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Articles Posted in Motor Vehicle Accidents

911call
Should a caller EVER be placed on hold when calling 911? Common sense tells us of course not, right?  By the very nature of the call, that you are calling 911, you have an emergency that needs to be addressed, well, emergently.  Unfortunately, many 911 calls in Metro Atlanta are being placed on hold, with the typical hold message of “Your call is very important to us.”

CBS46 News has investigated and reported on this new phenomenon in which the 911 Center places an emergency caller on hold.  CBS46 uncovered a frightening trend in the numbers, showing an increase in 911 wait times. For the first four months of 2022, nearly 13%, which is over 40,433 people, sat on hold more than 40 seconds. That’s an increase from 2021 where it was at 9%, and 2020 at 5%. The majority of Atlanta’s 911 callers do not wait on hold for more than 10 seconds. In the first four months of 2022, roughly 75% of Atlanta’s 911 callers or 245,855 people called 911 and waited less than 10 seconds to talk to an actual person.

I experienced this personally recently when my husband called 911 to report a street racing incident occurring near a restaurant where we where having dinner out on its patio. We were enjoying dinner outside when we started smelling smoke and heard tires screeching. This occurred at the intersection of Briarcliff Road and LaVista Road in unincorporated DeKalb County on a beautiful Sunday early evening. Within seconds of the noise of the screeching tires, a crowd appeared, as if by magic. There were easily 80-100 people surrounding that intersection watching cars go round and round burning up their tires. I’m guessing some of those 80-100 folks were armed, thanks to our “concealed carry” law in Georgia. It wasn’t a leap in logic or imagination to believe someone might get hurt. My husband dialed 911 and was placed on hold with a message saying to him that his call “was important to them.” We later saw numerous posts on our NextDoor website that other folks attempted to call 911 for this same incident, also, and were placed on hold. Eventually, DeKalb County police cars arrived at the scene perhaps 10 minutes after we tried to call.

speed driving
You may recall that I wrote a blog about a case that occurred in here in Georgia in which a husband and wife sued Snapchat (now known as Snap, Inc.) for negligent design of their “app” because the app promoted using it while a driver was driving at a high rate of speed as it recorded your speed for you to share (brag) with all of your friends and followers. 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.

That happened in 2015. Somewhere along the last seven years Snapchat filed a Motion to Dismiss the lawsuit and the trial court granted it. The plaintiffs appealed and the Georgia Court of Appeals affirmed. But now, in 2022, seven years after the original wreck, the Georgia Supreme Court has ruled against Snapchat and in favor of the Plaintiffs to permit the lawsuit to proceed. Justice Verda Colvin wrote the opinion of the Supreme Court, which was not unanimous. There were three special concurrences and two dissents, and two justices did not participate in the opinion.  The issue presented here was whether Snapchat owed a legal duty to the Maynards on the basis that a manufacturer’s duty to design reasonably safe products  extends to people injured by a third party’s intentional and tortious misuse of the manufacturer’s product. Maynard v. Snapchat, Inc., S21G0555, 2022 WL 779733, at *1 (Ga. Mar. 15, 2022) The Georgia Court of Appeals said “no.” The Georgia Supreme Court said “yes.” And there you have it. The Georgia Supreme Court’s opinion carries the day. But the plaintiffs still have a long way to go. The Supreme Court remanded (sent back) the case to the Georgia Court of Appeals with the instruction “to address whether the trial court erred in dismissing the Maynards’ claims against Snap and in granting judgment on the pleadings to Snap for lack of proximate causation.” This means the lower appellate court must now analyze the case from the standpoint of whether the Snapchat speed filter actually caused the wreck or was it merely the negligent driving of the teenage driver that caused the wreck.  This is a 56 page opinion issued by the Supreme Court, so it is clear that the Court spent a great deal of time and thought on this matter. That is all you can ask for. But, with two dissents and three other special concurrences, you couldn’t call this a “ringing” endorsement of the cause of action. And, the Supreme Court may see the case a second time before a jury ever does, because depending on how the Georgia Court of Appeals rules, it is likely to go back up to the Supreme Court on the issue of proximate causation. I think, realistically, it will probably be 2025 (the 10 year anniversary of the wreck) before it may get in front of a jury.

That should show you a couple of things. First, the wheels of Justice often grind slowly. Recently, I had to testify in a deposition to authenticate a videotape of DeKalb Avenue for an attorney who has a case pending against the City of Atlanta regarding the reversible lane lights. I had taken that videotape in 2012, ten years ago. And that case was just getting to trial. Secondly, it should show you the tenacity of the lawyers representing the Maynards in this case.  You can also say that about the defense attorneys in the case, but they have been getting paid for their work for the last seven years; the plaintiffs’ attorneys have not. When a plaintiff’s attorney decides to take a case, she or he has to decide to see it to the end, knowing the life of the case may last years before resolution. This is the agreement we make with our clients when we accept a case. We must fight nonstop for our clients. So hats off to the Maynards’ attorneys.

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Have you seen the new commercial made by GMC for its new Sierra and Yukon Danali pick-up trucks that features hands free driving? It shows a person sitting in the driver’s seat of the truck (I hesitate to call this person a “driver” because he is really not driving at all) with no hands (and not even a knee) on the steering wheel while the pick-up truck appears to be moving at a high rate of speed. Then the person sitting in the driver’s seat begins to clap to the beat of Queen’s famous rock song “We Will Rock You.” And all the passengers in the vehicle start clapping in unison with the beat and with the person sitting in the driver’s seat of the speeding truck while he never touches the steering wheel with his hands. It is scary to watch on TV. It is even scarier to think that someone next to you or behind you on the highway is doing this in a vehicle while you attempt to drive as carefully as possible to arrive at your destination safely. Welcome to the world of hands free driving!

I ask whether you are willing to take the risk of hands free driving because using this “autopilot” feature on some new cars and trucks may result in some horrible consequences, including criminal charges for vehicular homicide.  This is what happened in Los Angeles recently when a person using a Tesla’s autopilot feature (notice I didn’t call him a “driver”) was charged with vehicular manslaughter with gross negligence for the deaths of two people who were killed when the auto-driven Tesla slammed into their Honda Civic, killing them both.  The National Highway Traffic Safety Administration (NHTSA) confirmed the auto-pilot feature was on at the time of the collision. The charges against the defendant appear to mark the first time a driver in the United States was prosecuted for a felony while using semi-automated driving technology. The families of the two decedents have filed wrongful death suits, but it is unclear whether Tesla was included as a defendant for products liability.

Michael Brooks, the chief operating officer at the Center for Auto Safety, a nonprofit advocacy group that focuses on the U.S. automotive industry, said he hopes Tesla drivers and owners see this case and understand that Autopilot has limitations. “It will not drive them from any point A to any point B always safely, and they need to be responsible for the actions of the vehicle,” Brooks said.

NewlawsMGN2020-300x169Georgia-Seal
July 1 always welcomes in the new laws passed by the Legislature in the last Legislative session. Tomorrow Georgia will have several new laws that go into effect, many of which you may not be aware.

The first you should know about is “Joshua’s Law,” codified at O.C.G.A. § 40-5-10.  The genesis of this law is the untimely and unnecessary death of Joshua Brown, son of LuGina and Alan Brown back on July 1, 2003. It is ironic that the law in his name goes into effect on the 18th anniversary of Joshua’s death.  I had the distinct honor of representing LuGina and Alan in a successful wrongful death lawsuit in Fulton County against the Georgia Department of Transportation.  We tried that case to a jury and settled it on the last day of trial. Joshua then was 18 years old at the time of his death. He had been admitted to the Berklee School of Music and wanted to be a musician. I can remember when LuGina testified she talked about visiting Berklee with Joshua and when she saw the campus and all the students walking around she saw “a hundred little Joshuas.” I have never forgotten that moment in trial. It was so moving. Our lawsuit involved the negligent maintenance of the road Joshua was on when he lost control of his truck due to hydroplaning, ran off a steep, unprotected hillside and crashed into a tree. The Browns immediately threw their grief into action by creating “Joshua’s Law” and began lobbying the Georgia General Assembly for passage of the law that would mandate driver education in every high school in Georgia.  The Browns were the recipients of the Georgia Trial Lawyers Association’s Courageous Pursuit of Justice Award for their relentless pursuit of justice against the Georgia Department of Transportation and for the creation of the new law “Joshua’s Law.”  The substance of the new law is as follows:

Effective: July 1, 2021

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Does anyone else out there hate scooters?  For those folks still in denial about the risk/cost benefit analysis in riding scooters, you should know that scooter injuries  continue to climb.  A new report by the University of California San Francisco revealed Electric scooter-related injuries resulting in hospitalization more than tripled over five years nationwide.  The results showed nearly 40,000 injuries in the past five years, increasing from 6 per 100,000 people in 2014 to 19 per 100,000 in 2018. The number of hospital admissions — meaning injuries severe enough to require further medical attention — soared by 365% to nearly 3,300, the study found.

I’m not surprised. Are you?

Scooter injuries and even deaths have been in the news here in Atlanta nearly daily.  Mayor Keisha Lance Bottoms even outlawed use of scooters at night in the city due to four scooter-related deaths.  On any given day on my way to my office, which is in Downtown Atlanta, I see 2 or 3 near-catastrophic collisions with scooter-riders and cars or immovable objects. Surely, you have, too. Add a little alcohol consumed by tourists who think “it will be fun” to ride a scooter for the first time after having a few drinks, it is downright mayhem on our city streets.  I have seen two or even three people riding one scooter at a time. I have seen a scooter rider texting while scooting. I have seen a scooter rider with a back-pack on, drink in one hand and cell phone in the other. Anything goes.  It’s totally lawless!  Part of the cause of many scooter-rider injuries must be due to lack of skill and practice riding a scooter. “E-scooters have a narrow platform, can travel up to 15 to 20 miles per hour and require a level of coordination and skill that is often not native to many users,” said Aiza Ashraf, M.D., diagnostic radiology resident at the Indiana University School of Medicine in Indianapolis. “Whereas physical effort is required to get a bicycle up to speed, e-scooters are self-powering.”

head-on-collision
We have survived the Holidays and so it is appropriate we review car crash records to see how we Georgians did in 2018. Were we any safer?  Have car collisions declined in any aspect?

Each year, the Georgia Governor’s Office of Highway Safety publishes a report that lists all collision statistics for our state for that year.  This includes any bicyclists and pedestrians who are involved in collisions. You may find a wealth of traffic statistics in that report. In 2017, Georgia traffic fatalities for the year were 1468, a 4% decrease compared to 1527 on the

same date in 2016. This change, however, was not statistically significant.  We do not yet have the official tally of Georgia highway fatalities for 2018 yet. As of Sept. 30, 2018, fatalities from traffic crashes in Georgia were down 11 percent year to date, which represents the largest decrease of Georgia’s traffic fatalities in 10 years.  As of September 2018, there had been 128 fewer fatalities in 2018 over 2017.  Although this sounds like progress, the decrease is still probably not statistically significant.

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Jury duty is often the last thing people want to do. It interferes with their jobs, their family schedules and essentially everything people do on a daily basis. No one has jury duty scheduled on their calendar.  So, it is often the case once citizens report for jury duty and are actually sitting in a courtroom going through jury selection, particularly in civil cases for money damages, that jurors want to know “Why is this case being tried?  Why am I here?” Some people might, wrongly, assume it is because the plaintiff is greedy. But that is almost never the case. Rather, so often, the answer is because the insurance company for the defendant, the party at fault, refuses to be reasonable and refuses to resolve the case before trial.  For some unknown reason, that seems to be more and more the answer to the jurors’ questions of “Why are we here?”

Several recent trials in Georgia demonstrate that completely. In a trial in Gwinnett County last month, a jury awarded $17.8 million to the widow of a man who plummeted three stories to his death after trying to close an improperly installed dormer window.  No offer of settlement by the insurance company who represented the company at fault was even made until six days before trial. Understand, the trial occurred only after years of depositions, hearings, document exchange…known as discovery. Yet the insurer didn’t even attempt to broach resolution until six days before trial. The plaintiff’s settlement demand had only been $1 Million. Now the insurer is looking at a judgment for $17.8 Million. The insurer could have saved $16.8 Million had it even attempted resolution.

In another case recently tried in Cobb County, the jury returned verdicts for two plaintiffs of $77,000.00 to one plaintiff and $80,000.00 to the other. They also awarded an additional $35,000.00 for property damage. Highest offers prior to trial were $4,000 and $5,000 respectively.  Yet the plaintiffs’ medical expenses alone, without even considering pain and suffering, were $12,000 and $9,000 respectively.  When an insurer offers half of a plaintiff’s medical expenses it is not really trying to reach a good faith resolution of the case.

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Taking a stroll down the streets of Atlanta can be a healthy pastime or a means of getting in your social interactions for the week, but the cheapest form of transportation is quickly becoming one of the more dangerous. One unfortunate story in Smyrna, GA last week tells of a pedestrian fatality at the hands of a distracted driver; the driver made a phone call, drove off of the roadway, and struck the pedestrian. Another upsetting story in the AJC last week reported of a woman killed in Atlanta as she attempted to cross I-75 and was struck by multiple cars. Recent reports suggest that she attempted to run across the highway due to a dispute over drugs that resulted in someone chasing her. Unfortunately, this story is just one of many that could be written in Georgia this year, as pedestrian fatalities are on the rise on the national level. From 2007 to 2016, the number of pedestrian fatalities increased by 27%, and whether the victim is a harmless pedestrian walking to work or drugs are at play, researchers are not quite certain what is the main cause for the increasing numbers of pedestrian fatalities in the recent years.

Reports over the last few years have found a few potential factors to the increasing fatalities. Obviously, cell phone usage is an issue. Whether a distracted driver is using a phone while operating a vehicle or a distracted pedestrian has his or her face buried in the phone while walking through a crosswalk, cell phones are making us more distracted, less aware of our surroundings, and slower to react when we encounter danger. Cell phone use increased by 236% in the years 2010 to 2016, providing greater opportunity for cell phone related pedestrian accidents.

Many studies and reports suggest the increase in cell phone usage could be a leading cause of pedestrian involved accidents, but a new study provides an interesting possible factor in the rising number of pedestrian fatalities: marijuana. The report does not intend to imply direct correlation of any sort but merely suggests that the possible impairment of judgment and reaction time — for both drivers and pedestrians — due to recreational use of marijuana could lead to higher pedestrian incidents on the roadway. The study found that in DC and the 7 states that legalized recreational use of marijuana between 2012 and 2016, there was a collective 16.4% INCREASE in pedestrian fatalities between the first 6 months of 2016 and the first 6 months of 2017. Conversely, in the remaining states, there was a collective 5.8% DECREASE in pedestrian fatalities between those two time spans.

artistic-asphalt-automobiles-799443-200x300
In a series of blogs I wrote last summer on distracted driving, I laid out some of the problems with the advancing technology we have readily available to us at our fingertips. The use of social media apps like Snapchat and Instagram while driving has led to many fatal or injurious car wrecks, and texting while driving, which is known as a “combination distraction” – one that averts our attention manually, visually, and cognitively – has caused thousands of deaths and injuries in accidents in the last few years. Last summer, one of my distracted driving blogs was about a bill that the Governor of Washington was signing into law banning hand-held usage of cellular devices. I wrote that Georgia had yet to sign such a bill into its own laws, but one year later, this subject matter needs an update.

This legislative session, the Georgia Legislature worked to pass House Bill 673, which Georgia Governor Nathan Deal signed into law a few months ago and will become effective July 1, 2018. The bill is known as the “Hands-Free” or “Distracted Driving” law, which by name alone may sound self-explanatory but with further inspection can be a little confusing. Allow me to lay out the need-to-knows of Georgia’s newest cell-phone driving law.

This bill, which has now become an Act, amends Title 40 “Motor Vehicles and Traffic” of the Official Code of Georgia Annotated. The main change in the Code will be located in O.C.G.A. §40-6-241, which explains a driver’s responsibility to exercise due care, specifically regarding usage of a wireless telecommunications device. The first parts of the bill change the penalties within the license point system. First violation of Code Section 40-6-241 will result in 1 point added to the license; second violation results in 2 points added; and third results in 3 points. There are other – and potentially worse – penalties a driver could face if convicted of violating the Code section.

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The short answer is maybe.

One of the first questions many of my clients have after they have been in a car wreck is whether they can accept the insurance company’s pay-off for their totaled car.  Most people need the pay-off money to be able to buy substitute transportation as quickly as possible.  Some people accept the insurance company’s pay-off well before they even think about hiring a lawyer, and well before they have even spoken to a lawyer about representing them in a car wreck case. This is certainly understandable and normal human conduct when your car has been totaled in a wreck that isn’t your fault. But can there be a problem with accepting the insurance company’s pay-off for your car and, in return, releasing ownership of it to that insurance company for salvage value?

Typically, in a car wreck that has resulted in some personal injuries due to the negligence of the at-fault driver for say, running a stop sign, or rear-ending the car in front, the answer for at least 30 years has been no.  In the past, no insurance carrier ever really cared about preserving the car in a plain ordinary negligence car wreck case where there is no evidence of any mechanical failure of the car or any evidence that the car itself was, somehow, defective. In the last 5 years or so, however, that has changed. Now, in an increasingly scorched-earth tactic by defense lawyers, they often file a motion to dismiss even run-of-the-mill car wreck cases for the plaintiff’s failure to preserve or keep the car that was involved in the wreck, even if that car was totaled by the insurance carrier. This motion is referred to as a “spoliation motion” and they are becoming more and more popular as a “gotcha” tactic by defense attorneys who really have no defense for their insured’s actions in actually causing the wreck in the first place.  They have to admit their insured was negligent and caused the wreck, but maybe they can get out of the whole thing by arguing that without the car to be examined by an expert, hypothetically, we can never know whether something was wrong with the brakes or the windshield wipers (yes, I have really had that argued by defense counsel in a case) or the seat belts or any of a number of made-up potential problems, even if there exists no evidence that anything about the car caused or contributed to the wreck.  At a minimum it is frustrating…at the worst, it can cost a plaintiff her entire case.

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