Category: Georgia Law

Vicarious Liability

Typically, a person is only liable for his or her own actions. It usually isn’t fair to hold one person responsible for the actions of someone else. But there is a big exception to this general rule: vicarious liability.

Vicarious liability is the theory that a superior can be held responsible for the actions of a subordinate that is acting in their control. In Georgia, people can be held vicariously liable for the actions of certain family members under the “family purpose doctrine.” Under the doctrine of respondent superior, employers can be held vicariously liable for the wrongful actions of their employees.

There are two big reasons that Georgia recognizes respondent superior. One is that employers benefit from the work-related actions of their employees. Because employers are enjoying the benefit of work-related actions, Georgia law suggests that they should bear the burden of risk for any harm that occurs as a result of those actions. Another reason is that Georgia law seeks to fully compensate victims for their harm. Employers typically have much bigger pockets than their employees. So it also makes sense for them to bear the financial cost of helping accident victims.

O.C.G.A. § 51-2-2

The basis of vicarious liability in Georgia is found in the Georgia Code Section 51-2-2, which states that “Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.”

Vicarious Liability and Auto Accidents

Vicarious liability, particularly under the doctrine of respondeat superior, occurs in a variety of circumstances. However, vicarious liability is invoked most commonly following auto accidents. The Court of Appeals of Georgia has defined the family purpose doctrine in this context by holding that “when an owner of a vehicle maintains the vehicle for the use and convenience of his family, that owner may be held liable for the negligence of a family member who was using the vehicle for a family purpose.”

Employers, meanwhile, are generally liable for harm caused by employees that are driving a vehicle for work purposes. There are two elements of respondeat superior:

1. The employee must be acting in furtherance of the employer’s business; and
2. The employee must be acting within the scope of his job.

Therefore, employers are generally liable for accidents caused by employees that are driving in the “course and scope” of their job. However, Georgia courts have generally concluded that employers are not vicariously liable for accidents caused by employees driving to and from work.

Cases involving vicarious liability can be exceedingly complex. Whether an employee was acting in the course and scope of their job is often highly contested. In some cases, whether a person should even be considered an employee in the first place is an issue. An experienced personal injury attorney can help accident victims navigate these types of claims successfully and get them justice.

CONTACT THE KENNESAW PERSONAL INJURY ATTORNEYS AT Williams Elleby Howard & Easter FOR MORE INFORMATION

The personal injury attorneys at Williams Elleby Howard & Easter have experience handling vicarious liability claims in Atlanta and throughout the state of Georgia. If you have been injured in an accident and think vicarious liability might apply, Williams Elleby Howard & Easter can help you understand your legal rights and options, and vigorously work to get you the compensation you deserve. Call 833-LEGALGA to schedule a free consultation today.

Defective Road Design/Construction

On March 30th, 2017, a bridge on Interstate 85 collapsed in Atlanta. The bridge was weakened by a massive fire that was started in the underpass by a group of homeless people. The highway has just recently reopened. The arsonists were arrested. Although this event has been blamed on the fire, the collapse also raises questions about the quality of the bridge itself. And in fact, a subsequent investigation found that hundreds of Georgia bridges are “structurally deficient.”

Although Georgia actually ranks quite well in road quality—according to U.S. News and World Report Georgia ranks 9th in road quality among all U.S. states—there are still numerous problems with road design and construction in the state. When auto accidents occur as a result of deficient design or construction, victims may be entitled to compensation from the construction company or the government.

Common Road Design/Construction Problems

Common problems with road design and construction in Georgia include:

Damaged, confusing, or missing signs;
Missing lane markers;
Lack of proper maintenance;
Trees or bushes that obstruct visibility;
Unsafe curves;
Poorly constructed guardrails, or absence of guardrails where some are needed;
Defective bridge design;
Road or bridge deterioration due to poor materials used;
Unfixed cracks or pot holes;
Sloped driving surface; and
Debris or trash left over after construction is complete.

Bringing a Personal Injury Case in Georgia

Defective road design or construction claims are tort claims in which the plaintiff must prove that the construction company or government body owed them a duty, negligently breached that duty, and that the harm was caused because of that negligence. Governments have a duty to keep roadways safe, and construction companies have a duty to build safe roads. When either negligently fails to fulfill their respective duties, and accidents occur as a result, victims have a right to sue.

To bring a claim against state or local governments, sovereign immunity must be overcome. Simply put, the doctrine of sovereign immunity holds that governments are immune from lawsuits. However, under the Georgia Tort Claims Act, the state of Georgia waived this immunity for personal injury lawsuits. Municipalities in Georgia have also waived this immunity. Counties, however, have generally not waived sovereign immunity. Therefore, if you get in an accident on a country road, you most likely will not be able to sue.

If you are planning to sue the government for defective road design or construction, it is imperative to have a qualified attorney fighting for you because there are all sorts of special procedural rules that have to be followed. Proving your case will also require extensive and well-documented evidence. The attorneys at Williams Elleby Howard & Easter, have experience handling these types of cases and are here to help.

Contact Williams Elleby Howard & Easter, to Discuss Your Case

If you would like more information about this issue or if you have been injured due to poor road design or construction, contact Williams Elleby Howard & Easter at 833-LEGALGA today to schedule a free consultation.

Driverless Cars

The era of the driverless car is upon us and commutes from suburb cities like Kennesaw and Marietta to Atlanta will likely see some interesting changes. This technology could revolutionize the way we get around by removing the work of driving. What’s more, this technology has the potential to greatly reduce accidents by taking out the human-error component. Benefits aside, driverless cars present some fascinating legal implications.

The law must grapple with the policy of permitting and licensing these cars. For the most part, the trend around the country is that states are increasingly receptive to allowing driverless cars on the road. There is also the question of fault in the event of an accident. At what point are errors by a driverless car the fault of the operator? In other words, when a driverless car does something wrong, is it the fault of the car manufacturer or the person sitting inside?

Driverless Car Legislation

Only five states have passed comprehensive driverless car legislation. However, dozens of other states are considering such legislation, and it is only a matter of time before driverless cars are regulated across the country by a patchwork of state laws. In Georgia, Senate Bill 54 is currently being considered. This bill states that driverless cars must:

Have an easy mechanism to give the operator control at any time
Clearly indicate when the vehicle is operating in autonomous mode
Can alert the operator if a technology failure is detected while the vehicle is operating autonomously
Be capable of being operated in compliance with the uniform rules of the road

Driverless Cars and Accident Law

In March, 2017, a news article reported that a self-driving car used by Uber got in an accident in Arizona. Driverless cars may operate with computer-precision, but the people on the road can be erratic. As the article reported, “How machines respond to those behaviors, and whether they also engage in them, is something engineers still have to sort out.”

Determining accident fault is also something that needs to be sorted out. In the Arizona accident, the Uber car was at fault when it was on autopilot. It is possible that accident claims like this are best made against the manufacturer and designer of a car, perhaps as a product liability claim. However, it is also the case that the people riding in these cars maintain the ultimate control and could still bear responsibility. So what happens if you get in an accident in Georgia with a driverless car? It is uncharted territory, but if you find yourself in such an accident, you should contact an experienced personal injury attorney to figure out how to best proceed with your claim.

Assuming driverless cars decrease accidents, we should also expect insurance rates to plummet. An increase in driverless cars could also popularize no-fault insurance, in which an insurer pays without considering fault. These are just a few of the legal and policy issues that the use of driverless cars poses.

If you would like more information about the legal impact of driverless cars in Georgia, contact Williams Elleby Howard & Easter, at 833-LEGALGA today.

Wrongful Death Claims in Kennesaw, GA

Wrongful Death Claims in Kennesaw, GA

Losing a loved one is always difficult. If the death was caused by someone else’s negligence or otherwise wrongful actions, it can be even harder to accept your loss and move forward. In these cases, family members often have a legal right to make a claim against the wrongdoer. Although it is impossible to replace a lost loved one, under Georgia law surviving family members are entitled to compensation that can help alleviate the hardship.

However, it’s important to know that these cases can be complicated and lengthy. They often involve multiple parties, and proving damages requires substantial evidence. This being so, anyone bringing a wrongful death claim to court should be represented by an experienced wrongful death attorney. A skilled attorney can help make sure you receive the compensation you deserve, while minimizing any stress the case may cause.

Georgia Wrongful Death Claims

In Georgia, wrongful death actions are governed by Title 51 Chapter 4 of the Georgia Code. These claims are intended to compensate surviving family members for their loss. They are made by family members themselves. These claims are usually brought alongside a so-called survival action that can be made by the decedent’s estate.

A survival action compensates an estate for things like medical and hospital expenses and any pain and suffering endured. A wrongful death action, meanwhile, compensates family members for what they have lost as a result of the death, which includes things like loss of companionship, income, and any services that the decedent provided. According to Georgia law, wrongful death damages should reflect the “full value of the life of the decedent as shown by the evidence.”

Who Can Bring a Wrongful Death Suit

Only certain people can bring a wrongful death action under Georgia law:

If there is a surviving spouse, they and only they may bring the claim;
If there is no spouse, then the claim goes to the decedent’s children;
If there is no spouse or children, living parents may bring the claim; and
If none of the above family members are alive, the clam may be made by the estate.
No other family members can bring a wrongful death claim in Georgia.

Statute of Limitations

If you have lost a loved one due to a wrongful act, it is important to consult with an attorney to discuss your case within a few months of the incident. This is because under the Georgia statute of limitations wrongful death actions must generally be brought within two years of the date of the death. Once the statute of limitations period has run, a claim is barred completely.

Contact Our Personal Injury Law Firm

The attorneys at Williams Elleby Howard & Easter are dedicated to getting justice for victims of wrongful death in Kennesaw and throughout Georgia. Joel has consistently been recognized as one of the best trial lawyers in Georgia, and this has helped him to maximize recoveries for hundreds of his clients. If you have lost a loved one due to the negligence or intentional action of someone else, Williams Elleby Howard & Easter will fight for you to get the compensation you deserve. Contact Williams Elleby Howard & Easter, at (409) 389-1035 today to schedule a free consultation.

Punitive Damages in Georgia

Punitive Damages in Georgia

Some of the largest verdicts in Georgia involved a jury punishing egregious conduct by a defendant with a verdict that includes punitive damages. These damages compel the defendant to pay more than he would have to pay under normal circumstances. For tort claims, Georgia law provides three categories of payment: general damages, special damages, and punitive damages.

General damages include pain and suffering, while special damages include medical expenses and lost wages. Regarding punitive damages, the Georgia Code provides: “Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences…Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” In other words, for a plaintiff to recover punitive damages, the plaintiff must demonstrate to a judge or jury that such damages, which act as a punishment, are appropriate.

The average motor vehicle accident wherein the plaintiff alleges negligence is usually not eligible for punitive damages. Circumstances that have a higher probability of punitive damages are a hit and run, drunk driving, road rage, and intentionally harming someone with a motor vehicle.

Procedure to Attain Punitive Damages

There is a specific procedure to obtain punitive damages in Georgia. First, a plaintiff must specifically ask for punitive damages from the defendant in the Complaint. Next, a jury must hear arguments that punitive damages are appropriate. As mentioned from the Georgia Code, the plaintiff must demonstrate by clear and convincing evidence that the defendant’s actions consisted of willful misconduct, malice, fraud, wantonness, or the like. Finally, provided that the jury agrees that punitive damages are proper, the jury would convene, at a second portion of the trial, to determine the amount of payment for punitive damages.

Note that the standard is clear and convincing evidence, not preponderance of the evidence. Although the plaintiff can prevail at the trial by showing it is more likely than not the Defendant was negligent, an award of punitive damages requires the plaintiff to demonstrate appropriateness by a clear and convincing standard.

Punitive Damages against the Government

If the government – be it the state, county or municipal government – is a defendant in the lawsuit, then the plaintiff cannot recover punitive damages as Georgia law excludes the government from such damages. Therefore, if there is a motor vehicle accident involving a private citizen and a government owned vehicle, the private citizen cannot obtain punitive damages. This applies even if the plaintiff demonstrates that the defendant government engaged in willful misconduct by clear and convincing evidence.

However, a government employee can be liable for punitive damages if the plaintiff demonstrates that such is appropriate by clear and convincing evidence.

Contact us

If you’ve suffered an injury due to a car accident, contact the personal injury law firm of Williams Elleby Howard & Easter, a Cobb County, Georgia law firm who fights for injury victims. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA for a free consultation.

The Duties of a Georgia Landowner

The Duties of a Georgia Landowner

Landowner duties are governed by an area of law known as premises liability. The general rule under Georgia premises liability law is that a landowner has a duty to exercise a reasonable standard of care to prevent others from being harmed on their land. But, the precise duty a landowner owes a person largely depends on whether that person is classified as an invitee, a licensee, or a trespasser.

Invitees, Licensees, and Trespassers

The rule regarding invitees in Georgia is summed up by O.C.G.A. 51-3-1, which states: “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.” Thus, invitees are owed a high standard of care, and landowners must keep a premise reasonably safe for them and warn them of any dangers.

A landowner is liable to a licensee only for “willful or wanton injury.” According to O.C.G.A. 51-3-2, a licensee is a person who: “(1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.” The perfect example is a social guest at your home.

A trespasser, meanwhile, is owed only the most minimal standard of care against intentional acts of harm, such as setting a trap for someone or creating an unreasonably dangerous pitfall knowing that someone will likely fall into it.

Special Statutory Protections for Certain Landowners

Georgia has enacted special protections against liability for certain landowners. Under the Georgia Recreational Property Act: “An owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

The law further states that when a landowner invites persons onto their land for recreational purposes they do not extend any assurance that the premises are safe for any purpose, confer the legal status of an invitee or licensee to people they invite, or assume any responsibility for injury to person or property.

Liability for harm to users of land will only arise under this law if the landowner charges someone to come onto their land or willfully or maliciously fails to guard or warn against a dangerous condition.” The purpose of the law is to encourage landowners to make their land available to the public for things like hunting, fishing, and hiking.

Contact Williams Elleby Howard & Easter, for More Information

It is important for landowners to be aware of their duties and for both landowners and others using the land to be aware of their respective rights. If you would like more information about this issue, please contact Joel William Law, LLC, at 833-LEGALGA.

Avoiding Accidents Between Automobiles and Bicycles

Bicycle Safety Tips

There are hundreds of thousands of accidents between automobiles and bicycles each year in the United States. These accidents often have devastating consequences for the cyclists involved, so it is crucial for cyclists to understand their duties on the road and to exercise caution when riding. This article explains the basic legal requirements of cycling on the road and offers some other safety tips to follow.

Georgia Law

The most important thing for bicycle riders to be aware of is that under Georgia law, bicycles are legally classified as “vehicles.” This means that cyclists generally have the same duty to follow the rules of the road as motor vehicles do. For instance, cyclists must obey traffic lights and signs, must give the right of way to pedestrians, and must ride along in the same direction as traffic. However, there are some special rules that apply to cyclists:

Under O.C.G.A. 40-6-292, it is illegal for more than one person to ride a single-person bicycle at the same time. An exception exists for infants that are secured by an infant sling or affixed to the bicycle in a bicycle trailer.
Under O.C.G.A. 40-6-293, it is illegal for cyclists to attach themselves to a vehicle as they ride.
Under O.C.G.A. 40-6-294, cyclists must ride as close to the right side of the road as possible, except when turning left or avoiding hazards. It is important to remember that, although cyclists should stay as far to the right as they safely can, they have every right to ride in lanes of traffic if they need to avoid poor road conditions, pedestrians, or any other “hazard.”
O.C.G.A. 40-6-295 actually makes it a crime for anyone to carry anything on a bicycle that prevents them from keeping both hands on the handlebars at the same time. This law, however, does not mean that riders must always maintain both hands on the handlebars at all times – rather, they cannot carry something that prevents them from doing so.
O.C.G.A. 40-6-296 outlines several requirements for bicycle equipment. For instance, bicycles should always have working breaks and should have lights if they are being used at night.

Additional Safety Tips

Riding safely isn’t just about following the law; it is also about following your common sense. Here are some other basic safety tips:

Communicate with drivers by making appropriate hand signals and when possible, by making eye contact before crossing through an intersection.
Maintain control of your bicycle.
Protect yourself—reduce the risk of head injury by always wearing a helmet. In Georgia, riders under the age of 16 are legally required to wear a helmet.
Be visible, alert, and communicate your intentions.
Ride with traffic.
Motorists should always watch for cyclists at intersections, and be patient when passing a cyclist on the road. When passing, the Georgia DMV recommends allowing clearance of at least three feet.
The dangers of drunk driving get a lot of attention, but remember that riding a bicycle while intoxicated is highly dangerous as well. In fact, a recent federal study revealed that alcohol was involved in 34% of all fatal auto-cyclist crashes and that 24% of cyclists who were killed in these accidents were intoxicated.

Following these safety tips will help you stay safe on the road. Pay attention to other great resources out there are as well – but remember that not everything you read on the Internet is true. Official government sources, such as the National Highway Traffic Safety Administration, are excellent sources of gaining further information.

If you do get in a bicycle accident, a qualified bicycle accident attorney can help you understand your rights. If you would like more information about this issue, call Williams Elleby Howard & Easter, at 833-LEGALGA today for a free consultation.

The Acceptance Doctrine in Georgia

In personal injury cases resulting from defective construction, the “Acceptance Doctrine” in Georgia may determine whether the injured party has a valid cause of action against the contractor. Contractors often attempt to avoid liability for their negligence by asserting the common law acceptance doctrine as an affirmative defense. The acceptance doctrine generally provides:

[W]here the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract, at least, if the defect is not hidden but readily observable on reasonable inspection. Smith v. Dabbs-Williams General Contractors, LLC, 287 Ga. App. 646, 647 (2007).

Exceptions to the Acceptance Doctrine

There are several exceptions to this common law rule as it relates to negligent contractors. “‘One such exception is that the contractor is liable where the work is a nuisance per se, or inherently or intrinsically dangerous. Another is that the contractor is liable where the work done and turned over by him is so negligently defective as to be imminently dangerous to third persons.’” Hollis & Spann, Inc. v. Hopkins, 301 Ga. App. 29, 32 (2009) quoting Shetter v. Davis Bros., Inc., 163 Ga. App. 230 (1982).

Notwithstanding these exceptions, litigants should understand that the acceptance doctrine only applies if the defect is not hidden but readily observable on reasonable inspection. Further, where an expert is needed to determine whether a defect exists, issues of fact usually remain as to whether the defect was readily observable on reasonable inspection. These rules are clearly stated in Jai Ganesh Lodging, Inc. v. David M. Smith, Inc., 328 Ga. App. 713, 724 (2014). Jai Ganesh Lodging is a case involving a grading contractor who failed to properly compact dirt and fill material prior to the construction of a Holiday Inn Express. Less than four months after the Holiday Inn opened, problems with settling began and litigation ensued. The Court of Appeals of Georgia held that there was evidence that “the grading contractor’s failure to properly compact the fill material was concealed from view and below the surface and thus not observable or detectable.” The Court went on to emphasize “that testing by a specialist was required to determine if the grading contractor had sufficiently compacted the site.” Therefore, the Court held that issues of fact remained for the jury’s determination concerning whether the defect was “readily observable on reasonable inspection.”

For a contractor who follows a plan without negligence, the contractor is shielded from liability unless the contractor was an expert in the design of the type of work being done. When the contractor is an expert in the design of the work being done, he or she cannot ignore defects in the design from which it was to work. David Allen Co. v. Benton, 260 Ga. 557 (1990).

Leading Georgia Cases

One of the leading Georgia cases where the Court of Appeals declined to apply the acceptance doctrine is Hollis & Spann, Inc. v. Hopkins, 301 Ga. App. 29, 33 (2009). The relevant facts of Hollis & Spann involve a plaintiff that fell on a curb ramp at a hotel in Savannah. The plaintiff sued the contractor, Hollis & Spann, alleging that the curb ramp was defective because its flared sides exceeded the maximum slope allowance and failed to have detectable warnings. The plaintiff’s allegations were supported by an architect’s testimony. Hollis & Spann had to rebuild the ramp after it was rejected by the city inspector. After it was rebuilt, the ramp was accepted by the city building inspector and the hotel owner. The plaintiff fell after the ramp was rebuilt and accepted by the hotel and city inspector.

Hollis & Spann moved for summary judgment arguing that the acceptance doctrine precluded a finding of its liability. The trial court denied summary judgment finding that there was evidence that Hollis & Spann negligently constructed the curb ramp and that there was evidence supporting application of an exception to the acceptance doctrine. The Court of Appeals affirmed.

In its opinion affirming the denial of summary judgment, the Court of Appeals held that the architect’s testimony was sufficient to create a question of fact as to whether the ramp was negligently constructed. The Court of Appeals also noted that Hollis & Spann never inspected or measured the completed ramp to ensure that its slope complied with code requirements. The fact that the hotel owner and City inspector approved the rebuilt ramp did not render the acceptance doctrine applicable because “‘[I]t is too plain to be debated that if an action is negligent, approval of that negligence by another party or even a government agency, or rather of the conditions creating the negligence, does not as a matter of law excuse the negligence.’” Hollis & Spann at 33 quoting Johnson v. Fowler Elec. Co., 157 Ga. App. 319, 323 (1981).

Examples of the Acceptance Doctrine Shielding Contractor from Liability

Cases applying the acceptance doctrine often turn on (1) whether there is evidence that the contractor was negligent, (2) the amount of control the property owner exerted over the contractor, and (3) whether the contractor was negligent in the performance of its duties. For example, in Smith v. Dabbs-Williams General Contractors, LLC, 287 Ga. App. 646 (2007), the contractor (Dabbs-Williams) was instructed to construct a temporary restroom facility that would be used for approximately one month and it did so. Smith at 647. Once the work was complete, Dabbs-Williams was instructed to leave the property. Id. Smith did not contend that a hidden defect existed at the time Dabbs-Williams turned the property over to the owner. Id. at 648. The defect that caused Smith to fall only existed due to the negligence of the owner after the temporary facility was turned over to the owner by Dabbs-Williams. Id. Given that Smith presented no evidence that there were any hidden defects at the time the owner accepted the work of Dabbs-Williams, summary judgment was appropriate.

In Bragg v. Oxford Const. Co., 285 Ga. 98, 99 (2009), the contractor did everything it was directed to do, followed specific instructions, and performed its work to the satisfaction of the County. The Bragg plaintiff presented absolutely no evidence that the contractor performed the assigned work in a negligent manner so summary judgment was appropriate.

How to Learn More About the Acceptance Doctrine in Georgia

You can view a video with a detailed analysis of the Acceptance Doctrine in Georgia on our YouTube channel.

If you have been injured on a property due to a defect that existed as a result of a negligent contractor, you need an attorney who is experienced in the nuances of Georgia construction law. Georgia attorney Joel Williams handles defective construction cases throughout the State of Georgia. You can reach Joel at his office in Kennesaw by calling 833-LEGALGA today for a free consultation.

Malicious Prosecution & Malicious Arrest Claims in Georgia

Malicious prosecution occurs when someone initiates a civil lawsuit or criminal proceeding without “probable cause” or a good reason for asserting the claim. It is most commonly associated with criminal charges. It can also occur when someone brings a lawsuit for the purpose of harassing or bullying another person. The same can be said about malicious arrest—when police arrest you for the purpose of harassment or without a good reason, malicious arrest has occurred. Malicious arrest is also referred to as false arrest or wrongful arrest.

You may have a civil claim for damages as a result of malicious prosecution or malicious arrest. When the criminal charge is baseless or illogical, you may be able to claim compensation for the expense in defending the claim and any other damages that may have occurred. Money damages are often the most common remedy.

Asserting a Malicious Prosecution or Malicious Arrest Claim in GA

Both Georgia and federal law prohibit malicious prosecution. Under Georgia law, you must show that you were prosecuted against maliciously and that the claim lacked probable cause. The term “probable cause” is a legal term of art, and it is found in the Fourth Amendment of the United States Constitution. The term is generally associated with the police having a reasonable basis to conclude that a crime may have been committed. Probable cause is required before any search and seizure, as well as any arrest.

In addition, to assert a claim in civil court for malicious prosecution you must first win your underlying criminal case. Unfortunately, this process can be emotionally and financially draining. Nonetheless, it is a necessary first step to assert your claim. Your civil claim cannot start until the criminal claim has been concluded completely.

Under federal law, your claim is often under a civil-rights umbrella. Section 1983 requires that you prove the elements of a state law claim and violation of your Fourth Amendment rights.

A Successful Malicious Prosecution Case

Successful malicious prosecution or wrongful arrest cases are often started by witnesses that provide incorrect or misleading information. Some of the most common reasons for malicious prosecution are related to charges like assault, battery, or sexual assault. In those situations, some of the most important evidence is based on “he said, she said” information. The most important witnesses in those cases are not always reliable or may outright lie, depending on the situation.

Because you must win your criminal case before you can assert a claim for malicious prosecution, if you enter a plea of guilty or nolo contendere, your claim may not be available. The same can be said if you strike a deal with the prosecution and enter a plea bargain. You must actually enter a plea of not guilty and go through the entire trial process to have a viable malicious prosecution claim.

Malicious Arrest or False Imprisonment

Although malicious prosecution cases and wrongful arrest or false imprisonment are often associated claims, they are all distinct legal claims with different requirements for success. You can have one type of claim without the other and vice versa.

If you believe you or a loved one has been maliciously prosecuted, you may have civil remedies for your damages. Contact our team at Williams Elleby Howard & Easter in Cobb County, Georgia for more information.

Malicious Arrest

How Medicaid Can Effect a Kennesaw, Georgia Car Accident Claim

How Medicaid Can Effect a Kennesaw, Georgia Car Accident Claim

Medicaid is a state and federally-funded program that provides medical care and other services to low-income people. The Georgia Department of Community Health administers the Medicaid program as well as PeachCare, which provides medical assistance to uninsured children across Georgia.

If a person receiving Medicaid is injured in an accident, there may be certain consequences. Specifically, if a plaintiff sues a tortfeasor and attains an award due to injuries sustained in the accident, such an award may affect the plaintiff’s Medicaid coverage. In addition, there may be statutory requirements that compel the state to place a lien on a monetary award. As will be explained, there may be a down side to attaining monetary remuneration in the event of an accident.

Medicaid Coverage

Note that Medicare and Medicaid are not the same. Medicare generally covers adults sixty-five and older and those eligible for social security benefits by providing them with medical benefits and prescription drug coverage. Medicare is a federally-funded and operated program and there are no income or asset restrictions. In contrast, Medicaid is funded both at the state and federal levels, with each state tailoring the program for its specific needs. Each state is responsible for creating guidelines and administration of the program. To be eligible for Medicaid, people must fall within certain income and asset guidelines.

Personal Injury Award

Someone injured in a motor vehicle accident often suffers significantly from the accident. The victim goes to a lawyer who specializes in personal injury law and advocates on behalf of his client. There is a strong possibility that the lawyer will be successful at attaining a verdict or reaching a settlement that substantially improves the injured person’s circumstance.

The downside of the personal injury award is that if the victim is a Medicaid beneficiary, that person may lose Medicaid benefits. As mentioned, there are income and asset guidelines for Medicaid beneficiaries. The victim, as a result of the award, may lose crucial Medicaid benefits.

Special Needs Trust

A victim of a motor vehicle accident should not refrain from aggressively suing the tortfeasor because a personal injury award may affect Medicaid benefits; a victim should always aggressively pursue rightful justice. To avoid losing Medicaid benefits, a victim should set up a special needs trust and place award money in that trust. Under Georgia law, assets placed into a special needs trust are not deemed available resources for Medicaid purposes.

A special needs trust is a discretionary spendthrift trust created for people with disabilities. A spendthrift trust is administered by a trustee (not the beneficiary) who has full autonomy to use the money for the benefit of the beneficiary. The beneficiary has no control over the funds. As a result, a personal injury victim can maximize his well-deserved reward without losing important Medicaid benefits.

Contact us

If you’ve suffered an injury due to a car accident, contact the personal injury law firm of Joel Williams, a Cobb County, Georgia, lawyer who fights for injury victims. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA or visit us at our office.