Trial Attorney Blog

The State Tort Claims Act waives the state of Georgia’s immunity from suit in the courts of this state. See O.C.G.A. § 50-21-23. This is a limited waiver of sovereign immunity and the most that any single claimant can recover against the State is $1 million. See O.C.G.A. § 50-21-29. By the terms of the State Tort Claims Act, the limited waiver of immunity only applies to the State and its agencies and departments. O.C.G.A. § 50-21-22(5). The State Tort Claims Act expressly includes claims against cities, counties and local government authorities.

Just as there are ante litem “minefields” that exist under Georgia law relative to claims against municipalities and counties, there is also an ante litem notice requirement under the State Tort Claims Act. These requirements are detailed in the statute and read as follows:

(1) Notice of a claim shall be given in writing within 12 months of the date the loss was discovered or should have been discovered; . . . ;

While most serious injury lawyers are aware of the ante litem provisions that exist under Georgia law, most lay persons are not. Thus, injured persons with valid claims against either city or county governments can through inaction sabotage such claims unwittingly just because of their ignorance of the arcane provisions found in the ante litem statutes of Georgia law. An ante litem notice simply means notice before litigation is commenced. With respect to cities, O.C.G.A. § 36-33-5 requires written notice to a Georgia municipality within six months of the event giving rise to the claim. This code section reads as follows:
“Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment stating the time, place and extent of the injury as nearly as practicable and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.”
Without being fancy about it, what this ante litem statute does is actually to shorten the statute of limitations for negligence claims against municipal authorities. If an individual has a claim against a city but does not act within six months, he or she can lose all of their legal rights. Thus, it is crucial for those who have claims against municipalities to confer with counsel as soon as possible and to make sure that a written ante litem notice is provided to the municipality involved.
As set forth in the statute cited, the ante litem notice must be given to the city itself. Notice to a city’s insurance company is not sufficient. While an ante litem notice does not have to be as specific or detailed as a formal written complaint or lawsuit, nonetheless, it has to be sufficient enough for the city to investigate it and determine whether it might be in the city’s best interest to address such a claim. While such claims are routinely denied, and while the alleged purpose and efficacy of the ante litem notice in that regard is highly questionable, nonetheless, this statute must be observed otherwise the claim lapses as a matter of law and no lawsuit can be brought against the municipality no matter how negligent the city’s conduct may be.

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In a case decided April 30, 2007, entitled Scott v. Harris, the United States Supreme Court held that a suspect fleeing from the police during a high speed police chase case has no Fourth Amendment right to be protected from the use of excessive force by the police against them. As we interpret this case, essentially, what this means is that a suspect assumes the risk of injury by the police during a police chase case.
In the Harris case, a 19 year old was fleeing from the police and the police employed a “pit maneuver” in order to knock the suspect’s car off the road. The pit maneuver is one in which the police hit the corner of the fleeing car with their car in order to force it off the road. In this case, when the suspect’s car left the road, it crashed rendering him a quadriplegic.
Harris filed suit against the police officer alleging that the officer had violated his Fourth Amendment rights against the use of excessive force. The Supreme Court disagreed and held that the police office did not violate the suspect’s Fourth Amendment rights by utilizing the contested pit maneuver.
In ruling against the claimant, the Supreme Court noted that he intentionally placed himself and the public in danger by unlawfully engaging in a reckless high speed flight. The Court obviously concluded that it was not reasonable for Harris to take the action that he took and that the deputy (Timothy Scott) was authorized to terminate the chase with force because of the suspect’s danger to the public. The Court specifically ruled that a police officer’s attempt to terminate a dangerous high speed chase that threatened the lives of the public did not violate the suspect’s Fourth Amendment rights even if the maneuver utilized by the police placed the fleeing suspect at risk of serious injury or death.

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Asbestos products, which have been used primarily for insulation purposes, have long been known to be dangerous. Nonetheless, exposure to asbestos still presents a danger to anyone performing maintenance, repair or demolition work in any structure containing asbestos. Unfortunately, it has been well documented that the Asbestos industry was well aware of the fact that exposure to asbestos could cause cancer. Mesothelioma is a form of cancer specifically caused by exposure to asbestos. It is difficult to diagnose and hard to treat. It occurs typically in the lining of the lungs or heart. Unfortunately, this form of cancer has a very poor prognosis if diagnosed late.

Mesothelioma can cause a variety of symptoms and like other forms of cancer, can be difficult to diagnose because its early symptoms are so non-specific. Many people with this type of cancer have had long term symptoms of a general nature (shortness of breath, fever, sweating, coughs, etc.) but are only diagnosed a few months before the cancer is detected often by which time it has rapidly advanced and the prognosis for survival is poor.

Unfortunately, workers who were exposed to asbestos early in their lives are just now beginning to discover that they have this malignant form of cancer. Obviously, any client with this condition should see their doctor immediately because this cancer can be deadly. From a legal standpoint; however, because Mesothelioma is a cancer that is specifically caused by exposure to asbestos, legal remedies still exist for those individuals unfortunate enough to have previously been exposed to this dangerous and cancer causing product. While this cancer may take years to develop, once it does develop, it can now be specifically identified through modern medical techniques. New treatments are available but to be effective a timely diagnosis is critical.

Senate Bill 276, a very important bill for all Georgia citizens who may become involved in serious injury motor vehicle accidents, is awaiting action by the House Rules Committee at the State Capital. This bill would drastically improve uninsured motorist coverage in Georgia. Under current law, a consumer who is has uninsured motorist (UM) coverage can only access part of their total limit if they are hit by a driver with a small amount of liability insurance coverage. SB 276 would allow consumers to “stack” their UM coverage on top of the at-fault driver’s liability insurance, if necessary, to cover a large claim.

For example, Charlie Consumer decides to include $100,000 of UM coverage with his auto insurance policy. The coverage is supposed to pay out claims when he is hit by a driver with no insurance (uninsured), or by a driver who has a level of insurance that is less than the total of his claim (underinsured). On his way home from work, Charlie is hit by Elsie Underinsured, who ran a red light and only has $25,000 in liability insurance. Charlie is seriously hurt and has medical bills totaling $125,000. He figures that Elsie’s $25,000 in liability coverage, and his $100,000 in UM coverage, should pay all his bills. Under current Georgia law, Elsie’s policy will eat into Charlie’s policy before he is able to take advantage of the UM coverage that he has been paying for. Thus, Charlie’s insurance company tells him that Elsie’s liability insurance covered the first $25,000 of his policy, and they will only pay the remaining $75,000 on his $100,000 UM policy. Charlie is left with $25,000 in unpaid medical bills that he must manage on his own.

In this example, if Charlie had purchased $25,000 in UM coverage, he would not be allowed to access a single penny of his UM coverage. In fact, in order for Charlie (or any other driver) to get the full benefit of the UM policy that they have been paying for, they have to be hit by a driver with NO INSURANCE WHATSOEVER. Getting hit by an underinsured driver means you don’t get what you pay for.

After years of litigation, the City of Hampton paid $1 million to the family of Grashaunda Banks to settle a wrongful death claim brought as a result of a high speed police chase that resulted in a deadly collision. The crash occurred on Hwy. 19/41 near midnight on July 23, 2000, near the Atlanta Motor Speedway.
The Plaintiff, Olivia Banks, alleged that her 22-year old daughter was killed as a result of a reckless disregard of police policy and procedure when City of Hampton Police Officer Jeremy Pirtle engaged in a high speed pursuit of Dwight Allen Dixon (at speeds in excess of 100 mph), allegedly because Dixon had committed a traffic violation. Dixon crashed head-on into the vehicle being driven by Grashaunda Banks as Dixon was fleeing from the officer. While there was some evidence that Dixon might also have been impaired, this evidence was disputed because the blood sample taken from Mr. Dixon (who was also killed in the collision) was lost for eight days and allegedly became contaminated before it was tested.
The Banks family alleged that it was a violation of established procedure for a police officer to dangerously pursue at high speeds a suspect who allegedly was guilty of nothing more than a minor traffic offense. The Plaintiff alleged that the risk of danger to the motoring public, including her innocent daughter, was too great to justify the deadly high speed pursuit of Dixon for a mere traffic violation.
While police chase cases have always been the subject of considerable public debate, apparently the City felt that it should settle the case rather than take its chances with a Clayton County jury. The sum of $1 million paid to settle the Banks wrongful death suit is believed to be one of the higher settlements in the state in a case involving a high speed police pursuit.
The settlement ended over five (5) years of litigation between the parties. Suit was initially filed in the Superior Court of Fulton County because Dixon’s Death Certificate incorrectly stated that he lived in Fulton County. Two years later, it became known that Dixon had moved to Clayton County, approximately thirty (30) days before his death. The Banks family was forced to re-institute the lawsuit in Clayton County, only to have the City of Hampton transfer the case to Henry County.

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Negligent filing of prescriptions has been on the rise. In fact, because of a shortage of pharmacists and the steady increase in the use of prescription medications, the rate of death and injury from botched prescriptions is skyrocketing, officials say.

There are as many as 7,000 deaths annually in the United States from incorrect prescriptions, according to Carmen Catizone of the National Association of Boards of Pharmacy. He told The Washington Post that as many as 5 percent of the 3 billion prescriptions filled each year are incorrect.

Recently there was a settlement and verdict in Georgia for a man who took a fatal dose of the chemotherapy drug Lomustine. Family members, on behalf of his estate, sued an oncologist and his practice, alleging that the defendants negligently authorized the pharmacy to fill the Lomustine prescription with 20, as opposed to 2, pills which was contrary to the manufacturer’s instructions. The suit also alleged the pharmacy was negligent in filing the prescription.

If you are physically or sexually assaulted by another person, you can bring a personal injury claim (civil action) against them to recover payment for your medical bills, lost wages, pain, suffering, and any other financial loss that you sustained as a result of the assault. A personal injury claim is separate from any criminal proceedings that may also be underway. The criminal court can find the other person guilty or not guilty and sentence them to prison; however, in the civil action, the judge or jury can order the other person to pay you money as compensation for your injuries and losses. You can bring a civil action even if the other person was found “not guilty” in the criminal court.

Many of the assault cases we have handled involve patrons of bars and clubs who are assaulted by “bouncers” or security personnel. In one such memorable case we represented a young man who was assaulted by two security employees who were employed by a bar in north Georgia. Our client was sprayed with Mace and then beaten. He immediately contacted the police who charged both bar employees with assault and battery. Even though a jury acquitted them on the criminal charges, we filed a civil suit against the bar and the two employees. After a trial a jury awarded a large sum to our client.

In another case our client, a long time patron of a large upscale department store in Atlanta, was followed to her car by store security personnel, in plain clothes. These employees accused her of shoplifting and demanded that she return to the store. They grabbed her and forced her back to the basement of the store where a female employee strip searched her. When it was determined that she had stolen nothing, she was told to leave the store. She called the police who arrested all of the security officers involved. Following a trial by jury she was awarded a seven figure verdict.

Unfortunately, as people age, they become more vulnerable to abuse, neglect, and exploitation. This is especially true for people living in long-term care facilities and nursing homes. Abuse and neglect results in persons suffering a variety of physical and psychological injuries, which result in pain, suffering, and loss of quality of life. An injured person is entitled to compensation for these losses, when they are caused by intentional or negligent actions of the nursing home or its employees. The injured person can make a personal injury claim against the nursing home, its employees, or both.
One of the most common cases of nursing home negligence involves people who develop bedsores. Victims of this type of negligence can be elderly, or younger people who are confined to a nursing home as a result of serious on-the-job injuries or automobile accidents. Other forms of abuse might involve actual physical or sexual assaults on the elderly perpetrated by nursing home employees. We recently had an elderly client who suffered from Alzheimers Disease. She was in a long-term care facility and was supposedly being cared for by people who specialized in caring for Alzheimers victims. While a resident of this long-term care facility, she was physically assaulted by an employee. This assault resulted in a fall in which she sustained a fractured hip. Unfortunately, she was not able to survive the surgery to repair her hip and she died. After suing the long-term care facility, and conducting discovery, we determined that the employee who assaulted her had no training whatsoever working with Alzheimers patients and, in fact, had recently worked at the facility as a kitchen employee.
If you have a family member in a nursing home or long-term care facility it is important that you check on them regularly. If you see signs of abuse or neglect, document them and seek legal help.

Traffic deaths in the United States have reached their highest levels since 1990, according to government statistics cited by the Insurance Journal. This increase was attributed in part to increased deaths from motorcycle and pedestrian accidents. There are a number of reasons for the increase. One possible explanation is the rise in our urban/suburban populations. As these numbers increase, our roads and highways become more crowded. Another possible explanation for the increase in pedestrian injuries and deaths may be related to the dramatic increase in immigrants to this country. Many immigrants do not own motor vehicles and walk to get where they need to go. In our practice we have noted that a disproportionate number of pedestrian cases involve that segment of our society.
We currently represent a hispanic women was crossing a highway here in Atlanta with her two children in tow and was struck by a car. She sustained various non life-threatening injuries; however, one of her children sustained fatal injuries and the other child, an infant, (who she carrying in her arms) has sustained serious injuries, including a traumatic brain injury.
We, as drivers, must pay attention to what is going on around us as we drive and not be distracted by the use of Ipods, cell phones and other modern devices. In Georgia we have a legal duty to maintain a proper lookout ahead, to see what there is to see. Georgia law states, in pertinent part, “…every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person”.