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Posts Tagged ‘Car accident’

Something Rotten: Spoliation Claims Against a Plaintiff

Posted on: June 15th, 2018

By: Sean Ryan

The Georgia Supreme Court recently clarified that same duty and standard applies to a plaintiff as to a defendant in assessing potential spoliation claims. In Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336 (2018), the Georgia Supreme Court stressed that the duty to preserve relevant evidence is “defined the same for plaintiffs and defendants” and “arises when the alleged spoliator actually or reasonably should have anticipated litigation.” While a plaintiff’s duty to preserve relevant evidence may more often revolve around the actual knowledge of litigation because a plaintiff largely controls when to bring a lawsuit, a plaintiff still “must act reasonably in anticipating whether litigation arising from an injury will occur.” In addressing reasonableness, a court should consider a non-exhaustive list of factors such as the type and extent of the injury, whether fault for the injury is clear, the level of sophistication of the party and familiarity with the likelihood of litigation is similar situations, and whether the party has hired an attorney, expert, or investigator.

In Koch, plaintiff’s husband died following a car accident where a tire tread, manufactured by Cooper Tire, separated from the left rear tire of the husband’s vehicle, allegedly causing the vehicle to strike a guardrail and overturn. The plaintiff allowed the vehicle and three tires without tread separation to be destroyed, saving only the allegedly defective tire. In the ensuing litigation, Cooper Tire moved to dismiss the lawsuit or impose sanctions against the plaintiff for spoliation of evidence.

Using the standard outlined above, the Supreme Court held the trial court did not err in finding the plaintiff did not actually contemplate litigation at the time the car was destroyed and should not reasonably have contemplated litigation. The Court cited the plaintiff’s lack of previous litigation experience, the belief by plaintiff and her husband that he would recover from his injuries, the plaintiff’s lack of investigation into the accident, and the plaintiff’s decision to retain counsel after the vehicle was destroyed. The Supreme Court also credited the fact that plaintiff’s counsel took steps to preserve evidence, albeit fruitless, once hired several weeks later.

What does this mean for defendants in tort cases moving forward? While the Court in Koch did not find the plaintiff’s conduct sanctionable, the case clarifies that a plaintiff must conform to the same standard as a defendant in preserving evidence relevant to their case and that this duty arises independent of the defendant’s duty. The case also sends a clear signal that a plaintiff will be expected to preserve evidence following consultation with an attorney or expert. Such consultation is a fair indicator that plaintiff anticipated or reasonably should have anticipated litigation. Armed with this case law, defendants are in a strong position to demand preservation of relevant evidence, including data from vehicles, cell phone data, and social media data.

If you have any questions or need more information, please contact Sean Ryan at [email protected].

Multi-Million Dollar California Verdict Affirmed Despite Questionable Causation

Posted on: March 6th, 2018

By: Theodore C. Peters

Proof of causation is a frequently debated topic in tort cases where the battle between “possible” and “probable” is bitterly fought.  Tort victims are left empty-handed unless they can sufficiently demonstrate the causal connection between the defendant’s conduct and the harm that befell them.  Speculation or conjecture is insufficient; a plaintiff must prove more.  But how much more, and where is the line drawn when there is no direct evidence supporting a causal connection and where it is equally plausible that the defendant’s act or omission did not cause the harm in question?  The California court of appeal, In Dunlap v. Folsom Lake Ford, recently provided some guidance.

In Dunlap, the plaintiff suffered personal injuries while driving a truck that flipped after its steering allegedly locked up.  The defendant car dealership admitted that a previous owner complained of similar steering problems, and there was evidence that the dealership had diagnosed a problem with worn ball joints, but denied that this was  the cause of the accident.  Rather, the defendant asserted that the accident occurred after the truck and the van it was towing jackknifed when the van suffered a blow out.  Prior to the litigation, the insurers took action to destroy both the truck and the van for salvage, so the parties’ experts were unable to physically inspect the vehicles and instead were limited to photographs which were admitted into evidence.  The photographs were inconclusive and the parties’ experts thus offered competing opinions of their respective interpretation of this evidence.

The defense accident reconstruction expert opined that, as a consequence of the jackknifing vehicles the truck was forcefully pushed, resulting in the equivalent of a PIT (police-intervention technique) maneuver which pushed the truck into a counterclockwise spin causing the accident.  In contrast, the plaintiff’s expert testified that “it was ‘more likely true than not’ that the worn-out ball joints caused the accident, and it was ‘not at all’ a close call.  In his opinion, if the ball joints had been replaced, ‘we would not be here today.’”  The court also noted that “[t]here was evidence that a particular defect (worn ball joints) was present in the truck, and that [the dealer] was aware the ball joints could cause steering lock and needed to be replaced but failed to replace them or verbally advise the owner to do so.”

The jury found in favor of the plaintiff and awarded over $7.4M in damages.  On appeal, the dealership claimed that, because there was no physical evidence that could confirm plaintiff’s expert’s opinion, plaintiff’s evidence as to causation was speculative and plaintiff’s expert should not have been permitted to testify that the ball joints were worn sufficiently to prevent steering.  In finding that the record supported a finding of causation based on non-speculative evidence, the court stated: “Expert testimony on causation can enable a plaintiff’s case to go to the jury only if it establishes a reasonably probable causal connection between the act and the injury… A possible cause only becomes “probable” when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.  This is the outer limit of inference upon which an issue may be submitted to the jury.”  The appellate court concluded that substantial evidence supported the jury’s finding of causation, and affirmed the judgment.

The Dunlap opinion is consistent with a growing body of case law that favors letting juries decide issues of questionable causation where the proof satisfies a “more likely than not” standard.  While mere speculation and conjecture are certainly not enough, circumstantial evidence and reasonable inferences that can be drawn from such evidence are sufficient proof of causation to support a jury verdict.

If you have any questions or would like more information, please contact Ted Peters at [email protected].

Need a Lyft? Georgia Court of Appeals Decision Raises Coverage Questions for Ridesharing Services and Their Drivers

Posted on: February 19th, 2018

By: Connor M. Bateman

Most personal automobile insurance policies exclude coverage for damages that result from the ownership or operation of a vehicle used as a “public or livery conveyance.” Although typically undefined in the policy, this phrase has generally been understood to encompass vehicles that are “used indiscriminately in conveying the public, rather than being limited to certain persons and particular occasions or governed by special terms.”

The Georgia Court of Appeals recently weighed in on the scope of this exclusion in Haulers Insurance Co. v. Davenport.  In Davenport, the plaintiff sustained injuries in a car accident, sued the other driver, and served his uninsured motorist carrier (Haulers) with a copy of the complaint. At the time of the collision, the plaintiff was giving a ride to a female friend who would occasionally pay the plaintiff to drive her into town. There was no evidence, however, that the plaintiff ever offered paid rides to the general public. The Court of Appeals rejected Haulers’ argument that the policy’s public or livery exclusion barred coverage, reasoning that the exclusion was inapplicable absent evidence that the plaintiff “used his vehicle indiscriminately to transport members of the general public for hire, or regularly rented out his vehicle for hire.” The court recognized, however, that the exclusion would apply in cases where the driver “presents his services indiscriminately to the general public for hire.”

In light of the rising popularity of Transportation Network Companies (“TNCs”) such as Lyft and Uber, the coverage issues presented by this oft-forgotten exclusion should be carefully reexamined. TNC drivers, who use their personal vehicles to transport passengers, will often have no coverage under their personal policies due to the public or livery conveyance exclusion. This exclusion clearly applies to drivers actively transporting passengers and may even be triggered when the driver is simply using the ridesharing application to “troll” for potential customers. While some of these gaps have been addressed by commercial insurance policies provided by the TNCs, drivers may still be left without coverage in certain situations. For instance, although TNCs typically provide liability coverage for a driver who has the app turned on and is waiting to accept a ride, the TNC policies will not likely cover damages caused by someone or something else during that initial period. To account for this, the TNCs suggest that such damages may be covered by the at-fault driver’s policy or the TNC driver’s personal policy. However, the public or livery conveyance exclusion often extends to uninsured motorist, collision, and comprehensive coverage. And because courts have held that the public or livery conveyance exclusion applies when drivers “present their services” to the general public, the exclusion is arguably triggered even when the TNC driver is merely waiting for the application to connect to a customer.

Although the reach of this exclusion has yet to be fully examined in the context of ride-sharing services, these and other coverage issues will likely continue to arise. For additional information, please contact Connor Bateman at [email protected].

Driverless Motor Vehicle Lawsuit – The First of its Kind

Posted on: February 7th, 2018

By: Courtney K. Mazzio

General Motors is the first manufacturer to be hit with a driverless motor vehicle lawsuit. On December 7, motorcycle driver, Oscar Nilsson, alleges he was attempting to pass a self-automated Chevy Bolt on the right. The Bolt had indicated it was moving into the left hand lane, and according to Nilsson, when the coast was clear, he proceeded in his attempt to pass the Bolt. It was at that point the Bolt swerved back into Nilsson’s lane, knocking Nilsson over. Nilsson did walk to the side of the road, but was complaining of neck and shoulder injuries, which he allegedly treated for extensively and which required him to take disability leave from his job.

However, GM paints quite a different picture, detailing that the self-driving car attempted to merge into the left lane. However, the minivan ahead of it slowed down, and so the self-driving car abandoned the merge attempt. GM maintains it was as the self-driving car was attempting to center itself in the middle lane once again that Nilsson attempted to pass between the self-driving vehicle and a vehicle in the right lane. As he was attempting to make that pass, he hit the side of the self-driving vehicle. Notably, GM reported the self-driving car was keeping with traffic at its speed of 12 miles per hour while the motorcycle was traveling 17 miles per hour, which if proven, could be useful for them in mitigating liability They have also represented that the police report also maintains the company is at fault.

In the analysis swirling around driverless car technology and anticipated lawsuits sure to crop up, there is anticipation that car manufacturers will take the tack of either resolving swiftly when liability is poor or fighting tooth and nail when liability is questionable. The technology of the driverless vehicle no doubt affords car manufacturers the ability to be a bit more dichotomous. We will have to wait and see how this one pans out.

If you have any questions or would like more information, please contact Courtney Mazzio at [email protected].

Landowner Scope of Duty

Posted on: January 11th, 2018

By: Owen T. Rooney

The California Supreme Court recently issued an opinion that limits the scope of duty and liability in premises liability cases. In  Vasilenko v. Grace Community Church, plaintiff was struck by a car as he crossed a public street, at night in the rain, between the main premises of a church and the church’s overflow parking area. Plaintiff alleged that the church owed him a duty of care to assist him in safely crossing the public street. The court ruled “that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.”

The court was motivated in part by the lack of control the church has over the public roadway, and in part by “the possibility that finding a duty in this case will cause some or perhaps many landowners to stop providing parking…. By providing parking, a landowner may decrease its invitees’ risk of injury from other dangers of the road as compared to invitees finding their own parking on the streets.”

This case should limit liability in cases where plaintiff tries to stretch the landowner’s “property lines” to conditions off the property.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].