Wrongful Death

Georgia Police Officer Faces Wrongful Death Lawsuit for Fatal Shooting

February 5, 2016 | Benjamin S. Persons, IV

A wrongful death lawsuit is designed to compensate the surviving family members of a homicide victim. Under Georgia law, a spouse may file a wrongful death claim, and if the victim had no spouse, that right falls to the victim’s children. A wrongful death claim exists separate and apart from any lawsuit that may be filed by the victim’s estate—that is, on behalf of the victim.

Felio v. Hyatt

Wrongful death cases are often difficult to bring against government employees, who enjoy a broad degree of immunity for their official acts. But such claims are not impossible. A recent decision by the 11th U.S. Circuit Court of Appeals in Atlanta offers a useful illustration.

Railroad Not Liable for Fatal Georgia Crossing Accident

December 28, 2015 | Benjamin S. Persons, IV

According to statistics from the Federal Railroad Administration, there are more than 2,000 vehicle-train collisions at railroad crossings every year. When such accidents result in serious injury or death to innocent motorists, it is only logical the victims would want to hold the railroad responsible. But in some cases Georgia law may frustrate these efforts, as illustrated by a recent federal appeals court decision.

Long v. CSX Transportation, Inc.

This case involves a fatal accident that occurred at the Emory Street Crossing in Covington, Georgia. In 1974, the Georgia Department of Transportation contracted with a private railroad to install new gates and crossing signals at the Emory Street Crossing. Some years later, the railroad made some changes to the design, which resulted in a 36-foot gap between the installed protective devices and the main railroad line.

Georgia Court Upholds $4.7 Million Judgment Against Seat Belt Manufacturer

November 27, 2015 | Benjamin S. Persons, IV

Many car accidents are the result of a defect in the design or manufacture of part of the vehicle. A manufacturer may be held liable under Georgia law for such defective products. A jury may also find a manufacturer failed to adequately warn consumers about certain safety risks associated with a product.

Key Safety Systems, Inc. v. Bruner

On November 19, the Georgia Court of Appeals upheld a $4.7 million verdict holding a seat belt manufacturer partially liable for the tragic death of a 47-year-old mother of two. In September 2007, the victim was riding in the family’s Jeep Wrangler, which her daughter was driving. For undetermined reasons, the Jeep left the roadway and rolled over. Despite the fact mother and daughter were wearing seat belts, the mother was ejected from the vehicle and died. A witness at the scene testified that the victim, who survived for a short time following the rollover, said she could not understand why she was ejected as she was wearing her seat belt. The victim’s husband later testified his wife was “emphatic” in always wearing her seat belt.

Federal Judge Says Mother Cannot Sue for Stillborn Child’s “Pain and Suffering”

February 13, 2015 | Benjamin S. Persons, IV

The death of a child is always a tragedy for the parents. When that death is the result of negligence or medical malpractice, the parents will understandably seek justice against the responsible professionals. But, justice is a more complicated matter when the child dies before birth. A recent decision by a federal judge in Atlanta addresses the difficulty raised when trying to decide when life begins for purposes of the law.

Durden v. Newton County

This sad case arises from a 2012 incident involving a pregnant woman incarcerated in Newton County. An Alabama-based contractor helped provide the woman’s medical care while in prison. The prison and the contractor understood this was a “high-risk” pregnancy.

Bar Owner Not Liable for Customer’s Drunk Driving Death

November 21, 2014 | Benjamin S. Persons, IV

Is a bar owner liable for the death of a customer who drinks to excess and kills himself in a subsequent automobile accident? In Georgia, the answer is usually “no.” The Georgia Supreme Court recently elaborated on this principle in rejecting a wrongful death lawsuit brought by the wife of a man who died precisely in this manner.

Dion v. Y.S.G. Enterprises, Inc.

In September 2011, a man entered a sports bar at around 2:30 in the afternoon. He proceeded to drink for the next eight hours, leaving the bar just before 11 p.m. He was visibly intoxicated and a bar employee unsuccessfully attempted to take the man’s car keys. After leaving the bar, the man got into a single-car accident and died. His reported blood-alcohol level at the time of his death was .282, more than three times the legal limit.

Appeals Court Says Hero Security Officer Cannot Recover Against Mall Owner

November 10, 2014 | Benjamin S. Persons, IV

In March 2007, a security officer working at an Atlanta mall intervened to stop a robbery at a jewelry store. The officer shielded a mall patron’s body as one of the robbers opened fire. The officer was seriously injured and died several years later. Two other people were also injured by gunfire.

Unfortunately, the security officer’s heroism that day did not help his estate in court. The officer initially filed a premises liability lawsuit, accusing the mall’s owners of negligence in managing the property. A trial court granted these defendants’ motion for summary judgment, and in opinion issued on November 3rd of this year, a three-judge panel of the Georgia Court of Appeals affirmed.

Swope v. Greenbriar Mall Limited Partnership

Georgia Appeals Court Dismisses Lawsuit Against State University Over Notice Requirement

March 21, 2014 | Benjamin S. Persons, IV

Process matters when bringing a personal injury lawsuit. This goes double when the defendant is a state government agency. The Georgia Tort Claims Act (GTCA) governs personal injury lawsuits against the state for torts committed by its employees. Normally any government enjoys “sovereign immunity” from lawsuits in its own courts. The GTCA creates a limited waiver of that immunity provided its requirements are followed to the letter. A recent Georgia Court of Appeals decision illustrates what happens when those requirements are not followed.

Driscoll v. Board of Regents of the University System of Georgia

The GTCA applies to all state agencies, including the University System of Georgia and its member colleges and universities. Four years ago, a van owned by Georgia State University was traveling down an eastbound lane on Interstate 285. A tire flew off the van, crossed the median wall and struck a Hyundai Sonata and another car. The driver of the Sonata was killed.

Driver Exclusions Can Deny Accident Victims Access to Damages

June 14, 2013 | Benjamin S. Persons, IV

Under Georgia law, an automobile insurance policy may exclude certain individuals from coverage. For example, if you purchase insurance coverage for your vehicle, you may want to exclude your child from coverage if he has a poor driving record; such an exclusion can improve your own insurance rate. The courts will generally honor an exclusion if it is clear and unambiguous.

A recent decision by a federal judge in Macon helps explain this subject. The underlying case arose from a fatal December 2006 automobile accident. One person–the driver deemed solely responsible for the accident–died while another man suffered serious injuries. In 2008, the surviving injury victim filed a negligence suit in Dooley County Superior Court against the estate of the deceased driver. The victim also sued the driver’s parents, who owned the car, for negligent entrustment, that is negligently providing their son with access to their automobile.

The parents held an insurance policy on their automobile from Progressive Max Insurance Company. About a month before the accident, the father signed a “Name Driver Exclusion Election” listing his son as an excluded driver. The language of the exclusion stated, “No coverage is provided for any claim arising from an accident or loss involving a motorized vehicle being operated by an excluded driver.” This included any claims made against the parents or their son for “vicarious liability” arising from the son’s operation of the vehicle. Vicarious liability refers to the responsibility of a superior for the acts of his agent. This commonly arises in cases where a company is liable for negligent acts committed by an employee.

Georgia Supreme Court to Decide Property Owner’s Responsibility For Fatal Alligator Attack

October 25, 2011 | Benjamin S. Persons, IV

The Georgia Supreme Court has agreed to hear a case that tests the extent to which property owners are responsible for others injured by animals on their property.

The Homeowners Association of The Landings, a subdivision on Skidaway Island, just outside of Savannah, GA, is being sued in relation to the death of Gwyneth Williams. Williams, 83, was house sitting at her daughter’s home inside the Landings, and was attacked by an 8-foot alligator in October 2007. The alligator was later killed, and both Williams’ hands as well as one of her legs was found inside the stomach of the animal
In Georgia, the law normally protects property owners from lawsuits stemming from accidents caused by wild animals, but lawyers representing Williams’ family say this is a different situation. Attorney Michael Connor says that there nothing at all wild about the property in question, “It is a very contrived environment. There are 160 lagoons on the development. And all those lagoons are man made.”

Connor further explains, “The landings stocked the lagoons with the fish, which fed the alligators, and connected the waterways to create an “alligator superhighway.” He says the Landings, “Knew the alligators were dangerous,” and they have had prior reports of problems. Connor feels that the alligator could, and should have, been easily discovered and removed by a responsible maintenance program by the HOA of the Landings.

The Supreme Court of Georgia Ruled a Jury Will Be Allowed to Hear Unusual Medical Malpractice Suit

September 29, 2011 | Benjamin S. Persons, IV

The Georgia Supreme Court recently published an opinion in the case of O’Brien v Bruscato, allowing suit to go forward involving a mentally ill Georgia man that brutally killed mother. Vito Bruscato, the father and guardian of Victor Bruscato brought a medical malpractice suit against Victor’s psychiatrist for discontinuing his medication shortly before the homicide of Victor’s mother. Victor, who had a history of violence, crushed his mother’s head with a battery charger and proceeded to stab her 72 times on August 15, 2002 at the family’s Norcross Home. During his interview with police, Victor Bruscato, told them he knew killing his mother was wrong but that “the devil made him do it.”

The suit alleges Dr. O’Brien’s negligence in discontinuing his son’s medication caused him to become psychotic and kill his mother. The two drugs, Zyprexa and Luvox, are powerful prescription that Bruscato was taken off of several weeks before killing his mother. The court records in the case indicate that Victor Bruscato was assigned to Dr. O’Brien in 2001in a community health center in Gwinnett County. Expert witnesses have testified that anti-psychotic drugs he was prescribed were helping him manage his violent tendencies. In May 2002, O’Brien discontinued the medications because he wanted to make sure that Bruscato wasn’t developing a “dangerous syndrome.” After the discontinuation of the medication, Bruscato claims he began having nightmares and the claimed the devil was ordering him to do bad deeds.

The Supreme Court noted in it’s decision that an expert psychiatrist testified “the chemical changes that resulted from withholding medication caused Bruscato to decompensate and experience the return of the most severe symptoms of his medical disorder, including auditory command hallucinations, agitation, and hostility. The expert concluded that O’Brien’s treatment manifested gross negligence and a disregard of the consequences of leaving a historically violent and potentially psychotic patient unmedicated.”