Month: November 2016

Georgia Tort Claims Act

Accidents happen—and when automobiles are involved, the people injured frequently sue the driver of the other vehicle and the driver’s insurance company. Those injured in Georgia can sue the other party in court for negligence by filing a personal injury case. What if the accident involves a state employee? For instance, a person suffers an injury after an accident near Marietta on State Route 280 that involves a private citizen and a driver for the Georgia Department of Corrections. The private citizen suffers an injury and blames the other driver for negligence. Under the Georgia Tort Claims Act, this is not a simple situation.

Georgia Tort Claims Act Explained

The Georgia Tort Claims Act provides that the state of Georgia waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment.” However, there are exceptions when the state does not waive its immunity, wherein a person injured in an accident cannot recover for a personal injury claim against the state. The state is not liable for personal injury claims if the injury results from the following circumstances:

An act or omission by a state employee who was exercising due care to carry out a statute, regulation, or similar rule, even if the rule in question was not valid
Carrying out or failing to carry out an optional duty
Assessing or collecting any tax or detaining any goods or merchandise
Legislative, judicial, quasi-judicial, or prosecutorial action
Administrative action or inaction
Failing to provide law enforcement, police, or fire protection
Civil disturbance, riot, insurrection, or rebellion
Assault or battery
Libel or slander
Interference with contractual rights
Regulatory powers
Financing regulatory activities such as examinations, inspections, and audits
Training or duty activities of the Georgia National Guard, except auto accidents
Failures or malfunctions of state computer software or programs

Even if no exception applies, a person injured in an accident can only sue the state if the alleged accident occurred while the state actor was acting within his or her official duties. In such an instance, however, the injured person may be able to bring a claim against the state officer or employee as a private individual. In the above scenario, a person injured in the accident with the truck from the Department of Corrections would be able to sue the state for negligence, provided that the driver was acting in his or her official capacity. The state is responsible in that instance because the driver is acting on behalf of the state. However, in these situations, the recovery is often limited to the amount of insurance available for the specific incident.

Police Inaction

As noted above, police inaction is not an actionable claim against the state in Georgia. Thus, if a riot breaks out and a private individual calls the police and the police do not show, the private individual cannot bring a personal injury action against the police even if he or she can demonstrate that an injury would not have occurred had there been a sufficient police presence. If you are injured in an accident, you need a lawyer who is knowledgeable and experienced in Georgia personal injury law. Contact the law firm of Williams Elleby Howard & Easter, experienced personal injury lawyers at 833-LEGALGA.

Negligence Per Se and Car Accidents: Georgia DUI Law

Georgia DUI Negligence Wrongful Death Personal Injury Car Accident Attorney

Georgia DUI laws are codified under Georgia’s “Uniform Rules of the Road.” These laws require those operating motor vehicles to comply with certain traffic requirements. Violations of these laws generally lead to tickets. Repeated violations can result in jail or prison time.

Those suing for damages due to another driver’s negligence can use the Uniform Rules of the Road under the negligence per se doctrine. Negligence per se literally means that an act is negligent because the person performing the act is in violation of a statute. Negligence per se can also be applicable to driving under the influence (DUI) suits.

Proving Negligence

The Georgia Court of Appeals, in Johnson v. American National Red Cross, outlined the elements for a prima facie case of negligence as: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff.” If a plaintiff, by the preponderance of the evidence, proves these elements, then the accused defendant would be financially responsible to the plaintiff.

Georgia DUI Law

Georgia’s DUI laws ban drivers from operating motor vehicles if they have blood alcohol concentration percentages of:

0.08% or higher, if they’re 21 years old or older operating regular passenger vehicles.
0.04% or higher, if they’re operating commercial vehicles.
0.02% or higher, if they’re younger than 21 years old.

DUI charges are very serious in Georgia. The first conviction would require a defendant to undergo counseling and pay a fine. A fourth DUI conviction within ten years would have the defendant go to jail for one to five years, in addition to attending mandatory counseling and paying a fine.

Negligence Per Se

As previously mentioned, negligence per se is a legal theory wherein a defendant’s unexcused violation of a law creates a presumption that the defendant is guilty of negligence. Note that negligence per se does not mean that the defendant is liable for negligence, only that there is a presumption that the defendant was negligent.

In a car accident scenario where a person suffers injuries and the accused committed DUI, there is a presumption that because the defendant violated the DUI statute, he or she was negligent. First, it must be established that the defendant was driving under the influence above the legal limit. Once that is established, the injured party can claim that because the defendant violated the Georgia DUI law, he is therefore presumably negligent. At this point, the burden of proof shifts to the defendant, who must prove that he was not negligent. Thus, negligence per se is a powerful tool in proving the negligence of another because it creates a burden-shifting presumption.

If you have been injured in an accident due to the negligence of another, you must find a lawyer who will aggressively fight on your behalf. Contact the personal injury law firm of Joel Williams, a Cobb County attorney.

How Much Will a Georgia Car Accident Lawyer Cost?

Wrongful Death Personal Injury Attorney Fees Cost Georgia

Some people shy away from hiring an attorney after an accident because they think it will cost too much. It is true that lawyers can be expensive; however, many personal injury lawyers in Georgia accept cases on a contingency fee. This payment arrangement enables victims to file a claim without having to pay their attorney up front, but perhaps the most beneficial aspect of this arrangement is that victims often do not have to pay anything unless they win their case. In short, contingency fee arrangements allow the victim to file a claim virtually risk-free.

How Does a Contingency Fee Work?

A contingency fee is “contingent,” meaning it depends on a certain outcome. In a car accident case in Georgia, it means that you will only pay your attorney a fee if you receive compensation for your injuries. Each payment arrangement is slightly different, so it is important to read your fee agreement with a potential attorney carefully. In some arrangements, the attorney may expect you to pay for costs such as filing fees or expert expenses as they become due. In most situations, however, the attorney will cover these costs for you, but they may be added to your bill if your case is successful. Other examples of expenses that may be required to cover include:

Postage and copies
Mileage (or other travel expenses)
Court reporter fees
Medical records fees
Police reports
Expert fees
Filing fees

If you lose your case, your Georgia personal injury attorney will likely end up waiving these costs. You are generally not responsible for any fees if you do not win your case.

How Much Is a Contingency Fee?

The contingency fee is typically a percentage of your overall award or your settlement amount. The percentage usually ranges from 30 to 40 percent, but most contingency fees are around 33⅓ percent of the total award or settlement. The fee may vary depending on how complicated your case is. For example, an attorney may work out a deal with you in which his fee will be 33⅓ percent if he can settle your case for a reasonable amount without filing a lawsuit. If the case must be filed, the fee may increase to 40 percent. If you appeal the lower court’s decision, the fee may increase to a higher percentage. Such increases are designed to account for the added time, effort, and expense at each stage of your claim. Keep in mind that this percentage is in addition to any costs that may need to be reimbursed.

What Are Benefits of the Contingency Fee Arrangement?

Car accident lawyers in Georgia use the contingency fee arrangement because it benefits victims who are likely dealing with a lot of issues, such as medical bills and an inability to work. Having to pay an attorney’s fees on top of that would deter many individuals from filing a car accident lawsuit and getting the compensation they deserve. The contingency fee arrangement removes cost as a barrier so that more people can have access to the court system. Williams Elleby Howard & Easter takes car accident lawsuits on a contingency fee basis because we want to help victims get their lives back on track. Call 833-LEGALGA for more information or to set up a free consultation.

The Personal Injury Lawsuit Process

personal injury lawsuit wrongful death attorney Georgia

Contrary to what you may see on television or hear on the news, the vast majority of lawsuits do not end up in court. Instead, they are settled. Some disputes are even settled before a party files a lawsuit. If you have been injured in Georgia and are considering initiating a lawsuit, it might be helpful to know the basics of how the process works. Understanding the steps can help provide you with a realistic idea of what to expect.

Before the Lawsuit

An insurance company will likely contact you shortly after the accident. It may attempt to get you to settle your claim even at this early point. Insurance companies are often successful because victims tend to be confused and overwhelmed after an accident. However, settling this early is rarely a good idea. When an insurance company contacts you after your accident, you may not yet understand or appreciate the full extent of your injuries or how they will affect your future. Instead of jumping at the first sign of money, you should contact an Atlanta, Georgia, personal injury attorney. A lawyer will be able to evaluate your case and determine whether the insurance company is offering you a good deal or trying to take advantage of you. If a reasonable settlement cannot be achieved, the next step is to file a lawsuit.

The First Step in Filing a Personal Injury Claim

The first step in a lawsuit is filing a petition. This petition lays out the facts of the case and explains why you are entitled to compensation under Georgia law. The other side will reply to your petition via what is called an “answer.” This answer must respond to each of the factual and legal assertions your personal injury attorney made in your petition. From there, the parties will begin the discovery process.

The Discovery Phase

Discovery takes up a majority of the time and effort in a legal case. During this phase, you will work with your Georgia personal injury lawyer to gather information. You can do this through formal discovery by asking the other side questions in writing and demanding that they produce particular documents. You can also request to depose the other side. A deposition is a formal, in-person question-and-answer session that is held under oath. Discovery may also involve extensive research or the use of experts. You can even subpoena other parties to gather more information. Discovery can be a long and complicated process, depending on the case. The discovery process is extremely important to building a good case for trial, however.

Trial

Most people are familiar with the trial process, but it is not like what you have seen on television. If the parties have prepared properly, there should be no surprises. Trial is your chance to present your case to the jury and explain why you deserve compensation for your losses after an accident. Personal injury lawsuits rarely reach the end of a trial because parties can still settle a claim throughout the trial. And while some cases are better suited for trial, many others can be more efficiently resolved through settlement, alternative dispute resolution, or mediation. Taking a case all the way to trial can take years, so parties often settle to save time and money. Your personal injury attorney will be able to help you navigate the process. Call Williams Elleby Howard & Easter at 833-LEGALGA for more information or to request a free consultation.

What Is Personal Injury Law?

When you hear the words “personal injury law,” you probably think of bodily injuries, but it also extends to property damages, lost wages, and a number of other potential losses after an accident. What really sets personal injury law apart from other areas of the law is that it is not based on a violation of criminal law. Instead, it is based on wrongdoing that does not constitute a criminal law violation but still harms another person. You can have a criminal case and a personal injury case at the same time, but the legal standards are different. Personal injury law is based on tort law.

An Overview of Tort Law

Wrongdoing is another name for the legal term “tort,” which comes from a Latin term meaning “harm” or “wrong.” Personal injury lawsuits are civil cases that often involve accidents.

Tort cases are based on a legal concept known as “negligence.” The term is synonymous with carelessness, disregard, or inattention. If someone was negligent, he or she acted in a way that fell below the standard of care for the situation. That is, the person did not conduct his or herself in a way that a reasonable person would have in a similar situation.

For example, consider a simple traffic accident in which one party runs a red light and hits another vehicle. The party who ran the red light is negligent because he did not obey the traffic laws. A reasonable person would have obeyed the traffic laws. Therefore, the party that ran the red light is negligent.

Negligence is often explained as a breach of a duty to another person. In the context of traffic, for example, all drivers have a duty to be careful and attentive behind the wheel. Failure to pay attention or to follow the rules of the road often results in a breach of a person’s duty to other drivers. In such situations, if the person’s breach caused harm, that could result in legal liability.

Common Types of Personal Injury Cases

Personal injury claims involve a variety of legal claims. Some of the most common types of personal injury claims include:

Vehicle accidents
Products liability
Slip-and-fall cases
Medical malpractice
Dangerous drugs or medical devices
Wrongful death
Airplane and boating accidents

Although accidents that happen at work are technically considered personal injury, they are usually addressed under Georgia’s workers’ compensation laws.

Compensation in a Personal Injury Case

When you are injured because of someone else’s negligence, you can pursue compensation for your injuries and losses. Compensation may include payments for medical expenses, lost wages, pain and suffering, lost future earning capacity, future medical treatment, and more.

Compensation in a personal injury case is commonly referred to as “damages.” Damages are designed to put you back in the same state as you would have been if the accident never occurred. Although money can never truly put your life back together, it does help with some of the changes you may experience after an accident.

Learn more about personal injury cases and whether you have legal options after an injury by contacting Williams Elleby Howard & Easter at 833-LEGALGA.

Truck Accidents Due to Mechanical Failure

Wrongful Death Tractor Trailer Accident Mechanical Failure Georgia Persoanl Injury Attorney

The effects of a truck accident are often long lasting. Trucks are large, heavy, and unwieldy. Understanding the implications of accidents involving large trucks and tractor-trailers can be the difference between a $5 million case and a $1 million case. “A close look into truckers, the trucking industry, and virtually every trucking accident will often reveal rampant drug use, mechanical problems, driver fatigue, violation of federal regulations, sketchy qualifications, and dubious ethics,” Frank L. Branson writes in the “Anatomy of a Truck Catastrophe” (Oct. 24, 2009). Mechanical problems are the second leading cause of accidents involving tractor-trailers. Although the government imposes higher standards of inspections on such vehicles because of their potential for severe accidents, many truckers fail to follow regulations. Truckers are required to inspect their vehicles daily and make repairs as needed, but many do not. As a result, there is a real possibility of major damage when an accident involves a tractor-trailer or other large truck.

Accident Management

When a commercial vehicle is involved in a serious accident, the Department of Transportation (DOT) conducts a post-accident inspection of the tractor-trailer. These investigations will document any mechanical problems, especially any problems with the brakes or tires. The primary purpose of these inspections is to determine if the truck should be taken out of service. These government inspections do not determine the cause of the accident, but rather whether the truck should remain on the road. Therefore, other experts are needed to carefully examine all of the vehicles involved in the crash. After receiving the first phone call about an accident involving a truck, the plaintiff’s attorney must act quickly to protect the client’s interests. In almost all truck accident cases, a claims adjuster and a collision reconstruction expert will be at the scene within twenty-four hours, protecting the trucking company’s interests. The plaintiff’s counsel must be able to move quickly if there is to be a level playing field with the trucking company and its insurers.

Determining Mechanical Failure

To present a case before a judge and jury, a trial lawyer needs to understand the facts. The trucking company and the insurance carrier have their people out to protect their interests. As such, the plaintiff must present a case demonstrating the vehicle’s inadequacy. To accomplish this, the plaintiff may need to hire experts to inspect the truck and the scene of the accident. Once the plaintiff is armed with information, he or she can state that the truck caused the accident due to mechanical failure.

Items to Look For

The following are common mechanical failures that may cause an accident:

Defective tires
Brake failure
Light outages

If you have been injured in an accident with a tractor-trailer that experienced mechanical failure, you need a lawyer who understands the impact of such an accident. Call the law office of Williams Elleby Howard & Easter at 833-LEGALGA.

Invitees, Licensees, and Trespassers—Georgia Premises Liability Law

Property owners can be liable for injuries that occur on their property, even if the owner does not actively do something that causes the injury. However, just sustaining an injury on another person’s property does not automatically make the property owner liable for the injury. The injured party must prove that the owner or occupier failed to use reasonable care to keep their property safe. This is known as premises liability law and includes slip and falls, negligent security, swimming pool accidents, dog bites, and even falling deck cases.

The Georgia Law

Georgia law states that “where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

In other words, a property owner is liable for injuries that occur on the property, but only if the injury was a result of the property owner failing to safely maintain the property. For example, if a bottle of water falls off the shelf in a grocery store and spills all over the floor, the property owner can be held liable if shoppers slip on the water and hurt themselves. This applies even if shoppers, rather than store employees, cause the water to spill. The standard is “ordinary care,” which requires the property owner to maintain the property as a safe place, even if the property owner or employees did not create the unsafe situation.

Invitees, Licensees, and Trespassers

In addition, the property owner must induce the other party to enter the property in order to be held liable. In tort law, there are three categories of victims when determining premises liability: invitees, licensees, and trespassers.

Invitee: a person who is invited to the property, by the owner, as a member of the public or for business purposes. People who go to an open store to shop are invitees.

Licensee: a person who is on the property of another because the owner of the property allowed the person to enter. He is there for his own purposes and not for the benefit of the owner. This category is applicable to property not open to the general public. The most common example is a social guest.

Trespasser: a person who enters the property without permission of the owner.

The degree of care a property owner owes to another person depends on whether that person is an invitee, licensee, or trespasser. O.C.G.A. § 51-3-1 governs the property owner’s duty of care to invitees. A grocery shopper is an invitee, so the statute will apply in the example with the spilled water. If the water is not removed in a reasonable time and an injury occurs, the property owner will be liable for injury. However, if the person entering the property is a licensee or trespasser, a different more restrictive standard will apply.

If you have been injured in an accident, you need a knowledgeable personal injury lawyer. Contact Williams Elleby Howard & Easter today.

How Long Do I Have to File My Cobb County, Georgia, Personal Injury Case?

Wrongful Death Personal Injury Statue of Limitations Georgia Attorney

The law imposes time restrictions, so defendants do not have to live in fear of being sued forever. Time limits are also helpful because they force plaintiffs to file a case when memories and evidence are fresh. It is much easier to gather facts and evidence right after an accident occurred than years later. These time limits are often referred to as “statutes of limitations.”

Statute of Limitations for Personal Injury Cases in Georgia

Georgia has a two-year statute of limitations for personal injury cases. That means you must file your claim within two years for it to be legally valid. If you do not file your claim within this time frame, your lawsuit will likely be dismissed.

Personal property damage has a four-year statute of limitations. Personal property damage claims are often asserted at the same time as a personal injury claim.

Keep in mind that personal injury claims can include:

Vehicle accidents
Slip-and-fall situations
Pedestrian accidents
Bicyclist accidents
Product liability (when a product causes harm)
Medical malpractice

For most situations, the statute of limitations will start to run as soon as you are injured. However, sometimes you may not realize you are injured until long after an accident. For example, if you are exposed to toxic chemicals, you may not show become ill until months or years later. Because of situations like these, the statute of limitations clock often does not start until the victim discovered the injury. That is, you have to actually know and understand that you were injured before the statute of limitations will start. This rule is commonly referred to as the “discovery rule.”

Statute of Limitations Tolling

The statute of limitations can be “tolled” under certain circumstances. Essentially, this means the time limit pauses due to unique facts of the case. For example, if a child is harmed in a car accident, that child may have a right to assert a personal injury case, but he or she cannot do so until age 18. In that situation, the statute of limitations pauses until the child becomes 18.

The statute of limitations may also be tolled when the individual is incompetent or mentally incapacitated.

Certain claims may have other restrictions. For example, medical malpractice claims have what is commonly called a statute of repose. Under this rule, there is not only a statute of limitations, there is a cutoff point from the date of the injury, regardless of the tolling of the statute of limitations or the discovery rule. In Georgia, the statute of repose for medical malpractice claims is five years, even though the statute of limitations is only two years. That means you cannot file a medical malpractice claim in Georgia once five years have passed since the incident, regardless of when you realized you were harmed.

As a rule, it is best to file a personal injury claim in Georgia as soon as practical after an accident to avoid problems with the various timeline restrictions. Call Williams Elleby Howard & Easter at 833 – LEGALGA for more information or to schedule a free consultation.

Statue of Limitations

Georgia Law Regarding Suing a Truck Operator’s Insurance Company After an Accident

Suing Tractor Trailer Insurance Personal Injury Car Accident Attorney Georgia

One morning, a mother drives her children to school in suburban Cobb County. It is a clear fall day in late October. The mother drops the kids off and heads home to do housework. On the way, an 80,000-pound tractor-trailer unexpectedly swerves into her lane and crashes into her car. The mother suffers severe injuries in the crash and needs immediate medical attention. An ambulance arrives at the scene and transfers her to a nearby trauma hospital. The mother suffers spinal injuries and facial fractures, requiring surgery. After four months in the hospital, she is released but still needs physical therapy, pain management, and psychological care.

In addition to tremendous physical and psychological suffering, the mother also has to deal with expensive medical bills. She is unable to care for her children and needs help managing their daily activities. She consults a lawyer, who determines that the driver lives in a low-income area and likely does not have the means to cover the mother’s bills. The trucking company that employed the driver is a small company and probably has similarly limited means. Therefore, the lawyer decides to sue the insurance company that insured the tractor-trailer.

Respondeat Superior

Georgia, as well as many other states, recognizes the legal theory of respondeat superior, which literally means, “let the master answer.” Under this legal doctrine, an employer can be vicariously liable for the acts of an employee, provided that the employee is operating within the course and scope of his or her employment. Vicarious liability of an employer permits holding the employer responsible for the negligence of an employee. In such an instance, the employer would also be responsible for satisfying monetary damages caused by the employee’s negligence.

The legislative intent of respondeat superior is the belief that holding the employer responsible increases the victim’s chances of adequate compensation, because an employer tends to have more financial resources. Because the employer controls the employee, the employer should be responsible for the employee’s actions while working in the course of employment. Under this legal theory, the employee is considered an agent of the employer.

Insurance Company Liability

In addition to holding the trucking company liable for the negligence of the tractor-trailer driver, Georgia law permits someone injured in a trucking accident to directly sue the insurance company. The insurance contract between the trucking company and the insurance company was intended to remunerate those who might be injured in accident with the truck. Trucks, due to their large size, are more likely to cause significant injury when involved in an accident with a member of the public. Therefore, in the example above, the mother would sue the driver, the trucking company, and the insurance company by naming them as defendants in a negligence suit.

If you’ve been injured in a tractor-trailer wreck in Georgia, you need a lawyer who is familiar with Georgia personal injury law. Contact Joel Williams, a Cobb County personal injury attorney.