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Child Injury – Dog Bite – Owner must take “reasonable steps” if has “superior knowledge”

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(This is the 4th post in a Series of 4 on children and Georgia dog bite law. You may read the first 3 posts here, here and here.)

I told you in my first and second posts on this topic that the traditional rule in Georgia was the “first bite rule” and that rule was often viewed as a “one free bite” rule. I have also discussed how that rule has changed over recent decades.

One rationale behind the traditional “one free bite” rule was that the owner of a dog should not be blamed for an unforeseen and unforeseeable act of an animal. Proof of prior knowledge of the dog’s “vicious propensity” should be required before holding an owner responsible for injuries caused by the animal.

Recent court decisions, while upholding the rationale behind the traditional Georgia rule, have moved toward softening the application of it. Recent decisions have tended to replace the traditional rule with a new rule that places a duty on the owner to take “reasonable steps” to protect the public from a dog if the owner has “superior knowledge” of the dog’s vicious tendency even if the dog has never bitten in the past.

These recent court decisions have focused less on requiring the injury victim to prove a prior similar incident or attack and more on the owner’s knowledge of the dog’s aggressive temperament. Thus in recent years we have seen a relaxing of the traditional requirement that the injured person prove a prior similar incident.

Another avenue injured persons have used to hold an owner liable for injuries caused by a dog is a legal theory called “negligent undertaking.” The reasoning behind this theory is that if an owner voluntarily agrees to restrain a dog and then fails to do so properly and an injury results, the owner can be held liable even if there is no evidence of “vicious propensity or a violation of a leash law or ordinance.

Dog bite cases are very fact specific – by which I mean the outcome depends a great deal on many facts that are discovered after date of the bite itself as the case moves forward. The cases that interpret Georgia’s dog liability statute can be difficult to apply to a given set of facts.

If you have read this series of posts and have questions I hope you will contact me. I can be contacted here, or here, or here.

Child Injury – Dog Bite – Using Violation of Leash Law to Prove Vicious Propensity

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(This is Part 3 in a 4 Part Series on children and Georgia dog bite law. You can read Part 1 here, Part 2 here, and Part 4 here.)

Happily,Georgia dog bite law has grown more favorable to injury victims over the last few decades. In 1985 the Georgia General Assembly (our state legislature) amended the dog liability statute to include the following provision:

“In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash.”

The 1985 amendment relaxed the traditional Georgia rule that the owner or keeper of a dog had to have knowledge of the dog’s vicious propensity. It did not do away with that requirement altogether, however, instead it carved out an exception to it. The law since 1985 has been that if the injured person can show that the owner or keeper committed a violation of an applicable “leash law” than no actual knowledge of vicious propensity is required. Vicious propensity is inferred if the owner/keeper violates the leash law.

Subsequent appellate cases have interpreted the 1985 amendment to apply not only to “leash laws” but also restrictive ordinances that require an owner to keep a dog confined to the property.

The bottom line change with the 1985 amendment? If your child has been bit by a dog and you suspect the owner of keeper of that dog was violating a “leash law” or local restrictive ordinance, contact me so I can research the local leash laws and/or local restrictive ordinances. I can research city and county ordinances to see if (a) a “leash law” was in effect and (b) what the law requires owners/keepers of dogs to do.

Also keep in mind that some parks have rules that require owners/keepers to keep dogs (and cats!) on a leash. Stone Mountain Park, for instance, requires that all dogs and cats be kept on a leash no shorter than 6 feet. So even if the city or county in which your child was injured does not have a leash law, there may be other ways to establish that the owner/keeper had a duty to keep their animal on a leash.

Child Injury – Dog Bites – Georgia’s Misunderstood “One Free Bite” Rule

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(This is Part 2 in a 3 Part Series on children and Georgia dog bite law.You can read Part 1 here, and Parts 3 and 4 here and here)

Georgia’s historic “first bite rule” didn’t mean quite what it sounds like. Though it may sound as if a dog had to have actually bitten a person in the past in order for an owner or keeper to be liable for injuries, that is not how the rule worked. What an injured person had to prove was that the animal had demonstrated a propensity to do the particular act that caused their injury.

The prior incident did not have to involve identical acts as the acts that led to the later injury. But there did have to be evidence of vicious propensity and the evidence that was required was a prior incident or incidents which would put a prudent person on notice to anticipate the event which occurred (the later injury).

Interestingly, if a dog is part wolf or other wild animal, there is a different rule. In that instance there is legal authority for holding the owner or keeper strictly liable – which means the owner/keeper is responsible regardless of the animal’s past history.

Another interesting tidbit is that since a cat is a domestic animal, cat bites or attacks are governed by the same set of rules as a dog.

Now back to discussing dogs! An owner or keeper is not liable if the dog has bitten or attacked a person in the past but that bite or attack was provoked by teasing or other actions that incited the dog to attack. Obviously young children some times do not know how to act around a dog and do things that the dog may respond to with fear.

This Public Service Announcement is a good training tool to use with children and should help them to know what NOT to do when they meet an animal.

Next time I post I will get into the relaxing of the traditional “one free bite” rule both by amendment to the Georgia Dog Liability Statute and case law developments over the last several decades.

Child Injury – Dog Bite

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[This is Part 1 in a 4 Part Series. The other 3 posts in this Series can be viewed here (Part 2), here (Part 3), and here (Part 4).]

If your child has been attacked by a dog and bitten, what are your legal options? How do you know if you need an attorney? I have written a series of 4 posts on this topic to help parents understand the law. I will provide an overview of Georgia law on the liability of “owners and keepers” of “vicious” dogs and tips on how to decide if you need to contact an injury attorney for help.

Historically the rule in Georgia for determining whether an owner or keeper of a vicious dog was legally responsible for injuries caused by their animal was the “first bite rule.” Under that rule an owner or keeper of a vicious dog could ONLY BE HELD LIABLE for a dog attack if the animal had exhibited the propensity to bite or attack prior to the incident in question and if the owner/keeper knew of the dog’s vicious propensity. This rule was understood by many as giving dog owners “one free bite” before they were responsible for injuries caused by their animal.

The historic Georgia rule is still on the law books, though as I will discuss shortly, it has been relaxed somewhat in recent decades. If you are interested in seeing where – you can find it in O.C.G.A. Section 51-2-7.

The “first bite rule” made it quite difficult for victims of a dog bite to recover compensation for their injuries. It was often impossible to prove that the owner/keeper had actual knowledge of the dog’s vicious propensity. It also was often difficult to find information about previous bites and attacks. As a result of the strictness of the “first bite rule” many injury victims went without compensation.

The next post in this series will give a bit more information about the “first bite rule” and then discuss recent cases that have begun to relax the traditional rule, with the result of opening the way for more injury victims to be compensated.

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A word about teaching children about dog bite prevention –

Loving the Law

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It might seem strange to hear that I love the law. I confess it’s true – I do.

Why?

I love that our law provides a way for folks to solve problems without violence. Imagine the alternative.

I love that each of my cases affects me personally. Remember Atticus Finch? While trying to explain to his daughter, Scout, why he is representing Tom Robinson, Atticus says this:

“If you shouldn’t be defendin’ him, then why are you doin’ it?” [Scout is doing the asking]

“For a number of reasons,” said Atticus. “The main one is, if I didn’t I couldn’t hold up my head in town, I couldn’t represent this county in the legislature, I couldn’t even tell you or Jem not to do something again. […] Scout, simply by the nature of the work, every lawyer gets at least one case in his lifetime that affects him personally. This one’s mine, I guess.”

(To Kill A Mockingbird, 9.16-21)

Well, I’m sure I’m not half that attorney Atticus Finch was (even if he is fictional), but I feel that simply by the nature of my work, every case I have affects me personally. And that is a goal of mine. If I represent your child, I want to be changed by that. I want to grow, become a stronger person, and become a better man.

Another reason I love the law is that it allows me to speak truth to power. In most of my cases there is either an insurance company or a large corporation on the other side. They are POWERFUL, far more powerful than you or I are even after we have joined forces. But we have truth. And justice. And the law, which is our tool and weapon, our shield and our sword. I love that. Never underestimate the ability of a lawyer who believes in his client’s cause!

And a final reason for loving the law – my own children. I look with hope to the future. I want them to inherit a world that makes sense (is run by the rule of law). I want them to be safe (lawsuits can make the world safer). I want them to be able to be proud of their Dad, what he does, how he helps, how his clients think of him. That’s so important to me.

And since I mentioned my children, please indulge me by permitting me to shamelessly post a photo, taken recently of my little people –

I know, I know, my little baby girl Emma Sophia is crying. It was the best shot we could get of all them together – and anyways, she is adorable no matter what she is doing.

“Baby Strep” Infection After Birth – Brain Injury

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Group B Streptococcus (also known as GBS or “B Strep”) is a type of bacteria that can be passed from mother to baby during delivery and if not detected and treated early enough can lead to an infection that causes a brain injury. The brain injury can lead to a host of medical issues, including cerebral palsy, spastic quadriplegia, seizure disorders, an inability to swallow, communications deficits, incontinence and permanent pain. Other complications of Group B Strep (“Baby Strep”) infections are sepsis, pneumonia, meningitis, and death (Group B Strep is the most common cause of sepsis and meningitis in the United States during a newborn’s first week of life).

Group B Strep can easily be prevented. It is customary for doctors to run a battery of diagnostic tests prior to delivery, including a test for Group B  Strep. If the bacteria is detected neonatal antibiotics can be prescribed to eliminate it. The cost of the testing is minimal.

If the diagnostic test is not ordered (more common with premature births – this test is typically undergone in last month prior to delivery), there are well settled protocols for observing the infant after delivery to detect Group B Strep infection. The doctors and nurses taking care of your baby are responsible to follow these protocols so they can detect the infection and administer antibiotics immediately. Delay in starting antibiotics can result in catastrophic injuries to a newborn, including severe and permanent brain injuries.

If you feel that the doctors involved with the delivery and post-delivery care of your child negligently failed to recognize and act upon risk factors and signs indicating Group B Strep infection and caused your baby injuries by failing to administer antibiotics – please call me.

The life time costs of caring for a child with a brain injury is daunting. In one recent case the family of a brain injured child was awarded over $29 million in damages for past and future losses and expenses.

Here is one mom’s story of how doctors failed to order the proper diagnostic tests prior to delivery and her baby contracted Group B Strep (GBS) –

And here is a nicely done video that covers the basics of Group B Strep detection and prevention –

Lingual Nerve & Alveolar Nerve Injury To Children During Wisdom Tooth Extraction

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If a dentist is not careful during removal of your child’s lower wisdom teeth, nerve damage can result. Negligent extraction is not the only possible cause of nerve damage, dental anesthetic injections (nerve blocks) are one other cause, but extractions are the most common cause of this injury.

The lingual nerves connect the brain to the sides of your child’s tongue. Damage to these nerves can result in anesthesia (numb tongue), paresthesia (tingling), or dysesthesia (pain and burning) in the tongue and inner mucous membranes of the mouth. An injury to the lingual nerves can also result in the loss of the ability to taste.

The inferior alveolar nerves (sometimes also called inferior dental nerves) connect the brain to the chin, lower lip, and jaw. They can be injured by tooth extractions, root canals, and the placement of implants.

These types of injury may effect your child’s appearance, his/her ability to speak, drink and eat. Loss of sensation in the tongue may make it difficult for your child to know what they are eating (and when it is time to swallow) and may alter how food tastes to your child.

Corrective surgery is available but may or may not be successful. One procedure involves taking a nerve from your child’s foot or ankle to try to repair the damaged oral nerves. If surgical repair fails, your child may be left with permanent nerve damage.

Pediatric dentists/periodontists/oral surgeons should be well versed in the steps they can take to minimize the risk of damaging your child’s lingual and alveolar nerves. This video discusses the duty of the surgeon to reduce the risks to your child –

Stevens-Johnson Syndrome and Toxic Epidermal Necrolysis in Children

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Julie, a SJS survivor and advocate, contracted SJS when she was 11 months old.

You can read more of Julie’s story (written by her Mom) here –

Julie’s Story

Stevens-Johnson Syndrome (SJS) and Toxic Epidermal Necrolysis (TEN) are life-threatening conditions that sometimes are caused by a drug reaction.  SJS and TEN can involve a severe adverse reaction to medication. As Julie says, anyone can get it in reaction to any drug, even Over The Counter (OTC) medications like children’s motrin/ibuprofen.

Holding a drug manufacturer legally responsible for putting a dangerous drug on the market (or failure to adequately warn) is challenging. Consider the case of Sabrina Brierton Johnson, whose family unsuccessfully sued the manufacturer of Children’s Motrin, after SJS blinded her. Contacting the right attorney (and striking the right jury) is everything.

If you think your child may have a claim against a manufacturer of a drug responsible for causing your child to contract SJS or TEN, let’s talk about what would be involved in a Stevens-Johnson or Toxic Epidermal Necrolysis lawsuit.

Child Sexual Abuse – Holding Predators Accountable

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Sexual assaults on children often go undiscovered and unreported until long after the applicable statute of limitations has expired. Pedophiles and pederasts are masters of manipulation and sometimes the child does not even know that what has happened to them is wrong.

The perpetrators of child sexual abuse try to shroud their sins until it is too late for the parents of the child to take legal action. Perpetrators usually enjoy a position of trust and authority and use their position to hide the evidence of their wrongdoing. Examples of settings within which such abuse takes place:

  • Churches (clergy sexually abusing children in their church)
  • Schools (teachers sexually abusing children in their classes)
  • Sports Teams (coaches sexually abusing children on their teams)
  • Doctors/Hospitals (doctors/nurses sexually abusing children under their care)
  • Boy Scouts/Girl Scouts (scoutmasters/troop Leaders sexually abusing children in their pack/troop)
  • Day Care Centers (child care providers sexually abusing children they care for)
  • Homes (relatives sexually abusing children)

This report describes how one such predator, a pediatrician who sexually abused child patients, abused scores of children before getting caught –

Child sex abuse is disturbingly common. The younger the child the less likely the abuse will be reported. Parents who do discover signs of abuse may feel they lack the power or resources to do anything about it. The perpetrator may be someone the parents knew and trusted. It may be a close relative.

Reporting sex abuse to the police does not always result in justice for your child. Sometimes civil litigation against a sex offender is an additional way to punish and deter the abuser from harming more children and to recover money to pay for the help you and your child need.

Deciding whether to bring a civil claim against the person who sexually abused your child is not easy. Much thought goes into such a decision. Getting counsel from an attorney about your legal options may be a good place to start. If your loved one has suffered at the hands of a sexual predator and you are struggling with what you can do, please call me. A legal claim may provide much needed compensation to pay for medical treatment and counseling for you and your child.

Childbirth Injury – Shoulder Dystocia

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Shoulder Dystocia is a medical emergency that your doctor or midwife must manage by following the proper sequence of obstetrical maneuvers. It occurs when the baby’s head is delivered but the shoulders get stuck inside the mother’s body.

Serious injury or death can be the result if proper steps and proper sequencing are not observed. Failure to properly manage this medical emergency can result in damage to the brachial plexus nerves and lead to the following permanent injuries:

  • Klumpke Paralysis (or Klumpke Palsy) – your baby may have a “claw hand” due to the paralysis of the muscles of the forearm and hand.
  • Erb’s Palsy – paralysis of the arm which may lead to stunted growth and cause that arm to be smaller than your baby’s other arm. Your baby may not be able to move the effected arm and surgery may be necessary in order to regain use of that arm.
  • Fetal Hypoxia – Your baby does not get enough oxygen during delivery. This can lead to cerebral palsy or death

Your doctor or midwife should have been trained in managing this medical emergency. If you suspect they were not properly trained or failed to follow their training and your baby was injured or dies, call me to discuss your legal options.