Motor Vehicle Accident

September 25, 2020

Give the keys to a drunk driver? You can be liable for Punitive Damages

by Christopher Simon

Recently, the Supreme Court of Georgia issued an opinion in a drunk driving accident which addressed some confusion over what the term “active tortfeasor ” means and whether not only the drunk driver can be liable for punitive damages, but also whether the guy that gave the keys to a known drunk can be liable as well. Two cousins were drinking together and the owner of the car gave the keys to his cousin who 1) had no license 2) had a history of reckless driving and 3) was drunk. The driver hit someone and both cousins got sued.

The language from the punitive damages statute at issue says:

“(f) In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is substantially impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than an active tort-feasor.”

June 23, 2020

Court Addresses Admissibility of Witness Testimony in Fatal Georgia Motorcycle Accident Lawsuit

by Christopher Simon

The sad reality is there are over a thousand people killed every year in Georgia accidents but not all of them should be lawsuits. This is the woeful tale of a dimwit attorney filing a lawsuit on behalf of a motorcyclist who was clearly hauling way to fast down the road, when he died in the crash. I have handled cases like this for guys on motorcycles and it is rarely the Harleys or cruising bikes, usually the sport bikes where speed is the killer. In the case we handled, we realized deep into the evidence that our guy was likely going 70 in a 45 when he underode a tractor trailer in broad daylight. It’s not a good case and we settled for the $90,000 they offered to ensure that the 13 year old daughter would have money for college. Unfortunately for the family of a Georgia motorcyclist who suffered fatal injuries in an accident his lawyers ignored reality. They filed a wrongful death and negligence lawsuit against two occupants of the vehicle that struck their loved one. After a jury found in favor of the defendants and said it was the motorcycle rider’s fault for speeding, the plaintiffs moved for a new trial. The trial court denied their motion, and the plaintiffs filed an appeal. On appeal, the biker’s estate argued that the trial court erred in permitting inadmissible witness testimony and denying their motion for a new trial.

At trial, the court permitted eyewitnesses to testify that the biker was driving around 80 to 100 miles per hour before the accident. Further, they allowed a police officer to testify that, based on the bike’s engine sound, the motorcyclist’s speed was between 60 and 90 miles per hour. The plaintiffs argued that the court erred in allowing this testimony because the witnesses did not see the bike at the time of the collision. The plaintiffs argued that the law only permits witnesses to estimate a vehicle’s speed if they saw the vehicle when the accident occurred. Everyone knows what a sport bike sounds like at speed. It is unmistakeable. It is no surprise the judge and jury found the way they did.

Georgia Code section 24-7-701 permits a non-expert witness to testify only in instances where their opinions are rationally based on their perception, helpful to understanding a witness’s testimony, and not based on technical, scientific, or specialized knowledge. In this case, the court found that the trial court did not err in permitting this testimony. It explained that the witnesses provided a basis for their opinions, including their personal experience riding and observing motorcycles and seeing the plaintiff’s bike on the day of the accident. The court reasoned that this factual foundation was sufficient to allow the witnesses to testify to the motorcycle’s speed before and at the time of a collision, even if they did not observe the impact.

October 16, 2018

Who is Going to Pay When the Are Multiple Vehicles in the Crash?

by Christopher Simon

Determining liability in a Georgia car accident may seem to be a straightforward endeavor, and in some situations, that may be the case. However, when an accident involves multiple vehicles, establishing which parties are at fault and which parties are entitled to recover for their injuries can be a bit more complex.

To help judges and juries divvy up liability in Georgia multi-vehicle accident cases, courts use the comparative fault model contained in Georgia Code § 51-12-33. Under Georgia’s comparative fault model, any accident victim who is less than 50% at fault for causing an accident is able to recover for their injuries. However, in determining the appropriate amount of damages, the court will reduce the plaintiff’s damages award by their own percentage of fault. For example, if a motorist sustained $500,000 in injuries but was determined to be 10% at fault, the motorist’s total recovery amount would be $450,000 (the total figure of $500,000 less 10%).

Section 51-12-33 helps courts deal with other issues that can arise in a situation involving several potentially liable parties. For example, like the situation where a plaintiff is partly at fault, each defendant will be assigned a percentage of fault and will be responsible for their own share of the damages. This is regardless of whether there are other potentially at-fault parties that were not named in the lawsuit, for whatever reason. Additionally, a defendant cannot be held liable for amounts in excess of their own share, in the event that one of the other at-fault parties is unable to compensate a plaintiff. In other words, defendants will not be held jointly liable.

May 25, 2018

Georgia Court Rejects Uninsured Motorist Claim Based on Statutory Definition of “Uninsured Vehicle”

by Christopher Simon

Recently, a state appellate court issued a written opinion in a Georgia car accident lawsuit filed by an injured motorist against his own insurance policy, under the policy’s uninsured-motorist clause. The case required the court to determine if the insurance company was proper in refusing to accept the plaintiff’s claim, based on the fact that the vehicle the plaintiff was operating at the time was not an “uninsured vehicle” under state law.

Ultimately, the court concluded that the insurance company’s interpretation was correct and dismissed the plaintiff’s claim for compensation.

The Facts of the Case

The plaintiff’s employer provided the plaintiff with a work truck. The plaintiff used the truck five days a week, and while the plaintiff normally returned the truck to his employer’s place of business after his shift was over, he was not required to do so. The evidence suggested that the plaintiff kept the truck overnight at his residence at least two times.

October 25, 2016

Georgia Court of Appeals Disallows Piercing the Corporate Veil in Dram Law Case

by Christopher Simon

In most circumstances, you cannot sue the actual owners of a corporation personally for the liabilities of the corporation. This is one of the key reasons that people use companies to insulate themselves from personal liability. Sometimes the company itself can be underfunded and the actual owner, very well off. In those circumstances, the Plaintiff may want to go after the owner. In this recent decision, the Court put some strict limits in place when trying to do that with a case where a bar let a drunk patron get on the roads.

When faced with this situation, plaintiffs will often attempt to “pierce the corporate veil” and impose personal liability on a corporation’s underlying shareholders. However, as the plaintiff in Barnes v. Smith, a recent decision from the Georgia Court of Appeals, now realizes, piercing the corporate veil may be far from a straightforward proposition.

The facts at the center of Barnes occurred on November 19, 2012. On that day, a patron arrived at Hank & Jerry’s Tavern in Rockdale County, Georgia at around 4 p.m. and had a beer and a shot of Jagermeister. The patron left the Tavern but returned at around 11 p.m. and again had half a beer as well as one and a half “Jagermeister bomb” drinks. The night bartender, who was also the supervisor at the Tavern that night and a personal acquaintance of the patron, noticed that the patron’s eyes were glassy and that he was acting belligerently. The bartender unsuccessfully attempted to take the patron’s keys and offered to either call him a cab or drive him home. In an effort to prevent the patron from leaving, the night bartender tried to lock the front door of the Tavern, but a different customer at the Tavern let the patron out in response to his belligerent conduct. The patron told the bartender that he would just rest in his car, which the bartender believed, but shortly thereafter, the patron drove away. The bartender knew that the patron should not be driving, but she did not call the police out of concern about getting the patron in legal trouble.

May 23, 2016

Atlanta Federal Court Denies Plaintiff’s Clever Attempt to Have Case Returned to State Court

by Christopher Simon

Although state courts most often serve as the venue for negligence cases, there are certain occasions when a negligence claim may be heard in a federal court. Among these subclasses of state law negligence cases that may be heard in federal courts are those involving “diverse” parties. When all parties are diverse, and the amount in controversy in the case exceeds $75,000, the case may be heard in federal court. However, although these cases may be heard in federal court, they may still be heard in state courts, and plaintiffs will often elect to file suit in a state court for a variety of reasons. In certain instances, however, a defendant may find the plaintiff’s motive for filing in state court to be tactical or see a possible benefit to be derived from defending the claim in a federal forum and, accordingly, seek removal to a federal court. Following removal, dissatisfied plaintiffs will often try to devise a way to have a case remanded to the state court where they originally filed the action. These varied procedural games associated with removal and remand were raised in a recent decision by an Atlanta federal court, Threatt v. Jasenauskas.

Threatt started with a motor vehicle accident involving a MARTA bus and a tractor trailer. The plaintiff, who was operating the bus, was driving along Continental Way in DeKalb County when a tractor trailer collided with the bus. The tractor trailer was owned by Atlantic Transport, Inc. and insured by National Casualty Company. Following the accident, the plaintiff brought suit against the driver of the tractor trailer as well as Atlantic Transport and National Casualty Company. Atlantic Transport and National Casualty Company, however, filed a notice of removal, arguing that the case should be heard in federal court. Specifically, these defendants asserted that since the plaintiff alleged damages in excess of $75,000, and complete diversity existed between the plaintiff and the defendants, the case should be heard in federal court.

April 18, 2016

Georgia Court of Appeals Discusses Ante Litem Notice Compliance in Recent Ruling

by Christopher Simon

Lawsuits against the government, either state or federal, often come with a variety of specialized procedural hurdles. In Georgia, among these particular requirements that catch hapless litigants by surprise are the many special notice requirements that preclude a litigant from bringing suit against a state entity unless he or she gives proper notice of the suit. For instance, in a recent decision, Estate of Leonard, the Georgia Court of Appeals affirmed a trial court ruling holding that one unfortunate plaintiff was barred from bringing a tort suit against a county government for failing to adhere to the notice requirements under O.C.G.A. § 36-11-1.

Leonard arose from a collision on January 30, 2012. The plaintiff, an 82-year-old man, was riding on a bus owned by Whitfield County, Georgia. The plaintiff, who was sitting in a wheelchair that was secured by straps specifically designed to hold wheelchair-bound passengers, alleged that when the driver of the bus made a high speed turn, it caused the straps to detach, which, in turn, caused his wheelchair to tip over. As a result of the fall, the plaintiff sustained two broken legs that required surgery. Thereafter, the plaintiff was confined to a managed care facility. The plaintiff’s attorney sent notice to the County Attorney for Whitfield County and then filed suit on January 21, 2014. The county answered the complaint, asserting, inter alia, a defense that the plaintiff did not comply with the ante litem notice requirements provided under O.C.G.A. § 36-11-1. Following discovery, the county moved for summary judgment. The trial court denied this motion for summary judgment, finding that issues of fact precluded a finding that notice had not been accomplished. Following the denial of the motion for summary judgment, counsel for the plaintiff served a copy of the complaint on several of the county commissioners. Nevertheless, the county filed a second motion for summary judgment and included an affidavit from the county attorney stating that at all times material to this action, he had not been authorized by the county commissioners to accept notice of suit on behalf of the county. The trial court granted the motion for summary judgment, and the current appeal followed. During the course of the litigation, the plaintiff died, and the executor of his estate was substituted as the plaintiff.

January 29, 2016

Georgia Court of Appeals Reverses in Auto Accident Decision

by Christopher Simon

Obtaining recovery for physical injuries or property damage resulting from a car accident is often not a straightforward endeavor. Indeed, many drivers involved in car accidents expect to deal with some amount of insurance wrangling or, in more complex situations, litigation. However, as the plaintiff in a recent case before the Georgia Court of Appeals, Guice v. Brown, now realizes, the task can be even more complicated, simply depending on the identity of the other driver.

Guice started with a motor vehicle accident that occurred in Rockmart, Georgia. The plaintiff was driving westbound along Georgia 278 West. At that time, the driver of the other vehicle, a truck owned by the city of Rockmart, was leaving a shopping plaza located near where the driver of that vehicle had been installing stop signs. The driver of the truck had decided to go through the parking lot of the shopping plaza rather than navigating the roads around it. While leaving the plaza, the driver attempted to cut across several lanes of traffic in order to get into the left lane of Georgia 278 West. While attempting to do so, however, the truck driver collided with the plaintiff’s vehicle. The truck driver stated that he did not see the plaintiff’s vehicle prior to the impact and did not know which lane the plaintiff had been using.

January 5, 2016

Georgia Court of Appeal Reverses in MARTA Negligence Case

by Christopher Simon

Under Georgia law, a defendant’s admission of liability may be presented as evidence in a negligence case. Admissions of liability can have considerable influence on juries, so determinations regarding which evidence may properly be considered an admission are often hotly contested. Although trial courts have considerable discretion in making such evidentiary determinations, their rulings, given the potential impact, are not immune from appellate review. Indeed, in a recent decision, Agic v. Metro. Atlanta Rapid Transit Auth., the Georgia Court of Appeals recently reversed a trial court for improperly excluding evidence of a MARTA bus driver’s admission of liability for an auto accident.

As noted above, Agic arose from a motor vehicle accident involving a MARTA bus and two other vehicles. The plaintiff in this case was a passenger in an SUV being operated by another person. The driver of the bus hit a different vehicle while attempting to change lanes on North Druid Hills Road. The collision caused the other vehicle to travel into incoming traffic, where it was struck by the SUV in which the plaintiff was traveling. After the collisions, the police told the bus driver he was free to go but then later requested that he return to the scene of the accident, where the bus driver was issued a traffic citation for improperly changing lanes. The bus driver paid the citation without appearing in traffic court, resulting in forfeiture of bond. In addition, MARTA conducted its own investigation of the crash, and the driver signed a report that acknowledged that the accident was “preventable.” The plaintiff sustained injuries as a result of the crash and brought suit against MARTA and the bus driver. Prior to trial, the defendants made a motion in limine, which sought to exclude any reference to the citation during trial. The trial court granted the motion. After the trial, the jury returned a verdict favorable to MARTA, and the plaintiff appealed the verdict.

December 26, 2015

Georgia Court of Appeals Overturns Jury Verdict in Highway Accident Case

by Christopher Simon

In an unfortunate example of a Court of Appeals panel totally ignoring a jury, the Court threw out a $1.6 million dollar verdict. The Judges opined that the jury was flat out wrong and considered the evidence incorrectly. Keeping a jury verdict when there is an Appellate bench willing to call the jury blind and deaf is a challenge as this case illustrates in this recent decision from the Georgia Court of Appeals, Redmon v. Daniel, which arose from the tragic death of a man struck while navigating a highway exit ramp.

The events leading to this case began on an early morning in September 2009. The evidence showed that the husband of the plaintiff, who brought the claim as the representative of her late husband’s estate, was walking along an exit ramp that led from Georgia Highway 316 to Georgia Highway 120. There are neither street lights flanking this stretch of road nor ambient lighting from nearby signs. The plaintiff’s husband was dressed in dark green shorts and a black shirt at the time. While proceeding along the exit ramp, the plaintiff’s husband was struck by a Chevrolet Tahoe. The impact caused his body to fly into the Tahoe’s windshield and then into the road. The Tahoe was being followed by a garbage truck. The driver of the garbage truck did not see the accident but did testify to seeing something he thought was a deer ricochet off the Tahoe. The garbage truck driver testified that he attempted to avoid the object, but at some point during the driver’s maneuvering, the rear tires of the garbage truck ran over the man’s head. The speed limit along Highway 316 is 55 miles per hour, and the evidence showed that the vehicles were traveling between 40 and 50 miles per hour.