Category: Georgia Law

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 Personal Injury Attorney Joel Williams

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 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 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.

Georgia Discovery Process

Unfortunately, you were involved in a motor vehicle accident, which caused you injury and forced you to miss time from work. The injury has taken a toll on both your personal and professional life. You went to a lawyer who listened to your story and filed a complaint. Shortly thereafter, you received an answer from the other side.

At this point, you would like to gain more information about the accident. You would like to question the other side to help strengthen your case. You would also like to discuss certain things with eyewitnesses. In other words, you want to gather as much pertinent information as possible so that you can present your case. In addition, you would like information about the other party so that you can prepare for possible questions that the other side may ask you.

Title Nine of the Georgia code provides for such a mechanism, which is called discovery. Discovery is generally allowed during the six months after a defendant files an answer. This time period can be lengthened by motioning the court for an extension.

The main ways to obtain information during the discovery phase of a lawsuit are interrogatories, depositions, document production, and requests for admissions.

Interrogatories

Interrogatories are formal questions that one side will ask the other. These questions must be answered. The Georgia code allows one party to compel the other party through an interrogatory, to divulge who will be called as a witness. Interrogatories will also seek information concerning other basic facts of the case such as insurance coverage and most anything relevant to the case.

Depositions

Depositions are an oral examination of the other party or a witness outside of court. The party’s attorney will conduct a deposition and the person being deposed will be sworn in under oath. The deposition will usually be recorded. Georgia law generally caps the length of a deposition at seven hours, though the party conducting the deposition can request for an extension from the court.

Document production

One party can request that the other party produce all documents that may lead to the discovery of relevant evidence. This must be a written request and the other party generally has thirty days to respond. A request for document production can also be served on a third party, provided the requesting party reasonably believes that the third party has relevant information.

Request for admissions

One party can send formal questions asking the other party to either admit or deny certain allegations. Request for admissions are generally used to narrow the issues for trial so the parties do not waste judicial resources litigating things that are not disputed.

It is important to note that the other party may not cooperate with the discovery process. When this occurs, your lawyer should consider filing a motion to compel. Under the Uniform of Superior Court Rules of the State of Georgia, a party claiming that the other party is not cooperating with the discovery process may file a motion in court asking to compel the other party to comply with the request. The court may issue a Protective Order in favor of the moving party to compel discovery compliance. However, before any motion is filed, the parties must confer in a good faith effort to resolve any dispute prior to asking for court intervention.

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 for a free consultation.

Res ipsa loquitur in Georgia

Res ipsa loquitur Personal Injury Litigation Attorney Georgia

Res ipsa loquitur in Georgia

Imagine you are driving on I-75 heading to work. You find yourself following a convoy of large trucks. The latch holding the back door closed loosens on one of the trucks, causing the back door to open. The truck is carrying large containers. Once the back door is fully opened, large containers start falling out of the back. One container slams into and breaks your windshield, causing you to suddenly hit the brakes. Your car spins out of control and hits another car and then the cement guard rail. As a result, you suffer injuries and your car is a total loss.

A similar story occurred in England approximately 150 years ago. A man was walking down a public street minding his own business. As he passed a store that sells flour, a barrel of flour fell from the store’s second story loft and hit him in the head, injuring him. This is the case of Byrne v. Boadle from 1863. In that instance, the plaintiff was unable to prove that the flour store breached its duty of care, which is an element of negligence. Nonetheless, the Court ruled that the defendant is responsible for the plaintiff’s injuries due to the tort doctrine of res ipsa loquitor, which means the thing speaks for itself. This doctrine infers a defendant’s negligence based on the events. Georgia law recognizes this doctrine.

Note that this doctrine does not prescribe guilt upon a defendant; instead, it makes a rebuttable presumption that the defendant was negligent. If a plaintiff demonstrates that the events clearly point to negligence, the plaintiff need not prove the elements of negligence; instead, the onus shifts to the defendant to prove that there was no negligence. In the above example, a court would likely infer negligence, thereby placing onus on the truck driver to prove that there was no negligence.

The Doctrine

The determination that some outcomes may be more probative of unacceptable behaviors underpins the doctrine of res ipsa loquitur. It permits a finding of negligence, based on the second Restatement of Torts, when “the accident causing the plaintiff’s harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is a relevant member.” The doctrine allows the plaintiff to infer negligence despite not alleging or proving that the defendant committed a specific negligent act.

Other examples of res ipsa loquitur are when a surgical team leaves a sponge or other surgical equipment in a person’s body, when a vehicle hits livestock on an urban street, and where a car veers off an empty road. A jury may find that the doctor, livestock owner or driver are liable without knowing any more about the case.

Georgia Law

The Georgia Jurisprudence of Personal Injury and Torts explains that “Res ipsa loquitur is a rule of evidence that permits an inference of negligence to arise from the happening of an event causing an injury; however, it is only applicable where it is shown that the defendant owns, operates, and maintains, or controls and is responsible for the management and maintenance of, the thing doing the damage and that the accident is a kind that, in the absence of proof of some external cause, does not ordinarily happen without negligence.”

Georgia courts have applied the doctrine of res ipsa loquitur. However, those courts caution that a thorough examination of the facts must determine that there is no other way for the injury to occur absent negligence.

Contact us

If you have been injured in an accident, contact a lawyer who will zealously fight to get you just compensation. If you have questions or would like to discuss your case, please call Joel Williams in Kennesaw, Georgia today at 833 – LEGALGA for a free consultation.

New Speed Regulations Proposed for Large Trucks

Tractor Trailer Speed Regulations Georgia Law Wrongful Death Injury Attorney

New Speed Regulations Proposed for Large Trucks

The National Highway Traffic Safety Administration (NHTSA) and the Federal Motor Carrier Safety Administration (FMCSA) have teamed up to propose new restrictions on large trucks on U.S roadways. The restrictions would limit large trucks’ maximum speed on all roads. Experts estimate that the measure would save lives and decrease fuel costs by more than $1 billion each year. Proponents see the rule as a huge win for both safety and the environment.

Installing Speed Devices

The proposal involves installing speed limitation devices (electronic engine control units or ECUs) for any vehicle over 26,000 pounds, including commercial trucks, buses, multi-purpose passenger vehicles, and school buses. The device would restrict the vehicle from traveling above a certain speed. Speeds of 60, 65, and 68 have been discussed. The NHTSA Administrator, Mark Rosekind, explains, “Even small increases in speed have large effects on the force of impact. Setting the speed limit on heavy vehicles makes sense for safety and the environment.”

The commercial trucking company would be responsible for maintaining the speed limit devices, which means the majority of the costs would fall on the trucking companies themselves. It would give manufacturers three years to ensure that their truck fleets were properly equipped with the required ECUs before issuing fines or other sanctions for violations of the rule. The rule would apply with equal force to manufacturers and those who purchase large trucks.

ECUs have been installed in many trucks since 1999, mostly for internal control of speed. The devices may or may not have been used, however. The regulation would not only require that ECUs be installed in new trucks, but they would be set at a standard speed throughout the country.

Large Trucks and Safety

Two data-gathering mechanisms, the Fatality Analysis Reporting System (FARS) and the National Automotive Sampling System General Estimates System (NASS GES) analyzed crash data involving large trucks between 2004 and 2013. When it considered those accidents and that speed likely affected the severity of the collision, it found that those crashes alone resulted in 10,440 deaths over that ten-year period. Annually, that means that there were roughly 1,044 deaths caused by trucks weighing over 26,000 pounds traveling at high speeds. As a rule, then, crashes involving large trucks are deadlier at higher speeds than accidents at lower speeds.

Truck accidents disproportionally affect other drivers. For example, in 2010, 3,413 people died in accidents involving large trucks, and only 14 percent of those were the individuals occupying the truck. Occupants of different vehicles made up 73 percent of deaths while motorcyclists, bicyclists, and pedestrians made up the other 13 percent. Most these accidents occurred on roads other than interstate highways.

The sheer size of larger trucks often makes them more dangerous because of increased stopping time and difficulty in controlling the vehicle in severe weather conditions. While large trucks account for only four percent of the registered vehicles on the road, they are involved in nine percent of the motor vehicle crash deaths.

The proposed rule would hopefully increase safety overall while also having a positive effect on the environment. The trucking companies themselves would ultimately end up saving costs related to fuel and insurance.

If you or a loved one has been involved in an accident with a large truck, you may have legal options. Call 833-LEGALGA today to speak with tractor-trailer attorney Joel Williams for more information.