Trial Attorney Blog

We have read in the Atlanta newspapers this week about the tragic death of three people who died in a house fire in Palmetto, Georgia, which according to news reports was started by “an oxygen generating device that malfunctioned.” Although the news articles do not provide sufficient information to determine how this was concluded, the spokesperson quoted was from the State Insurance and Safety Fire Commissioner’s Office. It appears, therefore, that the tragic fire which resulted in the three wrongful deaths was caused by a malfunctioning product, which shorted out somehow and caused the blaze resulting in these three tragic deaths.
Our firm in the past has handled a similar wrongful death case where a young boy died in a house fire also caused by a malfunctioning product. In that case, the product was also an oxygen generating device that had malfunctioned due to a short in it. The device caught fire and the young boy could not escape his room before being killed. In that particular case, the young boy also suffered from disabilities which made it difficult for him to escape the fire once it started. (As we read the article currently being circulated in the Atlanta area, at least one, if not more, of the three people killed in the fire which occurred in Palmetto, Georgia were also apparently disabled.)
These cases are very difficult to prove because many times the fire destroys the evidence. It appears that the Insurance and Safety Fire Commissioner’s Office did a good investigation of this case because they may have preserved the malfunctioning unit. In the referenced case we handled, the malfunctioning unit was not fully preserved but enough parts of it were such that they could be examined by experts. In that case, it turned out that the product was known to malfunction by the manufacturer and had actually been recalled some several months before the incident due to its dangerous propensities.

Continue reading

Georgia has an “equitable apportionment” statute which essentially states that either parent of a deceased child, when divorced, separated or living apart, may file a lawsuit for the wrongful death of their child, notwithstanding the divorce or separation. In such a case, the parent that brings the wrongful death case does so in a fiduciary capacity proceeding not only on their on behalf but also on behalf of the divorced/separated spouse who obviously also has a legal interest in the death of their child.
Where divorced parents get along well even after the divorce, they may sue jointly. The difficulty comes where the parents do not get along and one proceeds before the other. Sometimes the other parent has to move to intervene in a lawsuit to protect their interests because they do not trust their spouse. Under Georgia law, even in such cases where neither spouse trusts the other, the fact is that the law provides that one spouse that proceeds in a divorce/separation situation for the wrongful death of a child, nonetheless, proceeds jointly on behalf of their divorces spouse.
In the event there is a recovery for the wrongful death of a child in the situation where the parents are divorced, the law provides for an “equitable apportionment” of any recovery between the divorced parents. A court will decide who gave the most child support, on whom did the child depend for support and issues of a similar nature in determining which parent equitably should receive the largest portion of the wrongful death award, if any. If a parent has abandoned their child, paid no child support, had nothing to do with the child, most courts would not award such a parent anything from the recovery although the court would be authorized to award whatever it deemed to be in the interest of justice based on the facts and circumstances. In most cases the courts would probably plan to divide the proceeds on a 50/50 basis unless there was clear evidence that one spouse had abandoned the child, was abusive to the child, did not pay child support or was not involved in the child’s life. In such circumstances, the spouse that did the most for the child and was the closest to the child would probably receive most, if not all of the award although, once again, the court would be required to equitably apportion the damages based on its own assessment of the equities involved.

Continue reading

In Georgia, as a general rule, punitive damages are not allowed in a wrongful death action. Commentary in various legal decisions have indicated that because damages in a wrongful death are somewhat punitive by nature that an award of additional punitive damages would be inappropriate. While punitive damages may not be collected in a wrongful death action per se, nonetheless, because of the unique provisions of Georgia law which confer upon the personal representative the right to bring a claim for property damage and/or any conscious pain and suffering experienced by the decedent prior to death, where there is evidence of either property damage or conscious pain and suffering prior to death, punitive damages may be awarded.
In any wrongful death case where the decedent has experienced conscious pain and suffering counsel should have a personal representative appointed not only to seek compensation for such conscious pain and suffering but also for burial, funeral and related medical expenses. If the circumstances of the case warrant it, punitive damages may be recovered if aggravating circumstances are involved in the underlying liability claim. For example, if a drunk driver kills someone, obviously, punitive damages would be appropriate in such a case. However, under Georgia law, unless the decedent experienced conscious pain and suffering prior to death or there was property damage suffered by the decedent, a claim for punitive damages may not be brought by the personal representative. Again, such a claim can only be brought by the personal representative and cannot be brought by the heir-at-law in the wrongful death claim but only in the estate’s claim for the specified damages.

In a wrongful death action, as indicated in other entries, juries in Georgia are permitted to award both economic and non-economic damages for the “full value of the life of the decedent.” We have written before about the intangible elements of the non-economic damages and the calculations that one would argue to a jury that would be appropriate in establishing lost wages over the earning lifetime of the decedent.
In calculating damages for the full value of the life of the decedent, obviously, every case is different as every individual is unique. You may have a high wage earner, you may have a housewife or child, or an elderly person. The facts in each case are different. However, once the jury decides what fair compensation should be awarded for the non-economic components of the claim, then the jury may calculate the economic damages to come up with a total award. One point to be made here is that only economic damages can be reduced to their present cash value because the money is being awarded today as opposed to having to wait over the expected lifetime of the decedent to recover the same. Non-economic damages, or the intangible elements of a wrongful death claim, however, are never reduced to present cash value.
As indicated in other entries, when a jury awards an amount for the full value of the life of the decedent, it must do so “without deduction of any necessary or other expenses, had he or she lived.” While a jury will be instructed to reduce economic damages to their present cash value again, in most wrongful death claims, the non-economic component of the claim, that being the intangible aspect of the loss of life from the standpoint of the decedent, is the more valuable claim, which hopefully will provide fair compensation for the survivors bring the claim. Counsel must educate the jury that non-economic damages should never be reduced to their present cash value in calculating damages in a wrongful death case.

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. Not a week goes by that we do not see a significant amount of road debris laying in the middle of Atlanta highways. Just last week 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 rubber in the roadway. After running off the roadway, she apparently over-corrected, came back onto the roadway and struck the tractor-trailer rig.
In October of 2008, a woman, trying to avoid road debris, died instantly in a single car crash. The accident happened at about 7:30 a.m. in the westbound lane of Interstate 285 in north Atlanta, Georgia. The victim tried to avoid a truck bed-liner in the highway when she hit a median wall.
In July of 2010, a Canadian woman died when a brake drum broke free from a large commercial truck was struck by the wheel of a tractor trailer and thrown into the air and through the woman’s windshield, striking her in the head.
On June 30, 2010, a Florida woman was killed after a portion of a portable toilet crashed through her car’s windshield. The two portable toilets fail from the trailer of a pickup truck. When they hit the ground and broke apart, a portion of one of them crashed through the woman’s windshield striking her. As a result, the woman veered off the road and crashed into a tree.
There are ever increasing numbers of these accidents which are claiming the lives of many motorists. Failure to secure a load being transported by car, tractor-trailer or any other vehicle is negligence for which you may be liable in damages. Trying to identify the person or corporation responsible for foreign objects being in the roadway is not always very easy.

Continue reading

Under Georgia law, there is a statutory Annuity Mortality Table which was passed into law in 1949. This table is commonly referred to by Georgia lawyers as “The Annuity Mortality Table 1949 Ultimate.” The figures in this table have been used for years in wrongful death actions and are still relied upon by juries today in assessing damages. Essentially, the Mortality Table shows that if a person has lived to a certain age that it is likely they will live a certain additional number of years based on Annuity Mortality studies which resulted in the statutory Tables. For example, someone who has lived to age 40 will live an approximate say 35.15 more years if he is a male and 40.11 years if she is a female. In other words, the table sets forth the life expectancy of the decedent. These tables can be effectively used in a wrongful death action in establishing the “full value of the life” of the decedent, not only with respect to economic damages but also non-economic damages. With respect to economic damages, if it is established, for example, under the terms of the Annuity Mortality Table, that the decedent would have worked an additional 25 years (up until age 70) before he or she retired and then an additional 10 years based on their life expectancy, then counsel may argue that the jury should award 25 years of earnings at an average rate of what the decedent showed they were capable of earning, the same 25 years for “non-economic damages” (enjoyment of life) plus an additional 10 years while living in retirement for the “non-economic damages” suffered by the decedent. While counsel are not restricted to using an Annuity Mortality Table in any case, and can utilize the services of an economist who can extrapolate such figures from the evidence introduced at trial, nonetheless, the Annuity Mortality Table 1949 Ultimate is a good piece of evidence to use in Georgia to help the jury understand the magnitude of a wrongful death claim and how they should go about calculating damages projected over many years.
Life expectancy as shown by the Mortality Tables is merely an estimate of the average remaining life of anyone in Georgia. Such tables while not binding on a jury are nonetheless useful guides in helping to demonstrate the likely life expectancy of the decedent. While such figures are obviously not relevant if the decedent was suffering from cancer, for example, or had a family history of heart disease or diabetes or other diseases which could shorten the life expectancy, for someone who dies with no serious health consequences, the Annuity Mortality Table 1949 Ultimate is a significant piece of evidence which can be used by experienced counsel in demonstrating the extent of one’s economic and non-economic damages in a wrongful death case in Georgia.

Obviously, the heartache, trauma and tragedy of losing a child is unspeakable. And yet, as set forth in prior entries, the measure of damages under Georgia law is not from the standpoint of the parents who sustained the loss of a child but rather from the standpoint of the child who lost their life. This can be difficult for any lawyer to prove because a child does not have proven earning’s records nor is the child’s future easily predicted. Typically, because parents who lose children may have other children or may be capable of bearing children in the future, even though the jury will be instructed that the measure of damages is from the standpoint of the decedent, juries may tend to factor into their damage analysis the fact that the parent’s loss may be offset by other practical considerations. This too is a challenge in any wrongful death case involving a young child with young parents.
There is no necessity that a plaintiff prove a child’s earning capacity in order to recover for future economic damages. A jury may look at the education and background of the parents in making determinations about the child’s probable income producing abilities. As an example, counsel could argue what the average wage earner in the United States earns through their lifetime and could argue that increased damages should be due to the heirs-at-law because of the income earning potential demonstrated through parents, siblings or other relatives. It is a challenge to prove the full value of the life of a minor child with no proven earning capacity but nonetheless, the jury is not bound by any fixed criteria in arriving at a fair and impartial verdict that awards compensation for the “full value of the life of the decedent.” Each life is unique and a child is no different. While there might not be as much available evidence to demonstrate the loss of economic damages, the jury will be instructed that even with respect to the death of child, the jury should consider both economic and non-economic damages in determining the “full value of the life of the decedent.”

Whether on a pontoon boat, bass boat, ski boat or jet ski, recreational boating is a popular activity enjoyed by millions of Georgians. However, according to the United States Coast Guard, boat accidents and boating related injuries are on the rise in lakes, rivers, and coastal waterways with over 5,000 accidents occurring each year, nationwide. The U. S. Coast Guard keeps and publishes statistics on the various causes of boating accidents. Tracking data from 2006 – 2007, the Coast Guard reported in the 2007 Recreational Boating Safety Statistics that operator inattention, careless/reckless operation, passenger/skier behavior, excessive speed, and alcohol use rank as the top five primary contributing factors in accidents. Alcohol use is the leading contributing factor in fatal boating accidents; it was listed as the leading factor in 21% of the deaths.
A boat operator and the boats owner must exercise the highest degree of care to prevent injuries to passengers, swimmers and others in the nearby water and those in any boats around them. In addition to the Atlantic Ocean, Georgia has numerous recreational bodies of water. In addition to the Chattahoochee and many other Georgia rivers, there are numerous lakes where boaters congregate: Lake Lanier, Lake Sinclair, Lake Oconee, West Point Lake and others. Our main office is located in Atlanta which is not far from any of these lakes. As a result, we have seen more than our share of boating accidents and boat related deaths. If you or a loved one have been injured in a boating accident, call the Georgia injury lawyers at Finch McCranie, LLP.

One would think that under Georgia law, the same person or persons who has the right to bring a wrongful death case would also have a right to seek compensation for funeral, medical and other expenses pertaining to the wrongful death. And yet, under the unique provisions of Georgia law, this is not the case. Under O.C.G.A. § 51-4-5, it is the personal representative of the decedent who has the right to recover medical and funeral expenses. Typically, therefore, it is necessary to have someone appointed as the personal representative of the decedent’s estate to bring such a claim. In a situation where a child dies, because the parents are legally liable for such expenses, there is no need to set up an estate per se although this can be done.
As we have written in prior entries, Georgia law sets forth who may bring a wrongful death action. Regardless of who that individual is, only the personal representative of the decedent’s estate (except where children are involved) has the right to bring a cause of action for funeral and related medical expenses pertaining to the wrongful death. Thus, under Georgia law, there is a bifurcated claim in most wrongful death cases. The surviving spouse, children or parents may bring the claim for the “full value of the life of the decedent,” whereas only the personal representative may bring a claim for funeral and related medical expenses. Thus, in the typical wrongful death case in Georgia, there are two claims brought; one for the full value of the life of the decedent and the other for medical and funeral expenses pertaining to the wrongful death. In such situations, the plaintiff may be the same person that is the representative of the estate (such as a wife, as an example) or there may be two different individuals involved. Under the unique provisions of Georgia law, the simple fact is that causes of action are divided: there is a wrongful death claim for the full value of the life of the decedent and there is a separate claim which must be brought by the personal representative of the deceased to recover any medical expense attendant to the death and for reimbursement of funeral and burial expenses. In addition, if there was any conscious pre-death pain and suffering experienced by the decedent prior to death, that claim too belongs to the personal representative of the decedent, not to the statutory heirs-at-law, who have the wrongful death claim.

Brake system care of golf carts is very important. Golf carts can be just as lethal as automobiles if not operated and maintained properly. When used carelessly, a golf cart can kill or severely injure the driver and passengers, innocent bystanders, or it can cause significant property damage. There are a number of things that can be wrong with golf cart brakes to create these types of situations.
Most all golf carts employ cable activated rear wheel brakes only. In recent years, hydraulic brakes and 4-wheel cable activated brake systems are becoming more common, as golf carts take on more diverse applications off the golf course; however, these systems are less common. Cable activated brake systems must be properly inspected and maintained on golf carts. Negligent maintenance can result in total and unexpected brake failure. Cable activated systems have three primary drawbacks. 1) The multi-stranded cables can start to break and unravel, sometimes inside the housing so that it is hard to see damage in progress; 2) The cables themselves are often located immediately under the battery compartment in electric vehicles, thus they are subject to the problems of improper battery maintenance. Acid-dripping batteries can contaminate and start to corrode the cable strands. Coupled with the natural water spray and corrosive golf course fertilizers, the cables really take a beating and may be subject to sudden and unexpected failure; and 3) The cables hang below the chassis and they are vulnerable to snagging stumps, rocks, and any other protruding obstacles they encounter.
A proper and systematic inspection of a golf cart will reveal most of these problems before there is a catastrophic event. If the cables are rusted, kinked, have broken housings, or just look suspicious in any way, shape or form, they should be replaced immediately. Failure to properly inspect and maintain a golf cart may subject the owner to liability for injuries in the event of a golf cart crash.

Continue reading