Trial Attorney Blog

There are many news reports of one car collisions in which a vehicle goes out of control and strikes an object, such as a median barrier or a tree, killing the occupant. While it is only natural to assume that the driver of the vehicle was somehow at fault, this is not always the case. In our practice, we see cases in which it first appears that the driver was at fault, but further investigation reveals that a defective tire was the cause of the collision.

Defective tires are an ever growing problem in the United States. There is a high level of danger that the belts in steelbelted radial tires can separate if they are subjected to under-inflation, overloading, overheating, or excessive speed. Once the steelbelts separate, the tire will begin to disintegrate and the driver will in most incidents lose control of the vehicle.

Increasingly, there have been warnings about the use of tires which have aged beyond a number of years. The theory is that as a tire ages, it is subjected to natural disintegration which can lead to belt separation. In fact, certain automobile manufacturers now are recommending that tires over a certain age, usually six years old, not be placed on a vehicle. This warning is especially ominous when one considers that a large part of the tire market in the United States consists of the sale of used tires. The purchaser of a used tire generally has no knowledge of when the tire was manufactured or what conditions it has been subjected to prior to the purchase.

It seems that almost every day there is a headline in the local paper or on the TV news concerning horrible injuries suffered by a person attacked by a dog. This firm has successfully handled a large number of liability cases in which our clients were viciously attacked and injured by dogs.
Georgia law provides two ways that an animal owner or handler may be found liable for injuries inflicted by the animal. The first requires that the victim prove: (1) that the animal is dangerous or vicious; (2) that the owner or handler had knowledge of the dog’s viciousness or tendency to attack humans; and, (3) that the owner or handler either carelessly managed the animal or allowed it to go at liberty. The second basis upon which an owner or handler may be found liable for injuries inflicted by an animal requires that the victim prove that the animal; (1) was not at heel or on a leash as required by a local ordinance; and, (2) that the owner or handler either carelessly managed the animal or allowed it to go at liberty. The second ground does not require knowledge of dangerousness or viciousness of the animal. To successfully prove liability under the Georgia statute, the claim can be based on either a violation of a leash law or the owner’s or handler’s knowledge that the dog had the temperament or propensity to bite people. The breed of the dog, even if routinely known to be vicious, cannot be considered in determining liability under the Georgia statute.
Owners and handlers of dogs who have attacked persons typically attempt to raise the defense of assumption of risk to avoid liability for the injuries. They will argue that the victim knew of the dog’s vicious tendencies and approached the dog despite this knowledge, or somehow provoked the attack. This firm has successfully rebutted this defense in numerous cases.

One of the unfortunate occurrences we see in our practice all too often is the regrettable case where our clients believe they have more insurance coverage than they have in actuality and less than what they need. It is not unusual for us to see a client who has excellent liability coverage, for example, $300,000.00 – $500,000.00 in single limit coverage (or better). That same client, however, even though they have $300,000.00 – $500,000.00 in liability coverage protecting the third party in the event they are negligent will often times only carry $25,000.00 per person, $50,000.00 per accident in uninsured motorist coverage. In short, the clients have more coverage for the person that they might hurt than they have for themselves if they are hurt by a third party.
Increasingly, the public needs to understand that uninsured motorist coverage is almost vital. The minimum insurance limits that must be carried by any operator of a motor vehicle in Georgia is $25,000.00 per person, $50,000.00 per accident (referred to as 25/50 coverage). Not only do many people have the absolute minimum limits of coverage that are necessary in order to get their tags to operate a vehicle lawfully, others have no insurance at all. Accordingly, if there is an accident when someone causes serious injury to another, and they only have 25/50 in coverage, what this means is they only have $25,000.00 in coverage to provide financial compensation to any single person they injure, and a maximum of $50,000.00 no matter how many persons are injured. In serious injury cases, $25,000.00 is never enough to even compensate for medical bills, much less lost wages, pain and suffering and/or permanent disability. Because tortfeasors often times have only minimum limits of coverage, it is vital that those who can afford it have uninsured motorist coverage so that they can protect themselves from those situations where the tortfeasor is either uninsured or grossly underinsured.
As amended by the Georgia Legislature in 2001, O.C.G.A. § 33-7-11(a)(1) provides that “no automobile liability policy or motor vehicle liability policy” may be issued in this state unless it contains provisions for uninsured motorist coverage which, at the option of the insured, shall be (i) not less than $25,000.00 per person and $50,000.00 per accident, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher.
We wish to draw the attention of all Georgia citizens to the second provision of this amended statute. Anyone that purchases $300,000.00 – $500,000.00 in liability insurance coverage to protect themselves from being sued in accidents where they are at fault has a legal right to get the exact same amount of coverage to protect themselves in the event someone hits and injures them and they turn out to be either uninsured or underinsured.
If a person is responsible enough to carry $300,000.00 – $500,000.00 in liability insurance limits, they may also be responsible enough not to cause accidents. However, this same responsible person, if they do not protect themselves through the purchase of uninsured motorist coverage, may end up in a situation where they are severely injured by someone who has the minimum limits of insurance ($25,000.00 per person, $50,000.00 per accident) and, if they do not elect to carry the same limits of uninsured motorist coverage, they may be one of those unfortunate cases we see all too often.

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For many yearsin Georgia, unless a local government entity carried optional liability insurance coverage for automobiles under the control of city/county employees, it could not be sued no matter how much damage was inflicted by their actions. Of course, this resulted in tremendous injustices throughout our state. Finally, in 2004 because many, many innocent members of the motoring public were being injured by the acts of negligent government employees, the Georgia Legislature acted to waive sovereign immunity in such cases. The waiver statute, while originally passed in 2004, did not provide for waivers until January of 2005. In 2005, the waiver of immunity was in the amount of $100,000.00 because of bodily injury or death to any one person and any one occurrence and an aggregate amount of $300,000.00 because of bodily injury or death of two or more persons in any one occurrence. While a limited waiver of sovereign immunity is typically inadequate in the more serious and catastrophic claims, it is better than what the law previously was and provides some measure of relief for innocent third parties injured by the acts of negligent government employees while operating government vehicles.
Effective January 1, 2007, the limits of coverage available to the public are now set by law at $250,000.00 because of bodily injury or death of any one person and any one occurrence and an aggregate amount of $450,000.00 because of bodily injury or death of two or more persons in one or more occurrence. These amounts will increase in January 2008 to $500,000.00 because of bodily injury or death of any one person and any one occurrence, and an aggregate amount of $700,000.00 because of bodily injury or death of two or more persons in any one occurrence. Hopefully, after 2008 the statute will be further amended to provide greater protection for the public.
Under O.C.G.A. § 36-92-1, a “covered motor vehicle” means any motor vehicle owned by the local government entity and any motor vehicle leased or rented by the local government entity. A local government entity covered by the waiver of sovereign immunity means “any county, municipal corporation or consolidated city, county government of this state.” Unfortunately, the term does not include a local school system. Under O.C.G.A. § 36-92-2, a government entity covered by the statute may purchase greater limits of coverage at its option but, if not, it is nonetheless mandated to carry the limits set forth herein.
In Georgia, many years ago, the Legislature passed a State Tort Claims Act which provided up to $1 million in relief for the negligent acts of state employees. Even though the State Tort Claims Act has now been in force for many years, its provisions did not extend to local government. Moreover, the courts had long protected local governments relying upon the doctrine of sovereign immunity to prevent private citizens from bringing claims against government entities which could implicate “the public purse.” The rationale was that lawsuits could impact the budget of local government entities and severely restrict or limit their ability to carry out governmental functions. After years of injustice for those injured by the negligent acts of local government employees, the Legislature finally acted to address this injustice when O.C.G.A. § 36-92-2 was passed. Slowly, but surely, the doctrine of sovereign immunity has begun to erode. Again, while the extent of the wavier of sovereign immunity provides some redress for innocent victims in limited contexts, there is still no waiver of sovereign immunity outside of the operation of a “covered motor vehicle.” Thus, there are many claims still out there where individuals are injured by the acts of government employees and there still is no remedy available to them under the law. Moreover, as set forth herein, the limited waiver of immunity for city and count vehicles is still less than that available for state acts of negligence.

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Some lessons are never learned. The law enforcement community has known for almost 20 years now that the dangers attendant to high speed police chases are tremendous. Indeed, the data of such dangers began accumulating in the 1980’s that the public price of these high speed police chases was simply too great to continue to allow unrestricted chases by the police. By 1990, the data was inescapable. Indeed, in 1990 alone, there were 314 deaths and over 20,000 injuries associated with high speed police chases. Many of the deaths involved the police themselves (not to mention the fleeing suspects) and thousands of innocent third parties who got caught up in the chase. This was known over 17 years ago. Unfortunately, the law enforcement community still continues to defend its actions when death to the innocent is caused by unwarranted and unnecessary high speed chases.
It is estimated that today, on average, two persons die every day as a result of a police pursuit. Studies show that almost 40% of pursuits end in an accident and at least 10% cause personal injury and death. And pursuits become dangerous quickly with over 50% of the collisions occurring in the first two minutes of the chase and 70% occurring before the sixth minute. Regrettably, the vast majority of police pursuits do not involve an attempted stop for a violent felony, but instead typically involve minor traffic violations and suspected misdemeanors.
Most suspects flee the police not because they have committed a serious crime, but because they are frightened and do not want to face the consequences of the potential charges that could be brought. Contrary to conventional wisdom, police pursuit policies that restrict the discretion of police officers to chase after non-violent offenders does not result in an increase in number of suspects fleeing the police.
In 2002, the Hartford Insurance Company conducted a thorough review of police department high speed pursuit cases and determined that ten times more people are killed in high speed pursuits than are killed by police weapons. The Hartford Insurance Company found that a staggering 80% of those killed by high speed police pursuit were innocent bystanders. Based on this insurance company’s own statistical review of the data, the insurance company recommended that all police departments should adopt formal written polices and procedures covering the area of high speed pursuit. Hartford also recommended that once the policy and procedure was developed that it should be disseminated to all persons who might be involved in the activity and that formal training sessions should occur to make sure that everyone understood their responsibilities.
Regrettably, unnecessary loss of life and serious injury continue to occur when unwarranted high speed pursuits are initiated by the police. As of the date of this blog entry, our firm is representing three families who have suffered grievously as a result of a unwarranted high speed police pursuits involving minor traffic offenses. In one case, the driver was suspected of speeding and was noted to have been playing “loud music from the car.” A high speed police pursuit began with a result that a 21 year old college student was killed when her vehicle was struck head on by the suspect at a speed in excess of 110 miles per hour. In another case, a 17 year old juvenile was joy riding in a stolen pick up truck and once that police pursuit ended, one person was dead and another serious brain injured. Medical expenses for the survivor exceed $600,000.00 and, of course, the public has had to pick up the tab as the offender had no money and the injured individual had no insurance. The innocent survivor is permanently brain damaged and may likely become a ward of the State. Was this price worth it to catch this juvenile? Of course not.

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We have handled many federal tort claims on behalf of clients over the years but, nonetheless, it is always helpful to have an Abbreviated Federal Tort Claims Act Checklist to make sure that we are in compliance with the law. Those who have never handled a case against the United States government may find some of the procedural requirements burdensome and difficult to navigate. Nonetheless, once a checklist is developed, the procedure is actually fairly easy to follow but and this is an important but, it must be followed correctly. Here are some of the items on our list:
1) The Federal Torts Claims Act is found at 28 U.S.C.§ 1346(b) and 2671 through 2680. As all practitioners know, a detailed Ante Litem Notice must be filed with the federal agency within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). An Ante Litem Notice is typically filed via a standard Form 95 which is found at 28 C.F.R. part 14. While each agency has their own standard Form 95, the Department of Justice standard Form 95 is that which is most easy to use and which provides all the of the requirements of a satisfactory Ante Litem Notice.
2) Typically, when one submits the Notice of Claim Form 95 to the appropriate federal agency, the basis of the claim is stated (which is the date the incident occurred, the description of the claimed negligent act, the type of injury suffered and the parties involved). One must describe in detail the nature and extent of the damages and the amount being claimed. It is important that you claim all the monetary damages you seek on this form because the law provides that if the case is not resolved via an administrative review that you cannot sue for more than you claim in your form.
3) Another important feature of Federal Tort Claims Act cases is that a separate form must be filled out for each damaged claimant. For example, if a husband and wife are injured one cannot file a single for both but must file separate forms. If there are derivative claims such as an estate’s claim when a wrongful death is involved or a loss of consortium claim the practitioner or claimant should file separate claim forms because the Federal Tort Claims Act applies to each separate claim. See 28 C.F.R. § 14.3(b).
4) Once a claim is filed with the appropriate federal agency, the claimant must wait for six months or denial whichever is earlier before suit can be filed. See 28 U.S.C. § 2675(a). If the claim is denied or six months expires without any action by the federal agency, suit must be filed where the plaintiff resides or where the act or omission complained of occurred. See 28 U.S.C. § 1402(b). Once suit is filed, only the United States of America may be named as a defendant, not the agency and not the negligent employee.

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