Georgia Injury Lawyer Blog

The Dram shop theory of liability is a legal doctrine which essentially holds that restaurants and lounges who serve noticeably intoxicated patrons with alcoholic beverages knowing that they are soon to drive can be held liable to third parties who are injured by such drunk drivers. Drunk driving is a major problem in this country and those vendors, including specifically restaurants and lounges, who serve visibly intoxicated patrons should be held legally liable for the damages inflicted by their customers. Responsible restaurant chains and lounges train their staff not to serve those who are noticeably intoxicated. Such establishments also train their staff never to serve those they know will soon be driving if they appear to be intoxicated from having consumed alcoholic beverages. Obviously, for such a policy to have any effect, the staff of these establishments must be sufficiently trained to recognize the signs and symptoms of someone becoming intoxicated.

Over the years, our firm has handled many cases involving Dram shop claims. These cases typically involve wrongful death actions where the drunk patron left the restaurant or lounge and ran over and killed someone on the way home, either by running over a pedestrian or colliding with a vehicle by running a red light or otherwise. In order to win these cases and help the family or the victim, who sometimes may be paralyzed or suffer a traumatic amputation or some other serious personal injury, it is necessary that there be a full, complete and immediate investigation to prove that the patron/drunk driver was noticeably intoxicated and that the establishment knew or had reason to know that there customer would soon be driving after having become noticeably intoxicated. Like any other serious legal claim, it is imperative that such investigation be conducted while the facts are fresh otherwise this type of claim can be lost due to a lack of available evidence.

Tire failures have caused the death or serious injury of many motorists in Georgia and across the nation over the years. There are many causes of tire failure but the Georgia injury lawyers at Finch McCranie, LLP know that one of the most common causes for tire failure is heat buildup. Heat buildup, especially in truck tires, usually results from under-inflation, overloading, high speed operation or a combination of these factors. A recent study by The National Highway Transportation Safety Administration (NHTSA) demonstrated that the top two types of damage for tire debris fragments found on the roadside were: road hazard (39%) and excessive heat (30%). Sometimes, tire failures occur because the tires being sold and used on a particular vehicle are not suitable for that vehicle or application.

Goodyear has faced numerous claims resulting from tire failures and vehicle accidents, many resulting in serious injury and death. As an example, Goodyear marketed their G159 tire to the RV industry for nearly a decade in the 1990's and 2000's, even though Goodyear knew it was dangerous to use that particular tire on those vehicles. The tire, originally designed for urban delivery trucks was speed rated for only 65 miles per hour, continuous use; however; in 1998 Goodyear increased the speed rating to 75 miles per hour, even though the tire design was prone to overheat on RV’s that typically travel at those speeds for extended periods. There are no doubt still plenty of Goodyear G159 tires in use on RV’s throughout the country which could fail causing catastrophic injuries. If you are a consumer and considering the purchase of replacement tires, it is crucial to make sure that the tires under consideration are matched to the vehicle or trailer that you intend to use them on.

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We have read in the Atlanta newspapers this week about the tragic death of three people who died in a house fire in Palmetto, Georgia, which according to news reports was started by “an oxygen generating device that malfunctioned.” Although the news articles do not provide sufficient information to determine how this was concluded, the spokesperson quoted was from the State Insurance and Safety Fire Commissioner’s Office. It appears, therefore, that the tragic fire which resulted in the three wrongful deaths was caused by a malfunctioning product, which shorted out somehow and caused the blaze resulting in these three tragic deaths.

Our firm in the past has handled a similar wrongful death case where a young boy died in a house fire also caused by a malfunctioning product. In that case, the product was also an oxygen generating device that had malfunctioned due to a short in it. The device caught fire and the young boy could not escape his room before being killed. In that particular case, the young boy also suffered from disabilities which made it difficult for him to escape the fire once it started. (As we read the article currently being circulated in the Atlanta area, at least one, if not more, of the three people killed in the fire which occurred in Palmetto, Georgia were also apparently disabled.)

These cases are very difficult to prove because many times the fire destroys the evidence. It appears that the Insurance and Safety Fire Commissioner’s Office did a good investigation of this case because they may have preserved the malfunctioning unit. In the referenced case we handled, the malfunctioning unit was not fully preserved but enough parts of it were such that they could be examined by experts. In that case, it turned out that the product was known to malfunction by the manufacturer and had actually been recalled some several months before the incident due to its dangerous propensities.

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Georgia has an “equitable apportionment” statute which essentially states that either parent of a deceased child, when divorced, separated or living apart, may file a lawsuit for the wrongful death of their child, notwithstanding the divorce or separation. In such a case, the parent that brings the wrongful death case does so in a fiduciary capacity proceeding not only on their on behalf but also on behalf of the divorced/separated spouse who obviously also has a legal interest in the death of their child.

Where divorced parents get along well even after the divorce, they may sue jointly. The difficulty comes where the parents do not get along and one proceeds before the other. Sometimes the other parent has to move to intervene in a lawsuit to protect their interests because they do not trust their spouse. Under Georgia law, even in such cases where neither spouse trusts the other, the fact is that the law provides that one spouse that proceeds in a divorce/separation situation for the wrongful death of a child, nonetheless, proceeds jointly on behalf of their divorces spouse.

In the event there is a recovery for the wrongful death of a child in the situation where the parents are divorced, the law provides for an “equitable apportionment” of any recovery between the divorced parents. A court will decide who gave the most child support, on whom did the child depend for support and issues of a similar nature in determining which parent equitably should receive the largest portion of the wrongful death award, if any. If a parent has abandoned their child, paid no child support, had nothing to do with the child, most courts would not award such a parent anything from the recovery although the court would be authorized to award whatever it deemed to be in the interest of justice based on the facts and circumstances. In most cases the courts would probably plan to divide the proceeds on a 50/50 basis unless there was clear evidence that one spouse had abandoned the child, was abusive to the child, did not pay child support or was not involved in the child’s life. In such circumstances, the spouse that did the most for the child and was the closest to the child would probably receive most, if not all of the award although, once again, the court would be required to equitably apportion the damages based on its own assessment of the equities involved.

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In Georgia, as a general rule, punitive damages are not allowed in a wrongful death action. Commentary in various legal decisions have indicated that because damages in a wrongful death are somewhat punitive by nature that an award of additional punitive damages would be inappropriate. While punitive damages may not be collected in a wrongful death action per se, nonetheless, because of the unique provisions of Georgia law which confer upon the personal representative the right to bring a claim for property damage and/or any conscious pain and suffering experienced by the decedent prior to death, where there is evidence of either property damage or conscious pain and suffering prior to death, punitive damages may be awarded.

In any wrongful death case where the decedent has experienced conscious pain and suffering counsel should have a personal representative appointed not only to seek compensation for such conscious pain and suffering but also for burial, funeral and related medical expenses. If the circumstances of the case warrant it, punitive damages may be recovered if aggravating circumstances are involved in the underlying liability claim. For example, if a drunk driver kills someone, obviously, punitive damages would be appropriate in such a case. However, under Georgia law, unless the decedent experienced conscious pain and suffering prior to death or there was property damage suffered by the decedent, a claim for punitive damages may not be brought by the personal representative. Again, such a claim can only be brought by the personal representative and cannot be brought by the heir-at-law in the wrongful death claim but only in the estate’s claim for the specified damages.

In a wrongful death action, as indicated in other entries, juries in Georgia are permitted to award both economic and non-economic damages for the “full value of the life of the decedent.” We have written before about the intangible elements of the non-economic damages and the calculations that one would argue to a jury that would be appropriate in establishing lost wages over the earning lifetime of the decedent.

In calculating damages for the full value of the life of the decedent, obviously, every case is different as every individual is unique. You may have a high wage earner, you may have a housewife or child, or an elderly person. The facts in each case are different. However, once the jury decides what fair compensation should be awarded for the non-economic components of the claim, then the jury may calculate the economic damages to come up with a total award. One point to be made here is that only economic damages can be reduced to their present cash value because the money is being awarded today as opposed to having to wait over the expected lifetime of the decedent to recover the same. Non-economic damages, or the intangible elements of a wrongful death claim, however, are never reduced to present cash value.

As indicated in other entries, when a jury awards an amount for the full value of the life of the decedent, it must do so “without deduction of any necessary or other expenses, had he or she lived.” While a jury will be instructed to reduce economic damages to their present cash value again, in most wrongful death claims, the non-economic component of the claim, that being the intangible aspect of the loss of life from the standpoint of the decedent, is the more valuable claim, which hopefully will provide fair compensation for the survivors bring the claim. Counsel must educate the jury that non-economic damages should never be reduced to their present cash value in calculating damages in a wrongful death case.

Georgia injury lawyers have seen many serious automobile accidents, tractor-trailer accidents and motorcycle accidents caused by foreign objects and road debris on Georgia highways. Not a week goes by that we do not see a significant amount of road debris laying in the middle of Atlanta highways. Just last week a 19 year old girl was killed in Tifton, Georgia when she collided with a tractor-trailer. Both vehicles were heading south on Interstate 75 when the girl swerved to avoid a piece of rubber in the roadway. After running off the roadway, she apparently over-corrected, came back onto the roadway and struck the tractor-trailer rig.

In October of 2008, a woman, trying to avoid road debris, died instantly in a single car crash. The accident happened at about 7:30 a.m. in the westbound lane of Interstate 285 in north Atlanta, Georgia. The victim tried to avoid a truck bed-liner in the highway when she hit a median wall.

In July of 2010, a Canadian woman died when a brake drum broke free from a large commercial truck was struck by the wheel of a tractor trailer and thrown into the air and through the woman’s windshield, striking her in the head.

On June 30, 2010, a Florida woman was killed after a portion of a portable toilet crashed through her car’s windshield. The two portable toilets fail from the trailer of a pickup truck. When they hit the ground and broke apart, a portion of one of them crashed through the woman’s windshield striking her. As a result, the woman veered off the road and crashed into a tree.

There are ever increasing numbers of these accidents which are claiming the lives of many motorists. Failure to secure a load being transported by car, tractor-trailer or any other vehicle is negligence for which you may be liable in damages. Trying to identify the person or corporation responsible for foreign objects being in the roadway is not always very easy.

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Under Georgia law, there is a statutory Annuity Mortality Table which was passed into law in 1949. This table is commonly referred to by Georgia lawyers as “The Annuity Mortality Table 1949 Ultimate.” The figures in this table have been used for years in wrongful death actions and are still relied upon by juries today in assessing damages. Essentially, the Mortality Table shows that if a person has lived to a certain age that it is likely they will live a certain additional number of years based on Annuity Mortality studies which resulted in the statutory Tables. For example, someone who has lived to age 40 will live an approximate say 35.15 more years if he is a male and 40.11 years if she is a female. In other words, the table sets forth the life expectancy of the decedent. These tables can be effectively used in a wrongful death action in establishing the “full value of the life” of the decedent, not only with respect to economic damages but also non-economic damages. With respect to economic damages, if it is established, for example, under the terms of the Annuity Mortality Table, that the decedent would have worked an additional 25 years (up until age 70) before he or she retired and then an additional 10 years based on their life expectancy, then counsel may argue that the jury should award 25 years of earnings at an average rate of what the decedent showed they were capable of earning, the same 25 years for “non-economic damages” (enjoyment of life) plus an additional 10 years while living in retirement for the “non-economic damages” suffered by the decedent. While counsel are not restricted to using an Annuity Mortality Table in any case, and can utilize the services of an economist who can extrapolate such figures from the evidence introduced at trial, nonetheless, the Annuity Mortality Table 1949 Ultimate is a good piece of evidence to use in Georgia to help the jury understand the magnitude of a wrongful death claim and how they should go about calculating damages projected over many years.

Life expectancy as shown by the Mortality Tables is merely an estimate of the average remaining life of anyone in Georgia. Such tables while not binding on a jury are nonetheless useful guides in helping to demonstrate the likely life expectancy of the decedent. While such figures are obviously not relevant if the decedent was suffering from cancer, for example, or had a family history of heart disease or diabetes or other diseases which could shorten the life expectancy, for someone who dies with no serious health consequences, the Annuity Mortality Table 1949 Ultimate is a significant piece of evidence which can be used by experienced counsel in demonstrating the extent of one’s economic and non-economic damages in a wrongful death case in Georgia.

Obviously, the heartache, trauma and tragedy of losing a child is unspeakable. And yet, as set forth in prior entries, the measure of damages under Georgia law is not from the standpoint of the parents who sustained the loss of a child but rather from the standpoint of the child who lost their life. This can be difficult for any lawyer to prove because a child does not have proven earning’s records nor is the child’s future easily predicted. Typically, because parents who lose children may have other children or may be capable of bearing children in the future, even though the jury will be instructed that the measure of damages is from the standpoint of the decedent, juries may tend to factor into their damage analysis the fact that the parent’s loss may be offset by other practical considerations. This too is a challenge in any wrongful death case involving a young child with young parents.

There is no necessity that a plaintiff prove a child’s earning capacity in order to recover for future economic damages. A jury may look at the education and background of the parents in making determinations about the child’s probable income producing abilities. As an example, counsel could argue what the average wage earner in the United States earns through their lifetime and could argue that increased damages should be due to the heirs-at-law because of the income earning potential demonstrated through parents, siblings or other relatives. It is a challenge to prove the full value of the life of a minor child with no proven earning capacity but nonetheless, the jury is not bound by any fixed criteria in arriving at a fair and impartial verdict that awards compensation for the “full value of the life of the decedent.” Each life is unique and a child is no different. While there might not be as much available evidence to demonstrate the loss of economic damages, the jury will be instructed that even with respect to the death of child, the jury should consider both economic and non-economic damages in determining the “full value of the life of the decedent.”

Whether on a pontoon boat, bass boat, ski boat or jet ski, recreational boating is a popular activity enjoyed by millions of Georgians. However, according to the United States Coast Guard, boat accidents and boating related injuries are on the rise in lakes, rivers, and coastal waterways with over 5,000 accidents occurring each year, nationwide. The U. S. Coast Guard keeps and publishes statistics on the various causes of boating accidents. Tracking data from 2006 - 2007, the Coast Guard reported in the 2007 Recreational Boating Safety Statistics that operator inattention, careless/reckless operation, passenger/skier behavior, excessive speed, and alcohol use rank as the top five primary contributing factors in accidents. Alcohol use is the leading contributing factor in fatal boating accidents; it was listed as the leading factor in 21% of the deaths.

A boat operator and the boats owner must exercise the highest degree of care to prevent injuries to passengers, swimmers and others in the nearby water and those in any boats around them. In addition to the Atlantic Ocean, Georgia has numerous recreational bodies of water. In addition to the Chattahoochee and many other Georgia rivers, there are numerous lakes where boaters congregate: Lake Lanier, Lake Sinclair, Lake Oconee, West Point Lake and others. Our main office is located in Atlanta which is not far from any of these lakes. As a result, we have seen more than our share of boating accidents and boat related deaths. If you or a loved one have been injured in a boating accident, call the Georgia injury lawyers at Finch McCranie, LLP.

One would think that under Georgia law, the same person or persons who has the right to bring a wrongful death case would also have a right to seek compensation for funeral, medical and other expenses pertaining to the wrongful death. And yet, under the unique provisions of Georgia law, this is not the case. Under O.C.G.A. § 51-4-5, it is the personal representative of the decedent who has the right to recover medical and funeral expenses. Typically, therefore, it is necessary to have someone appointed as the personal representative of the decedent’s estate to bring such a claim. In a situation where a child dies, because the parents are legally liable for such expenses, there is no need to set up an estate per se although this can be done.

As we have written in prior entries, Georgia law sets forth who may bring a wrongful death action. Regardless of who that individual is, only the personal representative of the decedent’s estate (except where children are involved) has the right to bring a cause of action for funeral and related medical expenses pertaining to the wrongful death. Thus, under Georgia law, there is a bifurcated claim in most wrongful death cases. The surviving spouse, children or parents may bring the claim for the “full value of the life of the decedent,” whereas only the personal representative may bring a claim for funeral and related medical expenses. Thus, in the typical wrongful death case in Georgia, there are two claims brought; one for the full value of the life of the decedent and the other for medical and funeral expenses pertaining to the wrongful death. In such situations, the plaintiff may be the same person that is the representative of the estate (such as a wife, as an example) or there may be two different individuals involved. Under the unique provisions of Georgia law, the simple fact is that causes of action are divided: there is a wrongful death claim for the full value of the life of the decedent and there is a separate claim which must be brought by the personal representative of the deceased to recover any medical expense attendant to the death and for reimbursement of funeral and burial expenses. In addition, if there was any conscious pre-death pain and suffering experienced by the decedent prior to death, that claim too belongs to the personal representative of the decedent, not to the statutory heirs-at-law, who have the wrongful death claim.

Brake system care of golf carts is very important. Golf carts can be just as lethal as automobiles if not operated and maintained properly. When used carelessly, a golf cart can kill or severely injure the driver and passengers, innocent bystanders, or it can cause significant property damage. There are a number of things that can be wrong with golf cart brakes to create these types of situations.

Most all golf carts employ cable activated rear wheel brakes only. In recent years, hydraulic brakes and 4-wheel cable activated brake systems are becoming more common, as golf carts take on more diverse applications off the golf course; however, these systems are less common. Cable activated brake systems must be properly inspected and maintained on golf carts. Negligent maintenance can result in total and unexpected brake failure. Cable activated systems have three primary drawbacks. 1) The multi-stranded cables can start to break and unravel, sometimes inside the housing so that it is hard to see damage in progress; 2) The cables themselves are often located immediately under the battery compartment in electric vehicles, thus they are subject to the problems of improper battery maintenance. Acid-dripping batteries can contaminate and start to corrode the cable strands. Coupled with the natural water spray and corrosive golf course fertilizers, the cables really take a beating and may be subject to sudden and unexpected failure; and 3) The cables hang below the chassis and they are vulnerable to snagging stumps, rocks, and any other protruding obstacles they encounter.

A proper and systematic inspection of a golf cart will reveal most of these problems before there is a catastrophic event. If the cables are rusted, kinked, have broken housings, or just look suspicious in any way, shape or form, they should be replaced immediately. Failure to properly inspect and maintain a golf cart may subject the owner to liability for injuries in the event of a golf cart crash.

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If a person is injured or killed as a result of the negligent operation of a boat or as a result of a boat engine manufacturing or design defect, under Georgia law, the injured person or the family of those killed, may have the right to seek compensation and other forms of redress in a suit against the operator, seller or manufacturer of the boat.

The United States Coast Guard (USCG) estimates that in an average year, approximately 200 to 250 non-fatal injuries and an additional 25-35 deaths are reported as a result of a person being struck by the propellor and/or propulsion unit of a boat.

These cases are not as unusual as one might think. In one memorable case handled by the Georgia injury lawyers at Finch McCranie, LLP, our client was seriously injured when his outboard engine suddenly jumped from neutral into forward gear resulting in his being struck by the propellor. After notifying the manufacturer of the engine of the accident, they sent one of their experts to inspect the boat. At the time of the inspection, the boat was in the water; however, it was being supported by an overhead crane. While videotaping their expert’s inspection of the boat, we were able to document the defect when the boat, suddenly and without warning, jumped from neutral into forward gear on its own almost throwing the manufacturer’s expert into the water. In that case, the manufacturer had utilized a defective gearbox part which, when worn, allowed the boat to jump into forward gear.

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In Georgia, under the provisions of O.C.G.A. § 51-4-1 and 2, the measure of damages in a wrongful death action is “full value of the life of the decedent as shown by the evidence, without deducting for any of the necessary or personal expenses of the decedent had he lived.” The full value of the life of the decedent includes not only all economic damages sustained by the decedent such as lost wages, but also non-economic damages such as the enjoyment of life. Peculiar to Georgia law, the measure of damages is from the standpoint of the decedent. What did the decedent lose? Obviously, if someone was married and employed at the time of death, they lost the society and affection of their wife and children and the enjoyment of their career. By looking at the damage question from the standpoint of the decedent, the jury is not allowed to look at the sympathy and bereavement of the surviving heirs, but must view the evidence from the standpoint of what the decedent lost when their life was wrongfully taken from them by the negligence of the third party who has been sued for their wrongful death.

With respect to non-economic damages, obviously, this is a very broad term which includes not only enjoyment of life but also advice, assistance, care, companionship, counsel, and loving services. These are the “non-economic” portions of the damage caused by the wrongful death which when coupled with the economic damages (typically the amount of money lost by the wrongful death), total the “full value of the life of the decedent.”

Obviously, in proving damages in a wrongful death case, it is important that counsel prove that the decedent’s life had more value apart from their own economic producing potential. Typically, the largest component of a wrongful death claim involves the non-economic damages. Many people who are extremely gifted may not be high wage earners and yet the full value of their life may be greater than the life of a high wage earner. People like poets, artists, musicians, and some retirees may have a much fuller life than younger people but in any case, under Georgia law, the unique provisions of the law are such that a jury must determine the “full value” of the life of the decedent from the standing point of the decedent involved in the case. By making allowances for both economic and non-economic portions of the damages, the jury is given wide latitude in determining what compensation would be fair and reasonable under the circumstances of any given case where a wrongful death has occurred.

Golf cart accidents are caused by any number of factors, including, the negligent or reckless operation of the cart and negligent failure to inspect and maintain the cart, especially the brake system. The number of reported golf cart accidents is continuing on the rise, which raises the public concern about golf cart safety. With the advent to faster golf carts and the practice of using golf carts in “off course” locations such as in airports, on school campuses or even city streets, more accidents are prone to happen. One of the more common golf cart accidents involves passenger ejection. This usually happens when the driver makes a hard left turn causing the passenger to be ejected from the right hand side of the cart. Golf cart seatbelts are not mandatory and therefor they are rarely present
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Roll-overs are another typical accident associated with golf cart usage. These tend to happen on slick and/or hilly terrain, especially if your cart has a sub-par braking system. For instance, if your cart has only a front or rear wheel braking system and you attempt to slam on your brakes when driving full speed down a steep grade, your brakes may not be able to slow your acceleration, which in turn would cause you to fishtail out of control with the possibility of rolling over if you make any sharp turns. If your cart has only rear-wheel brakes and one of the rear wheels comes off the ground or fails to make good contact with the ground, you have very limited, if any braking ability.

Continue reading "Golf Cart Accidents Happen More Often Than You Might Think" »

A woman was reportedly seriously injured in Gainesville, Georgia on Friday evening when the brakes on a golf cart failed while going down a hill at a private political fund-raising event. WSBTV.com reported that the golf cart was shuttling people to a home in the Harbour Point subdivision when it’s brakes failed and the cart overturned.

Although no details about the failure have been reported, a thorough inspection of the golf cart is in order to determine why the accident occurred. Had the cart been properly maintained? Was there a defective part involved or was there a design defect?

Having litigated numerous serious injury and wrongful death cases over the years, the Georgia injury lawyers at Finch McCranie, LLP know that in any case where there has been a mechanical failure, it is absolutely crucial that the evidence be preserved and that the evidence be inspected as soon as possible by an engineer or any other expert qualified to document and evaluate such a failure.

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The status of the decedent by in large determines who has the right to sue in a wrongful death case. Where someone is killed through the negligent acts of a third party, such as a truck driver or product manufacturer, Georgia law proscribes who has the right to sue such a cause of action. If the person is married at the time of his or her death, the surviving spouse has the right to bring a cause of action for the wrongful death of the decedent. If the decedent is not survived by a spouse, but is survived by children, then the decedent’s children have the cause of action. If the decedent dies without any spouse or children, then the decedent’s parents have the cause of action. If the decedent dies with no surviving spouse, children or parent, then in that event, the administrator of the decedent’s estate has the cause of action and may bring it for the benefit of any remaining relatives. In short, under Georgia law, there is a hierarchy of those who are allowed to bring wrongful death cases but someone is always authorized under the law to bring such a case where the decedent’s death was caused by the negligent acts of a third party.

At our firm we have handled many different wrongful death cases for all of the above categories. We have represented widows, widowers, parents, children and estate representatives. In those cases where the cause of action is vested with a surviving spouse, to the extent the decedent was also survived by children, the spouse proceeds in a fiduciary capacity. In the event of a recovery, the spouse has to divide the recovery with remaining children, but in no event will the spouse receive less than one-third (1/3) of the recovery regardless of the number of children. In short, if there are multiple children, the spouse will receive one-third (1/3) and the children will divide equally the remaining two-thirds (2/3) of any such recovery.

It is important that counsel determine whether a potential client is vested with a cause of action in considering whether a wrongful death case exists. We have been approached many times by siblings, ex-spouses, step-children and the like in situations where there is no valid cause of action that may be brought y the person involved. In Georgia, the law sets forth the classifications of those that are legally authorized to bring wrongful death actions. While a step-child or grandparent or other third party might, under certain circumstances, conceivably have a claim, it would only be in those circumstances where they were appointed as representative of the estate and no one else was statutorily recognized to bring the case. Again, such inquiries must be made when the case is initially being evaluated, because the law sets forth procedurally who has the right to bring the claim.

It is often said that a picture is worth a thousand words. If there is a picture of an injured individual in a hospital having recently undergone major trauma, such photographic evidence truly can be worth a thousand words in demonstrating to the jury the nature and extent of the client’s injury. As an example, if someone had a serious burn injury, one can imagine the impact of such photographic evidence. Words simply cannot describe such injuries. The same is often true of photographs of demolished cars and vehicles that have been hit by large tractor trailers and/or x-rays showing broken bones in graphic detail. X-rays showing the implantation of large screws and other orthopaedic devices also can be helpful in demonstrating the extent of a clients injuries to a jury.

In some cases, where the injuries are horrific, and there is no available photographic evidence, we have retained the services of medical illustrators who can illustrate with correct anatomical detail the nature and extent of internal injuries. For example, an injury to a brain may only be partially appreciated by demonstrating (to an untrained jury) an MRI film. While a neurosurgeon might better appreciate the significance of a brain injury by interpreting the MRI film, a medical illustration may help show the damage portions of the brain caused by the trauma. Medical illustrations are also helpful in helping the jury understand the surgical techniques involved in treating serious personal injuries.

In any serious personal injury case, demonstrative exhibits, which help to demonstrate the nature and extent of the injuries sustained by the innocent client, are always helpful aids for the jury. Whether they be photographs, illustrations, computer animations or the like, any or all of the above techniques can be used by counsel to help a jury more fully appreciate the nature and extent of a client’s injuries. The better the demonstrative aid the truer the statement that a photograph is worth a thousand words. Once the jury understands and appreciates the significance of the injury, which can be demonstrated through a good demonstrative aid, words alone are no longer necessary to convince the jury of the extent of the suffering experienced by the injured client. Such aids are very helpful in obtaining adequate compensation for the injured client and, therefore, should be used where possible.

Most members of the public do not know how so-called “tort reform” serves to undermine basic liberties when it comes to our civil judicial system. One of the best examples of this is a little known law which serves to impede access to our courts. This is the “Offer of Judgment” statute which was passed by the Republican controlled Georgia Legislature, codified at O.C.G.A. § 9-11-68. Simply stated, if you are a middle class person and you wish to litigate a civil case, if you should do so and should receive “an offer of judgment” from the person or company you sue, you could be jeopardizing your family, your career, your home and every asset you own. Do the people in Georgia really appreciate what this law means and how it could affect them in the event they ever get into a good faith civil dispute with a third party? The answer is “No” as the public by in large never knows about such laws until and unless they are directly confronted by them - and by then it is too late to do anything about it.

The offer of judgment statute provides that if a civil litigant is sent an offer of judgment by a civil defendant and they refuse to accept it then they can be held liable for the other party’s attorneys fees and expenses. As an example, let us suppose that an average citizen in Georgia has a tort claim against a huge corporation. They file a lawsuit in good faith with representation of counsel. They then receive an offer of judgment from the large corporation. The offer of judgment could be for 50% of the value of their claim. However, if the citizen does not obtain 25% more from a jury than the offer of judgment then they will be held liable for the corporation’s legal expenses. Thus, if a corporation should run up legal expenses through their expensive lawyers in the amount of $250,000.00, $500,000.00 or even a million dollars, if the citizen should obtain a judgment which is less than the offer of judgment, then they will have to pay the attorneys’ fees to the corporation even if they win their case. Obviously, this is a terrible law which was designed to force those with less resources to accept settlements less than the total value of their case. This saves big business money by way of litigation expenses and otherwise but attempts to force the small average citizen to take less than their claim may be worth, otherwise they may risk financial suicide.

In a tort case, let’s say a large trucking company severely injures an innocent victim. During the litigation the trucking company makes an offer of judgment to pay the injured individual $500,000.00 for their broken legs, arms and other bodily injuries. If a jury should return a later verdict of $295,000.00 then, in that event, the innocent injured victim will have to pay attorney’s fees to the person who injured them because they did not get a judgment more than the offer. This can happen for a variety of reasons. A member of the jury could have been extremely conservative or even affiliated somehow directly or indirectly with the trucking company. Counsel for the victim may have underestimated problems with the case, may have misvalued the case, or failed to present all available evidence. Or there simply could have been a result which was not just and which did not award the victim a greater amount due to the makeup of the jury. Under any of these scenarios, the innocent victim is further victimized by the trucking company because the victim would then have to pay the legal expenses of the trucking company, even though they won the case. The offer of judgment statute is a terrible law. It forces people to take settlements or otherwise face financial ruin if they make the wrong decision. Large corporations and large businesses can afford to run the risk because they can afford the adverse consequences whereas the average citizen cannot. This is why the law is so unfair and truly is a denial of equal protection under the laws. At present, however, the law has been upheld by our courts.

This is but a bad single example of “tort reform.” While those that passed this law may have been trying to reduce the expenses to business, nonetheless, the impact on the innocent is very severe and should not be allowed. We continue to say that tort reform in reality is tort “deform” which tilts the scales of justice decidedly in favor of big business and against the average citizen. Because the average citizen is not a “special interest group,” the special interests are able to pass these laws to protect their pocketbooks while at the same time taking away important legal rights from the average man in the street. This is not fair and is bad law. This also proves that elections are important. Citizens should vote for legislators which will protect their civil rights. Yes - we need to be sensitive to the legitimate interests of business groups - but this does not mean we should pass bad laws that favor special interest groups over average citizens.

Our firm is currently handling several serious automobile collision cases in which our innocent clients were severely and permanently injured by negligent corporations. In the accident cases I am referring to, both of our clients sustained very serious neck and back injuries resulting in numerous surgeries. Medical expenses and lost wages to date have already been substantial. However, because both of our clients are relatively young adults, the big fear is that as the clients grow older, their medical expenses and lost wages will increase. The issue is how to present such evidence to the insurance carrier in order to force them to agree to a reasonable settlement. Failing to achieve such a settlement, the issue then becomes how to demonstrate to a trial jury that the client’s expenses and pain and suffering will continue permanently over time. In short, how do you place a value on these damages? Our experience indicates that the best way to do so is by retaining the services of a Life Care expert.

A Life Care expert is trained to extrapolate from current medical data future medical costs based upon an analysis of the extent of the injury and the extent of medical treatment necessary to provide relief for it in the future. Typically, Life Care experts have training beyond that of other members of the medical profession and have focused on evaluating future medical needs whether it be future needs for rehabilitative or therapeutic services, future needs for medication, possible need for future surgery and the like. By conferring with treating physicians and by analyzing available medical evidence, a Life Care expert can prepare a plan which charts, as reasonable as possible, what is likely to occur over time given the current diagnosis and current medical conditions the client suffers from. Data from other similar cases in the past can support the extrapolations into the future.

The reason Life Care Plans are helpful is because they provide a overview of what the future holds for injured persons. For example, someone who loses a leg traumatically and is forced to have a prosthetic device is likely to require many different prosthetic devices over their lifetime. This is particularly true for a young person. The Life Care expert can calculate these costs over time and can come up with a Life Care Plan for the injured individual which includes consideration of such future medical costs, which would include not only the cost of the prosthetic device, but also therapy, medications and so forth. By extrapolating from present day data future medical costs, the Life Care expert and the Life Care Plan can help counsel represent those who are suffering today will undoubtedly continue to suffer in the future and will require future medical expenses. Depending upon the size of the claim and the kinds of damages involved, an economist might also need to be retained in order to quantify the present cash value of future medical expenses and/or lost wages. Either way, the Life Care expert can be of tremendous assistance in helping counsel convince the insurance carrier for the at fault defendant to pay the reasonable costs not only of damages incurred to date, but also anticipated future medical expenses and lost wages. If such an effort at settlement is unsuccessful, the Life Care expert can assist counsel also in helping to convince a jury that it should include as part of its award future medical expenses and lost wages.

Almost every week the Georgia injury lawyers at Finch McCranie, LLP hear about horrific treatment of elderly patients in nursing homes or other long-term facilities. Occasionally they are held accountable for their negligent treatment.

Last month, the family of a 76 year old Florida woman was awarded $114 million in a nursing home abuse case. The woman died in 2003 after having been a patient at the nursing home. The lawsuit alleged that the elderly woman was injured after falling, had developed pressure sores, was over medicated, dehydrated and malnourished. The lawsuit alleged that the woman’s treatment at the facility led to her death. The breakdown of the verdict was $14 million in compensatory damages and $100 million in punitive damages.

Elderly people are entitled to basic safety, respect and dignity. If you or someone you love is a victim of elder abuse or nursing home abuse, you have the right to hold the abuser responsible in court. The Georgia injury lawyers at Finch McCranie, LLP have represented injured Georgians in elder abuse lawsuits and other personal injury suits for over 40 years.. With our firm on the case, you can rest assured that you'll get the extensive experience and personalized attention you deserve. For a free consultation, call us today at 1-800 228-9159.

Under the unique provisions of the Federal Tort Claims Act (FTCA), there is no right to a jury trial. What this means is obvious: once an FTCA lawsuit is filed and the United States of America is named as the defendant, if the case cannot be resolved thereafter and a trial is required, the trial will be before a United States District Court judge which will sit, not only as the finder of fact, but also as the Judge of the law. In short, the U.S. District Court Judge will conduct a Bench Trial without the assistance of a jury to determine whether the claimant can prove by a preponderance of the evidence that the United States government has committed an actionable tort which has resulted in damages against the claimant. If the claimant proves by a preponderance of the evidence that he or she was injured as a result of the tortious misconduct of a federal employee or agency, then in that event, the court will so rule and then will award appropriate damages caused by the tort.

In considering any claim under the FTCA, obviously, counsel will have to consider whether the U.S. District Court judge to whom the case is assigned is likely to rule favorably on the same. As an example, if the claim involves a medical malpractice claim against the Veterans Administration, the strength or weakness of the claim may convince counsel that a U.S. District Court judge may or may not rule favorably for the claimant. Such considerations obviously are important in considering whether a case should be settled or should be presented to the Trial Court. While the District Court does have the discretion to empanel a jury to render an advisory verdict any decision such a panel might make is not binding and the District Court is required by law to issue a ruling by itself relative to the merits of an FTCA case. Thus, in any case in which a civil claimant sues the United States government for damages caused by a tort committed by a federal agency or employee, counsel should always remember that they will only receive a Bench Trial in such a case and that it is the U.S. District Court that will decide all of the issues in the case.

We have blogged in the past about some of the unique provisions of the Federal Tort Claims Act (FTCA) and how they pertain to tort claims against the United States government. As an example, one unique provision is that no claim can be sued against the federal agency per se but instead only against the United States. In any lawsuit against the federal government in which a tort has occurred, the named defendant must be the United States of America. Thus, in a case where a postal driver runs a stop sign and injures someone or a drunk federal agent while on the job causes a collision with serious injuries, the lawsuit must be filed against the United States government. Of course, there are other unique provisions of the Federal Tort Claims Act which require pre-suit notification of a claim but nonetheless, if settlement negotiations are unsuccessful, the claim must be filed against the United States of America in United States District Court.

In terms of where a case should be sued, this is another unique provision of the Federal Tort Claims Act. The claim can be filed either where the tort occurred or where the plaintiff resides. For example, if a tort occurs in one state and the plaintiff moves and wishes to file the lawsuit against the United States of America in the district where they then reside, they can do so. The issue is which jurisdiction might be more favorable for the claim. Some jurisdictions are more conservative than others and some jurisdictions might be more favorable with respect to claims against the federal government based on the demographics of the federal bench in the area where the claim can be filed. Thus, in any of these cases, counsel for the victim of a federal tort claim should consider not only the proper venue but must make sure that all pre-suit filing requirements are met and, when suit is filed, that it is filed solely against the United States of America.