Trial Attorney Blog

Anyone who has practiced law for any period of time in the area of Serious Injury Litigation unfortunately comes across cases where a child has been killed as a result of the negligent act of a third party and the cause of action resides in divorced or separated parents. These cases not only are tragic, they can be very sad and/or messy.

The law has long been in Georgia that where parents are divorced and their unmarried child dies as a result of a negligent act of another that either parent may bring a cause of action for the wrongful death of their child on behalf of the other. If there is later a settlement or recovery from a jury, the law further provides that the proceeds from the case shall be divided between the divorced parents on an equitable basis. If the parents cannot agree on how the money should be divided, then in that event, a judge shall conduct a hearing, allow each parent to have the opportunity to be heard and produce evidence regarding that parent’s relationship with the child and then determine the percentage of the judgment or settlement to be awarded to each.

O.C.G.A. § 19-7-1 provides that in a case where parents are divorced and there has been a recovery for the wrongful death of their child that the judge in such a case, where the parties cannot otherwise agree, shall consider each parent’s relationship with the deceased child, including permanent custody, control and support, as well as any other factors found to be pertinent. The judge can decide whether each parent should receive 50% of any such settlement or recovery or whether one parent should receive a greater percentage than the other. The judge’s decision according to Georgia law “shall not be disturbed absent an abuse of discretion.”

We have previously written about procedural problems that clients may face when dealing with claims against governmental entities. Specifically, if an individual has a claim against a city or county government, there are certain pre-suit, ante litem requirements that must be observed before suit can be filed. We have written about this in earlier articles and would refer the reader to the same. We have also written these procedural problems under Georgia’s State Tort Claims Act. Here, we write briefly to discuss some unique issues under the Federal Tort Claims Act (FTCA).

As we have indicated previously, the Federal Torts Claims Act also has an ante litem requirement. A form 95 Claim Form (or its equivalent) must be filed with the appropriate federal agency or department within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). It is also important that there be separate claims for each claimant that may have incurred damages as a result of the alleged wrongful conduct or negligent act of a government employee or agency. See 28 C.F.R. § 14.3(b). Also, only the United States of America may be named as a defendant in a lawsuit later filed, not the agency or the employee, and the suit must be brought against the United States within six month of the claim denial. See 28 U.S.C. § 2401(b).

Another unique provision of the Federal Tort Claims Act is that the courts in such matters apply the Federal Rules of Civil Procedure to procedural law but state substantive law to the alleged negligent act. For example, in a hypothetical medical malpractice case, if a doctor at the Veterans Administration Hospital, for example, allegedly commits malpractice in one jurisdiction, even though the plaintiff may reside in another jurisdiction and therefore have the right to file the claim where they reside under 28 U.S.C. § 1402(b), nonetheless, the malpractice claim will still be governed under the law of the place where the tort occurred. For example, here in Georgia, there is a requirement that an Affidavit be attached to any claim for medical malpractice in which a reviewing physician certifies that one or more negligent acts occurred which constitutes the alleged deviation from acceptable standards of medical care and skill. If such an Affidavit is not attached to a medical malpractice complaint, the complaint can be dismissed under Georgia law. Similarly, even though Federal Civil Procedure governs the rules of procedure for claims brought under the Federal Torts Claims Act, nonetheless, the careful practitioner must always look to state substantive law and make sure that state substantive law is followed in claims filed under the FTCA.

Just this past year, our firm handled several boating accident cases which illustrate the dangerous nature of this recreational activity. In one case, a female skier was pulled into a small cove by the operator of the ski boat with such speed and force that she was pulled onto the shore and thrown into some trees with resulting and very serious personal injuries. In another case, a child being pulled on a tube was pulled in front of another boat and the child was killed. These cases continue to demonstrate the need for boat owners in Georgia to operate their boats in safe and responsible manner.
According to statistics made available by the Georgia Department of Natural Resources, each year there are in excess of 150 boating accidents in Georgia. In 2004, for example, there were 13 boating accident-related fatalities in Georgia alone. 339 DUI arrests were made by Georgia and DNR Conservation Rangers. Thus, as summer boating approaches, with an estimated 300,000 Georgia boat owners preparing to launch, the operative words we would like to stress are: safety and responsibility.
All Georgia boaters should familiarize themselves with Georgia boating laws, watch their speed, and where appropriate, designate a driver. There are just as many drunk drivers on the lakes as there are on the roads. Safety must always be a prime consideration when engaging in this recreational activity. All we can hope is that we will see fewer cases this year than last because experience indicates that when we do see these types of cases they are usually very serious.

For years, cities enjoyed sovereign immunity under the law and could not be sued if negligent. This has been relaxed under recent statutory provisions with respect to city motor vehicles. For most motor vehicles operated by and on behalf of city employees, municipalities are now required to carry liability insurance in the amount of $250,000 because of bodily injury or death to any one person and $450,000 for any one occurrence. While this amount is woefully inadequate for true serious injury cases or cases involving wrongful death, nonetheless, it is certainly an improvement over complete sovereign immunity. Effective January 1, 2008, O.C.G.A. § 36-92-2 mandates that municipal governments in Georgia carry a minimum of $500,000 because of bodily injury or death of any one person with an aggregate amount of $700,000 because of any one occurrence. Again, these amounts are completely inadequate for the truly serious and catastrophic claim but nonetheless a welcome improvement over what the law was previously.
Another area of law where there is still an opportunity for victims of negligence to recover against municipalities are those situations where a pedestrian is injured because of a defect in a city sidewalk or street. O.C.G.A. § 36-33-1(b) provides that municipalities shall not be liable for failure to perform their legislative or judicial power. For neglect to perform or improper unskillful performance of their ministerial duties, they shall be liable. The Georgia courts have held that a municipalities function of maintaining its streets and sidewalks in a safe condition is ministerial in nature. Thus, there is no sovereign immunity for such claims, nor any cap on damages. Nonetheless, a municipality is still relieved from liability resulting from the defect in a public road or sidewalk “when it has no actual knowledge thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” See, O.C.G.A. § 32-4-93(a). For those who are injured on a city sidewalk or street due to a defect in the public thoroughfare, implied or constructive notice of a defect may be shown in a variety of ways, for example, testimony as to how long the defect had existed prior to the accident or objective evidence that the defect had existed over time. The Georgia courts have held that the term defect set forth in the statute cited relative to the duties and obligations of municipalities includes “defects brought about by any force of nature and by persons which render the [streets] and sidewalks unsafe and include objects adjacent to and suspended over the streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous.”
In Georgia, as noted, a city has no sovereign immunity for claims arising out of defects in its sidewalks and streets provided the notice of the defect is shown either via actual notice to the city or constructive notice. With respect to automobile claims, while such claims can be bought, they are limited to the recovery amounts set forth above. All other claims are still barred with the possible exception of claims based on a public nuisance theory. If a plaintiff can show that he or she was injured as a result of the city’s maintenance of the public nuisance, once again, there is no sovereign immunity for such cases. Thus, in Georgia, while there is still some possibility of an innocent victim receiving some redress for injuries sustained as a result of the negligence of a municipality, it is still an uphill battle. Regrettably, most citizens are unaware of these restrictions on their rights and only when they sustain personal injury in the truest sense of the word (personal injury) do they become aware of these restrictions. Until the legislature acts to relax the doctrine of sovereign immunity, the best that any law firm like ours can do is to work within the existing constraints of the law to protect the rights of those injured by city employees.

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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