Wrongful Death

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As president of the State Bar of Georgia, I often have occasion to speak at events that extend beyond my own personal injury, wrongful death and commercial trucking law practice. The following is excerpted from my presentation — “Trial Preparation: 30 tips in 30 Minutes” – at the Georgia Law of Torts seminar at Mercer University Law School in Macon on September 23, 2011.

1. Begin with the end in view.

    It is tempting to assume that cases are likely to settle rather than go to trial. While most cases do settle, that assumption leads to laziness and lack of…

    As president of the State Bar of Georgia, I have occasion to work on a number of issues and controversies beyond the scope of my own personal injury, wrongful death and commercial trucking accident trial practice.  The following is excerpted from an article by Kathleen Joyner in the Fulton County Daily Report on September 23, 2011.

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    Bar committee OKs rule change
    Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

    The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the…

    The following profile article about me was written by Linton Johnson and published in the August 2011 issue of the Georgia Bar Journal. While it briefly touches on my practice as a personal injury and wrongful death trial attorney focused on commercial trucking accidents, the focus is more on background for bar leadership.

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    A Truck Wreck Lawyer Faces the ‘Truck Wreck’ of the Judicial System After Years of Court Budget Cuts

    Linton Johnson

    As the newly installed 49th president of the State Bar of Georgia, Ken Shigley knows to expect the unexpected. Having served on the Executive Committee…

    The following was published in the August 2011 issue of the Georgia Bar Journal, as my president’s column. (If you want to see the end notes, go to the online version of the Journal.) It does not deal with my practice as a personal injury and wrongful death trial attorney focused on commercial trucking accidents. Rather, it addresses core concerns of all members of the legal profession.

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    It was a Sunday in December nearly 40 years ago at my grandparents’ rural home at Mentone, Ala., a bucolic spot best known for summer camps, midway between Chattanooga and…

    Over the years in my Atlanta personal injury practice, I have worked on cases involving catastrophic tire failure. It has certainly made me more alert to issues when tire issues arise with vehicles in our family. 

    And it helped to increase my patience with the replacement process when I recently ran over some sort of metal strip on an exit ramp, resulting in the loss of both front tires — one immediately and the other a couple of days later when I was still driving on my spare.

    At the risk of sounding like President Wilson, here are my "Fourteen Points" for tire safety, with thanks to California lawyer Mike Danko and Gerry Maloy at MSN:

    1. No on-the-rim repairs. The tire must be dismounted so that the tire can be properly inspected and sealed against moisture. Short cuts on this can put the survival of your DNA at severe risk.

    2. No repairs near the shoulder. This is the weakest part of the tire.  Only holes in the middle of the tire can be repaired.  If you pick up a nail near the shoulder, just spring for the price of a new tire. It’s cheaper than a funeral.

    3. New tires go on the rear.  Installing the new tread on the front can lead to loss of control.

    4. Check tire pressures and adjust at least once a month. According to the National Highway Traffic Safety Administration (NHTSA) on tire-related crashes, the leading cause of tire failure is underinflation.

    5. Inspect tires regularly for abnormal wear or damage. This is easily done at the same time you check pressures. If repair is needed, see #1 above.

    6. Rotate tires every 6,000 miles or according to owner’s manual. I know, this is as boring as flossing teeth, but uneven wear pattens can have really bad outcomes such as catastrophic tire failure, rollover, death, quadriplegia, etc.

    7. Maintain tires in proper balance.  See #6.

    8.  Maintain steering and suspension in proper alignment. See #6 again.

    9. Never overload a tire. Overloading is the second leading cause of tire failure, next to underinflation. So don’t load down your old Pinto with rocks  to build that cool stone patio and outdoor fireplace for the coming spring. Read the load capacity stuff in the owner’s manual.

    10. Avoid overheating tires.  Excessive speeds, heavy loads, underinflation, rough pavement or concrete, and aggressive driving all contribute to high tire temperatures. All these, especially in hot weather, can lead to sudden tire failure.See #6 again re: bad outcomes.

    11. Replace tires when . . .

    • Any portion of the tread is worn to the "wear indicator bars"—lateral bars molded into the tire grooves at about 20 percent of their new tread depth—or to a depth, as measured in a groove, of 1/16th inch or less.
    • Tread wear is severely uneven (in which case have the wheel alignment checked) or the center is worn much more than the edges. (See #6 again about bad things happening to good people.)
    • The tire sidewalls are severely cracked or there are bulges anywhere on the tire.
    • There is any indication of tread separation from the tire carcass.
    • The tire has been punctured and cannot be satisfactorily repaired. (See #1 & #2 again.)

    12.  Install tires in matched pairs or complete sets.  I just taught this one to my frugal daughter who had one tire go bad. I hope she remembers when she, rather than Dad, is paying for the tires.

    13.  Select the right tires for your vehicle and driving environment. There is quite a variety of specialized tires available. In our generally mild southern climate, "all season" tires are generally good enough for most of us. My daughter’s boyfriend is an advocate of snow tires in upstate New York, where they are in college. I tell her to ride with him in the winter since we Southerners don’t know how to drive on that stuff anyway.

    14. Review 1 through 13. I didn’t really have "Fourteen Points" but as a former history major, I couldn’t resist a nod to the President who once had a law office near where our Georgia Bar Center now stands.

    On September 4th in Atlanta, Angel Rivers, 21, was ejected and killed in a fiery crash when the Chrysler in which she was an occupant was rear-ended by a drunk driver.  Witnesses saw Donis Hodges recklessly driving a 2006 BMW M6 just before he crashed into the Chrysler near Hamilton E. Holmes Drive.

    Charges  against Hodges include DUI, first-degree homicide by vehicle, following too closely and reckless driving. On Monday, a judge set bond for Hodges at $310,000.  After the hearing, Rivers’ mother, Shatavia Little, told CBS Atlanta she’s angry that the judge allowed bond for Hodges. “This is not like he hit a squirrel. It’s not like he hit a stray dog. He killed a human being. That’s my baby,” she said.

    Georgia wrongful death law provides for recovery of the "full value of the life" of the person killed.

    Unfortunately, after any such tragic accident, victims’ families are often immediately besieged by "runners" attempting to unethically solicit for lawyers who are willing to risk disbarment.  Georgia Rule of Professional Conduct 7.3 provides, in part: "A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer. . . . The maximum penalty for a violation of this Rule is disbarment."

     

    As a trial attorney handling catastrophic injury and wrongful death cases in Atlanta, I continue to see how jurors are able to separate the wheat from the chaff and do substantial justice in serious cases.  Frivolous and trivial cases, by contrast, don’t carry much weight with jurors.

    This week in the State Court of Fulton County, a jury returned a wrongful death verdict against a drunk driver who killed a young mother, in the amount of $5,830,000 ($5,115,000 for the value of life and $715,000 for her  suffering before death).

    Since the nineteenth century, under Georgia law the measure of damages for wrongful death has been the full value of the life of the deceased. This is consistent with our prevailing respect for the sanctity of human life. 

    The economic component of the value of the life includes a projection of lifetime income and benefits, with no deduction for living expenses or income taxes, value of services, etc.).   This figure is be reduced to present value under Georgia wrongful death law, often based on the testimony of an economist or accountant.

    The intangible aspect of value of the life includes factors such as the enjoyment of the experience of living and relationships with loved ones. In the case of the death of a young parent, the jury may consider the value to the mother of being around to raise and nurture her children and to grow old with her husband.

    The full value of the life is determined only by the enlightened conscience of an impartial jury based on the evidence presented. Under Georgia law, there is no arbitrary formula or cap on the value of a human life. 

    The decedent’s husband, parents, siblings, etc., testified about various aspects of the value of her wonderful life. My colleagues Charles McAleer and Nelson Tyrone did a fine job of putting it all together.

    In my work as a catastrophic injury trial lawyer in Atlanta, Georgia, I have often worked with clients who have lost a loved one in a sudden traumatic event.  To see a video of me talking about wrongful death case, click here.

    In working with grieving survivors, we must be sensitive to the stages of the grief process.  Elizabeth Kubler-Ross defined five stages of grief, while others break it out into seven stages.  Of course, the sequence is not the same for everyone, as the stages overlap, some people skip over some stages, others get stuck in a stage, and others keep looping back.

    Generally, the stages of grief according to include:

    1. Shock stage: Initial paralysis at hearing the bad news.

    2. Denial stage: Trying to avoid the inevitable.

    3. Anger stage: Frustrated outpouring of bottled-up emotion.

    4. Bargaining stage: Seeking in vain for a way out.

    5. Depression stage: Final realization of the inevitable.

    6. Testing stage: Seeking realistic solutions.

    7. Acceptance stage: Finally finding the way forward.

    I want to make it clear that I am not a psychologist or a mental health counselor.  I’m a trial lawyer. While I understand some of this stuff, my role is that of the gladiator, not the pastor or counselor. 

    When we represent people who are necessarily dealing with grief, we sympathize. But we may suggest that clients seek professional grief counseling from a psychologist or pastoral counselor. I am on the board of an excellent non-profit counseling center in Atlanta, but that is not the only one to which we make referrals.