Trial Attorney Blog

This past week, the Georgia Supreme Court issued a ruling that was favorable to victims of crime who have civil tort claims arising out of the criminal acts perpetrated against them. The Supreme Court held that the statute of limitations is tolled for victims of crime for any claims arising out of the criminal acts perpetrated against them until such time as the criminal prosecution of the perpetrator is terminated. See Beneke v. Parker, ___ Ga. ___ No. S08G2078, (2009).
What is interesting about this new Supreme Court opinion is that our law firm had written an article about the Victim’s Right Statute enacted by the Legislature and codified in O.C.G.A. § 9-3-99 over one year before this opinion was rendered. In this article which was published in the Georgia Trial Lawyers magazine “The Verdict”, our firm had presaged this opinion by stating that it was likely that the statute might protect victims of traffic crimes by tolling the statute of limitations in their cases. It was pointed out to members of Bar that if they had a case where there client had been victimized by a traffic violations they might be able to circumvent the statute of limitations by relying on the new statute. We specifically pointed out in our article that the Victim’s Crime Act could be used in cases where there were violations of criminal laws as pertains to the operation of a motor vehicle.
The lawyer in the Beneke case read our article and used our arguments to win this case for his client. In the Beneke v. Parker case, the Supreme Court held that the plain language of O.C.G.A. § 9-3-99 encompasses a violation of the Uniform Rules of the Road. The Court wrote to impose a more stringent definition of “crime” within the context of the statute would render superfluous its language that “the statute of limitation is tolled from the date of the alleged crime or “the act” giving rise to such action in tort” until the prosecution or other termination of such crime or “act.” In short, even a traffic violation which results in criminal charges being filed against the perpetrator can be used under this new statute to toll the statute of limitations for the victim of the crime until such time as the criminal perpetrator’s case has been disposed of in the criminal system.
To see a copy of our article, please hit the link provided for further detail on the possible impact this new statute may have on you or a member of your family if you are a victim of a crime.

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In early September, a veteran of the California Highway Patrol was provided a loaner vehicle from a Lexus dealer while his car was being serviced. After leaving the dealership, this 19-year law enforcement officer, whose job included safety inspections, was faced with a tragic situation. The vehicle he was driving suddenly and unexpectedly began to accelerate out of control. It appears from the investigation conducted to date that the officer was unable to stop the vehicle. Witnesses stated that the car was traveling in excess of 100 miles per hour when it crashed. Prior to the collision, one of the passengers inside the vehicle had called 911 to report a stuck accelerator on the vehicle. Regrettably, not only was the officer killed but also three members of his family.

Last week, perhaps in response to this fatal collision, Toyota announced the biggest recall in its history. It now appears that federal investigators are looking into over 100 accidents allegedly caused by stuck gas pedals on Toyota vehicles. According to news accounts, there are four possible reasons for these sudden unintended accelerations of Toyota vehicles: 1) the floor mats are too long and/or too thick; 2) the mats are not properly secured on the floor; 3) the gas pedal design is flawed; or 4) the floor’s geometry is defective in and of itself. Poorly designed floor mats have been suspected to be the problem for some time. Last week the Japanese automaker issued a safety advisory urging Toyota owners of over 3.8 million cars and trucks to remove driver side mats from their vehicles. Obviously, the Company is concerned that its customers could be placed in a similar situation as was the family of this highway patrol officer who lost their lives due to unintended sudden acceleration.

Toyota’s warning affects various models from 2006 to 2010. The National Highway Traffic Safety Administration has apparently received reports of 102 incidents in which the accelerator may have become stuck on Toyota manufactured vehicles. This sudden acceleration problem has resulted in 13 crashes, 17 injuries and at least 5 fatalities. (It is not known whether the NHTSA statistics which were publicly reported included the 4 reported deaths which recently occurred in California.)

The Georgia injury lawyers at Finch McCranie, LLP have represented many clients who have sustained serious injuries as a result of falling in hospitals, nursing homes and extended care facilities. Patients who are long term residents in skilled nursing facilities are by definition in a compromised state of health, usually from multiple chronic medical problems. These patients are often weak, are subject to lightheaded spells, become confused and have significant deficiencies of mobility and balance. Falling, sometimes frequent falling is thus a common occurrence for these patients. The consequence of these events can range from simple, inconsequential bruising to severe complications such as broken bones to intracranial hemorrhages. Furthermore, even relatively simple additional stresses imposed on an already debilitated state can have long term effects on a patient’s overall medical condition over and above the specific effects of the fall itself. For example, it is well known that such patients who sustain a fractured hip have much higher 6 month mortality even after the fracture has healed and baseline mobility has been re-established. Although skilled nursing facilities and other medical providers are well aware of the risks to elderly patients who fall, they are often negligent in a variety of ways, including failing to adopt safety measures to protect patients.
If your loved on has been injured as a result of the negligence of a nursing home or other skilled nursing facility, contact the experienced Georgia injury lawyers at Finch McCranie, LLP at (800) 228-9159.

Everyday patients fall in Georgia nursing homes. Our Atlanta attorneys have successfully tried cases against nursing homes and other skilled care facilities in which patients have suffered severe injuries due to preventable falls.

Patients who are in long term nursing homes are by definition in a compromised state of health, usually from multiple chronic medical problems. These patients are often weak, are subject to lightheaded spells, become confused and have significant deficiencies of mobility and balance. Falling is a common occurrence for these patients. The consequence of these events can range from simple, inconsequential bruising to severe complications such as broken bones to severe head injuries.

Even relatively simple additional stresses imposed on an already weak person can have long term and devastating effects on a patient’s overall medical condition. It is a fact that such patients who sustain a fractured hip have a much higher 6 month death rate even after the fracture has healed.

Every year Georgia citizens purchase and take millions of dollars worth of prescription medication, thinking that it is safe to do so. Georgia injury lawyers know that unfortunately, many of these medications are dangerous drugs, notwithstanding the fact that the Federal Drug Administration (FDA) has “approved” them. As we have seen, many of these dangerous drugs cause serious injuries and sometimes result in the wrongful death of the consumer. An example of such a drug is Vioxx. Fortunately, some victims and their families are getting justice. The Philadelphia Inquirer just reported that New Jersey’s highest court has upheld $4.5 million in Vioxx-related damages against drug maker Merck & Co. The lawsuit was filed by the widow of John McDarby who developed heart problems after taking the drug and ultimately died of a heart attack. The original $13.9 million award in the case was later reduced to $4.5 million. Read Article: Philadelphia Inquirer
If you or a loved one has been seriously injured as a result of taking a dangerous drug, call the Georgia injury lawyers at Finch McCranie, LLP for a free consultation. We have been representing victims of serious injuries and wrongful death for over 40 years.

Georgia injury lawyers know that the Food and Drug Administration (FDA) is hardly the consumer safety “watchdog” that it was in prior years. In fact, just because a product has been approved by the FDA does not mean that it is a safe product! The influence drug manufacturers have over regulators, politicians and Congress is enormous. The Washington Post recently reported in an article (The Washington Post) that the FDA approved a controversial knee-surgery device after receiving pressure from lawmakers and lobbyists. According to a report released last week by the FDA, regulators seem to have buckled under political pressure from four New Jersey lawmakers with financial ties to ReGen Biologics. The report noted that FDA staff had previously opposed approval of the device.
The Georgia injury lawyers at Finch McCranie, LLP have been representing the victims of dangerous drugs and medical devices and other dangerous products for many years. If you or a loved one have been injured as a result of a dangerous products, call us for a free consultation at (800) 228-9159.

Amid the debate over so called medical malpractice reform, the rights of patients seem to be getting sacrificed for the profit of large insurance companies. A recent report from California demonstrates why the right of patients to redress in courts cannot be curtailed.

According to published reports the California Department of Public Health (CDPH) recently issued administrative penalties to 11 California hospitals, each of which has been “fined $25,000 for alleged regulation violations that caused injury or death to patients. The violations included failures in care, such as leaving sponges or other surgical tools inside patients and failures in communication between hospital departments or inadequate nurse training.

All of the hospitals must submit a plan of correction to the state, which outlines how the violations would be avoided in the future. The hospitals also have the right to appeal the citations within 10 days.

Many employment lawyers are confronted with hostile environment claims where managers exploit their positions to seek sexual favors from employees working underneath them. Such an employment case obviously involves sexual harassment but is entirely different and generally far less devastating to a victim when a sexual predator is hired by an employer and is allowed to gain access to vulnerable victims through their jobs. As an example, if a mental health facility hires someone unsuitable for a position and that person takes sexual advantage of a mentally ill patient, it can readily be seen that such an occurrence could be extremely devastating to the victim and his or her family. The question is how to best deal with such a situation from a legal standpoint when such a case is brought to the attention of an attorney.

Here at Finch McCranie we have seen many unfortunate cases where patients have been raped and sodomized at health care facilities. We have had cases where patients have been raped by other patients who were not properly supervised and/or situations where patients were raped by employees of the staff of the health care provider. In the latter situation, one of the best legal remedies available to the innocent victim is to file a claim against the employer for negligent hiring and retention of the sexual predator/employee.

An employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known poses a risk of harm to others where it is reasonably foreseeable from the employee’s “tendencies” or “propensities” that the employee could cause the type of harm sustained by the victim. Thus, if an employer knew or in the exercise of ordinary care should have known that an employee hired and retained to perform duties involving personal contact with medicated or vulnerable patients was unsuitable for that position because he or she posed a reasonably foreseeable risk of personal harm to patients then, in that event, the employer can be held legally liable for having negligently hired and retained the unsuitable employee.

From newspaper accounts it appears that the Board of Commissioners of Clayton County may conduct an independent investigation into a police chase which resulted in the wrongful death of two innocent women who were returning from bible study when a pickup truck fleeing from a Clayton County police officer slammed into their vehicle on Old National Highway in Atlanta. The deadly pursuit began when the police noticed a suspect allegedly soliciting a prostitute. Even though this is a misdemeanor and a minor offense, Clayton County police officers began a high speed pursuit of the suspect which ended with deadly results. Even though the Clayton County Police Department policy does not allow for high speed pursuits of misdemeanor offenders, nonetheless, the Police Department has publicly come out in defense of its officers claiming that the pursuit was justified under the circumstances.
There is a way that the Clayton County Board of Commissioners can protect its tax payers and save lives at the same time. The Board of Commissioners should restrict police pursuits to cases involving violent crimes. Unless the fleeing suspect is known to be violent or known to have committed a violent felony, it hardly makes sense to pursue non-violent suspects at high speeds particularly when it is foreseeable that innocent third parties can be killed. If the Board of Commissioners investigates this incident, it should find that a restrictive policy would have protected these women and that there would be no unnecessary loss of life caused by a restrictive policy.
It simply is not worth taking a human life to capture someone for soliciting a prostitute. The need to immediately apprehend the suspect in this case was clearly outweighed by the danger of the chase to the public. And yet, as long as the police department allows its officers to chase under circumstances whenever they individually deem it appropriate, the public will be at risk. Rather than relying upon the judgment of an officer involved in a high speed pursuit, where his adrenalin is pumping and where his judgment may be altered by the natural desire to apprehend a suspect, the Clayton County Police Department should adopt a restrictive police policy which does not allow the public to be exposed to risk of serious injury or death unless a potentially dangerous chase is justified. In our judgment, the only chase that is ever warranted is where the police are pursuing someone for a violent felony. Under such circumstances, the danger to the public posed by the suspect is equal to the danger caused by the chase itself. For non-violent offenses, the dangers presented by the chase will typically always exceed the danger presented by non-violent suspect. We hope the Board of Commissioners will save lives and adopt a restrictive policy. If not the public is at risk, the officer chasing the suspect is a risk and yes, even the non-violent suspect is at risk. Again, the death penalty to the innocent is not worth capturing a “John” in a solicitation case. This may very will happen again if the policy is not changed.

The Georgia injury lawyers at Finch McCranie, LLP have handled many wrongful death lawsuits where alcohol was a factor in causing or contributing to our client’s death. Some of these cases have involved our representation of a guest passenger who was killed as a result of the negligence of the host driver. Such could have been the case on Friday evening when an Augusta, Georgia man, Earl Clark, died in an accident on Mike Padgett Highway. Clark was the passenger of a 1988 Toyota Camry traveling north on Mike Padgett Highway. The host driver of the Toyota apparently attempted to turn left onto Clark Road and was struck by two vehicles traveling southbound. The southbound vehicles struck the passenger side of Toyota, trapping Clark in the vehicle. After he was extricated by emergency workers, he was taken to the Medical College of Georgia where he was pronounced dead. According to authorities, alcohol could have been a factor in the accident.
Under Georgia law, a host driver may be liable to the estate of a guest passenger, if the host driver’s negligence caused the death. Unfortunately, most people driving around Georgia’s roads do not have sufficient coverage to satisfy a judgment in a wrongful death case. For that reason, it is important to look to see if a third party may be liable. For instance, if the host driver of Clark’s car had been drinking it would be important to determine who provided alcohol to the driver. Until 1988, Georgia had no statute imposing liability upon bars or other commercial providers of alcoholic beverages for injuries or damages which resulted from the drunk driving of the person served. In fact, the Georgia courts had consistently held that the provider of alcohol could not be liable for the drunk driver’s misdeeds. In other words, they were insulated from liability. However, in 1985, the Georgia Supreme Court, in Sutter v. Hutchings, imposed, for the first time, liability upon the provider of alcoholic beverages for the consequences of the consumer’s drunk driving. Now, a commercial vendor of alcohol, such as a bar, who serves adult guests who are “noticeably intoxicated” at the time they are served may be liable to innocent third parties who are seriously injured or killed in an automobile accident. The Official Code of Georgia Annotated § 51-1-40(b) states that a provider of alcohol may be liable where he 1) willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person not of lawful drinking age, knowing that such a person will soon be driving a motor vehicle, or 2) knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle.
If your loved one has died as a result of the negligence of a drunk or impaired driver, call the Georgia injury lawyers at Finch McCranie, LLP for a free consultation. We have over forty years experience handling wrongful death cases.