Atlanta Injury Law Blog

This news story brings out the old prosecutor in me.

Sunday evening in Gwinnett County, a young mom walked out to the street to tell a driver who had repeatedly sped through her neighborhood to slow down.

But the allegedly drunk driver ran off the road and hit her, crushing her between the front of his truck and another truck that was parked off the street.  She was reportedly killed instantly.

A neighbor said the alleged drunk stopped, walked up, and asked if he had hit a garbage can. Seeing that he had killed a woman, according to media reports, he cursed, parked his truck at the end of the street, and fled on foot.

Constantine Toncz, 39, was soon apprehended and charged with felony vehicular homicide, DUI, and felony leaving the scene of an accident.

That is the sort of case that Assistant District Attorneys would have fought for the chance to take to trial when I was a young prosecutor.

As for the civil side of things, my bet would be that the drunk driver would minimum liability insurance, if any, leaving the decedent's family to look to uninsured / underinsured motorist coverage.  The chance of someone who served the driver alcohol being liable, particularly on a Sunday evening, is possible but remote.

It is our policy not to include the names of accident victims in blog posts out of respect for privacy of victims and their families.

As an Atlanta personal injury trial lawyer, I have been pleased to sponsor the Mothers Against Drunk Driving of Georgia web site.  (See the extremely small print with no hyperlink at the very bottom of the home page.)

Now MADD is proposing legislation to require DUI offenders to have ignition interlock devices -- an electronic gadget that keeps a car from starting unless the driver's breath is alcohol-free -- installed on their vehicles after their first DUI conviction.  Judges can now require this after the second DUI conviction.

Sounds like a good idea.

As a personal injury trial lawyer in Georgia, I have often told clients that they do not want what goes with the kind of case that makes headlines. It is better to have good health than a multi-million dollar injury case.

A recent New Jersey case is a good illustration of that.

In 1999, an Aramark concession employee at Giants Stadium broke stadium rules by continuing to sell beer to a fan who had been drinking much of the day and was slurring his words. The drunk fan drove away and crashed into a family vehicle, rendering a two year old girl a quadriplegic.  The girl, now 11, is still paralyzed and dependent on a ventilator to breathe.

Three years ago, a jury awarded damages of $105 million.  An appeals court reversed that judgment and ordered a new trial, saying the lower court improperly allowed testimony about the "culture of intoxication" at the stadium. Now the case has been settled, with $23.5 million for the girl and $1.5 million for her mother, who was also injured. There is no further appeal from a settlement.

Having been represented  young quadriplegics with well-designed life care plans, I know what is involved and how expensive proper lifetime care for a quadriplegic is. 

Since receiving payment on the settlement,  the family began building a handicapped-accessible home equipped with  technology to provide the girl as good a life as she can have as a quadriplegic. The house should be ready by the holidays.

This young girl can only move her head, but with state of the art technology she will be able to control her wheelchair, elevator, TV and computer with her voice.  She will also be able to have  round-the-clock nursing care, which  is necessary in case her ventilator becomes clogged creating a life-or-death situation.

No amount of money can fully compensate a young girl for the loss of the ability to run and play, to hold hands, to enjoy all the blessing of life that the rest of us take for granted. But the money can allow her dignity, humanity, and the best life that is accessible to her.

And maybe, just maybe, this case will make an impression on businesses that serve alcohol around the country, and in that way prevent other tragedies over the years.

In Moore v. Thompson, 255 Ga. 236 (1985), the Supreme Court held prior or subsequent DUI's are admissible on the issue of punitive damages. The court in Moore held that this evidence would require a bifurcated trial in order to avoid prejudice, so the prior DUI would not be admissible during the liability phase of trial under Moore. OCGA 51-12-5.1(d) was enacted in 1997, after Moore This punitive damages statute specifically calls for a bifurcated procedure on the issue of punitive damages, with the jury first hearing evidence in the initial liabilty phase to decide not only liability, but also evidence to determine if punitive damages are warranted (which would necessarily include evidence of prior or subsequent DUI's), and then the amount of punitive damages is to be decided in the second phase of the bifurcated trial. Accordingly, under this statute, which was adopted after Moore and thus supercedes it, one could argue that the prior DUI evidence is admissible in the first phase of the bifurcated trial, in which the jury decides the issues of liability and whether punitive damages may be assessed. Thus, even though Moore holds that the prior DUI evidence should not come in evidence until after liabilty is decided, the statute says otherwise. However, a trial court may still have the inherent authority to bifurcate (or trifurcate) to avoid prejudice, but this is not what the statute says is required, and I would argue that under the express terms of the statute this prior DUI is admissible in the liability phase of trial. See also Langlois v. Wolford, 246 Ga. App. 209 (2000)( driving under the influence, coupled with prior history of driving under the influence and DUI, was aggravated conduct supporting punitive damages). (Thanks to my old friend and classmate, Clark McGehee, for pointing this out.)

Georgia has slowly begun erecting highway signs memorializing people killed by drunk drivers. To be eligible, a person must have been killed by a drunken driver since May 13, 2004, the date the law was signed. Georgia had 450 drunken-driving fatalities that year. The death also must have occurred on a state or federal highway and the markers go up only after a guilty plea or conviction.

Since my days as a young prosecutor, I have observed the mayhem wrought by drunk drivers. Therefore, I am pleased to sponsor the updated web site for Mothers Against Drunk Driving (MADD) Georgia chapter.

When drunk drivers cause wrecks, Georgia jurors are often ready to send a message that such conduct is unacceptable, even if the actual injury is relatively small. Such verdicts are routinely affirmed by our appellate courts. In Craig v. Holsey, 264 Ga. App. 344 (2004), the jury returned a verdict of $8,801.40 in actual damages and $200,000.00 in punitive damages. On appeal, the large punitive damages award was upheld as being not grossly excessive. Id. at 350. In another case, based upon medical bills of only $643.00, the jury returned a verdict for actual damages of $3,000.00 and for punitive damages in the amount of $300,000.00. Langlois v. Wolford, 246 Ga. App. 209 (2000).

Generally, if a drunk driver who causes a wreck has a record of other DUI incidents, there is a high potential for a punitive verdict. If a thorough examination of his life reveals no other incidents, a jury is somewhat less likely to return a high punitive verdict. Whenever there is sufficient insurance coverage or recoverable assets to make a large verdict collectable, it is worthwhile to thoroughly investigate the drunk driver's prior and subsequent record. At times we have checked records in every locality where a drunk driver has lived, attended college, worked or vacationed to determine whether there were DUI charges even if they were dismissed or plead down to a lesser charge.

Jefferson, GA, 12/2/05

According to a news report from Athens, a Jackson County woman was under the influence of a combination of drugs, including Oxycodone and Diazepam, at the time of a fatal April 1 wreck on U.S. Highway 441 just south of Commerce, according to a newly released indictment. Cindy Edwards Jackson, 37, was indicted this week on 10 counts, including serious injury by vehicle, driving under the influence, vehicular homicide and endangering a child while driving under the influence.

On April 1, Jackson was driving her Ford Explorer north on U.S. 441 when she crossed the center of the road about one-half mile south of Hoods Mill Road in Commerce, according to court records and the Georgia State Patrol. Jackson's SUV crashed head-on with a Ford Mustang, according to the patrol.

The Mustang's driver died as a result of the crash and a passenger in the Mustang was taken to Athens Regional Medical Center and later Atlanta for additional treatment, the patrol said previously. Jackson's 6-year-old son was in the back seat of her Explorer at the time of the wreck, but was not hurt. The mother and son were taken to Athens Regional Medical Center after the wreck, according to the patrol.

Jackson is scheduled to be arraigned Dec. 15 in Jackson County Superior Court, according to court records.

The challenge in the civil side of a case like this is not so much in complex liability issues, but in finding enough insurance coverage and assets to cover the damages because the drunk driver seldom has enough. A lawyer may search for multiple automobile liability and underinsured motorist coverages that can be "stacked." A diligent lawyer might also explore possibilities of other parties who can be held financially responsible having played a substantial role in providing intoxicants to a person who they know will be driving. That is a difficult legal theory under Georgia law, but it must be explored. Product liability theories against auto manufacturers are less attractive in such cases now because of the proportional liability passed by the legislature last February.