Carefree Twitter messages about traveling and partying held down damages awarded by a Gwinnett County State Court jury to a woman who was injured in a car accident, said attorneys in the case.
The jury returned a $237,000 verdict—apportioned down to $142,000—to plaintiff Omiesha Daniels, far less than the $1.1 million she had sought. In the crash, Daniels, 22, broke her arm and incurred a forehead laceration that resulted in a scar. She claimed the injuries inhibited her ability to do her job as a hair stylist.
Defense attorney J. Robb Cruser said the posts from Daniels’ Twitter account showed the jury she had recovered from the accident and was living a full life.
“Twitter sunk her,” said Cruser of Cruser & Mitchell. “Those kinds of comments and that level of activity hurt the pain and suffering claim, even when she was saying she couldn’t work like she used to.”
The Twitter messages talked about an “epic weekend” in New Orleans and showed pictures of herself with friends at a beach for spring break, Cruser said.
Daniels wrote in one post, “I’m starting to love my scar,” and she had to explain how she was able to use her injured arm to carry a handbag that was pictured online, Cruser said. Daniels told the jury the handbag was lightweight.
The Twitter posts gave the jury the impression that Daniels wasn’t really injured, said her attorney, Michael Goldberg of Fried Rogers Goldberg.
“There was nothing she posted that was different from what she said she could do, but with the jury we had, there was some concern that if they gave this girl a large reward, she was going to go out and party later. It’s not a hard argument to make to a very conservative jury,” Goldberg said.
The all-white jury composition worked against Daniels, who is black, because jurors had a hard time relating to the difficulty of Daniels’ job, which included African-American hair braiding and weaving, Goldberg said. Daniels asserted that the accident reduced her ability to do her job because she suffered pain in her arm and had to ask for help from co-workers.
There were 10 minorities in the 30-person jury pool, but four of the minorities were released from jury service because they couldn’t speak English well, and Cruser struck the remaining six, Goldberg said.
“The dynamics were stacked against me,” Goldberg said. “If I were in his place, I would have done the same thing in that situation because they were more liberal and more like my client. It’s not improper to do that.”
Rather than dismissing and refiling the case, Goldberg entered into a confidential high-low agreement with the defense that he said protected his client and precluded an appeal.
The apportioned judgment for Daniels was about $71,000 lower than the defense’s last pretrial offer of $212,500, Cruser said. The plaintiffs’ last demand was for $1 million.
“In retrospect, our number was too high. We overshot,” said Cruser, who worked with his associate Kathleen Hurley as his co-counsel on the case.
The accident occurred June 6, 2011, when Daniels was a passenger in a 2004 Ford Taurus driven by her friend Kelvina Winbush as they were heading eastbound on Jimmy Carter Boulevard, according to the pretrial order and the accident report.
A 2008 Ford work van, driven by Atlanta Refrigeration Service Co. employee Jerry Garrett, was traveling in the opposite direction and turned left onto Regency Parkway. Winbush slammed on the brakes, skidded for about 50 feet and veered into the right lane before colliding with Garrett, who was cited for failure to yield.
An ambulance took Daniels to Gwinnett Medical Center, where she was treated for a broken right arm between the elbow and the shoulder, a concussion and a six- to eight-inch laceration on her forehead. Plates and screws were inserted in the arm to repair it, Cruser said.
Daniels alleged that American Refrigeration Service was negligent in hiring Garrett and entrusting him to drive a work van because he had received five speeding tickets in 2005 and 2006, as well as DUIs in 1988 and 1998. At the time of Garrett’s hiring in 2009, a three-year motor vehicle report showed no accidents or tickets, Cruser said.
The jury’s Dec. 14 verdict apportioned 60 percent of fault to the defendants and 40 percent to Winbush. The award more than covers Daniels’ $58,000 in medical expenses, but it didn’t include any punitive damages. The jury didn’t specify how it arrived at its verdict amount, Goldberg said. Atlanta Refrigeration’s insurer, Netherlands Insurance Company, has issued payment for the judgment, Cruser said.
In his closing, Goldberg asked for between $1.1 million and $1.3 million, including about $800,000 for pain and suffering, $300,000 in diminished earning capacity and the medical expenses. He tried the case with Chris Simon, who helped Goldberg with the damages claim.
During trial, Cruser used accident reconstruction expert Dwayne Canupp to argue that Winbush was responsible for the accident. Canupp testified that if Winbush had seen Garrett when he started to turn, she had time to stop 20 yards before impact, or she could have avoided the accident by driving straight instead of veering to the right, Cruser said.
Goldberg said he warned Daniels to be careful about what she put on the Internet. He said the most damaging tweets were quotes of lyrics to songs such as, “It’s my birthday and I’ll get drunk if I want to.”
“It seems like she’s very happy. The argument was basically that someone who’s that happy doesn’t need money for anything,” Goldberg said. “The implied argument was if you give her the money, she’s going to travel and blow it. For that jury that was the right argument to make.”
B.J. Bernstein, who has spoken to lawyer groups about social media, said attorneys should look at potential clients’ Twitter and Facebook postings before taking a case. But telling clients to abstain from social media may not be realistic.
“With clients, particularly of a younger age group, social media is critical to look at, even if you think it’s not going to have anything to do with your case,” Bernstein said. “Lawyers should urge caution and keep monitoring it. It’s something you need to keep looking at again and again.”
The jury trial was the last heard by Gwinnett State Court Chief Judge Robert Mock Sr. before his retirement at the end of the year. Mock has been a state court judge since 1991, and before that he served on Gwinnett Recorder’s Court. Civil litigator Emily Brantley won election in November to succeed Mock.
The case is Daniels vs. Atlanta Refrigeration, No. 11-C-05722.
Mark Niesse is a reporter for the Daily Report, a Legal affiliate based in Atlanta.