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. 

Child Injury – School Bus Accidents

All around the State of Georgia our kids are heading back to school. Parents entrust their children’s lives and safety to countless school bus drivers, most of whom deserve that trust and are conscientious drivers. Nevertheless, any time a child is injured on or by a school bus, parents have a right and responsibility to find out what when wrong. Sometimes driver inattention and negligence leads to tragic accidents and child injuries.

According to the NHTSA, an average of 19 school-aged children die in school bus related traffic crashes every year. Of these 19, on average 6 of the children die as occupants of a bus and 13 die as pedestrians (getting in or off the bus). More children have been killed between the hours of 3 p.m. and 4 p.m. than any other time of day. And nearly half of those killed are our youngest school-going children, those between the ages of 5-7 years of age.

Thus while school officials will often tout the high standard of safety on school buses, life changing injuries occur all too often and deserve serious and rigorous investigation.

The dangers of school buses were freshly brought to my mind by a school bus crash that occurred last Spring just a few miles from where I live. According to ABC News, six school buses taking some 200 middle school students to Six Flags crashed in Newton County, Georgia, leaving more than 50 people injured after one school bus rear-ended another, creating a chain reaction.

School Bus drivers are required to undergo extensive training. To give you an idea of just how extensive, you might want to take a look at the School Bus Driver Training Manual used by the Georgia Department of Transportation. This manual contains a goldmine of information regarding how drivers are trained and what responsibilities local school boards owe the families of students whose children take the bus to and from school.

For instance, the manual contains detailed training instructions for how bus drivers and bus monitors should load and unload non-ambulatory wheelchair passengers. Failure to follow the delineated procedures could result in injuries to special needs students. The manual describes the duties involved in safely getting a disabled child secured in their wheel chair including preparing the lift, properly positioning the wheelchair once it is lifted onto the bus, attaching the front and rear securement straps, and attaching the lap/shoulder belts. Failure to follow any of these rules could lead to injuries.

In another section, this one on “Student Behavior Management”, the manual lists certain “interventions” by bus drivers that are prohibited by Georgia law. Corporal punishment (spanking or other intervention designed to cause pain to the student) is prohibited. So is pepper spray/mace. Also, bus drivers are warned not to discipline students while the bus is in motion.

The manual also contains a wealth of information about standards for school bus drivers on the more mundane matters of operating a school bus. Topics covered include: free-way driving, lane changes, safe backing, passing and being passed, rail road crossings, and pre and post trip bus inspections.

Also discussed in the manual is the local school board’s responsibility to do background checks on those applicants who want to be hired as school bus drivers. And after hiring a driver, the school board has a ongoing duty to send them for periodic medical exams and to do performance evaluations. If a school district fails to discharge any of these duties, and a dangerous driver is permitted to transport school children, civil liability can result for negligent hiring/retention.

My firm can represent you in the following types of injury matters:

  • School Bus Rear-End Collisions
  • School Bus Skidding Off The Road
  • School Bus Crash Involving Speeding/Reckless Driving
  • Drunk or Drug-Impaired School Bus Driver
  • School Bus Driver Who Fails to Stop Bullying (with injury to your child resulting)
  • Sexual Abuse
  • Physical Abuse
  • Failure to Safely Secure Special Needs Child
  • Improper/Non-existent/Negligent Hiring & Retention by School Board

For those interested in going a little deeper in their understanding of school bus safety, I recommend the video below. It is produced by The School Bus Safety Company and it discusses various aspects of school bus safety, focusing on the proper training of drivers. It makes the disturbing claim that there are 13,000 school bus fleets without a comprehensive safety training course.

I am available to discuss all School Bus Injuries with you.

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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. 

Abortion Malpractice – Failure to Comply with Parental Notification Requirements

In 2007 Georgia law was amended to modify requirements related to parental notification for unemancipated minors.

Unemancipated minors (which in this context means any female under the age of 18 who is still under the control and supervision of her parents or guardians) seeking an abortion must either be accompanied by a parent or guardian who can show proper identification or a minor’s parent or guardian must be notified in person, by telephone, or by mail at least 24 hours prior to the abortion.

The law requires “actual notice” to the parents or guardians.

If the physician or minor does not want to comply with these parental notification requirements, he or she can contact any juvenile court in the state to have them waived. This is often referred to as a “judicial bypass.” Regardless of whether parental notification occurs, a minor is required to sign a form stating that she consents freely, “and without coercion” to the abortion (Official Code of Georgia Section 15-11-112(a)).

The burden is on the abortion doctor to prove the parents or guardians were notified and the minor signed a consent form.

If the abortion doctor fails to prove “notice and consent”, what remedies are available under Georgia law? Unfortunately, there is no private cause of action (right to sue) against abortion doctors provided for within the statute itself.

In 2011 the Georgia Senate passed a bill that would allow women (and a minor’s parent or legal guardian) to sue an abortion practitioner for violating a similar “notice and consent” statute, the Woman’s Right To Know Act.

Entitled The Women’s Private Right of Action Bill, it would have provided a woman access to financial recovery for illegal abortions. It would have allowed a woman (or a minor’s parent or legal guardian) who has been harmed by an abortion doctor who violates the Woman’s Right To Know Act to be sued for the wrongful death of the aborted child. Unfortunately, Georgia’s House leadership blocked the legislation by refusing to allow it a committee hearing.

So at this time, there is no law in Georgia that allows a woman or the parent of a minor to sue for wrongful death of an aborted child when the abortion doctor fails to prove “notice and consent” but . . . call me anyway. My firm is willing to sue abortion doctors over this issue under the right circumstances. The right case may allow us to use existing laws to hold abortion doctors legally responsible for not complying.

The loss of a child or grandchild is always a terrible tragedy. If you are in that circumstance, my heart goes out to you. It would be my privilege to talk with you about what legal options you may have to call the abortion doctor to account.

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Attorney Pete Pearson may lose some business by saying it, but he is passionately pro-life. His passion and experience helping families of children who have been harmed make him especially well-suited to help your family in your time of need. Attorney Pearson lives in Atlanta, Georgia with his wife and six children (all still at home). You can speak to him directly at Six-Seven-Eight 358-2564.

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Watch Teenager Lena Baughman talk about the “best moment of her life” –

Injuries to Children – What is the Value of a Facial Scar?

How much should an insurance company pay for my son or daughter’s facial scarring?

The value an insurance company or jury will put on a child’s scars will depend on the quality of the documentation provided by you and your attorney. It is sometimes a good practice to hire a photographer with expertise in injury photography. I have used George Pearl of Atlanta Legal Photo Services with good results.

Some facial scarring is more noticeable when a child is talking, smiling, laughing or blinking. Other scars may cause diminished function of the eyes, eyebrows, mouth, or nose. In these instances still photography will not capture the full impact an injury has had on your child. It may be best to allow the insurance company to meet and interact with your child so they can see the full effect of the scarring. If that is not possible (or desirable), a videographer can be hired to film a “Day-In-The-Life” video. One company that specializes in this type of video is Trial Exhibits.

Another consideration is the timing of photographing or videographing.  Scars sometimes fade with time and the insurance companies know this. The best time to photograph or video your child’s scars will be after your plastic surgeon or dermatologist tells you their appearance/function is not going to improve further.

Gender also affects the value of a scarring injury. For better or worse, boys tend to receive less than girls for the same type of scarring.

Consider also what treatment is available for your child’s scar. The appearance of some scars can be improved through procedures such as scar revision, dermabrasion, and laser treatment from a plastic surgeon or dermatologist. The insurance company will want to know if your child is a candidate for any of these procedures.

Another component of the value on your child’s scar claim is the cost of future treatment. It is important that your attorney reach out to the plastic surgeon to secure adequate documentation regarding future medical costs.

One child client I represented suffered a forehead flap avulsion and laceration that left her with asymmetric (lopsided) eyebrows. Her left brow was higher than the right. The plastic surgeon also documented that the scarring caused irregularities in the muscle contraction in her forehead, accompanied by localized headaches. A year after her injury she had persistent paralysis along portions of her forehead with atrophic changes both at rest and even more profound on animation.

I contacted her plastic surgeon and asked him to help me document what these changes would mean for my client and her family in terms of future medical costs. He provided me with a long list, including PhotoDerm pulsed light therapy for discoloration, Microdermabrasion to smooth the texture of the scar, Fat or synthetic grafting to atrophic regions of her forehead, Endoscopic unilateral brow lift for symmetry, and Botox every 4 months for life. Those future medical costs added approximately $50,000.00 of value to my client’s claim.

I took the plastic surgeon’s list of future medical expenses and used it to insist that this child was entitled to the best medical treatment available to repair her appearance and the insurance company was liable for every reasonable cost related thereto. The claim ended very favorably for my client and her family.

If your son or daughter has been injured and scarred as a result, please call me. Helping children and their families is my passion, for me it is a labor of love. It would be an honor to be asked to work to protect the interests of your child.

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Attorney Pete Pearson assists families everywhere who need legal help. His experience especially suits him to be an advocate for the cause of injured children. He lives in Atlanta, Georgia with his wife and six children. Mr. Pearson may be reached directly at Six Seven Eight – 358-2564.  

Can Doctors Be Sued For the Wrongful Death (or Injury) of An Unborn, Pre-Viable Child?

At least nine states allow recovery of damages for the wrongful death (or injury) of a pre-viable baby. Viability refers to the ability of the baby to survive outside the womb, even if only in an incubator.

Two more states, Georgia and Mississippi, permit recovery for the wrongful death (or injury) of an unborn child if the mother has felt the baby move inside the womb prior to the time of the injury. This movement is referred to as “quickening.”

Quickening occurs earlier than viability. Courts in Georgia have recognized that quickening can occur as early as 10 weeks into a pregnancy. One way to prove that quickening has occurred is to produce medical documentation that the mother felt the baby move prior to the injury or death.

On February 17, 2012, the Alabama Supreme Court decided the case of Amy Hamilton, individually and on behalf of her stillborn son v. Dr. Warren Scott et al. The issue in this case was whether under Alabama law a physician can be sued for the wrongful death (or injury) of an unborn, pre-viable fetus. A lower court had decided that Alabama law did not permit lawsuits on behalf of unborn children who were unable to live outside the womb at the time of the death or injury. The Alabama Supreme Court reversed the lower court and recognized that a family who loses an unborn child has the right to sue when their baby dies due to medical negligence, whether or not the child had reached the point of viability.

This welcome decision from the Alabama Supreme Court is part of a broader trend in some states to recognize that unborn children, no matter their stage of development, are persons and should enjoy the full protection of the law.

Georgia courts would do well to look to the Hamilton vs. Scott decision as persuasive authority. I have argued in an earlier blog post that I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member.

I hope you will join me in celebrating the Hamilton vs. Scott decision! 

Sources:

Alabama doctors can be sued for death of unborn, pre-viable child

Hamilton vs. Scott decision

Child Injury Claims – Georgia Statutes of Limitation

A statute of limitation is a deadline for filing suit. It is the maximum time an injured person has after an injury to file a law suit. If the deadline has passed and no suit was filed, no legal action is permitted.

Under some circumstances, however, the statute of limitation is suspended or “tolled.” Tolling means that an injured person is given more time before the statute of limitation expires or “runs out.”

To illustrate how tolling works, think of an hourglass. It is as if on the day of injury, the law turns the hourglass and the sand begins to flow. When the sand stops flowing, your time to file suit is up. Tolling suspends time, so to speak, it pushes back the time when the law turns the hourglass.

The law speaks of tolling in terms of legal disability. The rationale for tolling a statute of limitation in a particular instance is that the law deems that a particular class of claimants labor under a disability of some sort and therefore should not be held to the same standards as those who suffer from no disability.

One such disability is being a minor. The statute of limitation is generally tolled on a minor’s claim during the period of that child’s disability (during the period the child is legally considered a child, which means until the child turns 18). Once the child’s disability is removed (by turning 18), the hourglass is turned over and the statute of limitation sands begins to flow.

To give a for instance – in Georgia persons who do not labor under a legal disability (most adults come to mind) and who are injured in an automobile accident are given 2 years in which to either settle their claim or file a lawsuit. After the two year statute of limitation expires, they lose all their legal rights with regard to the injury claim arising from that automobile accident. Yet a child who is injured in that same accident would be given until their 20th birthday to settle or sue. The two year statute of limitation does not begin to run until they reach their 18th birthday.

But there are exceptions that complicate things. Children who are the victims of sexual abuse are given until their 23rd birthday to settle or sue. And children who are the victims of medical malpractice are handled altogether differently. For malpractice occurring before the child’s fifth birthday, the child’s suit must be filed by the seventh birthday. For acts of medical malpractice occurring after the fifth birthday, the limitation period is two years from the date of the malpractice.

To make matters even more complicated, Georgia law views any medical or necessary expenses arising from an injury to a child as belonging to the parents of that child, not the child itself. So the parents must bring a claim for medical expenses and that claim must be filed within four years of the date of injury, except when the claim arises from medical malpractice the claim must be filed within two years.

Simple, huh? And in case you’ve been following all this, here is another wrinkle. There is a recent decision from the Georgia Court of Appeals where the Court confused the rules concerning which statute of limitation applies to the parent’s claim for medical expenses  and applied the medical malpractice two year limitation in cases that do not arise from medical malpractice.  Because the Courts have not yet corrected this mistake, suits for a parent’s claim for a child’s medical expenses should be filed within two years of the date of injury, even when no medical malpractice was involved.

There also are ante litem notice requirements. Ante litem notices are required anytime you have a claim against a governmental entity, such as Cities, Counties, States, or the federal government. Ante litem notices act like statutes of limitation. If you fail to notify the right department in the proper manner,  you and your child’s claim will be forever barred. Some of these deadlines are breathtakingly short, as short as six months from the date of injury.

If your head is not swimming by this point, it should be. Determining which statute of limitation applies to which part of what claims is not for the layperson. We lawyers have to check and double check it ourselves.

If you have any questions about these important issues, the time to call is immediately. Statutes of limitations are unforgiving. Let me help you make certain you do not miss a deadline. You can contact me here, here, or here.

Injury to Fetus During Automobile Accident – Reforming Georgia Law

When a pregnant mother is involved in an automobile collision and her unborn child is injured or killed, do the parents have a claim for the harm caused to their unborn baby? And if so, is the claim viable no matter how early in the pregnancy the injury to the fetus occurs?

The answer to the first question in the State of Georgia is “It depends.” The answer to the second question is currently “No.” but I would argue that the answer should be “Yes.” and Georgia law should be reformed. If I’ve thoroughly confused you with those answers, read on for a fuller explanation!

In the State of Georgia, under Porter v. Lassiter, 91 Ga. App. 712 (1955) and its progeny the central issue has been framed in terms of the legal fiction of “quickening.” An unborn child that has quickened and then is injured or killed has legal rights. An unborn child that has not reached that stage of development has none.

Georgia law does not give a definite time in a pregnancy when quickening occurs, but decisions have stated that quickening generally occurs sometime between the tenth week and the fourth month of pregnancy. See Brinkley v. State, 253 Ga. at 542; Biegun v. State, 208 Ga. 618, 627 (7) (58 SE2d 149) (1950). The Courts have held that the relevant question is whether the baby has reached the stage where the mother can feel fetal movement. See. Citron et al. v. Ghaffari et al (246 Ga. App. 826) (542 SE2d 555) (2000)

Georgia is unique in its adherence to the legal fiction of “quickening.” The majority of jurisdictions that recognize a cause of action for wrongful death of a fetus limit such actions to claims arising after the fetus is viable. A viable fetus is “capable of independent existence outside his or her mother’s womb, . . . even if only in an incubator.” Black’s Law Dictionary, p. 1566 (6th ed. 1990). Viability thus presumably occurs later than quickening. Only a few states recognize a cause of action for wrongful death at any point in a pregnancy.

I believe Georgia law should recognize a cause of action for wrongful death or injury to an unborn child at any point in a pregnancy when the death or injury flows from the negligence of a person other than a family member. The Georgia legislature has already provided a basis for such a change when in 1991 it passed into law a Feticide by Vehicle law that applies to the earliest stages of pregnancy. For purposes of criminal prosecutions under O.C.G.A. § 40-6-393.1(a), an “unborn child” is defined as a member of the species homo sapiens at any stage of development who is carried in the womb.

The existence of a Georgia Fetal Protection Act (sometimes referred to as a PreBorn Victims Act or Unborn Victims Act) defining Fetal Homicide in a manner that includes babies at all stages of development in the womb has other important ramifications that could assist a family in securing fair and adequate compensation for an injury to their baby. It has to do with how much insurance coverage may be available to compensate the family of an injured unborn child.

Many insurance policies provide a set amount of coverage for each person that was injured. So, within the overall limits of the policy, each additional injured person increases the pool of funds available for compensation. The recognition by the State of Georgia that an unborn child is “a member of the species homo sapiens” should be interpreted by the Courts to mean that for purposes of determining insurance coverage, unborn children are treated as separate and distinct persons, thereby increasing the pool of funds available to compensate child victims and their families.

Just to be clear, however, the current state of the law in Georgia is that in order to recover for injuries to an unborn child, it must be shown that at the time of the injury/death the child had reached a stage in its development where the mother could feel fetal movement. This has been recognized to occur somewhere between the 10th week and 4th month of pregnancy. That is a wide window – the key to proving quickening is to have some documentation (commonly a medical record) that the mother had been feeling fetal movement prior to the injury or the testimony of a doctor that the baby had reached the stage of development where the mother could have felt movement.

03/13/2012 UPDATE: Be sure to check out my more recent reflections on this topic and some good news from the State of Alabama.

 

IKEA Recalls Children’s Tents Over Potential of Laceration & Puncture Child Injury

Swedish furniture store IKEA recently announced it has recalled a children’s folding tent it sold in August and September of 2011. The steel wire frame of the BUSA children’s folding tent is defective and can break, producing sharp wire ends that can protrude through the tent fabric and injure a child. The wire ends are a laceration and puncture hazard.

IKEA sold about 58,000 of the tents in the United States and Canada during the months of August and September. The brand names IKEA and BUSA and the model number (90192009) are printed on a label sewn into an interior seam in the tent.

According to IKEA, three incidents have occurred with this tent already, one involving an injury.

Here is what the tent looks like –

If you or your child have been injured by this defective toy, please call me to discuss your legal rights.

Dangerous Toys – Magnets That Can Be Swallowed by Children – Product Liability & Child Care Provider Liability

The Consumer Product Safety Commission is again warning parents and caregivers about the the danger of child injuries caused by magnets in toys.

When a child swallows one magnet the health consequences may be negligible, but swallowing two or more can be fatal. This PSA explains why –

Since 2008 a federal safety standard prohibits magnets and magnet components that are loose and of a size that could be swallowed to be in toys for children under 14 years of age.

There have been product liability lawsuits filed against the manufacturers of toys that sell products containing magnets that can fall out and end up swallowed by a child.

In 2008 Rose Art Industries settled a lawsuit over its “Magnetix” toy after magnets from it caused personal injuries to a 4-year-old boy. The child had swallowed magnets from the toy that lodged in his intestines. The magnets damaged the boys digestive system and he now suffers from persistent constipation, diarrhea and abdominal pain and must eat a special diet.

Also in 2008, MEGA Brands recalled 1.3 million MagnaMan Magnetic Toy Figures because the toys had small magnets that can come off and be swallowed by children.

The most recent warning from the Consumer Product Safety Commission alerts caregivers to the dangers posed by so-called “desktoys” – toys designed for adults to keep on a desk top. Two such toys are Nanospheres and Buckyballs. When caregivers ignore labels which warn to keep these toys away from children, tragedy can strike. Toddlers can pick them up from tables, sofas, and the floor and swallow them. Severe injuries can result.

Child care providers who fail to keep these types of toys away from children may be liable for any personal injuries that result. Day cares, schools, camps, and others should not allow these toys to be present on the premises. Child care providers have a legal duty to keep dangerous toys away from the children for whom they are responsible. School officials also have a duty to prevent tweens and teens from bringing toys containing magnets to school and sharing them with friends.

With tweens and teenagers, the danger may involve how the product is being used – some children have unintentionally inhaled and swallowed magnets when using them to mimic body piercings. These older children are placing two or more magnets on opposite sides of their ear lobes, tongue and nose – sometimes resulting in ingestion or inhalation of the magnets and injuries. School officials have a duty to be vigilant about preventing children from bringing such magnetic toys with them to school.

If your child has suffered injuries as a result of one of these toys and you feel the product manufacturer or a child care provider/school officials has been negligent, you should speak with an attorney about the possibility of bringing a legal claim.