Georgia Injury Lawyer Blog

It is not uncommon in our practice to be asked to represent clients in automobile cases who have pre-existing conditions. The closer in time to an accident the pre-existing condition is, the more difficult it is to separate the proverbial “wheat from the chaff” and to prove that the client’s problems arising out of the current accident were either caused by that accident and/or were aggravated by it. While it is not necessary, as a matter of law, to prove that the new injury was solely caused by the new accident because compensation is available for aggravation of pre-existing injuries, the difficulty is that the defense can always argue that the new accident did not cause any new, nor aggravating injury, but that the old injury simply remained. The proof problems caused by such cases are very difficult and oftentimes clients do not appreciate the fact that juries are very skeptical of claims where the pre-existing injury is documented in medical records and appears either identical to or very similar to the injury complained of immediately following the new accident.

Lawyers make decisions about the value of any personal injury claim based on the evidence in any particular case. The evidence in pre-existing injury cases is often critical because if a medical record shows that a client already had a particular injury and had/or received medical care for an earlier injury, and then they are involved in another accident, the issue will be whether they had recovered from that injury, whether they were asymptomatic at the time of the new injury, or whether they were still suffering from the lingering effects of the prior injury. As might be imagined, all of these factors enter into case evaluation. Moreover, when it comes to a discussion of “proximate cause,” that being proving that the new accident actually caused a new injury or aggravated an earlier one, the calculus becomes extremely complex. Georgia juries, being inherently conservative, oftentimes return defense verdicts in cases where the pre-existing injury was identical to the newly claimed injury and the treatment for that old injury mirrored the new injury treatment in substantially similar respects.

Obviously, all cases must be judged on the evidence for that particular case as all such cases are factually specific. Nonetheless, there are some unique challenges that arise in the context of pre-existing injuries.

As lawyers we are often consulted by prospective clients inquiring about whether they “have a case.” Sometimes they do and sometimes they do not. Oftentimes those who do not have cases are themselves guilty of contributory negligence. In Georgia, this is a very difficult problem to overcome because typically juries are not as likely to award damages to someone who substantially contributed to their own injuries due to their own negligence.

A classic case of contributory negligence is where a motorist is approaching an intersection and decides to turn and while so doing is struck by a motorist coming from the opposite direction. While the speed of the oncoming motorist may have contributed to the collision, the failure to yield, obviously, is part of the equation. Had the client not failed to yield, notwithstanding the speed of the oncoming vehicle, the collision may have been avoided. If the speed was so great that the client understandably miscalculated whether they had time to make a turn, obviously, is a factually specific issue. However, in the hypothetical posed, one can readily see that juries might conclude that the motorist who failed to yield substantially contributed to their own injuries and therefore the speeding motorist might not be held accountable for the full extent of any damages sustained.

In Georgia, contributory negligence claims are submitted to the jury under instruction that if the plaintiff or the person seeking damages was themselves fifty percent (50%) or more responsible for the cause of any given accident then they recover nothing, no matter what their injuries are. If they are less than fifty percent (50%) negligent, they recover their damages reduced by a comparison of their negligence with the defendant who has been sued. Thus, if a jury were to conclude that the plaintiff was forty percent (40%) negligent then they would be entitled to recover sixty percent (60%) of their damages, whatever they might be.

In any case where liability is contested and the possibility of a contributory negligence defense exists, such a potential client should confer with experience counsel as soon as possible so that the liability aspects of the case can be properly investigated. If the contributory negligence can be eliminated as a potential defense, the chances of the injured client receiving full compensation for their damages is greatly increased.

Unfortunately, in the normal course of our law practice, we have encountered clients who have sustained serious burn injuries. These cases are always extremely painful for clients and oftentimes results in permanent disfigurement. Indeed, a burn injury is one of the most painful injuries anyone can sustain and unfortunately we have seen them arise in a variety of contexts, whether it be gasoline fires after automobile accidents, accidents within the home due to defective products and/or chemical burns sustained on the job.

One of the complications of burn injury cases is trying to make sure that one has an accurate assessment of the future. While plastic surgery at present can eliminate some of the acute signs of injury, many times plastic surgery will be needed in the future. Oftentimes, despite the best care of plastic surgeons, permanent disfigurement may remain.

In assessing damages in a serious burn injury case, counsel must confer with the plastic surgeons responsible for the care and treatment of the client/patient to make sure that the client’s prognosis is well understood. The degree of permanent disfigurement, obviously, must be taken into consideration in assessing the damages for such clients as well as the impact on their overall quality of life and, usually, the high amount of medical expenses involved.

One of the very interesting parts of handling such cases is seeing the strength and character of those unfortunate enough to sustain such injuries. We have witnessed many serious injury clients handle themselves with grace, fortitude and strength of character when faced with a serious injury. Remarkably, many of these people are extremely courageous and show tremendous depth of character when overcoming such difficulties. It is a pleasure to help such clients in such difficult circumstances.

We read in this weekend’s news accounts that a Georgia State Patrol Trooper had been fired for failing to exercise “due regard” for the safety of the public while he was allegedly responding and on his way to aid another trooper involved in a high speed police chase on Interstate I-20. On New Years Eve, an innocent motorist was killed when this Georgia State Patrol Officer allegedly ran a red light and struck the vehicle occupied by the decedent.

Georgia law requires that all government personnel operating motor vehicles in “emergency situations” exercise due regard for the safety of all persons. Apparently, the internal review of the subject occurrence found that when the State Trooper ran the red light at a high speed while in route to the alleged need for assistance (a high speed police pursuit matter) he failed to exercise such due regard, ran the red light and thereby allegedly caused the fatal collision due to negligence. This review, apparently, has resulted in the termination of the involved trooper.

What the news accounts do not address is whether the underlying police pursuit was even justified. We do not know enough about the details to know whether the person being pursued in that action was merely being pursued for a traffic violation. It appears from some of the news accounts that the other trooper was chasing a motorcyclist because he was speeding.

Continue reading "Fatal Police Chase Results In Dismissal Of State Trooper" »

Too familiar is this week's tragic story of how a police cruiser struck an innocent motorist and caused the death of Kathy Porter, wife of Atlanta Braves Head Athletic Trainer Jeff Porter.

Late Saturday afternoon, the Porters were among many fans driving to the Chick-fil-A bowl in downtown Atlanta--a short distance from the Braves' home at Turner Field. A Georgia State Patrol cruiser--reportedly speeding on city streets to join a chase of a motorcyclist on I-20-- crashed into the Porters' Ford Expedition on the passenger side.

The Porters' tragedy is one of a seemingly endless string of deaths of innocent persons caused by police pursuits--too often chasing another motorist simply for a minor infraction.

We have written for years of the needless dangers to the public of high speed police chases, and how following proper police procedures can avoid causing unnecessary deaths of innocent persons. Key questions here include why stopping a motorcyclist on I-20 was worth risking the lives of families driving to a football game.

A police chase of a suspect for a non-violent act too often results in what is effectively the death penalty for an innocent person. Even though the lesson should have been learned from many past examples (including cases we have had to litigate), the needless carnage somehow continues.

Like all of our community in Atlanta, our thoughts and prayers are with the Porter family.