Articles Tagged with Personal Injury

Many state, county, and local governments are protected from lawsuits even though their employees may have been extremely negligent in causing severe injuries to innocent citizens. In most instances, the doctrine of sovereign immunity precludes a lawsuit against these entities, unless the governing body, such as the legislature, has waived the protection of sovereign immunity. Even when there has been a waiver, it is generally restricted to a maximun amount of recovery.

For example, in a ruling involving last summers deadly Comair plane crash at Lexington Kentucky, a judge ruled Thursday that the Kentucky airport cannot be sued because it is protected by sovereign immunity as part of the merged Lexington-Fayette County government. This is a severe blow to the airline’s efforts to divide blame and apportion potentially millions of dollars in damages.

Comair had countersued the airport, arguing that it is partially to blame for the crash because of poor runway signs and markings that might have contributed to the pilots trying to depart from a runway that was too short.

The Fifth Circuit Court of Appeals in New Orleans ruled Aug. 2, 2007, in In re Katrina Canal Breaches Litigation, No. 07-30119, that property owners in New Orleans whose buildings were flooded as a result of levee breaches in the aftermath of Hurricane Katrina cannot recover losses from their insurance companies because of the flood exclusions in their insurance policies. Thousands of policyholders of various insurance companies will be affected by the ruling and it is estimated that the policyholders may have to absorb losses in the range of 1 billion dollars.

The policyholders had argued that because their properties were flooded as a result of the levee breaches, a “man-made act,” the flood exclusions in the policies were void. They argued that the flooding in the city was the result of the negligent design, construction, and maintenance of the levees.

In the Fifth Circuit opinion, which the insurance industry is applauding, the court held “that even if the plaintiffs can prove that the levees were negligently designed, constructed, or maintained and that the breaches were due to this negligence, the flood exclusions in the plaintiffs’ policies unambiguously preclude their recovery. Regardless of what caused the failure of the flood-control structures that were put in place to prevent such a catastrophe, their failure resulted in a widespread flood that damaged the plaintiffs’ property. This event was excluded from coverage under the plaintiffs’ insurance policies, and under Louisiana law, we are bound to enforce the unambiguous terms of their insurance contracts as written.”

The lack of visibility of large trucks on the road after dark is a major factor in many accidents which our lawyers have investigated. The scientific term used to describe this area of study is “conspicuity.” Conspicuity refers to the factors of (1) perceiving that something is on the dark road ahead, (2) identifying the object as a large truck, (3) appreciating the truck’s position and slower speed as a danger, and (4) stimulating you to take evasive maneuvers to avoid the imminent collision.

Many car-into-truck accidents occur in the dark of night, when a large truck or tractor-trailer rig is pulling onto a road or backing into a driveway. Often, the tractor’s headlights are aimed toward the oncoming driver and they create a “wall of glare” that conceals the fact that the trailer behind it is stretched dangerously across the dark road ahead.

Since the 1960’s, the trucking industry had known about the safety benefits of reflective tape, but generally ignored the conspicuity issue. Studies in the 1970’s showed that truck underride crashes at night were often “surprise” events to the oncoming driver, who didn’t perceive the truck until it was too late to avoid the crash, and they noted that reflective tape could help solve this problem.

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.