Personal Injury & Wrongful Death

We read in this weekend’s news accounts that a Georgia State Patrol Trooper had been fired for failing to exercise “due regard” for the safety of the public while he was allegedly responding and on his way to aid another trooper involved in a high speed police chase on Interstate I-20. On New Years Eve, an innocent motorist was killed when this Georgia State Patrol Officer allegedly ran a red light and struck the vehicle occupied by the decedent.
Georgia law requires that all government personnel operating motor vehicles in “emergency situations” exercise due regard for the safety of all persons. Apparently, the internal review of the subject occurrence found that when the State Trooper ran the red light at a high speed while in route to the alleged need for assistance (a high speed police pursuit matter) he failed to exercise such due regard, ran the red light and thereby allegedly caused the fatal collision due to negligence. This review, apparently, has resulted in the termination of the involved trooper.
What the news accounts do not address is whether the underlying police pursuit was even justified. We do not know enough about the details to know whether the person being pursued in that action was merely being pursued for a traffic violation. It appears from some of the news accounts that the other trooper was chasing a motorcyclist because he was speeding.

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Too familiar is this week’s tragic story of how a police cruiser struck an innocent motorist and caused the death of Kathy Porter, wife of Atlanta Braves Head Athletic Trainer Jeff Porter.

Late Saturday afternoon, the Porters were among many fans driving to the Chick-fil-A bowl in downtown Atlanta–a short distance from the Braves’ home at Turner Field. A Georgia State Patrol cruiser–reportedly speeding on city streets to join a chase of a motorcyclist on I-20– crashed into the Porters’ Ford Expedition on the passenger side.

The Porters’ tragedy is one of a seemingly endless string of deaths of innocent persons caused by police pursuits–too often chasing another motorist simply for a minor infraction.

We have written prior entries in our blog about the importance of uninsured/ underinsured motorist coverage. The importance of such coverage was underscored this week when we were contacted by clients who had been hit by driver of a stolen vehicle. This is a classic case where the at fault driver will not have insurance coverage. In this particular case the innocent victim caught up in this collision did not have uninsured/underinsured motorist coverage. Obviously, the stolen vehicle had no insurance coverage which provided coverage for the thieves. Thus, we have a case where there is no insurance available to address our client’s medical bills and expenses. Because the medical bills are in excess of $500,000.00 and growing, obviously, the injuries attendant to such high expenses were extremely serious as well. The client will be permanently impaired for life. The tragedy is that had the client had uninsured/underinsured motorist coverage, they could of at least had some measure of protection in this type of case.
The importance of this type of coverage arises in cases where the at fault driver has no insurance. Drunk drivers typically have no insurance. Teenagers joyriding in stolen cars have no insurance. People fleeing from the police at high speeds have no insurance typically. Drug addicts have no insurance and many people who are faced with today’s economic hardships let their insurance lapse and continue to drive. In short, there are a significant number of drivers on the road who (if they hit an innocent third party and cause an accident entirely because of their fault), will have no resources to provide coverage for the innocent victim. Therefore, the only way the victim can protect him or herself is to purchase uninsured/ underinsured motorist coverage in advance, at the time they purchase their own liability coverage.
We would urge all members of the public to carefully review the Declaration page of their policies. We are all required by law to carry liability insurance on our vehicles. This coverage protects, the person that we injure through our own negligent acts. However, in circumstances where we are injured by the acts of a third party, unless we have uninsured/ underinsured motorist coverage, we cannot protect ourselves from a case where the at fault driver has no coverage. As indicated by the case which was presented to us this week, this tragedy is compounded. When a person is seriously injured, permanently disabled for life and their life is utterly destroyed. They will never work again and if they are lucky enough to continue to live, they are going to be in need of medical care for the rest of their lives. And yet, there is no insurance anywhere to provide compensation for the innocent victim’s staggering losses. As lawyers, this is a very difficult situation because there is nothing we can do to help this person obtain recovery from the at fault driver. All that can be done in such cases typically is to make sure that the criminal authorities to put the offender in jail, but again, this provides little or no justice for the innocent victim and certainly no compensation for their injuries and damages.

Defense attorneys and plaintiffs attorneys, alike, both have resources available to determine the fair value of a particular personal injury claim. Jury verdict research services exists which track jury verdicts throughout metropolitan Atlanta and indeed the entire state of Georgia. By tracking jury verdicts, one can determine what juries are giving for particular types of cases. Juries award so much for a broken leg, a broken back, a neck injury, a back sprain, a neck sprain, an amputation, etc. In short, there are a lot of resources available to determine the fair value of a claim, at least from the standpoint of Georgia juries.
With this information available, experienced counsel are able to make a determination as to what a fair and reasonable settlement offer would be for a particular case. A case should be settled if the offer being made is fair and reasonable and consistent with what juries are likely to award. If the offer is lower than what a jury is likely to award, typically, the offer should be rejected. If the offer is equal to or greater than what a jury is likely to award then, typically, the case should be settled as there is no reason to present it to a jury under such circumstances.
Experienced counsel can assist clients in determining the value of their personal injury claims. Experienced trial counsel can advise clients whether an offer made is consistent with what juries do in similar cases. If so, the case should be settled. If not, the case will possibly need to be presented to a jury for resolution unless the client is willing to accept less than the fair value of the claim.

Many clients choose their personal injury attorneys by watching the television or looking at billboards. Unfortunately, this does not always result in a client choosing the right attorney for his or her case. The best way to choose an attorney for a personal injury case is to make sure that the attorney selected is competent, professional and experienced. It is also important that the client determine that the lawyer being chosen has the ability to present the case to a jury if the case cannot be resolved by settlement and compromise.
Personal injury lawyers who most successfully represent their clients are those who are capable of presenting a case to a jury in an effective and professional manner. These lawyers are called Trial Lawyers. Personal injury lawyers who are Trial Lawyers are those who are most likely to get the best settlement results for their client in lieu of a trial. This is because insurance companies know that if they do not offer these lawyers fair and reasonable settlement offers that the lawyer will then present the case to a jury and get even more money. This is why they have to pay the value of the claim rather than trying to settle it cheap with a lawyer who does not know how to present the case to a jury. Accordingly, any client in a personal injury case should make sure that their attorney is capable of presenting their claims to a jury in a professional and competent manner and that they have experience trying cases.
Trial Lawyers always do a better job than those who do not know how to present a case to a jury or who have little or no experience doing so. Accordingly, clients would be well advised to ask how many jury trial their attorney has participated in as lead counsel so that they are comfortable with the fact that their attorney is capable of effectively representing their interests. Again, while the vast majority of all cases do settle, settlement amounts are influenced by a lawyer’s ability to effectively advocate claims. The more experienced the Trial Lawyer, typically, the better the settlement results in a personal injury case.

It is extremely difficult to quantify damages in a personal injury case. While medical bills can be totalled and lost wages calculated, trying to calculate damages for pain and suffering is a different matter. When one is out of work for months at a time suffering from back pain, as an example, the question is: how does one go about trying to determine what would constitute fair and reasonable compensation for the pain and suffering attendant to the injury? The longer one suffers, the greater the damage. The more excruciating the pain, the greater the damage. Because pain and suffering is subjective, however, it is often difficult to determine what damages would be fair in a particular case.

Many attorneys try to quantify pain and suffering based on a unit or hourly approach. If one is in pain and suffering sixteen hours out the day (assuming sleep for the other eight hours), what would constitute fair compensation for the extent of the pain and suffering: $10.00 an hour, $20.00 an hour, minimum wage or some other calculation?

In Georgia, in a personal injury context, the measure of damages for pain and suffering is the “enlightened conscience” of fair and impartial jurors. In other words, there is no measuring stick, per se, but rather a jury must determine money damages based on the totality of the circumstances involved in a particular case, that is what they believe would constitute fair and reasonable compensation for the pain and suffering element of a personal injury case.

Most of our clients are innocent victims of negligent acts. A person is sitting still at a stop sign and a driver negligently fails to stop in time rear-ending them and causing serious injuries. Another driver fails to yield right-of-way and crashes into the side of their vehicle. In both cases, a negligent act caused the injury to the innocent victim. In other cases, however, intentional torts are involved. A step-father molests a child. A man rapes a woman. A man kills someone else. In all such tragedies, there may be civil remedies available to redress the tragedy, particularly for the victims and/or their surviving relatives.

If a drunk driver runs a stop sign, he may be negligent in doing so, but also he is engaged in criminal acts, thereby committing vehicular homicide. The lawsuit alleges both civil and criminal liability in such a circumstance. If a step-father rapes a child and the step-father has money, the child’s representatives can sue the step-father for damages. If a rape occurs, the victim can sue the perpetrator for damages. If a hotel employee secures a pass key and rapes a guest tenant, not only can the victim sue the perpetrator, the victim may also be able to sue the negligent landlord and/or hotelier that negligently allowed access to the pass key.

Victims of crime should consider whether they have tort remedies available to redress the injustice done to them. There may be Dramshop liability against the business establishment that served the drunk driver. The criminal perpetrator may be wealthy and may have assets that can satisfy a civil judgment. A business may have negligently hired a person with a criminal record such that they may be liable for negligent hiring and retention of the employee who thereafter commits a criminal act.

This morning we were disturbed to hear of a police chase on Atlanta’s major street that ended in crashes with two innocent motorists.

In the Buckhead neighborhood this morning, a police pursuit of a reportedly stolen vehicle ended with a violent crash with two innocent drivers on Peachtree Road, near Peachtree Battle Ave. (near several elementary schools).

Witness accounts report that at least one innocent driver’s vehicle was propelled a long way after the impact, and we pray that the innocent motorists survived without serious injury. This intersection is also one where a crossing guard helps children cross these same streets to enter E. Rivers Elementary School.

Our office has been contacted on numerous occasions by individuals seeking restitution for the loss of a life of a loved one due to a house fire. In some cases the house fire may be caused by a malfunctioning device. In other cases the fire’s consequences may have been escaped had a smoke detector been functioning properly. In other cases, an electrical water heater may explode or there may be problems with a gas line or some other component of the house itself which causes the fire. While all cases are different, whenever a wrongful death results from a house fire, the tragedy can be compounded if there is not a proper investigation following the fire itself.
The causes of some fires can never be determined many times due to the blaze itself. The fire consumes all the evidence and it is impossible to determine the actual cause or origin of the fire. In other cases, however, if there is enough remaining evidence after the fire for forensic examination, a cause, in fact, can be determined. What is vital in all of these cases is that there be a scene investigation conducted by the local Fire Marshall’s Office and that counsel for the survivors of those killed in the fire be retained to review their work and also to conduct an independent examination of the site. The sooner one works on such a case to preserve all available evidence, the better the opportunity for uncovering evidence which will support a viable claim, whether it be a product liability claim, claim against a negligent contractor or otherwise. In any case in which a wrongful death occurs as a result a house or trailer fire, family members may wish to consult counsel on behalf of the survivors if for no other reason than to make sure that an adequate on-site investigation is conducted either by the authorities or by private investigators. Sometimes the failure to act in an expeditious manner can result in crucial evidence being overlooked and/or in crucial evidence being destroyed. A failure to preserve evidence is the biggest reason why claims are unsuccessful when house fires are involved, thus it is imperative that an investigation be conducted as soon as is possible under the circumstances.

We have been contacted many times concerning tort claims against the U. S. Postal Service. Typically these involve personal injury claims arising out of motor vehicle collisions where a postal truck of some kind is involved. Sometimes it is the mail handler delivering the mail and sometimes it is a large tractor-trailer delivering mail between districts. In either circumstance, where one sustains an injury as a result of the negligent acts of a Postal Service employee, it is necessary that the claimant file a Standard Form 95 with the proper representatives of the Postal Service as a pre-condition to any suit that might later be brought. The reason is because all claims against the Postal Service are governed by the terms and procedures of the Federal Tort Claims Act, which are mandatory and jurisdictional. In short, if one does not comply with the terms of the Federal Torts Claim Act, the claim will be essentially forfeited.
39 C.F.R. part 912 provides that a claim should be submitted pre-suit to the Post Office where the accident occurred an/or to the Postal Service District Office where the accident occurred and also to the Chief Counsel National Tort Center in St. Louis, Missouri. 39 C.F.R. part 912 describes the information that must be included in the claim presentation, which again, must be filed pre-suit. Once the claim is filed with the Postal Service Tort Claims Division, then in that event, six months must elapse before suit can be filed. If the claim is denied and/or not ruled upon within six months, the claimant may file suit in Federal District Court but may only name the United States of America as the defendant.
Anyone who suffers an injury at the hands of a negligent Postal Service employee, whether by way of a motor vehicle accident or otherwise, should confer with counsel who has experience with the Federal Tort Claims Act. Again, there are jurisdictional pre-suit filing requirements that must be followed otherwise the claim can be lost due to a failure to follow the procedures of the Federal Tort Claims Act.