ATLANTA (Legal Newsline) – A woman representing herself has scored a victory in a Georgia appeals court that allows her to once again pursue her slip-and-fall against Dollar Tree and a flooring company.
That’s because the trial court judge was wrong to deny her motion for a new trial, the Georgia Court of Appeals Court ruled on June 23 in the lawsuit of Erica Durham.
The trial, which ended in the defendants’ favor, was marred by incomplete jury instructions and possibly a sleeping juror, the court ruled.
She was found to be 50% at fault for the slip and her verdict of about $9,000 was remitted to $0 under state law. Durham contended that jurors weren’t told that would happen if she was found to be that much at fault.
“(T)he fact that the jury did not question the instruction does not establish its propriety,” Judge Todd Markle wrote. “But more importantly, nowhere in the final charge did the trial court instruct on the zero recovery provision…
“Rather, the instruction informed the jury that the plaintiff would recover nothing if she was the sole proximate cause, not that recovery would be zero if she was at least equally at fault as the defendants. These instructions do not convey the same meaning.”
Durham produced medical records that showed various emergency room and doctor visits – sometimes with lapses in treatment of more than six months. A chiropractor testified Durham often missed appointments and didn’t adhere to his treatment plans.
Jurors found her 50% at fault for her injuries, and the two defendants 25% each. The $8,976 verdict was reduced to $0 because she was at least equally at fault as the other defendants.
She had a lawyer at trial but pursued the appeal on her own. She cited a 2009 decision in the Georgia Court of Appeals that told a trial judge to re-instruct the jury that had found a plaintiff 50% liable.
That jury was not told about the law reduced the verdict to $0. After new instructions, the jury found the plaintiff only 49% at fault, meaning they could keep their share of the verdict.
By deciding a new trial is needed in Durham’s case because of the instruction issue, the court decided not to address whether the trial was corrupted by a juror caught sleeping.