Atlanta Personal Injury Lawyers Blog

Having passed the House and now returned from the Senate, the proposed texting law which would amend OCGA 40-6-241 making the use of a mobile telephone for writing, sending or reading a text-based message a traffic offense punishable by a fine of up to $150.00 is in its final phase before the House. The bill also includes provisions for teen drivers under the age of 18 allowing for suspension of their driving privileges and fines for texting while driving.

Because distracted driving has increased the number of traffic accidents causing injury and death, many states have already enacted bans on texting while driving. Read more about texting and distracted driving in my previous post.

Today the Georgia Supreme Court held in Atlanta Oculoplastic Surgery v. Nestlehutt that the limits on pain and suffering in medical malpractice cases violates the constitutional right to trial by jury. In a unanimous opinion, the Court found that the noneconomic damages caps in O.C.G.A. 51-13-1 of the 2005 Tort Reform bill, violate the right of a jury to determine the amount of damages to be awarded a plaintiff.

Although, recognizing that the caps were enacted by the Georgia Legislature to address "what the General Assembly determined to be a 'crisis affecting the provision and quality of health care services in this state,'" the Court specifically concluded, "The very existence of the caps, in any amount, is violative of the right to trial by jury."

What does this mean to plaintiffs involved in pending medical malpractice cases? Because a law that is unconstitutional was unconstitutional from its start, the caps limitation will be rolled back retroactively. Any lawsuits still before the courts, even if filed prior to the Nestlehutt opinion and after the 2005 Tort Reform Bill, will not be subject to the caps limitations of $350,000 for any verdict against one or more physicians and $350,000 for each verdict against a hospital or healthcare facility up to $750,000 and a maximum total against all physicians, hospitals and health care facilities of $1,050,000.

With the passage of the Healthcare Reform bill yesterday and the striking down of the caps on medical malpractice cases in Georgia today, this is will be an interesting week full of commentary and opinion regarding the state of healthcare in Georgia.

In 2008, the National Highway Traffic Safety Administration reported a total of 320 fatalities due to car crashes involving police pursuit. Of that number, Georgia was responsible for ten percent with 32 reported fatalities due to the police chase of a suspect, second only to California which had 34. This is an increase from 2007 where Georgia had 24 reported fatalities related to police pursuit. However, the lack of a mandatory reporting system has made it difficult to collect accurate data on dangerous police chases and we don't know exactly how many other deaths and injuries in Georgia were a result of police chases.

In Georgia, most law enforcement departments give wide discretion to the officer to determine the need to apprehend a suspect. Hence, Georgia is at the top of the list for the number of reported fatalities linked to high speed chases. Most police agencies have guidelines in place for officers to follow in weighing the need to apprehend the suspect versus the danger involved to themselves and others. Generally, most guidelines do not allow for the high speed chase of someone who has committed a minor traffic infraction such as running a red light or speeding 30 miles over the limit.

In addition to the deaths, there are hundreds more injuries. Unfortunately, innocent third parties are often the victims of high speed chases. These individuals are in the wrong place at the wrong time through no fault of their own. Each year the call for an end to high speed pursuit becomes stronger.

The debate centers on which crimes call for an unbridled police chase. Most people believe only the most violent of crimes deserve the risk that is placed upon anyone in or near the roadway of a police chase. Many others believe no pursuit of any type of criminal suspect is worth the risk to innocent victims. Personally, I can think of very few instances when a high speed chase is warranted. I have read too often of families who have lost a loved one because a police officer decided to risk innocent lives in the name of apprehending a suspect.

Even with the number of wrongful death lawsuits against Georgia, its counties and municipalities, there does not seem to be a reduction in the number of high speed chases. How many other agencies allow practices that so definitively result in a bad outcome at such a frequent rate?

Due to statutory notice provisions, families must act quickly to preserve their rights to sue a state or local government entity and its police department. In Georgia, within a year of the event the county or state must be given notice of the potential claim. It is even shorter if it is a municipal agency which requires notice within six months. This type of notice is often called the ante litem notice. The ante litem provisions are strictly construed and there is virtually no way to extend the period for providing notice. Therefore, it is very important that anyone with a potential claim against a state, county, or municipality confer with an experienced trial attorney as soon as possible after an injury.

In a tragic case in Carrollton, Georgia, a jury returned a verdict of $670,000 against an employee and the HVAC company that employed him. A gas leak in the home of an elderly couple was improperly handled by two employees. The main issue in the case was the fact that when the homeowner called to say there was a strong gas smell in the house she should have been instructed to vacate the premises and call 911. Instead, the employee she spoke with sent someone out to check on it and the homeowner remained in the house. That employee and the homeowner died in an explosion as the repairman was attempting to fix the gas line.

This is a classic employee/agency case where the actions of an employee caused injury and in this case wrongful death. Employers have a duty to properly train their employees especially when they are dealing with dangerous commodities such as natural gas. Any negligence of the employee is imputed to the employer in a personal injury case where the employee's negligence was the proximate cause of the injury.

The handling of certain products carries a higher duty of an employer to protect innocent clients from the danger which is inherent in the product, such as the explosive quality of natural gas. When this duty is breached causing an injury the company will be held liable by the courts such as in this case.

The U.S. Department of Transportation recently released statistics showing a continuation of the downward trend in traffic fatalities. The overall number of 33,963 car accident deaths in 2009 is the lowest since 1954. The fatality rate is calculated by the number of deaths per the number of vehicle miles traveled. The 2009 fatality rate declined 8.9% from the 2008 fatality rate.

All of this is very good news for the travelling public. David Strickland of the National Highway and Safety Administration noted, "Our work is far from over. We must continue our efforts to ensure seatbelts are always used and stay focused on reducing distracted and impaired driving."

I believe distracted driving will be the pivotal issue in car accident wrongful death cases at least through the rest of this decade as the public becomes more aware of the danger of using mobile devices while driving. Texting and talking on cell phones has already become a normal fact-finding mission in personal injury cases involving car and truck accidents. A thorough personal injury lawsuit will include a search of mobile records to determine if the at-fault driver was using his mobile device during or just prior to the accident. Everyone must take responsibility for educating themselves and their family members as to the dangers of distracted driving.

The most recent data provided by the National Highway Traffic and Safety Administration indicates that nationally 56% of fatal car accidents occurred on rural highways. Of 1,368 fatal car accidents, 635 crashes occurred on Georgia rural highways in 2008, the most recent year for which data is available. This means 46% of fatal Georgia car accidents occurred on rural highways.

About 65% of these Georgia rural car crashes occurred at speeds of 55 mph or higher. This is not surprising considering that traffic is generally lighter in rural areas and drivers tend to take advantage of the "open road" and drive at higher rates of speed.

Drivers are often lulled into a false sense of security in rural areas thinking they are in safer areas with fewer accidents. Data supports the fact that drivers travel about 2.5 times more miles than cars in urban areas which translates into longer time on the road and more time to develop driver fatigue.

Add all this to the fact that the rural roads in Georgia, especially near the Atlanta area are carrying more and more traffic which they may not be able to handle. With the spring weather finally beginning to appear, be more aware as you travel to vacation areas which often takes you through rural areas. Keep your seatbelts on and your eyes on the road.

This week the Georgia Supreme Court defined the term "accident" in an auto insurance policy so as to possibly limit the recovery where there are multiple injuries. While insurance companies are obviously pleased with the verdict, what happens to you if you are involved in an accident where several people in different vehicles are killed or injured by the actions of the same at-fault driver? If your policy already defines the term, then the case may not affect you, but if it doesn't define the term, then this case may limit your coverage in a car accident where more than one person is injured.

The insurance policy at issue provided coverage of "$100,000 each accident," but did not define the term. The policy also indicated this was the most the insurance company would pay for any one auto accident regardless of the number of claims. In the 2008 multi-million dollar wrongful death case before the court, a teenage driver in Harris County veered onto the shoulder of the road and struck two bicycle club members. The car struck the first bicycle rider and, then within 1-2 seconds, struck the second bicyclist. The first bicyclist died and the second was seriously injured. The families each sued for the $100,000 limits of the policy and the driver supported their claim as being two accidents under the policy.

The auto insurance company filed a declaratory action in federal court in Columbus, Georgia, asking the court to rule the incident was one accident under the terms of the policy limiting the total amount available for the two claims to $100,000. The federal court certified the question to the Georgia Supreme Court which, instead of applying contract rules of construction to the policy, ruled on the definition of "accident."

This is significant, because Georgia law is clear that an insurance policy is a contract and any ambiguity in its terms is determined in favor of the insured. The Supreme Court went outside this well-established legal precedent and adopted the "cause" theory where the number of causes determine the number of accidents.

Importantly, the Supreme Court left the application of the law to the lower court whereby the lower court must apply the definition to the facts of the case and determine if based on the timing of the events or whether the driver regained control between the two events there were in fact two separate accidents. In the meantime, the $3.4 million judgment against the driver hangs in the balance.