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Let’s say you have been injured in a car wreck, or in a fall at a store, and the insurance adjuster for the insurance company of the at-fault driver or of the store owner calls you after your injury. They often want to take a recorded statement (which you should NOT give unless you have your lawyer present) about what happened, how you were injured and what your injuries are. Then they might reassure you that they “are there for you,”  and will be looking forward to resolving your claim with you, “don’t worry, everything will be okay,”  or “we’ll take care of you, just let us know when you have finished your medical treatment.”  Makes you feel better, right? So comforting and reassuring. You might even be thinking you can settle your personal injury claim without even having to hire a trial lawyer.  After all,  a trial lawyer will have to be paid for her work and if you can just handle this on your own with this very nice, concerned insurance adjuster, that’s more money for you, right?

WRONG.

One thing that is patently clear that I have come to understand in practicing personal injury law for 30 years in Georgia:  insurance adjusters are not your friends. They are trying to prevent you from being successful on a personal injury claim. They may even resort to trickery, subterfuge, and downright lies.

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The news from the Georgia Department of Public Safety was not good;  deaths on Georgia highways during the Holiday period rose again in 2017.   For just the Holiday period alone, there were 11 reported traffic fatalities. In 2016 there were 8 fatalities in the Holiday period.  The Department of Public Safety is reporting, thus far, 1499 traffic fatalities for the entire year, down from 1561 in 2016. Perhaps the Georgia Department of Transportation’s safety program “Drive Alert Arrive Alive” is working.  The PSA campaigns on television and social media that warn against drunken or distracted driving may be playing a positive role, too.  The National Highway Traffic Safety Administration’s “Drive Sober or Get Pulled Over” is not only catchy, but is seen in every state.  Throw in the ride services now readily available, like Uber and Lyft, and you simply have fewer folks on the road, which, necessarily, will mean fewer deaths.  Actual studies of whether these ride services are making a difference in traffic deaths show the jury’s still out on whether they really make a difference.

Georgia can be proud.  Nationwide, traffic fatalities continue to climb.  But not in Georgia. And that’s a good thing. Stay safe out there, Friends.

 

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others.  Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 29 years.  Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer.  Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.

 

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Some recent headlines about trial judges behaving badly and a recent bad experience I personally experienced at trial last week have me thinking about this:  what should you expect from a trial judge?  Competency?  Fairness?  Mercy?  Understanding? Knowledge of the rules of evidence? Impartiality? Experience? Ability to stay awake during the trial? Maybe all of the above?

I only half-jokingly included in the desired traits list above the ability to stay awake on the bench.  Just this week an Illinois appellate court ruled that the fact that the trial judge slept through some of a murder trial did not automatically result in a reversal of the conviction or warrant a new trial.  That sleeping jurist claimed he had not actually fallen asleep but was simply resting his eyes. “If I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said,” said O’Connor, who called the motion “disgusting,” according to a transcript cited in the appellate ruling.  So Justice may be blind but it doesn’t have to be awake?

The question of what should we expect in a trial judge also has been hotly debated this week when the Senate Judiciary Committee approved a judicial appointee of POTUS for a Federal trial bench opening in Alabama. The reason for the outrage among lawyers about the judicial nominee is the fact that he is only 36 years old, has never tried a case and has practiced law for only 3 years. Many have called him “clearly unqualified” to take the trial bench and that his appointment is “laughable”. He has literally never tried a case!  Can’t we all agree that to be able to preside competently over a trial by jury, make life-changing decisions of what evidence gets in and what evidence doesn’t, decide whether a litigant receives a constitutionally protected fair trial, that the trial judge should at least have tried a case before?

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Stop, Look, Listen!  We often hear that in regard to what you should do when you approach a train track in your vehicle. Stop, look and listen for a train before driving over the tracks. I can remember when I was little and rode the school bus home, the bus driver even opened the door to the bus at train tracks so he could see better and hear any potential approaching train more clearly. But shouldn’t the same rules apply for pedestrians before they cross a busy city street?  Should pedestrians also stop, look and listen for their own safety? Are they even required to do so?

I drive down Edgewood Avenue in Downtown Atlanta to get from my house to my office every day. Edgewood is a busy city street that goes through the heart of Georgia State University.  At any given time of the day, there are hundreds of college students crossing Edgewood Avenue to get to their next class to to their dorm room or maybe even to the library.l  The three photos above demonstrate a typical day with GSU students crossing Edgewood Avenue.  These photos show students crossing at the light, but students often cross Edgewood in the middle of the block, not at an intersection and without any traffic signal. Invariably, these young men and women are texting while walking, talking on their cell phones in deep conversations while walking, or even listening to something on their phones with earphones on while they cross one of the busiest streets in Downtown Atlanta.  Many pedestrians attempt to cross while vehicle traffic has a green light.  One of the photos above shows pedestrians crossing the street diagonally, which is certainly against the rules. Watching this sort of nonchalance and devil-may-care attitude regarding oncoming cars while they strut right out into the street had me wondering:  who would be at fault if a pedestrian crossing illegally where struck by a car that had a green light?  Does  a person who texts while they cross a street value his or her life? Or does the lack of taking any safety precautions for their own person, e.g., not texting while walking, forfeit the right to blame someone else when they are struck by a vehicle?

There is no question that texting while walking, especially while crossing a street, is a bad idea.   Research has found that, mile for mile, distracted walking results in more injuries than distracted driving, and makes pedestrians 60 percent more likely to veer off course. At least one city has taken the step to protect people from themselves.   Starting Wednesday, texting while walking across a street in Honolulu is illegal, thanks to a new law that allows police to fine pedestrians up to $35 for checking their phone, while crossing an intersection in the Hawaiian city and surrounding county.  Honolulu is, apparently, the first city in the U.S. and perhaps the world to ban texting while walking (TWW).  “This is really milestone legislation that sets the bar high for safety,” said Brandon Elefante, a City Council member who proposed the bill, in an interview with the New York Times.

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You probably by now have heard the shocking news that Equifax has been hacked by cyber terrorists which has resulted in the exposure of the personal data and identity of approximately 143 Million people. Now, in an obvious attempt at emergency public relations, Equifax has set up a website where those affected by the security breach, allegedly offering free credit monitoring. But here is the catch (you KNEW there had to be one): If you sign up for the free credit monitoring on the site Equifax has set up to supposedly help customers identify whether their information was stolen as part of the hack, you will (most likely unknowingly) have also signed a forced arbitration clause aimed at keeping consumers out of court, and shielding Equifax from lawsuits.
This comes after we learn that the higher-ups at Equifax, rather than trying to help you,  the potential victims of this massive data breach, sold many of their shares of stock, to the tunes of millions of dollars, knowing that the stock would surely drop after news of the hack became public.  A Federal class action has already been filed, alleging Equifax Chief Financial Officer John Gamble sold Equifax shares worth $946,3874; Joseph Loughran, president of Equifax’s U.S. information solutions, exercised options to sell stock worth $584,099; and Rodolfo Ploder, president of the company’s workforce solutions, sold $250,458 worth of stock.
We have corporate misbehavior of the worst order,  and a terrible data breach that may expose secret information of 143 million people.  All on a day when Equifax’s Chamber allies and trade association had several House Republicans holding a hearing pushing Rep. Loudermilk’s bill to gut the FCRA.   Then, to top it off, Equifax urges customers to sign up for a product that supposedly will help protect them, but that product has a fine print forced arbitration clause aimed at killing data breach cases.

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In continuing the series of blogs on distracted driving, I saw a heartbreaking story on the news last week that unfortunately fits right in with the other blogs on Texting While Driving and Snapchatting While Driving. An 18 year old girl was driving her 14 year old sister while operating a Livestream video feature of the Instagram app. Her car drifted into the other lane, and when she overcorrected, the car flipped. Her 14 year old sister was ejected from the car and died. The older sister — while driving — captured the whole thing on video.

The older sister was arrested on-site for suspicion of DUI and gross vehicular manslaughter. Even if the family does not file a civil complaint — for the wrongful death of one daughter caused by another — the driver faces 13 years in prison if convicted on all 6 felony counts.  (Keep in mind that there may be family immunity laws that would even prevent such a lawsuit).

In a recent case involving an accident while using the Snapchat app, the plaintiff sued Snapchat, Inc. for having the “speed overlay” filter, which has incentives for a driver to use the app while the car is in motion at high speeds. This differs from the Instagram Live function, which seemingly has no “incentives” or benefits for using the function except keeping friends up to date with your every move. Were this motor vehicle accident to be filed as a civil complaint, it would be interesting to see if Instagram could be held liable for the resulting death, as the “incentives” from the Snapchat app were the main argument behind the plaintiff’s claim.

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What is the price of a life lost? Could you put a price tag on your own life or that of a family member, killed at the hands of a negligent defendant? How much would you want people to say your life would have been worth?

These are the questions that juries must face when evaluating “damages” to award in wrongful death cases. Plaintiffs’ attorneys must ask the jurors to award money to a family who has lost its loved one due to the negligence of someone else. It’s tough to ask and even tougher to answer, but when parents have lost their child because of someone’s negligence, there must be some sort of monetary justice for the family.

So how much is a life worth? The Georgia Code provides: “The amount of the recovery shall be the full value of the life of the decedent.” O.C.G.A. § 51-4-5. But what determines that full value of life? The judge may instruct the jury: “You should consider the gross sum that the deceased would have earned to the end of life had the deceased not been killed… in determining the amount of the full value of the life of the deceased. The full value of the life of the deceased is not limited to the amount of money that could have or would have been earned had the deceased not been killed.”

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Parental concern, law enforcement warnings, and user disapproval of the recent updates to the Snapchat app are the least of the company’s worries. Though Snapchat, Inc. has made the headlines recently due to the updates, this isn’t the first time the company has been under scrutiny from the public. In April of 2016, a complaint for damages was filed in a Georgia state court against the company for injuries sustained from a motor vehicle accident, claiming that the main cause of the accident was the speed filter of the Snapchat app.

The speed filter allows a driver behind the wheel to document his or her speed by “snapping” a picture while the car is in motion. On this one particular night, a teenage driver allegedly opened her Snapchat app while driving as an attempt to snap a picture of her car reaching 100 mph. The driver allegedly, according to the Complaint, accelerated until reaching approximately 107 mph before she realized another driver had pulled onto the road. She crashed into him at full speed. Both cars were totaled, leaving multiple people with tremendous injuries – both physical and psychological – and thousands of dollars in expenses.

The plaintiffs have sued Snapchat for negligence, in part because this is, according to the Complaint, not the first instance in which a Snapchat user has used the speed filter of the app and caused a car crash. Petitions online even called for the app to remove the filter or for the app to restrict the usage of the filter while driving. Despite knowing that the speed filter presented many dangers to the public, as of the date of the incident above, Snapchat had not removed the speed filter, thus creating the perfect opportunity for another distracted driver to cause serious harm.

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In Washington last month, Governor Jay Inslee took a step towards improving the safety of his streets by signing a law prohibiting the holding of any electronic device (cell phones, tablets, etc) while driving or waiting at a stop light. The law will go in effect in July due to the Governor’s veto of a section that would have postponed the law’s implementation until 2019. The matter is just too important to wait.

As technology’s prevalence in our everyday lives increases, its capability of distraction from our other daily activities increases as well. This includes our activity within our car. The human’s false sense of ability to multitask often leads to problems behind the wheel. The driver only looks away for one second or only needs to pick up that napkin or only needs to change the radio station or only needs to send that last text. But those single and quick moments that the driver’s attention is diverted are the single and quick moments that can take the driver’s or someone else’s life.

The problem doesn’t only occur with drivers looking away. A driver can be very much so distracted while his or her eyes are fixed on the road. There are many different types of distractions: internal (items inside the car), external (objects outside the car), visual (eyes taken off the road), manual (hands taken off the wheel), and cognitive (distracting thoughts). It just so happens that the use of the cell phone is a combination distraction; it combines the dangerous aspects of the various types of distractions into one grand distraction. In the entire time that you go through the process of picking the phone up, looking down at it to find the contact you want to call, thinking about if the other person can answer your call, and physically dialing the call, your focus has been taken off driving long enough to have an accident.

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I had the privilege of being asked by the newly inducted State Bar President, Buck Rogers, to deliver the Invocation at the 269th Board of Governors Meeting held this past weekend on Saturday, June 10, 2017 at The Westin Jekyll Island.  It was, of course, my honor to do so.  I have had many requests for a copy of the invocation, including from President Rogers himself, so I thought I would share it hear with all of you along with my sincere best wishes to President Rogers for a wonderful Bar year.

INVOCATION at the State Bar Annual Meeting

JUNE 10, 2017