INJURY SETTLEMENT RELEASE RESCISSION IN GEORGIA (Is the Release I signed Final?)

Your child has been seriously injured. The first few days are a blur of fear, stress, and struggle to get your mind around what the doctors have told you about your child’s likelihood of recovery. You and your family are worried, upset, and naturally enough, quite vulnerable.

Into that perfect storm sails an insurance representative for the at-fault party – the insurer for the person or entity that caused your child’s injury. With soothing words and expressions of sorrow and sympathy the insurance company convinces you they are here to help. Representations are made, money is discussed, and it all sounds like a distant echo to you because of your shock and grief.

But somehow you end up signing a document that settles your child’s injury claim for a few thousand dollars. The representative is so nice and seems so much to want to help. You just want them to go away and leave you and your suffering child alone. You don’t realize it at the time but you are highly suggestible and easy prey for the insurer.

A few days or weeks later, as your child’s medical bills continue to climb, you come to your senses and realize you have been duped. But you have already signed away your rights, or so you fear.

Sound familiar? This is an all too common scenario, I’m afraid.

What can you do? What can a parent of an injured child do if you signed an injury settlement release and later discover that your child’s injuries are worse than you could have imagined?

If you find yourself in this situation, this post is for you. You need to know that legal options do exist. You need to know that settlement releases are governed by contract law. You need to determine whether an enforceable contract came into being when you signed. You need to assess if grounds exist for undoing the contract (contract rescission). You need to talk to an attorney as soon as possible.

In this post I will briefly describe a few of the ways an attorney might succeed in having a settlement release set aside.

There are two ways to come at this legal problem. Keeping in mind that a release is a contract, the first is to ask whether the parties (you and the insurance company) agreed on all material terms of the settlement such that an enforceable contract came into being? Or were essential terms left unaddressed, meaning there was no “meeting of the minds” (a meeting of the minds is an essential element of contract formation). The second is, assuming an enforceable contract did come into being, are there grounds for undoing (rescinding) the agreement?

ARGUE WHAT YOU SIGNED DOES NOT CONSTITUTE A LEGALLY ENFORCEABLE CONTRACT

Let’s take a look at what Georgia Courts have said about the first of these ways of coming at this problem.

Importantly, the Courts often start their analysis of this first issue by noting that it is the policy of the law to encourage compromise and settlement. What this means is that the Courts favor ending conflicts without resort to litigation and will enforce settlement agreements whenever possible, if they were fairly made and don’t contravene any public policy of the State of Georgia. The Courts will enforce a settlement agreement if it can be shown there was a) an offer, b) an acceptance and c) a “meeting of the minds.”

Offer and acceptance are terms that may intuitively make sense to you.

But just what is a “meeting of the minds”? Unfortunately there is no magic formula. Deciding whether a “meeting of the minds” existed at the time of the signing of a release is a fact-specific inquiry that defies generalization. The starting point for this inquiry is to have an attorney review the settlement release. He or she will review to determine if the parties came to a clear agreement as to all essential terms and whether the agreement left any material terms open for future agreement. What constitutes “essential” and “material” are issues best left to your counsel.

Let’s now take a look at the second way of coming at this legal problem – rescission.

ARGUE THE CONTRACT SHOULD BE RESCINDED

What is contract rescission? It is a way of undoing a contract, either by proving that there was some mistake or unfairness in the deal.

What are some possible grounds that might form the basis for a successful attempt to rescind a settlement release? Let me list some grounds:

  • Overreaching by the insurance company in the way they obtained the release from you

Examples would include:

-an insurance company that takes advantage of a parent whose mental state made them temporarily incompetent to understand or execute a release;

-an insurance company that makes dishonest representations about the extent and severity of the child’s injuries;

-an insurance company that deceives the parent about the legal consequences of signing a release;

-an insurance company takes advantage of a parent’s poverty and inability to pay for the child’s medical care to convince them to sign a release;

-an insurance company gives a family such an inadequate amount that it shocks the conscience of the Court

  • Misunderstanding by the parent as to the nature and effect of the release

Examples:

-The parent who signed can’t read the language in which the release is written (this could be due to illiteracy or due to the release being offered in a language other than the parent’s native tongue.)

-An insurance company offers a parent a release to sign that is limited in scope (to just to property damage to a vehicle, for instance) and after the parent agrees to sign substitutes a different and broader release.

  • Mistake of fact as to extent of injury

This is the most difficult kind of grounds to prove. This has to do with a scenario where a parent, after signing a release, finds out that the severity of the child’s injuries are more serious than previously known.

The legal path to successfully setting aside a release on these grounds has to do with something the law calls “mutual mistake”. Generally speaking if just one party to a settlement is mistaken about the extent of injury that will not suffice for undoing the contract. But if it can be shown that both parties were mistaken about the extent of what was being released, it may be possible to rescind the agreement.

As you can imagine, mutual rescission requires the cooperation of the insurance company and normally they are not going to be interesting in undoing a release, since the release is what protects the insurance company from taking future responsibility for your child’s injury. But, why not ask?

I have encountered one situation where an adjuster, when confronted with the severity of a child’s injuries, felt that mutual rescission was appropriate.

But the vast majority of the time parents will find that the insurance company will have no interest in reopening a claim it thought closed. What then?

Things get very technical from here on in. Your attorney needs to parse the release language. Does the release language address “all claims for injuries” or “claims for known and unknown injuries” or just what does the language say? Sometime the legal meaning of the language varies from a common sense reading.

OTHER LEGAL STRATEGIES

Here is another possible way to attack an unjust release:

O.C.G.A. Section 33-7-12(a) states that a purported settlement is null and void if the third party (the claimant or Plaintiff) is not provided with a written notice informing the third party of the lack of consent of the insured and that the insured is not thereby precluded from the further assertion of claims against the third persons. The statute states this written notice must be given to the Plaintiff before the settlement occurs or the settlement is of no effect.

O.C.G.A. 33-7-12. Effect of provision in policy permitting insurer to settle or compromise claims upon rights of insured and of third persons; settlement of claims by third persons

(a) Any provision in a liability policy of insurance which provides that the insurer shall have the right to compromise or settle claims of third persons against the insured without the consent of the insured shall be deemed to create, as between the insurer and the insured, the relationship of an independent contractor so that the insured shall not be precluded from asserting a claim or cause of action against third persons, notwithstanding the settlement by the insurer of such claims of third persons, unless the insured shall previously have consented in writing to relinquish his claim or cause of action against third persons, provided in all cases where the insurer shall settle the claims of third persons against the insured without written consent that it shall be the duty of the insurer to inform the third persons in writing of the lack of consent of the insured and that the insured is not thereby precluded from the further assertion of claims against the third persons before taking from the third persons any release, covenant not to sue, or other settlement; and upon the failure of the insurer to give the notice to the third persons of the lack of consent of the insured, the release, covenant not to sue, or other settlement shall be of no effect, null, and void. (Emphasis supplied).

So – take a look at the release you signed. Does it contain language like what you see above? If not, your attorney may be able to get the release set aside.

And here is another strategy:

If you received more than $15,000.00 from the insurance company and the settlement was not submitted for approval to a court, no legally binding settlement has occurred.

O.C.G.A 29-3-3 provides:

(a) For purposes of this Code section, the term ‘gross settlement’ means the present value of all amounts paid or to be paid in settlement of the claim, including cash, medical expenses, expenses of litigation, attorneýs fees, and any amounts paid to purchase an annuity or other similar financial arrangement.

(b) If the minor has a conservator, the only person who can compromise a minoŕs claim is the conservator.

(c) Whether or not legal action has been initiated, if the proposed gross settlement of a minoŕs claim is $15,000.00 or less, the natural guardian of the minor may compromise the claim without becoming the conservator of the minor and without court approval. The natural guardian must qualify as the conservator of the minor in order to receive payment of the settlement if necessary to comply with Code Section 29-3-1.

(d) If no legal action has been initiated and the proposed gross settlement of a minoŕs claim is more than $15,000.00, the settlement must be submitted for approval to the court.

(e) If legal action has been initiated and the proposed gross settlement of a minoŕs claim is more than $15,000.00, the settlement must be submitted for approval to the court in which the action is pending. The natural guardian or conservator shall not be permitted to dismiss the action and present the settlement to the court for approval without the approval of the court in which the action is pending.

(f) If the proposed gross settlement of a minoŕs claim is more than $15,000.00, but the gross settlement reduced by:

(1) Attorneýs fees, expenses of litigation, and medical expenses which shall be paid from the settlement proceeds; and

(2) The present value of amounts to be received by the minor after reaching the age of majority is $15,000.00 or less, the natural guardian may seek approval of the proposed settlement from the appropriate court without becoming the conservator of the minor. The natural guardian must qualify as the conservator of the minor in order to receive payment of the settlement if necessary to comply with Code Section 29-3-1.

(g) If the proposed gross settlement of a minoŕs claim is more than $15,000.00, but such gross settlement reduced by:

(1) Attorneýs fees, expenses of litigation, and medical expenses which shall be paid from the settlement proceeds; and

(2) The present value of amounts to be received by the minor after reaching the age of majority is more than $15,000.00, the natural guardian may not seek approval of the proposed settlement from the appropriate court without becoming the conservator of the minor.

(h) If an order of approval is obtained from the judge of the probate court based upon the best interest of the minor, the guardian is authorized to compromise any contested or doubtful claim in favor of the minor without receiving consideration for such compromise as a lump sum. Without limiting the foregoing, the compromise may be in exchange for an arrangement that defers receipt of part or all of the consideration for the compromise until after the minor reaches the age of majority and may involve a structured settlement or creation of a trust on terms which the court approves.

(i) Any settlement entered consistent with the provisions of this Code section shall be final and binding upon all parties, including the minor.

So – if the insurance company paid you more than $15,000.00 and did not submit the settlement for approval to a court, you have very good odds of getting the release set aside as unenforceable.

Incidentally, you can read up on court approval of child settlements here.

CONCLUSION

There is hope! If you find yourself in a situation where an insurance company has unfairly persuaded you to sign a release, please contact me. It will cost you nothing to discuss your options with me.

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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. 

VACCINE INJURY TO CHILDREN IN GEORGIA – LEGAL CLAIMS

What should a parent do if they know (or suspect) their child has been injured by a vaccine?

I will try to answer that question below, along with giving a fly-over of vaccine injury law as it exists today.

For those who lack the time to read all of what I have written, the Cliff’s Notes version of “what to do” if your child has been injured by a vaccine is:

  • Get your child to a doctor quickly who can diagnose the onset
  • Ask that doctor to document in your child’s medical chart the nature of the illness, disability, injury or condition
  • Make sure your doctor documents the time period for the appearance of the first symptom after vaccine administration (this is crucial)
  • Call a lawyer like me who can help you understand your legal options

A Little History

Here is a brief history of the law in the U.S. relative to individuals harmed by vaccines. What you will notice is that that this history lesson demonstrates that we have arrived at a place where there is a prejudice built in to our system against families who seek compensation for injuries caused by vaccines. The federal system that handles these claims is Byzantine. The bottom line? You’ll want help if you want to succeed.

If you go back 60 years or so in U.S. law, you will find the Cutter Incident.

The Cutter Incident and Resulting Lawsuits

Vaccine injury victims had few options before an important court case in the 1950s. Back in 1955 200 people were paralyzed and ten died after contracting polio from a polio vaccine. This came to be known as the Cutter Incident, because Cutter Laboratories was the manufacturer of one of the at-fault vaccines. Many injured people and their families filed lawsuits against vaccine manufacturers. In one case involving Cutter Laboratories the California Supreme Court ruled the company was financially responsible for the harm the vaccine caused. This was a significant ruling in U.S. history of vaccine injury law because it paved the way for many similar awards in other legal cases. No federal system existed (at that time) and no centralized uniform standards existed for determining when a vaccine caused an injury. Instead, juries decided these matters on a case by case basis.

DPT Lawsuits

Through the 1970s and 1980s, the number of lawsuits brought against vaccine manufacturers increased, and manufacturers made payouts to individuals and families who suffered vaccine injuries, particularly from the diphtheria-pertussis-tetanus (DPT) immunization.

The NCVIA

Pharmaceutical companies responded to the rise in injury related payouts by claiming they were being put out of business. They characterized the environment as one of increasing litigation, mounting legal fees, and large jury awards, and warned that if trends continued the U.S. might be left without any manufacturers to provide vaccines.

So in October 1986, the U.S. Congress rode to the “rescue” of Big Pharma. The National Childhood Vaccine Injury Act (NCVIA) ( I will refer to it as the Vaccine Act) was passed into law. Essentially, Big Pharma got immunity from lawsuits and injured people got a new federal bureaucracy in place of their right to a jury trial.

Or to put it differently, prior to October 1, 1988 (the effective date of the Vaccine Act), an individual could pursue an unrestricted lawsuit against a vaccine manufacturer if they or their child was injured by a vaccine. Since that date you are required to apply for compensation from the federal government prior to pursuing a lawsuit.

Although claims under the Vaccine Act were supposed to be handled “quickly, easily and with certainty and generosity” (according to a House report accompanying the 1986 legislation) many claims have taken many years – some more than 10 years! — to be resolved. Jarndyce v. Jarndyce comes to mind. Even the U.S. Health Resources and Services Administration says it takes two to three years to adjudicate a claim after it is filed.

So let’s consider the fairness of the 1986 Vaccine Act.

I have already mentioned that parents of vaccine injured kids for all practical purposes have lost their right to a jury trial and instead now are at the mercy of a federal bureaucracy. That is not progress. But one would expect that the vaccine manufacturers, the corporations who create the products that sometimes harm children, are held accountable in this federal scheme, right?

Not hardly. The National Vaccine Injury Compensation Program (NVICP) (that is the claims system set up by the Vaccine Act) is funded by a tax of $0.75 per vaccine dose, which is collected from vaccine manufacturers by the U.S. Department of the Treasury. But the manufacturers don’t foot the bill. The system is funded by a charge on each dose of vaccine sold. Doctors pay the tax initially when they purchase the vaccines for sale to their patients, but this is passed along to the parents of the child.

So not only are the vaccine manufacturers shielded from jury trials by the Vaccine Act, they are also not responsible for paying one penny of the claims filed as a result of their products. You are!

The NVICP Claims Process

So how does the claim process work? Well, that’s where the Byzantine bit comes in.

Under the NVICP, those with a vaccine injury from a covered (note that not all vaccines are covered by the program) vaccine cannot sue a vaccine manufacturer without first filing a claim with the U.S. Court of Federal Claims. There is a “vaccine injury table” that lists injuries that are presumed to be caused by vaccines but you must first show you meet the table’s time periods.

For instance, the table says that if your child is immunized for Measles, Mumps and/or Rubella and goes into anaphylactic shock within 4 hours or develops encephalopathy (or encephalitis) within 5-15 days, that is presumed compensable. Essentially, to show a “table injury” you have to meet one of the listings in the table and show that the injury’s onset fell within the time period determined by the government.

If your child’s injury does not meet one of the listings in the “vaccine injury table” you must prove that the vaccine caused the injury using medical records and/or expert witness testimony. In the absence of a “table injury” you must show by a preponderance of the evidence something called “causation in fact”, which consists of the following three elements:

  1. medical causation connecting the vaccination and the injury;
  2. a logical sequence of cause and effect showing that the vaccination was the reason for the injury; and
  3. a showing of a proximate temporal relationship between vaccination and injury

Herein lies the rub. If you study the table you will soon notice that very few injuries are listed. And if you study the “Qualifications and Aids to Interpretation” that follow the table you will find mice type replete with exceptions and exemptions and lots of reasons why your claim may not be compensable after all.

The U.S. Department of Health and Human Services publishes the tables here.

So the way the claims process really works is that you need a) to lawyer up and b) get ready to head to Washington (that is where the tribunal sits that hears these claims – the United States Court of Federal Claims). The odds of your child’s injury meeting one of the listings on the injury table are remote and you will most likely need to involve a lawyer in order to prove the vaccine in question caused your child’s injury.

Here are a few examples of federal court rulings that have held that vaccines have caused injuries:

  • A ruling holding that the tetanus vaccine caused a particular case of optic neuritis
  • A ruling holding that the MMR vaccine caused fibromyalgia
  • A ruling holding that the Hib vaccine caused transverse myelitis
  • A ruling holding that hepatitis B vaccine caused Guillain–Barré syndrome, chronic demyelinating polyneuropathy, and multiple sclerosis.
  • A ruling that a combination of DTaP, Hib, MMR, varicella, and inactivated polio vaccines caused  autistic-like symptoms after being received as a series of vaccines in a single day (to the best of my knowledge this is the only ruling admitting a connection between vaccines and autism. There are nearly 5000 other families who have made similar claims but to no avail.)

I realize I am painting a pretty bleak picture of how the claims process works. That may be in part due to my conviction that the American people ought not to be denied their right to a jury trial.  Or my views on Big Pharma’s strangle-hold on our politicians. But I think I’m giving you an honest assessment and perhaps one that you will not receive from some other attorneys (who might not want to bite the hand of the system that feeds them). I think you need to know the truth of why the government treats vaccine injured people the way they do.

It may be helpful also to know that compensation payments from NVICP averaged $782,136 per successful claim through 2011. Attorney fees and costs are NOT PAID BY YOU, even if your claim is unsuccessful. Attorney fees and costs are paid directly by the NVICP trust fund.

You should know that compensation for a death resulting from vaccination is capped at $250,000.

The system also will pay for past and future unreimbursed medical expenses, custodial and nursing home care; up to $250,000 for pain and suffering; and loss of earned income.

Yes, you read that right. The system places a top value of $250,000 for the value of the life of a child killed by a vaccine. Or $250,000 for the value of a child’s pain and suffering who has been severely injured by a vaccine. That is perversely low. But you need to know what is achievable under current law.

As of December 1, 2011, the program had awarded $2.35 billion in 2,810 separate claims, including compensation for 390 deaths.

As of May 2013 the program’s trust fund (that is where the money they have collected from the $.075 surcharge per vaccine sold sits) is approaching $4.0 billion.

Summary of the Federal System

To recap, the Vaccine Injury Compensation Program (VICP) was “established to ensure an adequate supply of vaccines, stabilize vaccine costs, and establish and maintain an accessible and efficient forum for individuals found to be injured by certain vaccines.” When you look closely, however, you discover that what this really means is that the program has been put into place to protect vaccine manufacturers and NOT to protect the interests of those injured by vaccines.

At the time of the law’s creation in 1986, Congress said they were committed to setting up a fair, expedited, non-adversarial, less traumatic, less expensive no-fault compensation mechanism alternative to civil litigation.

Yet obtaining compensation has become a highly adversarial, time-consuming, traumatic and expensive process for families of vaccine injured children, and far too many vaccine victims have been denied compensation. Meanwhile, vaccine makers and doctors have enjoyed liability protection and dozens of new vaccines have been added to the childhood vaccine schedule.

Many parents believe it would be more just to return to a jury trial based system without restrictions on suing vaccine manufacturers and doctors for injuries and deaths their children suffer after receiving federally recommended vaccines. Yet under current law the federal government first recommends certain vaccines and then grants immunity to the manufacturers of those vaccines.

Is the law in Georgia more favorable? Can I bypass the federal system and bring my child’s claim under Georgia law?

Oh I wish it were so. For one brief moment in time, it was.

There was a beautiful (I can think of no better word) 2008 Georgia Supreme Court opinion that held that Congress never intended to shield vaccine manufacturers from ALL liability for vaccine injuries and deaths when it could be demonstrated that a safer product could have been marketed.

In American Home Products v. Ferrari (2008), the Georgia justices unanimously held that the National Childhood Vaccine Injury Act does not give a vaccine manufacturer immunity from vaccine injury lawsuits if it can be proven that the company could have made a safer vaccine.

The Court wrote that there is no evidence that “FDA approval alone renders a vaccine unavoidably safe” and said “We hesitate to hold that a manufacturer is excused from making changes it knows will improve its product merely because an older, more dangerous version received FDA approval,” adding that to do so would have “the perverse effect” of granting complete immunity from liability to an entire industry and the Court concluded that “in the absence of any clear and manifest congressional purpose to achieve that result, we must reject such a far-reaching interpretation.”

The Court held that if vaccine injuries could have been avoided by a “feasible alternative design” (of the vaccine) injury victims should be able to seek compensation in the “tort system” (jury trial) not the “compensation system” (the federal VICP). In one wonderful sentence the Court wrote that: “Accordingly, we must not ‘overstate the degree of uniformity and centralization that characterizes’ the Vaccine Act.”

A Court that recognizes the problem with too much centralized government control over matters that should be left to the people (through jury trials). What a breath of fresh air.

But In 2011 the U.S. Supreme Court nixed the Georgia Supreme Court’s decision in the Ferrari case. The U.S. Supremes wrote that the Vaccine Act “preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek compensation for injury or death caused by vaccine side effects” and vacated the Georgia decision. So all of the common sense contained in the Georgia Supreme Court’s opinion has been thrown aside and the law of Georgia is back in lock step with the federal system.

Conclusion

If your child has suffered a serious injury from a vaccine – death, life-threatening illness, hospitalization, permanent disability or a birth defect, would you please call me? Even if you do not hire me, I would like to help get you pointed in the right direction.

Thank you for reading.

Sources:

http://www.historyofvaccines.org/content/articles/vaccine-injury-compensation-programs

http://www.hrsa.gov/vaccinecompensation/vaccinetable.html

http://en.wikipedia.org/wiki/Vaccine_court

http://vaers.hhs.gov/index

http://articles.mercola.com/sites/articles/archive/2008/12/13/why-vaccine-injured-kids-are-rarely-compensated.aspx

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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. 

CHILD BIKE INJURIES IN GEORGIA

More children are struck by vehicles while riding their bicycles during the summer months than at any other time of the year.  It’s not just that school is out during summer – the longer summer days are the main culprit. The longer the day the longer the children stay out riding.

Child bike injury legal claims are a specialized type of case. To name a few of the tricky issues that can arise: Georgia’s dart-out statute, the tender years doctrine, parental immunity, and coordinating insurance coverage. Sorting out these complicated issues and putting together a strategy that results in a successful resolution of your child’s injury claim requires the careful attention of your attorney.

Here is the # 1 legal principle in this area – Drivers owe children a duty to see them. There is some very helpful law on this point in the State of Georgia, starting with O.C.G.A. Section 40-6-93, which reads as follows:

“Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person.”

Georgia drivers owe “any child” a duty to avoid colliding with them when they are “upon any roadway.”

If your child has been injured while riding a bike and you believe someone else was at fault, please call me. The initial phone consultation is free and if you need to hire me, I work on a contingency fee basis (which means you don’t have to pay me anything yourself – I am paid at the end of the case out of the settlement).

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

Child Drowning Death or Injury – Legal Claims

Summer is near and many public and private pools are being prepared for the swim season. If children are not properly supervised at the pool, summer-time fun can quickly turn tragic.

Drowning is the leading cause of injury death for children 1 to 4 years of age in the United States. 

Top Causes of Injury Death to Children - 2009

Child Death Injury Drowning 2000-2005

Many of these injuries and deaths are foreseeable, controllable, and preventable. The tragic impact that the death (or injury) of a child brings to a family can often be prevented if the owner of the pool follows a few simple safety rules.

What are the standards and rules by which a owner or operator of a pool must abide?

The answer to that question is complicated. There isn’t a published “list” of all safety rules that apply. And the standards/rules may vary depending on the location and type of the pool. This is why you need a lawyer to research what standards/rules apply and how to best present your claim to the insurance company or jury.

One body of regulations that relate to pool safety can be found in Chapter 290-5-57 of the Rules of the Georgia Department of Human Resources Public Health. These “pool rules” contain a variety of standards that may assist your attorney in identifying what the owner/operator of the pool in question failed to do that led to your child’s injury. For instance, the regulations address such matters as diving boards, jump boards, beginner’s areas, decks, bather load limits (the maximum number of swimmers that can safely be allowed in the pool at one time), and required inspection reports.

Another source of duties for pool owners/operators are city and county ordinances. Those need to be identified and researched by your attorney and the standards contained in those ordinances will vary from jurisdiction to jurisdiction.

Another important set of standards/rules is what is known as the “standard of care” for lifeguards. If a lifeguard was on duty at the time of the drowning or injury to your child there needs to be an investigation of whether that guard (or the guards if there was more than one) were properly trained, certified, and whether their performance of their duties on the day of the drowning met the “standard of care.”

The most basic applicable lifeguard standard of care involves a “two-fold duty” (1) to observe swimmers for signs of distress, and (2) when distress is discovered, to attempt a reasonable rescue. The issue in many cases is whether the lifeguard should have discovered any signs of distress prior to the drowning.

Other duties on the lifeguard may exist if the owner/operator of the pool created written standard operating procedures which the lifeguard was required to follow. If these procedures were not followed this will be additional evidence that will help your attorney prove that the negligence of the lifeguard was the cause of the drowning.

This is a short PSA reminding everyone that drowning is the leading cause of injury death to children ages 1 to 4 and that we all need to be aware and do all we can to prevent these tragedies –

Sources:

Centers for Disease Control and Prevention / CDC Vital Signs: Child Injury (2009 statistics)

Centers for Disease Control and Prevention / CDC Childhood Injury Report (2000-2005 statistics)

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

Public School Injury Law In Georgia

If your child has been hurt while at school and you are considering bringing a claim, you need to know what you are up against.

First and foremost, you need to know that the doctrine of Sovereign Immunity (or “Government Immunity”) protects public (but not private) schools from most lawsuits. 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.

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.

There are narrow exceptions to the Georgia rule. For instance, you generally can bring a claim if your child is injured in an automobile accident caused by a County employee. There is a statute, O.C.G.A. § 33-24-51, which allows a waiver of sovereign immunity when a county purchases liability insurance for the negligent use or operation of a government owned motor vehicle. So if your child has been hurt in that manner, you are protected.

But outside the motor vehicle accident injury context, the law is quite unfavorable to injured children and their families. Let me give you some examples drawn from legal cases that have been decided in Georgia Courts.

Example # 1

In a case decided in 2003, a ten year old girl was killed in an accident at her elementary school. Her first grade teacher was directing her class in the making of posters. The teacher sent the girl to get some paper from a large roll in the school storage garage.

The ten year old went to the garage and tried to get the paper off of a large, heavy, eight-foot high roll of paper which was standing upright in the storage garage. In the process, the roll fell onto her and killed her.

The Court determined that the school teacher had official immunity and upheld dismissal of the wrongful death claim.

Example # 2

In a case decided in 2010, an eight grade boy suffered an eye injury during a science experiment conducted under the supervision of his teacher. The school had a written eye protection policy that specifically told teachers to require students to wear eye protection at all times when participating in or observing any such experiments. The teacher did not enforce the policy.

The experiment in question consisted of “launching” a two-liter plastic soda bottle by means of water and air pressure. The soda bottle, containing water, lifted off the launch pad when air was pumped into the bottle and the U-shaped pin holding the bottle in place was removed. The eighth grade boy was struck in the eye by the metal pin when another student removed the pin by pulling on the string attached to the pin in order to launch the bottle.

Despite the fact that the teacher failed to follow the written eye protection policy, the Court determined that she was entitled to official immunity and shielded the teacher from legal liability.

Example # 3

In a case decided in 2007, a 14 year old freshman girl was repeatedly sexually molested by an employee of a high school in Cobb County, Georgia. The employee had previously sexually molested a different girl while employed by the same high school. School officials had investigated the previous molestation but did not report the acts to child welfare authorities.

Instead school officials had delivered a memo to the employee which stated that his employment would continue on a probationary basis and laying out certain future conditions for his continued employment.

Obviously the memo failed to prevent the employee from acting out again and for about 9 months the employee actively molested the 14 year old girl.

The girl’s parents brought suit against the school officials who had covered up the molestation and permitted the molestor to continue to have access to children.

Yet the Court determined that the school officials had official immunity and could not be sued.

I could give you many more examples of cases where school teachers and officials were negligent and caused harm to children but faced absolutely no legal accountability.

In one recent nationwide study of school liability for injury to school children, the author concluded that in almost two thirds of the cases studied, the school district won conclusively. The injured student won conclusively in less than one tenth of the cases. Government and official immunity was the most prominent factor (46 percent) in district-favorable outcomes.

Here is a graph showing the distribution of outcomes (from the nationwide study) –

School Liability

Why? Why have so many Courts decided against the rights of school children, and in favor of protecting state officials?

To adequately answer that question, I have to get a little technical. So please bear with a little legalese for a moment. I’ll try and translate a bit further on in the post.

If you read the Georgia cases on school injury liability you’ll find the rationale behind the decisions are about as clear as mud.  You’ll find that under Georgia law, a suit against a public officer acting in his or her official capacity will be barred by official immunity unless the public officer (1) negligently performed a ministerial duty, or (2) acted with actual malice or an actual intent to cause injury while performing a discretionary duty. In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury.

So essentially Georgia Courts have said that public officials’ acts (or failure to act) fall into one of two categories, something called “ministerial” and another category called “discretionary.”

What’s the difference between the two? To be honest, I don’t always know. The cases don’t always agree with one another on how to tell the two apart and the difference between the two is razor thin often times.

The cases define a “ministerial” act as 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.

Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a “ministerial” duty on the part of the official to perform the specified task. Happoldt v. Kutscher, 256 Ga.App. 96 (1), 567 S.E.2d 380 (2002). See also Standard v. Hobbs, 263 Ga.App. 873(1), 589 S.E.2d 634 (2003) (“when ‘a governmental department creates its own policy requiring certain actions under certain situations, then the actors for that department have a ministerial duty to follow the policy.’ ”). In order for the written policy to impose a ministerial duty, the policy must mandate simple, absolute, and definite action and require the execution of a specific task without any exercise of discretion. McDowell v. Smith, 285 Ga. at 593-594, 678 S.E.2d 922.

In the following cases, written policies were ruled to require ministerial acts because the policy clearly set out the factual situation that required the ministerial act and gave the public official no discretion. (when a phone call or facsimile transmission requests the early release of a child from school, the written policy requires the school employee to follow certain procedures to authorize the child’s release) Meagher v. Quick, 264 Ga.App. 639, 643, 594 S.E.2d 182; (when a police officer responds to a call reporting suspected family violence, the written policy (OCGA § 17-4-20.1(c)) requires the officer to complete a written family violence report) Nelson v. Spalding County, 249 Ga. at 336, 290 S.E.2d 915; (when a traffic sign is in need of placement or replacement, the written policy requires Nelson to do so upon being notified of the need) Wanless v. Tatum, 244 Ga.App. 882, 884, 536 S.E.2d 308 (2000); (when a citizen lodges a complaint, the written policy requires the employee receiving the complaint to make a written record of it and for the complaint to be investigated) Lincoln County v. Edmond, 231 Ga.App. 871(2), 501 S.E.2d 38 (1998).

As you can see, only one of these cases has to do with a school.

A “discretionary” act, on the other hand, 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.

For examples of cases in which Georgia Courts have determined that the school official’s task of supervising students was a discretionary action, see Payne v. Twiggs County School Dist., 232 Ga.App. 175, 177(2), 501 S.E.2d 550 (1998) (alleged failure to enforce policy prohibiting students from carrying weapons on school property); Perkins v. Morgan County School Dist., 222 Ga.App. 831, 835(2), 476 S.E.2d 592 (1996) (alleged failure to enforce policy governing early dismissal of students); and Wright v. Ashe, 220 Ga.App. 91, 93-94, 469 S.E.2d 268 (1996) (alleged failure to enforce policies prohibiting students from leaving school and governing students’ use of cars on campus and class attendance).

If an act is deemed “ministerial” a school official can be held liable for failing to perform that act or negligently performing it.

If an act is deemed to be “discretionary” a school official is immune unless the acts in question were undertaken with actual malice, which requires a deliberate intention to do wrong.

The general duty of teachers to monitor, supervise, and control students has been held by Georgia Courts to be a discretionary action which is protected by the doctrine of official immunity.

So, in theory any time an injured child can show (through counsel) that they were hurt by a the negligence of a school official in the course of “ministerial” act, that child (and their family) can bring a claim and get heard on the merits.

But, in reality, the Georgia Court of Appeals has observed that it’s a rare thing for the Courts to treat an act as “ministerial”. Instead there has been case after case after case where the Courts have categorized negligent acts as “discretionary”. And as soon as the act is considered “discretionary”, the case is all but over for the injured child.

In fact, I think the observation by the Court of Appeals is so remarkable and noteworthy, that I’m going to quote it here (as reported by the Georgia Supreme Court):

“Moreover, the Court of Appeals conducted a thorough review of recent Georgia decisions and found that ‘a de facto absolute immunity for school employees [cits.] has developed gradually across the last decade. Not one recent case exists in which the Georgia courts have found a ministerial duty on the part of a school employee.” Smith v. McDowell, supra at 734, 666 S.E.2d 94.” McDowell v. Smith 285 Ga 592, 678 S.E. 2d 922, 925 (Ga Supreme Court, 2009). (emphasis added)

So, even the Georgia Supreme Court recognizes that odds are slim an injured child is going to be allowed to bring a claim against a school official. What is supposed to be qualified immunity is in fact nearing absolute immunity.

I have a big bone of contention with this state of affairs. Millions of parents entrust their children to government schools. School attendance is compulsory. Children spend the better part of their weekdays in the custody of the government school system. Yet they have few rights to recourse if those watching over them are negligent.

How is that we as a community tolerate this kind of treatment of children’s legal rights? Why do public officials get a “free pass” when it comes to most of their negligent acts? Why are they not accountable when they harm a child? Why should private school teachers be held accountable for negligence that public school teachers get away with? Why should a child attending public school have fewer rights than a child attending private school?

As you can tell, I think we need legal reforms in this area of the law. I see no fairness in shielding public officials and employees from liability when they hurt children. I think they should be held to the same standard as everybody else.

I have spent the better part of this post telling you that it is tough to bring a claim against a public school for a child injury. Is there any hope?

Well, it turns out there is hope, but it is absolutely essential that as early in the claim process as possible you evaluate if your child’s claim falls into one of the exceptions to official immunity.

The determination of whether an action is “discretionary” or “ministerial” is where these cases rise or fall. And the Courts have repeatedly said that the relevant issue is the character of the specific actions complained of, and the determination is to be made on a case-by-case basis. For that reason, you (and your attorney) need to begin as soon as possible to collect evidence in order to (hopefully) demonstrate that the actions (or non-actions) that caused harm to your child were “ministerial” not “discretionary”.

Keep in mind also that if there is a way to prove that the school official acted with malice (specific intent to harm your child – spanking them would be a good example), it doesn’t matter whether the act was “ministerial” or “discretionary” – you have a case.

Keep in mind also that if your child has a disability, this may change the legal analysis. A student with a known disability, for instance, will require closer supervision than one without. Moreover, courts have held that a student’s individualized education plan and unique needs are relevant in determining a reasonable level of supervision.

One more thing – claims against public schools are subject to special “ante-litem” notice requirements. The Courts are very strict in enforcing those requirements. The proper notices must be sent to the proper entities (often more than one) by the proper means. Consult with an attorney about your specific situation, but generally you have only 12 months from the date of injury to properly serve an “ante-litem” notice on county schools and 6 months if your school is a city school. Again, please call a child injury attorney early in the process before your rights and the rights of your child are compromised.

Sources: Understanding Liability In School Cases

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

Spinal Cord Injury In Children: Unique Biomechanics Require Specialized Legal Knowledge

Acute spinal cord injury (SCI) is a common cause of permanent disability and death in children and adults. 44% of SCIs are caused by car accidents. Nearly 10 percent of new SCIs in the United States occur in children ages 1 to 15. In children under 8 years of age, spinal cord injuries are most often located in the cervical spine (the neck).

Children are not just miniature adults. Their anatomy and biomechanics are unique. This is nowhere more true than in the cervical spine.

Some of the differences between adult and child anatomy can be seen in the following illustration:

Adult-and-child-skeletons

Children have a disproportionately larger head, underdeveloped neck muscles, and a much more flexible spinal column. Yet the increased flexibility of a child’s spinal column (when compared to an adult) does not proportionately apply to their spinal cord. A child’s spinal column has up to 2 inches of “play”, while the spinal cord has more like a mere quarter inch.

This unique anatomical feature in children means that in a motor vehicle accident the spinal column may flex in one or more directions that exceeds the flexibility of the child’s spinal cord. This can cause grave injury.

Because of these anatomical differences, a child’s neck is likely to be more injured than an adult’s when the same forces are applied. Some of the most common injuries to the spine in children are: facet dislocations, posterior ligament injuries, and wedge compression fractures.

So how does the unique spinal anatomy of children affect your injury claim? It’s all about biomechanics. Biomechanics, in the legal arena, refers to the proof of the mechanism of injury (what factors, what forces, what objects caused the injury and how?) It is imperative that your attorney have an understanding of both the unique anatomy and biomechanics that affect your child’s injury claim.

Without this specialized understanding, your child’s claim will suffer. This is such important knowledge because many insurance companies deny or seek to minimize the impact of an injury on a young child. They argue that the children are more resilient than adults and can be expected to “bounce back” more quickly. They deny the unique vulnerability of the child’s body to injury. Your attorney must have the specialized knowledge to disabuse the insurer of those misconceptions. 

Children are not just miniature adults. Their spines differ considerably from adults. Children are susceptible to a different spectrum of injuries, some of which can be devastating because they occur most often in the upper cervical spine.

Please call me or another qualified child injury attorney if you need help with your child’s injury claim.

Sources:

National Spinal Cord Injury Association / Pediatric Spine – Not Just Smaller – Different / Injury Mechanisms in the Pediatric Cervical Spine During Out-of-Position Airbag Deployments

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

Legal Claims for Wrongful Adoption in Georgia

What do you do when an adoption agency lies or misrepresents the background of a child in order to get you to adopt them and later you discover the child has health or behavioral conditions that present significant financial and emotional challenges for your family? Is there a legal solution?

I love adoptions, I love adoptive families. When I meet a family that has adopted children, I smile and get happy inside. Adoption is precious and there is something transcendent about it. It goes against our native selfishness. It is a miracle of love.

Many adoptions end well. Many adoption agencies are staffed by loving and conscientious people who want only the best for the adoptive child and new family.

But in some adoptions parents are not given vital background information about the child they bring into their family. Some families are told one thing only to find out later they were lied to and misled.

If you are one of those families – this post is for you.

Let me sketch out what I plan to talk about before I get into it.

First, I will help you understand the law of Wrongful Adoption. Wrongful Adoption law is an emerging area in our legal system. Prior to 1986 no law court had even recognized a basis in the law for a Wrongful Adoption claim. So we are somewhat in uncharted legal waters.

Second, I will provide tips about litigation challenges in the Wrongful Adoption context. I think you will find this information helpful as you try to assess whether you have a viable claim.

Third, I will clarify that what I believe Wrongful Adoptions cases are not about. I believe in once adopted, always adopted. Wrongful Adoption claims are not about undoing the adoption. Once a child is embraced by a family they become a permanent part of that family. Wrongful Adoption claims shouldn’t divorce a child from the family; they should empower families with the financial resources to provide for adopted children who turn out to have special needs.

So first – what exactly have the law courts recognized in the Wrongful Adoption context?

Wrongful Adoption is a legal claim based upon, as its name implies, a wrong. The adoptive parents (at some point in time after the adoption is completed) discover that they were wronged by adoption agencies that failed to provide them with their child’s full background information and that in failing to disclose (or misrepresenting facts about the child), the agency deprived the parents of the chance to make an informed decision as to whether to proceed with the adoption. In addition, the parents must show that they suffered harm as a result, that is, they suffered financially, physically, or emotionally.

A typical example would be a child whose parents adopt him after being told he had been in and out of foster homes, but the parents were not given access to his full records and could not have imagined all the cruelties buried in his past. In the first few months following the adoption, the child begins acting out. He may become literally uncontrollable, ruining his parents’ home and frequently accosting his siblings. Eventually everyone agrees he needs intervention but the care he needs costs hundreds of dollars every month, leaving the parents unable to pay their mortgage and in fear for the economic welfare of their other children. Should the parents be left to fend for themselves?

In response to lawsuits filed by families like the one I just described, courts have recognized a duty to disclose known relevant information about a child’s health and social background to prospective adoptive families. In the face of a breach of this duty to disclose, courts have held agencies liable for Wrongful Adoption and awarded adoptive families monetary compensation.

What do you have to be able to prove in order to win a Wrongful Adoption case? In the first case to recognize this type of legal claim in the United States, Burr v. Board of County Com’rs of Stark County, 23 Ohio St. 3d 69, 491 N.e.2d 1101, 56 A.L.R.4th 357 (1986), the court relied upon the common law elements of fraud.

The elements listed by the Burr court were:

(a)   a representation or, where there is a duty to disclose, concealment of a fact,

(b)   which is material to the transaction at hand,

(c)   made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred,

(d)          with the intent of misleading another into relying upon it,

(e)          justifiable reliance upon the representation or concealment, and

(f)           a resulting injury proximately caused by the reliance.

The Burr elements concern what we lawyers call the tort of Wrongful Adoption. A tort is simply a civil (as opposed to criminal) wrong. But a tort claim is not your exclusive remedy. Other courts have recognized that a family that is wronged by a deceptive adoption agency may have other legal grounds to sue.

For example, here in Georgia, there is the case of Cesnik v. Edgewood Baptist Church, 88 F.3d 902 (C.A.11 (Ga.), 1996). In the Cesnik case the court allowed a breach of contract action in the Wrongful Adoption context. The Cesnik case also allowed the wronged family to maintain federal and Georgia RICO claims. RICO claims can be extremely effective in holding adoption agencies accountable since the RICO statutes allow not only for compensatory damages caused by the misconduct but also treble damages, punitive damages, attorney fees and expenses of litigation.

Moving to my second point – litigation obstacles in the Wrongful Adoption context.

Potential Obstacle # 1 –

These cases sometimes involve abused or neglected children who have been placed in foster care through government agencies. Private adoption agencies seeking to place these children may not be aware of everything that happened in foster care because of insufficient communication between state caseworkers and the private agencies.

In some cases where the state caseworker fails to get all the records or deliver them or, in some cases, the worker decides it would be better for the child’s chances if certain information were omitted.

Here is the rub: state agencies are generally immune from negligence suits, so in order for you to recover there must be a legitimate way to tie in the private agency that did the placement. One way to do this is by arguing that the private agency should not have relied on the state agency or had a duty to investigate more comprehensively.

Potential Obstacle # 2 –

It is important to assess whether you damages are adequate before you start the legal process. Litigating is expensive and time consuming. Unless your damages are significant the benefits you hope to gain may be outweighed by the costs of litigation.

What kind of damages are adequate? Call me or someone like me to find out but here is a real world example of one family who brought a viable claim –

A family adopted a little boy and were told by the adoption agency that all of the medical records and other information indicated that the boy was perfectly healthy.  The family was also told the boy’s birth mother had received prenatal care since the sixth week of pregnancy and that she had not used drugs during the pregnancy. Shortly after the boy came home the family noticed he had health problems. Four to six months later the family received the boy’s medical records. The records showed that the birth mother had, in fact, received no prenatal care, that she had tested positive for opiates and barbiturates at the time of delivery, that the delivery had been complicated, and that the boy had been born prematurely. Doctors soon diagnosed the boy with cerebral palsy, asthma, developmental disorders, and severe behavioral problems. The doctors suspected that most or all of these conditions were caused by exposure to drugs and alcohol during the pregnancy and by a lack of prenatal care.

The fact of severe health and behavioral problems justifies the bringing of a legal claim.

Potential Obstacle # 3 –

Another damages related obstacle has to do with the common law rule that says parents are entitled to recover for the care of a child only until the child is 18 years old. To recover care expenses for the duration of the child’s life, parents must prove the child will never be self-supporting.

If the parents can only recover for medical expenses during the child’s minority (until he or she turns 18) this drastically reduces the amount of compensation which the family can request.

It is important to discuss with the child’s physicians whether he or she will ever be self-supporting.

Potential Obstacle # 4 –

If your child will receive any governmental benefits related to a health or behavior condition the attorneys for the adoption agency may argue that they should receive a set-off or credit for benefits provided by state and federal programs. This could reduce or eliminate the amount of compensation.

Of course there is no guarantee that a child will continue being eligible for governmental benefits. And it would unfair if the agency that lied to the family was allowed to shift the financial burden for caring for the child to taxpayers.

Potential Obstacle # 5 –

What if you signed a waiver or notice of the risk that your adoptive child would have health or behavioral problems? Does that mean you have no case?

Agencies frequently have potential adoptive parents sign a waiver of liability and notice of risk. Such waiver and notices may shield an agency from certain legal liabilities. But exercising the proper duty of care may not be contracted away by the agency. There is always grounds for challenging a waiver that excuses an agency from behaving in a prudent and reasonable manner.

My third and final point – permanency for adopted children.

One of the overarching purposes of adoption law is creating permanency and stability for children. A commitment to adopt a child is analogous to a marriage commitment. It is “until death do us part.”

As an attorney whose professional mission is to advocate for children, I will never use the emerging area of Wrongful Adoption law to undo a child’s adoption and terminate that child’s status as a part of the adoptive family.

The value and virtue of Wrongful Adoption laws is to empower adoptive families who have been deceived to provide a loving home and all support care necessary for the flourishing of the child and family.

If you think I may be able to assist you in setting things right so that your family is not financially devastated by the wrongdoing of an agency, I would love to talk with you.

Conclusion

When you adopt a child you are wholly dependent on the adoption agency to provide truthful and accurate information about the child. If that agency abuses your trust and lies or misrepresents the truth about your child’s background, they have committed a moral and legal wrong. They need to be called to account. And sometimes a lawsuit is a fitting means of accountability.

Keep in mind that as with all legal claims, certain time deadlines do exist. These are known as “statutes of limitation” and they limit how long you have to file suit. If you miss the deadline you lose all your rights with regard to that particular claim. In Cesnik v. Edgewood Baptist Church, 88 F.3d 902 (C.A.11 (Ga.), 1996), the court indicated that the deadline on Wrongful Adoption claims (at least so far as the tort claim goes) is probably 2 years from the date of the agencies wrongful acts.

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Attorney Pete Pearson practices law in Atlanta, Georgia and has a special interest in helping families with special needs 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. 

Child Injury at Unlicensed or Exempt Daycare Centers in Georgia

Does it matter if the daycare center where your child was injured was unlicensed or exempt from licensure? It may matter, if you intend to bring a legal claim for your child’s injuries.

Operating a daycare center that should have a license without one is a horse of a different color than operating a daycare center that is not required to be licensed. I’m going to talk a bit about how to tell the difference between exempt and non-exempt daycare centers. And then I’ll talk about why it matters.

First off, you need to know that some Georgia daycare centers are exempt from Georgia licensing standards. The Georgia Department of Early Care and Learning (also known as Bright From The Start) promulgates regulations that govern these matters. The regulations exempt certain types of child care programs. Click on this link if you’d like to see a full copy of the exemption rules but I’ll give you a few highlights from the rules so you’ll have an idea what kinds of programs don’t have to get a license. 

The following are examples of the types of programs which are exempt from being licensed:

1. Programs which are owned and operated by any department or agency of state, county, or municipal government. So, all public schools would be included in this category of exempt daycare centers.

2. Private non-public educational programs with an established curriculum for children five (5) years and older that operate during the school term for the customary school day, as defined by Georgia law.  So, most of what we commonly refer to as “private schools” are exempt.

3. Parent’s Morning Out, Parent’s Night Out, or similar programs which operate for no more than one session of up to four (4) consecutive hours per day and which limit attendance to no more than eight (8) hours a week per child.

4. Nursery schools, playschools, kindergartens or other educational programs for children two (2) years through six (6) years of age which operate for no more than four (4) consecutive hours per day.

5. Day camp programs for children five (5) years and older that are operated between school terms, whose primary purpose is to provide organized recreational, religious, or instructional activities.

6. Short-term educational or recreational activities or classes for children in which the supervision and care of the children are incidental to their participation in the activity or training in specific subjects, such as, but not limited to, music lessons, dance classes, swim lessons, etc. The provider is not assuming responsibility for supervision and care of the children outside of the classes or activities the children’ participate in and shall not advertise or otherwise represent that child care services are offered. Note the requirement that the provider not advertise or represent they are offering child care services. If the provider does advertise or represent they are offering child care services the arguably are subject to the licensure requirements.

7. Any short-term child care service provided by an establishment, such as, but not limited to, a religious facility, health club, or retail store, and such program or service meets all of the following:

(i) Operated on the premises of the establishment;
(ii) Operated for the convenience of the parents, guardians, or custodians and for the use of on-duty employees or students attending classes;
(iii) Parents, guardians, or custodians are participating in activities provided by the establishment on the premises of the establishment;
(iv) Parents, guardians, or custodians are readily available;
(v) Attendance of child in the short-term child care service is limited to no more than four (4) hours per day and no more than ten (10) hours per week, except in the instance of child care services offered at infrequent events such as, but not limited to, conferences and weddings.

8. Programs operated after the customary school day, as defined in Georgia law, for children five (5) years and older that are strictly instructional and skill-based in a single talent, ability, expertise, proficiency or subject or in closely related skills, proficiencies or subjects, including but not limited to classes such as art, cheerleading, dance, drama, gymnastics, martial arts and music, and the programs comply with all of the following:

(i) Programs provide direct instruction in the single skill or subject and/or closely related skills or subjects to every child each day the child is present;
(ii) Programs do not provide services that are not directly related to the single skill or subject or to the closely related skills or subjects, such as but not limited to homework assistance. During the hours of operation, programs may provide services related to the instruction, such as transportation and giving children time to change into proper clothes/gear;
(iii) Programs shall not advertise or otherwise represent that the program is a child care facility, an after school program, or that the program offers child care services;
(iv) Programs shall not prepare meals and snacks, but may provide ready-to-eat snacks, such as pre-packaged snacks;
(v) The majority of the program staff responsible for instruction shall possess specialized qualifications to instruct in that skill or subject, and the program shall submit documentation of such specialized qualifications of staff to the department at the time of application for exemption or as requested by the department;
(vi) Programs shall inform parents or guardians about the physical risks a child may face while participating in the program;
(vii) Such programs shall not be an integral part of a licensed child care learning center or day care center;
(viii) Enrollment information shall clearly define the duration of the program.

9. Short term educational programs offered to school-aged children in which the supervision and care of the children are incidental to their participation in the short-term educational program, and the provider is not assuming responsibility for the provision of daily child care outside the scheduled program. The majority of staff responsible for the direct delivery of education services to children possesses specialized qualifications that are directly related to the short term educational programs being offered, and the program shall submit documentation of such specialized qualifications to the department at the time of application for exemption or as requested by the department. The sole or primary purpose of such short term educational programs is:

(i) To prepare children for advancement to the next educational level through a prescribed course of study or curriculum;
(ii) To provide specialized tutoring services through a prescribed course of study or curriculum to assist children with the passage of mandatory educational proficiency examinations;
(iii) To provide specialized tutoring services through a prescribed course of study or curriculum to assist children in specific academic areas, such as, but not limited to, foreign language, mathematics, science, etc.

10. Any program or facility providing care for school-aged children that is operated by, or in affiliation with a national membership non-profit organization that was created for the purpose of providing youth services and youth development, that charges a membership fee for children and may receive monthly, weekly, or daily fees for services. Such program or facility holds membership in good standing and is certified by its national association as complying with the association’s purposes, procedures, minimum standards and mandatory requirements. Such national membership organizations include, but are not limited to, the Boys and Girls Clubs of America.

11. Any program providing group care for children for no pay. There’s an easy one: no compensation = exempt from licensure. 

12. A center that is licensed by the department may request an exemption from licensure if the center’s program is an integral part of an established religious congregation or religious school that conducts regularly scheduled classes, courses of study, or educational programs and is a member of or accredited by or certified by a state, regional, or national accrediting agency for religious educational instruction or a state, regional, or national accrediting agency for educational instruction as recognized and approved by the department if such accrediting entity uses standards that are substantially similar to those established by the department. In addition to the requirements listed above applicable to all exemptions, the following additional requirements shall apply to centers seeking an exemption under this provision:

(i) A center seeking such exemption from licensure shall be required to submit to the department documentation of certification or accreditation, including a copy of its most recent certification or accreditation inspection report, and any other pertinent documentation as requested by the department, such as non-profit tax-exempt verification. The accrediting agency must conduct regularly scheduled visits to the center while such center remains accredited.
(ii) If such exemption is granted, the center shall submit annual documentation to the department verifying its continued certification or accreditation, including a copy of its most recent certification or accreditation inspection report, and other pertinent documentation as may be requested by the department.
(iii) Such exemptions granted by the department are valid as long as the center remains certified or accredited. The program shall provide the department written notice within five (5) business days of the center’s loss of certification or accreditation, including a copy of such notification from the certifying or accrediting entity. The department shall rescind the center’s exemption granted herein upon notification of the loss of certification or accreditation.
(iv) Any center seeking such exemption shall comply with all applicable requirements for background checks for directors/employees as required in O.C.G.A. § 20-1A-30 et seq., Chapter 591-1-1, Rules for Child Care Learning Centers, department policies, as well as applicable local, regional, and state health department, state fire marshal, and local fire prevention guidelines/requirements while such exemption is in effect. The department retains jurisdiction over centers granted such exemption to conduct unannounced periodic background check audits and to conduct complaint investigations regarding compliance with background check requirements, as well as compliance with local, regional, and state health department, state fire marshal, and local fire prevention guidelines/requirements.
(v) The department may rescind such exemption for a center’s failure to comply with the requirements for background checks for directors/employees pursuant to O.C.G.A. § 20-1A-30 et seq., Chapter 591-1-1, Rules for Child Care Learning Centers, and department policies.
(vi) Any center applying for such exemption that is owned and/or under the legal control/direction of the certifying or accrediting entity shall not be approved by the department.
(vii) A center seeking such exemption shall adopt and comply with the minimum standards of its certifying or accrediting entity for the operation of the center’s program. Such minimum standards adopted by the center shall be published and made available to parents of enrolled or prospective children upon request.
(viii) A center granted such exemption shall comply with the requirements regarding notification to parents of enrolled children if the center does not carry liability insurance.

OK, I’ll stop with the regulations that never end. Here’s my point in sharing all the detail with you: it’s complicated. It takes rigorous research to determine if a particular program that appears to be subject to licensure may in fact be entitled to an exemption. Call me or someone like me if you want to be sure.

So why may it matter to your legal claim if a daycare center is exempt? It may matter because exempt programs have a much lower level of accountability. They are not scrutinized the same way as licensed providers. The State doesn’t do the kind of inspections that are done at licensed daycare centers. And when your lawyer sets out to build your legal case against a negligent daycare provider, there won’t necessarily be any records of State inspections. And, perhaps most importantly, there may be an issue about whether the Bright From the Start regulations that pertain to child safety even apply to exempt centers. 

That does not mean we can not successfully claim against an exempt daycare center. It simply means a claim brought against an exempt daycare center must proceed along a different track than a claim against a licensed daycare center. You want to select an attorney who is 1) aware of the difference between exempt and non-exempt programs, and 2) will persevere through the detailed research required to determine which category your child’s daycare center falls into.

Now please don’t stop reading quite yet, because in many ways the most important information is still to come.

The reason why I began this post by talking about exempt daycare centers is because many folks tend to jump to the conclusion that an unlicensed daycare center is always an illegal daycare center. You know from what I’ve written above that is not the case. Many are exempt from licensure under Georgia law.

So any lawyer worth their salt is going to take the time to analyze what situation applies to you and your child’s injury claim: do we have a situation where the daycare center is required to obtain a license? Or is the program exempt? That’s an important question to ask at the start.

But let’s talk now about daycare centers that are not exempt but instead required to be licensed by the State of Georgia. Let’s assume the program in which your child was injured was such a non-exempt program but had no license. What then?

You may have a very strong case, assuming your attorney can show that the lack of licensure was causally connected to the injury your child sustained (by which I mean that the failure to obtain a license or something flowing from that failure is what caused your child to get injured.)

I have blogged elsewhere about using Georgia licensing standards for daycare centers to prove negligence. So I’m not going to discuss that again in this post. But keep in mind that even if a non-exempt daycare center neglects to get licensed, they still owed your child the duties provided for in the Georgia licensing standards.

Here is a report I found interesting on a daycare center that was recently shut down by authorities in Savannah, Georgia. It was shut down after it was discovered they were operating without a license – WJCL Looks Into Child Care Center Laws

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

Trampoline Injury Claims for Children

Trampolines were designed to be a specialized piece of training equipment for adults.

In 1945, George Nissen, a competitive gymnast, patented the modern trampoline. Nissen designed the trampoline as a training tool for acrobats and gymnasts and later promoted it for military aviator training. The recreational use of trampolines is a more recent development, driven primarily by the increased availability of cheaper trampolines sold for home use.

Even more recently, commercial trampoline parks (“jump parks”) have begun to appear around the country, including in Georgia. These parks target children with their marketing. Consider the following commercial blurb from Sky Zone Sports, which has recently opened a location in Suwanee, Georgia:

“Get ready for Sky Zone Indoor Trampoline Park, the creator of the world’s first all-trampoline, walled playing court (U.S. Patent #5,624,122) – perfect for just about any age, shape or physical ability.” ~ from Sky Zone’s website (retrieved September 28, 2012).

How safe are trampolines truly? Are they truly “perfect for just about any age, shape or physical ability?” Not according to the American Academy of Pediatrics.

The American Academy of Pediatrics (AAP) has repeatedly warned parents and anyone else who cares about child safety to keep kids off trampolines. According to an AAP report released this week, Emergency Departments across the country see nearly 100,000 injuries from trampolines each year. It’s not just at jump parks that kids get hurt; it’s at homes also.

The typical ways that children get hurt on trampolines include the following:

  • Too many children on the trampoline. Multiple users is a safety violation. If children are going to be allowed to use the trampoline at all, only one child should jump at a time. Of particular concern is when older children (or adults) are allowed on the trampoline along with younger children. Several studies have shown that approximately 3/4 of trampoline injuries occur when multiple people were using the trampoline. The smallest children were up to 14 times more likely to sustain injury relative to their heavier playmates. Also, heavier users create more rebound of the mat and springs and greater upward forces than smaller children can generate on their own. These forces must be absorbed by the falling body and can actually be greater than the forces a child would experience landing on solid ground!
  • Falls from the trampoline. This is an obvious one. What is not so intuitive is that the studies show that safety nets do not necessarily decrease the risk of children suffering falls.
  • Impact with the trampoline frame or springs. Again, surprisingly, the studies do NOT show that padding on the frames or springs necessarily decrease the risk of a child being injured.
  • Colliding with other children in mid air or on the way up or down.
  • Somersaults/flips. Neck and head injuries can easily result. Kill joy as it may sound, somersaults and flips are a bad idea for children on trampolines.

Typical injuries children sustain include:

  • Ankle injuries are the most common form of injury children sustain while jumping on a trampoline. This can range from a minor sprain up to a surgical fracture injury.
  • Head and neck injuries. These are the most serious child injuries typically seen resulting from trampoline accidents. Cervical spine injuries can be caused by falls off the trampoline but also commonly occur on the trampoline mat when failed somersaults or flips cause hyperflexion or hyperextension of the cervical spine. These injuries tend to be the most catastrophic of all trampoline injuries suffered.

Atypical (unusual) injuries children can sustain on trampolines include:

  • Trampoline-related fractures of the proximal tibia (upper part of the shin bone) have been observed in children 6 years and younger. These injuries occurred when young children were sharing the trampoline with larger individuals.
  • Manubriosternal Dislocations/Sternal Injuries (injuries involving the child’s breastbone). Sternal injuries have traditionally been described as a result of major trauma. These occur after thoracic hyperflexion injuries on the trampoline. They typically heal uneventfully; however, surgical stabilization may be necessary if pain persists.
  • Vertebral Artery Dissection (a flap like tear of the inner lining of vertebral artery, which is located in the neck and is the artery that supplies blood to the brain). The AAP report discussed above mentions several cases of vertebral artery dissection presenting 12 to 24 hours after a neck injury on a trampoline. Vertebral artery dissections are the result of abrupt cervical hyperextension and rotation. These are often devastating injuries and may produce lasting complications.
  • Atlanto-axial Subluxation (an injury where the vertebrae in the neck spine become misaligned as a result of trauma and may compress the spinal cord, leading to damage to the spinal cord and adjacent nerves. There have been 2 reported cases of trampoline-related atlanto-axial subluxation in children.

One important legal consideration with child trampoline injuries is that some homeowner’s insurance companies exclude trampoline injuries from coverage.

This is because trampolines are viewed as an “attractive nuisance” (something on a property that may entice children into harm) and therefore trampoline related claims are sometimes not covered by a standard insurance contract. Homeowners who own trampolines may have to obtain a “rider”  (a rider is a schedule or piece of paper attached to an insurance policy that provides the policyholder extra protection beyond the provisions contained in a standard insurance agreement) that expressly provides coverage for trampoline related claims.

Contacting an attorney to investigate the availability of liability insurance that could compensate you and your child for medical bills and other items of damages is advisable.

Another legal consideration if your child has been injured on a trampoline is the possibility of a product liability claim against the manufacturer of the trampoline. It has been observed that there has been a decrease in the quality of recreational trampoline equipment over the past several decades. Consider this: according to the International Trampoline Industry Association, trampolines sold in 1989 had an expected life of 10 years while the expected life of trampolines sold in 2004 was only 5 years. We are seeing a degradation in the quality of the trampolines available for the recreational market.

A legal claim against a homeowner, commercial trampoline park (“jump park”), or trampoline manufacturer may have to overcome the legal defense known as “assumption of the risk.” This defense essentially blames the victim for engaging in an activity that they knew or should have known was dangerous. The efficacy of this defense is close to nil, however, with younger children, due to another legal doctrine, known as the “tender years doctrine.” This doctrine holds that children under a certain age (probably 7) can not be charged with contributory negligence (fault) or assumption of the risk.

If your child has been hurt on a trampoline and you believe there was negligence, I would be happy to help you evaluate your claim.

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

Opening Day of Georgia Deer Hunting Season Brings With It Risk of Injury/Death To Children from Careless Gun (and Bow) Owners

The fall 2012-2013 Georgia deer hunting season opens in two days (September 8th) for bow hunters and Georgia hunters that will be hunting with firearms hit the woods on October 20th, the official open of the firearms deer season. With all the excitement over the hunt, archery and firearm safety can get lax. As I write, weapons owners are taking their bows and firearms out of their safes for cleaning in preparation for the upcoming season – and that can mean danger for children.

Many unintentional gunshot wounds and deaths occur in or nearby the home of family friends or relatives. When a child is injured by a weapon and that injury could have been prevented by the owner of the weapon or owner of the premises where the injury occurred, a careful investigation by an attorney is advisable.

In what kind of situations may the family of a child injured or killed by a gunshot or arrow seek legal help?

ANYTIME a child is injured legal relief may be available. I’ll mention a few common situations where legal liability will arise, but I will by no means exhaust the possibilities.

First off, be aware that Georgia law mandates hunter safety education for hunters before they can purchase a hunting license. I’ve been through a couple of the courses myself. Upon completion of the hunter education course, participants are given a hunter safety certificate and a Georgia Certified Safe Hunter badge like this one:

Georgia Certified Safe Hunter Badge

Anyone who has been through one of the Georgia hunter education courses has been trained how to protect children from gunshot injuries. And that training creates legal duties to any children that are in the hunter’s home or vehicle or other premise where a hunter is carrying or storing archery or firearm equipment.

One fundamental rule of firearm safety is Muzzle Control. A firearm must never be pointed at or near a human being. At all times it must be carried with the muzzle pointing away from others. Hunters are taught that even if they feel certain the firearm is unloaded they must treat it as if it is loaded and maintain Muzzle Control. Violation of this basic safety rule with injury or death resulting could form the basis for a successful injury claim.

Another firearm safety basic is that whether there are normally children in the home or not, ammunition (cartridges, shot shells) should be stored AWAY from the weapons themselves. Both live ammunition and weapons should be kept under lock and key away from children and irresponsible adults. Live ammunition can explode if played with and dropped or placed near high heat. Children should never be allowed to handle live ammunition without adult supervision. Violation of these safety rules can create a situation where a child finds a gun and ammunition together and loads and fires the weapon. At firearm owner that violates these rules with injury or death resulting is going to face legal liability.

Did you know that hunters are taught that the first thing they must always do is to check to see if a weapon is loaded? Every time they pick it up. Even if another person checks first, hunters are duty bound to double check the weapon to be sure it is unloaded as soon as it is handed to them. The first thing they should do is check the action and magazine (if one is present) to ensure no rounds are present.

Another situation that can lead to tragedy is when weapon owners get careless during target practice or plinking (or hunting). Hunters and weapon owners are legally responsible for what comes out of their weapons. One fundamental of firearm safety is to be sure of the target and what is in front of it and beyond it. If a shooter cannot see what lies beyond the target they have a duty to not take the shot. The illustration below shows one situation where the shot should not be taken due to inability of the shooter to see what lies over the hill.

If a hunter took the shot in the above illustration and someone was injured or killed as a result he would have legal liability.

I could go on and on about safety rules in the home and field. I haven’t even mentioned some of the most egregious safety violations such as hunting and handling firearms after consuming alcohol or drugs. Injuries that result from this type of violation are inexcusable and form the basis for a punitive damages claim against the offender.

If your loved one has been injured or killed in a hunting incident or in or around the home of family or friends where weapon safety rules were not followed, please call me. I understand it can be hard to know what to do when friends and family are involved and your child is hurt. Calling me does not obligate you to file suit against friends or family but it will educate you about what legal relief may be available to your child and your family.

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