Car Accident

April 17, 2018

Spoliation of Evidence by the Plaintiff in Georgia

A recent trend in litigation in Georgia has been defense law firms sending spoliation to Plaintiff’s attorneys to retain vehicles and cell phones involved in accidents. Up until now very few appellate decisions have come down on that particular set of facts. Recent opinions have said that insurance companies and commercial motor carrier defendants that are used to getting sued know that in any decent crash, the driver logs, qualification files and vehicles are likely to be at issue because litigation and claims frequently arise. The appellate courts in Georgia have gone so far as to say that even when the plaintiff’s attorney fails to send a spoliation letter. The whole idea behind this is, you deal with claims all the time, you should know better.

What about a situation where the plaintiff fails to retain key evidence? The court opinion below addressed such a situation and held that an unrepresented plaintiff, although injured, was not sophisticated and even though he asked his wife to retain the tires, this did not make him subject to sanctions. I believe the court would have ruled against the plaintiff had he hired counsel before the car was destroyed.

The state appellate court issued a written opinion in a Georgia product liability case discussing when a plaintiff’s duty to preserve evidence that may be relevant to her case arises. Ultimately, the court concluded that a plaintiff’s duty is triggered at the same time as a defendant’s, which is when the party “actually or should have reasonably anticipated litigation.” Under these facts, the court concluded that the plaintiff had not reasonably anticipated litigation when she allowed for the evidence to be destroyed, and thus it dismissed the defendant’s request for sanctions.

The Facts of the Case

The plaintiff’s husband was involved in a car accident when one of the tires on his Ford Explorer blew out. The plaintiff’s husband was taken to the hospital, where he was unresponsive for several days. After the accident, the car was towed to a storage yard, where it accrued a daily storage fee.

The plaintiff told the storage yard owner that she could not afford the storage fee, and he offered to waive the fees if she signed the car over to him. At around this time, the plaintiff’s husband’s condition had improved, and she asked her husband what to do. He told her to “save the tires.” The plaintiff then signed the car over to the owner of the storage yard and asked that he save the blown tire. Not long after this, the plaintiff’s husband’s condition worsened, and he passed away.

May 17, 2017

Georgia Court of Appeals Rules in Favor of Plaintiff in Medical Malpractice Lawsuit

by Christopher Simon

At the beginning of this year, the Georgia Court of Appeals issued a ruling in Thomas v. Tenet Healthsystem GB, Inc., Ga. Ct. App. (2017), that clarified in which sorts of cases a subsequent negligence claim in a medical negligence case can relate back to the initial filing.

In May of 2012, the plaintiff was involved in an automobile accident, and transported on a backboard by the paramedics to the emergency room for treatment of her injuries. Upon arrival to the defendant hospital’s emergency room, her treating doctor ordered a CT scan in order to determine whether she had incurred any spinal injuries. The results of the scan were then sent to a second doctor, who read them in his home and purportedly communicated to the treating doctor his opinion that there had been no cervical spinal injury. The treating doctor then reportedly instructed a nurse to remove the cervical spine collar that the plaintiff had on, and to discharge her from the hospital.

When the plaintiff’s relative arrived to pick her up from the hospital, he reportedly found her slumped over and unresponsive in a wheelchair. Following re-examination, it was determined that she did have a fracture in her cervical spine. It was believed that the removal of the cervical collar caused a cervical fracture to displace, thus resulting in spinal cord damage, rendering the plaintiff quadriplegic.

May 16, 2017

Georgia Federal Court Ruling Closely Examines Doctor’s Role as Expert Witness in Car Accident Case

by Christopher Simon

In any personal injury case, medical records and expert opinions with regard to injuries can be important in helping to establish the cause of the injuries. It can be difficult to prove exactly how an accident may have occurred absent external objective measures, such as video recordings. Medical records and the opinions of medical doctors, however, can provide additional, factually based evidence that can help judges and juries reach determinations of fault or liability. In a recent case, Rangel v. Anderson, S.D. Ga. (2016), the court engaged in an extensive review of the factors required in order for physician testimony to be allowed in the capacity of “retained expert” opinion.

The case arose out of a car accident in which the plaintiff claimed the defendant rear-ended her vehicle, causing injuries. Following the accident, the plaintiff sought medical treatment for neck and back pain from several physicians. The plaintiff sought to introduce evidence from one of her treating physicians in an expert witness capacity but failed to identify the doctor as an expert witness by the necessary deadline. The plaintiff also failed to provide a written report of the doctor’s opinion.

The defendant sought to exclude certain opinions offered by the doctor but agreed at a hearing that the doctor could provide factual testimony regarding the treatment of the plaintiff. The defendant sought to prevent the doctor from offering opinion testimony, based on the plaintiff’s failure to properly disclose him as a retained expert and based on the failure to provide the written report as required by the Federal Rules of Civil Procedure. The defendant further argued that the opinion failed to meet the reliability standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

April 24, 2017

Georgia Appeals Court Reverses Summary Judgment in Tractor Trailer Accident Case

by Christopher Simon

The violation of a law or regulation can make an injury case against a trucking company much stronger and in the law this is known as negligence per se, or negligence in and of itself. If they broke the law, they must be responsible automatically. This is a powerful concept with a jury.

In the case, Newsome v. LinkAmerica Express, Inc., Ga. Ct. App. (2016), the appellate court reviewed a decision by the trial judge to throw out a case against a tractor trailer driver and the decision touches on some interesting aspects.

The facts of the case involve a car driving down a residential street and hitting a parked bobtail tractor. The driver was injured and claimed that the truck was improperly parked and that he could not see it due to sunlight streaming in his eyes.

December 28, 2016

Georgia Court of Appeals Affirms Dismissal in Auto Shop Negligent Training Case

by Christopher Simon

Sometimes I read Georgia car accident appeals cases and I am astounded at the stupidity of some of the claims that plaintiff’s lawyers will bring. This is the legal analysis for a case where the plaintiff was terribly injured and tried to blame the crash on the installation of two new tires on the front two wheels instead of the rear two wheels. This claim would make sense if placing them one axle versus the other left bald tires onboard. But it didn’t. Instead this plaintiff and their lawyer brought suit when the crash happened, wait for it; TWO YEARS AFTER THE TIRES WERE INSTALLED. Come on people, there is a reason the public gets angry with some lawsuits. This is a frivolous case. Now, onto the legal analysis of the interesting part which says that in the right case, the prior owner of a business can maintain responsibility for something happening after they sell if they negligently trained the employee who screwed up. Cool theory.

Georgia law places a duty on employers to ensure that their employees are properly trained and supervised. However, although the duty to reasonably train employees is well-established, the other doctrinal limitations imposed on negligence liability continue to play a significant role in confining the viability of many claims. For instance, in a recent decision, Edwards v. Campbell, the Georgia Court of Appeals reaffirmed the importance of causation in limiting the reach of negligence claims.

Edwards started on April 14, 2011, when the plaintiff’s grandmother took a trip to Campbell Tire Company (“CTC”). CTC had originally been owned and operated by Edward Campbell, but Campbell sold the company to Lanham Enterprises, LLC in April 2009. In an asset purchase agreement executed in conjunction with this sale, Campbell agreed to provided 60 days of training to Joel Lanham, the owner of Lanham Enterprises, LLC, who had no prior experience in the tire business. At the time of sale, it was Lanham’s understanding that the CTC employees had been there for a long time and had been primarily trained by Campbell. During the course of the aforementioned training, Campbell told Lanham that when a customer only purchases two new tires, the tires should be placed on the front axle, and Lanham believed this to be normal industry practice.

October 18, 2016

When Does Georgia Law Allow for the Recovery of Punitive Damages in Motor Vehicle Accident Cases?

by Christopher Simon

In most negligence cases, a plaintiff’s recovery is generally limited to his or her actual damages, both economic and non-economic. Although these damages typically provide sufficient recovery, Georgia law does allow for the recovery of an additional type of damages, punitive damages, when certain conditions are met. The recovery of punitive damages is, however, narrowly circumscribed under Georgia law, and courts tend to be wary in many instances to even let the question of punitive damages go to a jury. For instance, in a recent decision, Minott v. Merrill, a Georgia federal judge explained how narrowly confined punitive damages are under state law.

Minott arose from a motor vehicle accident on a stretch of Interstate 20 in Morgan County, Georgia. The plaintiff alleges that while he was traveling in the right lane, the defendant’s vehicle struck the rear of his vehicle and thereby caused the plaintiff’s vehicle to spin and eventually settle on the side of the road. The plaintiff did not report any injuries at the scene, and officers who reported to the scene to investigate did not issue any citations at that time. In a report on the accident, an investigating officer noted that the defendant acknowledged that at the time his car hit the plaintiff’s vehicle, he had his cell phone resting on his leg and had snatched at his steering wheel while attempting to prevent the phone from slipping. Following the accident, the plaintiff brought suit, alleging negligence and seeking recovery of damages, including punitive damages. At the conclusion of discovery, the defendant moved for summary judgment on the issue of whether the plaintiff was entitled to recover punitive damages as a matter of law.

September 26, 2016

New Trial Ordered in Georgia Wrong Way Driving Case

by Christopher Simon

Jury neutrality is a cornerstone principle of American jurisprudence. Accordingly, prior to trial, litigants are entitled to question jurors about a variety of topics that may weigh on each prospective juror’s ability to render judgment in a fair manner. In auto accident cases, specifically, jurors are typically questioned about various issues, including their relationship with the parties and previous driving and litigation histories. Although such questioning does not often lead to disqualification, a failure to permit a sufficient inquiry can lead to the rejection of the jury’s ultimate verdict. For instance, in a recent decision, Mordecai v. Cain, the Georgia Court of Appeals vacated a jury’s ruling in an auto accident dispute because the trial court failed to allow particular questioning regarding the prospective jurors’ relationships to a non-party auto insurer.

Mordecai started with an auto accident caused by the defendant, who was driving in the wrong direction on a local roadway when his vehicle collided with the car being operated by the plaintiff. Prior to trial, the defendant and the plaintiff’s uninsured motorist provider moved to exclude all questions related to the prospective jurors’ relationships with the insurance provider unless a juror stated when asked about employment that he or she was currently employed by an insurance company. Alternatively, they argued that if jurors were to be questioned about their relationships with the insurance company, it should be done in the jury assembly area prior to trial. The trial court concurred with the defendant and auto insurer and allowed questions regarding connections to the auto insurer to only be performed by a jury assembly administrator. The administrator testified that she asked the prospective jurors if they were “an officer, employee, stockholder, agent, director or policyholder of State Farm Automobile Mutual Insurance Holding” and that all prospective jurors who answered “yes” were excluded from the panel ultimately sent to the court for voir dire. The case proceeded to trial, after which a verdict was rendered. Finding the judgment unsatisfactory, the plaintiff appealed, arguing, among other things, that the trial court’s preclusion of in-court questioning about the jurors’ connection to State Farm was reversible error.

September 2, 2016

Court Reverses Dismissal of Auto Accident Case Against Georgia Forestry Commission

by Christopher Simon

In many of the rural parts of our state, it’s not uncommon for property owners to burn vegetation or other materials on their property. Although these burnings are regulated and are typically performed without incident, they do pose some hazards. Indeed, in a recent decision, Grant v. Georgia Forestry Comm., the Georgia Court of Appeals needed to determine what, if any, liability existed against the Georgia Forestry Commission for an auto accident caused, in part, by smoke from a regulated burning.

The accident at issue in this case occurred in the early morning of March 17, 2011. On the day before, the Georgia Forestry Commission (“GFC”) issued a burn permit to a property owner who lived near Interstate 16 and wished to burn vegetation on his land. At around 3 p.m. that day, the local Chief Ranger of the Bulloch County GFC fire protection unit received notice of a fire on that property. When he arrived, the ranger observed the fire burning out of control and initiated measures to contain and monitor the fire. Among these measures were the posting of smoke/fog warning signs and the placement of local deputies to handle traffic issues. At around 7 p.m. that day, the Chief Ranger determined that the blaze had been contained, although the burned area continued to smoke. The Chief Ranger saw the smoke drifting toward the southeast away from I-16, which was about three-quarters of a mile to the north of the closest part of the burn area, and he reported seeing no visibility issues on either I-16 or another local thoroughfare. The Chief Ranger nevertheless called 911 to provide notice of smoke in the area and directed the the local county sheriff to continue to monitor the situation. At around 5 p.m. that day, a local official for the Georgia Department of Transportation (“GDOT”) also responded to notice of the fire and placed warning signs in both directions on a local state road. The GDOT official returned to the area at 7:45 and reported no visibility issues but left the signs in place.

July 14, 2016

Sudden Emergency Defense in Georgia Railroad Crash Decision

by Christopher Simon

When confronted with emergencies, even the most sensible people often fail to act with the reasonableness they would display in calmer circumstances. Given that the key inquiry in ascertaining negligence liability is whether one’s conduct was reasonable under the circumstances, it follows that the existence of an emergency should factor into the calculus of establishing whether someone was negligent. However, which sorts of circumstances constitute an “emergency,” permitting the application of this emergency situation defense? This question was at the heart of a recent decision from the Georgia Court of Appeals, Smith v. Norfolk S. R.R. Co., which involved the application of the emergency situation rule to a railroad accident.

The accident at issue in Smith occurred on March 12, 2013. On that day, a pickup truck with two occupants was traveling southbound along Buford Highway. According to an eyewitness, the pickup truck failed to slow as it approached the intersection of Buford Highway and Amwiler Road. As the light turned red, the pickup truck proceeded through the intersection, where it collided with a van that was making a left turn onto Amwiler Road from the northbound lanes of Buford Highway. The collision caused both vehicles to veer off course. The van settled on a grassy area near Buford Highway, and the pickup came to a stop on the railroad tracks that cross Amwiler. Shortly after the pickup truck came to a rest on the tracks, the crossing signals activated, and the crossing gates closed for an approaching train. Other vehicles honked their horns to warn the occupants of the oncoming train.

May 11, 2016

Georgia Federal Court Sanctions Defendants for Failing to Preserve Driver’s Records in Tractor-Trailer Accident Case

by Christopher Simon

It goes without saying that success in a lawsuit often depends on the evidence. Although a plaintiff is not always certain that he or she will have access to the best possible evidence, one does expect that the opposing party will not, through either neglect or willful obstruction, allow material evidence to be lost. Even though the effects of lost evidence are not easy to cure, court do have means of penalizing parties that fail to comply with their obligations to preserve evidence. For instance, in a recent decision, O’Berry v. Turner, a federal judge imposed sanctions on several defendants in a tractor-trailer accident case for failing to produce material related to the driver and tractor-trailer involved in the accident.

Turner started with a June 2013 traffic accident in Homerville, Georgia. While proceeding west along Dame Avenue in Homerville, a vehicle being operated by one of the plaintiffs in this action was struck by a tractor-trailer, which the driver of the car alleged swerved into his lane without warning. The collision caused the car to veer off the road and into a light post. As a result of the accident, the driver and another occupant in the vehicle sustained various injuries. The truck was being operated by an employee acting on behalf of ADM Trucking, Inc. and Archer Daniels Midland Company. Following the accident, the driver and the other occupant brought suit against the driver of the tractor-trailer, ADM, and Archer Daniels. In August 2013, counsel for the plaintiffs sent a spoliation letter to ADM, requesting that the defendants make an effort to preserve various evidence related to the driver and the trailer involved in the accident. Counsel for the defendants responded to this request and stated that the defendants would take all measures necessary to assure the preservation of pertinent evidence. Eventually, the plaintiffs made a discovery request to the defendant, requesting, inter alia, the truck driver’s driver log and all electronically stored information related to the tractor-trailer involved in the accident. The defendants failed to comply with the request, and the plaintiffs moved for sanctions against ADM and Archer Daniels.