Trial Attorney Blog

As we have blogged about on many occasions in the past, there are many unfortunate situations where third party innocent victims become involved in reckless and dangerous police chases. If the police are chasing a juvenile, a traffic offender or some other non-violent offender and while traveling at high speeds continues to chase the suspect under such dangerous conditions that they crash into an innocent third party, there should be legal liability for a reckless disregard of proper police procedure in this context. Indeed, under Georgia law, O.C.G.A. § 40-6-6 specifies that where there is evidence of a reckless disregard of proper police procedure in the decision to either initiate or continue a high speed pursuit, such reckless disregard can be the basis of liability against the police if an innocent third party is injured due to such recklessness. Notwithstanding the statute, it is commonplace in any case brought by an innocent victim against the police for the government entity involved to assert sovereign immunity as a defense.
This issue was decided long ago by the Georgia Supreme Court in a case called Cameron v. Lang. In that case the Georgia Supreme Court held that where a plaintiff proved that there was insurance coverage for the incident and also had proof that there was a reckless disregard of proper police procedure, then in that event, sovereign immunity would be waived. This is because Georgia law has long held that where there is insurance coverage applicable to the negligent use of a motor vehicle, sovereign immunity is waived for counties and municipalities.
The argument now being advanced by police departments is that “reckless disregard of proper police procedure” is not the same as “negligent” use of a vehicle. This is a specious argument that has been rejected by most courts that face it but nonetheless the argument continues to be made. Moreover, many governmental entities do not carry any insurance and even though there is a statute which specifies that all governmental entities must have certain minimum amounts of self insurance coverage up to certain statutory limits, entities

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In the late 70’s and early 80’s while I was employed in the Georgia claims department of a major insurance company, we had a very significant number of workers compensation death cases. Part of the reason was that the company wrote alot of assigned risk business but another reason was that the economy was doing well. Construction was booming and there were lots of jobs, especially construction jobs. Recently released statistics demonstrate that this is not the case now..
In August, the Bureau of Labor Statistics’ National Census of Fatal Occupational Injuries reported that in 2009 there were 96 workplace deaths in Georgia compared to 182 workplace deaths in 2008— a 47% decline in just one year.
Specifically, the Bureau of Labor Statistics’ National Census of Fatal Occupational Injuries broke down the causes of the Georgia on-the-job deaths as follows: 3 from fires or explosions; 14 from assaults or violent acts; 11 from contact with objects or equipment; 11 from falls; 10 from exposure to harmful substances or environments; and 47 related to transportation incidents.

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Under Georgia law, employers are vicariously liable for the acts of the employees provided such acts are performed within the scope of their employment. If an employee is working on behalf of an employer and is acting within the scope of his or her duties, an employer will be liable if the employee negligently injuries a third party. The reasons for such liability are due to the fact that the injury arose out of and was caused by the performance of duties being performed on behalf of the employer. Under such circumstances, both the employer and employee are legally liable to the injured third party.
Disputes often arise in cases where there is some question whether the employee was acting within the scope of his or her employment. Such questions may arise in the context of an employee traveling to and from work where they may be performing an errand for their employer, attending a special meeting or otherwise performing some function on behalf of their employer even though technically not “on the job.” Such cases are always factually unique and each case must be decided based on an analysis of the facts as it pertains to the seminal legal question, that being whether the employee was acting within the scope of his or her employment at the time of the complained of injury.
For any person injured in an accident or as a result of any misconduct or negligence of a third party, one must always analyze whether there is the possibility of a claim against the person’s employer. We have handled many cases in the past where initially it appeared that the claim could only be brought against the individual tortfeasor only to discover through investigations that the person who negligently caused the injury was, in fact, working on behalf of a third party at the time of the incident. As in any important legal case, investigation of the facts as close to the time of the injury is imperative if the rights of the victim are to be protected.

In a case where an innocent victim is victimized by the negligence of a third party, whether it be as a result of the negligent acts of a truck driver or due to medical malpractice committed by a doctor, a question often arises: Should a claimant in such a case consider mediation as a way of resolving their claims against the negligent defendant? Experience indicates that mediation is successful approximately eighty percent (80%) of the time so logic would dictate that all serious personal injury claimants should consider mediation as an alternative to litigation.
Over the years, we have been involved in hundreds of mediations here at our firm. Our experience bears out that approximately eighty percent (80%) of all cases submitted to mediation do settle. Thus, we do recommend that our clients seriously consider attending a mediation prior to proceeding to a jury trial. Jury trials are fraught with uncertainty and reasonable minds many times can differ over what would be a fair and just result in any given case. At mediation, the parties deciding the dispute are the parties themselves as opposed to twelve (12) lay persons who are strangers to the dispute. There are advantages for the parties to settle amongst themselves because not only does this save the time and expense of a jury trial, the parties themselves are usually much more familiar with the facts than would be twelve (12) lay persons sitting in a jury box. Thus, as a general proposition, we recommend that all of our clients consider mediation as a possible way to resolve a personal injury case against a negligent third party. As stated, it does not matter whether the case involves medical malpractice, products liability, wrongful death, a trucking accident, a car accident or any other serious injury tort case. As long as the parties are voluntarily willing to submit their claims to a mediation, there is always the possibility of a settlement, which if the terms of the settlement are fair and just, can be preferable to proceeding to trial. Of course, we continue to advocate that the best way to get the best result for any client is to be prepared to present the case to a jury so that all parties at the mediation will know that counsel is prepared to obtain a just result for his/her client unless the case is settled for a reasonable sum at mediation.

The Georgia injury lawyers at Finch McCranie, LLP have represented victims of dangerous products for over 40 years. These products which range from defective automobiles to defective humidifiers can cause serious injury or even death if they malfunction after being purchased by the innocent consumer.
Just last week, General Motors recalled over 4000 2010 Cadillac SRX crossover vehicles because of power steering problems. According to the company, power steering fluid could leak, causing a fire in the engine compartment. All of these cars were manufactured in 2009.
Although this may not seem like a significant problem, it could potentially be very dangerous if the vehicle were to catch on fire after being parked in a home garage or carport. Ford Motor Company found out they had significant exposure when Ford F series trucks with defective cruise control switches caused such fires. Those fires lead to a recall by Ford.

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In a case where an injured party brings a claim against a person who caused them injury and that person’s employer, a jury question is often present as to whether the negligent employee was acting within the scope of his or her employment at the time they inflicted the injury upon the innocent third party victim. As long as a disputed issue of material fact exists, only juries can determine whether an employee was acting within the scope of their employment and/or acting solely for personal reasons. Under Georgia law, while courts are free to decide cases where there is no disputed issue of material fact on this question, as long as there are facts from which a jury could determine that an employee was acting within the scope of his or her employment on behalf of an employer, only a jury can decide whether the employer should be held legally liable for the damages inflicted by the negligent employee.
In a medical malpractice case, if the doctor involved is working on behalf his employer then in that event, the employer would be liable. If the doctor is coming home from an office function, and injures someone on his or her way home, the question arises as to whether this was a special office function the doctor was required to attend and/or whether there are any other disputed facts which would indicate that the doctor/employee was still acting within the scope of his employment and on behalf of his employer. Again, these cases are factually unique. The issues must be resolved by a jury except in cases where it is plan and palpable that the employee’s conduct was in no way connected to his or her employment.
Unless there is no dispute about the facts or unless it is clear that an employee’s conduct has nothing to do with their employment, Georgia juries will have to decide whether an employer will be liable for the tortious facts of an employee. Legal instructions to the jury will always provide that an employer should be held liable for acts committed by employees provided such employees were acting within the scope of their employment at the time of the complained of injury.

Georgia injury lawyers often see car accidents and truck accidents caused by tire failure. A tire failure can also be the precipitating event in a vehicle rollover case. The causes of these tire failures vary but include manufacturing defects, road hazards and failure to keep the tire properly inflated.
In any motor vehicle crash where a tire failure is suspected, it is crucial to preserve the vehicle and especially the tires and rims so that they can be inspected by experts. Georgia injury lawyers know experts who can timely inspect and evaluate the evidence and who can testify at trial, if necessary.
Tire and Wheel defects include each of the following:
• Tire Tread Separations
A tread separation refers to the separation of the tread from the carcass of the tire. This separation usually occurs between the two steel belts and is one of the most common modes of tire failure.
• Tire Sidewall Failures
A sidewall failure, also known as a blowout, often involves a hole in the sidewall. These generally occur while a tire is being used on a vehicle when the tire is underinflated. Sidewalls may also undergo a “zipper failure in which the sidewall bursts or explodes during the inflation process. The rupture pattern usually resembles an open zipper. In a zipper failure, there are no visual signs or indicators that the tire may fail during normal servicing.
• Tire Bead Failures
A bead failure involves the breakage of the bead, the part of the tire that contacts the wheel rim. This type of failure occurs during the mounting of a tire on a rim when the bead becomes hung up on the rim, creating huge stress on the entire bead. When the bead fractures, a low pressure explosion occurs, turning the tire and rim into high velocity projectiles which almost always result in serious injury or death. Tire bead failures are most frequent in the spacesaver” spares.
• Aged Tires
Tires do not have an infinite shelf life. Tires may fail due to ozone cracking, even where there is significant useable tread left on the tire. Ozone cracking appears as small cracks or fissures on the surface of the tire rubber. Aging tires increase the likelihood of a tire tread separation or tire sidewall failure.

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Georgia injury lawyers have seen many serious automobile accidents, tractor-trailer accidents and motorcycle accidents caused by foreign objects and road debris on Georgia highways. Just a few weeks ago a 19 year old girl was killed in Tifton, Georgia when she collided with a tractor-trailer. Both vehicles were heading south on Interstate 75 when the girl swerved to avoid a piece of retread rubber in the roadway. After running off the roadway, she apparently over-corrected, came back onto the roadway and struck the tractor-trailer rig. This death should not have happened. Recently I got a call from the mother of the girl and we discussed the growing problem of road debris and in particular, large pieces of tractor trailer truck tire tread littering our highways. There are ever increasing numbers of these accidents which are claiming the lives of many motorists.
The National Transportation Highway Safety Administration commissioned a study entitled “Commercial Medium Tire Debris Study”. The study objectives were to:
1. Investigate the underlying causes of tire failures in heavy- and medium-duty trucks through an analysis of tire debris samples collected on interstate highways in five regions of the United States;
2. Determine the extent of truck tire failures for retread tires; and
3. Determine the crash safety problem associated with tire failures for large trucks.
At the end of the study the “Overall Study Conclusions” were as follows:
“The analysis of tire fragments and casings collected in this study has found that the proportion of tire debris from retread tires and OE tires is similar to the estimated proportion of retread and OE tires in service. Indeed, the OE versus retread proportions of the collected tire debris broadly correlated with accepted industry expectations. Additionally, there was no evidence to suggest that the proportion of tire fragments/shreds from retread tires was over-represented in the debris items collected. Examination of tire fragments and tire casings (where the OE or retread status was known) found that road hazard was the most common cause of tire failure, at 38 percent and 36 percent respectively. The analysis of tire casings found maintenance and operational issues accounted for 32 percent of the failures while over-defection accounted for 16 percent. Analysis of tire fragments found that excessive heat was evident in 30 percent of the samples examined. These results suggest that the majority of tire debris found on the Nation’s highways is not a result of manufacturing/process deficiencies. Similar findings are corroborated in earlier studies of tire debris. The evaluation of available crash data shows that vehicle crashes related to truck tire failure and truck tire debris are very rare events that account for less than 1 percent of traffic crash involvements.”
Whether recapped or retreaded truck tires are safe is debatable; however, it is an undeniable fact that tractor-trailer tire debris on or nation’s highway is increasing and it poses a very significant risk to motorists. Whether truck tire failure is caused by manufacturing defects or simply a drivers failure to keep the tires properly inflated, the negligent parties need to be held accountable, if they can be identified.

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In Georgia there is a bad law on the books that was passed by the Republican dominated Legislature as part of its so-called effort at “tort reform.” We refer here to the provisions of O.C.G.A. § 9-11-68, the Georgia Offer Of Judgment statute. This statute provides that a party may make an offer of judgment to another party in a pending case in which the offering party agrees to settle the case for a specified sum. Thereafter, if the party to whom the offer is made fails to settle for the offer and later fails to obtain an award of at least seventy-five percent (75%) of the amount of the offer, then the party making the offer of judgment may petition the court for payment of its attorney’s fees from the date the offer was made until the less favorable award or loss.
A hypothetical might provide a good example of why this is such a bad law. Suppose a middle class person files a lawsuit against a rich corporate defendant with silk stocking lawyers paid by an insurance company our through other corporate monies. An offer of judgment is made by the wealthy defendant against the middle class person. If the middle class person does not obtain a verdict in excess of seventy-five percent (75%) of the amount of the offer, that middle class person may be on the hook under this new law for the payment of the attorney’s fees of the silk stocking lawyers – even if they win their case (but especially if they lose the case).
Many Washington, D.C., New York law firms and firms in Atlanta charge anywhere between six to eight hundred dollars an hour ($600. – $800.) for their “silk stocking services.” While such fees are outrageous from the standpoint of any middle class person, corporations routinely pay these fees because corporations have the funds to do so. Thus a middle class person who is trying to assert their legal rights in any litigation runs the risk of having all their assets seized by these silk stocking corporation lawyers if they do not prevail in civil litigation. Thus, the middle class person is being forced to settle the case rather than run the risk of presenting his or her case to a trial by jury.

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Motorcycle riders are especially vulnerable to serious injury or death when involved in an accident with a careless driver. While many drivers fault the motorcyclist, we at the Finch McCranie firm know that most motorcycle operators are responsible, cautious individuals. Defective tires, or design problems with the motorcycle itself, can also cause a motorcyclist to crash. In such cases, the victims may have a viable products liabilty case against the manufacturer of the product.
Just last week a Georgia couple was injured in Tennessee when the rear tire of their motorcycle blew. Stephanie Rasmussen of Hoschton, Georgia, a passenger on the motorcycle was flown to Vanderbilt Medical Center and her husband, Kevin Rasmussen, was transported to Harton Regional Medical Center.
Whether the rear tire of the motorcycle was defective is unknown; however, given the injuries, an inspection of the tire by an expert may be warranted. In our experience, a qualified tire expert can determine the cause of the tire failure. For this reason, in all cases of suspected tire failure, the tire and rim assebly should be preserved.

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