4-year-old killed when driver reaches for dropped cell phone in Paulding County
No words can ever be adequate when a young child is killed. For the child’s parents, grandparents and other family members, it is like having a hole punched in the heart. That wound never really heals. For parents, in the words of Willie Nelson, it’s something you don’t get over but you get through. The tasks of mourning after death of a family member are all too familiar.
This week in Paulding County, GA, there was a car crash in which a 20-year-old driver was distracted by dropping his cell phone and water bottle. Leaning over to retrieve them from the floor of his truck while speeding, he struck a family’s minivan from behind.
The mom driving the minivan with her children, aged 3 and 4 in the back seat, said she was about to turn into her dad’s driveway when she saw a speeding truck in her rear-view mirror. “I was, like, I saw it and then we were flipping,” she said.
When he struck the minivan it flipped over and landed in the ditch. The four-year-old child in the minivan was killed. She had her “Hello Kitty” backpack ready and was excited about the start of preschool.
The Paulding County Sheriff’s Office shared a GoFundMe page (“Alora Rose Gained Her Wings”) to assist the family with funeral costs and other expenses. The child was a granddaughter of a detention officer for the county.
The young man whose distracted driving killed this child may well spend some time in prison for vehicular homicide, but after that he will live the rest of his life with the feelings of guilt for causing this death.
The relevant Georgia statute on homicide by vehicle is OCGA Section 40-6-393 (c), which provides: ”
Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163, subsection (b) of Code Section 40-6-270, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3.
Defining punishment for misdemeanors generally, OCGA Section 17-10-3 states:
(a) Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows:
(1) By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both;
(2) By confinement under the jurisdiction of the Board of Corrections in a state probation detention center or diversion center pursuant to Code Sections 42-8-35.4 and 42-8-35.5, for a determinate term of months which shall not exceed a total term of 12 months.
News reports do not yet detail what criminal charges the at fault driver may face, but I suspect they will include following too closely (OCGA Section 40-6-49) driving too fast for conditions (OCGA 40-6-180), and distracted driving (OCGA 40-6-241, which has been amended to include new “hands free” provisions which went into effect on July 1, 2018),
Civil lawyers in these cases can only deal with financial compensation issues.
It is important to quickly obtain information about automobile and umbrella liability coverage on vehicles in the household of the at-fault driver under provisions of OCGA 33-3-28. A 20-year-0ld who purchases a vehicle and insurance on his own may have minimum coverage of $25,000 but one should not make that assumption. When my kids were that age, their vehicles were insured under my policies so they effectively had $2,250,000 liability coverage on their cars, though they probably did not even know it. Savvy lawyers recognize that insurance companies with multiple interlocking subsidiaries do not disclose additional coverage in response to a statutory request unless the request is phrased just right.
It is also important to quickly gather all insurance policies on all vehicles in the family’s household, evaluate all uninsured / uninsured motorist coverage on all those policies, and notify the insurer(s) of the tragedy within thirty days. Some insurance companies are draconian in their application of contractual time limits for notice to the company.
Obviously no amount of money can ever make up for the loss of a beloved child. But we have seen many families who set aside money recovered from insurance companies in such situations to fund the education of surviving children.
Ken Shigley was an Assistant District Attorney in Paulding County in the last 1970’s. he is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from auto accidents, commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries.