Atlanta Injury Lawyer Blog

I have been writing a series of Georgia negligent security law posts, talking about when a Georgia property owner might be liable in, say, a Savannah hotel rape lawsuit, or a Marietta restaurant parking lot assault lawsuit. Yesterday I began discussing how a victim would go about proving that the landlord could "foresee" the crime - which is what Georgia law requires in order to hold a property owner or property manager liable for failing to keep people safe on the property. I talked about a common misconception among lawyers - the notion that a plaintiff must prove other similar incidents occurred in order to hold the premises owner liable.

In fact, under Georgia law, the plaintiff does not have to show that other similar incidents, such as other rapes or assaults or shootings, occurred. In practical terms, the lawyer often does offer evidence of other prior attacks. For example, a lawyer representing a Decatur apartment rape victim may want to introduce evidence that other assaults or violent attacks occurred at or at least near the apartment complex; an attorney representing the victim of a violent attack at an Atlanta hotel may choose to offer evidence that other hotel guests had been attacked.

Today I want to talk about what constitutes a "similar incident" that a plaintiff may show in order to prove that the defendant should have foreseen a criminal attack. According to Georgia's law, the incident causing the plaintiff's injury "must be substantially similar in type to the previous criminal activities on or near the premises so that a reasonable person would take ordinary precautions to protect his invitees against the risks posed by that type of activity." McNeal v. Days Inn of America, Inc., 230 Ga.App. 786, 498 S.E.2d 294, 98 FCDR 1084, cert. denied (1998) (emphasis in original).

The courts have been very clear that substantially similar does not mean identical. "In determining whether a prior criminal act is substantially similar, we note that 'substantially similar does not mean identical.'" Shoney's Inc. v. Hudson, 218 Ga.App. 171, 460 S.E.2d 809 (1995) (emphasis added). For example, it does not matter "whether a weapon was used"; the question is "whether the prior crimes should have put an ordinarily prudent person on notice that the [invitees] were facing increased risks." Id. The incident only has to "be sufficient to attract the [proprietor's] attention to the dangerous condition which resulted in the litigated incident.' (Citation and punctuation omitted.) Matt [v. Days Inns of America, Inc.], 212 Ga.App. at 794, 443 S.E.2d 290." Shoney's Inc. v. Hudson, 218 Ga.App. 171, 460 S.E.2d 809 (1995) (emphasis added). See also Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997); Wade v. Findlay Management, Inc., 253 Ga.App. 688, 560 S.E.2d 283 (2002); Agnes Scott College v. Clark, 273 Ga. App. 619, 616 S.E.2d 468 (2005), cert. denied (2005); Confetti Atlanta, Ltd. v. Gray, 202 Ga.App. 241, 414 S.E.2d 265 (1991), cert. denied (1992); Bayshore Company v. Pruitt, 175 Ga.App. 679, 334 S.E.2d 213, cert. denied (1985); Baker v. Simon Property Group, Inc., 273 Ga.App. 406, 614 S.E.2d 793 (2005).

Thus, an attorney representing a Duluth parking lot shooting victim probably will want to show that other violent or potentially violent crimes - such as robberies, shootings, home burglaries -- occurred on or near the property. The victim will not have to offer evidence that other people were shot in that very parking lot, however.

I have been blogging about Georgia premises liability law and the rules about when a landlord, or a property owner, is liable for a crime committed by a third party. In my prior blog posts, I covered the general rule in Georgia, which is that a property owner may be liable for failing to protect people on its property if the property owner had reason to believe a crime might occur. To read more about when a landlord is held liable for a crime occurring on its property, please take a look at my May 8, 2012, blog past, A Georgia Property Owner Must Protect Guests from Crimes It Can Anticipate.

In today's post, I want to talk more about how the victim of a crime proves that the landlord could have foreseen the crime. For example, I might represent a woman raped in a Roswell apartment complex rape lawsuit. What are the ways she could prove her case?

One of the ways plaintiffs can prove that the crime was foreseeable to the property manager or owner is by showing that other similar crimes had occurred on the property, so that the landlord had reason to believe more might occur. Sometimes a lawyer defending a Buckhead bar shooting lawsuit might argue that the person who was shot must show other similar incidents occurred, but that is not the Georgia negligent security law (or, Georgia premises liability law, as lawyers often call it).

When it comes to safeguarding guests, the courts have ruled that owners do not get "one free bite":

[A] showing of prior similar incidents on a proprietor's premises is not always required to establish that a danger was reasonably foreseeable. "An absolute requirement of this nature would create the equivalent of a 'one free bite rule' for premises liability, even if the [proprietor] otherwise knew that the danger existed."

Shoney's, Inc., v. Hudson, 218 Ga.App. 171, 173-174, 460 S.E.2d 809, cert. denied (1995) (summary judgment denied where it was common knowledge that the restaurant was in the highest crime area of any of Shoney's Savannah restaurants, and upper level management had acknowledged that there was a potential for attacks on customers in the parking lot), quoting Wallace v. Boys Club of Albany, 211 Ga.App. 534, 536 n.2, 439 S.E.2d 746 (1993). See also Wade v. Findlay Management, Inc., 253 Ga.App. 688, 560 S.E.2d 283 (2002) (quoting Shoney's); Matt v. Days Inns of America, 212 Ga. App. 792, 443 S.E.2d 290, cert. granted (1994) ("The test proposed by the dissent, however, is in application a "free bite" analysis that is not supported by Savannah College of Art or any other precedent in this state.")

The Court of Appeals has stated:

As Justice Sears noted in her concurrence in Sun Trust Banks v. Killebrew, 266 Ga. 109, 110, 464 S.E.2d 207 (1995),
neither this Court nor the Court of Appeals has specifically held that knowledge of an unreasonable risk of criminal activity can only be created by the prior, actual occurrence of a crime. Instead, both this Court and the Court of Appeals have stated that knowledge of the unreasonable risk of criminal activity "may " be proven by prior similar incidents.
(Sears, J., concurring).

Woodall v. Rivermont Apartments Ltd. Partnership, 239 Ga.App. 36, 520 S.E.2d 741, 744-745 (1999). In the same concurring opinion that the Woodall court was citing, Justice Sears went on to write: "Stated differently, foreseeability should not depend upon the fortuity of a prior crime when the potential for criminal activity is apparent to everyone." She point out that courts should not make a rigid rule that would apply to every case, because "[r]equiring a prior similar incident in such cases would lead to arbitrary results, and would engage the courts in the mechanistic, unreasoned application of rules, requiring us to turn a blind eye to the simple reality that some business owners may reasonably anticipate criminal activity even if no prior crimes have occurred." SunTrust Banks, Inc. v. Killebrew, 266 Ga. 109, 464 S.E.2d 207 (1995) (concurring opinion by Sears).

The Woodall court also cited to another Supreme Court case, Lau's Corp. v. Haskins, 261 Ga. 491, 493(1), 405 S.E.2d 474 (1991), noting that in that case "the Supreme Court held that an issue of fact regarding the proprietor's duty was created by, among other things, evidence that the premises were in a 'high crime' area." Id.

I handle cases as a Smyrna premises liability lawyer, and I have been blogging about lawsuits involving the liability of landlords and property owners here in Georgia. Lawsuits over the liability of land owners or property managers are called "premises liability" lawsuits, and an entire body of Georgia law addresses when a property owner (or property manager) is or is not liable to people who come onto the land.

I have been discussing a subset of Georgia premises liability law: the question of when it is appropriate to hold a downtown Atlanta hotel held liable for the rape of a guest, or to hold a Decatur restaurant liable for a shooting in the parking lot, or to hold a Conyers bar liable if one of its patrons is severely beaten in a bathroom inside the bar. Yesterday I gave an overview of the rule in Georgia: if a landlord or property owner had "reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters." Matt v. Days Inns of America, Inc., 212 Ga. App. 792, 794, 443 S.E.2d 290 (1994).

So when does a landlord have a duty to anticipate a criminal act? The Georgia courts have held that whether the property owner could foresee a crime depends on the facts involved in that particular case, and so it "is generally 'for a jury's determination rather than summary adjudication by the courts.' Lay v. Munford, 235 Ga. 340, 341, 219 S.E.2d 416 (1975)." Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997). See also Baker v. Simon Property Group, Inc., 273 Ga.App. 406, 614 S.E.2d 793 (2005). "Our Supreme Court has held that even "weak" evidence of foreseeability is sufficient to give rise to a triable issue." Westmoreland v. Williams, 292 Ga. App. 359, 362 (Ga. Ct. App. 2008), citing Lau's Corp. at 493 (emphasis added).

In addition to deciding whether the shooting outside a Buckhead bar was foreseeable, for example, the jury also should be put in charge of deciding what would constitute "'ordinary' care on the defendant's part." McNeal v. Days Inn of America, Inc., 230 Ga.App. 786, 498 S.E.2d 294, 98 FCDR 1084, cert. denied (1998). See also Matt v. Days Inns of America, 212 Ga. App. 792, 443 S.E.2d 290, cert. granted (1994) ("Issues of negligence . . . are for the jury, except in plain and palpable cases in which reasonable minds cannot differ.").

For example, one of the legal questions in a Smyrna apartment complex rape lawsuit is whether the landlord's negligence was a "proximate cause" of the injuries to the tenant. The Georgia courts have said that this question, too, should be resolved by a jury. "[I]t is axiomatic that questions regarding proximate cause are 'undeniably a jury question' and may only be determined by the courts 'in plain and undisputed cases.' [Cit.]" Ontario Sewing Machine Co. v. Smith, 275 Ga. 683, 687 (2) (572 SE2d 533) (2002)." Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 96 (Ga. Ct. App. 2007). See also Millan v. Residence Inn by Marriott, Inc., 226 Ga.App. 826, 487 S.E.2d 431, 97 FCDR 2187, cert. denied (1997), summarizing Bob v. Hardy, 222 Ga.App. 550, 555(6), 474 S.E.2d 658 (1996) ("Questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.")

I have started a series of legal blog entries about Georgia premises liability law. As I explained in my last post, under Georgia law, a property owner "is not an insurer of the safety of the guests." At the same time, however, the owner does have a duty "to exercise ordinary care to protect its guests from unreasonable risks of which the innkeeper has superior knowledge, and if an innkeeper has reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters. Lau's Corporation, Inc., v. Haskins, [261 Ga. 491, 405 S.E.2d 474 (1991)]." Matt v. Days Inns of America, Inc., 212 Ga. App. 792, 794, 443 S.E.2d 290 (1994). See also Shoney's, Inc., v. Hudson, 218 Ga.App. 171, 460 S.E.2d 809, cert. denied (1995); Days Inn v. Matt, 265 Ga. 235, 454 S.E.2d 507 (1995).

As a Decatur premises liability lawyer, I hear about people injured in crimes all over Georgia, ranging from a gun shooting at a restaurant in Marietta, to an attack by a drunk guest wielding a knife in a downtown Atlanta hotel, to a rape in an apartment complex in Duluth. Many times, the property owner is not liable for these crimes under Georgia law. However, the Georgia legal rule is that a property owner must "protect someone on his property from injury 'caused by the misconduct of employees, customers and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence.' (Cit.)." McCoy v. Gay, 165 Ga.App. 590, 591, 302 S.E.2d 130 (1983); Confetti Atlanta, Ltd. v. Gray, 202 Ga.App. 241, 414 S.E.2d 265 (1991), cert. denied (1992) (emphasis added).

In other words, if a Smyrna restaurant owner has reason to expect that a crime is likely to occur at the restaurant, the restaurant has a duty to take steps to protect its patrons from injuries.

To be clear, the Georgia law does not say that a property owner has to expect the exact crime that occurred. See McNeal v. Days Inn of America, Inc., 230 Ga.App. 786, 498 S.E.2d 294, cert. denied (1998). The landlord also does not have to "have been able to anticipate the particular consequences which ensued." So, for example, if a woman is attacked and raped in the parking deck at a Marietta apartment complex, the owner does not have to have expected that that very woman would be attacked, and raped, on November 4, 2010, in that particular parking deck.

Under Georgia premises liability law, an East Point apartment complex, or a Savannah hotel owner, is liable for injuries a Georgia customer received from a crime, "if in ordinary prudence he might have foreseen some injury would result from his act or omission and that consequences of a generally injurious nature might result...." Hosp. Auth. of Hall County v. Adams, 110 Ga.App. 848, 850(4), 140 S.E.2d 139 (1964)." Bayshore Company v. Pruitt, 175 Ga.App. 679, 334 S.E.2d 213, cert. denied (1985).

When a criminal wanders on to someone's property, and attacks somebody, is the person who owns the property liable to the person who got hurt?

At first blush, you might answer that question: No! Why should the property owner be liable for what a criminal did? But if you consider the issue, you will understand why Georgia law says that sometimes the property owner will be liable.

Let's take a really absurd example to start off. I am an Atlanta and Forest Park premises liability lawyer now, but of course I started off as a law student. Law students are taught to analyze legal situations by "hypotheticals" - which means, by thinking of sometimes absurd scenarios that push an idea to the furthest extreme. When you push an idea all the way to the edge, it helps you see the weaknesses in a legal position so that you can make a thoughtful analysis of what the law should be. Naturally most situations will not be that extreme, but the principles you pull out will help you figure out the right answer in a more normal situation.

Let's say that a restaurant is located in a dangerous area of town. For the last 25 days, the first two people to walk out after 10:00 p.m. have been shot as they walked to their cars. Two men stop by one afternoon and tell the owner that they are the ones who have been shooting people, and that they plan to be there tonight, and that once again they intend to shoot the first two people who walk out after 10 p.m. That evening a young couple comes into the restaurant. They get up to leave about 9:30, and the restaurant owner comes rushing over and says, "Please, stay! I will give you free drinks!" He gives them free drinks right up until 10:01, when he says, "We're closing! Get out now!", and pushes the two out the door. The two men who had stopped by earlier in the day step out from the shadows, and shoot the young man and woman, rendering both quadriplegics.

When you first read that under Georgia premises liability law the owner of the property might be held liable for a Decatur personal injury caused by a crime, perhaps you thought that seemed unfair to the owner. But this case seems different. Why? The difference is that the young couple had no idea of the dangerous situation, but the restaurant owner knew that the pair was walking into a dangerous situation, and did nothing to warn them or help them.

Georgia law is set up to address that very difference that you saw. In Georgia, property owners are not normally liable for criminal acts by third parties, but -- if a property owner has "'reason to anticipate a criminal act, [he] then ha[s] a "duty to exercise ordinary care to guard against injury from dangerous characters." Atlantic C.L.R. Co. v. Godard, 211 Ga. 373, 377, 86 S.E.2d 311 (1955).' Lau's Corp. v. Haskins, 261 Ga. 491, 492(1), 405 S.E.2d 474 (1991); see also Sturbridge Partners v. Walker, 267 Ga. 785, 786, 482 S.E.2d 339 (1997)." Wade v. Findlay Management, Inc., 253 Ga.App. 688, 560 S.E.2d 283 (2002).

write this blog as someone who handles lawsuits as a Marietta personal injury lawyer, and I will be talking more about Georgia premises liability law in my next several blog posts.

In the early morning hours of April 26, 2012, DeKalb police were called to the scene of a wreck between an SUV and a bus. According to the DeKalb police, an off-duty Atlanta police officer had been driving the wrong way on I-85. At about 5 A.M., Christopher J. Niezurawski was driving an SUV and somehow managed to be headed northbound in I-85's southbound lanes. Somewhere between I-285 and the Pleasantdale Road exit, Mr. Niezurawski ran into a Greyhound bus that was headed southbound.

Generally when a car hits a bus, the car gets the bad end of the deal. Miraculously, however, Mr. Niezurawski had only minor injuries, and was treated and released from the hospital. Very fortunately, no one from the bus was injured.

CBS 46 here in Atlanta reported that Mr. Niezurawski was "suspected of driving under the influence of alcohol" and "was charged with DUI, reckless driving and operating a vehicle going the wrong way." The case is especially sad because Mr. Niezurawski has been an Atlanta Police Officer for nearly 8 years, and yet because of this incident he was "relieved from duty with pay, pending the outcome of an investigation by the department's Office of Professional Standards."

In this blog, I have been taking a look at some local car accidents, analyzing them from a legal perspective since I am an I-85 car accident lawyer handling car wrecks lawsuits in DeKalb County, Atlanta, and throughout Georgia.

Going the Wrong Way on the Road and Causing an Accident

Georgia has a law - of course - that you have to drive the right way on a road. O.C.G.A. § 40-6-47 says:

The Department of Transportation and local authorities with respect to highways under their respective jurisdictions may designate any highway, roadway, part of a roadway, or specific lanes upon which vehicular traffic shall proceed in one direction at all of such times as shall be indicated by official traffic-control devices. . . . Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic-control devices.

O.C.G.A. § 40-6-47.

Reckless Driving

Mr. Niezurawski was also to be charged with reckless driving. O.C.G.A. § 40-6-390 provides that a reckless driver is "[a]ny person who drives any vehicle in reckless disregard for the safety of persons or property."

DUI

Mr. Niezurawski was also charged with driving under the influence, which is controlled by O.C.G.A. § 40-6-391. Under that statute, a person is driving under the influence if "the person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended." I have not seen any statement about what Mr. Niezurawski's blood alcohol level was at the time he was charged with a DUI wreck.

The news reported that Mr. Niezurawski had received a personal injury in a motorcycle wreck in Atlanta in March 2011. He was been on duty when a car turned into him.

About a week ago, CBS Atlanta reported on a very frightening Smyrna, Georgia car accident involving pedestrians. A mom was crossing Concord Road at Hollis Street in Smyrna at about 7:45 in the morning to reach a bus stop across the street. She had her 5-year-old and her 7-month-old with her.

According to CBS Atlanta article, Apparently this intersection does not have a crosswalk or a walk sign. An SUV moving through the intersection hit the mom and her kids as they crossed the road. Pictures of the scene showed a flattened stroller lying in the middle of the road. The mother was taken to Wellstar Kennestone Hospital with a broken ankle, and her two children were both taken to Children's Healthcare of Atlanta at Egleston.

The police reported that miraculously none of the three had life-threatening personal injuries in the Smyrna accident.

Neighbors working or living near the intersection complained that it was a dangerous intersection, and pointed out that this was not the first wreck at the intersection. In fact, Smyrna police explained that there had been "only" four car accidents at the intersection in the past two years.

The nearest crosswalk with a traffic signal was 200 yards - two football fields - away.

According to a spokeswoman for the City of Smyrna, the city already had planned to install a traffic light and a crosswalk at that intersection - but not until September, far too late for this family.

As a Smyrna car accident lawyer, I thought I would discuss two Georgia statutes that apply to pedestrians.

In O.C.G.A. § 40-6-91(a), the legislature provided that: "The driver of a vehicle shall stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching and is within one lane of the half of the roadway on which the vehicle is traveling or onto which it is turning." On the other hand, a pedestrian may not "suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield." O.C.G.A. § 40-6-91(b).

Unfortunately for the mom and the driver of the SUV, this intersection was a hybrid: an intersection, but not one with a crosswalk. In that case, under O.C.G.A. § 40-6-92(a), "Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway." In this case, we do not yet know from the report whether the mom and her kids already had entered the roadway.

Based on the report as it stands so far, probably subsection (c) of O.C.G.A. § 40-6-91 will not apply. That subsection says that: "Between adjacent intersections at which traffic-control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.." However, since the woman was crossing at an intersection that did not have a crosswalk, it appears that there were not "adjacent intersections" with traffic control signals.

This intersection is across from a bus stop, so Smyrna really owes it to its drivers to upgrade the intersection with a crosswalk and a walk signal.

I-20 seems to be coming in for an unusual share of tragic car accidents. In the early morning hours of Sunday, March 25, 2012, a 37-year-old man from Bremen, Georgia, was killed while driving along I-20 in a Douglas County motorcycle accident.

Jason Dale Strickland was driving a Harley Davidson motorcycle, headed home from his job as a paramedic at Grady Hospital. Mr. Strickland was headed westbound along I-20 near Lee Road. Francisco Ferrer, a 33-year-old man from Dallas, Georgia, also was headed westbound on I-20. He was driving a Honda Element, according to Dallas Man Charged in Fatal Accident that Claimed Life of Cedartown Man from Examiner.com.

Like the accident I wrote about in an last blog entry, Man Killed in Alpharetta, Georgia Car Crash: Failure to Maintain Lane, this accident actually involved two different motor vehicle accidents. Mr. Ferrer's Honda Element struck Mr. Strickland's motorcycle from the rear, and Mr. Strickland was thrown from his motorcycle into the center lane of travel.

Then, a second, big truck accident occurred. Mr. Joseph Edward Marrett, age 66, of Conyers, was driving a tractor-trailer truck along I-20. When Mr. Strickland was thrown into the center travel lane, the tractor-trailer truck hit the motorcycle driver.

The police have not filed any charges against Mr. Marrett, the driver of the truck. The police apparently concluded that Mr. Marrett was proceeding lawfully down the road, when a man was suddenly thrown in front of him, and that given those circumstances, he had no way to stop fast enough to avoid hitting Mr. Strickland.

The police have charged Mr. Ferrer, however, with driving under the influence (DUI), vehicular homicide, and following too closely.

Under Georgia law, "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." O.C.G.A. § 40-6-49.

In the civil context, the courts have held that juries should decide rear-end collision cases:

With particular regard to "rear-end" collision cases, our Supreme Court has admonished that liability is generally a jury question, depending upon a "factual resolution of the issues of diligence, negligence, and proximate cause." Atlanta Coca-Cola Bottling Co. v. Jones. While a directed verdict in such cases is rare, liability can be summarily decided in the proper circumstances.

R. A. Siegel Company v. Bowen, 246 Ga. App. 177, 539 S.E.2d 873 (2000).

Georgia law provides that "(a) A person shall not drive or be in actual physical control of any moving vehicle while . . . (5) The person's alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended." O.C.G.A. § 40-6-391. Douglas County Assistant District Attorney Ryan Leonard told the Court that Ferrer had a blood alcohol content of .125. Ferrer apparently told police he had been drinking at the Fulton Industrial strip club, Fannie's Cabaret. Sneed, Douglas County Sentinel, Ferrer Denied Bond as He Faces Vehicular Homicide DUI Charges in EMT's I-20 Death.

What a complete tragedy! In a Cumming, Georgia car wreck, a 67-year-old man named Edward Kivlin died at the scene of an accident. The accident took place on northbound Ga. 400, above (north) of Haynes Bridge Road.

The police have not identified the person who hit Kivlin. They have said that Kivlin was driving a maroon Nissan Pathfinder, and that the person who hit him was driving a red Honda Civic. The two were apparently traveling next to each other, in adjacent lanes, when the first car wreck occurred.

The Nissan Pathfinder and the Honda Civic collided, and the drivers of both vehicles lost control. Both the car and the SUV slid into a grassy median near the Haynes Bridge road exit. Kivlin's Nissan got the worst of the deal, though, because, as it was sliding across the road, it was pushed into the path of a white Dodge minivan that was coming down the ramp to enter northbound Ga. 400. The Nissan was in a second collision with the Dodge Minivan, and the Nissan wound up overturning and sliding down an embankment.

For Kivlin, the double car accident was catastrophic. He died at the scene of the car wreck.

The person driving the Honda Civic was also injured, and was taken to North Fulton Hospital. Fortunately, the driver of the white Dodge minivan was not hurt - at least not physically.

As a Cumming, Georgia car accident lawyer, I have been looking at some of the tragedies reported in the news, and explaining how Georgia civil (as opposed to criminal) law would apply to what happened.

The Nissan Pathfinder and the Honda Civic reportedly were traveling right next to each other, and yet collided. According to the article in the AJC, the Honda Civic moved into the lane in which Kivlin was driving his Nissan Pathfinder.

O.C.G.A. § 40-6-48 says that "[w]henever any roadway has been divided into two or more clearly marked lanes for traffic", "[a] vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety." In other words, a driver is supposed to stay in his or her lane of traffic, or as we often think of it, a driver is to "maintain his lane." If a driver moves into another driver's lane, even if they are driving in the same direction, the impact is likely to cause the drivers to lose control. The problem is even greater if the cars are traveling at a high rate of speed, as vehicles do (and are allowed to do) on Ga. 400.

According to the initial investigation, the driver of the red Honda Civic caused the wreck. The driver of the Civic was also hurt in the Alpharetta car accident, since the newspaper article reports that the driver was taken to North Fulton Hospital. The Alpharetta Department of Public Safety has not finished its investigation, and perhaps may adjust its findings as it learns more about what happened.

The American Automobile Association (AAA) has released a study on newly-licensed teenage drivers. Because teen drivers are more frequently involved in wrecks than other drivers, AAA observed the teens to spot risky driving behaviors. In addition to publishing the study, Distracted Driving Among Newly Licensed Teen Drivers, AAA also released video clips of teenagers driving. Most of the clips were pulled from the study.

As part of the study, AAA mounted cameras on the front windshields of the cars the teenagers would be driving. The cameras took video in two directions, out the front windshield, as well as into the car.

I am doing a series in which I analyze these clips as an Alpharetta car wreck lawyer, looking specifically at how Georgia law might apply to the risky behavior of these teens.

One of the most disturbing clips, to me, is the one AAA entitled: "Joy Ride on Dirt." In that video, a teenage driver and his friend are bouncing along a dirt road at a relatively high rate of speed. In the open flatbed of the truck, you can see several other kids bouncing around crazily, even being thrown up above the walls of the open pickup truck bed. The driver and his friend are laughing at what is happening.

In analyzing this clip, I am going to start with this question: Was it legal under Georgia law for him to have passengers riding in the back bed of the pickup truck?

The answer is a not-so-firm, wishy-washy - well, it all depends. Georgia has a statute that says:

"It shall be unlawful for any person under the age of 18 to ride as a passenger in the uncovered bed of a pickup truck on any interstate highway in this state."

O.C.G.A. § 40-8-79. The Georgia statute makes it a misdemeanor for the driver to have passengers in his pickup truck, but does not specify any penalty for the passenger who is riding in the flatbed of the pickup truck.

Applying this law to the video of the young driver that AAA has posted, it seems very unlikely that the young driver has violated Georgia law by having these riders in the open bed of his pickup truck. Of course, it is impossible to tell from the video whether the passengers in the back of the truck are under the age of 18. Certainly based on the age of the driver, it seems very possible that these young riders are under 18, and therefore they are potentially illegal passengers under the statute. However, the video shows that the teen driver is riding on a dirt road, and not on an interstate. Therefore, however unwise it may have been, it was not per se illegal under Georgia law for the young man to have people riding in the flatbed of his pickup truck. The good part is that none of these kids was hurt. As a Georgia personal injury lawyer, I am relieved that not one of these kids or their parents had to come to my office after a catastrophic car wreck.

But as parents, we think through the "what ifs", because this scenario could so easily have turned horrible. What if this scene in fact had become an Atlanta catastrophic car wreck? The boy is driving fast, over very rugged terrain. The passengers are being bounced up, and then crashing down, onto hard metal. A kid could have popped out of the bed of the pickup truck and whacked his head on the hard dirt ground. If the terrain were rugged enough, the truck could have flipped. At the very least, being bounced around in the back of the truck could not have been good for the kids' backs, heads, or for that matter, their general well-being.

But hold on! It may have been illegal for the driver to have had that many people in his pickup truck, period. I'll talk about that in another entry.

My name is Lee Wallace, and I am a personal injury attorney in Atlanta, Georgia. I have written several blog entries about a report from the American Automobile Association (AAA) Foundation about teenage driving.

In the report, Distracted Driving Among Newly Licensed Teen Drivers, AAA studied teenagers with brand new drivers' licenses. When it realized that some of the kids had siblings who were slightly older, but still teenagers, it included those teenagers in the study's results. With parents' permission, AAA installed recording devices in the cars these teens would be driving. The devices included cameras that recorded video out the front windshield, as well as looking into the interior of the vehicle.

Along with the study results, AAA released a number of videos of the teenagers who had been filmed. The video clips are extremely grainy and hard to make out, but you can still see enough to know that they depict the exact things that you, as a parent, have been terrified about for your teenage driver. These clips do not show teen drivers causing wrecks in Georgia (or wherever they were filmed), but they do show the sort of reckless behavior that parents wake up at night worrying about. The behaviors easily could have caused a car accident; it's just that in these cases, everyone was lucky and nothing happened.

(1) Joy Ride on Dirt. In this clip, a teen driver is driving a pickup truck along a dirt road. Passengers can be seen bouncing in the open bed of the truck.

(2) Cell Phone Driver at Bus Stop. A young driver is talking on a cell phone, and fails to notice that cars are stopping for a school bus. He slams on the brakes at the last minute.

(3) Cannot Hear You Stopping! A teen driver is playing loud music and runs a stop sign as he turns right.

(4) Drive Along Not Sing Along. A teen driver sings and dances along with the radio, leaving one hand off the steering wheel for an extended period of time.

(5) Accidentally Crossing Double Yellow Lines at Night. A teenager, who was driving at night, swerves across the double yellow lines, nearly striking the median.

(6) Bragging About Running a Red Light. In my opinion, AAA's title for this clip was not fair. The teen does talk about the fact that she ran the red light, and tries to pass it off casually, but from my listen to the video, she did not seem to be proud of what she had done or to be bragging about it.

(7) Quick Turn in the Rain. On a rainy night, a driver makes a quick turn into a parking lot. Her passenger seems unnerved by her driving.

(8) Talk to Your Mom Later. It doesn't take much imagination to guess what this clip contains: a teen talking on a cell phone.

In all, AAA has posted 16 video clips that it believes show risky driving behavior by young teen drivers.

I thought it would be interesting to view some of these video clips from the standpoint of Georgia law, looking at the question of which Georgia statutes might apply. In some of the clips, the young driver is actually violating the law. In other videos, the drivers are engaging in risky behavior, but not necessarily violating the law.

As part of my role as a Douglasville car accident lawyer, I easily could have seen these kids rolling into my office in wheelchairs, or their parents coming in desolated by the loss of a very beloved child. One of the reasons I wanted to use these clips is precisely because mercifully no one was injured, and no one showed up at my Atlanta personal injury law practice because of the behavior of these teens. Hopefully other teens can look at the types of risks these teenagers took, and it will help them think of what they do not want to do when they drive.

Since I handle cases as a Newton County car accident lawyer, I often get asked the question: Is it legal to text and drive in Georgia?

Since July 1, 2010, it has been illegal to text and drive in Georgia. The legislature passed O.C.G.A. §§ 40-6-241.1 and 40-6-241.2, which make it illegal to operate a motor vehicle on a public road "while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data."

The law applies to any "wireless telecommunications device" ("cellular telephone, a text messaging device, a personal digital assistant, a stand alone computer," etc.), but not to "citizens band radios, citizens band radio hybrids, commercial two-way radio communication devices, subscription based emergency communications, in-vehicle security, navigation devices, and remote diagnostics systems, or amateur or ham radio devices."

The Georgia Code makes exceptions for:

(1) Someone reporting a traffic accident, emergency, serious road hazard, or "a situation in which the person reasonably believes a person's health or safety is in immediate jeopardy";

(2) A person reporting a crime or potential crime;

(3) Public utility employees or contractors responding to a public utility emergency;

(4) Law enforcement and public safety first responders who are performing their official duties; and

(5) Someone sitting in a lawfully parked vehicle.

Texting while driving is a misdemeanor, and can result in a fine of up to $150.

According to Text'n Drive, in the year after its passage, only 36 people in the entire state of Georgia were cited for violating this statute. Woodstock police gave out 24 citations, Canton police gave out 9, and Holly Springs police cited 3 people for texting while driving. See Georgia Issues 36 Citations in a Year for Texting While Driving.

It seems unlikely that Woodstock, Canton and Holly Springs drivers are the only ones texting and driving, and more likely that the Woodstock, Canton and Holly Springs police are just more serious about the offense.

Sgt. Jeff Tucker from the Canton Police Department told Text'n Drive that law enforcement officers have had trouble enforcing the law because a driver who is pulled over on suspicion of texting can refuse to hand over his phone. Drivers also can erase the recent messages, and then law enforcement would have to subpoena the records.

Proving the violation, of course, would be a tremendous amount of work to generate only a $150 fine. Although the police did not explain when the citations were issued, I would guess that the majority of the citations were issued when a Canton, Woodstock or Holly Springs driver caused an accident and a personal injury when he was texting and driving.

At the time the bill came to his desk, Governor Perdue admitted that he was concerned with how police would be able to enforce SB360, but he signed it anyway, saying it was worth it, "if it would save even one life." See Banned in Georgia: All Texting by Drivers Under 18, 11Alive News (6/5/10).

SB 360 is named after 18-year-old Caleb Sorohan, who died in a Morgan County car wreck while texting and driving. Caleb's family and friends had lobbied at the State Capitol for both bills.

For more information about studies on texting and driving, see The Wallace Law Firm, L.L.C., Texting and Driving Wrecks.

The Georgia Department of Transportation ("GA DOT") issued a report in 2008, Crash Statistics, Analysis and Information Notebook 2008, that delved into the statistics about car accidents in Georgia. I am a lawyer handling Lawrenceville car wreck cases and car accident cases from around Georgia, and I have been blogging about this GA DOT report.

Yesterday I mentioned the fact that the statistics unexpectedly show that fatal car accidents are more likely to occur in rural Georgia than in metro Atlanta counties, or around the municipal areas of Albany and Leesburg, Athens, Augusta, Columbus, Macon, and Savannah, and the northeastern corner of our state, which is near Chattanooga, Tennessee.

The 2008 GA DOT report.pdf suggested several reasons why people in a car accident are more likely to be killed in car accident in Rabun County, Georgia, which the DOT considered one of our state's rural county, than in Fulton County, Georgia. These factors increased the risk of death from car accident generally, and many of these conditions are more likely to occur on rural roads.

1. It appears that the rural roads themselves are the reason why there are so many more deaths in car crashes in rural Georgia. Of the car wrecks in which people were killed, three out of four of the fatal crashes occurred on Georgia two-way roads that did not have any separation or barrier. Roads in the Atlanta metro areas, and in other municipal areas, are much more likely to have multiple lanes and medians. Georgia's rural roads may not.

2. More people are killed in a crash when the vehicle leaves the road. The absolute greatest risk of death or injury occurs when a vehicle either overturns or crashes into a fixed object. Worse, the number of rollover crashes increased dramatically, by 41.2%, between 2000 to 2006. Rural roads are less likely to have a shoulder, and so a car can leave the road more easily.

3. The risk of crashing is much greater when a road has a horizontal curve. "In 2006, one out of two fatal off road crashes happened on a curve although straight roadway segments far outnumber curved roadway segments." Many of the roads in rural Georgia are curvy.

4. A full 1/3 of fatal crashes occur on off-system roads, and "almost all" of these car accidents in which people died happened on two-way roads without any separation (see first point, above), and 62% were on horizontal curves (see point 3 above).

5. Not surprisingly, car wrecks in intersections are quite dangerous. ¼ of all the fatal car crashes in Georgia occur at an intersection. Of these car accidents at intersections, 60% occurred at an intersection without any traffic control. Of these four categories, "the highest number of fatal intersection crashes occurred in rural counties."

6. Crashes that occur at an angle are more likely to be fatal. The GA DOT defines angle wrecks as wrecks where one vehicle is turning and another vehicle hits it from the side. Not surprisingly, then, most intersection car accidents are angle wrecks, and 61% of the deaths in vehicle collisions at intersections involved angle wrecks. 25.2% of the deaths in car wrecks occur when the auto crash happens at an angle. Of the fatal crashes between 2000 and 2006, 2618 of them involved automobile wrecks that occurred at an angle.

Two weeks ago, on March 20, 2012, we had a tragic and somewhat bizarre auto accident in Newton County, Georgia.

I-20 is an interstate that runs east and west through downtown Atlanta. It is a very busy road, with multiple lanes going in both directions.

In fact, there were two different automobile accidents, with tragic consequences. First, a man named William Clark Hildreph was driving a Chevrolet Impala eastbound on Interstate 20, near Alcovy Road. Hildreph, age 44, hailed from Fort Mill, South Carolina.

Apparently Hildreph's vehicle struck the median wall, spun out of control, and wound up facing backwards (west) in the eastbound lane. After this first car wreck, Hildreth got out of his car and started to walk across the interstate. Before he reached the other side, a red SUV ran into him. Hildreph died. The driver of the SUV left the scene of the car accident and continued on along I-20.

The story got stranger when the State Patrol learned that the vehicle that Hildreph had been driving belonged to Danny Joe Baxter, a 57-year-old man from Haleyville, Alabama. Haleyville is located northwest of Birmingham. When police went to Baxter's home to talk to him, they were shocked to find his dead body.
http://www.myfoxatlanta.com/dpp/news/local_news/Hit-and-Run-Victim-May-be-Linked-to-Alabama-Murder-20120316-pm-sd

When I analyze this situation legally, as a Newton County, Georgia, car accident lawyer and personal injury lawyer, it is hard to know where to start.

First, Mr. Hildreth apparently failed to maintain his lane, which caused him to hit the median wall. Under Georgia law, a driver has a duty to maintain his lane, and should keep his vehicle "as nearly as practicable entirely within a single lane" and shall not move it from the lane "until the driver has first ascertained that such movement can be made with safety. O.C.G.A. § 40-6-48.

Second, Mr. Hildreth was crossing a highway in the middle of the night. Presumably I-20 has a shoulder in that area. In that case, Georgia law provides that a pedestrian "standing or striding along and upon a highway shall stand or stride only on the shoulder, as far as practicable from the edge of the roadway." Even on a highway that has no shoulder, a pedestrian is required to "stand or stride as near as practicable to an outside edge of the roadway." In general, even if he was crossing to the shoulder, "any pedestrian upon a roadway shall yield the right of way to all vehicles upon the roadway." O.C.G.A, § 40-6-96.

Third, Georgia law requires a driver involved in an auto accident to stop at the scene of the car wreck:

The driver of any vehicle involved in an accident resulting in injury to or the death of any person or in damage to a vehicle which is driven or attended by any person shall immediately stop such vehicle at the scene of the accident or shall stop as close thereto as possible and forthwith return to the scene of the accident . . .

O.C.G.A. § 40-6-270(a).

Because he was a hit-and-run driver, and because the driver fled the scene of the accident, everyone presumes he or she was responsible for the wreck. Ironically, had the driver stayed at the scene of the wreck, he well may not have been held responsible for what happened since Mr. Hildreth was crossing a highway, rather than walking along the side of the road. By not stopping, the driver in the red SUV converted a sad circumstance into a crime, as he became guilty of a traffic violation as a Newton County hit and run driver who had fled the scene of the accident.

When it comes to a lawsuit for Georgia wrongful death damages, the Georgia statute has created a potential conflict between the decendent's spouse and the deceased's children. Despite the conflict, the courts have held firm to their decision to enforce the statute as written, making only a single exception in a situation that truly had created an outrageous result.

If someone is killed in Newnan, Georgia, for example, then the spouse has the right to bring a Newnan wrongful death lawsuit. The children have no right to sue - according to the Georgia statute, O.C.G.A. § 51-4-2, the suit belongs to the spouse. The Supreme Court extended this holding even to situations where the spouse refused to sue, stating that the only remedy for the children would be to sue the spouse who had failed to bring suit on their behalf. The court explained that the right to sue "adequately protects any property interest that children might have in an action for a parent's wrongful death." The Georgia wrongful death statute "created a procedure intended to enable children to share in any proceeds of such an action," but not "in control of such an action." The Court found that the legislature had made a constitutionally adequate decision given this "delicate and emotional area of the law." O'Kelley v. Hosp. Auth., 256 Ga. 373, 374 (Ga. 1986). The O'Kelley case involved a Fulton County wrongful death lawsuit.

The Supreme Court made a small exception to the rule in Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215-216 (Ga. 1991), a Colquitt County wrongful death lawsuit. In Brown, a woman had been killed in a Colquitt County tractor-trailer wreck, in which her car was struck by a large, tractor-trailer being operated by an employee of the Liberty Oil company. The husband abandoned the couple's children after the car accident, and could not be found to bring suit (the children also argued that he was unwilling to bring suit), so the woman's children sued for her wrongful death. The trial court dismissed the claim, reasoning that under Mack, the husband was entitled to make a choice not to sue, and since the husband was alive here, the fact that he had not sued was tantamount to a decision not to sue, so the children had no right to bring a wrongful death suit The Supreme Court overruled prior cases Mack v. Moore, 256 Ga. 138, 138-139 (Ga. 1986) (see discussion in yesterday's blog entry, )and O'Kelley to the extent those cases supported the trial court's ruling, concluding that the trial court should have exercised its equitable powers to preserve the wrongful death claim. (For discussion about Mack, see Georgia's Wrongful Death Statute: Conflict Between the Spouse and the Children).

Our Constitution vests general equitable powers in the superior court. We hold that the factual circumstances of this case demand the exercise of those powers to preserve the rights of the minor children. The trial court should have allowed these minors, who have no remedy at law, to maintain an action for the wrongful death of their mother. Any contrary holding in Mack, supra, and in O'Kelley, supra, is overruled.

Brown v. Liberty Oil & Ref. Corp., 261 Ga. 214, 215-216 (Ga. 1991).

Although the court did make a limited exception in Brown, the courts have shown no inclination to expand the exception to cover other occasions where the spouse fails to represent the children properly: "[T]he general rule still applies: the surviving spouse has exclusive standing to bring a wrongful death action. The only exception to this rule arises "[i]n rare circumstances" . . . in the limited context of a superior court exercising its equitable powers to allow the surviving children with no remedy at law under certain circumstances to pursue a wrongful death claim." Blackmon v. Tenet Healthsystem Spalding, Inc., 288 Ga. App. 137, 146 (Ga. Ct. App. 2007), overruled on other grounds by 284 Ga. 369, 667 S.E.2d 348 (2008).