Articles Tagged with Personal Injury

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.

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If a person is injured or killed as a result of the negligent operation of a boat or as a result of a boat engine manufacturing or design defect, under Georgia law, the injured person or the family of those killed, may have the right to seek compensation and other forms of redress in a suit against the operator, seller or manufacturer of the boat.
The United States Coast Guard (USCG) estimates that in an average year, approximately 200 to 250 non-fatal injuries and an additional 25-35 deaths are reported as a result of a person being struck by the propellor and/or propulsion unit of a boat.
These cases are not as unusual as one might think. In one memorable case handled by the Georgia injury lawyers at Finch McCranie, LLP, our client was seriously injured when his outboard engine suddenly jumped from neutral into forward gear resulting in his being struck by the propellor. After notifying the manufacturer of the engine of the accident, they sent one of their experts to inspect the boat. At the time of the inspection, the boat was in the water; however, it was being supported by an overhead crane. While videotaping their expert’s inspection of the boat, we were able to document the defect when the boat, suddenly and without warning, jumped from neutral into forward gear on its own almost throwing the manufacturer’s expert into the water. In that case, the manufacturer had utilized a defective gearbox part which, when worn, allowed the boat to jump into forward gear.

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In Georgia, under the provisions of O.C.G.A. § 51-4-1 and 2, the measure of damages in a wrongful death action is “full value of the life of the decedent as shown by the evidence, without deducting for any of the necessary or personal expenses of the decedent had he lived.” The full value of the life of the decedent includes not only all economic damages sustained by the decedent such as lost wages, but also non-economic damages such as the enjoyment of life. Peculiar to Georgia law, the measure of damages is from the standpoint of the decedent. What did the decedent lose? Obviously, if someone was married and employed at the time of death, they lost the society and affection of their wife and children and the enjoyment of their career. By looking at the damage question from the standpoint of the decedent, the jury is not allowed to look at the sympathy and bereavement of the surviving heirs, but must view the evidence from the standpoint of what the decedent lost when their life was wrongfully taken from them by the negligence of the third party who has been sued for their wrongful death.
With respect to non-economic damages, obviously, this is a very broad term which includes not only enjoyment of life but also advice, assistance, care, companionship, counsel, and loving services. These are the “non-economic” portions of the damage caused by the wrongful death which when coupled with the economic damages (typically the amount of money lost by the wrongful death), total the “full value of the life of the decedent.”
Obviously, in proving damages in a wrongful death case, it is important that counsel prove that the decedent’s life had more value apart from their own economic producing potential. Typically, the largest component of a wrongful death claim involves the non-economic damages. Many people who are extremely gifted may not be high wage earners and yet the full value of their life may be greater than the life of a high wage earner. People like poets, artists, musicians, and some retirees may have a much fuller life than younger people but in any case, under Georgia law, the unique provisions of the law are such that a jury must determine the “full value” of the life of the decedent from the standing point of the decedent involved in the case. By making allowances for both economic and non-economic portions of the damages, the jury is given wide latitude in determining what compensation would be fair and reasonable under the circumstances of any given case where a wrongful death has occurred.

A woman was reportedly seriously injured in Gainesville, Georgia on Friday evening when the brakes on a golf cart failed while going down a hill at a private political fund-raising event. WSBTV.com reported that the golf cart was shuttling people to a home in the Harbour Point subdivision when it’s brakes failed and the cart overturned.
Although no details about the failure have been reported, a thorough inspection of the golf cart is in order to determine why the accident occurred. Had the cart been properly maintained? Was there a defective part involved or was there a design defect?
Having litigated numerous serious injury and wrongful death cases over the years, the Georgia injury lawyers at Finch McCranie, LLP know that in any case where there has been a mechanical failure, it is absolutely crucial that the evidence be preserved and that the evidence be inspected as soon as possible by an engineer or any other expert qualified to document and evaluate such a failure.

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The status of the decedent by in large determines who has the right to sue in a wrongful death case. Where someone is killed through the negligent acts of a third party, such as a truck driver or product manufacturer, Georgia law proscribes who has the right to sue such a cause of action. If the person is married at the time of his or her death, the surviving spouse has the right to bring a cause of action for the wrongful death of the decedent. If the decedent is not survived by a spouse, but is survived by children, then the decedent’s children have the cause of action. If the decedent dies without any spouse or children, then the decedent’s parents have the cause of action. If the decedent dies with no surviving spouse, children or parent, then in that event, the administrator of the decedent’s estate has the cause of action and may bring it for the benefit of any remaining relatives. In short, under Georgia law, there is a hierarchy of those who are allowed to bring wrongful death cases but someone is always authorized under the law to bring such a case where the decedent’s death was caused by the negligent acts of a third party.
At our firm we have handled many different wrongful death cases for all of the above categories. We have represented widows, widowers, parents, children and estate representatives. In those cases where the cause of action is vested with a surviving spouse, to the extent the decedent was also survived by children, the spouse proceeds in a fiduciary capacity. In the event of a recovery, the spouse has to divide the recovery with remaining children, but in no event will the spouse receive less than one-third (1/3) of the recovery regardless of the number of children. In short, if there are multiple children, the spouse will receive one-third (1/3) and the children will divide equally the remaining two-thirds (2/3) of any such recovery.
It is important that counsel determine whether a potential client is vested with a cause of action in considering whether a wrongful death case exists. We have been approached many times by siblings, ex-spouses, step-children and the like in situations where there is no valid cause of action that may be brought y the person involved. In Georgia, the law sets forth the classifications of those that are legally authorized to bring wrongful death actions. While a step-child or grandparent or other third party might, under certain circumstances, conceivably have a claim, it would only be in those circumstances where they were appointed as representative of the estate and no one else was statutorily recognized to bring the case. Again, such inquiries must be made when the case is initially being evaluated, because the law sets forth procedurally who has the right to bring the claim.

It is often said that a picture is worth a thousand words. If there is a picture of an injured individual in a hospital having recently undergone major trauma, such photographic evidence truly can be worth a thousand words in demonstrating to the jury the nature and extent of the client’s injury. As an example, if someone had a serious burn injury, one can imagine the impact of such photographic evidence. Words simply cannot describe such injuries. The same is often true of photographs of demolished cars and vehicles that have been hit by large tractor trailers and/or x-rays showing broken bones in graphic detail. X-rays showing the implantation of large screws and other orthopaedic devices also can be helpful in demonstrating the extent of a clients injuries to a jury.
In some cases, where the injuries are horrific, and there is no available photographic evidence, we have retained the services of medical illustrators who can illustrate with correct anatomical detail the nature and extent of internal injuries. For example, an injury to a brain may only be partially appreciated by demonstrating (to an untrained jury) an MRI film. While a neurosurgeon might better appreciate the significance of a brain injury by interpreting the MRI film, a medical illustration may help show the damage portions of the brain caused by the trauma. Medical illustrations are also helpful in helping the jury understand the surgical techniques involved in treating serious personal injuries.
In any serious personal injury case, demonstrative exhibits, which help to demonstrate the nature and extent of the injuries sustained by the innocent client, are always helpful aids for the jury. Whether they be photographs, illustrations, computer animations or the like, any or all of the above techniques can be used by counsel to help a jury more fully appreciate the nature and extent of a client’s injuries. The better the demonstrative aid the truer the statement that a photograph is worth a thousand words. Once the jury understands and appreciates the significance of the injury, which can be demonstrated through a good demonstrative aid, words alone are no longer necessary to convince the jury of the extent of the suffering experienced by the injured client. Such aids are very helpful in obtaining adequate compensation for the injured client and, therefore, should be used where possible.

Most members of the public do not know how so-called “tort reform” serves to undermine basic liberties when it comes to our civil judicial system. One of the best examples of this is a little known law which serves to impede access to our courts. This is the “Offer of Judgment” statute which was passed by the Republican controlled Georgia Legislature, codified at O.C.G.A. § 9-11-68. Simply stated, if you are a middle class person and you wish to litigate a civil case, if you should do so and should receive “an offer of judgment” from the person or company you sue, you could be jeopardizing your family, your career, your home and every asset you own. Do the people in Georgia really appreciate what this law means and how it could affect them in the event they ever get into a good faith civil dispute with a third party? The answer is “No” as the public by in large never knows about such laws until and unless they are directly confronted by them – and by then it is too late to do anything about it.

The offer of judgment statute provides that if a civil litigant is sent an offer of judgment by a civil defendant and they refuse to accept it then they can be held liable for the other party’s attorneys fees and expenses. As an example, let us suppose that an average citizen in Georgia has a tort claim against a huge corporation. They file a lawsuit in good faith with representation of counsel. They then receive an offer of judgment from the large corporation. The offer of judgment could be for 50% of the value of their claim. However, if the citizen does not obtain 25% more from a jury than the offer of judgment then they will be held liable for the corporation’s legal expenses. Thus, if a corporation should run up legal expenses through their expensive lawyers in the amount of $250,000.00, $500,000.00 or even a million dollars, if the citizen should obtain a judgment which is less than the offer of judgment, then they will have to pay the attorneys’ fees to the corporation even if they win their case. Obviously, this is a terrible law which was designed to force those with less resources to accept settlements less than the total value of their case. This saves big business money by way of litigation expenses and otherwise but attempts to force the small average citizen to take less than their claim may be worth, otherwise they may risk financial suicide.

In a tort case, let’s say a large trucking company severely injures an innocent victim. During the litigation the trucking company makes an offer of judgment to pay the injured individual $500,000.00 for their broken legs, arms and other bodily injuries. If a jury should return a later verdict of $295,000.00 then, in that event, the innocent injured victim will have to pay attorney’s fees to the person who injured them because they did not get a judgment more than the offer. This can happen for a variety of reasons. A member of the jury could have been extremely conservative or even affiliated somehow directly or indirectly with the trucking company. Counsel for the victim may have underestimated problems with the case, may have misvalued the case, or failed to present all available evidence. Or there simply could have been a result which was not just and which did not award the victim a greater amount due to the makeup of the jury. Under any of these scenarios, the innocent victim is further victimized by the trucking company because the victim would then have to pay the legal expenses of the trucking company, even though they won the case. The offer of judgment statute is a terrible law. It forces people to take settlements or otherwise face financial ruin if they make the wrong decision. Large corporations and large businesses can afford to run the risk because they can afford the adverse consequences whereas the average citizen cannot. This is why the law is so unfair and truly is a denial of equal protection under the laws. At present, however, the law has been upheld by our courts.