Archive for September, 2009

Court Upholds Assumption of the Risk Defense in “Car Surfing” Case

The Court of Appeals recently held that Georgia’s assumption of the risk doctrine applied in a case where a teenager was injured while “car surfing” on a friend’s automobile.  Teems v. Bates, 2009 WL 2902487 (Ga.App. Sept. 11, 2009).  Assumption of the risk is a complete defense in a lawsuit alleging negligence. 

Late one night, three friends drove to a church parking lot where Teems suggested that she and Mercurio “surf” on Bates’s car.  Mercurio was reluctant and told Teems that she thought it was dangerous.  Nevertheless, the two agreed to do it and Bates told them he would be careful driving around while they lied on top of his car.  After Teems and Mercurio took their positions on the roof of the car, Bates began driving at a speed of 10-15 miles per hour.  When he made a sharp right-hand turn, Teems was thrown from the car and onto the pavement, resulting in severe injuries. 

When Teems sued Bates for negligence, Bates responded that Teems assumed the risk of injury and that she was therefore barred from recovery.  In Georgia, the assumption of the risk defense applies if the plaintiff (1) had actual knowledge of the danger, (2) understood and appreciated the risks associated with the danger, and (3) voluntarily exposed himself to those risks.  When a person voluntarily participates in an obviously dangerous activity, that person necessarily assumes the risks attendant to that activity.  Here, the Court held that car surfing constituted an inherently dangerous activity that posed obvious risks to anyone who participated, and despite being made aware of the danger, Teems voluntarily chose to expose herself to it. 

Interestingly, the Court likened car surfing to an amusement park thrill ride, where a person accepts the risks generated by normal changes in speed and direction.  Therefore, when Teems agreed to car surf, she assumed the risks of changes in speed and direction, including the risk that she would fall off the moving vehicle.  Therefore, because Teems assumed the risk of injury by engaging in an obviously dangerous activity, she was precluded from recovering damages, and a verdict for the defendant was affirmed.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Notice Requirements in a Fair Labor Standards Act Lawsuit

The Fair Labor Standards Act (FLSA) establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments.  For the FLSA to apply, there must be an employment relationship between an employer and an employee.

In a lawsuit against an employer for claims pursuant to the FLSA, employees or former employees of a defendant may join as plaintiffs if they consent in writing and thereby “opt in.”  The preliminary determination of whether an employee should be allowed to gather information from the employer and send notice of the action.  At the preliminary stage, the plaintiff may seek “conditional certification.”  At this point, the plaintiff’s burden is very low and will likely be granted because the employer can later file a motion for decertification if discovery reveals that certification was not appropriate.  If the plaintiff can show that there are others that are “similarly situated,” he will be allowed to send notice to such individuals.  Although the Eleventh Circuit has not provided a specific definition for “similarly situated,” the Court has made it clear that “similarly situated” includes more than just the mere facts of job duties and pay provisions.  Instead, the court will consider job titles, if the potential plaintiffs worked at the same geographical location, the extent to which different time periods and different decision makers were involved, and whether the alleged treatment of each potential plaintiff is similar to that of the named plaintiffs.

If the plaintiff is allowed to send notice, the employer is only required to provide information on “similarly situated” employees for the past three (3) years because the longest applicable statute of limitations is three (3) years, which requires a finding of willful violations.  Also, courts may limit notice to a particular geographical area.  This includes a specific facility, terminal, office branch, etc.  Notice should include information concerning any fees or advances a plaintiff would be obligated to pay; that the court has not expressed an opinion concerning the merits of FLSA claims; and that it is an action seeking overtime from a specific employer that they may join.  In matters where the defendants are unable to provide plaintiffs with adequate information concerning former employees who were potential class members, notice via newspaper, radio and/or posts may be permitted.

Once discovery is complete, the employer has the right to file a motion for decertification, asserting that the individuals are not “similarly situated” and that the action should not be allowed to proceed to trial as a collective action.  At this point, the plaintiff burden is much higher.  However, it could be argued that the damage has been done because the plaintiff has been provided contact information of former and/or current employees who may have FLSA claims and may subject the employer to signification FLSA litigation whether proceeding as a collective action or individual claims.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.


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