Atlanta Injury Law Blog

As a trucking and auto safety attorney in Atlanta, and as a former prosecutor, I have developed a strong appreciation for the competence and professionalism of the Georgia State Patrol.

Now the state's budget crisis is impacting the GSP's capacity to cover the rural areas of our state.

According to a report by Rhonda Cook in the Atlanta Journal-Constitution, each patrolman will be furloughed two days per month for the rest of the year.  That will mean roughly a ten percent pay cut for troopers who are already underpaid. 

Some patrol posts have as few as eight troopers to provide 24 hour coverage for 15 to 24 counties. Twenty of the state’s 48 patrol posts close between 11 p.m. and 2 a.m. and don’t reopen until 7 a.m., leaving only an operator to take emergency calls and to rouse an on-call trooper from bed to respond.

This is bad news for public safety in Georgia's rural areas and interstate highways.

 

 

 

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As a personal injury and wrongful death trial attorney in Atlanta, Georgia, I see a lot of the bad things that happen to good people.

But sometimes we see some good news.

Georgia's fatal traffic wrecks declined from  1,729 in 2005 to 1,507 in 2008. The rate of Georgia road fatalities per miles traveled decreased 4 percent between 2005 and 2007, the most recent statistics her agency has. In the same period, seat-belt use increased nearly 9 percent, making Georgia's usage the highest in the Southeast at 89 percent.

There are several possible reasons for the improvement:

• less driving due to higher fuel prices in 2008
• less driving due to the decline of the economy
• increased use of seatbelts
• improved safety features of cars and roads

Let's hope that the fatality rate does not just back up when the recession finally ends.  No matter how long or deep, all recessions do eventually end. Even the recession after the fall of the Roman Empire eventually ended -- in about 500 years.

 

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In my personal injury law practice in Atlanta, Georgia, I see too many reports of injuries and deaths in highway construction zones.

And almost every day, somewhere in the country, there is another instance of a vehicle crossing over highway median strips to strike oncoming vehicles head-on.

Last week I spent a day poring through Georgia DOT I-85 design drawings and construction records regarding one such incident. That may not be everyone's idea of fun, but it took me back to the period in my youth when I thought I wanted to be a civil engineer and design highways.

Today, Sarah Fay Campbell in  the Newnan Times-Herald reports that the I-85 widening project includes no median barriers to stop median crossover crashes between Moreland and Grantville.

The Georgia DOT says no barrier is required where there are 12 foot emergency lanes and a 20 foot grassy strip in the median.

Coweta County Commissioner Randolph Collins disagrees.  He says, "The median is so flat and there is nothing there to catch a vehicle."  Commissioner  Collins knows what he is talking about.  He is a former  Georgia State Patrol trooper, and former member of the GSP's Specialized Collision Reconstruction Team that investigates serious accidents.

There have been two fatal crossover accidents on I-85 just south of Moreland Exit 41, Collins said.

While the I-85 construction is under way, the speed limit is 50 mph. "So what are we going to do when it gets to 70 mph?" Collins asked.

The Federal Highway Administration approved the installation of cable median barriers for the project, according to DOT District Engineer Thomas Howell. But there is no funding for the barriers.

"This is a safety concern... they don't have the money to pay for it. But let's find the money," Collins said.

Such shortcuts in construction may prove to be "penny wise and pound foolish" when the death claims start pouring in.

 

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The four people killed this week in a fiery crash on I-75 near Valdosta, Georgia, have been identified.  They were a family from central Kentucky -- Jerome Roberts, 40, Cheryl Collins, 41, MaRhonda Collins, 20, and August Roberts, 11, all of Midway, Kentucky.

The horror of death by fire is almost unspeakable.

 

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Four people were killed in a fiery crash at 2:30 this moming on I-75 near Valdosta, when a car and a Penske rental truck collided. The rental truck collided with one vehicle, then came to rest on top of a third vehicle, according to Mike Morris in the AJC.

The fire was so intense that law enforcement officers were initially unable to even identify the make and model of the car under the truck.

When that vehicle burst into flames moments after impact, the occupants were burned beyond recognition. Four bodies were transported to the State Crime Lab in Atlanta for autopsy and identification.

The driver of the Penske truck was not seriously injured.

There are no words to describe the pain of massive burns. Only screams from the depths of the soul can begin to express that pain. On a pain scale from 0 to 10, it rates about 10,000.

 

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All my life, I have traveled back and forth across Taylor's Ridge near Summerville in Chattooga County.  Just last weekend, I drove my dad over that route to attend a reunion at Menlo, where he was principal of the school back when Menlo had a high school and a red light. Driving down the side of Taylor's Ridge, we talked about the perennial problem in designing and building a roadway adequate to handle water from a spring in the side of the ridge. Dad's memory goes back further, so he was telling me about some couple from Mentone running off the road there in the 1930s.

Each Tuesday morning, on Highway 27 on the southbound side of Taylor's Ridge, two vehicle collided. According to Chattooga County Sheriff John Everett:

•  Larry Barnett, 55, from Marietta, Georgia, was ejected from his vehicle and killed.
• Bonnie Montgomery, 75, of Chattooga County, was flown by LifeForce helicopter to Erlanger Hospital in Chattanooga.

The cause of the crash was not reported.

 

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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.

 

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For years both lawyers and insurance claims professionals assumed that a plaintiff could not win a substantial verdict in certain suburban Atlanta counties, notably Cobb and Gwinnett.  Until the past couple of years, I felt the same way.

Last week, there was a verdict for $1,937,500 in Cobb County.  The plaintiff was an assistant attorney general who was a passenger on a motorcycle driven by her brother. She had a broken pelvis,  12 days in the hospital with surgery on the pelvis, about $151,000 medical expense, and no wage loss claim. The defendants were a then-16 year old high school student and the teen's parents who were included under the family purpose car doctrine.

It vaguely reminds me of a $2.3 million verdict I won in rural Gordon County a while back, with somewhat less medical expense but with a trucking defendant.

The point is that it seems that the county a case is in doesn't make as much difference as it did 10 or 20 years ago. A good case is a good case in most any venue. 

Of course, that generality does not factor in the potential for "home cooking" if the defendant is prominent and well liked in the county. That can happen anywhere, depending on the vagaries of local politics.

 

 

 

 

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Georgia had 3,325 traffic accidents, with 868 injury victims and 24 deaths during the Christmas holiday weekend.  At least one of those crashes involved a tractor trailer, though the other driver was at fault.

 

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Over the years I have shared in the sorrows of a number of parents whose children were grievously injured.  About 14 years ago I even published an article in the Georgia Bar Journal on "Tort Claims Involving Minors in Georgia."  Along the way I began to see publications from the Centers for Disease Control here in Atlanta about the epidemiology of childhood accidents.

Now the CDC has a web site and podcast regarding prevention of common childhood injuries, including burns, drownings, falls, poisonings, traffic injuries, etc. I commend it to all parents, grandparents and caregivers.

 

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Atlanta has traffic that only a personal injury lawyer could love.  But I'm a personal injury lawyer, and I don't love our traffic. 

A survey several months ago decided that our  traffic is the 10th worst among major cities in the U.S.  Los Angeles ranked  worst, followed by New York, Chicago, Washington D.C., Dallas-Fort Worth, San Francisco, Houston, Boston, Seattle and Atlanta. I found that surprising. In recent years whenever I have had occasion to drive in New York or L.A., my reaction has been that there traffic wasn't as bad as ours.

I thought another report was more realistic, ranking metro Atlanta as tied for the second-highest level of traffic congestion as measured in hours of delay per rush hour driver.

Now the U.S. Department of Transportation has announced plans to help the Georgia DOT reduce traffic congestion on I-85 north.   The plan will let more drivers use HOV lanes on I-85 north, and build up high-speed commuter bus service into downtown.

The first phase  will involve a network of variably priced high-occupancy toll  (Hot lanes)lanes on I-85,  from I-285 to Old Peachtree Road, by January 2011. Future phases of the congestion relief plan will include a 49-mile network of additional HOV-to-HOT lane conversions along I-85, I-75 and I-20.

Also included is a $30 million grant for increased commuter bus service to operate on the newly converted expressways.

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The Atlanta Regional Commission determined these to be the 10 most crash-prone intersections in the region.  This is old news, but I doubt that the results would be much different now.

-  Austell Road at East-West Connector (Cobb)

- Barrett Parkway at Cobb Place Boulevard (Cobb)
 
- Cobb Parkway at Barrett Parkway  (Cobb)
 
- Tara Boulevard at North Avenue (Clayton)
 
- Sigman Road at Walnut Grove Road (Rockdale)
 
- Buford Highway at Lenox Road (Fulton)
 
- Chastain Road at Busbee Parkway (Cobb)
 
-  Alpharetta Highway at Houze Way (Fulton)
 
- Austell Road at South Cobb Drive (Cobb)

- Roswell Road at Abernathy Road (Fulton)

Worst time of day: 5-6 p.m.

Age group with most accidents: 25-34

County with most accidents: Fulton

Frequency of fatal crashes: One every 15.6 hours

County with most accidents involving pedestrians: Fulton

County with fatal accidents involving pedestrians: Fulton

Source: Atlanta Regional Commission, study period, 2002-2004; scope, 18-county metro area

 

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Forbes has rated the best and worst US cities for commuters.  Atlanta rated #1 as the worst major city for commuters.  Here's what the article said:

Here, in the fastest-growing city in America, more people flood the roadways than the infrastructure can handle. Commuters spend 60 hours a year stuck in traffic, second only to those in Los Angeles. If that weren't bad enough, Atlanta is so spread out that only 29% of drivers get to and from work in less than 20 minutes, the third worst rate in the country, and 13% spend more than an hour getting to work, the fourth worst rate in the country. The local train system doesn't service the entire city, and thus fails to relieve the pressure.

In our trucking accident law practice, we often see what happen can happen when tired truckers enter metro Atlanta at rush hour. You can imagine.

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On 1/11/08, a Lavonia, Georgia woman was killed on Highway 17 in Hart County when another vehicle crossed the center line and hit her head on. Georgia State Patrol reported that a 51-year-old Lavonia man faces charges including vehicular homicide and DUI drugs. This report was from Ashley Cox at AccessNorthGa.com.


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At Bamberg, SC, on 1/7/08, a beer truck, a log truck and two empty Freightliners were involved in a fiery pileup when the log truck lost a tire.  The beer truck burned completely and its driver died. The two empty trucks were driven by brothers  Two men from Rincon, Georgia were driving the empty Freightliners.  One of them, whose truck also burned, was flown to a hospital. See news report from Chantelle Janelle at WIS-TV in Columbia.

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As a trial attorney handling serious injury and wrongful death cases in  Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well.

Currently there is a proposal in the legislature to impose a sales tax on services, including legal services, as part of a plan to eliminate property taxes for support of education. That proposal arises from deeply held feelings that the tax burden falls unfairly upon property owners. As a homeowner, I share that sentiment every time I receive a property tax bill. But as a parent whose children graduated from excellent public high schools, I know what a bargain that can be compared to private school tuition. Georgia should improve, and not diminish, support for quality public education.

Whatever general revenue measures our legislators may choose to support the quality of public education needed to provide Georgia an economically competitive workforce, it is important to examine the ramifications in detail. Specifically regarding the proposed tax on legal services, our legislators should consider a broad range of potential unintended consequences on our system of justice and the delivery of legal services.

Conflict with duty of confidentiality. Under current enforcement statutes, the Georgia Department of Revenue, under its audit authority, could claim access to detailed client billing records which are confidential under Georgia Rule of Professional Conduct 1.6. This could create a serious conflict between lawyers' confidentiality obligations to clients and the requirement to respond to audit requests.

Burden on individuals but not businesses or governments that litigate against them. Individual Georgia citizens would bear the entire burden of the tax as currently proposed, while governments, corporations and insurance companies who litigate against them would be entirely free from the tax. This would make the playing field even more uneven in favor of corporate and governmental litigants and against individual Georgians.

Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgia.  A tax on legal services would encourage sophisticated clients, and those in border communities, to use untaxed legal services outside Georgia. It would also create an incentive for Georgia law firms to perform more services outside Georgia, and to shift investment in facilities, staff and support services to other states. Given the ease of gaining admission in many other states by reciprocity, even the smallest firms might find it advantageous to do so. Determining which services are taxable in Georgia would be an administrative nightmare.

Burden on citizens’ constitutional right of access to courts. A tax on legal services would be a burden on the exercise of Georgia citizens’ basic, constitutional right of access to justice and to the courts.

“Misery tax”. The sales tax on legal services as proposed would amount to a “misery tax” levied on individuals and families in Georgia at times of misfortune and vulnerability. It is generally necessity rather than choice that leads Georgians to seek legal assistance in cases involving death, divorce, domestic abuse, end-of-life decisions, injury, accusation of criminal offenses, or bankruptcy.

 Effect on injury cases. Recovery for bodily injury is not taxable under either federal or state income tax laws, as our lawmakers have long recognized that there is no profit when an injured person involuntarily exchanges good health for a specified amount of money. The tax on legal services would erode the injury victim’s recovery for such injury, thereby making it even more difficult – and potentially more expensive – for corporations and insurance companies to reach reasonable compromise settlements. Moreover, an Georgian injured on the job gets no more than $450 per week in workers compensation indemnity benefits. If an attorney is required to obtain the benefits, a 25% attorney fee of $112.50 per week leaves only $337.50 for the injured worker. (The weekly benefit was recently increased to $500 per week for new claims, but you get the idea.)  A tax on legal services would further erode that meager benefit, thus increasing pressure to raise workers compensation benefits, a cost which eventually would be passed on to Georgia businesses.

Experience of other states. Apparently only Hawaii, New Mexico, and South Dakota currently tax legal services. Florida and Massachusetts enacted such taxes, but promptly repealed the measures when they proved to be unpopular and difficult to administer. Several other states, including Maine, Maryland, Ohio, and Vermont, as well as the District of Columbia, rejected similar proposals.

Constitutional questions.  There are numerous unresolved questions as to the constitutionality of the proposed tax on legal services, which the State of Georgia might well have to litigate over the next several years, including but not limited to the following:

    •    Access to courts. Would the proposed tax on legal services  impermissibly burden  access to and use of the state or federal courts in violation of Art. 1, § 1, ¶ 9 Ga. Const. of 1983, Article III of the U.S. Constitution and the 5th, 6th and 14th      Amendments to the U.S. Constitution?
    •    Equal protection and due process. Would unequal treatment of individuals and corporations, whereby a tax would be imposed on an individuals party’s access to the courts but no tax would be imposed upon a corporate party in the same litigation, be a violation of the Georgia Constitution under Art. 1, § 1, ¶ II  (equal protection) and under Art. 1, § 1, ¶ I (due process of law), and the 14th Amendment to the U.S. Constitution?
    •    Separation of powers.  Would the proposed tax on legal services constitute an unauthorized regulation of the practice of law by the Legislature in violation of the constitutional guarantee of separation of powers under Art. 1, § 2, ¶ III of the Georgia  Constitution?
    •    Tax on litigation in federal courts may violate U.S.  Constitution Supremacy Clause.  Would the proposed tax on legal services, in connection with litigation before the federal courts, violate the Supremacy Clause contained in Article VI of the U.S.  Constitution?
    •    Breach of confidentiality burdening right to counsel. Would the proposed tax on legal services breach the attorney-client privilege and confidentiality, and thus impermissibly burden the right to counsel under both Art. 1, § 1, ¶ I of the Georgia  Constitution and the 6th and 14th Amendments of the U.S. Constitution?
    •    Taxing some professions while exempting others may violate equal protection of law. Would imposing a tax on services performed by the legal, accounting, architectural and other professions, while exempting services rendered by the medical profession, be a violation of equal protection rights under Art. 1, § 1, ¶ II of the Georgia Constitution, and the 14th Amendment to the U.S.  Constitution?
    •    Burden on rights guaranteed in U.S. Constitution. Would the  proposed tax on legal services impermissibly burden the exercise  of rights secured by the 5th, 6th, and 8th Amendments to the U.S. Constitution?

We should encourage efforts to make our system of taxation more fair and efficient. At the same time, we should be careful to avoid the “law of unintended consequences," which could wreak havoc if a tax on legal services were enacted.
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An explosion at G&S Metals, which processes aluminum scrap in Manchester, Ga., on the morning of Nov. 29 injured at least seven plant employees. No fatalities have been reported.  The explosion occurred about 8:45 a.m. Manchester is in Meriweather County about 60 miles south of Atlanta.

Approximately 20 employees were working at the plant  when an explosion tore siding and insulation from the rear of the building. The blast also broke natural gas lines leading to the plant, causing a fire that responders were able

to control and extinguish within 15 minutes. One report indicated officials believe the blast may have been caused by a boiler explosion.

Fire Chief Greg Lehtimaki said three of the injured employees suffered potentially life-threatening third-degree burns that cover at least 50 percent of their bodies. One of the injured victims is hospitalized in critical condition and two are in serious condition. Four other employees escaped with less severe injuries and were taken to area hospitals.

Questions may arise about manufacturing defects in the boiler versus mainteance issues. Workers in such situations are limited to rather inadquate workers compensation benefits unless a third party, such as an equipment manufacturer, is at fault.

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Yesterday the Georgia Court of Appeals held that a work-related cell phone call or distraction by such a call that a driver chose not to answer may be enough to support liability of the employer, even though the employee was driving to work from home and was not on a special mission for the employer.  See full text below.
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My friend Matt Flournoy in Marietta has posted on YouTube an excellent video explaining the extreme forces acting upon the human body in motor vehicle crashes.

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The Food & Drug Administration on July 16th approved the first the first artificial cervical disc.  According to the developers, the prosthesis simulates the function of a natural cervical disc and provides patients with the ability to move their necks compared to the traditional practice of spinal fusion.  The results of the clinical trial show that the disc is strong enough to withstand sudden movement and to support the head, so that patients are able to move their head up and down, and from side to side.  The new artificial disc, placed through an incision at the front of the neck, is designed to alleviate neck pain and other ailments associated with disc herniations, spinal arthritis and other spine degenerative conditions. The disc consists of a stainless-steel ball and trough that functions as a joint. It is attached to the vertebrae with screws. The components are designed to act as a pivot point, which may allow the spine to move more naturally.

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A study published yesterday in The Archives of Internal Medicine, reached the conclusion that doctors’ disclosures about themselves fail to either help patients or establish rapport with the patients. Rather, the study showed that many doctors waste patients’ time and lose their focus in office visits by interjecting irrelevant information about themselves. 

The researchers started with the hypothesis that some self-disclosure by physicians had  a potentially positive aspect to building a doctor-patient relationship.  To their surprise, patients were not comforted and conversations got off track. Four out of five times when a doctor interjected personal information, the doctor never returned to the topic under discussion before the interruption. However, the researchershope that  doctors do not conclude that the best course is to clam up completely about themselves.

I wonder if this is also applicable to lawyers' interviews with clients, and if I should cut out some of the personal conversation about personal experiences that seem -- to me at least -- relevant to a client's situation.  However, in the long duration of most of my cases, I still think there is value in developing genuine friendship with clients that goes beyond the nuts and bolts of litigation.



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The first catastrophic plaintiff's case I handled involved brain injury to a toddler in a condo swimming pool that was fenced an nominally locked, though not well enough to keep out a toddler who strayed from her mom who was momentarily distracted with care of a newborn sibling.  My own kids were little then, so I was both fascinated and horrified with the early studies on the epidemiology of childhood injuries.

Now the Centers for Disease Control here in Atlanta has just released an interesting study on fatal childhood injuries. Researchers at the Division of Unintentional Injury Prevention, National Center for Injury Prevention and Control, over on Buford Highway, report that

In the United States, unintentional injury, homicide, and suicide are the first, second, and fourth leading causes of death among persons aged 1--19 years, respectively; the highest rates have occurred among minority populations. The effects of age on the difference in rates between white and minority children and the mechanisms of injury that contribute most to that difference have not been previously reported.

During 1999--2002, among infants aged <1 year, American Indian/Alaska Natives (AI/ANs) and blacks had consistently higher total injury death rates than other racial/ethnic populations. Both populations had more than twice the rate of injury death compared with white infants. Black infants had the highest rates of unintentional suffocation and homicide, whereas AI/AN infants had the highest rate of motor-vehicle (MV)--traffic death. Among children aged 1--9 years, AI/ANs and blacks had the highest injury death rates. AI/ANs aged 1--9 years had the highest rates of MV-traffic death and drowning; in contrast, blacks aged 1--9 years had the highest rates of homicide and fire/burn death. Among children aged 10--19 years, AI/ANs and blacks consistently had higher total injury death rates than whites. AI/ANs aged 10--19 years had the highest rates of suicide and MV-traffic death, and blacks aged 10--19 years had the highest rates of homicide. The disparity in injury mortality rates by race/ethnicity during 1982--1985 had not declined by 1999--2002.

I commend the study to educators, youth program leaders, parents of young children to raise their awareness of risk factors and means of prevention.  Some key points include:

• Importance of seatbelt and passenger restraint compliance. 
• Motor vehicle fatality rates higher in rural than non-rural areas, possibly due to lower rate of seatbelt and child safety seat compliance.
• High risks related to drunk driving.
• Prevent drowning and near-drowning injuries through water safety measures, e.g., swimming instruction,  childproof pool fences and gates, personal flotation devices, teaching teens and adults the danger of alcohol use around pools and boats, etc.
• Prevention of burn injuries through use of home smoke alarms, fireplace guards, and lower water heater settings.

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Despite the political surge to tort "reform" and the distinctly conservative tone we see in jury panels these days, when serious cases are well tried jurors repeatedly show the willingness to award adequate verdicts.  We experienced it a couple of weeks ago with a $2.3 million verdict in rural Gordon County for a young man with a serious leg injury that limits him to sedentary occupations and eliminates all but a bittersweet his lifelong loves of hunting, fishing and basketball.

This week there were verdicts of $5 million in very conservative Hall County and $11.7 million in Fulton County, which due to demographic shifts is not generally considered as plaintiff-friendly as a few years ago.

In Gainesville (Hall County), there was a $5 million verdict for a worker who had as catastrophic brain injury in a fall from a ladder in an unsafe workplace. As with our recent case in Calhoun, nothing has yet hit the newspapers.

In Atlanta (Fulton County), my downstairs office neighbors, David Boone and Bill Stone, won an $11.7 million medical malpractice verdict for a young man who was a college freshman in 2003 when he underwent a surgery to relive chronic back pain but came out a paraplegic. (Ironically, the surgeon who was then at Resurgens Orthopedics is in many respects a pretty good guy who I have known to get get great results in other operations.)

The great irony of the case in Fulton County is that the plaintiff used provisions of the tort reform legislation passed two years ago to exclude two of the defense experts, and to add on roughly $4 million in attorney fees and expenses in addition to the jury's verdict due to the defense rejection of an offer of settlement under OCGA 9-11-68. Thus, the insurance company that lobbied so hard for tort reform legislation is hoist upon its own pettard.

All these cases underscore the importance of presenting serious cases in a serious, effective manner.  When that is done, it may not matter much where a case is tried. 

On a tangential note, the U.S. Census Bureau announced this week that the 28-county metro area — known officially as the Atlanta-Sandy Springs-Marietta Metropolitan Statistical Area — reached a population of 5,138,223.  I remember when a much more compact metro Atlanta area reached a population of 1 million, provoking much celebration and civic chest-thumping.  The 5 million population mark is just another news story.  Differences between metro Atlanta and most other major American cities are not that huge.  Neither is the potential for serious jury verdicts in serious cases.
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Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

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A charter bus carrying members of a  baseball team from Bluffton University, a Mennonite college in Ohio, crashed onto I-75 from an overpass at Northside Drive about 5:30 AM Friday morning, killing six people and closing the southbound lanes of the interstate for 5 hours. A witness who was driving alongside the bus said it exited on a ramp at about 60 MPH.  The bus hit the bridge's 2-foot-high retaining wall and crashed through a 10-foot-high fence atop the wall and plunged back to I-75 below. 

The unusual design of the HOV lane left exit is attracting a lot of attention in the local media.  I have driven by that exit and others like it many times and wondered when it would produce a tragedy.  While the state folks are quoted in the media insisting that everything complied with federal design standards, the signage for that counterintuitive exit seems questionable.

I have two children close to the age of these college students.  It is difficult to contemplate the enormity of the loss these parents face.  They will be able to lean on their faith, but it still must be enormously painful.  I am reminded of a case we handled several years ago involving the crash of a college cheerleader van, and a crash involving a Taylor University van last year. I have often recommended to clients who have lost young adult children Lament for a Son, a book by a theology professor Nicholas Wolterstorff whose own son died in a mountain climbing accident at age 21.

Interstate charter buses are governed by Federal Motor Carrier Safety Regulations.  The National Transportation Safety Board is investigating, so it is likely any violations will be uncovered.  The Georgia State Tort Claims Act allows for negligent design claims against the DOT if road design failed to comply with standards when built.  But that's a subject for another day.


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Georgia juries are capable of surpassing expectations.  An example occurred this week in Marion County, population 7,144 according to the 2000 census.  It is the prototype of the conservative, predominantly white rural Georgia county.  I have been told that the highest jury verdict in the history of the county prior to this week was $10,000.

 

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I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

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Occasionally we encounter situations where a corporate defendant claims that the employee who was driving the business's truck was on some personal mission, and therefore not in the course and scope of employment.  It is always important to develop the evidence of business related purposes that are somehow related to the trip, as well as any evidence that the employer knew of the employee's unsafe driving in the past.  In Remediation Resources Inc. v. Balding, decided August 9, 2006, the employee stated that his real purpose in traveling to Statesboro was to eat and that his intent to pick up work supplies was secondary, he also testified that he definitely planned to pick up some work supplies. The Court of Appeals held that there was therefore a jury question whether he was within the scope and purpose of employment at the time of the wreck.  The Court also held that a jury issue remained on Balding’s claim for negligent training and supervision, since Findley received two speeding tickets and was involved in two minor car accidents during the 22 years in which he drove for companies owned by the same people, Remediation had no policy manuals to govern employee conduct while driving a company vehicle and Remediation did not keep driver history or qualification files for any employees.

See the full text below.


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It's old news to personal injury litigation specialists but often a surprise to others that, under Georgia law, filing a bankruptcy petition without disclosing the existence of a personal injury claim may bar the injury claim.  It's called the rule of judicial estoppel, and the consequences can be extremely harsh. The courts have softened the harsh application of the rule in recent years by allowing folks to reopen and amend their bankruptcy cases in order to add the injury claims as assets of the bankrupt estates. When that is done the bankruptcy trustee then retains the personal injury attorney to represent the interests of the creditors as well as the injury victim.

Zahabiuon v. Automotive Finance Corp, decided August 10, 2006, involved a tort claim not for personal injury but for conversion of a vehicle that was in a shop for repairs and wrongfully included in repossession of a large number of vehicles at the dealership.  The car owner subsequently filed a bankruptcy petition on which this claim was not listed as an asset, and did not amend the bankruptcy petition to cure the omission.  Consequently, his tort claim was lost due to judicial estoppel.  See the text of the decision below.

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Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.
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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.

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A new study from Georgetown University Medical Center may offer hope of drug treatment to prevent formation of scar tissue and thereby prevent worsening effects of traumatic central nervous system injury. Based on studies with rats, the hope is that injection of flavopiridol through nasal passages within thirty minutes after trauma may limit the formation of scar tissue and inflammatory response. See news release and the full study.

Much study with human subjects will be required before flavopiridol becomes a standard medical supply on every ambulance, routinely administered by EMT's at accident scenes. If that day ever comes, it will be too late for today's victims. For those of us who have spent years working with victims of catastrophic brain and spinal cord injuries, it sounds like hopeful news.

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The General Assembly could pass legislation this week to dismantle the state Department of Motor Vehicle Safety, though it's not clear why. See article.

"Representatives of the Federal Motor Carrier Safety Administration and the Federal Highway Administration indicated that, historically, there is a transition period after this type of change of 1 to 4 years where accident rates and fatalities will increase," says a memo from the state Office of Planning and Budget dated February 2004.

Critics of the proposal to dismantle DMVS contend the state will lose millions of dollars in efficiency-promoting federal funding that came with the consolidation of functions under DMVS. About $1.8 million that the state receives annually will lapse at least temporarily, said Tom Marlowe, Georgia division director of the Federal Motor Carrier Safety Administration. Fatalities involving commercial vehicles dropped from 214 in 1994 to 164 in 2004, even though there were more trucks on the highway laragely due to to the fact that there are more inspections and there is more emphasis on truck safety. The Federal Motor Carrier Safety Administration are said to consider the DMVS "excellently managed" and on the way to being "a national leader" because of its success in cutting the rate of truck accidents.

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More than 1,500 people a year die in crashes in Georgia, and more than 135,000 are injured. The concern is greatest perhaps in metro Atlanta counties, which exceed the national average crash rate of 5 percent per year among all registered vehicles. In fact, the crash rate is almost 10 percent in Fulton County, the heart of the metro area. Previous studies have shown that Atlantans drive harder, faster and longer than motorists in four other representative U.S. cities, including Los Angeles.

So, for the past three years, Georgia Tech has had a study to investigate speed, driver behavior, travel patterns, etc. See article

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These 2000 statistics are from the National Highway Traffic Safety Administration's Fatality Analysis Reporting System.

1,541 people died in motor vehicle crashes.

63 percent of these deaths did not involve alcohol-related fatal crashes.

93 percent of these deaths did not involve drivers ages 16 or 17.

The fatality rate was highest for the contributing factor of failure to keep in the proper lane or run off the road - 13.5 per 100,000 licensed drivers compared with 2.5 for failure to obey traffic stop sign or signal.

Alcohol and illegal or unsafe speed were the next highest contributing factors at rates of 9.8 and 5.9 per 100,000 licensed drivers, respectively.

71 percent of drivers in fatal crashes were male.

Almost one in 10 drivers in fatal crashes did not have a valid driver's license.

18-year-old drivers had the highest fatality rate.

The fatality rate per 100 million vehicle miles traveled in rural Georgia was 1.8, compared with a fatality rate of 1.1 in the five primary metropolitan Atlanta counties. The rate in suburban Atlanta counties was 1.6.

More than one in four fatalities occurred in crashes involving a pickup truck.

More than one in seven fatalities occurred in crashes involving a sports utility vehicle.

Proper child safety seat use by fatally injured motor vehicle occupants up to age 4 increased from 23.3 percent in 1999 to 25.0 percent in 2000.

Pedestrian fatalities accounted for 11 percent of all motor vehicle fatalities - the highest number of those occurring at night.

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It has happened again on Georgia 400. Sunday evening, 3/6/05, a head-on, three vehicle crash on the Georgia 400 expressway in north Fulton County killed two people were killed and injured four. The 8 p.m. accident shut down both sides of the highway between Haynes Bridge Road and Old Milton Parkway for several hours. See AJC article.

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