Articles Posted in Georgia Laws

u-s-supreme-court-washington-dc-1224318-300x226In 2018, the Supreme Court of Georgia in Cooper Tire & Rubber Company v. Koch, 339 Ga. App. 357 (793 SE2d 564), advised that the plaintiff has a duty to preserve relevant evidence when plaintiff actually anticipates or reasonably should anticipate litigation.   The above cited case involved a tire tread (manufactured by Cooper Tire) that separated from the left rear tire in 2012 which caused a Ford Explorer to strike a guardrail.  The driver suffered serious and permanent injuries and subsequently died from those injuries.

The left rear tire was the only part of the car that was saved from the Ford Explorer.  In 2014, the estate of the deceased filed a product liability claim against Cooper Tire & Rubber Co. which alleged catastrophic tread separation and resultant collision due to negligent design and manufacture, strict liability, and failure to warn. Cooper Tire filed a motion to dismiss the complaint due to spoliation of evidence.  The trail court denied that motion inasmuch as litigation was not reasonably foreseeable or reasonably contemplated by the plaintiff.

The Georgia Court of Appeals affirmed the order of the trial court and rejected Cooper Tire’s argument that the trial court focused exclusively on whether plaintiff subjectively knew that a lawsuit over the incident and tire tread allegation was likely. The Appellate Court held that there was a distinct difference between whether defendant “actually or reasonably should have foreseen litigation” versus the plaintiff.  The Court of Appeals held that the trial court did not abuse any discretion in relying upon Phillips v. Harmon, 297 Ga. 386 (774 SE2d 596)(2015), which applied an objective standard for spoliation.  Yet, the Court of Appeals did note that reasonable foreseeability of litigation involved both objective and subjective criteria.

In wrongful death actions, as well as in civil tort cases in general, an injured plaintiff must prove that his injury was “caused by” the defendant in order to recover for his or her injuries. This doctrine, known as the “chain of causation,” stands for the preposition that a plaintiff should only be able to recover for harms which are a proximate result of the defendant’s acts. Thus a defendant will not be liable if the causal chain is broken by some intervening or superseding factor. To that point, the Supreme Court of Georgia recently reversed a lower court ruling regarding superseding acts in Jordan v. Everson.

Ben Everson was attended by Brian Jordan, an emergency room physician, two days before his death because Everson was hearing voices and hallucinating. Dr. Jordan diagnosed Everson with obsessive-compulsive disorder, ordered that he be discharged, and gave instructions that Everson should make an appointment to be evaluated at a mental health facility. Emergency room staff made an appointment for Everson at a local facility, but due to family contacts at Duke University, the Eversons decided to take Ben to Durham rather than a nearby facility. However, on the way to the facility, Ben took off his seat belt, jumped out of the moving car and was subsequently struck by a vehicle and killed as he ran down the highway.

Dr. Jordan moved for summary judgment as to a lack of causation for Everson’s death, but the trial court denied the his motion, ruling that a jury would have to determine that the action of driving Ben to Durham was wrongful or negligent before it could determine that such action broke any causal chain between Jordan’s conduct and Ben’s death. But, the Supreme Court of Georgia found this to be in error, as there is no requirement in Georgia that an intervening act be “wrongful or negligent” to break the causal chain. Rather than wrongful or negligent, an intervening act need only be foreseeable by Dr. Jordan, or if it was triggered by his conduct. In other words, it must have been foreseeable that Dr. Jordan’s actions would cause Ben Everson to exit the vehicle on the highway and perish in that manner for the chain of causation to remain unbroken. Additionally, the chain of causation would remain unbroken if Everson’s death were somehow triggered by Dr. Jordan’s conduct.

When an individual seeks compensation from a county for injuries or harm suffered arising from some county action or on a premises controlled by a county, the plaintiff must fulfill greater procedural requirements than are required in a civil action against another individual. One of these such requirements is presentment, or that “all claims against counties must be presented within 12 months after they accrue or become payable” or such claims will be barred by the statute. (OCGA § 36-11-1). The statute operates as a statute of limitations, restricting the time period in which a plaintiff will be entitled to seek compensation through a civil action against a county. Thus, in the context a physical injury, an injured plaintiff must provide the county with notice of any alleged claims within the proscribed one-year period.

In January 2012, Joe Leonard, Jr. allegedly sustained injuries while riding as a passenger aboard a Whitfield County Transit Services bus, and subsequently hired a lawyer to assist him in recovering from the county for the harms caused on the county-owned transit system. In June 2012, Mr. Leonard’s lawyer sent a letter to Robert Smalley, a private attorney and County Attorney for Whitfield County, in an attempt to fulfill the presentment requirements set forth in OCGA § 36-11-1, as Mr. Leonard asked in that letter that Mr. Smalley accept the letter as presentment of Mr. Leonard’s claims against the county. Then, in January 2014, Mr. Leonard filed a lawsuit against the County, and the County filed for Summary Judgment (a motion seeking dismissal of the claim) on the grounds that Mr. Leonard never properly presented the claim, and that his recovery was thus barred. The trial court granted the County’s motion, which was affirmed by the Court of Appeals, relying upon the precedent established in Coweta County v. Cooper, which holds that presentment may be made to the county attorney, but only if the county attorney is employed “in-house.”  Generally speaking, an in-house attorney would be an employee of the county.

In a win for plaintiffs, the Supreme Court overturned the Court of Appeals decision, based in part upon the purpose and object of the presentment statute. The Supreme Court asserted that the primary purpose of the statute was to provide the county officials with timely notice of all demands against the county. Numerous precedent established that presentment could be made to some officers of the county, as well as to the members of the governing authority itself, so the Court found it inconsistent with the purpose of the statute to prevent the county attorney from also being a party to whom presentment could be made. The Court of Appeals’ attempt to draw a distinction between in-house and outside attorneys was rejected by the Supreme Court, holding that the precedent relied upon by the Court of Appeals was inapplicable to a county attorney.

Following Governor Nathan Deal’s veto of a 2016 bill that, if signed, would have authorized prospective suits challenging the constitutionally of states or local laws, the Georgia Supreme Court affirmed a trial court ruling that in effect bars the sort of suits the 2016 bill would have authorized. Generally, state governments, departments, agencies and officers acting in their official capacity are protected from prospective legal action by the doctrine of sovereign immunity. However, when state officials act under an unconstitutional statute, they can be held individually liable, even for acts done in their official capacity. The rationale underlying this theory of personal liability for state officials is as follows: an act or statute that is unconstitutional confers no lawful authority upon an officer; so an official act performed pursuant to an unconstitutional statute is the equivalent of an official act performed in the absence of a statute altogether.  Thus, where a state official performs an official function, even where he may believe he is acting pursuant to a lawfully enacted statute, he may nonetheless be held liable for those acts if the statute turns out to be unconstitutional.

Interestingly, the opinion thoroughly examines the doctrine of sovereign immunity, but concludes with the assertion that a plaintiff need only bring suit against state officials in their individual capacity, rather than their official capacities. But, even where state officials have been found individually liable for monetary damages, “the legislature should, and doubtless will, reimburse the defendant . . .” Through this opinion, the Georgia Supreme Court re-affirms a somewhat bizarre legal fiction; while the state cannot be named as a party to a constitutional challenge, it will likely still be on the hook for the monetary damages imposed on state officials for actions taken in the course of the performance of their official duties.

The opinion denied injunctive relief to several physicians who challenged, under the State Constitution, an abortion statute requiring physicians who perform abortions to file a report of the procedure with the Department of Public Health, and a clause that imposes criminal penalties to violations of other statutory requirements. So, in the case of these physicians, they need only re-file against the state officials within the Department of Public Health in their individual capacity, and allege state constitutional violations. Then, if the court finds that the statute was in fact unconstitutional, the plaintiff-physicians would be awarded either prospective or retrospective relief, depending on the nature of the action. Importantly, the opinion does not wholly eliminate individual citizens’ ability to challenge state action on a constitutional basis; it simply modifies the avenue through which such challenges must travel.


What are the odds that six of seven drivers involved in a chain reaction car wreck in Clayton County, Ga., were driving under the influence? At a simple glance, 86 percent of the drivers. Unfortunately, I do not have access to data to crunch the numerical statistics of how often these variables exist at one time in the United States. However, the number has to be quite, quite low.

Granted, it was a holiday weekend and motorists had free time to travel, see loved ones and friends, to mix and mingle and perhaps…. imbibe a little alcohol. It was with this possible intention in mind that we come to know the facts of the pile-up that took place around 3 a.m. on July 3, 2013, on or around I-75 at C.W. Grant Parkway–north of I-285 close to the exit near the international concourse of Hartsfield-Jackson Atlanta International Airport. Of course, the facts are not complete without mentioning that this chain reaction pile up was allegedly caused by pedestrian that walked or ran onto the southbound lane of I-75 and was promptly struck by the first car.

According to the Atlanta Journal-Constitution article, the wayward pedestrian caused the first vehicle to slow or stop, which proximately resulted in the other six vehicles directly behind it to subsequently crash into the rear-end of each respective vehicle. The pedestrian was taken to the hospital in critical condition and charged with a violation of pedestrian entering the roadway. Six of the motorists were charged with driving under the influence and of these six motorists, two were also charged with following too closely. I think it can be fair to say that speed and decreased reaction time due to alcohol intake were factors in this incident.

Driving under the influence (DUI), driving while intoxicated (DWI), drunk(en) driving, drunk driving, operator under the influence, drinking and driving, impaired driving or driving to the extent less safe are crimes associated with operating and driving a motor vehicle with blood levels of alcohol that are in excess of a legal limit. A review of Georgia DUI laws can be found here as promulgated by the Georgia Governor’s Office of Highway Safety. The prominent and most widely used DUI law connected with the operation of a motor vehicles in Georgia is O.C.G.A. 40-6-391 that sets forth the grounds for driving under the influence of alcohol, drugs or other intoxicating substances. As a majority of the motorists were charged with a DUI violation, it is presumed that the motorists either submitted to an alco-sensor at the scene, failed field sobriety tests, refused testing completely and/or consented to a blood alcohol test.
Continue Reading


On July 1, 2012, Brittany Sailors exited a neighborhood along with two passengers and attempted to turn left onto Lakeview Road near Grayson, Georgia when an oncoming motorist collided into the driver’s side of Ms. Sailors’ vehicle. The force of the impact to Ms. Sailor’s vehicle was so great that the damage totaled her vehicle and sadly ended her life at the scene of the crash.

Ms. Sailors had been operating a 2000 Mitsubishi Diamante and the other motorist, Matujah Paasewe, was operating a 1998 Bonneville. In comparison, the Bonneville model is a larger and somewhat heavier vehicle than the Mitsubishi. From the video shown in the AJC article, it appears that the Bonneville was traveling at fairly high speed. In contrast, Ms. Sailors was probably traveling at a slower speed as she was entering an intersection.
Continue Reading

this pic.jpg
Yesterday morning, a 25-year-old man was killed near Dacula, Ga., when his vehicle traveled off the roadway and hit a tree. The Atlanta Journal Constitution article indicates that the motorist, Bernard F. Jacques, apparently lost control of his 1997 Honda Civic while driving on New Hope Road near Alcovy River Drive and Palm Creek. Gwinnett County Police Department Cpl. Edwin Ritter indicated that the cause of the crash was unknown and that neither drugs nor alcohol were contributing factors to the crash. The impact from the crash must have been significant as Mr. Jacques died at the scene. It was noted in the investigation that Mr. Jacques was not wearing his seatbelt at the time of the wreck.

Our thoughts go out to Mr. Jacques’ family.
Continue Reading


On October 8, 2011, a Gwinnett County high school basketball player and three members of his family died in an SUV rollover in Florida. Darrian George was a 17-year-old boy who played basketball for the Norcross High School basketball team. Eight people, including Darrian, were traveling down to Miami for the weekend. Only one of the eight persons was wearing a seatbelt.

According to the Atlanta Journal-Constitution article, Darrian was operating a 2002 Chevrolet Tahoe just before 3 a.m. and was traveling on I-75 South near Ocala, Florida, when he allegedly lost control of the vehicle causing the truck to travel across three southbound lanes of traffic and overturning several times until it came to rest on its hood in the northbound lane. Darrian took evasive action including braking and steering to the right in an unsuccessful attempt to gain control of the truck. However, the truck hit the median guardrail and overturned. Six of the eight persons in the SUV were thrown from inside the vehicle. Three people died including two children who were siblings and Darrian’s mother, Tiffany Bradshaw.
Continue Reading

Thumbnail image for 760290_car_wreck.jpg

According to an Atlanta Journal Constitution article, two adults were injured early this morning when a wrong-way driver crashed into a car head-on on I-85 in DeKalb County, Georgia. Numerous calls were placed to DeKalb County police around 2 a.m. from eyewitnesses. The collision occurred at Clairmont Road in DeKalb County.

The wrong-way driver has been identified as John Mims, a 34 year old from Cedar Rapids, Iowa. The victim in the other vehicle has been identified as Erin McPherson, a 19 year old from Alpharetta, Georgia. Ms. McPherson was operating a Ford Focus, a rather small vehicle.
Continue Reading

Thumbnail image for Thumbnail image for 601301_mini_cooper.jpg
On September 22, 2011, John Harof and Alexander Delor, two freshmen from the Georgia College and State University were killed in a single car accident in Milledgeville, Baldwin County, Georgia. The two men had graduated together from the Collins Hill High School in Suwanee, Georgia last year. The Atlanta Journal Constitution article references that Christian Smith was operating a MINI Cooper when he allegedly lost control of the vehicle.
Continue Reading

Contact Information