Georgia Injury Lawyer Blog

A Springfield Georgia automobile accident resulted in the wrongful death of a 17 year old Springfield teenager, Whitney Newman, in the early morning hours last Sunday morning. According to the Savannah Morning News, the teen was a backseat passenger in a Chevrolet Tracker which lost control and flipped over several times, ejecting some of its five passengers. Although authorities did not initially know why the driver lost control of the vehicle, the Georgia State Patrol Specialized Collision Reconstruction Team was investigating. At least two other occupants of the vehicle sustained life-threatening injuries as a result of the accident and they were transported to Memorial University Hospital in Savannah.

Continue reading "Georgia Automobile Accident Results In Death Of Teenager" »

One of the realities of the Federal Tort Claims Act is that the fees for counsel are limited. If the case is settled pre-suit, the fees are limited to twenty percent (20%). If the case goes to trial before the District Court by way of a bench trial, the fees are increased to twenty-five percent (25%) of the award. As is true of most personal injury claims, attorney’s fees are payable from the amount of the recovery, not in addition to it. The United States is also liable for court costs just as a private party would be, however, attorney’s fees are not considered to be court costs.

As might be imagined, it is difficult to sue the United States in a complex medical malpractice case in a hypothetical claim involving the Veterans’ Administration because in such a case counsel will be limited to a recovery of twenty-five (25%) of attorney’s fees. This is the standard fee that attorneys receive in workers’ compensation cases and is not a significant inducement for counsel to take a complex medical malpractice case involving the government. Nonetheless, Congress has limited the attorney’s fees that one may obtain in these cases and thus the most that an attorney can recover is twenty percent (20%) if the case is settled pre-suit and twenty-five percent (25%) if presented to the District Court via a bench trial.

Georgia medical malpractice cases have become increasingly difficult to bring as the legislature enacts more and more restrictive laws. A fact which many do not know is that patients injured by highly negligent actions in Georgia emergency departments have no right of recovery. This is due legislation which established a gross negligence standard which governing the actions of emergency room personnel.

This standard has been interpreted by the Georgia courts as requiring almost intentional conduct.

The extreme unfairness of this law is illustrated by a recent incident occurring at a VA hospital in Missouri. The VA hospital is under fire because it may have exposed more than 1,800 veterans to life-threatening diseases such as hepatitis and HIV.

The John Cochran VA Medical Center in St. Louis recently mailed letters to 1,812 veterans telling them they could contract hepatitis B, hepatitis C and human immunodeficiency virus (HIV) after visiting the medical center for dental work.

The alert was caused by the failure to clean dental instruments properly. According to reports, dental technicians broke protocol by handwashing tools before putting them in cleaning machines.

The instruments were supposed to only be put in the cleaning machines. The handwashing started in February 2009 and went on until March of this year.

A similar event occurred recently at a California hospital which was forced to send letters to 3,400 patients who underwent colonoscopy and other similar procedures, informing the patients that there may be a potential of infection from items used and reused in the procedures.

This misconduct is totally unacceptable, yet in Georgia, patients exposed to these deadly diseases in an emergency room setting have no recourse.

Anyone who spends time in the mountains of Georgia or North Carolina knows that the summer motorcycle season is here. It is time for many of us to hit the open road once again. Before you do, we suggest you review some important safety tips, that may help keep you safe this season. According to the National Highway Traffic Safety Administration (NHTSA), approximately 5,100 people died in motorcycle crashes in 2007. This alarming statistic is the highest level since the Department of Transportation began collecting data in 1975.

Many bikers take precautions to avoid accidents, but even when all safety precautions have been made, other driver's make mistakes that cause serious injuries. A Georgia man lost his foot as a result of an inattentive driver who ran a traffic light; a North Carolina man lost his life when a tractor-trailer turned left into his right of way; and a Florida man suffered a traumatic brain injury when the defendant driver ran a red light. The fact is that there is no way to completely eliminate the risk, even for the most skilled bikers but staying alert and ride defensively can help.

Continue reading "The Summer Motorcycle Season Has Begun In Georgia" »

When a claim is asserted against the United States government, the claim is based on the alleged liability of the United States in accordance with the law of the place where the negligent act or omission occurred. As an example, if a postal truck runs over someone in the State of Georgia, the laws of the State of Georgia will control whether the acts of the postal carrier driver were negligent. The liability of the United States as stated in other entries is the same as would be the liability of a private person. If a private person runs a stop sign and injures a third party, that would be negligence per se as it would violate a Georgia Uniform Rule of the Road statute. Similarly, if postal truck runs the stop sign, this would be negligence per se under Georgia law which state law would control the liability of the United States. Because Federal Tort claims against the United States are controlled by local laws of liability, the injured claimant should confer with counsel where the tort occurred. If the claimant lives in a district other than where the tort occurred, the case can still be filed in the district of residence but the law where the tort occurred will control the case.

The motorcycle accident lawyers at Finch McCranie, LLP have represented many motorcycle riders over the years who have been seriously injured in collisions involving automobiles. A few months ago we settled a case where our client sustained very serious injuries to his leg and foot when his motorcycle was hit broadside in an intersection by a doctor who ran a red light in her SUV. Although the motorcycle was not demolished, the injuries were devastating. As a result of the injuries he sustained, doctors had to amputate several toes and part of his foot. In this case and most others, the motorcycle rider was obeying the law and did nothing to cause or contribute to the collision.

Motorcycles are by their very nature far less crash worthy than closed vehicles and crashes frequently result in catastrophic injuries or death. They are also less visible to other vehicles and pedestrians and less stable than 4-wheel vehicles. Motorcyclists and their passengers are more vulnerable to the hazards of weather and road conditions than drivers in closed vehicles. According to the DOT, 5,154 people died in motorcycle crashes in 2007 and motorcycles are 35 times more likely than passenger car occupants to die in crashes per vehicle mile driven in 2006, and 8 times more likely to be injured according to the DOT’s National Highway Traffic Safety Administration (NHTSA).

Because of the seriousness of the injuries sustained in motorcycle accidents and because many of the motorist who cause these accident are under-insured, Georgia lawyers need to be creative when representing riders. It is imperative that the victim’s attorney examine all potential avenues of recovery so that the client can be fully compensated. Other areas to review include failure of the motorcycle’s mechanical systems, failure of other motorcyclists to observe the motorcyclist, failure maintain the roadway and debris on the roadway from trucks, including tire tread separation.

If you or a loved one have been injured in an automobile accident, truck accident or motorcycle accident, consult the Georgia injury lawyers at Finch McCranie, LLP. Our firm has been representing personal injury victims for over 45 years.

Continue reading "Motorcycle Accident Result in Serious Injuries" »

Georgia injury lawyers know that accidents involving serious burn injuries are more common than one might think. The American Burn Association estimates that 1.1 million significant burn injuries occur every year in the United States. Most commonly, burns are caused by: automobile accidents, gas and other flammable liquid fuel explosions, scalding/hot water, electrical accidents, industrial accidents, gasoline spills, building fires, defective candles, lighters and matches; however, the causes are numerous. We have seen cases involving propane powered forklifts which leak gas inside of a parked semi-trailer and explode. We have also seen cases involving injured textile workers scalded by hot water in dye vats. Recently we represented a homeowner whose home exploded after a local propane supplier negligently filled a residential propane tank.

In most serious cases, experts in many different areas are often necessary in assisting burn victims and their families deal with the long term physical and psychological affects of these painful and debilitating injuries.

Our firm understands that your immediate concerns include getting your medical bills paid, limiting potential lost wages, and ensuring insurance coverage for future treatment of your injury. Our experienced attorneys will assess your situation and discuss all the options available to you, as well as work with insurance companies and other involved parties to ensure your needs are quicky and appropriately addressed. We will work to protect your legal rights and pursue rightful compensation for long term medical bills, lost wages, disfigurement, pain and suffering, emotional distress, mental anguish, and lost enjoyment of life. If you or a loved one have experienced a burn injury, the experienced Georgia injury lawyers at Finch McCranie, LLP (800-228-9159) for a free consultation to discuss your legal options.

Assuming an administrative claim is properly submitted and is denied and a lawsuit is thereafter commenced, the lawsuit must be filed in United States District Court, not in a state court. One advantage of proceeding under the Federal Tort Claims Act is that such a suit can be brought in the Federal Judicial District where the plaintiff resides or where the negligent act or omission occurred. Thus, if a person is traveling, as an example, and is hit by a postal carrier running a stop sign while on vacation, the lawsuit still can be filed where the plaintiff lives. Once the lawsuit is filed, a copy of the Summons and Complaint must be served upon the Attorney General of the United States in Washington, DC and upon the United States Attorney for the District in which the action is brought.

It must be noted that when a Complaint is filed against the United States that the Complaint can only name the United States of America as the defendant. The Complaint cannot name the employee or the federal agency in the Complaint but only the United States of America. As the defendant, United States will have sixty (60) days in which to answer a plaintiff’s Complaint not the typical thirty (30) days. Where to file? U.S. District Court–either where the tort occurred or where the claimant resides. Who to sue? Only the United States of America.

Georgia injury lawyers see numerous dog bite cases every year. More than 4.7 million people in the United States are bitten by dogs every year. Nearly one out of every six bites are serious enough to require medical attention. Georgia’s “Dog Bite Statute,” provides, in part: “A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.”

Absent a local leash law, a dog owner is not under a duty to confine it or otherwise protect others from it until the owner becomes aware of the dogs vicious or dangerous propensities. This doctrine has given rise to the popular, but not legally accurate, maxim that the “first bite is free”. Under current Georgia law, in order for an injured person to recover in a dog bite case, they must show not only that the dog had vicious propensities, but that the owner knew or should have known of those propensities, and that the injured person had no such knowledge. Obviously one way to show that the owner knew or should have known of a dog’s vicious propensities is to demonstrate that the owner was aware of prior actual dangerous conduct on the part of the dog. For domestic animals such as dogs, vicious propensities may also be proven by showing that the animal was required to be on a leash by an ordinance of a city, county, or consolidated government and that the animal was not on a leash at the time of the injury. Under such circumstances, proof that a valid “leash-law” was in effect and that the animal’s owner was not in compliance with that law at the time of the occurrence is all that is necessary to prove liability for damages.

Continue reading "Dog Bite Cases In Georgia" »

Under the specific provisions of the Federal Tort Claims Act (FTCA) there is no right to a jury trial. See 28 U.S.C. § 2492. This is one of the disadvantages of suing the United States government but because the FTCA is a limited waiver of sovereign immunity, the provisions of the Act control. Simply stated, the limited waiver provisions provide that there is no right to jury trial when suing the United States government. What this means is that once the case is assigned to a United States District Court judge, he or she will not only be the judge that will resolve any legal issues, he or she will also be the Trier of Fact.

Typically the way these cases work, if they cannot be settled, is that a trial will be scheduled in front of the United States District Court. The United States District Court judge will become the finder of fact. Typically, District judges require the parties to submit proposed Findings of Fact and Conclusions of Law in writing prior to the beginning of the trial. Once the trial begins, of course, there is no necessity that the case be quite as argumentative as it might be in front of a jury nor is there any necessity that counsel try the case as he or she would if a jury were present. Nonetheless, the moving party, the claimant must call witnesses under oath, introduce depositions, call experts and otherwise do the same thing that anyone would do before a jury in order to prove the case by a preponderance of the evidence which is the burden of proof. While a District Court judge has the authority, if they wish, to impanel “an advisory jury” to issue a non-binding ruling on the dispute, most judges dispense with this and try the case by themselves.

Beginning today, several new Georgia laws intended to reduce automobile accidents, tractor trailer truck accidents and motorcycle accidents go into effect. One of these is the Texting While Driving law. Georgia drivers under the age of 18 will be charged if they talk or text on a cell phone while driving. Under this new law, all drivers, regardless of age will be charged if they write, send or read a text message, email or access the Internet while driving. If found guilty a motorist will be fined $150.00 and will be assessed 1 point on his or her driving record.

Another new Georgia law, the Pickup Truck Safety Belt law, requires both drivers and passengers of pickups to buckle up except for certain farming restrictions. Georgia injury lawyers know that many victims of automobile accidents and trucking accidents would not have sustained serious injuries if they had been wearing a seat belt at the time of the collision. Unfortunately many deaths have resulted from the failure to buckle up. Years ago Georgia passed legislation requiring seat belt use for occupants of automobiles and vans; however, pickup trucks were exempted. For many years, legislation requiring pickup truck seat belt use was defeated by pressure brought to bear from legislators who represented rural constituents.

Continue reading "New Georgia Laws In Effect To Curb Automobile Accidents and Truck Accidents" »

The Georgia injury lawyers at Finch McCranie, LLP represent clients who have suffered personal injuries from bicycle accidents or who are survivors of cyclists killed in accidents caused by the careless or negligent conduct of others. Surprisingly, many of these bicycle accidents do not involve other drivers but were caused by the negligence of road contractors, construction companies, and even public utility companies. Injuries suffered as a result of these types of accidents can be severe and life altering. Most common are nerve damage, broken or dislocated bones, and injuries to the neck, back, brain, or spinal cord. Sadly, some of these bicycle accidents result in the wrongful death of the cyclist.

Recently, we represented the family of an Atlanta cyclist who was killed when his bicycle struck a copper ground wire which had been pulled loose from a utility pole and was hanging out across a public sidewalk.

The photograph above was taken by Atlanta Police when they arrived at the scene of this tragedy. Given that the utility pole was literally located within 5 inches of Peachtree Street, the grounding wire was likely pulled loose by a passing bus or large truck because it was not secured properly to the pole. Although they are not visible in the photograph, our investigation showed that there were other wires which had been cut and left hanging from the pole and nearby tree.

During our investigation of the case we became aware that in metropolitan Atlanta, there are literally thousands of utility poles with loose wires hanging off of them in close proximity to public sidewalks and roadways. Many of these wires and cables serve no purpose and are there because someone was too lazy to either remove them or secure them in such a way so as not to endanger the public. Now that we are aware of this danger, hardly a day goes by that we do not see example after example of this hazard. The photograph below, taken on June 21, 2010 directly in front of the Dunwoody Library, illustrates the point. This potential hazard has been present for months.

Other recent bicycle cases involved road/bridge construction defects. Two cases involved bridge expansion joints which were left open and created a serious danger to cyclists.

Continue reading "Georgia Bicycle Accidents" »

Damages under the Federal Tort Claims Act are measured by the law of the state in which the tort occurred. Thus, the state statutes control what damages may be obtained. However, there are some differences principally in the context of wrongful death claims. Because every law in every state is different in this regard, suffice it to say that counsel must be familiar with the District Court opinions in their district as well as in their state. The differences can also dictate who has the right ot claim damages - e.g. a spouse or administrator of an estate.

Even though actual damages may be obtained from the United States government for pain and suffering, medical expenses, out-of-pocket expenses caused by the tort, etc., punitive damages are not allowed against the United States. Only compensatory damages may be recovered. While pre-judgment interest is not allowed against the United States, post judgment interest is allowable assuming the government appeals an award from a District Court and loses the appeal. Again, because the law of the state where the tort occurs controls who has the right to seek damages, injured parties should confer with counsel who practice in the area whre the tort occurred.

Motorcycles and motor scooters are becoming increasingly popular in Atlanta due to congestion and their gas saving qualities. However, we are increasingly seeing terrible and tragic accidents involving motorcycles and motor scooters. Unfortunately, many of these incidents are caused by distracted drivers who simply do not see the motorcycles or motor scooters.

In today's Atlanta newspaper there is an article concerning a 55-year-old Atlanta resident who was killed while riding a motor scooter. She had stopped on Peachtree Road to make a turn into her residence. A car following her struck the motor scooter from behind resulting in her death.

Just recently, a friend driving a motorcycle avoided serious injury when a car made a left turn in front of his motorcycle on Briarcliff Road in Atlanta. The car turned into his path so quickly that the motorcycle struck the vehicle. The rider was thrown over the car and landed on the road. Somehow, he avoided serious injury.

Recently our firm represented a young lady who was not so fortunate. While riding her motorcycle slowly down a local road, a vehicle pulled from the curb and struck her motorcycle. Tragically, her leg was traumatically amputated by the force of the collision.

These examples drive home the fact that motorcycle and motor scooter riders, while carefully and legally operating their vehicles, are subject to extreme dangers in the city. Hopefully, drivers of cars and trucks will become more aware of the fact that motorcycles and motor scooters are present on the roadways.

Under the law of the State of Georgia, law enforcement officials enjoy official immunity for acts performed within the scope of their discretionary authority. As long as they are performing discretionary acts and not ministerial duties, they can only be held liable if they are acting outside the scope of his authority or with actual malice or intent to injure. These are very difficult propositions to prove in the routine case. If an officer, however, violates a simple ministerial task, he can be liable but even here sometimes there is a difficulty suing a particular law enforcement official because of the doctrine of sovereign immunity, which more often than not is implicated in these cases.

If a county official is involved, typically, the county can only be liable for acts where there has been a statutory waiver of immunity such as the statute which exists providing for a waiver of sovereign immunity in connection with damages caused by the negligent use of motor vehicles. As an example, in a police chase, if the officer recklessly disregards proper police procedure, the officer can be sued and official immunity overcome assuming there is evidence of reckless disregard of proper police procedure for the chase because of the statutory waiver of immunity. In other contexts, it is difficult to prove a waiver of sovereign immunity and consequently it is difficult to hold an officer liable for acts committed within the scope of his/her discretionary authority.

In many of the articles we have written thus far, we keep using “easier said than done” when it comes to bringing legal claims against law enforcement officials. The law is protective of officers acting within the scope of their authority and usually only allows claims to go forward when there has either been a clear breach or abuse of the authority and/or an intent to cause injury such that misconduct is established to exist. If the officer violates a simple ministerial task, again, he may be liable on a different legal basis.

Any such case against a law enforcement officer in state court must be analyzed under state law and sovereign immunity implications are always involved. Again, anyone with a case involving claims against a state law enforcement officials should confer with counsel as soon as possible in order to have the issues properly reviewed. Ante-litem pre-suit notices of claims are oftentimes required in these cases as well.

Under the Eleventh Amendment to the United States, a state law enforcement official typically cannot be sued in his official capacity for acts done within the scope of his official duties. The reason is the Eleventh Amendment which prohibits lawsuits against a state or “state actors” without state consent. This constitutional prohibition against such lawsuits typically means that if someone has a civil rights claim they wish to assert in court against a law enforcement official then they might need to consider doing so in state court as opposed to federal court. Obviously, filing a lawsuit in a state court where the law enforcement agency exists is a difficult proposition because the lawsuit has to be filed in the same jurisdiction where the law enforcement authorities serve as bailiffs to the court and otherwise have considerable control over the jurisdiction implicated. To get around the Eleventh Amendment, one has to establish that the individual was either not a “state actor” or was acting outside the scope of his or her authority. Another exception to the Eleventh Amendment is claims brought against law enforcement officials not in their official capacity but rather in their individual capacity.

An officer acting within the scope of his discretionary authority who does not violate clear constitutional precedent concerning his/her actions may be difficult to hold liable in federal court. While it may be difficult, it is not impossible. Again, the cases are always factually specific and the legal issues turn on the facts. Nonetheless, in considering where to file a lawsuit against a law enforcement official in the context of a potential civil rights claim, one must be mindful of the Eleventh Amendment and the various restrictions it imposes upon litigants seeking redress for civil rights violations.

When a law enforcement officer abuses his authority and uses excessive force in an arrest or detention of a suspect, legally, the victim of such excessive force faces some very significant legal hurdles in seeking redress for any injuries caused by the excessive force. What we refer to here is known as the doctrine of qualified immunity. Simply stated, as long as a law enforcement official is acting within the scope of his discretionary authority, he/she essentially has immunity for his acts unless he clearly violates established legal precedent concerning the propriety of his/her conduct. Whether such a violation is proven is determined by an objective analysis of the facts from the standpoint of a reasonable officer. If a reasonable officer would have objectively used the same degree of force, then there is no legal liability, even if someone is shot and killed.

There are many complex variables that one must consider in handling an excessive force case against a police officer. Whether the doctrine of qualified immunity does or does not apply is a factually specific inquiry. While the hurdle is high for a victim of excessive force to overcome, it is not an impossible burden to meet. Even if an officer is acting within the scope of his authority and is exercising discretion, if his actions are objectively unreasonable and result in unreasonable and unnecessary injury to a third party, legal claims can be brought and can be sustained.

Any person who claims to be a victim of the excessive use of force should confer with counsel as soon as possible. The issues are, again, factually specific and legally complex which necessitates a in-depth investigation of what the facts were at the time of the use of force. This too can be a difficult undertaking because the police are likely to provide a version of events most favorable to their position and the victim oftentimes is not believed simply because he/she is the alleged criminal suspect in many of these cases: All the more reason for counsel to be conferred with as soon as possible in the context of any of these cases.

As indicated in our prior blogs on this subject, when a claim is brought under the Federal Tort Claims Act, it must be initiated via the filing of an administrative claim. The administrative claim should not be filled out in the most sparse form imaginable rather all pertinent details of the claim should be provided. This includes providing all relevant documentation which supports the claim. Indeed, it is somewhat analogous to submitting a settlement package to an insurance company. All information concerning when and where the claim arose, what the claimed negligence or cause of action is based upon, what damages were incurred and how they were calculated and what documentary proof exists to support all of the above. The administrative claim therefore is not simply the filing of the Form 95 but includes filing all pertinent documentation including photographs, medical bills, medical records and any all other supporting documentation. While one can submit a claim without supporting documentation technically this is not a wise course to pursue because the government is not likely to ever engage in any realistic appraisal of such a claim. The more support that is provided the more likely it is that the government may attempt to resolve the claim on an administrative basis which will protect the claimant from having to proceed with litigation with the United States in Federal District Court.

A key part of the administrative claim is to make sure that the amount of money damages are set forth for a “sum certain” that being a definite amount. The claim cannot assert damages in excess of a specified sum but must actually set forth a specific sum. Thus, if one asserts damages, hypothetically in the amount of $75,000.00, then those are the only damages one can seek if the claim is denied and a lawsuit becomes necessary.

Mandatory arbitration clauses are contained in almost every consumer transaction agreement, and financial and employment contracts. We have previously written about the fact that these mandatory arbitration clauses benefit only big business. As a result of the unfair nature of these clauses, there has been a movement within the United States to prohibit their inclusion in many consumer, financial, and employment contracts.

The increasingly conservative United States Supreme Court has recently been upholding a wide range of mandatory arbitration clauses. Just recently, the Supreme Court agreed to decide during the next term whether a class-action ban in a cell phone arbitration agreement is unconscionable. This is one of the most controversial issues in arbitration.

The Supreme Court has agreed to hear a steady stream of arbitration cases during the past decade or so. The decisions have generally been pro-arbitration., even though lower courts appear to be increasingly skeptical of claims that arbitrations offer greater efficiency and lessen costs of court litigation.

The most important case pending before the Supreme Court is AT&T v. Concepcion, which is the cell phone class-action ban case.

Also pending before the Supreme Court is the case of Rent A Center v. Jackson. In that case, Jackson, the plaintiff sued his employer for race discrimination and retaliation. The trial court granted the employer's motion to dismiss and to compel arbitration according to a clause in Jackson's employment contract.

Jackson appealed, arguing that the arbitration agreement was unconscionable and that the issue of unconscionability must be decided by a court, not an arbitrator. The United States Court of Appeals for the Ninth Circuit agreed that the threshold issue of unconscionability is for a court to decide.

While these cases are pending , Congress has begun to address the arbitration problem. Currently pending is a bill, the Arbitration Fairness Act of 2009, which would ban pre-dispute arbitration agreements in employment, consumer and franchise contracts. This legislation has been introduced by Rep. Hank Johnson of Georgia and Sen. Russell Feingold of Wisconsin. The legislation has garnered substantial support, but other issues such as health care reform and financial reform have placed it on a back burner.

This is very important legislation as the Supreme Court seems intent on upholding these patently unfair and unconscionable clauses.

Last week we read about what has become an all too familiar pattern, more police chases equal more deaths. In one case in Los Angeles a six year old was killed when the police were chasing suspects who were believed to have been involved in a drug transaction earlier. The death penalty was imposed on this six year old girl in order to catch a suspected drug user. Was the price worth it? Also in Los Angeles, a motorcycle officer was killed during a pursuit when he lost control of the motorcycle. In a police chase in Jacksonville, two police officers and a suspect were hospitalized with serious injuries. These were three separate incidents which occurred on June 10. On the same day there was an article which appeared in the newspaper in Kentucky about another innocent victim of a police chase. In that case, the police were apparently chasing a suspect in a stolen vehicle. During the chase, the suspect lost control and ran into the victim’s car, which incident left three children without a father and a wife without her husband. In the Kentucky case, a father of three was killed because the police felt it was more important to the public safety to catch someone driving a stolen car than it was to protect the lives of innocent motorists who might be endangered by the pursuit.

We have seen these kinds of articles over and over and over again. It is very distressing to read about the carnage caused by these chases. We have never advocated that police chases should be terminated. When the suspect being pursued is violent, has raped someone, murdered someone, or is known to represent a clear danger to the public, there is no alternative, the suspect must be chased and should be apprehended, if possible, with due regard for the safety of the motoring public. However, when non-violent offenders are being chased, the cost to the innocent members of the motoring public is simply too great. We should not impose the death penalty on innocent people in order to capture non-violent offenders. Let the suspects go rather than kill the innocent.

Continue reading "De-Ja Vu : More Police Chases Equal More Deaths" »

Police chases very often end in tragic results. Our Atlanta attorneys have handled many such cases in Georgia which have resulted in the loss of innocent lives while law enforcement officers chased suspects for minor offenses.

Despite the carnage which these chases cause and the pain and grief inflicted upon innocent victims, lawmakers continue to make it more difficult for innocent victims to receive compensation for losses. These restrictions also have the effect of making it easier for law enforcement officers to engage in dangerous chases knowing that they will not be held responsible for reckless actions.

In fact, these chases have become TV entertainment with the advent of cameras in law enforcement cruisers. These TV shows almost always show dangerous chases in which the criminals are caught. What they do not show are the many chases which result in death and injury to innocent victims.

California is known for the frequency of law enforcement chases. This morning, the Los Angeles Times is reporting the death of an innocent 6 year old child as the result of a chase. Los Angeles Police Chief Charlie Beck called the death of a 6-year-old girl who was pinned against a wall at the end of a short police pursuit "an extremely tragic incident."

The accident occurred Thursday evening at the end of a two-minute pursuit by the Los Angeles Police Department. The car police were chasing turned onto a residential street and slammed into the girl as she was playing with other children near her home.

In the neighborhood, residents questioned why the police engaged in a pursuit on a relatively narrow residential street where it is well known that kids often play.
These are the same questions which lawmakers and policy makers within law enforcement need to asking themselves. Unfortunately, these questions will not be asked until it is too late for innocent citizens.

Under the FTCA, a plaintiff must first submit an administrative claim to the responsible federal agency prior to the initiation of a lawsuit. The courts have held that the filing of such a claim is a jurisdictional requirement meaning that before the United States government can be sued, a written claim must first be made to the responsible federal agency which the claimant contends is liable for their damages. Many federal agencies have their own regulations governing the filing of such claims but in most cases they are identical to regulations issued by the United States Department of Justice. The usual standard Form 95 Claim Form is that which should be used. It can be located via a Google search and sets forth what information should be provided to the government when a claim is filed.

The time for filing an administrative claim is two (2) years from the date of the accident. Once the administrative claim is filed, the plaintiff must wait for the agency to reject the claim or allow six (6) months to pass before filing suit. The passage of six (6) months without agency rejection may be treated as a denial under the law. In the event that a lawsuit is initiated before the filing of an administrative claim or before the rejection period has expired, the lawsuit can be dismissed for lack of jurisdiction.

Once an agency’s six (6) month rejection period has expired, suit must be brought within a subsequent six (6) month interval or if the agency actively rejects the claim an action must be commenced within six (6) months of the date of the agency’s rejection letter. If a suit is brought more that six (6) months after an agency’s denial of the claim, it could be potentially barred by the statute of limitations.

A key point here is that the submission of administrative claims are absolutely mandatory. The fact that the United States is aware of a potential claim does not in anyway relieve the claimant of his/her burden of filing the claim with the appropriate federal agency involved. Send the Form 95 to the agency responsible for the tort and to its local office and make sure you get confirmation of receipt of the claim via certified mail to be safe. Again, this is a requirement which must be observed if one’s rights are to be protected.

Many Georgia drivers can expect to receive recall notices for vehicles manufactured by General Motors Corp., due to a dangerous defect which can cause the vehicle to catch on fire. In one of the largest recalls of the year, General Motors announced Tuesday that it was recalling almost 1.5 million vehicles because it cannot fix a defect in the system that squirts heated cleaning fluid on the windshield.

The recall covers many vehicles manufactured during the 2006 to 2009 model year. Since GM is unable to offer a fix for the defect, it will disable the heating mechanism and pay each owner $100 per vehicle.

It is estimated that the recall will force GM to pay out as much as $150 million.

The malfunction has not caused any known injuries or crashes but, according to the National Highway Traffic Safety Administration, the potential for a fire is very high.

GM announced that almost 1.4 million of the vehicles are in the United States, and the rest are in Canada and Mexico. The models included in the recall are the 2006-2009 model year Buick Enclave; Cadillac CTS; 2007-2009 model year Cadillac Escalade, Escalade ESV, Escalade EXT; Chevrolet Avalanche, Silverado, Suburban, Tahoe; GMC Acadia, Sierra, Yukon, Yukon XL; Saturn Outlook; and 2009 model year Chevrolet Traverse.

The same system was recalled two years ago because of a short circuit on the printed circuit board caused the control circuit ground wire to overheat. At the time, dealers installed in in-line fuse and heated washer module wiring. But, there were still reports of overheating incidents including five fires.

Clarence Ditlow, executive director of the Center for Auto Safety, said the move by General Motors represented both the speed and willingness of large automakers to make amends with the public after the recent public relations disaster experience by Toyota over a large series of recalls and quality issues.

Atlanta, and other metropolitan areas in the state of Georgia have seen a rapid expansion in the numbers of same-day surgery centers. Yesterday, the Journal of the American Medical Association published an article suggesting that lack of infection practices are common in the nations more than 5000 outpatient surgery centers.

The study was prompted by a hepatitis C outbreak in Las Vegas. This outbreak was caused by unsafe injection practices at two outpatient surgery centers.

Failure to wash hands, wear gloves and clean blood glucose meters were among the reported problems found by the study. The study also found that many outpatient centers reuse devices meant to be used only by one person or dipped into single dose medicine vials for multiple patients.

In the study, state inspectors visited 68 outpatient surgery centers in Maryland, North Carolina and Oklahoma. At each site, the inspectors followed at least one patient through the entire stay. The inspections were not announced ahead of time.

The study revealed that 67% of the centers have at least one lapse in infection control and 57% were cited for deficiencies. A few of the centers in the study had not been inspected in 12 years. Under current regulations, state agencies have the main responsibility for making sure the centers comply with federal standards.

In the Nevada outbreak, 63,000 patients were notified that they may have been exposed to blood borne diseases. Nine cases of hepatitis C were linked to the clinics and it is suspected that another hundred cases may also be related.

As a result of the study, United States Health and Human Services Secretary Kathleen Sebelius announced that her department will be expanding its hospital infection control action plan to include ambulatory surgical centers and dialysis centers.

When it comes to torts committed by the government and/or its employees, the beginning and ending place for any analysis is the Federal Tort Claims Act (FTCA). See 28 U.S.C. § 1346. The Federal Tort Claims Act provides a limited waiver of sovereign immunity and allows for money damages against the government for damages, loss of property, personal injury or death. In order to recover under the FTCA, one must show that the damages claimed resulted from a wrongful or negligent act of a government employee acting within the scope of his employment under circumstances where the United States, if a private person, would be liable to the injured person in accordance with the law of the place where the act or omission occurred. See 28 U.S.C. § 1346(b). As we will address in subsequent entries on this subject, there are potential land minds for those who would seek to recover under the Federal Tort Claims Act but who are not familiar with its provisions. The purpose of these blogs therefore will be to provide some general guidance as to how one should go about perfecting a tort claim against the United States of America. In future blogs, we will address the key steps that must be taken in order to do so.

Under Georgia law, a sheriff and only a sheriff is vicariously liable for the negligent acts of his or her deputies. A county sheriff employs the deputy and the deputy reports to the sheriff. Thus, if a deputy sheriff is negligent, the sheriff is liable not the County. Notwithstanding this legal liability, however, there is a confusing element of Georgia law when it comes to perfecting claims against sheriffs and their deputies.

While the law is somewhat ambiguous in this regard and in many ways unsettled, anyone that has a claim against a sheriff or deputy sheriff should consider serving an ante-litem notice upon the county where the sheriff’s office exists. Under O.C.G.A. § 36-11-1, there is a provision which specifies that counties should be served with ante-litem notices for claims against counties. Again, a county cannot be vicariously liable for the acts of a deputy sheriff. Nonetheless, until the law is properly resolved, the more prudent approach for the time being would be to file an ante-litem notice with the county and the sheriff’s office if someone has a claim against a deputy sheriff based on allegations of negligence and damage caused thereby.

The county ante-litem notice provides that written notice of claim must be served on a county within twelve (12) months of the date of an occurrence. Thus, even though the statute of limitation for a personal injury claim in Georgia is two (2) years, in reality, if one has a claim against a county, one should assert it out of an abundance of caution within twelve (12) months even if the claim is against a sheriff or a deputy sheriff. Again, the law is somewhat unsettled in this regard although many defense attorneys would contend that it is absolutely settled and that such notice is required. A more prudent and cautious approach for practitioners is to serve an ante-litem notice on both the sheriff and the county where the sheriff is employed so as to preserve all legal rights. This needs to be done until the law is completely clarified and until there is no ambiguity one way or another on the question.

In a case involving serious injuries which threaten to impair or impede altogether one’s ability to be gainfully employed, a Functional Capacity Evaluation can be critical in helping to establish the extent of the disability. Functional Capacity Evaluations are performed according to objective criteria which have been proven to be reliable in determining the extent of job related restrictions and limitations. If a client submits to a Functional Capacity Evaluation and is proven by such objective criteria to have limited abilities, such evidence can be critical in helping to convince a jury of the legitimacy of the claim. This can be extremely important in cases where someone complains of neck or back pain, for example. It is often difficult for a jury to understand the degree to which someone is suffering from neck or back pain. Such claims can be embellished or magnified, but a Functional Capacity Evaluation performed by a competent practitioner can weed out claims of embellishment and malingering because the test as designed can detect such claims as opposed to legitimate claims.

In a case where someone has a legitimate back or neck injury and they are truly restricted in their activities, a Functional Capacity Evaluation can help to establish the extent of the restrictions and limitations and can help prove the degree to which the pain caused by the neck or back injury is limiting the victim’s ability to engage in gainful activity. If a client cannot work, for example, and is reduced to sedentary activities, this can be demonstrated on a Functional Capacity Evaluation.

We recommend to our seriously injured clients in many contexts that they voluntarily submit to a Functional Capacity Evaluation. Because such tests are based on objective criteria, when a client is truly seriously injured a Functional Capacity Evaluation will confirm or corroborate claims of serious bodily injury.

There are several popular medications used by those who suffer from asthma which have an increased market share presence. These include Serevent, Advair and Foradel. All these medications use inhalation powders containing long acting beta agonists, commonly known as “LABA.” Beginning as early as November of 2005, the Food and Drug Administration issued a public health advisory concerning these three drugs informing doctors and patients that the use of these products could increase one’s risk of developing severe asthma and/or possibly having a fatal reaction. This safety bulletin was updated in February of this year based on the FDA’s review of studies showing an increased risk of exacerbation of asthma related symptoms. The studies showed that “LABAs” used in the treatment of asthma could be safe but the use of which was nonetheless contraindicated without the use of an asthma controller medication such as an inhaled corticosteroid. In short, the clinical studies showed that if “LABAs” were used by themselves and not in conjunction with inhalers, long term patients using “LABAs” could be at increased risks of developing severe asthma and/or possibly having even more complications which could lead to death. Regrettably, a study issued in May of this year indicates that nearly one-third (1/3) of asthma patients continue to use “LABAs” alone and not in combination with other control medications. In short, despite years of warnings from the Food and Drug Administration going back to 2005, patients are continuing to use these products by themselves and not in conjunction with inhalers which increase the risk of severe asthma episodes and/or the possibility of death.

Some FDA Advisory Panel members have advocated that “LABA” products be withdrawn from the market because of their increased risks for children in particular. Whether a product liability case exists in this context, obviously is a factually specific inquiry but for the time being, those who suffer from asthma should their use of these medications closely and follow all of the safety advice provided by the Food and Drug Administration.

A very common issue is a serious injury case is whether there exists any vicarious liability of a third party. If a truck driver runs into a motorist stopped at a stop sign and seriously injures them the question is whether the truck driver alone can be sued and/or their employer. Under longstanding legal principles, an employer is vicariously liable for the acts of the employee. As long as the employee was acting within the scope of his employment at the time of the incident and injures the innocent third party, the employer will be vicariously liable for the damages caused by such negligent acts even if the employer did not approve of the acts and/or had company policies prohibiting such negligent behavior. The reason is because an employer is by definition responsible for the acts of employees acting within the scope of their employment.

In a serious injury case, the insurance carrier for the employer is likely to contend that the employee was not acting within the scope of their employment. If vicarious liability can be contested, the company can try to contend that there is no legal liability for the victim’s claims. Usually this is a defense used by the insurance carrier defending a company which is trying to avoid paying the claim. Even if the claim is legitimate and even if the victim is extremely injured and/or killed, in many cases, if the company’s insurance carrier can avoid liability by denying vicarious liability they will do so. Again, this issue turns on whether the employee, at the time of the act which caused the injury was acting within the scope of his/her employment.

Anytime there is an issue concerning vicarious liability, and if the case involves a serious injury, obviously, counsel should be retained as soon as possible. The victim’s rights need to be protected through an adequate investigation of these claims in order to establish vicarious liability. If it can be established that a particular employee was acting within the scope of their employment, then the victim’s rights can be protected by suing not only the negligent employee but also their employer. As this has obvious implications on the company’s insurance coverage, the extent of the coverage and the amount of the coverage available to satisfy the claim, any person with a serious injury involving possible third party liability should confer with experienced counsel as soon as is practicable to address this issue.

Many Georgia homes and apartments contain dishwashers manufactured by Whirlpool Corporation. Today the Consumer Product Safety Commission and Whirlpool’s Maytag unit announced a recall of almost 1.7 million dishwashers because of a fire hazard.

The Consumer Product Safety Commission, which announced the recall says the company has received 12 reports of electrical failures in the dishwasher heating element that led to fires and damage.

One kitchen fire caused extensive damage, according to the CPSC but no injuries have been reported.

The recall includes Maytag, Amana, Jenn-Air, Admiral, Magic Chef, Performa by Maytag and Crosley brand dishwashers with plastic tubs. The recalled dishwashers were made with black, bisque, white, silver and stainless steel front panels and sold at department and appliance stores nationwide from February 2006 through April 2010. They cost between $250 and $900. Specific serial numbers can be found at http://www.cpsc.gov/cpscpub/prerel/prhtml10/10255.html.

The CPSC advises that consumers immediately stop using the recalled dishwashers and disconnect the electric supply by shutting off the fuse or circuit breaker controlling it.

Consumers can schedule a free in-home repair or receive a rebate of $150 or $250 toward the purchase of select new Maytag dishwashers. The amount of the rebate depends on the type of model to be purchased.

The recall is Maytag's second of more than a million major appliances in a little more than a year. It recalled 1.6 million refrigerators because of fire risks in March 2009.