COVID-19 Update: How We are Serving and Protecting Our Clients.

Articles Posted in car wrecks

bicyclewarningsignMy friend and  fellow trial lawyer, Lester Tate, and I are representing a young man in a case against Kawasaki, the manufacturer of the motorcycle he was riding when he was severely injured because it stalled on him. Months later, he received a recall notice that said the voltage regulator on his motorcycle was defective.  The minute he received the notice he thought that sure explained what happened to him the day his world was turned upside with a catastrophic motorcycle wreck.  The case was heard yesterday before the 11th Circuit Court of Appeals, our appellate court for cases that are filed in Federal Court, here in the Northern District of Georgia.  One of the issues on appeal involves Kawasaki’s duty to warn its customers who have bought or used that particular motorcycle about a known defect with the motorcycle’s voltage regulator.  So, a manufacturer’s duty owed to its consumer is heavily on mind right now.

What exactly is a manufacturer’s duty to want its customers of a potentially defective product?  Under Georgia law , when the manufacturer of a product has actual or constructive knowledge that its product involves danger to users of the product, the manufacturer has a duty to warn users of the danger. Battersby v. Boyer, 526 S.E. 2d 159, 162 (Ga. App. 1999). O.C.G.A. § 51-1-11(b)(1) provides that “[t]he manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.” The term “not merchantable and reasonably suited to the use intended” as used in this statute means “defective.” Giordano v. Ford Motor Co., 165 Ga. App. 644, 645(1983). “In a product liability case, the existence of a duty to warn depends upon the foreseeability of the use in question and the type of danger involved, and the foreseeability of the user’s knowledge of the danger.” Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 781 (Ga. App. 1987). A manufacturer may be subject to liability for failing to warn the user adequately of the known or foreseen danger if there is no reason to believe the user will realize the dangerous condition.” Id. at 477; see Ford Motor Co. v. Stubblefield, 319 S.E.2d 470, 477 (Ga. App. 1984). When a duty to warn arises, the duty may be breached in one of two ways: (1) failure to communicate the warning to the ultimate user; or (2) failure to provide an adequate warning of the product’s potential risks. Battersby, 526 S.E.2d at 163; see Wilson Foods Corp. v. Turner, 460 S.E.2d 532, 534 (Ga. App. 1995) (citing Thornton v. E.I. Du Pont De Nemours &Co. Inc., 22 F.3d 284, 290 (11th Cir. 1994)). “This duty to warn is a continuing one and may arise “months, years, or even decades after the date of the first sale of the product.” Watkins v. Ford Motor Co., 190 F.3d 1213, 1218 (11th Cir. 1999). “Some products are defective solely due to an inadequate or absent warning.” Chrysler Corp. v. Batten, 264 Ga. 723, 724, 450 S.E.2d 208, 211 (1994).

The issue of failure to warn, including the lack of any warning or the adequacy of any warning, is one that the jury must resolve. See, e.g., Dorsey Trailers Southeast v. Brackett, 363 S.E.2d 779, 782 (Ga. App. 1987); Bryant v. BGHA, Inc., 9 F. Supp. 3d 1374, 1389-90 (M.D. Ga. 2014); Giordano v. Ford Motor Co., 165 Ga. App. 644, 645 (1983)(“Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. See Greenway v. Peabody International Corp., 163 Ga.App. 698, 294 S.E.2d 541 (1982). Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner. Beam v. Omark Ind., Inc., 143 Ga.App. 142, 145, 237 S.E.2d 607 (1977).”).

policecarPolice chases seem to be extremely prevalent in our everyday goings on lately. Last night I watched the famous “slow speed chase” of O.J. Simpson when he fled the Los Angeles Police Department back in 1994  instead of turning himself in as agreed upon following the murders of his wife Nicole and her friend. The mini-series drama currently being shown on the FX Network about “The Juice” reminded me of the night that slow speed chase happened as my husband and I watched in horror and amazement in 1994 as my husband put together the crib for the child we were expecting in August of that year.  Then I woke up this morning to a text alert from the AJC that there had been another police chase here in Atlanta this morning. This morning’s chase, which was near the Douglas-Cobb county line, near Six Flags Over Georgia,  was of two people suspected of having robbed a convenience store of cash and cigarettes.  This police chase ended with the suspects’ car crashing into a utility trailer. The police caught one suspect and the other suspect got away. Apparently, no one was injured in the police chase this morning.  Thank Goodness, I might add.  In San Francisco, California on Sunday, February 7, three people were killed in a police chase after police chased a car that had been seen “doing circles” in the middle of a city street.

We were not so fortunate, however, with regard to two other police chases that occurred a week ago. In Gwinnett County, a totally innocent older couple was killed in a police chase in which the Johns Creek Police Department started a high speed chase of a vehicle for “equipment violation” because it had multiple antennae.  This chase lasted for 4 miles and reportedly reached speeds of 83 m.p.h.  The couple was driving home after celebrating the 78th birthday of one of them.  The suspect’s car crashed into the innocent couple’s car and killed them. No, the police car didn’t hit the couple’s car, but in the world of proximate cause, “but for” the police car and the police chase this lovely couple would be still be alive.  Tragically, and almost unbelievably, the next day a totally innocent grandmother who was taking her precious two grandchildren to church on Sunday morning,  was killed, along with those precious two grandchildren, in a high speed police chase.  This time it was the College Park Police Department chasing a vehicle driven by a suspect suspected to have stolen a vehicle. The chase lasted a purported 10 miles. Five innocent lives lost in the span of two days due to high speed police chases.

Think for just a minute how you would feel if one of your loved ones were killed because of a high speed chase.  How would you feel?  Would you think the high speed police chase had been unnecessary?  Not worth the risk?  Put yourself in the shoes of those grieving family members for a minute.

ignition1 ignition2
My car has a push button starter:  am I at risk? The short answer is yes.  Not only are YOU are risk but anyone who lives in your house if you have an attached garage in which you park your car is at risk, too, for carbon monoxide poisoning and perhaps even death. Does your push button starter look anything like the one above? I was driving a rental car on business in another state recently and it had one of these push button starters. I had never used one before, but I had certainly heard of their inherent dangers. The problem is a design flaw. You may think you have turned off the ignition, after all, you have the keyless fob in your pocket with you.  But often the engine is so quiet while in park you don’t realize it is still running. If you park your car in an attached garage, dangerous carbon monoxide gas can easily enter your home and kill you and anyone in your home while you sleep, without your ever waking up to realize there is a fatal hazard in your home.

This design flaw is well known to car manufacturers. “We have documented at least 19 fatalities that are specifically attributed to keyless ignition vehicles since 2009 and 25 more close calls,” said Janette Fennell, founder and president of the safety group KidsAndCars.org. “As more keyless ignition vehicles are sold, we are going to see these predictable and preventable injuries and deaths increase.”

There is a simple solution:  an automatic shut-off system for the car if it has been running for a certain amount of time without moving, e.g., 30 minutes or so. This would prevent any carbon monoxide build up if you accidentally leave your car running in your garage. Some cars do have this safety feature, others do not. It is difficult at this point even to understand why not all such cars would include the automatic shut-off feature. There is currently a class action lawsuit filed against 10 automobile manufacturers who have not incorporated this simple fix of a deadly design defect. According to the suit, the automakers have long known about the risk keyless ignitions pose. In fact, the suit claims, that at least 27 complaints have been submitted to the National Highway Traffic Safety Administration since 2009.  There is evidence that these cars continue to run regardless of how far away the keyless fob is from the running car.

911call
There has been a lot of press this past week about the near death of NBA basketball player Lamar Odom at the Love Ranch in Las Vegas.  Fortunately, Mr. Odom’s condition has improved dramatically.  As part of the media frenzy about the incident, parts of the 911 calls when Mr. Odom was found unconscious have been played over and over on the radio and on the internet.  I have heard several “journalists” comment that they can’t believe the 911 calls were made public and they should be private.

So, is your 911 call public information?  Yes! Any 911 call is public information subject to the State’s open records act.  Here in Georgia, our Georgia Open Records Act (“ORA”), O.C.G.A. Section 50-18-70 et. seq., defines “public record” as “all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use.”  A taped 911 call certainly fits within this definition. And citizens shouldn’t want it any other way.  The Open Records Act is sometimes referred to as “The Sunshine Law” because it throws light on what your government is doing.   As our Attorney General Sam Olens has said “Government operates best when it operates openly.” –Attorney General Olens.  Give credit to AG Olens who has made strengthening the Georgia Open Records Act one of his primary goals.

When I represent a client in which there was a 911 call made, such as a car wreck, or an injury on a business premises, or anything of that nature, I routinely immediately request the 911 calls through the Georgia Open Records Act. I do this to obtain them before they might be lost or erased.  911 calls can be a treasure trove of information. Quite often I obtain the names of eyewitnesses to car wrecks who are often never even listed on the police report. Plus they often contain a short statement from the eyewitness about how the wreck happened, stated immediately after they saw it!  That’s pretty hard to beat!!  So, yes, any 911 call is available to the public with a simple request and I will continue to request them in every case of mine.

head on collision
The Georgia State Patrol and and various National Databanks, including the National Safety Council, have for years kept the morbid statistics of how many people die during any given Holiday weekend. I have blogged about this in the past and try to keep tabs on whether Georgia highways are getting safer. Here are 5 things to know about traffic safety from the 2015 Labor Day:

  1.  In Georgia this past weekend 14 people lost their lives in traffic incidents as reported by the Georgia State Patrol. Just for comparison’s sake, there were only two traffic fatalities in Connecticut. In Kentucky there were nine.
  2. The National Safety Council estimated there would be 395 traffic fatalities in the United States this Labor Day. Final National numbers are not yet in as some polls include any fatalities up to Tuesday morning.

Ridesharing services have been advancing in the app world over the last few years. Quite a few companies have become enormously popular for their efficiency and ease compared to traditional taxi companies. GPS based with pre-set payment settings, the whole interaction takes place online and even shows you a map counting down the moments until your driver arrives. Uber has quickly become a household name, and alongside Lyft, dominate the ridesharing sphere. There are, however, a number of safety concerns associated with the process. It is a rather strange concept to get into a stranger’s personal car and trust them to drive you safely to your destination. Recently, Uber has been attempting to address many of these concerns as well as handle a number of injury lawsuits that have occurred.

Fortunately from an insurance perspective, these ridesharing companies have got you covered. There is major debate between the taxi companies and Uber/Lyft regarding this topic, because taxi companies believe they better protect against possible insurance disparities after an injury. Largely in response to this criticism and attack by traditional taxi companies,  Lyft and Uber now both have  liability policies that provide additional coverage in the event that the passenger is injured in a driver’s vehicle and the driver’s insurance doesn’t cover all of their injuries, which is almost always the case. Not only that, but even in the event of an accident in which the company driver is not at fault, and the other motorist at fault is uninsured, they will still provide coverage if you are injured.

The Georgia Legislature passed a ridesharing bill this session (2015) that essentially sought to level the regulation  of Uber and Lyft with that of traditional taxi companies.  House Bill 225, which passed the Senate by a 48-2 vote, is the culmination of efforts to require the app-based transportation industry to meet the same standards that apply to other transportation providers, such as taxis and limousine companies.  “The world as we know it in transportation has changed because of transportation companies like Uber and Lyft,” said Sen. Brandon Beach, R-Alpharetta, who carried the bill in the Senate. “This creates a new framework that allows them to grow with light regulation and common-sense policies.”  Governor Deal signed the bill into law in March 2015 which mandates companies like Uber must have $1 Million in insurance coverage for its passengers. There continue to be squabbles between the traditional taxi companies and Uber, but free market principles of competition should control the outcome.

goodmanbentlywreck
Each state keeps the grim statistics of deaths and injuries from car wrecks on major holidays.  Georgia is no exception.  The final statistics for Georgia have not yet been released by the Governor’s Office of Highway Safety, but this year’s Memorial Day traffic was supposed to be the heaviest ever for this holiday, so you can bet the number of wrecks went up. This news couldn’t come at a worse time for Georgia as it has just recently been reported that Georgia traffic deaths are on the rise.

“With traffic related deaths up 25 percent, Georgia DOT is urging drivers to Drive Alert, Arrive Alive. Their new campaign prompting drivers to wear their seatbelts, stay off the phone and focus on driving.

Georgia isn’t the only state with an increase in roadway deaths. As of May 17, 327 people have died on South Carolina highways, this compared to 282 highway deaths during the same time period in 2014.

Awards
American Association for Justice Badge
Georgia Trend Legal Elite Badge
State Bar of Georgia Badge
Georgia Trial Lawyers Association Badge
ABOTA Badge
LCA Badge
Top 50 Women attorneys in Georgia Badge
Super Lawyers Badge
Civil Justice Badge
International Society of Barristers Badge
Contact Information