Personal Injury

Victim Seriously Injured in Cobb County Hit and Run Collision

July 25, 2010 | Benjamin S. Persons, IV

Smyrna Police are looking for the driver of a 2001 or 2002 white Chevrolet Camaro involved in a hit and run incident, Saturday night, July 17th. According to the police investigation, the Camaro struck a parked car and while attempting to flee the scene struck a young woman causing serious injuries. The 17 year old woman was taken to Grady for treatment and according to a recent Marietta Daily Journal report is still in intensive care.

It is appalling a young woman is in intensive care because the Camaro’s driver did not want to take responsibility for causing a simple traffic accident. Smyrna Police believe the left front quarter panel and driver’s side door of the white Camaro are damaged and the car is likely missing the driver’s side mirror. If you have any information about this incident call the Smyrna Police at (770) 434-6666 or (770) 434-9481

BP Executive Promises to Pay All Legitimate Claims in Gulf Coast Disaster

June 1, 2010 | Benjamin S. Persons, IV

As previously discussed in this blog, the Death on the High Seas Act (DOHSA), Oil Polution Act (OPA), and the Limitation of Liability Act (LOLA) protect companies like BP from liability when disasters such as the Gulf Coast Oil Spill occur. However, it appears government and public pressure may prevent BP from hiding behind these maritime immunity statutes. The above video is footage from Thursday’s Congressional Hearing on the oil spill. With many calling for a complete boycott of BP, Lamar McKay, Chairman and President of BP America, stated BP will pay all legitimate claims.

Potentially, this is good news for the fishermen, shrimpers, hotels and restaurants damaged by this disaster. Affected small business now must fight over the value of their claims, but if BP keeps it’s word, at least these businesses will not have to worry about capped damages completely precluding their claims. Hopefully, government, media, and public pressure will continue to ensure BP keeps it’s promise to pay for the harms it caused.

BP May Escape Liability for the Catastrophic Damage Caused by the Gulf Oil Rig Explosion

May 31, 2010 | Benjamin S. Persons, IV

It has been revealed through recent Congressional hearings that BP ignored warning signs and continued to drill just hours before the oil rig, Deepwater Horizon, exploded killing 11 people and causing an environmental catastrophe of historic proportions. BP has admitted fault, but BP executives testified that Transocean (the offshore drilling contractor) shares responsibility because the Blow Out Preventer, or BOP, failed to operate. Transocean, while acknowledging the failure of the BOP, has pointed the finger at Haliburton for failures in the cementing process. It appears the Gulf Coast Disaster could have been prevented at several different stages and there is plenty of blame to go around.

One victim, twenty-eight-year-old Gordon Jones, died in the explosion leaving his widow, Michelle, to care for their two young sons. The Jones family and the families of the other 10 workers that died are severely limited in their ability to recover damages because of the Death on the High Seas Act (DOHSA). “BP is immune from entirely compensating these families for the horrible way in which their loved ones died and the relationship they have now lost,” said Anthony Tarricone, president of the American Association for Justice. “DOHSA needs to be amended to provide fair remedies to victims of other maritime disasters on the high seas, starting with the 11 brave men who died on the Deepwater Horizion.”

BP and Transocean are further protected by the Oil Pollution Act (OPA) and Limitation of Liability Act (LOLA). While experts estimate the economic damage to the Gulf Coast in the Billions, the OPA caps BP’s liability at $75 million. Additionally, Transocean is seeking to limit it’s liability to $27 million by relying on the Limitation of Liability Act. The law was passed in 1851 to allow ship owners to limit liability to the post-accident value of the vessel and cargo. Transocean has reported the oil rig was worth $650 million before the explosion and is now worth less than $27 million laying sunken on the ocean floor.

Motorcyclist’s Fatal Crash in Downtown Atlanta Caused by Suspected Drunk Driver

May 28, 2010 | Benjamin S. Persons, IV

Today, in the early morning hours, a fatal motorcycle crash occurred on I-75 northbound near the 17th street overpass. According to investigating officers, the motorcyclist was ejected and killed during the collision when his motorcycle was rear-ended by an SUV. The driver of the SUV was arrested and charged with vehicular homicide, reckless driving and DUI.

Our prayers go out to the family of the DUI victim and the driver that caused his death. There are going to be a lot of vehicles on the road this Memorial day weekend. More than 28 million Americans are going to be traveling our streets and highways this weekend. It is important to remember motorcycles are everywhere, look twice and share the road.

As a DUI victim’s lawyer, I urge everyone to have a good time this holiday weekend, but when it comes time to drive home call someone like Saferide America at 404-888-0887. SafeRide America is a non-profit organization that will drive you and your car home for less than the price of a taxi.

7 Rules to Keep Teen Drivers Safe

May 11, 2010 | Benjamin S. Persons, IV

School is out for the summer and teen drivers are spending more time behind the wheel. Recent studies indicate teen drivers engage in more risky in-vehicle behavior during the summer months, which likely accounts for the increased number of fatal car wrecks during the summer. According to the NHTSA, car crashes are the leading cause of death for young people between the ages of 15 and 19 years old. It is important for parents to set safe driving rules and pay attention to their teenager’s activities. As a Georgia personal injury lawyer that has seen too many tragic collisions, here are seven basic rules:

1. Never send text messages or talk on a cell phone while driving. Talking on a cell phone while driving distracts the brain and reduces your reaction time. Using a cell phone while driving increases the risk of a crash twice as much as driving drunk.

2. Always buckle up. Approximately two thirds of teen drivers killed in automobile collisions were not wearing seatbelts.

Video – Deadly Collision Caused by Texting Driver

May 3, 2010 | Benjamin S. Persons, IV

Texting while driving, is known by prosecutors and personal injury lawyers as the new DUI/DWI. Georgia will soon become one of the 20 states that bans texting while driving. With legislation and driver education we can hopefully prevent fatal collisions like what occurred in the video above.

Georgia Bans Texting While Driving

April 29, 2010 | Benjamin S. Persons, IV

Presuming the Governor signs off on the new legislation, it will soon be illegal to text while driving in Georgia. Personally, it seems odd we need a law to tell people to refrain from typing messages on their smartphones while operating a two ton metal box in speeds in excess of 70 miles per hour, but we do. As a Georgia personal injury lawyer, I’ve seen way too many deaths and catastrophic injuries caused by driver distractions, such as texting and talking on cell phones. I was pleased to see the Georgia Legislature address the problem.

As the recent legislative session closed, two bills passed addressing this issue. First, SB 360 (also known as the Caleb Sorohan Act) bans texting while driving. The act was named for a Georgia teen that died while texting and driving. Also passed was HB 23, which prohibits teen drivers from using a cell phone for any purpose while driving. The fine for either offense is $150.00.

As we have previously discussed on this blog, recent studies suggest driving while distracted by a cell phone increases the risk of a collision twice as much as driving while intoxicated (.08 Blood Alcohol Content). While enforcement of these laws may prove difficult at times, this is an important issue that needed to be addressed. This Legislation is a step in the right direction and hopefully many tragic collisions will be avoided.

Georgia Medical Malpractice Damages Caps Ruled Unconstitutional by the Georgia Supreme Court (Nestlehutt Case)

March 22, 2010 | Benjamin S. Persons, IV

In 2005, under extreme pressure from the insurance industry, the Georgia Legislature passed sweeping tort reform measures (known as SB3) drastically changing Georgia law. At the heart of SB3 is OCGA § 51-13-1, which limits noneconomic damages in medical malpractice actions. Under this law no matter what value a jury places on a human life, the loss of a limb, the ability to see, or other catastrophic injury the award must be reduced to an arbitrary limit imposed by the Legislature. Today, the Supreme Court of Georgia in an unanimous 7-0 decision, Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., held noneconomic caps on damages unconstitutional.

The Supreme Court ruled “OCGA § 51-13-1 clearly nullifies the jury’s finding of fact regarding damages and thereby undermines the jury’s basic function…Flat caps on noneconomic compensatory damages…violate this State’s constitutional guarantee that ‘the right to trial by jury shall remain inviolate.'”

As one who believes in protection of our sacred constitutional rights and also a strong believer in victims’ rights, I could not be more pleased with the Supreme Court’s decision. Today is a great day for Georgia and for Betty Nestlehutt. Click here to watch Betty Nestlehutt’s story.

ER Gross Negligence Statute Upheld by the Supreme Court of Georgia

March 18, 2010 | Benjamin S. Persons, IV

Since 1863, Georgia law has required that those practicing medicine for compensation must bring to the exercise of their profession a reasonable degree of care and skill, and Georgia law has provided that any injury resulting from a want of such care and skill shall be a tort for which recovery may be had. In 2005, all that changed, and ER physicians in our State were no longer required to practice with care and skill. This new law, codified at OCGA § 51-1-29.5 (c), was part of the tort reform package proposed by the insurance industry and passed by the Georgia Legislature in 2005. Those injured or killed by ER malpractice can no longer recover unless they can prove a much higher burden of gross negligence. This week in a 4-3 decision, Gliemmo et al. v. Cousineau et al., the Supreme Court of Georgia upheld the ER gross negligence statute as constitutional.

The case began in 2007, when Carol Gliemmo presented to St. Francis Hospital with serious pain behind her eyes, a sudden snapping in her head, and elevated blood pressure. Mark Cousineau, MD of Emergency Medical Specialists of Columbus, P.C. wrote her a prescription for Valium and sent her home. Two days later her primary care physician ordered a CT scan, which revealed a brain hemorrhage. As a result of the brain hemorrhage going untreated Carol Gliemmo was paralyzed.

So, even though expert physicians can agree that Dr. Cousineau breached the standard of care required of emergency physicians and caused this woman’s paralysis she cannot recover under Georgia law. It’s still difficult to believe this is the state of the law in Georgia. I’m certain Georgia medical malpractice lawyers will continue to fight for injured victims, but times are grim in Georgia. Of course Atticus Finch would say courage is knowing you’re licked before you begin but you begin anyway and you see it through no matter what. You rarely win, but sometimes you do.

The Supreme Court of Georgia Upholds the “Offer of Settlement” Statute, OCGA § 9-11-68

March 16, 2010 | Benjamin S. Persons, IV

In 2005, by the narrowest of margins, the Georgia Legislature passed sweeping changes to Georgia’s tort laws, known as SB3. Included in those changes was the new “Offer of Settlement” statute, codified at OCGA § 9-11-68. The Offer of Settlement statute has created a new mechanism for punishing a party to litigation with attorney’s fees. Georgia already has two statutes (OCGA §§ 9-15-14 and 13-6-11) that subject parties to statutory penalties, including attorney’s fees, for bringing frivolous suits or unreasonably litigating matters. The Offer of Settlement statute is different in it applies to all cases even meritorious suits that prevail at trial. This statute sets up situations where injured victims may win a jury verdict but end up with a net loss because the insurance companies’ attorney’s fees exceed the verdict. This week, the Supreme Court of Georgia in a 5-2 decision upheld the Offer of Settlement statute overruling the trial court’s finding that the statute violated the Georgia Consitution’s right to access the courts.

In her dissent, the honorable Justice Hunstein artfully explained why this statute does in fact violate our constitutional access to the courts as follows: “OCGA § 9-11-68(b)(1) penalizes plaintiffs with meritorious causes of action for an impossiblity, namely, their failure to see into the future so as to calculate the precise amount a factfinder may award them for the damages they reasonably believed they sustained at the hands of the defendants…No party intending to file a cause of action in tort can foresee whether she will recover ‘enough’ money to avoid the effect of OCGA § 9-11-68(b)(1).”

The practical effect of this statute is that it will make it extremely difficult for middle class Georgia citizens to pursue meritorious cases. As discussed above, if an injured person fails to recover “enough” money from the jury, the insurance company can take a judgment against the injured person for the attorney’s fees they paid defending the case. Those without significant assets will not be deterred from pursing meritorious cases, because there is no way to collect a judgment against someone that has nothing (also known as “judgment proof”). The wealthy will still seek justice and their day in court knowing they can afford the unlikely result of a lower than expected jury verdict in their favor. The middle class injured victim is the only one truly stung by this new law. Many will still seek justice, but there are those that will forgo pursing recovery for their broken bones and medical expenses because the fear of having to pay for the insurance companies’ lawyer. This new law is just one of many challenges an experienced Georgia personal injury lawyer must negotiate in the mine field that is civil litigation.