Personal Injury Cases Involving City & County Vehicles

What happens if you’re hurt in an accident caused by a city or county vehicle?

While cities and counties in Georgia are usually protected from personal injury claims and lawsuits by a legal doctrine called sovereign immunity that says the government is immune from lawsuits, Georgia law makes an exception for accidents caused by city or county vehicles. Under Georgia law O.C.G.A. 36-92-2, cities and counties waive their sovereign immunity up to a cap that is set by state law.  The cap is:

  • $500,000 for one person that is injured or killed in a wreck;
  • A total of $700,000 if multiple people are injured or killed in a wreck;

Let’s use the City of Atlanta, where I live, as an example.  If you’re injured in a wreck caused by a City of Atlanta police officer or maintenance employee, the most you can recover from the City is $500,000.  If you have two friends in the car with you and all three of you are injured, the most any one of you could recover is $500,000, and the total recovery from the accident for all three people is capped at $700,000.  For instance, one person could recover $300,000, a second person can recover $200,000 and a third person can recover $200,000 for a total of $700,000.

The city or county can choose to raise this cap by passing a resolution or ordinance that does so or can purchase insurance in a higher amount.  A number of cities and counties in Georgia have done this and raised their cap to $1,000,000.

If you are injured in a wreck involving a city or county vehicle, you are required to send the city or county a legal notice called an “ante litem notice” before filing a lawsuit.  If you do not send the notice you lose your right to file a claim or lawsuit against the county or city.  We’ll discuss the requirements of an ante litem notice in detail in a future post, but generally you have six months to give notice to a city and 12 months to give notice to a county.

Note that this law does not apply to school boards.  So if you’re injured in a wreck caused by a school bus, different laws and procedures apply.

Breaking The 3-Foot Rule = Settlement for Injured Bicyclist

Georgia law requires that cars passing a bicyclist keep at least 3 foot between their car and the bicycle.  We recently settled a case against State Farm where a truck driver broke the 3-foot rule by striking an Athens man riding his bicycle with his truck’s mirror, causing the bicyclist to wreck and break his collarbone.  The settlement was for $50,000, which was the total amount of the driver’s State Farm insurance policy.  We were able to settle the case for the total amount even though the police incorrectly found our client at fault for the accident.

The Accident

Mr. J was riding his bicycle on 441 South at about 5:30 AM and was on his way to work.  Georgia law requires a bicyclist to ride as far to the right of the road as possible and Mr. J was doing so by riding his bicycle on the right shoulder.  A Chevy truck approached Mr. J from behind and the driver apparently did not see Mr. J until the last second.  The truck driver swerved to the left to avoid hitting Mr. J but the truck’s right-side mirror hit him, throwing him off the bicycle and breaking his collarbone. The police officer who investigated the wreck found Mr. J at fault because his bicycle allegedly did not have reflectors on it.  We secured and photographed the bike after the wreck and it clearly had the reflectors that Georgia law requires.  Unfortunately, some police officers automatically blame a bicyclist for a wreck instead of investigating what actually happened and it appears this may have been one of those situations.

The Settlement

We sent a settlement demand to State Farm and argued that the truck driver obviously broke the 3-foot rule by driving close enough to Mr. J that his right-side mirror could hit him.  We also argued that Mr. J was obeying Georgia law by riding his bicycle as far to the right as possible and by having reflectors on the front and rear of his bike, which would have made him visible to the truck as it approached from behind.  State Farm accepted our demand and agreed to pay Mr. J $50,000, the total amount allowed under its insurance policy.  The settlement will allow Mr. J to pay his medical bills and compensate him for the time he’s missed from work as a result of the wreck.

No Insurance Coverage For Bicyclist Hurt By Hit & Run Driver?

A friend and I were talking about the Atlanta bicyclist that was injured when he was struck by a hit and run driver earlier this week.  The police have announced that they believe the driver intentionally hit the bicyclist and that the driver is wanted on charges of aggravated assault with a motor vehicle.

My friend asked if the driver’s car insurance (when he’s found) will pay for the driver’s injuries and medical bills without a fight.  You’d think the answer would clearly be yes – there’s no dispute who’s at fault here and the bicyclist was badly injured and is in the hospital.

Surprisingly, this isn’t as open and shut as it seems.

Car insurance policies only cover accidents.  They don’t cover intentional or criminal acts like intentionally hitting a bicyclist with a car.  The driver’s insurance policy will likely challenge whether it has to cover the accident by claiming that this was both an intentional and criminal act of aggravated assault.  The insurance company does this in a lawsuit called a declaratory judgment that asks the judge to rule that it doesn’t have to cover the accident.

There’s a lot of similarities between the criminal trial of the driver and the declaratory judgment lawsuit filed by the insurance company. Both juries will hear all of the same testimony and evidence from the bicyclist, driver, witnesses and police.  Both juries will have to decide whether the driver committed aggravated assault and whether the driver acted intentionally when he hit the bicyclist (because intent is an element of aggravated assault).  While the jury in the criminal case has to find the driver guilty beyond a reasonable doubt, the jury in the declaratory judgment lawsuit has to find the driver committed aggravated assault and acted intentionally by a preponderance of the evidence, meaning that it’s more likely than not that the driver did so.  If the jury in the declaratory judgment lawsuit finds that the driver acted intentionally and committed a crime, the driver’s car insurance does not have to cover the wreck.

Whether or not the driver’s insurance has to cover this wreck, the bicyclist will be able to make a claim on his uninsured / underinsured motorist coverage for his injuries.  Here’s wishing him a speedy recovery.

$300,000 Settlement For Injuries From Slip & Fall On Unsafe Stairs

We recently settled  a case against MiddleOak Insurance Company for $300,000 on behalf of a Marietta woman who slipped and fell on unsafe stairs leading to her condo.  Ms. S broke her elbow in the fall, requiring two surgeries to repair, and she had over $100,000 in medical bills.

The Accident

Ms. S lived at a condo complex in Marietta, Georgia.  The stairs leading to her apartment looked like this:

IMG_20130709_170152

The green you see on the the tread of the staircase is astroturf that was old and very worn down and extremely slippery when wet.  One day, it was raining and Ms. S took her dog for a walk. She slipped on the astroturf and fell, breaking her right elbow.  She was taken to the hospital and diagnosed with a radial head fracture and a fracture to her ulna.  She had surgery the next day, another surgery two weeks later and months of physical therapy before she recovered.

Our Investigation

The condo association replaced the stairs a couple of months after Ms. S’s fall.  The new stairs look like this:

newstairsentrance

As you can see, the new stairs are quite different from the old stairs and much safer.  We retained an engineering expert who reviewed the pictures of the old stairs and determined that they violated local building codes in a number of ways.  The landings were uneven, each stair was a different height, there was no handrail on the left side and the astroturf was improper and never should have been put on the stairs.

We also interviewed several of Ms. S’s current and former neighbors and discovered that the stairs had been like that as long as anyone could remember, the astroturf was at least 10 years old, that there was a similar fall several years ago and that Ms. S and her neighbors had made multiple complaints and requests to repair the stairs but that the condo association had never done anything.

The Legal Challenge

Slip and fall cases like these are called premises liability lawsuits.  Georgia law has a rule called the “prior traverse” rule, which says that if a person has walked over the area that caused their fall, they’re considered to know that it is unsafe and can’t sue if they’re injured.  In most situations, the prior traverse rule makes sense, as people shouldn’t be able to sue if they know an area is unsafe and walk through it and are injured.

In a normal case, the prior traverse rule would prevent Ms. S from recovering for her injuries because she had walked up and down these stairs several times every day and knew they were unsafe and that the astroturf was slippery when wet.   However, these stairs were the only way in and out of her condo and she didn’t have a choice but to walk up and down them to get to and from her home.

In situations like this, Georgia law has what’s called the “necessity doctrine.”  The necessity doctrine is an exception to the prior traverse rule and allows a person to recover for their injuries if the area that causes their injury is the only way in and out of their home.  The law says that a person shouldn’t be a prisoner inside their own home due to unsafe conditions like these steps.  The necessity doctrine also encourages landlords to keep their properties safe and in good condition because the landlords know they can be held responsible if someone is hurt by an unsafe condition on their property.

The Settlement

Using the necessity doctrine, we filed a lawsuit against the condo complex.  We used the engineering expert and Ms. S’s current and former neighbors to prove that the stairs were unsafe, violated building codes and that the condo complex knew about the stairs and didn’t do anything to fix them.  We ultimately won a $300,000 settlement for Ms. S.

$100,000 Settlement for Broken Kneecap in Car Accident

We recently settled a case against Progressive Insurance for $100,000 on behalf of a man who broke his kneecap in a car accident, requiring surgery to repair.  The settlement was four times our client’s medical bills, which were approximately $25,000.  The settlement was also $75,000 more than Progressive’s pre-lawsuit offer of $25,000.

The Wreck

Mr. D and his friend were on their way to a camping trip and were driving on Shallowford Road in Roswell, Georgia.  They were driving around a slow curve and were at the end of a line of cars.  Traffic slowed to let a truck at the front of the line make a right turn into a driveway.  Mr. D’s friend didn’t notice that traffic was slowing down and rear-ended the car in front of him.  He was ticketed for the wreck and paid the ticket, admitting he was responsible.

The Injuries

The wreck caused Mr. D’s knee to strike the dashboard of the car, breaking it into two pieces.  He had surgery a week after the accident to fix it, which required drilling metal screws into his kneecap to reattach the broken pieces.  Here’s an x-ray of his broken kneecap before the surgery:

knee xray for blog

Mr. D had a lengthy recovery that involved months of physical therapy and then exercises for his knee to do at home.  He made a good recovery but due to the injury and surgery still has “hypersensitivity” of his knee, which means that his knee is extremely sensitive and causes him problems kneeling and bending.

The Lawsuit and Settlement

Mr. D’s friend had insurance with Progressive.  Mr. D initially tried to settle his case against Progressive by himself.  When they only offered $25,000, he called us.

Progressive refused to increase its settlement offer and we filed a lawsuit. Progressive initially denied responsibility for the wreck and even blamed other drivers for causing it.  After we deposed Mr. D’s doctor who performed the surgery and began preparing the case for trial, Progressive offered to mediate the case.  At the mediation, we were able to reach a $100,000 settlement for Mr. D.

 

Trucking Company Sanctioned For Destroying Evidence After Wreck

When a tractor-trailer causes a wreck and injures or kills someone, incriminating evidence has a way of quickly “disappearing.”  If a tractor-trailer company destroys evidence after a wreck, the judge can sanction the company for “spoliation of evidence,” which means destroying evidence. Our firm recently won a court order sanctioning a trucking company for destroying evidence after a wreck that injured our clients.

Our clients were injured in a March 2012 wreck with a tractor-trailer.   They retained our firm shortly after the wreck and we sent a letter to the tractor-trailer company and their insurance company requesting that they preserve evidence relating to the wreck.  These letters are called “spoliation letters” and let the trucking company know that if they destroy or fail to preserve the evidence requested in the letter that we will seek sanctions against them for spoliation of evidence.

The spoliation letter specifically requested that the trucking company preserve the driver’s logbooks, which show how many hours the tractor-trailer driver had been driving the day and week of the accident.  These logbooks are the best evidence of whether the driver was following or violating the safety regulations that govern how many hours tractor-trailer drivers are allowed to drive.

We filed a lawsuit against the trucking company and requested that they produce the driver’s logbooks to us.  When the trucking company did not do so, we deposed the trucking company’s safety director.  He testified that even though the trucking company received the spoliation letter and initially did preserve the logbooks, they were destroyed about six months later.  We then filed a motion for sanctions for spoliation of evidence against the trucking company and the judge granted our motion, finding that the trucking company destroyed evidence.  The judge is reserving her ruling until trial on what sanctions she will issue against the trucking company.  Trial is scheduled for this summer and we’ll keep you posted.

Insurance Companies Denying Snowjam 2014 Claims?

We’ve heard that State Farm, Progressive, Allstate and many other insurance companies are denying all claims for accidents from the winter storm in Atlanta in January 2014 that caused thousands of accidents and left drivers stuck on the roads for hours on end.  According to potential clients we and other lawyers have spoken with, insurance companies are denying claims across the board, claiming that their drivers aren’t at fault because of the snow.

Can these insurance companies do this?

Unfortunately, yes.  An insurance company can choose to deny a claim for any reason they want and can use the snow as an excuse, even though it may not be fair or good business practices.  However,  it’s ultimately up to a judge and jury – and not the insurance company – to decide whether the insurance company and their driver are responsible for causing a wreck.

That being said, these aren’t going to be open-and-shut cases.  While a person still has a duty to drive safely in the snow, remember that it’s up to the jury to decide whether the other driver was negligent and caused the wreck.  The jury will be filled with people who were stuck in the snow or had loved ones and friends that were.  The jury may have sympathy for a driver who was trying to get home to his wife and kids, was driving slow and hit an ice patch and rear-ended the car in front of him and find him not at fault for the wreck.  On the other hand, the jury may not have sympathy for someone who was driving too fast for conditions, ran a red light or left home after it was obviously unsafe to drive and will still find them at fault for the wreck.

Insurance companies will probably be more aggressive in denying and defending claims and lawsuits from Snowpocalypse than usual.  In cases where it’s questionable whether their driver caused the wreck, the cars weren’t badly damaged, you weren’t seriously injured or have an injury that the insurance company believes wasn’t caused by the wreck, the insurance companies will probably fight you tooth and nail.  However, if the other driver is obviously at fault for the accident and you have a real injury, the insurance companies will still fight your case but will probably make a fair settlement offer as the case is getting ready for trial.

First Settlements in Stryker Hip Replacement Lawsuits

Lawyers for injured patients and Stryker reached the first settlements in the Stryker hip replacement lawsuits, with four New Jersey cases settling for confidential amounts. 

These are the first settlements in over 1,000 lawsuits have been filed against Stryker over its defective hip replacements, with more than 600 filed in New Jersey and more than 400 filed in federal court in Minnesota.  Stryker has estimated more than 20,000 people received the recalled hip replacements and the number of lawsuits is ultimately expected to number in the thousands.

Read more about the Stryker hip replacements and lawsuits herehere and here.

Settlements Reached After Mediation

The settlements were reached after lawyers for both sides agreed to mediate ten of the New Jersey cases.  Six cases have already gone to mediation, with four settling and the remaining four mediations scheduled for January.  All six of the cases that went to mediation involved people whose hip replacements failed and had to have surgery to repair and replace the hip replacements. The four cases that settled involved people who made good recoveries from their surgery, while the two that did not settle involved people who suffered significant complications, permanent injuries and lost wages.  These two cases did not settle because Stryker’s settlement offers were too low and did not adequately compensate the people for what they’ve been through.

Outlook for Stryker Hip Replacement Settlements

While no global settlement has been reached on behalf of everyone injured by the recalled hip replacements, it looks like Stryker is interested in settling on a case-by-case basis.  If the mediations continue to be successful, we can expect to see more mediations and settlements in the New Jersey lawsuits and likely in the federal court cases as well.  Whether a settlement of all the cases can ultimately be reached depends on whether Stryker is willing to pay fair settlement amounts for people who’ve had serious complications or permanent injuries from their failed hip replacements.

Free Consultation for Stryker Hip Replacement Lawsuits

Our firm represents people injured by recalled Stryker hip replacements.  We represent people in Georgia and across the country.  If you or a loved one has been harmed by one of the recalled hip replacements, please call for a free consultation.

Confidential Settlement For HERO Driver Hurt In Tractor-Trailer Accident

After more than two years of litigation, we recently settled a case on behalf of a Georgia Department of Transportation HERO truck driver who was seriously injured when he was hit by a tractor-trailer while removing debris from I-85.  Mr. M suffered a fractured knee, requiring surgery to repair, and will need at least one knee replacement as he gets older.  His past and future medical bills and lost wages were over $183,000. The settlement amount is confidential at the request of the tractor-trailer’s insurance company.

The Accident

The accident happened on June 21, 2011.  There was a large tractor-trailer tire tread in the middle of I-85 that was disrupting traffic and causing cars to swerve around it.  After several drivers called 911 to report the tread, Mr. M was dispatched to remove it.  He turned on his HERO truck’s flashing lights and sign board and slowly came to a stop in the middle of I-85. He waited for traffic to stop behind him and then got out of his truck, picked up the tire tread and threw it on the side of the road.  Here’s a news photograph showing an overhead shot of Mr. M’s HERO truck:

Mr. M was walking back to his HERO truck when the wreck happened.  A tractor-trailer was driving down I-85 and saw traffic stopped for Mr. M’s HERO truck.  The driver hit the brakes but the brakes malfunctioned and he was unable to stop the tractor-trailer.  The tractor-trailer slammed into two cars stopped behind the HERO truck and then hit Mr. M as he was running back to the side of the road, throwing him to the shoulder and badly breaking his knee.

Officers from the Georgia Department of Public Safety’s Motor Carrier Unit inspected the tractor-trailer after the accident and found that its brakes malfunctioned because 60% of its brakes were out of adjustment.  They placed the tractor-trailer “out of service” and cited the driver for multiple violations, including operating an unsafe vehicle.  We’ve previously posted more about why the accident happened here.

The Injuries

An ambulance took Mr. M to the hospital, where he was diagnosed with a tibial plateau fracture of his knee, a fractured wrist and strains and sprains of virtually his entire body.  He had to have surgery to repair the knee fracture, which required inserting a metal plate and screws, and required months of physical therapy to recover.  Mr. M’s doctor testified that he will have problems with his knee the rest of his life and will unfortunately need at least one and possibly two knee replacements as he gets older.

Mr. M had $86,000 in medical bills and over $12,000 in lost wages from missing several months of work.  His doctor estimated the cost of a future knee replacement at $85,000, bringing the total amount of Mr. M’s damages to over $183,000.

The Lawsuit and Settlement

Our firm filed suit shortly after the June 2011 accident and litigated the case for over two years.  The tractor-trailer company denied responsibility for the wreck, refused to admit that it had done anything wrong and even went so far as to blame the previous owner of the tractor-trailer for not properly maintaining the brakes. The tractor-trailer’s insurance company rejected multiple demands to settle the case, initially offering only a little more than Mr. M’s medical bills and lost wages.

We deposed multiple witnesses to the accident, the police officers who investigated the accident and inspected the tractor-trailer, the tractor-trailer driver, the owner and employees of the trucking company and hired expert witnesses to inspect the tractor-trailer and do a reconstruction of the wreck.  When we deposed the “expert” witnesses that the tractor-trailer company had hired, they testified that the brakes malfunctioned due to dirt, grease and grime that had built up in the brakes and that the accident could have been prevented by regular inspections and maintenance of the brakes and simply keeping the cab of the tractor-trailer clean.

We were preparing the case for trial in early 2014 and took the case to a court-ordered mediation, where the trucking company finally admitted responsibility for the wreck and agreed to a confidential settlement.  The settlement fairly compensates Mr. M for his injuries, future knee replacement and problems that he’ll experience with his knee the rest of his life.  While he’ll never be able to return to his job as a HERO truck driver he’s back at work for the DOT in a different job and has gone back to school to get an IT degree and is looking forward to a new career.

Nearly 1,000 Stryker Hip Replacement Lawsuits Filed, More Expected

Nearly 1,000 Stryker hip replacement lawsuits have been filed in federal courts and state courts across the country, with the number of lawsuits expected to grow quickly within the next several months.

Stryker hip replacement lawsuits filed in federal court were previously consolidated into federal multi-district litigation in federal court in Minnesota and lawsuits filed in New Jersey state court were consolidated into Bergen County Superior Court.  As of November 2013, there were over 550 lawsuits filed in New Jersey State Court, 370 filed in the Minnesota federal multi-district litigation and more than 20 filed in Florida.  At a recent status conference, the plaintiffs’ lawyers stated that they expected the lawsuits filed in federal court to soon number more than 1,000.

Update on Stryker Hip Replacement Lawsuits

The lawsuits in both federal court and state court are moving through the discovery and evidence-gathering phase of the lawsuits.  Stryker has produced several thousand pages of documents relating to the design of the hip replacements and plaintiffs’ lawyers have recently begun taking depositions, which are sworn statements under oath, of Stryker employees.  Discovery will likely continue for some time, as there are many more depositions to be taken and Stryker has to produce additional documents, which are expected to number in the thousands.  In hopes of reaching an early settlement of the lawsuits, both sides have agreed to mediation for several cases.

Stryker Hip Replacement Recall

Stryker recalled its Rejuvenate and ABG II hip replacements in June 2012 because of a defective design that causes the metal neck and metal stem of the hip replacement to corrode and release tiny metal particles into the tissue surrounding the hip replacement, causing pain, swelling, tissue and bone death and high levels of chromium and cobalt in a person’s bloodstream.  Recent scientific studies have also shown that the hip replacements are failing at a high rate, requiring patients to undergo surgery to remove and replace the defective hip replacements.

Free Consultation for Stryker Hip Replacement Lawsuits

Our Atlanta, Georgia Stryker hip replacement attorneys are reviewing cases on behalf of people who were injured by the recalled hip replacements.  We represent people throughout Georgia and the United States.  Call for a free consultation.