Client Alerts

Georgia Court of Appeals Outlines “Clearer Bright-Line Rule” for the Scheduled Break Exception
November 28, 2018

A recent ruling by the Georgia Court of Appeals clarified whether the ingress and egress rule applies to the scheduled break exception. The court previously determined an injury does not arise out of and in the course of an employee’s employment while on a scheduled break where the employee is free to use the time as he chooses even if he remains on the employer’s premises. However, the court also previously established the ingress and egress rule, which indicates an injury occurring within a reasonable period of time while the employee is on the employer’s premises preparing to begin or end work does arise out of and in the course of his employment.

In Frett v. State Farm Employee Workers’ Compensation, the claimant slipped and fell while on a scheduled lunch break as she was leaving the breakroom to go outside to eat her lunch. The Court of Appeals affirmed the Board and Superior Court’s denial of benefits. In its ruling, the court noted a clearer bright-line rule is needed regarding the application of the scheduled break exception and how it intersects with the ingress and egress rule. The court concluded the ingress and egress rule does not apply to the scheduled break exception. The court further disapproved its previous holdings to the contrary where it had extended the ingress and egress rule to cover cases where an employee was injured while leaving and returning from a regularly scheduled break.

However, the Court of Appeals noted within its opinion any decision to apply the ingress and egress rule to the scheduled break exception should be made by the Georgia Supreme Court. Frett has applied for certiorari of the Court of Appeals decision to the Georgia Supreme Court. Unless the Georgia Supreme Court indicates otherwise, the bright-line rule established by Frett is that the ingress and egress rule does not apply to the scheduled break exception. Consequently, an employee injured on a scheduled break on the employer’s premises where he is free to use the time as he chooses is not entitled to workers’ compensation benefits, even if this injury occurs while the employee is departing for or returning from the scheduled break. Chad Harris at Swift Currie is handling this case.

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Court of Appeals Upholds Summary Judgment for Heating Pad Manufacturer
November 15, 2018

A recent ruling by the Georgia Court of Appeals reaffirmed a plaintiff’s burden in product liability cases that allege a design defect.

In Sheffield v. Conair, a woman fell asleep while lying on a new heating pad. She woke up with her bed in flames. The fire chief determined the fire started near the heating pad, but could not say what caused the fire. The trial court granted the heating pad manufacturer’s Motion for Summary Judgment, finding the plaintiff had not put forth evidence that the heating pad was defective. “Unlike cases involving allegations of a manufacturing defect, a design defect case does not allege that the product in question was uniquely defective, but instead calls into question an entire product line.”

The appellate court analyzed three questions:

  1. Was there sufficient evidence giving rise to a triable issue of fact that the fire was the result of an improper design?
  2. Did the plaintiff meet her burden of identifying specific evidence establishing a causal connection between the fire and a design defect?
  3. Did the manufacturer fail to warn of the design defect?

On the first question, the appellate court noted that in order to fulfill its basic function, a heating pad necessarily contains a heating element that by its very nature, is capable of producing a dangerous condition. The appellate court concluded no evidence was presented by the plaintiff that the fire, even if caused by the heating pad, was the result of an improper or defective design. This finding alone entitled the manufacturer to summary judgment.

In response to the second question, the Court of Appeals reiterated a plaintiff’s burden of establishing proximate cause and found the evidence in the record only allowed for an inference that the heating pad caused the fire. That inference did not extend to the cause being the result of a design defect. Inferences “must be based on probabilities rather than mere possibilities.” To satisfy his or her burden of proof by inference, “that inference must not only tend in some proximate degree to establish the conclusion, but render less probable all inconsistent conclusions.”

Finally, the Court of Appeals addressed the third question by pointing out the failure of the plaintiff to point to any evidence of a design defect necessarily defeated the failure to warn claim, which only arises when the manufacturer knows or reasonably should know of the danger arising from the use of its product.

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Georgia Court of Appeals Does Not Extend Exceptions to Georgia’s Impact Rule
October 22, 2018

In a pending wrongful death lawsuit arising out of a recreational boat incident on Lake Burton (located in North Georgia), the Georgia Court of Appeals accepted an interlocutory appeal on the issue of the emotional distress claims of three children who witnessed the death of another child in their family. The appeal is captioned Malibu Boats, LLC v. Batchelder.

Four children were riding in the bow of a boat driven by their uncle. While the children argued about whether to keep boating or return to the dock, the boat made a circular turn causing it to strike its own wake. Water came into the bow of the boat and up to the children’s shins. One child jumped out, two crawled over the windshield towards the back of the boat and one child was missing.

The boat was put in reverse in an attempt to keep it from foundering. The engine was then stopped and people were yelling about the missing child. Both the boat operator and father of the missing child jumped into the water and found the missing child entangled in the propeller. The other three children had injuries of their own, including a scraped stomach from attempting to get back in the boat, a bruised shin, hyperventilating and vomiting.

The lawsuit involved a variety of product liability claims along with the emotional distress claims of the children. The boat manufacturer moved for summary judgment. On the issue of the emotional distress claims, the trial court denied the motion, finding it was for a jury to decide whether: (1) the children suffered a physical impact; (2) the physical impact caused physical injuries; and (3) the physical injuries resulted in any emotional distress to the children.

In a review of Georgia’s impact rule, the Court of Appeals affirmed the trial court’s ruling on the emotional distress claims (and agreed it was for the jury to decide whether water in the form of a wake hitting the children constituted a physical impact).

However, the Court of Appeals concluded the trial court was incorrect in suggesting the children may recover emotional damages solely based on the “traumatic scene.” In so doing, the Court of Appeals reaffirmed Georgia’s adherence to the impact rule, which has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.

While acknowledging the harshness of the impact rule, the Court of Appeals restated the only recognized exception to the rule is for certain instances when a parent witnesses the suffering and death of his or her child. For the exception to apply, the parent and child must both suffer a physical impact that causes them both physical injury. The parent will then be authorized to seek emotional damages arising out of his or her own physical injuries along with the mental suffering of watching his or her child suffer and die.

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Change in WC-1 Filing Requirement in "Medical Only" Claims
July 3, 2018


Effective Jan. 1, 2019, the Board will require that a WC-1 be filed in all claims, regardless of whether income benefits are paid or not. Previously, a WC-1 was not required to be filed in “medical only” claims. Pursuant to O.C.G.A. § 34-9-12(a), the WC-1 must be filed within 10 days of the employer’s notice of the accident. While this change does not take effect for another six months, Swift Currie recommends getting into the habit of doing so now so that it is a regular practice by Jan. 1, 2019. Keep in mind that failure to file Board forms, including the WC-1, could subject you to attorney’s fees or civil penalties. Please see the link below to download a sample WC-1 form.

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Bibbs v. Toyota Motor Corp.
June 29, 2018

In Bibbs v. Toyota Motor Corp., No. S18Q0075, 2018 Ga. LEXIS 443 (Ga. June 18, 2018), the United States District Court for the Northern District of Georgia certified two questions to the Georgia Supreme Court:

Under Georgia law, are the damages that may be recovered in a wrongful death action brought by survivors of a decedent limited by a settlement entered into by the decedent’s guardian in a previous personal injury suit settling all claims that were or could have been asserted in that suit?

If the answer is yes, what components of wrongful death damages are barred?

The 2018 opinion arises from a 1992 car accident that resulted in Delia Bibbs sustaining a head injury that left her in a coma. Bibbs’ husband filed a lawsuit within months after the 1992 accident, seeking to recover damages for her personal injuries. The case went to trial and ultimately settled through a “high-low” agreement. In the settlement agreement Toyota denied wrongdoing and was released from all claims and damages arising from the accident. Specifically excluded from the release was “any claim for Delia Bibbs’ wrongful death, inasmuch as [she] has not died and no such claim was made or could have been made in the [personal injury lawsuit].” Two decades later, Delia Bibbs died and her family filed a second lawsuit, this time seeking wrongful death damages for the full value of her life.

The Georgia Supreme Court answered the first certified question in the affirmative, stating damages in a wrongful death action are limited by Bibbs’ settlement in the earlier filed personal injury lawsuit. The Supreme Court went on to explain the damages that may recovered in the later filed wrongful death lawsuit. In a lengthy opinion, the Supreme Court stated:

Having fully settled her personal injury lawsuit, Bibbs is presumed to have recovered the damages she was entitled to receive at that time as a result of her catastrophic physical injury. She was fully compensated under the law for the fact that she was, and would remain for the rest of her life, totally and permanently disabled — just not for the additional fact of her death. Having thus recovered, she was made whole (in the legal sense) and could no longer recover for the economic and non-economic damages stemming from her disability. To hold otherwise would be to allow impermissible double recovery.

The Court concluded that given the catastrophic nature of Delia Bibbs’ injuries, the settlement in the first lawsuit addressed the full measure of her economic damages, leaving no economic damages for the wrongful death lawsuit. However, the Court went on to state non-economic damages may be recoverable, as the Court cannot say as a matter of law there is no difference in value between living in a permanent coma and not living at all.

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