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.

Continue reading "Tire Failures Cause Many Automobile and Truck Accidents" »

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.

Continue reading "Road Debris On Georgia Highways Can Kill" »

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.

Continue reading "Golf Cart Accidents Can Be Caused By Failure To Maintain Brake Systems" »

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.

Continue reading "Brake Failure Blamed For Georgia Golf Cart Crash" »

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.

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 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 $495,000.00 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.

Over the years the Georgia injury lawyers at Finch McCranie, LLP have represented clients who have been “falsely arrested”. In one memorable case, our client was accosted in the Lenox Mall parking lot by three store security officers who forcibly carried her back into the store where she was accused of shoplifting and strip searched. Eventually, the store realized they had made a mistake and told our client that she was “free to go”. She remained in the store and called the Atlanta who ended up arresting all three store security officers. A jury later returned a verdict for a million dollars.

The claims that can be brought against a business or an individual depend on the circumstances of the case. Georgia law recognizes different related torts in this area. Although the distinctions among the related claims have not always been clear in Georgia’s case law, Georgia’s Court of Appeals has tried to clarify them. They are: (1) false imprisonment, which is “unlawful” detention without judicial process, or without the involvement of a judge at any point (O.C.G.A. § 51-7-20); (2) false or malicious arrest, which is detention “under process of law (O.C.G.A. § 51-7-1); and (3) malicious prosecution, which is detention with judicial process followed by prosecution (O.C.G.A. § 51-7-40). An arrest “under process of law” is an arrest made pursuant to a warrant and the key distinction between malicious arrest and false imprisonment under O.C.G.A. §§ 51-7-20 and 51-7-1 is whether the person was detained using a warrant or not.

If you are falsely arrested you should consult with an attorney immediately. As with most cases, the sooner you can obtain counsel from a competent attorney, the better chance you have in making sure your rights are protected.

In the typical case in civil litigation, the winning and losing sides are responsible for their own attorney’s fees. There is an exception to this rule under Georgia law. If a party acts in bad faith in the underlying transaction (committing acts of fraud and/or attempting to damage the Plaintiff, as an example) or is guilty of stubborn litigiousness (pursuing claims or defenses based on frivolous legal and factual defenses) then in that event, attorney’s fees can be awarded. The Code Section in this regard is O.C.G.A. § 13-6-11.

Another unique provision of Georgia law is that a court may consider a contingent fee agreement and the amount of fees it would generate as evidence of “usual and customary fees” in determining both the reasonableness and the amount of award of attorney’s fees. In other words, if a victim in a personal injury suit should be further victimized by the bad faith and stubborn litigiousness of the person who caused their injuries, they may be entitled to attorney’s fees as part of their damages and can use a contingent fee contract with their own attorney as evidence in support of their claim.

If an innocent victim in a personal injury case is subjected to bad faith in the underlying transaction through acts of misconduct, sabotage, spoliation of evidence or false testimony and/or should be subjected to frivolous defenses and is caused unnecessary trouble and expense in the litigation process, then not only should they seek compensation for the personal injuries sustained as well as medical expenses, lost wages and other compensatory damages, they should also seek to recover attorney’s fees. In this regard, their own attorney can testify that the contingent fee agreement is a reasonable and customary arrangement in such cases and that the award of contingent fees would be the reasonable and customary and necessary amount of fees to pursue justice for the client. There is a good Georgia case which holds that the contingent fee agreement in and of itself is “a valid indicator of the value of attorney services.” See Home Depot USA v. Tvrdeich, 268 Ga. App. 579, 584, 602 S.E. 2d 297 (2004).

“When a vehicle is supplied by an employer for the mutual benefit of himself and his employee to facilitate the progress of the employee’s work, employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor.” This statement is an exception to the general rule that coming to or going from work is usually not considered to be work within the scope of employment. However, if an employer furnishes a company owned vehicle to an employee for his use to come to work and be on call for the master’s business 24/7 either via a radio, dispatch system, cell phone or other type of communication device, then in that event, a jury question is present as to whether an employee coming to or going from work is acting within the scope of his employment.

If an employer allows an employee to take a company vehicle home every evening so that it will be available for the employee to perform his duties on an expedited basis the very next morning or if the employee’s truck is furnished with a two-way radio, as an example, where the employee is subject to the direction and control of his supervisors whenever they wish to communicate with him, and/or if the employer furnishes fuel and provides the truck for the mutual benefit of both the employer and employee, under any of these circumstances, there may be an exception to the general rule that an employee typically is not working for his employer until he arrives at the office.

Most of the cases that deal with an employee coming and going to work do not deal with employees driving company vehicles. Under Georgia law, if an employee is involved in an accident while driving an employer’s vehicle, a presumption arises that the employee was on the business of the master. The burden is upon the master to show that the employee was not. If the truck was furnished 24/7 so that the employee would be available for call and/or available to the employer and/or if the vehicle is used as a rolling billboard or advertisement for the employer’s business, then clearly under such circumstances, the vehicle is being used both for the benefit of the employer and the employee.

Continue reading "Employer Liability For Company Cars Involved In Accidents" »

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 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" »

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" »

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.

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.