Articles Tagged with Personal Injury

The Georgia injury lawyers at Finch McCranie, LLP represent clients who have suffered personal injuries from bicycle accidents or who are survivors of cyclists killed in accidents caused by the careless or negligent conduct of others. Surprisingly, many of these bicycle accidents do not involve other drivers but were caused by the negligence of road contractors, construction companies, and even public utility companies. Injuries suffered as a result of these types of accidents can be severe and life altering. Most common are nerve damage, broken or dislocated bones, and injuries to the neck, back, brain, or spinal cord. Sadly, some of these bicycle accidents result in the wrongful death of the cyclist.
Recently, we represented the family of an Atlanta cyclist who was killed when his bicycle struck a copper ground wire which had been pulled loose from a utility pole and was hanging out across a public sidewalk.

The photograph above was taken by Atlanta Police when they arrived at the scene of this tragedy. Given that the utility pole was literally located within 5 inches of Peachtree Street, the grounding wire was likely pulled loose by a passing bus or large truck because it was not secured properly to the pole. Although they are not visible in the photograph, our investigation showed that there were other wires which had been cut and left hanging from the pole and nearby tree.
During our investigation of the case we became aware that in metropolitan Atlanta, there are literally thousands of utility poles with loose wires hanging off of them in close proximity to public sidewalks and roadways. Many of these wires and cables serve no purpose and are there because someone was too lazy to either remove them or secure them in such a way so as not to endanger the public. Now that we are aware of this danger, hardly a day goes by that we do not see example after example of this hazard. The photograph below, taken on June 21, 2010 directly in front of the Dunwoody Library, illustrates the point. This potential hazard has been present for months.

Other recent bicycle cases involved road/bridge construction defects. Two cases involved bridge expansion joints which were left open and created a serious danger to cyclists.

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Damages under the Federal Tort Claims Act are measured by the law of the state in which the tort occurred. Thus, the state statutes control what damages may be obtained. However, there are some differences principally in the context of wrongful death claims. Because every law in every state is different in this regard, suffice it to say that counsel must be familiar with the District Court opinions in their district as well as in their state. The differences can also dictate who has the right ot claim damages – e.g. a spouse or administrator of an estate.
Even though actual damages may be obtained from the United States government for pain and suffering, medical expenses, out-of-pocket expenses caused by the tort, etc., punitive damages are not allowed against the United States. Only compensatory damages may be recovered. While pre-judgment interest is not allowed against the United States, post judgment interest is allowable assuming the government appeals an award from a District Court and loses the appeal. Again, because the law of the state where the tort occurs controls who has the right to seek damages, injured parties should confer with counsel who practice in the area whre the tort occurred.

Motorcycles and motor scooters are becoming increasingly popular in Atlanta due to congestion and their gas saving qualities. However, we are increasingly seeing terrible and tragic accidents involving motorcycles and motor scooters. Unfortunately, many of these incidents are caused by distracted drivers who simply do not see the motorcycles or motor scooters.

In today’s Atlanta newspaper there is an article concerning a 55-year-old Atlanta resident who was killed while riding a motor scooter. She had stopped on Peachtree Road to make a turn into her residence. A car following her struck the motor scooter from behind resulting in her death.

Just recently, a friend driving a motorcycle avoided serious injury when a car made a left turn in front of his motorcycle on Briarcliff Road in Atlanta. The car turned into his path so quickly that the motorcycle struck the vehicle. The rider was thrown over the car and landed on the road. Somehow, he avoided serious injury.

Under the law of the State of Georgia, law enforcement officials enjoy official immunity for acts performed within the scope of their discretionary authority. As long as they are performing discretionary acts and not ministerial duties, they can only be held liable if they are acting outside the scope of his authority or with actual malice or intent to injure. These are very difficult propositions to prove in the routine case. If an officer, however, violates a simple ministerial task, he can be liable but even here sometimes there is a difficulty suing a particular law enforcement official because of the doctrine of sovereign immunity, which more often than not is implicated in these cases.

If a county official is involved, typically, the county can only be liable for acts where there has been a statutory waiver of immunity such as the statute which exists providing for a waiver of sovereign immunity in connection with damages caused by the negligent use of motor vehicles. As an example, in a police chase, if the officer recklessly disregards proper police procedure, the officer can be sued and official immunity overcome assuming there is evidence of reckless disregard of proper police procedure for the chase because of the statutory waiver of immunity. In other contexts, it is difficult to prove a waiver of sovereign immunity and consequently it is difficult to hold an officer liable for acts committed within the scope of his/her discretionary authority.

In many of the articles we have written thus far, we keep using “easier said than done” when it comes to bringing legal claims against law enforcement officials. The law is protective of officers acting within the scope of their authority and usually only allows claims to go forward when there has either been a clear breach or abuse of the authority and/or an intent to cause injury such that misconduct is established to exist. If the officer violates a simple ministerial task, again, he may be liable on a different legal basis.

Under the Eleventh Amendment to the United States, a state law enforcement official typically cannot be sued in his official capacity for acts done within the scope of his official duties. The reason is the Eleventh Amendment which prohibits lawsuits against a state or “state actors” without state consent. This constitutional prohibition against such lawsuits typically means that if someone has a civil rights claim they wish to assert in court against a law enforcement official then they might need to consider doing so in state court as opposed to federal court. Obviously, filing a lawsuit in a state court where the law enforcement agency exists is a difficult proposition because the lawsuit has to be filed in the same jurisdiction where the law enforcement authorities serve as bailiffs to the court and otherwise have considerable control over the jurisdiction implicated. To get around the Eleventh Amendment, one has to establish that the individual was either not a “state actor” or was acting outside the scope of his or her authority. Another exception to the Eleventh Amendment is claims brought against law enforcement officials not in their official capacity but rather in their individual capacity.
An officer acting within the scope of his discretionary authority who does not violate clear constitutional precedent concerning his/her actions may be difficult to hold liable in federal court. While it may be difficult, it is not impossible. Again, the cases are always factually specific and the legal issues turn on the facts. Nonetheless, in considering where to file a lawsuit against a law enforcement official in the context of a potential civil rights claim, one must be mindful of the Eleventh Amendment and the various restrictions it imposes upon litigants seeking redress for civil rights violations.

When a law enforcement officer abuses his authority and uses excessive force in an arrest or detention of a suspect, legally, the victim of such excessive force faces some very significant legal hurdles in seeking redress for any injuries caused by the excessive force. What we refer to here is known as the doctrine of qualified immunity. Simply stated, as long as a law enforcement official is acting within the scope of his discretionary authority, he/she essentially has immunity for his acts unless he clearly violates established legal precedent concerning the propriety of his/her conduct. Whether such a violation is proven is determined by an objective analysis of the facts from the standpoint of a reasonable officer. If a reasonable officer would have objectively used the same degree of force, then there is no legal liability, even if someone is shot and killed.
There are many complex variables that one must consider in handling an excessive force case against a police officer. Whether the doctrine of qualified immunity does or does not apply is a factually specific inquiry. While the hurdle is high for a victim of excessive force to overcome, it is not an impossible burden to meet. Even if an officer is acting within the scope of his authority and is exercising discretion, if his actions are objectively unreasonable and result in unreasonable and unnecessary injury to a third party, legal claims can be brought and can be sustained.
Any person who claims to be a victim of the excessive use of force should confer with counsel as soon as possible. The issues are, again, factually specific and legally complex which necessitates a in-depth investigation of what the facts were at the time of the use of force. This too can be a difficult undertaking because the police are likely to provide a version of events most favorable to their position and the victim oftentimes is not believed simply because he/she is the alleged criminal suspect in many of these cases: All the more reason for counsel to be conferred with as soon as possible in the context of any of these cases.

As indicated in our prior blogs on this subject, when a claim is brought under the Federal Tort Claims Act, it must be initiated via the filing of an administrative claim. The administrative claim should not be filled out in the most sparse form imaginable rather all pertinent details of the claim should be provided. This includes providing all relevant documentation which supports the claim. Indeed, it is somewhat analogous to submitting a settlement package to an insurance company. All information concerning when and where the claim arose, what the claimed negligence or cause of action is based upon, what damages were incurred and how they were calculated and what documentary proof exists to support all of the above. The administrative claim therefore is not simply the filing of the Form 95 but includes filing all pertinent documentation including photographs, medical bills, medical records and any all other supporting documentation. While one can submit a claim without supporting documentation technically this is not a wise course to pursue because the government is not likely to ever engage in any realistic appraisal of such a claim. The more support that is provided the more likely it is that the government may attempt to resolve the claim on an administrative basis which will protect the claimant from having to proceed with litigation with the United States in Federal District Court.
A key part of the administrative claim is to make sure that the amount of money damages are set forth for a “sum certain” that being a definite amount. The claim cannot assert damages in excess of a specified sum but must actually set forth a specific sum. Thus, if one asserts damages, hypothetically in the amount of $75,000.00, then those are the only damages one can seek if the claim is denied and a lawsuit becomes necessary.

Mandatory arbitration clauses are contained in almost every consumer transaction agreement, and financial and employment contracts. We have previously written about the fact that these mandatory arbitration clauses benefit only big business. As a result of the unfair nature of these clauses, there has been a movement within the United States to prohibit their inclusion in many consumer, financial, and employment contracts.

The increasingly conservative United States Supreme Court has recently been upholding a wide range of mandatory arbitration clauses. Just recently, the Supreme Court agreed to decide during the next term whether a class-action ban in a cell phone arbitration agreement is unconscionable. This is one of the most controversial issues in arbitration.

The Supreme Court has agreed to hear a steady stream of arbitration cases during the past decade or so. The decisions have generally been pro-arbitration., even though lower courts appear to be increasingly skeptical of claims that arbitrations offer greater efficiency and lessen costs of court litigation.

Last week we read about what has become an all too familiar pattern, more police chases equal more deaths. In one case in Los Angeles a six year old was killed when the police were chasing suspects who were believed to have been involved in a drug transaction earlier. The death penalty was imposed on this six year old girl in order to catch a suspected drug user. Was the price worth it? Also in Los Angeles, a motorcycle officer was killed during a pursuit when he lost control of the motorcycle. In a police chase in Jacksonville, two police officers and a suspect were hospitalized with serious injuries. These were three separate incidents which occurred on June 10. On the same day there was an article which appeared in the newspaper in Kentucky about another innocent victim of a police chase. In that case, the police were apparently chasing a suspect in a stolen vehicle. During the chase, the suspect lost control and ran into the victim’s car, which incident left three children without a father and a wife without her husband. In the Kentucky case, a father of three was killed because the police felt it was more important to the public safety to catch someone driving a stolen car than it was to protect the lives of innocent motorists who might be endangered by the pursuit.
We have seen these kinds of articles over and over and over again. It is very distressing to read about the carnage caused by these chases. We have never advocated that police chases should be terminated. When the suspect being pursued is violent, has raped someone, murdered someone, or is known to represent a clear danger to the public, there is no alternative, the suspect must be chased and should be apprehended, if possible, with due regard for the safety of the motoring public. However, when non-violent offenders are being chased, the cost to the innocent members of the motoring public is simply too great. We should not impose the death penalty on innocent people in order to capture non-violent offenders. Let the suspects go rather than kill the innocent.

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Police chases very often end in tragic results. Our Atlanta attorneys have handled many such cases in Georgia which have resulted in the loss of innocent lives while law enforcement officers chased suspects for minor offenses.

Despite the carnage which these chases cause and the pain and grief inflicted upon innocent victims, lawmakers continue to make it more difficult for innocent victims to receive compensation for losses. These restrictions also have the effect of making it easier for law enforcement officers to engage in dangerous chases knowing that they will not be held responsible for reckless actions.

In fact, these chases have become TV entertainment with the advent of cameras in law enforcement cruisers. These TV shows almost always show dangerous chases in which the criminals are caught. What they do not show are the many chases which result in death and injury to innocent victims.