Rear underride crash test

Death by decapitation due to trailer underride  can  result when tractor trailers park on the roadside.

The kneejerk response of most people seeing pictures of these incidents is to simply blame the dead person. But it’s not that simple. When an innocent passenger is killed or maimed, some portion of fault is normally apportioned to the driver who departed from the traffic lane for whatever reason. But it is necessary to also examine a trucking company’s decision to violate safety standards by parking a big rig on the side of the road.

As an Atlanta trial attorney representing people seriously injured in traffic crashes, I seldom advise procrastination in filing suit as cases seldom improve with age. However, there are exceptions.

Yesterday, the Georgia Supreme Court held that the two years statute of limitation for personal injury is ("tolled") until the traffic court case against the person at fault is concluded.

That means that the two year clock doesn’t start running until the traffic charge arising from an auto accident is disposed of, one way or another, in court. I have seen cases where the traffic charges languished on court dockets for as much as four years. In those instances, the injury victim could have up to six years to file suit rather than only two.

And defendants who manage to stall resolution of their prosecutions for serious traffic offenses do so at the risk of extending the time in which they can be sued.

A Georgia statute, O.C.G.A. § 9-3-99, says the statute of limitations for any tort action a victim brings over an alleged crime is tolled from the date of the alleged crime until the prosecution of the crime becomes final or is terminated, as long as that time does not exceed six years.

The Supreme Court held that “the plain language of OCGA § 9-3-99 would encompass a violation of a Uniform Rule of the Road. To impose a more stringent definition of ‘crime’ within the context of the statute would render superfluous its language that the statute of limitation is tolled from the date of the alleged crime ‘or the act giving rise to such action in tort’ until the prosecution or other termination of such crime ‘or act.’”

Chief Justice Hunstein wrote that the court had to reach the result it did notwithstanding the significant impact the decision will have. “If the Legislature had intended to limit the application of OCGA § 9-3-99 to tort actions arising from only certain types of crimes, e.g., felonies or specific intent crimes, it certainly could have done so. It did not, and any undesirable result is a matter properly addressed by the General Assembly rather than the courts.”

I would not generally advise such delay in filing suit or taking a case to trial. If a felony traffic charge is pending against the defendant, it can be a tactical advantage for the plaintiff if the defendant repeatedly invokes the fifth amendment right against self-incrimination in front of the jury in the civil trial, and the judge then instructs the jury that they may infer that a truthful answer would not have helped the defendant.

And delay can often result in loss of evidence and witnesses’ loss of memory.

More and more, I’m inclined to file suit promptly when the injury is clearly catastrophic, and move aggressively to complete necessary investigation and discovery.

However, when people do wander in late, or where it is essential to compel answers to questions in disvoery, yesterday’s court decision allows us one more arrow in the quiver.

Following is a copy of the Georgia Supreme Court unanimous decision

As a trucking safety trial attorney in Atlanta, Georgia, I’ve worked with quite a number of spinal cord injury survivors, and have had some good results. But not as good as the verdict a Chicago jury awarded last week.

In the Cook County case of Chraca v. Miles, an Illinois DOT vehicle collided with another vehicle in an intersection. Both drivers claimed that the other ran the red light, and the local police reconstruction was inconclusive. The private citizen, who was rendered an  incomplete paraplegic unable to walk without leg braces and the use of canes or a walker, was represented by Chicago lawyer Martin Healy, Jr. Last week a jury returned a verdict of $25 million.

Paraplegia is a horrific injury. Most people have little idea of the complications that accompany it, including  muscle spasticity, pressure sores and  autonomic dysreflexia.

This paraplegic’s tragedy would have been compounded if the crash had been in Georgia. In a similar case based on the negligence of a Georgia DOT employee in the course of his employment, recovery would have been limited to one million dollars under our State Tort Claims Act, which limits payments to $1 million per person and $3 million per accident. We would have been forced to search for other sources of compensation as the recovery from GA DOT would have been grossly inadequate.

As an injury lawyer in Atlanta, I have dealt with probably thousands of cases of back injuries involving ruptured or bulging intervertebral discs pressing on nerves and causing pain in the back as well as pain, numbness and tingling radiating down arms and legs. This is probably the single most common injury we see resulting from motor vehicle collisions.

Now an Australian biotech company has announced successful preclinical trial results of its adult stem cells in the treatment of degenerative intervertebral disc disease, the leading cause of low back pain. Note that they are using adult stem cells, not the controversial embryonic stem cells.

It’s a long road from preclinical trials in Australia to FDA approval in the US.  But if this turns out to be a practical treatment for damaged discs, it could be a major breakthrough for treatment of millions of people with injured and/or degenerative disc problems.

My personal injury litigation law practice in Atlanta has included a number of serious defective product cases. Among them have been tire defect cases.

Last week, a Texas jury returned a verdict of nearly $12 million against a tire maker after determining that a defective tire caused a wreck that killed six people and left a 12-year-old boy paralyzed.

The jury found that a manufacturing flaw in a Goodrich tire made by  Michelin North America contributed to the New Year’s Eve 2006 crash outside Matamoros, Mexico. A tire on a pickup truck separated from its tread, causing the vehicle to swerve into oncoming traffic, where it collided with another vehicle killing all six passengers inside the SUV.

One of our cases here in Georgia involves a tread separation of a tire from another manufacturer. Our experts concluded that the layers of the tire never properly adhered due to a defect in the manufacturing process. The tread separated on a college van loaded with a dozen cheerleaders, causing three deaths and one serious brain injury, as well as several lesser injuries. Our team of lawyers representing all the cheerleaders ultimately resolved the case for a total of $9.3 million before trial.

In today’s  Atlanta Journal-Constitution includes there appears a tragically true story by Steve Owings, whose son was killed by a speeding tractor trailer on cruise control six years ago. In the wake of his son’s death, Steve and his wife founded Road Safe America

Knowing Steve’s motivation to make the roads safer for everyone, I’m taking the liberty of copying his full article here in order to give it wider distribution.

Big rig killed our son; drive safely on busiest traffic day

By Stephen C. Owings

For the Journal-Constitution

Wednesday, November 26, 2008

My rearview mirror has turned into a time