Georgia Injury Lawyer Blog

Williams Oinonen LLC (Good Georgia Lawyer) is a member of AAJ, the American Association for Justice. AAJ shares the same commitment as Williams Oinonen LLC, making certain people have a fair shot at obtaining justice through the legal system when they are injured by the wrongdoing or negligence of others. We believe this even when it means challenging big foreign corporations. The problem is that a recent ruling by the United States Supreme Court this past month makes it even harder to challenge foreign corporations and easier for companies outside the United States to get off the hook when they create a product that injures or kills an American consumer.

The U.S. Supreme Court's decision in McIntyre Machinery v. Nicastro is the case that creates challenges and makes it much more difficult to hold foreign manufacturers accountable in the U.S. court system.

American Association for Justice Gibson Vance commented on this decision stating: "Simply put, foreign companies that market and sell their products in our country should not be able to evade accountability. . . In our global marketplace, this decision will allow foreign manufacturers to sell their products without adhering to our safety standards."

Legislation commenced in the last Congress - the Foreign Manufacturers Legal Accountability Act - would insure that foreign manufacturing companies are held accountable to the same United States safety standards or be held subject to our civil justice system by requiring, as a condition of entering the markets, foreign corporations to have a registered agent to accept service (the papers which are "served" to a defendant subjecting him to a lawsuit) on behalf of foreign manufacturers. Doing so would mean that they automatically were subject to jurisdiction in U.S. courts, one challenge to holding foreign manufacturers to the same safety regulations as corporations in the United States.

"This decision not only hurts consumers, but also U.S. distributors and businesses that must adhere to safety laws and regulations that foreign manufacturers can avoid," said Vance. "Congress must act quickly to address legal jurisdiction in our global marketplace."

According to the AAJ, 83 percent (312) of the 377 recalls announced by the Consumer Product Safety Commission (CPSC) in 2009 were from foreign corporations!

Big powerful lobbyists through an intense lobbying and media campaign effort have tried to convince Americans to think there are too many frivolous lawsuits out there. But the real truth is that these lawsuits are often the last defense and safety net against violations of our constitutional rights and against large corporations who violate American consumer rights without redress. Whether it is going after Chinese manufacturing companies that are pumping toys that contain poisonous lead into our market, or whether it is a violation against one's freedom of religion (First Amendment) or freedom to bear arms (Second Amendment), the Seventh amendment is the one recourse that provides Americans with a constitutional right to a civil jury system to insure that our rights are enforced and our liberties are protected.

Whether you are a Tea Partier, Republican, or Democrat, everyone who believes in protecting and preserving our United States Constitutional rights should be concerned about the insidious attack on our 7th amendment right to civil justice. Unfortunately, the recent United States Supreme Court's ruling has made it even more difficult for Americans to use their 7th amendment right when they require civil justice because of violations and wrongs done by a foreign corporation. Whether it is foreign imported baby milk that contains poison or a foreign made vehicle that explodes killing our loved one--we need to insure that foreign corporations are held to the same safety standards as American companies. And we need to insure that Americans have the same constitutional rights to seek legal redress for wrongs committed by foreign corporations just like they would have against a U.S. domestic corporation.

There should not be a double standard. What is good for the goose should be good for the gander. If foreign corporations are allowed to do business here, they need to be willing to play by our rules. No one should have the right to injure or kill an American consumer by hiding behind a foreign veil of protection and evading the American civil justice system.

For more information on the 7th amendment Constitutional right to a civil justice system, we recommend reading our previous article here.

Good Georgia Lawyer's favorite consumer advocacy group Public Citizen is pushing the FDA to issue a recall for a vaginal mesh used for women dealing with incontinence and other health issues. The consumer group warned that this product carries a high risk of serious injury for women.

Public Citizen filed a petition with the Food and Drug Administration urging them to recall the mesh to prevent women being exposed to serious life altering injuries.
The Food and Drug Administration did state that women who have these mesh implants are at greater risk of bleeding, infection, and pain compared to a more traditional surgery.

FDA's chief scientist Dr. Williams Maisel stated:"The added benefit of using the mesh is not evident, but there certainly appears to be an added risk,"

Over half a million women each year have surgery for incontinence of pelvic organ collapse and have had this mesh inserted through the vagina.
Between 2008 and 2010 the FDA received more than 1,500 reports of complications involving this mesh for women dealing with pelvic organ collapse also known as "prolapse."

FDA scientists now admit that they were mistaken about this mesh and that it does carry risk. Nevertheless, despite the high rate of injury, the FDA will not recall the mesh because some patients still benefit. Nevertheless, patients that have suffered excruciating injury due to this mesh inserted into their vagina think otherwise. Various symptoms have included:

Infection
Urinary problems
Pelvic and Vaginal Pain
Vaginal Pain
Injury to organs
Difficulty with sex including vulvodynia (vaginal pain).

Good Georgia Lawyer has written extensively about defective products in other articles. We have explained that in Georgia, manufacturers are held strictly liable in products liability tort actions. Georgia law does this to protect the consumer buyer by shifting the burden of the loss to the wrongdoer who manufactured the defective product which resulted in injury. The essential elements are: first, the manufacture of the product; second, a defective product; third, an injury to a natural person proximately caused by the defect; fourth, a sale of the product as a new product; and fifth, the existence of the defect at the time the product left the manufacturer's control.

Because defective products pose such a danger to consumers, products liability actions benefit not only the plaintiff but thousands of others who use the same product.
Manufacturers have a duty to warn consumers about the dangers and risks of using a product. Unfortunately, as in the case of this mesh, this does not always happen even when a product is approved by the FDA.

It is our hope that Public Citizen continues its good work for consumers and is successful in this recent petition to the FDA.

The American Disabilities Act prohibits employers from discriminating against employees on the basis of their disability. To be considered disabled under the ADA, you must have "a physical or mental impairment that substantially limits one or more major life activities" be a person who has a record or history of such an impairment, or be a person that is perceived to have such an impairment.

Title I of the ADA requires employers who have 15 or more employees to provide equal opportunities to qualified individuals with disabilities. For example, under Title I employers are prohibited from discriminating in hiring, recruitment, training, pay, and other employment privileges. Title I also prevents questions that an employer can ask about a prospective employee's disability before the job offer is made. It also requires that employers provide reasonable accommodation to the known qualified individual with disability unless it creates undue hardship for the employer.

How do you ask for a reasonable accommodation?

All you need to do is to let your employer know that you need an adjustment or change at work due to a medical condition. Employees may use "plain English" and need not mention the words "reasonable accommodation" or ADA. Additionally, requests can be made orally and do not need to be made in writing. Nevertheless, documenting things are always a good idea in the event you face problems in the future.

What are types of reasonable accommodations?

Any kind of modification to the work environment or adjustment as to how a job is performed that may include: restructuring the job position, modified work schedules, making facilities accessible, modifying equipment, providing qualified interpreters, reassignment to a vacant position. Examples of this would be if an employee who works the cash register has a physical disability and needs to request a stool to sit down while working. Another example might be a deaf employee who a TTY service to answer the phone. These are all examples of "reasonable" accommodations. Employers do not have to lower production standards, but employers do need to provide reasonable accommodations so the disabled employee can meet that standard.

Employers only need to provide accommodations that are reasonable and do not possess undue hardship to them. Thus, employers don't need to provide accommodations that people use personally outside of work such as hearing aids or prosthetic limbs. They also don't need to provide accommodations that would cause great financial difficulty to the employer or that would disrupt and fundamentally alter the business operation. For more information on reasonable accommodations under ADA, we recommend you read the EEOC's page on enforcement guidance.

For employers: You should assess each reasonable accommodation request on a case by case basis and consult a lawyer for advice to make sure they are keeping in with the requirements of the law. This is essential to avoid liability and the expense of potential litigation.

For employees: If you do feel your employer is violating your rights under Title I of the ADA, complaints must be filed within 180 days of the date of discrimination, or 300 days if the charge is filed with a designated State or local fair employment practice agency. Individuals cannot file a lawsuit until they receive a "right to sue" letter from the EEOC.

A very sad tragedy occurred for a Clayton County, Georgia family this past weekend. Franky J. Cassidy, a 24-year-old man was struck and killed while riding his motorcycle home from work. Marvlyn Eugene Martin, was drunk driving when he ran into Cassidy's motorcycle head on at 4 a.m.

Police stated that Martin had a blood-alcohol count of .192 percent, more than double the legal limit. Martin was charged with driving under the influence, homicide by vehicle, having an open container of alcohol in his vehicle and other traffic violations.

The Atlanta Journal Constitution reported that as of yesterday, Martin was held without bond on the homicide charge in the Clayton County jail.

The fact that Martin was driving intoxicated will certainly be admissible and would be the primary factor for proving punitive damages in a wrongful death lawsuit. At a trial of any civil or criminal action arising from actions alleged to have been committed by any person in violation of O.C.G.A. 40-6-391, evidence of the amount of drug or alcohol in a person's blood, breath, urine or other bodily fluid at the alleged time, as determined by chemical analysis shall be admissible. Cheevers v. Clark, 214 Ga. App. 866 (1994).

When a police officer requests a driver to submit to a chemical test because of actions alleged to have been conducted while driving a motor vehicle under the influence of drugs or alcohol, and the police officer arrests that persons, O.C.G.A. 40-6-392 requires that the police officer informs him at the time of the arrest of his or her right to an independent analysis to test the amount of drugs or alcohol present in the blood stream in order for the test administered by the police to be admissible at trial to prove the accused was driving under the influence of drugs or alcohol. Carswell v. State, 171 Ga. App. 455 (1984).

Continue reading "Wrongful Death for Clayton County Man Due to DUI Driver " »

Good Georgia Lawyer recently just explained when a contract needs to be in writing to be enforceable.

Today's article discusses when contractual agreements are enforceable without writing, for example, an oral agreement between two parties. When should this matter? Well, for one thing, in the event of a contract dispute, not having a contract in writing would certainly matter. Contractual disputes sometimes hinge on the meaning of a contract. One party says that they were promised by the other party to do something and the other party claims otherwise. This is why, as a general rule, it is always better to make sure you have a contract in writing.

But what if you don't? One of the defenses to a breach of contract lawsuit lies in the statute of frauds defense as explained in the earlier article, some contracts need to be in writing to be enforceable.

Nevertheless, there are times where the statute of frauds defense does not apply and you don't need the writing to prove that a contract does exists. The Official Code of Georgia § 13-5-31 explains that contracts don't need to be in writing under the following conditions:

(1) When the contract has been fully executed: An example would be if I paid Uncle Bob $500.00 to paint my house. Uncle Bob receives a check for $500.00 that he promptly cashes and paints my house. Here, the contract has been fully executed and both parties have done what was promised. If I want to sue Uncle Bob later because I allege he did such a terrible job, I don't need a written contract to prove that a contract indeed existed.

(2) Where there has been performance on one side, accepted by the other in accordance with the contract:: Under the same example, what if the performance above was merely one sided? I give Uncle Bob the $500 check which he promptly cashes. Unfortunately, Uncle Bob has fallen off the wagon and spends his days in the local watering house rather than painting my house. If I have to take Uncle Bob to court, can I prove there was a contract even though I didn't put it in writing? Yes! According to Georgia law, there has been performance on one side (my payment of $500) accepted by Uncle Bob in accordance with the contract.

(3) Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance: Let's say I don't pay Uncle Bob the $500 but wait till he finishes the house. Then he paints 95 percent of the entire house and I tell him "sorry sucker! I tricked ya, not gonna pay!" Here, Uncle Bob doesn't need a written contract to sue me because there has been such part performance of the contract that it would render fraud if I didn't pay Uncle Bob what he was owed.

These are some very general examples to give you an idea of when contracts don't need to be in writing under Official Code of Georgia § 13-5-31. Nevertheless, we hope by now you can tell that it is always a very good idea to make sure that contracts are in writing.

Because the law is so complex, it is also wise to have a good Georgia lawyer draft and/or review your contracts in order to insure that your legal rights and interests are protected. Contact Williams Oinonen LLC for more information.

Lawmakers out in Pacifica, California are currently discussing passing a law requiring pit bulls to be spayed or neutered after a pregnant woman, Darla Napora, was bitten to death dozens of times by her own pet pit bull. The pit bull, covered in Mrs. Napora's blood and hovering over her body when officers arrived, immediately was tied up by police officers. Unfortunately, the pit bull was able to break free and charged at the police officers as they tried CPR to restart Mrs. Napora's heart. The dog was shot by the police officers.

The law requiring pit bulls to be spayed and neutered was passed in San Francisco in 2005 after Dianne Whipple was killed by a dog in Jan. 2001 and 12-year-old Nicholas Faibish was mauled by his family pit bulls in 2005.

The President of Society of Prevention of Cruelty to Animals in San Francisco, Jason Walthall, admits that this law has no doubt been effective. Walthall stated: "We did see the number of pit bulls being surrendered to our shelters drop fairly dramatically."

Pacifica police said the pit bull that attacked Mrs. Napora was not neutered which can make dogs far more aggressive. Mrs. Napora was found by her husband who returned to the house from work at noon. When the police arrived they found the dog hovering around Mrs. Napora who was on the ground with serious trauma to her face and upper body.

The Napora's closest neighbor said the dogs had always been well behaved and that Mrs. Napora had control over the dogs--that she would call them and they'd back off. The dogs responded well to her and Mr. and Mrs. Napora had owned the dog since it was a puppy. Lesson of this story? Just because you think you can control your pit bull, doesn't mean they can't and won't turn on you or someone else!

This is truly a tragedy and our thoughts and prayers go out to the Napora family. Our concern in Georgia is that it is only a matter of time before such a tragic incident happens in this state. All too often, we see victims of terrible dog bites from owners who do not properly restrain and train their dogs. Additionally, many people who have no understanding about the viciousness of dangerous dogs such as Pit Bulls and Rotweilers, naively think that their dog does not have that capacity.

Good Georgia Lawyer has been saying this for awhile. All too often, we see owners who do not carefully train their dogs or assume because their Pit Bull is gentle and affectionate, they have control of the dog, unaware that this type of dog can turn on a human in a minute.

For more information on understanding dog bite law in Georgia, please read our article here. For more information on what to do in dealing with the aftermath of a dog bite, please read our article here. Contact Williams Oinonen LLC for more information.

We have discussed the definition of what a contract is in the state of Georgia. We've also discussed the different types of contracts in Georgia. And we've discussed rules for interpreting contracts here in Georgia.

Today we are going to discuss when a contract needs to be in writing. Another name for this is called "statute of frauds" which is a defense someone can use when they are sued for a breach of contract. It is a good defense because it keeps people from making up lies that aren't true.

For example, even though a contract can at times be in the form of an oral agreement, what keeps my Uncle Bob from fraudulently filing a lawsuit and then telling a judge that I promised to pay him a million dollars in exchange for his rickety old shack that is falling apart? Obviously, I never would promise Uncle Bob, or anyone else that matter, one million dollars to buy their rickety old shack that is falling apart. But what keeps Uncle Bob or someone else from fraudulently claiming such an oral contract exists? Well, the answer lies in something called the statute of frauds: the requirement that certain contracts need to be in writing so you can prove the truthfulness of their existence and show that someone is not committing "fraud" by lying about a contract that does not exist.

The statute of frauds is set out in O.C.G.A. § 13-5-30 entitled "Agreements required to be in writing." It says:

"To make the following obligations [requirements, legal promises, contractual responsibilities] binding on the promisor [the person who promised to do something in the contract agreement], the promise [also known as the contract] must be in writing and signed by the party to be charged [the person who is promising to do something] therewith or some person lawfully authorized by him [i.e. that person's agent who has legal authority to enter into contracts on behalf of that person].

Here are the contracts that are required to be in writing:

(1) A promise by an executor [someone assigned to handle a will], administrator [someone assigned by the court to handle a person's property after they die if there has been no will], guardian [someone who takes care of someone else], or trustee to answer damages out of his own estate [if someone is owed money because of an injury caused to them by someone who has died it would have to come out of what is known as their estate. This debt or judgment would have to be in writing, either by a court order or by a written contractual agreement.];

(2) A promise to answer for the debt, default, or miscarriage of another [if someone stopped paying/defaulted on their student loan their co-signer's agreement to be responsible for that loan and to pay for it would need to be in writing];

(3) Any agreement made upon consideration of marriage, except marriage articles as provided in Article 3 of Chapter 3 of Title 19 [for example a prenuptial agreement];

(4) Any contract for sale of lands, or any interest in, or concerning lands [selling property to someone else, in the case of my example above, buying Uncle Bob's rickety shack];

(5) Any agreement that is not to be performed within one year from the making thereof [if the job will take over a year to do something then it needs to be in writing];

(6) Any promise to revive a debt barred by a statute of limitation [the statute of limitations on a written contract is six years, so if at the seventh year you agreed to pay the debt you owed it would need to be in writing to be enforceable]; and

(7) Any commitment to lend money [a banker promising to loan a small business person a loan needs to be in writing].

Those are all the different types of contracts that must be in writing to be enforceable. The moral of this story is to make sure that you get contracts in writing. Even if they don't fall under the statute of frauds, it is always better to have something in writing in the event of a business dispute. Better yet, because the law is so complex, it is very important to have a lawyer help you draft important contracts or and review important contracts before you sign them in order to protect your legal interests.

The AJC reported that a Cherokee County wrestling coach Robert Leslie Morrow, age 28, has been charged with sexual assault involving a 16 year old; and a teacher Kristin May, age 32, who failed to report it was also arrested.

The victim, who reported being assaulted, no longer attends school in Cherokee County.

Morrow confessed to the assault when interviewed by detectives. The victim reported the incident to a teacher, Kristin May, in January, but May did not contact police, according to the Cherokee County Sheriff. May, 32, of Canton, was arrested Thursday afternoon and charged with failure to report.

Under Georgia law, a suit against a public officer (like a teacher) 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. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d) (as amended 1991). 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. Reece v. Turner, 284 Ga. App. 282, 285 (Ga. Ct. App. 2007).

It is hard to sue a school official, but not impossible. If you are ever in a situation similar to what this student has suffered, we urge you to seek immediate help. For more information on your legal rights, contact Williams Oinonen LLC.

Yesterday, the Department of Justice and four states filed a multibillion-dollar fraud suit against EMC, the Education Management Corporation, known as the nation's second-largest for-profit college company. The states joining in the suit are California, Florida, Illinois and Indiana. The suit filed that EMC was not eligible for the $11 billion in state and federal financial aid it obtained from the United States government from 2003 through 2011.

The CEO of EMC was previously the head of the University of Phoenix, which has settled suits in the past related to very similar behavior.

While the civil lawsuit is one of many charging the ever growing for profit college industry, the case is the first where the U.S. government agreed to intervene on the whistle-blowers' claims that they consistently violated federal law by paying recruiters based on how many students it enrolled. The lawsuit alleged that each year, the for profit company falsely certified that it complied with the law, making it eligible to receive student financial aid.

The complaint alleged that EMC had a "boiler-room style sales culture" where admissions recruiters were told to use high-pressure sales tactics and exaggerated claims about career placement to increase student enrollment, regardless of a prospective students' qualifications. Recruiters were urged to enroll even those who were unable to write coherent English, who appeared to be on drugs or who applied to an online program but had no computer.

Under Georgia law, § 13-5-5, fraud makes a contract voidable and thus a student could sue for rescind the contract, to put herself back in the position she was prior to the contract. In this particular case, the "whistleblowers" are likely not students who have been hurt but former employees who may know of inside information on the company's fraudulent activity. This type of case is called a "False Claims," "Whistleblower," or "Qui Tam" lawsuit. It is based on a federal law (31 U.S.C. §§ 3729-3733) that imposes liability on persons or corporations who defraud the government.

The law includes a "qui tam" provision that allows people to "blow the whistle". Persons filing under the Act stand to receive a portion (usually about 15-25 percent) of any recovered damages. The government has recovered nearly billions of dollars as a result of these actions.

Good Georgia Lawyer has represented former students who have been exploited and mistreated by for profit colleges. For more information on whistleblower lawsuits, read our former article which explains whistleblower law further. If you have a potential whistleblower case, please contact Williams Oinonen LLC for more information.

Good Georgia Lawyer is sometimes asked by our business owners: "Can I sue for both fraud and breach of contract?" The answer is: "Yes you can!"

We have discussed this issue in a previous article, but we'll offer further reasoning: It has been well established for decades in Georgia law that the Plaintiff can plead alternative theories of both breach of contract and fraud and is entitled to pursue inconsistent remedies until judgment. See Estate of Sam Farkas, Inc. v. Clark, 238 Ga. App. 115, 517 S.E. 2d 826 (1999) (referring to both causes of action); Carpenter v. Curtis, 196 Ga. App. 234, 236, 395 S. E. 2d 653 (1990) physical precedent) ("Affirmance of the contract by the defrauded party does not necessarily deprive him of the right to sue for damages for fraud, as the right to affirm and the right to fraud damages coexist.")

Under O.C.G.A. § 13-5-5, fraud renders contracts voidable at the election of the injured party. Fraud ordinarily gives injured party option either to rescind contract so induced, or, by affirming contract, to claim damages as compensation. Barfield v. Farkas, 40 Ga. App. 559, 150 S.E. 600 (1929); Nalley & Co. v. Moore, 51 Ga. App. 718, 181 S.E. 429 (1935); Brown v. Ragsdale Motor Co., 65 Ga. App. 727, 16 S.E.2d 176 (1941).

What are the essential elements to show fraud? To prove fraud and deceit, you have to show: (1) that defendant made representations; (2) that at time defendant knew were false (or had what law regards as equivalent of knowledge); (3) that defendant made the representations with intention and purpose of deceiving plaintiff; (4) that plaintiff relied upon such representations; and (5) that plaintiff sustained alleged loss and damage as proximate result of the representations having been made. McBurney v. Woodward, 84 Ga. App. 807, 67 S.E.2d 398 (1951).

For more information on resolving a business contract or dispute, contact Williams Oinonen LLC.

Dear Dr. John Barge:

Our law firm urges you to submit a DOE proposed rule pursuant to O.C.G.A. §50-13-4(b) that protects our young Georgia student athletes from further injury and death due to heat related illnesses as a result of sports practice in high temperatures during the most dangerous months of the summer. As you know, just last week, two Georgia high school students have died from heat exposure during football practice - two deaths that should have been completely treatable and avoidable. These deaths are two too many.

Consequently, we ask that you take action by issuing State DOE recommendations to local county school districts, in addition to submitting a proposed rule concerning school sports safety before another student's life is put at risk.

Georgia high schools were allowed to begin "mandatory" outdoor football practice on Monday, August 1, during the midst of an oppressive heat wave. As a result, on Tuesday, two Georgia teenagers died after practicing in that heat. On Tuesday morning, Fitzgerald High School defensive lineman DJ Searcy, 16, died after practice with his team's football camp in Lake City, Florida. Later in the evening, Locust Grove High School offensive lineman Forest Jones, 16, died after passing out and spending a week in a coma after a voluntary workout with his team.

The problem, as Dr. Ralph Swearngin, Executive Director of the Georgia High School Association (GHSA) has publically admitted, is that the decisions regarding these issues are left solely to the judgment of coaches and respective school administrators. Unfortunately however, a significant lack of judgment has been displayed. It is also clear that GHSA as a voluntary association is not the suitable authority to hold schools accountable as they have limited enforcement mechanisms. Thus we urge you to step in to address this issue as you possess the leadership to demand accountability.

I am enclosing in the body of my letter a portion of a very, good article which offers concrete recommendations for resolving this problem written by Buddy Morrison, an attorney at Butler, Wooten & Fryhofer. Mr. Morrison writes:

"These two deaths come on the heels of a report by the CDC that nearly one-fourth of all emergency room visits for heat illness are attributable to football, and that August is the most common month for heat illness to occur. Over the past fifty years, hundreds of football players have died from heat-related illnesses - with most of those deaths coming in the first couple of days of practice.

Unfortunately, Georgia schools are not doing nearly enough to protect students. The Georgia High School Association (GHSA) and its member schools have failed to properly regulate practice in the heat in order to prevent the onset of heat-related illness. Even after these two recent deaths, Georgia high school coaches are still subjecting children to overexertion in dangerous heat conditions. Even worse, schools are not taking adequate steps to diagnose heat illness. Finally, even when heat illness is diagnosed, schools are not taking simple steps that would make death from heat illness entirely preventable. In sum, August football practices at Georgia high schools are unreasonably dangerous.

In response to Tuesday's deaths, the GHSA shifted responsibility by noting that it requires individual schools to submit their own written policies for practicing football in the heat. The GHSA has also been conducting a study with Michael Ferrara, Ph.D. at the University of Georgia, to study the relationship between heat levels and heat illness, but that study has not yet been completed. The GHSA stated that it may implement a uniform heat policy in the future.

The GHSA began requiring heat policies from its member schools five years ago, when a Rockdale County football player suffered a heat-related death. The policies must specify the time of day practices may be held and the amount of time allotted to rest at various heat/humidity levels, as well as set a maximum heat/humidity level where outdoor practices must be terminated. Essentially, the school must implement a sliding scale related to the heat index - when the heat index is X, practice must start before Y. When the heat index reaches Z, practice must be canceled altogether or moved indoors.
The "sliding scales" drawn up by the individual schools vary widely from district to district. Dr. Frerrara noted that "we have seen some policies that have been conservative while others have allowed practice to continue in extreme conditions." More importantly, the policies do not apply to "voluntary workouts" during the summer - only to "mandatory" workouts. So long as the players are not required to be at the workout, the coach can hold the workout in any manner he chooses regardless of the heat index. According to the GHSA, both of the players who died this week were participating in "voluntary workouts" not subject to the GHSA or school regulations.

Even for the "mandatory" practices, including the critical first week of practice beginning August 1, GSHA schools are not required to submit written guidelines for the total amount of time spent practicing, the type of equipment worn, or procedures for diagnosing and treating heat illness. Instead, the GHSA practice rules simply provide that "mandatory" practice may begin on August 1, and that in the first five days of practice, at least two days must have "players dressed in shorts, helmets, shoulder pads, mouthpieces and shoes only." For the other three days, players may wear full pads. Further, schools can have "voluntary workouts" at any time, where the players may only wear helmets and mouthpieces.

The GHSA and its member schools need not apply such a haphazard set of rules - uniform, comprehensive guidelines for practicing football in the summer are not hard to find. In 2009, the National Athletic Trainers' Association (NATA) issued comprehensive guidelines for beginning football practice that are stricter than even the GHSA practice-time rules. The NATA recommends that the first two days of practice be helmets-only and that the next three days be limited to helmets and shoulder pads. The NATA further recommends that an athletic trainer be present at every practice, only one practice per day during the first five days of practice, a maximum of three hours of practice during the first five days, and no consecutive "two-a-days" (two practices in one day) during the second week of football practice.

It is clear that, even in the wake of these two deaths, some Georgia coaches are not taking the risk of heat illness and death seriously. This week, Temple High School and West Hall High School kicked off their football camps with three-a-day workouts, and continued doing so even after Tuesday's tragic news. Schools throughout the state are still conducting two practices a day. Although many schools, including Atlanta public schools, have canceled outdoor afternoon practices during the heat wave, other schools around the state have not altered their practice plans in response to the oppressive heat.

Other coaches mistakenly place the responsibility for proper heat acclimatization on the players themselves. The coach of Mt. Zion High School attributed heat issues to players "laying on their couch all summer." The coach of Carrolton High School suggested that players participating in the "voluntary workouts" handled the heat better than other players. (The NATA guidelines call for proper heat acclimatization for all players - even those who do not participate in the "voluntary workouts" throughout the summer.) Marion County High School actually depended on the voluntary workouts to get players acclimated to the heat. Coach Mike Swaney observed: "If you let the kids stay home in the air conditioning and let them play video games and watch TV -- if they don't do anything all summer -- they will be in a situation where they'd be in a state of shock to come out in this kind of heat."

Not only are Georgia high schools failing to take adequate measures to prevent heat illness, they are also failing to adequately diagnose and treat symptoms. Although most coaches now allow players to take a break and rehydrate whenever necessary, "sometimes coaches confuse heat stroke with goofing off, so they push the players harder," said William Roberts, M.D., former president of the American College of Sports Medicine.

The most effective way to determine if a particular athlete is suffering from heat illness is with a rectal thermometer. A body temperature of over 104 degrees Fahrenheit is considered to be heat stroke. High schools are not using the best objective method to diagnose heat stroke. Depending on the athlete to volunteer that he is experiencing symptoms is not enough - first, athletes often fail to report symptoms to exhibit their "toughness," and second, an elevated core temperature decreases the athlete's cognitive ability and judgment.

Even when a player does show symptoms of heat illness, teams often fail to take adequate steps to protect their players from further damage. Water, rest, and shade are not enough. Death from heat stroke is 100% preventable, but it requires immediate and correct medical attention. "You have to diagnose [heat stroke] quickly and treat it quickly or a cascade of bad events starts to happen," Dr. Roberts said. Players who show signs of heat illness should be placed in a tub of ice water, which can reduce body temperature from above 108ºF to below 102ºF in 20 to 40 minutes. Rehydration alone cannot stop heat stroke quickly enough. According to Douglas Casa, Ph.D., director of athletic training education at the University of Connecticut, if teams kept a "kiddie pool" of ice water available at practices, they could prevent heat-related deaths. Even in August's sweltering heat, most football teams fail to take this simple precaution.

While heat illness is more prevalent in high school football than other sports, no student-athlete is immune from its effects. Baseball, soccer, and cheerleading all have their share of heat-related illnesses, as confirmed by the CDC report. Also during this time of year, the marching band practices alongside the football team in the blazing heat. Notably, these sports and activities lack even the superficial safeguards that have been implemented for football.

This week has reminded us that mixing fall football with August heat is a deadly combination. Unfortunately for Georgia's student-athletes, schools are making football unreasonably dangerous by requiring too much practice in the heat and failing to properly care for players who suffer from heat illness brought on by that over-exertion. Two sixteen-year-old boys died on Tuesday from a condition that was both 100% avoidable and 100% treatable."

Dr. Barge, we appreciate your public service to the citizens of Georgia. We ask that you address this very pressing issue before any other young person loses their life. These deaths resulted from negligent acts that occurred due to a lack of training, awareness, and judgment. If the Georgia DOE would issue guidance in addition to a proposed rule concerning athletic safety, this could insure that no other Georgia student is put at risk in the future.

Very truly yours,

JULIE J. OINONEN

Cc: Governor Nathan Deal

Question: Dear Good Georgia Lawyer,

Recently my husband purchased a set of used mechanical engines from a dealer who advertised the engines had "never been in previous wrecks." The dealer also never provided us with any implied "as is" warranty disclaimer until after we bought the engines. Shortly after buying the engines, we learned that they had been salvaged from previous wrecks. What are our legal rights under the Georgia Fair Business Practices Act?

Answer: Defendants engaged in unfair and/or deceptive business practices which violated the Georgia Fair Business Practices Act O.C.G.A. §10-1-390 et seq by failing to provide the implied warranty disclaimer prior to this consumer transaction. Defendant further engaged in unfair and/or deceptive business practices by expressly warranting that the engines "had never been in wrecks."

Notably, the Georgia Office of Consumer Affairs Auto Advertising and Sales Practices Guide explains that if an advertisement made implied or express representations that have the capacity, effect, or tendency of misleading consumers without certain qualifying information, the failure to disclose the information is a violation of the Fair Business Practices Act.

Furthermore, qualifying information must always be clearly and conspicuously disclosed, meaning that it is presented in a reasonably understandable format. Consumer buyers should not have to search for terms and conditions. Advertisements will be considered deceptive if necessary disclosures or disclaimers are not made, if facts that are material are not stated, and if disclaimers/disclosures are inconspicuous. See, e.g., Energy Four, Inc. v. Dornier Medical Sys., Inc., 765 F. Supp. 724, 731-733 (D. Ga. 1991).

What is an inconspicuous representation? If consumers need to search for the disclaimer in fine print that they can barely read or on the opposite side of an advertisement, this is an example of inconspicuous.

Examples of deceptive disclosures:

1. Asterisks and footnotes that make they buyer look
to another place in an advertisement;
2. The use of any print size so small as to be not easily readable. Any type
size 10 point or larger is considered easily reasonable.

When buyers justifiably rely on sellers knowing, false advertising, false representations and inducement tactics, a violation occurs. When a seller commits unfair and/or deceptive practices, they buyer is entitled to both general and exemplary damages, as well as being entitled to treble damages because of the intentional violations under the Georgia Fair Business Practices Act. See Conseco Finance Servicing Corporation v. Hill, 252 Ga. App 774 (2001).

A written notice giving a thirty day demand to the seller, which under Georgia law is to be liberally construed, must be timely sent prior to the filing of a Fair Business Practices Act violation. See Lynas v. Williams, 216 Ga. App. 434, 435 (1995).

Contact Williams Oinonen LLC for more information on the Georgia Fair Business Practices Act at 404-654-0288.

Recently, a client hired us to solve a legal question/problem about a used mobile home that they recently purchased:

Question:

Dear Good Georgia Lawyer:

I recently purchased a used mobile home from a mobile home dealer. They never told me that they were selling it "as is". They never gave me any "as is" implied warranty disclaimer form until after I had made the purchase. Then they suddenly tried to claim there was no implied warranty. Unfortunately, the very day after I purchased it, the engine exploded destroying the front part of the mobile home. Do I have a claim for breach of implied warranty?

Answer:

In this situation, the sellers never provided you the implied warranty disclaimers disclosures prior to the sale of the mobile home. O.C.G.A. §11-2-314 holds that unless excluded, a warranty that the goods shall be merchantable (fit for the ordinary purpose for which goods are used) is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Georgia courts have held that an implied warranty is not excluded when a paragraph written in same size and color type as all other paragraphs on back of form fails completely to comply with O.C.G.A. § 11-2-316 for excluding the warranties implied by law in O.C.G.A. § 11-2-314. Chrysler Corp. v. Wilson Plumbing Co., 132 Ga. App. 435, 208 S.E.2d 321 (1974).

Additionally, Georgia courts have held that a waiver must be clear and certain. Contracts intended to waive implied warranties written into the sale by law should be clear and certain on that point. Wilson v. Eargle, 98 Ga. App. 241, 249, 105 S.E.2d 474, 479 (1958) (decided under former Code 1933, § 96-301). Furthermore, the courts have determined that an inconspicuous disclaimer in installment contract could not constitute exclusion of implied warranty of seller that mobile home was fit for ordinary purposes. BCS Fin. Corp. v. Sorbo, 213 Ga. App. 259, 261, 444 S.E.2d 85, 88 (1994).

Moreover, Georgia courts have ruled that a writing would, regardless of its "conspicuousness," be ineffective to disclaim the implied warranty of merchantability if that writing nowhere specifically mentions "merchantability." Leland Indus., Inc. v. Suntek Indus., Inc., 184 Ga. App. 635, 362 S.E.2d 441 (1987).

Because the sellers never once made any mention of "merchantability," or "as-is" or provided you with any type of implied warranty disclaimer prior to the sale, then according to the law they failed to disclaim the implied warranty of merchantability. Consequently, you do have a legal claim against them for breach of implied waranty.

Oftentimes our clients hire us to resolve interesting questions and problems. Here is a recent one that addresses the issue of express warranties:

Question:

Dear Good Georgia Lawyer,

Recently I bought a used boat from a boat shop off of Ebay from a boat shop dealer. They advertised in writing: "This boat is off my front line and it needs nothing but a new home!!. . . Has undergone a 125 point inspection. . Great Boat!. . . I do not sell any boats from my dealership that have issues and problems." As soon as the boat arrived from the seller at my home on Lake Lanier, I turned the ignition on and it immediately caught on fire. Do I have a claim for breach of express warranty in Georgia?"

Answer:

Under O.C.G.A. §11-2-313, express warranties by the seller are created by "any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain," or "any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description." Moreover, it is not necessary to the creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that he have a specific intention to make a warranty. Defendants breached their express warranty to you in particular, that: "This boat is off my front line and it needs nothing but a new home!!. . . Has undergone a 125 point inspection. . Great Boat!. . . I do not sell any boats from my dealership that have issues and problems." Notwithstanding such warranty, the boat did have issues and problems catching on fire as soon as the ignition was turned on. It would be important to have an expert fire inspector identify the cause and origin from this fire to determine that would have clearly been identified in a thorough 125 point inspection. Based on the facts as you have thus shared, it does sound that the express warranty was in fact breached.

The law states that expressly warranted statements by the Defendants cannot be negated even by any other warranty disclaimer. E.g. City Dodge, Inc. v. Gardnere , 232 Ga. 766, 208 S.E.2d 794 (1974). In City Dodge, Inc. v. Gardnere the Georgia Supreme Court held that an express warranty that the car dealer had made "that the car had not been wrecked" was not negated even though the car dealer sold the car "as is" in the purchase agreement. Moreover, the courts have also held that it is unreasonable to allow an express warranty to be negated by disclaimer of warranty in the same contract. Century Dodge, Inc. v. Mobley, 155 Ga. App. 712, 272 S.E.2d 502 (1980). Consequently, the express warranty could not have been disclaimed regardless and a breach very likely occurred.

Contact Williams Oinonen LLC for more information on contracts and warranties.

The Official Code of Georgia § 13-4-101 explains the elements and requirements of what is known as "accord and satisfaction." Accord and satisfaction happens when two parties to a contract, by a subsequent contract, have satisfied the first previous contract, and the subsequent contract has been executed.

What does this mean in simple, plain English?

Well, there are two parts to this law. In a nutshell, the execution of this new, second agreement may amount to a satisfaction of the first, older former contract for two reasons:

1. First, where it is so expressly agreed by the parties (both people state so); or

2. Second, if there was no such agreement to satisfy the first contract, if the new promise is founded on a new consideration (a promise to do something like pay money), the taking of it is a satisfaction of the former agreement.

Here is a good and easy example to understand what it means:

What if I had a contractual agreement with my Uncle Bob that I would hire him to build me a backyard shed for $30,000? Uncle Bob and I agree that I will pay him $10,000 to start the project and $5000 at the end of each week until he is finished.

Unfortunately, during the course of the shed building, Uncle Bob starts drinking again and can barely pick up a hammer to nail a board in straight. The shed turns out completely lopsided and crooked. I tell Uncle Bob that there is no way I am paying him $30,000 for this shed that looks like the leaning tower of Pisa. So, Uncle Bob and I make a new agreement, subsequent from our first contract where I pay him $20,000 rather than the $30,000 I originally promised him.

What is the consideration in this new subsequent agreement? The consideration is that for a $10,000 savings, I gave up what I was entitled to: a well-constructed shed. Uncle Bob gives up his right to full price to avoid being sued for a shoddy performance. Once accord and settlement has occurred, Uncle Bob and I have given up the right to sue for more money under this settlement agreement.

Months later when Uncle Bob is back on the wagon, can he sue me for the $10,000 I was supposed to pay him from the first contract? Can I sue him because I am still mad about the ugly crooked eyesore in my backyard? No! Accord and satisfaction has occurred.

As the Georgia courts have ruled: "Accord and satisfaction is an agreement between two parties to give and accept something in satisfaction of the right of legal action which one has against the other, which when performed is a bar (a blockade) to all actions on this account. Woodstock Rd. Inv. Properties v. Lacy, 149 Ga. App. 593, 254 S.E.2d 910 (1979); M.W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 279 S.E.2d 296 (1981).

Have more questions? Read more here and consider contacting us today to schedule an appointment.

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