The importance of large tractor trailer trucks to the economy is no surprise.  Tractor trailer trucks are indeed, vital to commerce.  However, with the size, weight and distance traveled by these trucks, there is a significant risk of serious injury or death when an accident occurs.

In fact, there was a 20% increase in the number of accidents over the past 20 years.  As reported by the Federal Motor carrier Safety Administration (FMCSA), 4,897 deaths occurred in crashes involving large trucks.  There were approximately another 130,000 people who were injured.

But, unlike your typical passenger vehicle accident, investigating and resolving injuries and deaths resulting from tractor trailer collisions is a totally separate matter.  For information on passenger vehicle accidents not involving a tractor trailer, see my articles on Auto Accident Whiplash Injuries, Spinal Cord Injury Accidents And Resources, and Compensable Damages In Injury Cases.

Consumers, under the law, are able to sue for damages for defective products as a result of negligence or strict liability.  Recovery can be based on defects in the manufacturing, inadequate warnings, fraud, defects in the design, and implied warranty (where the product is not fit for the ordinary purpose for which it was sold).

Toxic Tort litigation involving defective drugs is governed by both the FDA under the Federal Food, Drug, and Cosmetic Act of 1938 (FDCA), 21 U.S.C. §§ 301-1012, 42 U.S.C. §§ 262, 264, 266, 282, 284, the Public Health Service Act, as well as State law.

FDA approval of “new drugs” includes virtually all prescription drugs, as well as, some drugs which are sold over the counter.  And testing of the new drug may take up to 12 years or longer before FDA approval is obtained.

ambulance6-resized-600On a daily basis, people are injured, sometimes due to their own fault or often due to the negligence of another.  But, just because one believes that the other party is at fault, the burden remains on the Plaintiff to establish certain elements in order to prevail in a personal injury action.

These elements include: duty, breach of duty, causation and damages.  These same elements are applied to the auto accident/trucking accident case, slip and fall, nursing home negligence, medical malpractice, wrongful death, products liability, defective drugs, etc.

First, the Plaintiff must establish by law that the Defendant had a “duty” to crash5prevent the harm suffered by the Plaintiff.  If, for example, the injury is related to an auto accident, the “Rules of the Road” may establish that duty, for example, failure to yield while turning left, following too closely, etc.

crash5Motor vehicle consumers, drivers and passengers have an expectation that our vehicles are safe to ride in.  We often hear about roll-over tests and safety ratings.  Vehicle safety requirements took a step further by requiring that vehicles be equipped with seat belts for all vehicle occupants.  When it was determined that seat belts, alone, could not prevent death or serious injuries to vehicle occupants, the installation of airbags became a vehicle safety requirement.

However, at least six deaths have been determined to be linked to the defective airbags.  In all, at least 17 million vehicles have been recalled in the United States, in addition to over 36 million worldwide due to defective airbags.

The National Highway Transportation Safety Administration (NHTSA) has determined that inflators in certain airbags were made with a propellant which may degrade over time and lead to ruptures.  The Takata air bags could possibly explode resulting in shards of metal being propelled throughout the vehicle passenger compartment.

"class action lawsuit", injury, "assumption of risk"By now, everyone should be familiar with the lawsuits filed by former NFL players against the NFL for concussions.  Former NFL players sued alleging that the NFL failed to warn them of the dangers associated with concussions.

Well, now the WWE professional wrestlers have accused the WWE of ignoring concussions which have led to serious brain issues.

In recent actions, former professional wrestlers accused the WWE of “selling violence” all the while ignoring concussions.  The wrestlers alleged that the concussions resulted in serious brain injuries.

Talcum powder has been a very popular product on the market for years.  People use talcum powder to prevent moisture, remain fresh and even to alleviate itching.  And one would not ordinarily have any reason to believe that such a convenient product could possibly cause harm when used as directed.  However, each year thousands of cases of ovarian cancer are diagnosed and suspected of being linked to the regular use of talcum powder.

So what exactly is talc and where does talc originate?  Talc contains magnesium trisilicate.  This substance is mined from the ground and contains elements including magnesium, oxygen and silicon.  And to enable talc to be used as a product on the market, the talc is first ground into a powder which is mainly used to absorb moisture.

But what are the possible dangers when talc is used as marketed?  Talc becomes a concern when it is used by women in the genital area.  In the event that the talc powder enters through the vagina and travels through the uterus and fallopian tubes to the ovaries, there could be a significant risk of ovarian cancer.

Father and Son-resized-600In years gone by, in a custody action, the court would routinely grant physical custody of the minor child to the mother.  Don’t you remember the days when everyone believed the child was better off with the mother?  However, that is no longer the case.

In todays world, both male and female judges are frequently granting physical custody to the Father.  So, let’s take a look at a few real life examples of recent cases in the Superior Courts.

In a recent contested divorce action, the mother had taken the children out of state to visit relatives.  She then decided that she no longer wanted to remain in the marriage.  Accordingly, when she notified the husband that she wanted out, he filed for divorce.  His Complaint for Divorce included a “Standing Order” which prohibited the children from being removed from the jurisdiction of the Court.

Insurance policy exclusions and collection of damages from insurance policies.An injured woman settled for $400,000.00 after  she  was hit by a golf cart driven by  an intoxicted driver.  The plaintiff in this case was walking after leaving  an  outdoor  concert in  Peachtree  City.  She was then struck by  a golf  cart  driven  by a man  who was later arrested for  DUI.     The Defendant in  the case was  leaving the outdoor concert and had parked his golf cart  near the golf cart path.    As the defendant pulled  onto  the path, he  struck the plaintiff  and kept  going until a passersby stopped  him and  removed the key from the golf cart.   It was reported that the Defendant was not aware that he had hit the injured lady.  The Plaintiff’s injuries included two broken bones in her leg, and her medical bills totaled $75,000.00.

The Defendant’s insurance company fought to exclude liability coverage under the Defendant’s homeowner’s insurance policy.  The company argued that the golf cart was excluded from the Defendant’s liability coverage.  The insurance company then filed a complaint for declaratory judgment arguing “policy exclusion”.

The court; however, held that the  wording in  the insurance policy was  “unclear”.  The policy attempted to include an exclusion for golf carts based on the number of people the cart was designed to carry.  Further the court held that the language in the insurance policy was ambiguous  and coverage exclusions must be clearly defined.

Assumption of Risk

“assumption of risk”

A $15 Million Dollar Verdict was deemed uncollectable under “Fireman’s Rule”.   A Fulton County police officer was providing security, part-time, for a local church.  While on his way home, he came upon a single car accident.   The officer recognized the crashed vehicle as the type of vehicle typically driven by undercover officers and detectives.

When the officer stopped to render  aid,  he was shot by the driver of the crashed vehicle.    The driver of the crashed vehicle turned out to be police  officer from a different police department.

wrongful death

In pursuing a “wrongful death” action based on negligence, the Plaintiff has the burden of proving by a preponderance of the evidence that (1) there was a duty to protect the victim from the harm suffered, (2) that the negligent party breached that duty, (3) that the negligent act of the defendant was the proximate cause of the harm suffered (i.e., causation), and (4), that the victim died as a result.  (In other injury cases, the Plaintiff must show duty, breach of duty, causation and damages.)

To prevail on the element of “causation“, the defendant must have been found to be liable where it appears that his negligence was the sole cause of the death complained of, or that his negligence put in operation other causal forces which were the direct, natural, and probable consequences of the defendant’s original act, or the intervening agency could reasonably have been forseen by the defendant as original wrongdoer.  Stern v. Wyatt, 140 Ga. App. 704, 231 S.E.2d 519 (1976).

O.C.G.A. § 51-4-1(2) defines “homicide” as including “all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as the result of negligence.”

Other negligence is the breach of duty owed to the deceased at the time the homicide occurs and may thus be slight, ordinary or gross negligence depending on the facts of the case which determine the duty owed to the deceased.  Caskey v. Underwood, 89 Ga. App. 418 (1) , 79 S.E.2d 558 (1953).

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