Trial Attorney Blog

Atlanta has previously been identified as one of the most dangerous large metropolitan area in the country for pedestrians. Although statistics are not always accessible, in the calendar year 2001, for example, 64 pedestrians were reported killed in Atlanta. Throughout the State of Georgia, more than two-thirds (2/3) of pedestrian fatalities occurred on neighborhood streets, which helps explain why pedestrian injury is the second leading cause of death for children age 5 to 9. Another problem, particularly prevalent in Atlanta, are unsafe sidewalks. While the City does not maintain statistics on the number of people who are injured while using city sidewalks, anyone who lives in the Atlanta area knows that city sidewalks are often in a state of disrepair and are dangerous to pedestrians who might wish to use them. Sidewalks in metropolitan Atlanta also rarely meet the needs of people with disabilities who make up a significant portion of the population. Despite federal requirements and long past deadlines, the City of Atlanta has been slow to take action to mitigate barriers that prevent people with disabilities from safely using the City’s sidewalks.

At a City Counsel work session in February of this year, Public Work Commissioner David Scott estimated that one-fourth (1/4) of Atlanta’s sidewalks were in need of repair. Mr. Scott also conceded that the problem with sidewalk maintenance in Atlanta could not be resolved with the resources at hand. Indeed, less than $125,000.00 is available in the City’s budget for maintenance issues, thus allowing for limited emergency maintenance only. With 25% of City’s sidewalks in need of repair, Commissioner Scott estimated that it would cost approximately $80 million for the City to make all the necessary repairs. What this means, of course, is that twenty-five percent (25%) of all city sidewalks, being in need of repairs, are unsafe.

With one-fourth (1/4) of the City’s sidewalks in need of repair, it is not surprising that there have been significant injuries reported. In one case, a bicyclist was killed while riding his bike near Peachtree Street and Peachtree Battle Avenue within the City limits. A utility wire had been draped across the sidewalk (allegedly for over a month) and the bicyclist came into contact with it such that he was thrown from his bike, landed on his head and was killed. In another tragic occurrence, a small child lost his leg when a loose utility wire which also partially obstructed a city sidewalk got caught up by a passing motorist’s vehicle and severed the boy’s leg as he was standing next to a utility pole, again on a city sidewalk. While these occurrences are tragic, it is clear that there are many more unreported injuries being sustained by pedestrians using Atlanta’s sidewalks. The question is, what can be done about this problem?

Get a credit card, buy a car, or sign up for a cellphone plan, and chances are, if you’re unhappy with your transaction, you won’t be telling your story to a judge. Many consumer contracts include unfair mandatory arbitration clauses that force individuals to go through arbitration, instead of civil court, if a dispute arises. Mandatory arbitration clauses tend to give companies, not the public, protection because the arbitration process can be costly and the time to make a case is limited.
Consumer lawyers contend that private arbitration companies are pressured to rule in favor of corporations, which often are repeat arbitration customers. If arbitrators rule against companies too often, they get blackballed.
Now Congress is considering a blanket negation of predispute mandatory arbitration agreements. The Arbitration Fairness Act of 2007, recently introduced in the Senate and House of Representatives, proposes making the clauses unenforceable. Our lawyers are urging our clients to contact their Representatives and Senators in Congress to voice support of this bill.

In 2005, the Georgia General Assembly enacted the so-called “Tort Reform” Act which greatly affected medical negligence claims in the State of Georgia. The stated intent was to lower insurance rates for physicians and healthcare providers. However, while severely restricting the rights of individual citizens to seek redress in the Courts, and increasing the burdens on plaintiff’s lawyers, the insurance rates of healthcare providers have not decreased.
While the requirements of bringing a medical malpractice case and the standards for obtaining experts have been greatly increased, it should be noted that a meritorious case can still be successfully prosecuted. Unfortunately, the General Assembly enacted a cap of $350,000.00 for non-economic damages which will greatly affect the recovery in many cases. Essentially, what this means is that unless you are a very large wage earner, the damages that you receive are, in most cases, limited to $350,000.00 maximum.
There have been several successful challenges in the Courts to many of the outrageous restrictions enacted in the so-called “Tort Reform” Act. Other challenges are currently pending and working their way through the lower Courts into the Appellate Court system. One of these involves the changing of the standard of care for actions against emergency room personnel from ordinary negligence to gross negligence, which in effect immunizes care rendered in emergency rooms. While the Georgia General Assembly promised to revisit this restriction when the legislation was passed, it has refused to do so.

Recognizing the time value of money, Georgia law requires that an award of damages representing a present compensation for any future pecuniary loss be reduced to its “present value.” In some ways this is common sense. If, as the result of a wrongful death, wages for the next 20 years have been lost, it is reasonable that such economic damages be reduced to present cash value in order for a present day award to be fair to both sides. A verdict is being returned today, in today’s money, for losses that will be incurred over many years in the future. Georgia law allows juries to use a discounted rate of 5% for purposes of present value reduction but it does not require the use of that rate. In any event, what is important to realize is that the “full value” of the life of a deceased can never reduced to present cash value. Only the economic components of the value of the deceased’s life should be reduced to present cash value, not the intangible elements of the claim.

If someone is denied (based on their age at the time of their wrongful death) a life expectancy hypothetically of 30 or 40 years, one cannot reduce to present cash value the loss of enjoyment of life over such a period. On the other hand, if, in the same hypothetical case, the deceased may have worked an additional 20 to 30 years, the calculus is different because given the lost wage projections over time, the jury should recognize the time value of money and return as a part of its verdict damages representing present compensation for a future pecuniary lost, reduced to present value. What Georgia juries need to understand, however, and where counsel has the important duty to inform them, is that life is worth far more than the sum of a person’s pay check.

The intangible value of life cannot be reduced to present value. The full value of the life of the decedent includes an intangible element which is incapable of exact proof and which can only be measured by the enlightened conscience of fair and impartial jurors. This intangible element has no ascertainable value except to the deceased. The deceased’s complete loss of his/her intangible relationship over a period of years with loved ones include consideration of associated factors such as society, advice, counsel and companionship as part of the “full value” of the life lost to be assessed by a fair jury based upon such relationships and the facts and circumstances of the deceased’s family and from the jury’s own observation and experience of mankind in its enlightened conscience.

Georgia law is unique in the context of a wrongful death action in that it divides a wrongful death claim into two parts. The first part, which we have previously blogged about, involves the rights of the survivors of the deceased to seek compensation for “the full value” of the life of the decedent. The second part of such a claim involves claims that the personal representative of the deceased may bring separately. This includes claims for funeral bills, medical bills which were incurred prior to the death caused by the tort, pre-death pain and suffering, and, where appropriate, punitive damages. Given that the estate’s claims are legally different and distinct from the claims of the survivor(s), it is obviously necessary that both components of damages caused by the wrongful death be sought if full justice is to be obtained.

O.C.G.A. § 51-4-5 provides that the personal representative of the deceased can recover all necessary medical and funeral expenses attendant to the death. If the deceased lived for a time prior to death and also incurred hospital and medical expenses, these are recoverable by the estate as pre-death expenses.

If during an accident for example, a car is destroyed, the representative of the estate has the claim for the property damage. Again, this is a pre-death claim not related to the wrongful death per se. If pain and suffering was experienced by the deceased prior to death, this too is a claim that is brought by the personal representative of the deceased as opposed to the survivor who possess the wrongful death claim. Thus, in the truest sense of the word, a wrongful death claim in Georgia is a bifurcated claim with all “pre-death” related claims belonging to the estate or personal representative of the deceased with the wrongful death claim per se belonging to the survivors, i.e. – the spouse, parent or child.

In a Georgia wrongful death case, it is important that the plaintiff establish all economic and non-economic damages caused by the wrongful death. Economic damages obviously include an analysis of how much income and wage was lost by the untimely demise of the decedent. Proving non-economic damages, however, does not involve an economic analysis but instead involves a presentation of the intangible components of the decedent’s life. In Georgia, in particular, it is important that a wrongful death claimant establish this aspect of “the full value of the life” of the decedent if full compensation is to be obtained for the wrongful death.
Typically, the best way to establish the non-economic value of the decedent’s death is to call as witnesses loved ones who knew the decedent prior to death who can testify to his or her attributes, hobbies, activities, family connections and other positive character traits which collectively and individually are indicative of the “full value of the life of the decedent.” One technique we have used successfully in representing clients who have suffered such a loss is to present a photographic album (or power point presentation) of the decedent’s life. We have put together photographs from the decedent’s childhood all the way through the time of death and include in the album or power point presentation not only photographic evidence but also diplomas, records of achievement, newspaper articles and other information indicating that the decedent lived a full life and therefore had much to lose due to an untimely death caused by the negligence of the defendant.
In some cases there may be videotaped evidence of birthday parties, or other functions where the decedent is demonstrated to have been very much loved and cared for by others and very much leading an active life. We have found that such evidence does speak volumes to a jury and typically is one of the best forms of evidence available in this area. However, testimonial evidence from family, friends and loved ones who knew the decedent also can be very powerful. Thus, when presenting this damage portion of a case to a jury, care must be taken that the proper witnesses are selected, those who are articulate and knowledgeable, and those who are capable of expressing in some detail their characterization of the love of life that the decedent had prior to death. Obviously, the list of such witnesses would include spouses, parents, siblings, neighbors, co-workers and/or Church or civic association members. We have found that these witnesses should routinely be called during any wrongful death case if “full” compensation is to be received by the innocent family who has lost their loved one.

In Georgia, juries are not reluctant to impose punitive damages against drunk drivers. It is common knowledge that drunk driving is a grave danger to the motoring public. Anyone who gets behind the wheel after having consumed intoxicating drugs or beverages obviously poses a risk of danger to the public. In Georgia, many years ago, the Georgia Legislature limited the imposition of punitive damages in tort cases to $250,000.00. This limitation in punitive damage awards was part of a “tort reform” effort of the business community years ago to keep damages low in tort cases, particularly where a business was sued. Nonetheless, in recognition of the dangers caused by drunk drivers, the legislature did carve out an exception for those who get behind the wheel after having consumed drugs or alcohol.
In a typical negligence case involving speeding, running a red light or other similar acts of negligence which result in injuries to third parties, punitive damages may not even be available because the conduct is not so egregious or aggravating as to justify an award solely to punish, penalize or deter a defendant which, of course, is the primary purpose of punitive damages. However, in a tort case where drugs or alcohol are involved, the Georgia Legislature has specifically stated that a jury is entitled to return any amount of money they deem appropriate as a punishment and penalty. Indeed, O.C.G.A. § 51-12-5.1(f) specifically states that with respect to defendants who “acted or failed to act” while under the influence of alcohol, drugs other than lawfully prescribed drugs “there shall be no limitation regarding the amount that may be rewarded as punitive damages against an act of tortfeasor. . .” Thus, in a drunk driving case, a plaintiff who suffers serious injures, wrongful death or otherwise is injured by such egregious misconduct is not limited to the statutory limitation of $250,000.00 (which is true in any other negligence case) but may recover amounts in excess of this $250,000.00 solely in the discretion of the jury.
In all cases we handle on behalf of our clients where drunk driving or drugs are involved in the negligent act which resulted in damages to our innocent clients, we always seek punitive damages and attorney’s fees. In any case where there is a basis for punitive damages, there is also a basis for attorney’s fees. Indeed, in Georgia, in any case where there is bad faith in the underlying transaction, not only may a jury award punitive damages, they may also award attorney’s fees. Our experience is that a Georgia jury is never reluctant to award such damages in a drunk driving case because such damages are appropriate to punish, penalize and deter those defendants who wreak havoc on the innocent members of the motoring public due to their voluntary intoxication.

In terms of a jury presentation, attorneys often disagree about the best approach to demonstrate the economic losses caused by a wrongful death. If the decedent was a substantial wage earner who lost, not only substantial earnings, but also valuable fringe benefits such as 401(k), profit sharing and other similar benefits, one school of thought is to hire an economist who can project for a jury the lost income stream over the working life of the decedent (typically up to age 65 or 70) and then through economic calculation reduce the loss back to present cash value, adjusted for inflation, raises and bonuses over the course of the decedent’s lifetime. This can be difficult because it is always a challenge to prove what the bonuses and raises would have been to the decedent based on his or her earnings history. A second school of thought is to dispense with the necessity and expense of the expert witness economist and simply introduce the Annuity Mortality Table showing what the typical age at death is of a male or female worker in this state and then to extrapolate from the earnings history of the decedent what wages could have been earned prior to death. For example: If a decedent died at age 40 earning $50,000.00 a year presumably they would work up to age 65 making a minimum of $50,000.00 per year for 25 years which would translate to a loss of $1,250,000.00. If this figure were adjusted for inflation but then reduced to its present cash value, usually the reduction to present cash value offsets the adjustment for inflation. Therefore, one can comfortably argue to a jury that the minimum loses, in terms of economic losses for such a wage earner, would be $1,250,000.00. Where there are fringe benefits lost such as profit sharing or 401(k) benefits, the analysis would be the same. Thus, you would merely present the tax returns, the W-2’s and the testimony of supervisors and co-workers to establish what the earnings history was, and then simply argue to the jury how they should go about calculating the future lost wages based on the earnings history.
Of course, every case is different and there is no real basis to conclude that one approach is necessarily superior to the other. In different cases over the years, our firm has used economists and have also relied on earnings history records alone in demonstrating this component of the full value of the life of the decedent. Either way, it is obviously necessary for any attorney in wrongful death case to introduce sufficient evidence to demonstrate to the jury the earnings capacity of the decedent so that complete compensation can be obtained for the economic component of the “full value” of the life of the decedent. Where economic dependency is established (a surviving wife with small children as an example) our experience is that Georgia juries will award as part of a wrongful death jury verdict full compensation for proven lost wages.

Georgia’s law on the wrongful death of an individual has several unique provisions. If a deceased is survived by a spouse or if there is no surviving spouse, a child or children, either may recover the full value of the life of the decedent as shown by the evidence. A surviving spouse, if there is one, is the sole person who may bring a wrongful death claim. Interestingly, a surviving spouse does not have to be married to the deceased spouse at the time the injuries are inflicted, but only at the time of death, since that is the date the cause of action accrues. The separation by the surviving spouse and the deceased spouse before death is no defense. If there is both a spouse and a child, the spouse has the right to bring the claim but does so in a fiduciary capacity and must divide the proceeds with the surviving children. The spouse is entitled to a minimum of one-third (1/3) of the recovery with the remaining balance to be divided equally between the surviving children. For purposes of the Wrongful Death Act, the fact that a child is born out of wedlock is no defense and there is no requirement of dependency. Minor children and adult children are treated equally. If a surviving child dies, the cause of action survives to the remaining surviving children.
If a decedent leaves no surviving spouse or child, the cause of action vests in the surviving parents. The right in the surviving parents is held jointly if they are both alive and living together. If one parent is deceased the right is in the surviving parent. If both parents are living but are divorced, separated or living apart, the right shall be in both parents. If one parent refuses to proceed or cannot be located to proceed, the other parent has the right to contract for representation for both parents and also the right to proceed on behalf of both parents to recover for the homicide of the child. In a situation where the parents are divorced or separated and one parent brings the claim on behalf of the other, there is a fiduciary duty to divide the proceeds. If the parties cannot agree, the Court can decide based on the relationship of the parents to the child which of the two parents might should receive a greater portion of the funds on grounds of equity.
If a wrongful death decedent leaves no surviving spouse, children or parent, the cause of action is then vested with the Administrator of the Estate who has the right to recover for the full value of the life of the decedent for the benefit of the heirs-at-law. In short, under Georgia law, there is always someone who has the right to proceed for the wrongful death of a deceased individual. Depending upon the individual circumstances, that person may be either the spouse, a child, a parent or a Court Appointed Administrator of the deceased’s estate. Because all cases are factually unique and sometimes the law can be tricky, it is advisable, obviously, that clients with such claims confer with counsel to determine who has the right to bring the wrongful death claim.

Until a few years ago, a plaintiff in a personal injury or serious injury lawsuit had to take the deposition testimony of all treating physicians in order to be able to introduce the deposition for a jury’s consideration. This is because testimony by a doctor without being subject to cross-examination would be considered hearsay and therefore not admissible. To resolve the problem and expense associated with every single plaintiff’s lawyer representing a personal injury claimant having to take medical testimony by way of depositions, and to dispense with the necessity of scheduling doctors’ time to provide such a testimony, the law was changed to provide that medical narrative reports written by a doctor could be introduced into evidence even if the doctor were not subject to cross-examination.

The operative statute is found at O.C.G.A. § 24-3-18. This statute basically states that any report which sets forth in story form the doctor’s assessment of the patient’s history, diagnosis and treatment shall be admissible into evidence. If a written notice is provided to the opposing party attaching the narrative and giving them ample opportunity that a plaintiff’s lawyer, for example, wishes to utilize the report in support of his client’s claims then, in that event, the defense has the right to take the deposition of the doctor at their expense, otherwise the report can come into evidence and be read to the jury without having to have the doctor’s testimony sworn and deposed before a court reporter.

The advantages of the medical narrative statute are obvious. First, the plaintiff, who is already injured and may not have any income, no longer has to pay for the deposition of a doctor. When dealing with a surgeon for example, an hourly deposition fee might be $500.00 per hour, not to mention the cost of the court reporter whose job it is to transcribe it. If the deposition is videotaped so that it can be shown to the jury, yet another expense is involved. In short, it is not uncommon for there to be a $1,500.00 expense in connection with taking a surgeon’s deposition. If the same surgeon, however, writes a narrative report and charges $250.00 for the time he takes to dictate and narrate the report, then in that event, the medical narrative is admissible and the expense of deposing the doctor would then shift to the defense if they wish to depose him further in connection with his report.