Trial Attorney Blog

Another Police Chase: More Deaths
We read last week on the internet of a tragic story out of Parsons, Kansas. Unfortunately, the Kansas story is all too familiar and occurs each and every day in this country. What we refer to are dangerous and reckless police chase cases which regrettably and tragically all too often result in the deaths of innocent members of the public, unconnected to the chase, who just happen to be in the wrong place at the wrong time. The report we read out of Parsons, Kansas was one such occurrence.
On July 16, 2009, a young man was being pursued allegedly for suspicion of drunk driving when during the high speed pursuit he ran through an intersection at a high rate of speed killing a mother and her daughter in a horrific collision. The mother survived a few days in the hospital prior to her death and the 13-year old daughter was killed leaving the husband and father grief stricken for the rest of his life. Undoubtedly, the fleeing suspect was the primary culprit for this and due to his mistake in fleeing from the police at high speeds he was sentenced to life imprisonment for the deaths he caused by his actions. However, in this case, as in many other police chase cases, the conduct of the police must also be scrutinized.
The country’s leading expert on the dangers associated with high speed pursuits is Professor Geoffrey Alpert of the University of South Carolina. Professor Alpert oftentimes has commented upon the wisdom of pursuing suspected drunk drivers during high speed pursuits. The rhetorical question he asks is: Which is more dangerous, a drunk driver or a drunk driver being chased at speeds as high as 100 miles per hour? Obviously, a drunk driver being impaired is dangerous but to increase the danger to the public by chasing a drunk driver at high speeds is obviously even more dangerous and can result in the loss of innocent life as happened in Parsons, Kansas.

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As we have posted before, in Georgia the measure of damages is the full value of the life of the decedent. The full value of the life of the decedent is comprised of the economic value of the deceased’s normal life expectancy and the non-economic loss sustained at the time of the wrongful death. As to the non-economic component, this includes the joy of living itself, the loss of society, affection and companionship of a wife, children and other family members and generally what the decedent lost at the time of their death.
A young person losses more life experiences than does an older person who has already experienced a long life span. Thus, typically, a younger person’s claim for wrongful death is economically more valuable than is an other persons under the rationale that the longer one would have lived had they not wrongfully lost their life the greater the damage to the deceased.
Again, Georgia law is unique because damages are measured from the standpoint of what the decedent lost not what the decedent’s survivors lost. In many states, the measure of damages is from the standpoint of the survivors. What did they lose when the decedent died? How much of his income did they lose? How much of his society and affection did they lose? In Georgia, on the other hand, the measure is based on what the decedent him or herself lost. Either way, the damages are left to the sole discretion of fair and impartial jurors seeking to do justice in a case where someone has wrongfully been killed and lost their life.

In determining the economic value of a deceased’s life in Georgia, a jury is not bound by any fixed criteria in reaching its verdict. A Georgia jury may take into consideration the decedent’s age at the time of his/her death, heredity, health, physical condition, habits, character, education, prior earning capacity, the amount of money he or she was earning at the time of his death, any reasonable probability of increase or decrease or reduction in wages or salary, loss of employment, the probability of the decedent working or failing to work voluntarily in the future, the decedent’s life expectancy and any other evidence which would assist the jury in determining the decedent’s future earning capacity. Because all of these issues are left to the enlightened conscience of fair and impartial jurors, it is necessary that plaintiff’s counsel produce evidence from which a jury can consider all of these factors. Again, typically tax returns and pay stubs are used for earners to show what was earned. Evidence as to the age of the decedent, their life expectancy, the education and background are also components of the economic portion of a wrongful death claim. While the value of a life is, obviously, far more important than one’s earning capacity, nonetheless, a jury will be instructed that it may consider both economic and non-economic components in rendering its verdict in a wrongful death claim in Georgia. As to the economic component, again, either an economist can be employed or the Annuity Mortality Table can be utilized to show the life expectancy of the decedent and what their probable lost earnings would have been.

The economic value of a wrongful death claim in Georgia is typically based upon lifetime earnings or the economic value of lifetime services. In a wrongful death case, a plaintiff must prove by a preponderance of the evidence the age of the decedent when he/she died, probable life expectance and yearly income or the value of such services. From such evidence a jury can compute the gross cash value of the deceased’s economic losses based on remaining life expectancy.
In a hypothetical case where a 25-year old person dies making $30,000.00 per year at a minimum, based on their education and experience, one would anticipate that the wrongful death caused 40 years of lost earnings because typically people work from age 25 to 65 before they retire. Taking into consideration that the deceased would likely receive raises in pay over time based upon the occupation or field they were in, a jury could compute 40 years times the amount of money they were expected to make, then reduce it to its present cash value in making an economic award for wrongful death damages. Again, the computation is left to the jury, but the jury could consider the earnings of the decedent prior to death in making its calculations as to the economic component of the wrongful death claim.
Many lawyers employ economists to assist the jury in understanding the economic component of this portion of a Georgia wrongful death claim. When dealing with a housewife an economist can assist a jury in understanding the value of such services that might be rendered over the life of the decedent. In dealing with a child or a younger individual with a limited or no earnings history, an economist can also be helpful in this regard. For those who do have an earning record, tax returns, pay stubs and other similar evidence can be used to prove to the jury what could have been earned, extrapolated over the remaining life expectancy, for a total economic wrongful death award. Again, such an award is only for the economic portion of the claim and not for the non-economic portion of a wrongful death action in Georgia.

Among all the 50 states Georgia law is unique because it measures damages in a wrongful death case from the viewpoint of what the deceased lost, not what his or her survivors lost. Under Georgia law, the measure of damages in a wrongful death case is “the full value of the life of the decedent.” See O.C.G.A. §§ 51-4-1(1) and 51-4-4.
The full value of the life of the decedent under Georgia law has two components. First, the economic value of the deceased’s normal life expectancy must be assessed and second, an intangible element, incapable of exact proof, which is measured only by “the enlightened conscious of a jury.” As to the non-economic component of a wrongful death claim, this is, again, measured from the standpoint of the decedent. What did he or she lose at the time of their death? This includes not only the society and affection they lost but also what they had to look forward to in their life, how many years of living they would have otherwise experienced and was taken from them. In future entries on this subject, we will focus on the two elements of a claim for wrongful damages in Georgia. While wrongful death actions arise in a variety of contexts, whether it be automobile accidents, tractor-trailer collisions, product liability claims, medical malpractice lawsuits or otherwise, the measure of damages for a wrongful death is the same: the full value of the life of the decedent. Initially, we will blog on the economic component and thereafter we will blog on the non-economic component of these claims.

Here in Georgia, due to the doctrine of Sovereign Immunity, as we have posted before, it is very difficult to sue a local government employee. If a government employee commits a tort against an innocent third party and that person wishes to file a claim against the government employee, the government employee cannot be sued in his or her official capacity unless the employer of the government employee has waived its sovereign immunity. This is because any claim against the employee in his or her official capacity is considered by the Courts in Georgia to be equivalent to a claim against the government itself. Thus, absent a waiver of sovereign immunity, which is quite limited, there will be no claim against the employee in his or her official capacity.
If an employee is not acting within the scope of their discretionary authority and violates a ministerial duty, or acts with actual malice or intent to cause injury, or acts completely outside the scope of their employment, they can be held individually liable for torts against innocent third parties. There are a lot of qualifications in the law in this regard and it is not always easy to determine what constitutes a discretionary act as opposed to a ministerial duty. As long as there is a policy or procedure in place, which requires the execution of a simple task with definitive guidelines for the execution of that task, there is at least an argument to be made that the duty is ministerial in nature and therefore if the employee, by virtue of failing to perform such tasks, negligently causes harm to an innocent third party, then in that event, a valid claim can be asserted against the government employee individually. Otherwise, any claim against a government employee will be barred by the doctrine of Official Immunity because a government employee cannot be sued for discretionary acts performed in the course of their duties. One limited exception to this are automobile tort claims where there is a limited waiver of immunity. As might be expected, whether an employee can be successfully sued in an individual capacity is a factually specific inquiry.

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.