Articles Tagged with Personal Injury

This past week we spoke at a State Bar seminar on the doctrine of Sovereign Immunity in Georgia. In Georgia, there are limited statutory waivers of sovereign immunity by state and local governments. One of the most frustrating areas is that of county immunity. Essentially, the only statutory waiver of county immunity is that which provides for liability for county vehicles. If a county agent or employee is operating a covered vehicle, there is a mandatory minimum waiver of $500,000.00 per accident/$700,000.00 per occurrence. If the county has greater liability insurance over and above these amounts, then the waiver is for the combined total. See O.C.G.A. § 36-92-2.
If the claim does not involve an automobile, the only possibility of a recovery against a county agent or employee is to sue the county agent or employee in his or her individual capacity. You cannot sue such an employee in their official capacity because a county employee’s official capacity immunity is coextensive with that of the county. Again, because a county cannot be sued for torts in Georgia except for automobile claims, the only way around this is to sue the county employee involved in their individual capacity; however, in order to be successful, you have to prove a breach of a ministerial duty.
In Georgia, all county employees sued in their individual capacities are entitled to the defense of official immunity. If they are sued for acts that they performed within their discretionary authority, they are absolutely immune and cannot be held legally liable. However, if they do not have discretion but instead have a simple ministerial duty to perform and fail to do so, they can be individually liable. If the employee acts totally outside the scope of their authority they can be held individually liable or if they act with actual malice or intent to cause injury they can also be held individually liable. Absent one of these basis for liability; however, both the county itself and the county employee will be immune from any legal liability for torts in Georgia, unless an automobile claim is involved.

On February 5, 2012, a thirty-one year old woman was killed in a residential neighborhood as police officers were pursuing shoplifting suspects. The news accounts do not provide a great deal of information about what the suspects allegedly stole but tragically, again, the question arises in the context of these dangerous pursuits, is it worth risking a human life to apprehend a fleeing shoplifter? Could not other law enforcement techniques have been utilized to apprehend the suspects later, under much safer circumstances? Here, rather than wait for such safer circumstances, the police persisted in immediately pursuing the suspects at high speeds. During the pursuit, the suspects ran over and killed the innocent pedestrian.
We continue to advocate that proper police pursuit policy requires that pursuing officers only chase for violent offenses where the need to apprehend the suspect is clear and justifies the danger to the public caused by the pursuit itself. It is well recognized that in 40% of all police pursuits there is typically an automobile crash of some kind. It is foreseeable that innocent people can be injured or killed because hundreds are killed each year and thousands injured. Thus, it is difficult for the police to continue to argue that they have a need to pursue non-violent suspects exposing all members of the public to the possibility of death or serious injury in order to immediately apprehend them. There is no need to immediately apprehend a shoplifting suspect. Such a suspect can be apprehended later under safer circumstances using traditional law enforcement techniques.
The tragedy in these cases is experienced by the victim and their family. The public at large, of course, wants criminals to be apprehended and prosecuted, however, only when a member of the public loses a member of their family can they understand just how tragic these pursuit cases can be. While the police need to apprehend dangerous criminal suspects and should chase them when the need to do so is equal to the danger caused by a police pursuit, that is far different from saying that the police should chase every non-violent offender including shoplifters in order to immediately apprehend someone for a minor theft offense. While the criminal needs to be prosecuted, the public needs to be protected as well. To achieve this balance, pursuits should be restricted to those where it is necessary to immediately apprehend the suspect which, in all cases, would be the violent felon.

In those situations where motorcyclists are involved in automobile collisions, as might be imagined, the injuries sustained can be rather serious. There is no protection other than the helmet for the motorcycle rider. If a motorist fails to yield right-of-way to an oncoming motorcyclist and fails to yield, the results tragically can be either death or very serious injury. What compounds the tragedy is the case where the at fault motorist has either minimum limits of insurance or no insurance at all. In such circumstances, unless the motorcyclist has excellent uninsured/underinsured motorist coverage, the tragedy can be compounded simply because there is no available insurance to pay all medical bills, lost wages, and reimbursement for pain and suffering.

We recommend to virtually all of our clients that they carefully review their own insurance policies to make sure that they have adequate personal protection under their uninsured/underinsured motorist coverage. This coverage provides coverage for the injured insured as opposed to the other party whom the insured may be responsible for injuring. Unless the motorcyclist causes the accident, the liability coverage of motorcyclist will not be in play. However, if the motorcyclist is injured by the uninsured or underinsured driver, then it becomes all important.

A hypothetical will best prove our point in this context. A motorcyclist rides down the road and an uninsured driver runs a stop sign, striking and seriously injuring him/her. If the driver is either uninsured (no insurance at all), which is approximately 13 to 15% of all Georgia drivers because of today’s economic times, or underinsured (namely minimum limits of $25,000.00) and the injuries are serious, then the only way that the injured motorcyclist can expect to obtain recovery for the injuries and damages sustained is if he/she has available uninsured or underinsured motorist coverage under their own policy. The more coverage available under their own policy, the more likely they can obtain adequate compensation for their medical bills, lost wages and pain and suffering.

In 2005, the Georgia Legislature passed what is known as the Tort Reform Act of 2005. One of the statutes enacted is O.C.G.A. § 51-12-33(c). This provision of the law states that in assessing percentages of fault in any tort action, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was or could have been named as a party to the suit. Thus, in any tort action in which more than one person allegedly contributed to the damage to the innocent plaintiff, the jury is now required to consider apportioning damages against such parties, whether or not named in the lawsuit. A classic hypothetical might be that when a drunk truck driver runs a stop sign and kills someone. If the drunk driver purchased his or her liquor while noticeably intoxicated from a convenience store, the jury could reduce the damages ordered against the drunk truck driver’s employer (the truck company) by assessing a percentage of the liability against the convenience store that violated the law when selling the alcohol to the drunk truck driver. This would reduce the award against the truck company and potentially the recovery to the victim.

Many hypotheticals can be envisioned but the point of the statute is to protect business. If a business is found liable for a defective product, but someone else also contributed to the injury, business wanted to reduce the verdict so as to reduce the cost to business. This is unfair to the innocent plaintiff who is injured because they may not be able to collect the full extent of their damages when the damages are thus apportioned. Nonetheless, this significant piece of legislation found in the Tort Reform Act of 2005 is currently the law and must be dealt with by all attorneys handling personal injury cases.

One way around the Tort Reform Act of 2005 is to bring a breach of contract claim. Of course, in not every case is a breach of contract claim available as an alternative remedy. However, the Tort Reform Act of 2005 is contained in Title 51 Torts and refers repeatedly to a party at “fault.” Liability for breach of contract is not based on fault or negligence but on the breach of an assumed contractual duty that causes damages to the party in privity of contract. Nothing in the language of the Tort Reform Statute even hints at the possibility that the Tort Reform Act of 2005 could conceivably apply to contract as well as tort claims.

Any one who is injured by the acts or omissions of a government agency or employee should understand that there are some hidden traps that could defeat their claims if the law is not followed, in some cases, scrupulously followed. Here we refer to the ante-litem notice provisions required under Georgia law in order to perfect a claim against a government officer or entity. In certain circumstances, if a timely ante-litem notice is not filed, either with a city, county or state government, the claim can be defeated. In essence, ante-litem notice provisions serve the purpose of shortening the otherwise applicable statute of limitations for a personal injury claim from two years to, in the case of cities, to six months for the notice and for county and state employees twelve months for the notice. If a timely ante-litem notice is provided, the statute of limitations for a personal injury case is still two years, if not, the case is over.
Under Georgia law, a claim cannot be brought against municipalities for alleged tort damages unless a written notice is provided to the city within six months of the date of the occurrence describing the claim, nature of the claim, the damages sought, etc. The more details provided to the city, so that it can investigate the claim, the better. Again, such a notice must be provided within six months. Relative to counties, notices must be provided within twelve months. With respect to claims against state government, again, there is a twelve month notice period, but under the terms of the State Tort Claims Act, the notice provisions must be scrupulously honored and served upon all persons specified in the State Tort Claims Act itself.
The point to be made in this brief entry is that there are statutory provisions requiring a written notice to be served upon the government whenever one is considering filing a tort claim for damages arising out of the acts of a government agency or employee. If these ante-litem provisions are ignored, the claim can be defeated as a matter of law. Accordingly, it is very important that anyone who has suffered injury at the hands of their government confer with experienced counsel in these cases so as not to lose their legal rights to sue the government. While sovereign immunity may still bar many claims, claims will be barred altogether if ante-litem notice provisions are ignored.

A divorce is traumatic in and of itself but becomes particularly tragic when either during the divorce or after its conclusion the wrongful death of a child occurs. In such circumstances, the wrongful death claim belongs to the parents jointly. Either one, therefore, has the right to bring the wrongful death claim but if one proceeds unilaterally in doing so, they do so in a fiduciary capacity, meaning that if they ever recover anything, they must hold the monies in trust until such time as a Court can apportion any monies awarded between the divorced parents based on their level of support with the child, their interaction with the child and other equitable factors.
Under Georgia law, if a child is killed due to the wrongful acts of a third party, such as a drunk driver, or a trucking company, the cause of action vests in the parents of the child. If the parents are in the middle of a divorce, this does not change the law. If the parents are already divorced, the law remains the same. In some such circumstances, both divorced parents get their lawyers and there is a race to the courthouse to see who files the lawsuit first. If one beats the other to the punch, the other may seek to join the case by formally intervening in the action. Since both spouses have a right to participate in the action, the difficulty this can cause is logistical because two separate law firms could be acting on behalf of the parents conducting redundant investigations and also having different views strategically as to how the case should be prosecuted and pursued. This can create a legal quagmire causing difficulties not only for both parents but also for their lawyers.
Insofar as is possible, the parties should work cooperatively together in pursuing a wrongful death claim of a child. If one proceeds all the way through a settlement or a jury verdict and ultimately obtains money, as indicated, that money must be held in trust and subject to equitable division by the court, unless the parties can agree among themselves how the money should be divided between them. While it might be assumed that a 50/50 split of any such recovery is the norm, there are many circumstances whereby such a split would not be just nor fair, such as situations where a father has abandoned a child and/or has failed to pay child support. As indicated above, these cases are particularly tragic and often difficult for all the parties. If a divorce has occurred, hopefully the parties will be mature enough to work together to pursue a common goal. If not, the attorneys for the respective parties will have to decide how to best work together to pursue that goal with an understanding that if there is ever a recovery, and a dispute over how the monies are to apportioned, that dispute must be submitted to a trial court for equitable apportionment.

It is not uncommon in our practice to be asked to represent clients in automobile cases who have pre-existing conditions. The closer in time to an accident the pre-existing condition is, the more difficult it is to separate the proverbial “wheat from the chaff” and to prove that the client’s problems arising out of the current accident were either caused by that accident and/or were aggravated by it. While it is not necessary, as a matter of law, to prove that the new injury was solely caused by the new accident because compensation is available for aggravation of pre-existing injuries, the difficulty is that the defense can always argue that the new accident did not cause any new, nor aggravating injury, but that the old injury simply remained. The proof problems caused by such cases are very difficult and oftentimes clients do not appreciate the fact that juries are very skeptical of claims where the pre-existing injury is documented in medical records and appears either identical to or very similar to the injury complained of immediately following the new accident.
Lawyers make decisions about the value of any personal injury claim based on the evidence in any particular case. The evidence in pre-existing injury cases is often critical because if a medical record shows that a client already had a particular injury and had/or received medical care for an earlier injury, and then they are involved in another accident, the issue will be whether they had recovered from that injury, whether they were asymptomatic at the time of the new injury, or whether they were still suffering from the lingering effects of the prior injury. As might be imagined, all of these factors enter into case evaluation. Moreover, when it comes to a discussion of “proximate cause,” that being proving that the new accident actually caused a new injury or aggravated an earlier one, the calculus becomes extremely complex. Georgia juries, being inherently conservative, oftentimes return defense verdicts in cases where the pre-existing injury was identical to the newly claimed injury and the treatment for that old injury mirrored the new injury treatment in substantially similar respects.
Obviously, all cases must be judged on the evidence for that particular case as all such cases are factually specific. Nonetheless, there are some unique challenges that arise in the context of pre-existing injuries.

As lawyers we are often consulted by prospective clients inquiring about whether they “have a case.” Sometimes they do and sometimes they do not. Oftentimes those who do not have cases are themselves guilty of contributory negligence. In Georgia, this is a very difficult problem to overcome because typically juries are not as likely to award damages to someone who substantially contributed to their own injuries due to their own negligence.

A classic case of contributory negligence is where a motorist is approaching an intersection and decides to turn and while so doing is struck by a motorist coming from the opposite direction. While the speed of the oncoming motorist may have contributed to the collision, the failure to yield, obviously, is part of the equation. Had the client not failed to yield, notwithstanding the speed of the oncoming vehicle, the collision may have been avoided. If the speed was so great that the client understandably miscalculated whether they had time to make a turn, obviously, is a factually specific issue. However, in the hypothetical posed, one can readily see that juries might conclude that the motorist who failed to yield substantially contributed to their own injuries and therefore the speeding motorist might not be held accountable for the full extent of any damages sustained.

In Georgia, contributory negligence claims are submitted to the jury under instruction that if the plaintiff or the person seeking damages was themselves fifty percent (50%) or more responsible for the cause of any given accident then they recover nothing, no matter what their injuries are. If they are less than fifty percent (50%) negligent, they recover their damages reduced by a comparison of their negligence with the defendant who has been sued. Thus, if a jury were to conclude that the plaintiff was forty percent (40%) negligent then they would be entitled to recover sixty percent (60%) of their damages, whatever they might be.

Unfortunately, in the normal course of our law practice, we have encountered clients who have sustained serious burn injuries. These cases are always extremely painful for clients and oftentimes results in permanent disfigurement. Indeed, a burn injury is one of the most painful injuries anyone can sustain and unfortunately we have seen them arise in a variety of contexts, whether it be gasoline fires after automobile accidents, accidents within the home due to defective products and/or chemical burns sustained on the job.

One of the complications of burn injury cases is trying to make sure that one has an accurate assessment of the future. While plastic surgery at present can eliminate some of the acute signs of injury, many times plastic surgery will be needed in the future. Oftentimes, despite the best care of plastic surgeons, permanent disfigurement may remain.

In assessing damages in a serious burn injury case, counsel must confer with the plastic surgeons responsible for the care and treatment of the client/patient to make sure that the client’s prognosis is well understood. The degree of permanent disfigurement, obviously, must be taken into consideration in assessing the damages for such clients as well as the impact on their overall quality of life and, usually, the high amount of medical expenses involved.

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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