Category: Personal Injury

Sue A Drunk Driver

In Georgia, if a drunk driver causes a car crash, the injured party can sue a drunk driver and recover additional damages known as punitive damages. What are punitive damages? We have written about punitive damages before. These are damages unrelated to the party’s injuries, but, rather, are to punish, penalize, and deter bad conduct. In theory, even if your injuries are minor, you could get a large punitive damages award. Punitive damages are a warning to the drunk defendant and the public that drunk driving is not tolerated. In other words, because drunk driving is a dangerous and preventable act, punitive damages mean you will pay a high price if you are caught driving drunk.

Georgia recently clarified the law regarding punitive damages:

“At about 5:00 p.m. on September 1, 2016, Lakenin Morris was driving his older cousin Keith Stroud’s car when he collided with a car driven by 18-year-old Alonzo Reid, sending Reid to the hospital. Morris had been drinking with Stroud, and Stroud asked Morris to drive his car and gave him the keys even though Morris was obviously drunk and Stroud knew that Morris was drunk, did not have a valid driver’s license, and had a habit of recklessness. Morris later pled guilty to driving under the influence (DUI).” Reid v. Morris et al., S20A0107 (June 29, 2020).

In Reid v. Morris, the issue was whether the injured party could sue a drunk passenger for punitive damages. The passenger argued that since he was not driving the vehicle, punitive damages do not apply. The Georgia Supreme Court disagreed. Although Georgia law seems to suggest that punitive damages apply only to “active” wrongdoers such as a driver, the Supreme Court found this interpretation too narrow. Rather, the Court ruled the important question is whether the intoxication caused the collision. Here, the drunk passenger asked his drunk friend to drive his vehicle. Asking a drunk friend to drive your car is negligent and therefore ultimately caused the collision.

If you need to sue a drunk driver, call us at 404-382-9994 to represent you. We have experience getting damages not only for your pain and suffering but also for punitive damages.

What is assumption of the risk and why is it important in a negligence case?

Insurance companies and defendants use assumption of the risk, a legal doctrine, to try to deny injury claims. The doctrine holds that if a person is aware of a dangerous condition, they should not ignore the risk. The above sign is a clear cut example: if you walk on the rocks and are injured, you cannot blame the landowner.

Most would agree we should be responsible for the consequences of voluntarily participating in activities we know are risky. But what happens when a landowner puts up a sign on their property saying: “be careful where you step because we are not responsible for any injuries.” If you are injured on the property, can the owner rely on its warning?

In Georgia, assumption of risk applies when the person injured (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Daly v. Berryhill, S19G0499 (2020).

How is this decided? While each case has unique facts, a court will look at whether the evidence shows the person knew of the specific risk of harm associated with the activity that caused injury, yet proceeded anyway. If there is a warning sign, like the one above, you are going to lose. If there was a general warning or no warning, but using common sense might have disclosed the risk, then it is a closer question.

An example would be someone who goes skiing assumes the risk they will fall and break a bone. If this happens, they cannot sue the ski resort for such an injury. On the other hand, if the ski resort failed to properly maintain a path down the mountain, but had warned that the path might be dangerous, then successfully suing the ski resort depends on whether the skier was aware of the particular risk.

If you have an injury case that involves negligence and assumption of the risk, please call us so we can explain your options.  

Getting Insurance to Pay When you Can’t Find the Negligent Driver

When suing a negligent driver for injuries, the general rule in Georgia is that the negligent driver must be personally served with the legal paperwork—this means a sheriff must hand deliver the legal paperwork to the negligent driver. This undisputedly insures that the negligent driver is aware of the lawsuit. But what happens when the negligent driver’s whereabouts are unknown? For instance, the negligent driver has moved or is intentionally avoiding service.

While this isn’t a common problem, it occurs from time to time. From a personal injury standpoint, this becomes a critical issue when the negligent driver has insurance coverage but can’t be found. Is the insurance company still on the hook to provide coverage?

If the negligent driver can’t be personally served, Georgia law allows what is called service by publication. This is when notice of the lawsuit is published in the local newspaper. This is permitted when the person resides outside the state, or has departed from the state, or can’t, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons. This language is found in O.C.G.A. § 9-11-4(f)(1)(A).

Sounds easy enough, but, as mentioned above, the important question is whether service by publication is sufficient to hold the insurance company liable. Like most legal questions, it depends …

Henderson v. James, A19A0632 (June 6, 2019), a Georgia Court of Appeals decision, faced the exact question. In this case, which involved whether an insurance company could be held liable on behalf of a negligent driver who couldn’t be personally served. Even though the negligent driver had been service by publication, the Court of Appeals ruled in favor of the insurance company, holding that service by publication gives a court personal jurisdiction (i.e., allows a recovery against the insurance company) if, and only if, all of the following apply:

(1) The lawsuit must involve a tort (a wrongful act or an infringement of a right leading to civil legal liability). Because injuries from motor vehicle collisions are considered torts, this is not an issue in these cases.

(2) The negligent driver must be a resident in the county where the lawsuit is filed and must be present within the county.

(3) The negligent driver must have actual knowledge of the lawsuit and must be intentionally avoiding being served with the legal paperwork.

Only if the evidence shows that all three of the above standards have been met will the insurance company be responsible for providing coverage. In Henderson, the injured party lost because the evidence before the court didn’t establish the second or third standards.

A trick used by the insurance companies is to file a motion to dismiss on this issue two years after the collision. In Georgia, there is a two-year statute of limitation. If the negligent driver isn’t properly served within the two years, then most of the time the case is dismissed. Generally, there are no second chances after the two years has expired.

Getting personal service within two years after the motor vehicle collision is critical. Please call us if you are injured in a motor vehicle collision. We have over 20 years’ experience dealing with these types of issues.

Suing a Parent of an Adult Child Who Causes a Motor Vehicle Collision

In Georgia, what happens if you help your adult child by co-signing on a car note and by getting automobile insurance for your child, and your child causes a collision that injures another driver? This was the issue in a recent case decided by the Georgia Court of Appeals: Yim v. Carr, A19A0715 (April 23, 2019). In Yim, the Court decided in favor of the parents who had been sued by the driver injured by their child.

Generally, parents are liable for injuries caused by a child if the child was doing something for the parents or for the family at the time the incident occurred. This is called the “family purpose doctrine.”  To establish that a parent is responsible for their child, the following must be found present: (1) the owner of the vehicle (the parent) must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner (the parent) must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose.

In Yim, although the vehicle was registered in parents’ name and driven by a family member, that wasn’t enough because the facts showed that the adult child had authority and control over the vehicle. Thus, title to the vehicle (which was in the parents’ names) or payment for the expenses of operation (which were being made by the parents) aren’t the deciding factors.

If you are injured by a minor driving their parents’ vehicle, please call us to discuss your options to make claims against both the driver and the parents.

Georgia Personal Injury: Smoke Detectors and Causation

In Georgia, if you’re injured due to someone else’s negligence, you can sue the party who caused your injuries. These cases are generally filed in the county where the party that caused the injuries resides, and are decided by what are known as trial courts. In the trial court, the parties collect evidence related to the cause and extent of the injuries. After the evidence is collected (this happens during “discovery”), the parties present this evidence to a jury, who decides who the outcome of the case.

The right to a jury trial, i.e., having the right to present disputes to randomly selected members of your community, is one of the founding principles of this country. In Georgia, Article I, Para. 6 of the Georgia Constitution and O.C.G.A. § 9-11-38 guarantee the right to a jury trial.

There is an exception to the right to a jury trial. This is when the party accused of the wrongdoing files a motion for summary judgment. These motions allege that, even with the evidence viewed in favor of the injured party, the facts and the law are so one-sided that the accused party should win without the need for a trial. In other words, a jury trial is a waste of time.

This is what happened recently in a case called Yearty v. Scott Holder Enterprises, A18A2074 (March 14, 2019). In that case, a woman, who had nodded off to sleep while waiting for her food to cook, badly burned her hand in a grease fire. She sued the company who installed the smoke detectors at her house. She claimed the smoke detectors didn’t go off, which made the fire much worse than if the alarm had timely sounded. After the evidence was collected, the trial court granted summary judgment to the company, ruling the woman could not prove that the company’s misconduct “caused” her injuries.

The injured woman appealed. In what appears to be a fundamentally flawed decision (at least to this writer), the Georgia Court of Appeals agreed with the trial court that summary judgment was proper based on the principle of causation. Incredibly, the Georgia Court of Appeals reasoned that “[the injured party] has not pointed to any evidence showing that but for a non-functioning smoke detector, [the injured party] would not have sustained her injuries.” This rationale is hard to understand when the very purpose of a smoke detector is to provide an early warning of a fire. Here, the woman claimed that had she had an early warning, she wouldn’t have been injured. This seems both logical and reasonable. Perhaps even more incredible, the court went on to rule that because the woman burned her hand while trying to put out the fire, she was to blame, regardless of whether the smoke alarm should have sounded.

Fortunately, there was a dissenting opinion. Three Georgia Court of Appeals judges decide these types of cases. Here, one of the judges disagreed with the other two. The dissenting judge pointed out the obvious, which is the purpose of a smoke detector is to “provide an early warning of fire  . . . to reduce injuries.” Thus, had the smoke alarm sounded in a timely manner, the injuries might have been prevented. Moreover, trying to put a fire out to minimize property damage, and possibly to save human life, is a natural reaction and shouldn’t get the smoke alarm company off the hook.

After hearing the evidence, maybe the jury would have sided with the woman or maybe the company, but this is case that should have been decided by a jury hearing evidence at a trial. Not by a judge or an appellate court.

If you are injured, please call us at 404-382-9994 to discuss your case.