An onrushing car killed a young man as he tried to change a flat tire on the shoulder of the I-85/I-285 ramp.
David Wesley was on his way to work at an area Starbuck’s when he pulled off the road to deal with the emergency. One of his first acts was to call Sarina Ivory and tell her the situation. “Be safe and text me when you get there,” she told him. A few hours later, his boss called to say that Mr. Wesley did not show up for work. He sent Ms. Ivory a link to a story about a fatal car crash, and as soon as she saw Mr. Wesley’s familiar Subaru Outback, she knew what had happened.
DeKalb police state that a 21-year-old motorist, whose name was not released, hit Mr. Wesley as he was changing a tire on the driver’s side. No charges are pending at this time, although authorities are still investigating the incident. The motorist remained at the scene and cooperated with police.
Ms. Ivory and Mr. Wesley met while in high school and talked about pursuing their mutual love of music together at Berklee College of Music in Boston. “He was my best friend. Truly my best friend. It feels like I’m starting my life over, almost,” she lamented.
Insurance Company Defenses in Negligence Cases
In most instances, the tortfeasor (negligent driver) is represented in court by an auto insurance company. Regardless of what television commercials may imply, the insurance company is not “on your side” if you are a car crash victim. In fact, these companies have cadres of lawyers whose primary responsibility is to see that the company pays as little as possible in compensation to the victim.
The contributory negligence law was discussed in a previous post, and insurance companies often invoke this principle to shift blame to the victim. To briefly recap, Georgia is a modified comparative fault state with a 50 percent threshold, so a tortfeasor must be at least 50 percent responsible for a wreck if the victim is to recover any damages.
Sudden emergency is another common defense. Insurance companies like it even more than contributory negligence, because sudden emergency excuses otherwise negligent conduct if the tortfeasor:
- Was faced with a “sudden emergency” in a legal sense, and
- Reacted reasonably to the sudden emergency.
Not all unexpected situations are sudden emergencies. Potholes, stalled cars, vehicles that stop short, and pedestrians who cross against the light are all rather common situations and thus do not qualify. A “sudden emergency” is a hood fly-up, tire blowout, or similar occurrence.
For the defense to apply, the tortfeasor must also react reasonably to the event. If a driver’s hood flies up, it is reasonable to immediately pull over to the side of the road; it is not reasonable to continue driving with almost no visibility.
Most courts would agree that a man changing a tire, while certainly unexpected, is not a “sudden emergency.”
The above story also raises the possibility of last clear chance. This rule also flips liability, if it applies. Sometimes, even though they did not create the situations, drivers are able to avoid crashes by changing lanes, slowing down, speeding up, or whatever. People who are in the line of traffic when they see cars coming can sometimes step out of the way or wave their arms to alert the driver. Bear in mind that there is a difference between the last clear chance and the last possible chance.
Georgia is a bit unusual in that there is a two-tier litigation system in these instances. According to the state’s wrongful death statute, both the estate and the survivor(s) may sue in court.
A traditional wrongful death claim compensates the survivor(s) for the lost value of the decedent’s life. To determine the amount of compensation, the jury can look to economic factors, basically including lost salary and lost inheritance. To fairly predict a person’s future career arc and full earning potential, attorneys often partner with financial professionals. The jury may also consider noneconomic factors. This inquiry focuses on the deceased person and not on the survivor(s). So, the jury may hear evidence about what the decedent enjoyed doing, overall health, caregiving responsibilities, and so on. After listening to the evidence, the jury ascribes a figure that it feels is fair compensation.
The estate’s claim has economic and noneconomic components as well, at least in many cases. Economic damages are items directly related to the decedent’s final injury or illness, such as medical bills and burial expenses. If the decedent endured any pain and suffering, these losses are compensable as well.
In addition to car crashes, wrongful death claims can be based on workplace accidents, medical mistakes, intentional torts (like assaults), and any other form of negligence.
Contact an Assertive Attorney
For prompt assistance with a car crash or other negligence claim, contact an experienced auto accident injury lawyer in Fayetteville at the Wade Law Offices. You have a limited amount of time to act.