Atlanta Personal Injury Lawyers Blog

What is the value of police chases? How do you balance public safety with the apprehension of suspects? It's time to take a closer look at the offenses for which officers are racing through the streets and highways of Atlanta, sometimes at over 100 mph, to catch a nonviolent suspect. Although there are Georgia laws and guidelines in place to be followed by officers who are in pursuit, they are not applied consistently. There is a big difference between chasing a violent suspect and pursuing someone who ran a red light.

Yesterday, Scott Commander was interviewed by Atlanta WSB TV concerning two women killed as the result of a Clayton County police chase crash and his representation of their family. He stated that similar to the recent New Year's Eve police pursuit crash, the suspect in the Clayton County case was chased by police for a nonviolent traffic offense (impeding the flow of traffic). The Clayton County high speed pursuit ended when the suspect's car crashed into the victims.

Kathy Porter, the wife of Atlanta Braves athletic trainer Jeff Porter, was killed in a violent police chase car wreck on New Years Eve. On the way to the Chick-fil-A Bowl game at about 4:40 pm with their son and another friend, Mr. Porter had the right of way at the intersection of Capitol Avenue and Memorial Drive in downtown Atlanta when his Ford Expedition was struck by a speeding Georgia State Patrol car. The trooper was en route to assist in an I-20 police pursuit of a motorcyclist who had failed to yield when he struck the Porter's SUV.

Police pursuits have become a controversial topic as more and more innocent bystanders are suffering injuries. Former Atlanta Police Chief and current Clayton County Commission Chairman, Eldrin Bell likened police pursuits to "firing a gun at a crowded shopping center." Bell has also suggested that police pursuits should be banned in Georgia due to the low probability of catching serious criminals, the use of more sophisticated technology, like traffic cameras, and high costs associated with lawsuits and damage to the city.

In 2010, the National Highway Traffic Safety Administration (NHTSA) reported a total of 743 fatalities due to car crashes involving police pursuit. Of that number, Georgia reported 25 fatalities due to the police chase of a suspect. The NHTSA acknowledges that its numbers are not complete due to the lack of a mandatory reporting system. There is no way to know exactly how many other deaths and injuries in Georgia were a result of police chases. In fact, the crashes that occur as a result of a police chase are often categorized as occurring after the chase terminated making the crash not "pursuit-related."

According to an FBI report, most police chases ending in a death or injury involve a traffic violation stop, not the pursuit of a violent offender. In Georgia, 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. Unfortunately, innocent third parties are still often the victims of these high speed chase accidents.

When police pursuit ends in a car accident, particularly where there is a wrongful death or serious personal injury, a lawsuit is often filed against the county or city involved. Unfortunately, this can prove to be a difficult task due to the sovereign immunity granted to the state, its counties and municipalities by the Georgia Constitution. However, there is a very specific exception to sovereign immunity in Georgia that applies to the negligent use of government owned motor vehicles; hence police chases may involve a limited waiver of immunity. Further, due to statutory notice provisions, often referred to as "ante litem," families must act quickly to preserve their rights by providing notice of any potential claim to the state, county or municipality which has jurisdiction over the claim.

We have so many options available through technology to assist in the apprehension of nonviolent traffic offenders that it is time to put them to use and avoid the senseless loss of innocent victims. We extend our deepest sympathy to the Porter family.

When a high speed police chase ends in a car accident, particularly where there is a wrongful death or serious personal injury, a lawsuit is often filed against the county or city involved. Unfortunately, this can prove to be a difficult task due to the sovereign immunity granted to the state, its counties and municipalities by the Georgia Constitution. Sovereign immunity precludes the state, counties or municipalities from liability arising from their various duties in carrying out specific services for the taxpayers such as police work, fire protection, and even garbage pickup. In other words, these government entities cannot be found liable in a court of law and required to pay damages unless sovereign immunity has first been waived.

The good news is there is a very specific exception to sovereign immunity in Georgia that applies to the negligent use of government owned motor vehicles; hence police chases may involve a limited waiver of immunity. Georgia law provides that a government entity's sovereign immunity may be waived up to the limits of liability insurance secured by the entity for damages arising out of the ownership or use of a motor vehicle. Not all, but many counties and cities in Georgia insure their police vehicles for liability which allows for this limited waiver of immunity in police pursuit car accident cases.

Most recently, the Georgia Court of Appeals held in McCobb v. Clayton County, a wrongful death case involving a high speed police chase, that Clayton County had waived its sovereign immunity up to the monetary limits of the liability insurance it had purchased for coverage of negligent use of its motor vehicles. In this case, the plaintiff had argued under OCGA 40-6-6 that the police officer engaged in the high speed pursuit of a vehicle had acted with reckless disregard for proper law enforcement procedures and the public safety causing a fatal accident. Interestingly, the police vehicle never touched the other vehicle - instead, the driver lost control while being chased and crashed into a tree killing the passenger. The County argued that once plaintiff showed a waiver of sovereign immunity by the county's purchase of a liability policy covering its police vehicles for "negligent use", the plaintiff was then precluded from arguing the police officer acted with disregard for proper police procedures and the public safety in chasing the vehicle thus preventing the plaintiff from showing that the police officer's conduct was the proximate cause of the injury, a necessary element to the plaintiff's case.

The Appellate Court found the County's argument "nonsensical" ruling that the fact the waiver of sovereign immunity was couched in terms of "negligent use" of a motor vehicle did not preclude the plaintiff from making a claim under OCGA 40-6-6 that the police officer acted without due regard for the public safety causing the wrongful death of plaintiff's decedent and allowing the plaintiff to sue Clayton County for damages up to the amount of liability insurance it carried on its police vehicles.

Continue reading "Impact of Georgia Sovereign Immunity on Police Chase Accidents" »

Last week a Cobb County Georgia jury found in favor of Kia Motors Corporation rejecting the argument that the 1999 Kia Sportage air bag caused a 69-year-old woman's death. The case revolved around a low speed car accident where a driver turned left in front of the Kia Sportage causing the airbag to deploy. Although there was only minimal damage to the cars and both drivers appeared to have only minor injuries, the driver of the Kia died soon after the accident from a lacerated aorta where the air bag hit her chest. The case centered on whether the woman was properly positioned in the car. The State of Georgia offers the CarFit program to teach senior adults how to properly position themselves safely in cars.

The woman's family sued for her wrongful death alleging the air bag was too powerful for a small SUV. Arguing that Kia knew this type of accident was possible and chose not to spend any money to "depower" the airbag to make it safer, the plaintiff's attorney told the jury she would not have died in the car accident if there had been no air bag in the car.

Wrongful death cases, particularly products liability cases such as this one, require expert testimony from both sides to explain to the jury how the death was caused. Kia relied on an expert engineer in occupant restraint systems - seat belts and air bags - who testified the woman was not seated properly for the air bag to work correctly. He gave evidence that she was leaning forward and right as if reaching for something. According to the expert, her position in the seat skewed the impact of the air bag and it struck her in an area that would have been protected if she had been seated upright and against the back of her seat. Click here for how to properly position children and adults for air bag safety.

Air bag safety is often overlooked by drivers and passengers in cars. The National Highway Traffic and Safety Administration continue to look for ways to educate the public regarding seatbelt and air bag safety. Drivers and passengers must have their seat belt properly buckled and avoid positioning their seat too close to the air bag. Short adults, such as the woman in this case, must position themselves 10-12 inches from the air bag that is in the steering wheel to be protected properly.

Continue reading "Cobb County Jury Finds Death Not Caused by Air Bag" »

A motorist involved in a trucking accident in DeKalb County, Georgia suffered severe injuries to his arm and can no longer work. Under a law that had been created to close a loophole that could allow out-of-state trucking companies to escape liability, the jury was allowed to consider the direct liability of the South Carolina trucking company.

Generally Georgia law protects insurers from being named in lawsuits with those they insure because disclosure of insurance coverage can be highly prejudicial. However, the Direct Action Statute at O.C.G.A. 46-7-12 does permit such lawsuits. The statute requires in-state trucking companies to file certificates of insurance with the Public Service Commission. Because there is no such governance for out-of-state companies the legislature allowed direct action against trucking companies in the law.

Continue reading "$1.29 Million Awarded to Injured Motorist in DeKalb County" »

The Atlanta Journal and Constitution recently reported on a series of wrong way crashes that resulted in fatalities including two on I-20 and one on State Bridge Road in Johns Creek. While the final reporting numbers are not in, the Georgia State Department of Transportation says about 22 people have been killed since 2004 by a wrong way driver just in the metro Atlanta area. The DOT believes most of the drivers in wrong way car crashes are impaired due to alcohol, drugs or prescription medications.

The DOT has looked at other possible barriers to cars gaining access to the wrong way ramps. They cannot use the traffic spikes that lay flat when going the right way, but puncture tires when going the wrong way because emergency vehicles often have to go the wrong way on ramps.

Each year motor vehicle crashes in Georgia affect thousands of citizens. According to the most recent data provided by the Georgia DOT, car accidents are the leading cause of death for persons ages 1-35. Our state's population growth (which did slow in the past 18 months due to the sluggish economy) and the reliance on personal passenger vehicles versus mass transit have contributed to the high numbers of deaths caused by car crashes. I read in the AJC the other day that our population has begun to grow again, I hope the state will give serious thought to increasing our mass transit availability at least in the metro area as one apporach to reducing traffic injuries and fatalities.

For the second time in less than two months a wrong way driver was involved in fatal accident on I-85 . Both accidents occurred between Shallowford Road and Chamblee Tucker Road. If you are familiar with the area you know that some of the ramps in the area can be confusing, especially when alcohol is involved. Apparently, the wrong-way driver was also DUI and as he travelled north in the southbound lane he struck another car killing the driver.

Not only will the wrong-way driver face criminal charges he will also probably face a personal injury lawsuit for wrongful death. Most car owners look to their insurance policy to cover them in the event of a car accident, but most owners don't have enough liability insurance to cover a fatal accident. When you cause the death of another person, you are liable for the "full value" of their life which includes future earnings and the enjoyment of life plus pain and suffering.

How is the value determined? The courts will look at the age and life expectancy of the person in addition to their earning capability. For example, a college student working on his masters will have a higher earning capability than someone with only a high school degree who works as a landscaper.

There are many issues involved in wrongful death actions. If you have any burning questions related to wrongful death that you would like answered, post a comment on our website.

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.

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.

Thursday morning, a 23 year old man from the Atlanta metro area caused a fatal accident after running a red light. Police believe he may have been texting which distracted him from watching for the traffic signal. The car accident happened near Athens, Alabama at about 7:00 am. The 59 year old victim was on her way to work and died at the scene. Although both drivers were wearing seatbelts, the Georgia man was driving a 350 Chevrolet truck and the woman was driving an Acura. The State Highway Patrol is still investigating the wrongful death and has not yet determined charges.

This car accident will only add fuel to the debate in many state legislatures as to a ban on texting whiled driving. As recently reported, the Federal Motor Carrier Administration banned texting for all commercial bus and truck drivers on January 26, 2010. Georgia and Alabama both have proposals before their legislatures related to banning text messaging while driving.

There are many issues involved in the debate such as enforcement. How does the state enforce that type of law? They really can't until there is an accident and they subpoena the cell phone records - it isn't much different than enforcement of DUI laws.

Opponents of the law suggest that there may be better alternatives than putting additional laws on the books - we do have laws that cover wrongful deaths in traffic accidents. They are proponents of education in safety and driver "distractability." Just as the number of DUI's has declined over the past 20 years with high profile ads, education in the schools, and safety campaigns by states and the Federal government, we could reduce the number of accidents caused by distractions (i.e., cell phone use, texting, eating, reading the newspaper) with well-planned education and safety campaigns. For example, simple tests like the one posted previously in this blog are eye-opening as to the impact of texting while driving. Maybe it should be tied to getting a drivers license?

After a week and a half of trial, a Clayton County jury returned a wrongful death verdict for $753,000 today in favor of our client. While at a local Atlanta restaurant last year, our client's husband died after being served the wrong meal. He had a severe shellfish allergy and, although he ordered a dish without shellfish, the meal that was served to him contained crab meat. Within, minutes of eating the meal he went into anaphylactic shock and died.

The restaurant claimed the husband ordered the meal that killed him. They relied on the order ticket filled out by the waitress. However, through the use of a forensic handwriting witness, we were able to show the waitress had created the order ticket after the fact. Additional medical expert testimony was used to educate the jury on food allergies and anaphylactic shock.

While the restaurant countered they had no responsiblity for whether our client received the proper order or not, we tried the case on general negligence grounds which allowed the jury to find that the restaurant owed a duty to our client and her husband to accurately take their order and deliver the meals as ordered.

Shellfish allergies are one of the most common allergies ranging from mild to severe. While anaphylaxis is rare, it interferes with breathing, causes a severe drop in blood pressure, a rapid pulse and loss of consciousness. In the most severe instances, it causes death.

Your Atlanta accident lawyers want to share some good news: The National Highway Traffic and Safety Administration announced that between January and June 2009 motor vehicle acccident deaths on our highways declined by 7% when compared to the same period of 2008, following a downward trend. The second quarter of 2009 is the thirteenth consecutive quarter of declining traffic fatalities since peaking in 2005 with 43,510 deaths.

So what has caused this historic decline in auto accident deaths? The data gathered so far indicates people are traveling less - about 6.1 billion miles less in the first half of 2009 which is about a .4% decline. This is probably attributable to the economy. Other factors may include record high seatbelt use and safer vehicles. Just think about the differences in safety features in cars today and ten years ago. Air bags are generally standard as are anti-lock brakes. Stability control, better signal lights, automatic headlights - all of these increase your chances of maintaining control and being seen by other vehicles.

Continue reading "Traffic Accident Deaths Reach Record Low" »

Today kicks off the national "Over the limit, Under Arrest" crackdown on drunk driving during the holidays, which runs from December 16 to January 3. Releasing new data on drunk driving fatalities, Transportation Secretary Ray LaHood commented, "Drinking and driving is dangerous and unacceptable, and I'm asking law enforcement to stay vigilant during this busy holiday season. According to the new data, the rate of Georgia motor vehicle accident fatalities related to impaired driving has continued to decrease since 2004.

Driving with a blood alcohol level of .08 or higher is illegal in all 50 states. Georgia uses traffic enforcement networks throughout the state to build the enforcement community into one team. This method has been effective and we continue to see declining death rates due to drunk driving car accidents.

However, the interesting issue in Georgia law is that the DUI laws are based on blood alcohol level not on impairment. Historically, DUI arrests were related to impairment due to alcohol or drugs. Over the past twenty years or so, the political impact of organizations such as MADD has changed the law such that an individual is violating DUI law by having a drink and driving whether he/she is impaired or not. Therefore, to avoid a DUI arrest in Georgia, the days of having a glass of wine with dinner and driving home are over.

Interestingly, this skewed DUI law has broadened the liability of business establishments who serve alcohol to patrons who then drive "drunk" (impaired or not) and are involved in an accident. At that point, the Georgia Dram shop laws come into play and the business may be held liable for the injuries suffered by the victims of the car accident.

Our firm has successfully represented victims of drunk driving accidents and recovered against bars under the Dram Shop Act. If you or a loved one are a victim of a drunk driver, we would be happy to answer any questions you may have.