cover over a spa DOES exempt the operator from the provisions of the barrier requirement.
  • Bather Load Violations – this has to with how many bodies are allowed in the pool at one time. The rules are a function of “square feet per user”. For instance, for pools with minimal deck areas (which means smaller than the pool surface area) the maximum number of people allowed in the pool at one time varies depending on what part of the pool you are considering. For shallow or wading areas there must be 18 square feet per bather. For the deep area there must be 20 square feet per bather. And for the diving area there must be 300 square feet per bather. Spas are handled differently: the maximum bather load should not exceed one person per nine square feet of surface area.
  • Permitting Violations – it is unlawful for a pool to operate without a valid operating permit. Permits are invalidated by a change in ownership. An operating permit cannot be valid for longer than twelve months. The permit must be prominently displayed as close to the main entrance as practicable.
  • Structural Design Violations – slip resistant surfaces are required in the pool and on the deck surfaces near the pool (all ladders/steps in and out of pools shall have treds with slip resistant surfaces), spas shall have handrails, abrasion hazards must be avoided, decks shall be sloped to prevent water pooling (minimum slope of decks must be 1/8” per foot, return inlets and suction outlets must be designed to not to constitute a hazard to bathers (bather entrapment is the concern).
  • Dimensional Design Violations – beginner’s areas may not adjoin deep areas, transition points between shallow and deep sections of pools must be visually set apart with a rope and float line, depth markers, and a four inch minimum width row of floor tile, painted line or similar means of a color contrasting with the bottom. Diving areas in pools shall conform to minimum water depths, areas, slopes and other dimensions.
  • Water temperature hazards – the owner/operator is required to routinely check the water temperature to ensure it does not exceed 104 degrees Fahrenheit. Obviously what is in view here is mainly spas and heated pools.
  • Warning Signs – various requirements for signage at pools and spas. Risk of fetus damage (hot water exposure in spas), risk of damage to small children and pregnant mothers (small children and pregnant women have lower hot water exposure limitations), risk of drowning warnings, risk of injury, risk of electric shock if electrical appliances are used in or near water or facilities are used during lighting storms. The words “No Diving” shall be permanently visible at the edge of the deck for water five feet (5′) or less.
  • Chemicals in the Pool/Spa – The rules provide for minimum and maximum dilution rates for the chemicals used in pools and spas. Too little disinfectant and harmful organisms may be present in the water, too much and bathers can be harmed/burned. There is a section on “fecal incidents” (poop in the water) and the rules require the pool be shut down for a period of time to ensure no diseases (such as Giardia infection) are spread.
  • Handholds, depth markers, rope and float lines – a handhold means a device that can be gripped by a user for the purpose of resting and/or steadying him/herself. Handholds are required around the perimeter of pools in areas where the depths exceed 3 feet 6 inches. Depth markers must be plain and conspicuous and there are a number of specific requirements for how and where they must appear.
  • Lifeguard training requirements & qualifications – If lifeguards are provided they must hold up to date, nationally recognized certification. They are responsible for the safety and supervision at the pool, spa, or recreational water park.
  • Lifesaving  equipment – requirements include, but are not limited to, a pole not less than 12 feet long, including a body hook; a throwing rope to which has been firmly attached a ring buoy; a telephone which is hard wired and affixed (not a cell phone) with posted names and numbers for emergency personnel.
  • Specials rules applying to water slides, flumes, wave pools, wading pools, zero-depth pools, falling-entry pools, etc . . . this section of the rules concerns recreational water parks. The rules in this area vary greatly depending on the type of water activity and so it is hard to summarize. Suffice it to say the owner/operator of a recreational water park has a duty to make sure staff closely monitor these activities. Wave pools that generate waves more than 3 feet in height must not continue for more than 15 minutes at a time. At all times when a water slide is open an attendant must be on duty at each falling-entry pool or runout and another attendant must be on duty at each entrance to a flume. Radio communication or some other acceptable communication method must be maintained at all times between the attendants. Only one person at a time may go through a flume on a water slide.
  • Inadequate training of pool manager/operator – it is required that each pool and spa covered by these rules be maintained by properly trained individuals. One kind of training that qualifies is the National Swimming Pool Foundation’s Certified Pool/Spa Operator’s Course.

So, if your loved one has been injured or killed and you believe one or more of the rules I’ve discussed in the post were broken, please call me. A phone consultation is free. The advice I give may be a help to you as you weigh your legal options.

Also, I’ve previously blogged about this topic and if that is of interest to you, you can find it here.

Sources –

Georgia Department of Public Health

Georgia Pool Rules


Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. Many years ago, in what seems like another life, Pete was a lifeguard. His interest in water safety probably got its start way back then. He is a father to seven and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.


Child Injury Claims in Georgia – Toxic Mold

The number of legal claims for toxic mold exposure exploded between 1990 and 2000. In recent years the number of suits filed has fallen. Recent claims, however, have included significant victories for the injured.

Toxic mold can create serious health issues. It hits children the hardest. One type of toxic mold, Black Mold, may be linked to a serious lung condition in infants, called Idiopathic Pulmonary Hemorrhage, or IPH. The formal name for Black Mold is Stachybotrys chartarum (or Stachybotrys atra).

Children who are exposed to toxic mold for a prolonged time can develop reactive airway disease, including the development of asthma[1], allergies and respiratory disease, wheezing, coughing and difficulty breathing. fatigue, headache, cognitive impairment, and central nervous system problems. There have been infant deaths linked to excessive exposure to toxic mold.

When a child becomes sick and the suspected cause is toxic mold, a number of steps need to be taken quickly:

Take pictures of the mold.

Mold tests are imperative. A kit can be purchased online.

Find a consultant to test the building for mold.

If legal action might be necessary, lining up expert testimony is essential. The right expert can make the difference between failure and victory. An expert opinion will be required in most cases in order to survive a motion to dismiss (or a summary judgment motion). Examples of experts that have testified in past mold cases include mycologists, microbiologists, environmental and occupational medicine board certified physicians, and neuropsychologists.

Prospective defendants in these lawsuits are insurance companies, architects, engineers, builders, remediation companies, landlords, manufacturers, repair services, and home sellers.

Starting around 2003 the insurance industry adopted mold exclusions and since 2003 virtually all property and liability policies have come to contain mold or fungus exclusions. This industry shift creates a challenge to making a recovery on toxic mold claims. Creative lawyering is essential to success. One strategy that works for some claims takes advantage of the fact that water leaks are a primary cause of mold growth. Water leaks are generally covered by insurance. If it can be proven that the mold that harmed your child was caused by a water leak that is a covered loss, the insurance company may be responsible for the injuries caused by the mold. Another possible approach is when a water leak occurs and the home owner puts the homeowner’s insurance on notice and the insurance company fails to process the claim (and remediate the problem) or delays the processing of the claim and mold grows, the insurance company may be responsible for the harm to your child’s health caused by exposure to toxic mold.

Another important consideration is that if the defendant responsible for the building has substantial assets, it may not matter whether there is insurance coverage.

Toxic mold cases are expensive to bring and win. For that reason there must be significant damages (high medical bills or permanent impairment) before you and an attorney can justify the costs of bringing a claim.

There are many variations on a successful toxic mold claim. Here are a few examples from recent cases:

Former Los Angeles Lakers Coach Ordered to Pay $250K in Punitive Damages

Bardack v. Tomjanovich, Los Angeles County Superior Court Case No. SC10185

Former Lakers coach Rudy Tomjanovich and his wife were ordered in 2012 to pay $250,000 in punitive damages, on top of nearly $3 million in compensatory damages, to a money manager for selling him a Pacific Palisades home replete with water leaks and mold.

Six Figure Verdict Against Landlord

Cohen v. Fox Management, Inc., Multnomah County Circuit Court Case No. 1010-1453

In 2011, an Oregon jury returned a verdict of $103,000, plus attorneys’ fees, against a property management company. The plaintiff, a radiologist, had rented a home managed by the defendant. When a water leak occurred in a stairwell, plaintiff advised the defendant property management company. Despite the complaint, no repairs were made and a strong musty odor developed. Plaintiff suffered eye irritation, headaches and allergy symptoms. Eventually the tenant hired an indoor air quality expert who found multiple building defects and excessive indoor humidity levels. Plaintiff was forced to move from the house.

New York Appellate Case permits case to proceed against Landlord for liability in mold case

Cornell v. 360 W. 51st St. Realty, LLC, 939 N.Y.S.2d 434 (2012)

In 2012, a New York appellate court held a tenant was not barred from pursuing a personal injury claim based on exposure to toxic mold. Prior to this decision, it was generally presumed that under New York precedent tenants were barred from attempts to prove causation under the Frye test (an evidentiary rule) in mold cases. The Frye test requires that claims of injury which must be proven by expert testimony be based on generally accepted scientific principles. In an earlier New York case, the Court effectively concluded that the Plaintiff could not show that his injury was caused by mold exposure because the theory that mold caused such injuries was not generally accepted.

[1] Mold exposure during infancy increases asthma risk. In August 2012, the University of Cincinnati published a study in The Journal of Allergy and Clinical Immunology concluding that exposure to three species of mold common to water-damaged buildings during infancy was associated with childhood asthma. These forms of mold—Aspergillus ochraceus, Aspergillus unguis and Penicillium variabile—are typically found growing in water-damaged homes. The study concluded that there is a statistically significant increase in asthma risk at age seven associated with high mold levels in a child’s home during infancy.


Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

Toy-Related Deaths and Serious Injury

Just before Christmas 2013 the U.S. PIRG (Public Interest Research Group) Education Fund released its annual exposé of dangerous toys, Trouble in Toyland. The consumer watchdog group identified 24 toys on the market which it deemed dangerous.

It is now February of 2014 and despite the efforts of the U.S. PIRG Education Fund many of these toxic toys have been sold and passed into the hands of our children. What legal options do parents have if their child has been injured by one of these toys?

In this post I will discuss legal options parents of injured children possess. I will start by highlighting some of the more dangerous toys identified in the Trouble in Toyland report.

Keep in mind that even if the toy that injured your child is not discussed here you still may have a viable legal claim. Hazards in toys and children’s products run the gamut from choking hazards created by toys with small parts, to strangulation hazards from cords on pull toys, to laceration hazards from edges that are too sharp, to toxic hazards posed by chemicals in toys. Injuries have been documented from all of these hazards.

The most common toy-related child injury is choking and the most common causes of choking are small toy parts, small balls, marbles, and balloons. Federal law bans small parts in toys for children under three and requires a warning label on toys with small parts for children between the ages of four and six.

Regulators use three factors to determine whether a toy is intended for children under three years old, including the manufacturer’s stated intent in the age labeling; the advertising and marketing of the product; and if the toy is “commonly recognized” as being intended for a child under three years old. Some items commonly recognized for children under three include squeeze toys; teether toys or articles that are affixed to a crib, stroller, playpen, or baby carriage; pull and push toys; bathtub, wading pool and sand toys; and stuffed animals.

So how do government regulators determine if a toy part is small enough to be banned (or to require a warning label for children 4-6)? Regulators use a choke test cylinder (sometimes it is called a “small parts cylinder”) and below you can see a schematic that shows the dimensions of the cylinder:

Choke Test Cynlinder

The choke test cylinder has an interior diameter of 1.25 inches and a slanted bottom with a depth ranging from 1 to 2.25 inches. This cylinder is designed to approximate the size of a fully expanded throat of a child under three years old. If a toy or part of a toy – including any parts that separate during “use and abuse” testing – fits inside the test tube, the product is a choking hazard and is banned for children under the age of three.

Here is a photo of a choke test cylinder in use testing a product:

Choke Test Cylinder

I said I would start by highlighting some of the more dangerous toys identified by the Trouble in Toyland report. Toys which were deemed dangerous and which may cause choking in children include:

  • Product name: Princess Wand
  • Label on toy: None
  • Type of hazard: Choking
  • Why toy is a problem: A small heart that fits inside the small parts cylinder detaches easily.
  • Manufacturer/Distributor: Greenbrier International
  • Store: Dollar Tree
  • Image:

Princess Wands

  • Product name: Bead Kit
  • Label on toy: 5+
  • Type of hazard: Choking
  • Why toy is a problem: No small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Greenbrier International
  • Store: Dollar Tree
  • Image:

Bead Kit

  • Product name: Littlest Pet Shop- #2744 Horse
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: Bottom half of pony easily detaches and fits within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Kmart
  • Image:


As you can see below, the pony fails the choke cylinder test:


  • Product name: Littlest Pet Shop – Candyswirl Dreams Collection #3313
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The bottom of the toy animal easily detaches and both the head and bottom fit within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Wal-Mart
  • Image:




  • Product name: Littlest Pet Shop – Sunil Nevla
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The bottom of the toy animal easily detaches and fits within the small parts cylinder. There is no small parts warning, which is required for toys intended for children between 4 and 6 that contain small parts.
  • Manufacturer/Distributor: Hasbro
  • Store: Wal-Mart
  • Image:



  • Product name: Littlest Pet Shop- Seal and Dolphins
  • Label on toy: 4+
  • Type of hazard: Choking
  • Why toy is a problem: The round head of the seal easily detaches and barely passes the small parts test but fails the small ball test*.
  • Manufacturer/Distributor: Hasbro
  • Store: Kmart
  • Image:


*Note explaining my reference to the “small ball test” above. In 1994 the federal government established a test for small balls which is more restrictive than the 1.25 inches in diameter small parts test (for which they use the choke test cylinder discussed above). Balls with a diameter smaller than 1.75 inches are banned for children under three years old. Federal law defines a ball as “any spherical, ovoid, or ellipsoidal object designed or intended to be thrown, hit, kicked, rolled, dropped, or bounced.” In addition, the term “ball” includes any multisided object formed by connecting planes into a generally spherical ovoid, or ellipsoidal shape that is designated or intended to be used as a ball.

  • Product name: Gobble Gobble Guppies
  • Label on toy: 2+
  • Type of hazard: Choking
  • Why toy is a problem: The round fish are bigger than choke tube but smaller than small ball tester.
  • Manufacturer/Distributor: SwimWays
  • Store: Kmart
  • Image:


  • Product name: Super Play Food Set
  • Label on toy: Statutory Small Parts Warning
  • Type of hazard: Some food objects are small parts—other rounded food objects are bigger than choke tube but smaller than small ball tester.
  • Why toy is a problem: Toy food poses a special hazard because it looks as if it should be eaten
  • Manufacturer/Distributor: Geoffrey LLC
  • Store: Toys-R-Us
  • Image:


  • Product name: Fisher-Price Loving Family Outdoor Barbeque
  • Label on toy: 3+
  • Type of hazard: Choking
  • Why toy is a problem: The toy has circular near small part and also looks like something that should be eaten.
  • Manufacturer/Distributor: Mattel
  • Store: Kmart
  • Image:




  • Product name: Punch Balloons
  • Label on toy: Statutory balloon warning; 5+
  • Type of hazard: Choking
  • Why toy is a problem: Balloons are dangerous for children under 8, but this toy is labled for 5+
  • Manufacturer/Distributor: Toy Investments, Inc.
  • Store: Toys R Us
  • Image:


Toys which were deemed dangerous by the Trouble in Toyland report and which may cause gastroenterological injuries in children include:

  • Product name: Sonic Sound Sizzlers Noise Magnets
  • Label on toy: 8+
  • Type of hazard: Ingestion
  • Why toy is a problem:The toy contains two high powered magnets that are near small parts. If the toy was a small part, it would be banned for children <14.
  • Manufacturer/Distributor: JA-RU Inc
  • Store: Family Dollar
  • Image:



Many magnet toys on the market today use powerful neodymium iron boron (NIB) magnets which have increased in popularity with toy manufacturers as they have become readily available from Chinese exporters. They are commonly used in magnetic sets and magnetic office toys and jewelry, especially earrings and bracelets. They are also appearing in dollar store toys.

If swallowed, one magnet may pass through the digestive system without incident. If two or more magnets are swallowed, however, they can attract each other in the body. If one magnet is in the stomach and another is in the small intestine, for example, they can cling together and quickly work their way through tissue, perforating the wall or creating a hole. Two or more magnets attracted to each other in the intestine can create a bowel obstruction or perforation. Using MRIs to diagnose the problem is very dangerous, since the magnetic fields used in imaging could tear the magnets through tissue if they are present.

Another dangerous product discussed in the Trouble in Toyland report is
Buckyballs or Buckycubes, made by Maxfield and Oberton. In my opinion, Buckyballs and magnet desk toys similar to Buckyballs sold by retailers are not merchantable and reasonably suited to the use intended and pose an unreasonable risk of injury to children.

Here is an image of one type of Buckyballs:


The federal standard for high powered magnet toys for children bans them for children under 14 if they fit in the choke test cylinder. There is an exception for magnets included in certain “hobby, craft, and science kit-type items” intended for children 8 and up, provided the products comply with special magnet hazard disclosures.

There are a number of other dangerous toys discussed in the Trouble in Toyland report. Read it if I have not mentioned the toy that injured your child.

I’ve highlighted a few dangerous toys that can cause harm to children. Next I want to address what options a parent has if their child has been injured by one of these toys (or other toys that pose an unreasonable risk of harm).

Normally, a products liability claim is going to be the best option for parents.

In Georgia product liability is centered upon O.C.G.A. Section 51-1-11 which provides that the manufacturer of personal property sold as new is strictly liable to individuals who are injured by that property.

To establish a strict liability claim under this statute, a plaintiff must prove that (1) the defendant was the manufacturer of the product, (2) the product was defective when it left the control of the manufacturer, and (3) the product’s defective condition proximately caused the injury to the plaintiff.

While O.C.G.A. Section 51-1-11 is the basis for most products liability claims, there are other legal options open to a parent whose child is injured by a dangerous toy. A plaintiff can rely on negligence, strict liability, and warranty theories.

The bottom line? If your child has been harmed by a toy and you believe there may be a basis for holding the manufacturer liable, please don’t hesitate to contact me. It costs you nothing and may benefit you a great deal.


Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

When Can A Parent Be Held Liable for the Conduct of Their Child?

In the State of Georgia, parents are liable up to $10,000 plus court costs for wilful or malicious acts of their children which result in injury or property damage. O.C.G.A. Section 51-2-3. The same rule applies to non-parental guardians. In Georgia the age of majority is 18 and thus the child must be under 18 at the time of their bad conduct.

Examples of situations where this might apply include: bullying at school where a child is injured and fights between children that result in physical injury.

This rule provides for limited compensation for injury victims who are harmed by the intentional acts of a child. Without such a rule victims might go uncompensated since children generally do not have sufficient means to pay for the consequences of their bad acts.

The amount of compensation available to victims under O.C.G.A. Section 51-2-3, however, is capped at $10,000 plus court costs. That might be adequate to fully compensate those that suffer a modest injury, but what more can be done for those who suffer disabling or catastrophic injuries at the hands of a child?

One thing that can be done is to give due care to analyzing the conduct that caused the injury. O.C.G.A. Section 51-2-3 deals only with the “wilful” or “malicious” acts of minors. It does not cover situations where a parent negligently entrusts a child with a dangerous instrumentality and the child hurts someone. There may be a way around the $10,000 limitation in such scenarios.

Here is an example – Dad gives his son illegal fireworks and while little Johnny is busy blowing them up, another child gets hurt. Little Johnny may or may not be wilful in the matter, perhaps being a bit mischievous but not fully appreciating the grave dangers involved, yet Dad knew better.

Here is a second example of negligent entrustment – a child is allowed to play with a firearm unsupervised and a negligent discharge occurs killing someone. If a parent permitted the child to get their hands on that firearm (either by giving it to them or by failing to adequately secure it), that parent may have legal liability.

Another legal theory that can help an injury victim hold a parent liable for the conduct of their child is the “family purpose” doctrine. This doctrine applies to automobile wrecks and boating wrecks (yes, boat wrecks – See Stuart v. Stephens, 225 Ga. 185, 166 S.E. 2d 890.) When a child is driving a car (or a boat) that is owned by their parents and negligently causes a collision, it may be possible to hold the parents liable (normally this means a claim under the parent’s liability insurance). And note this – the doctrine applies to adult children also. The relevant question is not whether the child is a minor versus an adult but simply whether the child was using the car or boat for a purpose for which the parent provided it with the permission of the parent (either express or implied.)

Yet another legal theory that can help establish parental liability is “negligent supervision.” Parents have a duty to supervise their children. If a parent knows a child is behaving badly or has reason to expect their child to behave violently in a certain situation and fails to take reasonable steps to protect others, they may be liable.

A less common scenario, but one that arises occasionally, is when a parent employs their own child. If that child negligently injures another during the course and scope of their employment, the parent may have legal liability.

These are a few of the scenarios that can arise in the context of parental liability for children who cause harm to others. Your situation may differ. Feel free to call me to discuss.


Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564 or through his main site, www.petepearsonlaw.com.

Child Sports Injuries in Georgia – Second Impact Syndrome

Concussions are a common sports injury among children. In recent years there has been growing consensus that policies are needed for “concussion management” and “return to play” guidelines – to protect our children. In 2013 Georgia became the 44th State to enact a law that requires schools to create a policy on how to respond to head impacts during sports and other recreational activities.

The Georgia law, The Return to Play Act of 2013, mandates that all public and private schools must adopt and implement a concussion management and return to play policy. The rationale behind the law is that school officials are in the best position to prevent children and teens from returning to play after a blow to the head. Continuing to play with a concussion or symptoms of head injury leaves a child vulnerable to severe injuries like post-concussive syndrome and chronic traumatic encephalopathy (CTE), or death.

Under the new law each local Board of Education and the governing board of every non-public elementary school, middle school, and high school must:

  • Provide written warnings to coaches, students and parents that educate and inform of the risks of concussion and head injury to children who participate in athletic activities (this notice must be provided prior to the start of each athletic season and all pre-season practices)
  • Require each coach to complete an annual concussion recognition course and be certified in recognition of concussions in student athletes
  • Require coaches and school officials to comply with a uniform return to play protocol in the event of an injury or suspected injury to a child

What if your child was injured and school officials failed to follow the law and even greater harm happened to your child? How can the school be held accountable?

The answer to this question is unfortunately complex. Georgia law does not treat all students equally. If your child is injured while attending public schools your rights are fewer than if the injury happens at a private school. For a full treatment of how the law works in this area, read my post on Public School Injury Law In Georgia. If you don’t have time to read the full version, the law in Georgia is basically this:

In the State of Georgia the rule is that you can not sue a governmental employee (which includes school teachers, coaches, and school administrators) unless the governmental entity that employs them has waived Sovereign Immunity.

Sovereign Immunity is a shield that stops cold most injury claims against school districts and public school teachers/coaches, etc . . . Sovereign Immunity means that you can not sue the government without it’s consent. And as you might imagine, the government is not often inclined to give that consent.

Thankfully, there are exceptions to the rule. One exception is that under Georgia law, a suit against a public officer acting in his or her official capacity will NOT be barred by official immunity if the public officer negligently performed a ministerial duty. Suit IS barred, however, if the public officer negligently performed a discretionary duty. In other words, public officials are immune from damages that result from their performance of discretionary functions (GENERALLY, there is an exception that has to do with when those functions were undertaken with malice or intent to cause injury, read my full blog post on Public School Liability in Georgia if you want to learn more about that.)

What does all this mean? A ministerial duty is one that is commonly simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary duty is one that calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

So the question is whether the Courts will interpret the new duties created by Georgia’s Return To Play Act as ministerial (no immunity – you can sue for negligence) or discretionary (immunity – you generally can’t sue.) Over the last decade or so the Georgia Court of Appeals has shown a tendency to interpret duties as discretionary (thereby barring suit). It is unknown how the Courts will interpret this new law.

I believe the Courts should interpret the duties under the new law as ministerial. The duties concern matters that are simple, absolute and definite – a blow to the head occurs and a duty arises at that point in time to act on the duty created by this new law. No discretion is needed – the coach or school official needs to remove the child from play and not allow return to play until the appropriate health provider has examined the child and cleared them to return. Failure to follow this simple protocol would be a violation of a ministerial duty. Similarly, a school district who fails to provide the required warning notices or required training for coaches would be in violation of a ministerial duty.

That’s my take on the proper interpretation of the new law. What the Courts will do is in the future. If your child has been injured at school, please call me. Navigating these waters alone is treacherous. Public school officials are well aware of the law of sovereign immunity. Private school officials already have lawyers working to defend them. Shouldn’t you too?


Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.

Homeowner’s Insurance – What If My Child Is Hurt At Another Family’s Home?

If your child sustains an injury while at another family’s house and there is a homeowner’s insurance policy in effect, your child’s injury claim will almost certainly be covered. Don’t delay in reporting the injury, however, because all policies have a provision that says if timely notice is not given to the insurance company they can deny coverage.

After making sure the injury is reported to the insurance company (preferably in writing), take time to assess what type of insurance claim will be appropriate. There are two types.

The first type of claim under homeowner’s insurance. Many homeowner’s insurance policies contain “Med Pay” or “Medical Payments” coverage. “Med Pay” is no-fault coverage, which means it is available to help compensate you for medical expenses related to your child’s injury no matter how the injury took place. In other words, there is no requirement that you show that anyone was negligent. If you can show that your child was injured on the other family’s property, you can recover under the “Med Pay” coverage.

“Med Pay” is sold in increments and a family may have $1,000, $2,000, $5,000, $10,000, $25,000, $50,000, or more coverage in place. The way this type of coverage works is that you submit your child’s medical bills to the homeowner’s insurance company as you receive them. Some medical providers will even handle the submissions for you. Or, if you prefer, you can have the insurance company mail you (or your attorney) a check for the cost of your child’s medical treatment. I recommend the latter approach because it allows you (or your attorney) to negotiate with your medical providers. Often providers will offer a discount to settle your child’s bill if you ask. You can save money that way and use what you save to pay for your client’s future medical care or other injury related expenses.

The second type of claim under homeowner’s insurance. The second type of coverage is bodily injury liability coverage. This pays only when the owner or someone in the owner’s family is found to be at fault. You have to be able to (usually with the assistance of an attorney) prove that the owner or representative of the owner did something (or failed to do something) that constitutes negligence and that negligence led to your child’s injury.

Even if the homeowner has admitted fault, keep in mind that is is very common for stories to change after a little time goes by. Do your child a favor and document everything. If the homeowner admits fault, get that on a recording or in writing. Get them to admit the specifics of what they did wrong. This will protect you in the event they later change their story (and you would be amazed at how often stories change.)

A bodily injury liability claim allows you to recover more damages than in a “Med Pay” claim. “Med Pay” pays only for your child’s medical expenses. A liability claim pays you for medical expenses, any related lost wages, human losses (pain and suffering), and any damages that flow from your child’s injury.

One question that you may have is whether your child can be held responsible for causing their own injury? This issue arises if your child was doing something that perhaps was a little foolish at the time they were hurt. The answer is: it depends. It depends on the age of your child.

In the Georgia common law there is a legal creature known as the “tender years doctrine.” This doctrine holds that children under a certain age can not be charged with contributory negligence (fault) or assumption of the risk. The younger the child, the less likely they can be found to have contributed to their own harm.

For example, there is a case that holds that a 4 year old child is presumed incapable of negligence. But there is also a case that holds that a child that is 5 years, 10 months old does not get that same presumption. Exactly when a child becomes capable of contributory negligence is not clear in the case law. It seems safe to say that if a child is older than 6 years they might be charged with contributory negligence. But the issue is one for a jury to decide and is very fact specific.

So essentially, with very young children (4 and under) it is clear that they can’t be blamed for hurting themselves. With children older than 6, it is less clear. It will come down to what the courts have called a “subjective, individual standard of care for children.” In other words, the court or jury will have to examine the capacity of the child in question and their behavior and make a judgment call about whether they were capable of preventing the harm to themselves or if the adult in the situation should be charged with full or partial responsibility.

An example from a recent case I handled may help clarify how the doctrine of tender years works in practice.

My client, a 5 year old girl, was dropped off at the home of the Defendant. The Defendant had agreed to babysit my client.

The previous Sunday was Easter Sunday and my client’s mother had pressed out the child’s hair for the occasion. When the mother dropped her daughter off at the Defendant’s house, her hair was up in a ponytail. 

On the evening of the loss, the Defendant loosed the pony tail and let the girl’s hair out and shortly after gave her a lit candle to take into the house (the Defendant was outside talking to a friend on the phone). My client went inside the house unsupervised and while inside her hair caught on fire.

What happened next shocks the conscience. After this 5 year old child was burned, the Defendant told no one, called for no medical attention, and hid the fact from her own husband (by putting panty hose on the girl’s head to conceal the burns). The Defendant put the child to bed and kept her quiet during the night (while she fussed) by giving her Motrin.

All that night, the following morning, and throughout the next day, the Defendant again told no one and called for no medical attention. She did not inform the child’s mother. It was not until nearly 24 hours later, when the child’s mother returned, that her mother discovered the burns. Immediately she called 911 for an ambulance.

In that case, the insurance company didn’t even bring up the tender years doctrine. But, had my client been 7 or 8 or older, the insurance company might have.

One final piece of information. Because “Med Pay” claims are no-fault generally you do not need an attorney if that is the only type of claim you plan to bring. Generally the homeowner’s insurance company will pay the bills up to the limits of coverage without much of a fight. There are exceptions but generally you should be able to handle that without the expense of an attorney. If, however, you believe there was fault, it would be worth your while to consult with an attorney. Keep in mind that the attorney fee on a bodily injury liability claim is paid from the settlement, not from you or your child, and that if there is no recovery there is no attorney fee. So it is a risk free call to the attorney.

If your child has been injured by the negligence of another and you believe there may be grounds for a bodily injury liability claim, please call me. I have been representing families for over 17 years right here in Georgia and would be honored to talk with you. 


Attorney Pete Pearson practices Child Injury and Wrongful Death Law in the State of Georgia. Located in the Greater Atlanta Metro Area, he is available to help families all over the State of Georgia. He can be contacted directly at Six-Seven-Eight 358-2564 or by Email.

INTRODUCING www.petepearsonlaw.com

It is with great expectations that I introduce my new website – www.petepearsonlaw.com.

It was designed by the guys over at kmdig.com, a creative advertising, interactive, and branding agency.

Aside from the fresh look, the site offers you, as a prospective client, more information about me, my legal services, and even has a link to the attorney fee contract you would sign if you retain me.

On top of that, I have a “NEWS” section that to be completely honest I added because my web designer said it would help with SEO. But since they persuaded me to add it, I will do my best to use it as a tool to benefit potential clients who go online to research legal questions.

I hope you will check it out. And offer me any feedback, positive or negative.

Thank you for reading.

Attorney Pete Pearson


Of all facial injuries, tooth injuries are the most common in children and may also involve the jaw, lips and oral muscles. The most common causes of tooth injuries are falls (day care accidents, playground accidents), followed by automobile accidents (and also bicycle accidents), abuse (battered children), and sports injuries.

I am writing this post to address two questions. First, under what circumstances should a parent talk to a lawyer after a dental injury? Second, what unique considerations are present when a lawyer brings a claim on behalf of a child who has suffered a dental injury (how does it differ from a claim that involves an adult with a similar injury)?


Lawyers are sometimes ridiculed for answering questions with “Well, it depends.” But it really does depend! Ask yourself the following questions:

  • Where did the injury occur? This information may have legal implications – for instance, did the injury occur at your home while your child was under your supervision? Or was your child being supervised at another home or a day care center? Did the injury occur while the child was in a motor vehicle and if so, does the at-fault driver have insurance? In the event the other driver may not have insurance, do you have uninsured motorist coverage that will compensate your child?
  • How did the injury occur? What doctors call the “mechanism of injury.” This may lead to identification of hidden injuries. For example, a chin injury is often combined with crown or crown-root fractures in premolar and molar regions.
  • When did the injury occur? How much time has gone by since your child was hurt? This matters both because it is best to start collecting legal and medical documentation as soon as practicable after an injury and because the more time that passes the harder it gets for your doctor to address the all-important issue of causation (in their records.) Causation has to do with making sure the dental records clearly link the cause of the injury to the injury. You would shocked at how hard some insurance companies work to attack causation by blaming “intervening events” (things that happened to your child after the injury and before he/she was diagnosed with the injury.)

Of course, sometimes it will be obvious you need to talk to an attorney. I am currently handling a case for a little boy that fell while he was at a day care center. The center told the child’s mother that he knocked a tooth out during diaper changing time. What the center did not tell the mother (and a video subsequently revealed) was that the teacher left the boy on a table while taking all the other children in the room out into the hall. The boy did what boys do – he tried to follow and, being alone and unsupervised, fell off the table and his tooth was knocked completely out. In this case there was an attempt to cover up what really happened. Anytime you sense a cover up, it is important to contact an attorney so that a sifting investigation can take place.

In general, if your child was injured and you feel it was due to someone else’s negligence or lack of supervision, you should call me. It costs you nothing to get my opinion and I would like to hear about what happened and talk you through whether you have any legal options.


You already know that baby teeth differ from adult teeth. A child’s mouth will be full of 20 teeth eventually, which is a few less than the 32 adult teeth that come later.

Baby teeth (dentists call them primary teeth) are important to your child’s dental health and not just during the few years before they fall out! They help shape the mouth for the permanent teeth. They help guide the adult teeth into position. If your child loses teeth (or has damaged teeth) the permanent teeth are more likely to overlap or not come in at all (dentists call this “disturbance in eruption”.)

Also, an impact to a baby tooth can lead to the death of a permanent tooth. Under your child’s baby teeth are tooth buds (also called tooth germs). They are the “pre-teeth,” the beginnings of the permanent teeth. They are, in essence, the embryonic structures that will become the adult teeth.

One way traumatic dental injuries differ in children (as compared to adults) is that a knocked out tooth (dentists call this an “avulsed” tooth) typically will not be put back in (called replanting.) This is because attempts to replant a baby tooth can actually damage the permanent tooth that is growing inside of the bone.

Another unique consideration with child dental injuries is that sometimes the dentist can’t do anything for your child right away, particularly in the case of a knocked out tooth in a very young child. In a recent case my client was just 18 months old. The dentist told the parents that they would need to wait until the child was 6-7 years old to see if the permanent tooth would come in normally (the effected tooth was a central incisor and the permanent teeth don’t normally come in until age 6 or 7.) For my clients, presenting their legal claim to the insurance company was complicated by the reality that the future dental expenses were going to be the most significant part of their claim.  I worked with the family and their dentist and was provided with estimates of the cost of future care, which we adjusted upward for the cost of dental inflation over the 5-6 year time frame in question (Did you know there was such a thing? There surely is and the latest government predictions have it running at 3.4% per year.)

Another unique legal consideration is that in order to have a successful claim it may be important to get your child to a pediatric endodontist. Endodontists specialize in saving teeth and choosing one who specializes in pediatric care can be important. It is important to ask your lawyer to “vet” any doctor you are considering. Some doctors are willing to work with your lawyer to document your child’s claim; others are hostile to legal claims. It won’t do to take your child to a dentist that refuses to help your legal advocate.


Trauma that results in tooth injury raises unique and sometimes complex legal considerations. It is imperative to assess whether your lawyer has expertise in handling dental injury claims. If you find yourself in need of such an attorney, I hope you will consider giving me a call. I’d be honored to assist you.


Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with injured children. He is a father to six and lives with his wife and children near Atlanta, Georgia. He can be reached directly at Six-Seven-Eight 358-2564.