Authorities recently issued an arrest warrant for 30-year-old Antwan Hal Senior after an April 9 vehicle collision that killed his wife and her unborn child.
At the time of the crash, Senior was southbound on Austell Road near the Kirk Drive intersection in Marietta. He drifted off the roadway, struck a curb, and over-corrected, causing the 2005 Chevrolet Avalanche to spin like a top and careen across traffic. The force of the crash ejected 29-year-old Jessica Ashley Senior, of Marietta, from the Avalanche. First responders rushed her to a nearby hospital with serious injuries, but she did not survive.
Her unborn child died a few days after the wreck.
I Sue Dead People
Vehicle collisions kill tens of thousands of Americans each year. Generally, but not always, these fatalities are innocent victims. So, if the tortfeasor (negligent driver) did not survive the crash, victims still have legal options. After all, these individuals still need compensation for their injuries and justice for the accident.
A legal claim against a dead person is very much like a claim against a living person. The main differences are procedural. If the tortfeasor did not survive, the auto insurance company normally has no duty to defend it. So, your Marietta personal injury attorney usually files a claim in probate court.
Untimely deaths almost always involve various claims against the estate. Hospitals usually want payment for medical bills, accident victims deserve compensation, and so on. The decedent’s executor or personal representative has a duty to evaluate and pay all these claims.
If your attorney and the estate administrator cannot agree on a settlement amount, the matter usually goes to mediation. About 75 percent of mediated cases settle out of court. Mediation expedites the case, so victims get their settlements faster. Mediation also gives the litigants more control over the outcome.
First Party Liability in Georgia Alcohol-Related Crashes
Alcohol is a factor in about a third of the fatal vehicle collisions in Georgia. Victims may use direct or circumstantial evidence to establish liability for damages.
Typically, emergency responders arrest impaired tortfeasors for DUI. Sometimes, that arrest takes place at or near the scene. Other times, as in the above story, the investigation may take several weeks. In DUI arrest cases, the negligence per se doctrine usually applies. Under this rule, tortfeasors are automatically liable for damages if:
- They violate a safety law, like the DUI law, and
- That violation substantially caused the victim/plaintiff’s injuries.
This doctrine also applies in a number of other situations. Generally, if the tortfeasor, and only the tortfeasor, received a citation, the victim may be entitled to damages as a matter of law. Also, there is a difference between a “direct” cause and a “substantial” cause. In the above story, loss of control directly caused the crash. But the driver would probably have not lost control had he been sober. So, alcohol substantially caused the crash.
In other instances, the tortfeasor had been drinking, but was not legally intoxicated. Alcohol-related liability may still be in the cards. In these cases, victim/plaintiffs may use circumstantial evidence to establish impairment, such as:
- Erratic driving,
- Bloodshot eyes, and
- Odor of alcohol.
It’s important to establish an alcohol connection if possible. If the tortfeasor had been drinking, Cobb County jurors are usually more inclined to find negligence and award larger damages.
Third Party Liability
The alcohol connection is also important for legal purposes. Georgia has one of the lowest auto insurance minimums in the country. So, many tortfeasors do not have enough insurance coverage to pay fair compensation in wrongful death and other catastrophic injury claims. If the tortfeasor had been drinking, Georgia’s dram shop law may apply.
Many states, such as California, have limited or eliminated their dram shop laws in recent years. But in Georgia, restaurants, convenience stores, and other commercial alcohol providers are vicariously liable for alcohol-related crash damages if their impaired patrons cause car crashes. The law applies if the patron was:
- Underage: If the customer was under 21, it’s very difficult for a bar or restaurant to escape responsibility. The “S/he looked older” defense never works, and the “s/he produced a fake ID” defense normally does not work either, especially if the ID was a fake Georgia drivers’ license.
- Noticeably Intoxicated: Victim/plaintiffs may use the aforementioned circumstantial evidence to establish noticeable intoxication at the time of sale. The victim/plaintiff must also show that the seller knew the person would soon be driving.
Georgia is a modified joint and several liability state. So, if there are multiple responsible parties, the judge normally apportions damages among them based on their percentage of fault.
Some Defenses in Passenger Injury Cases
If the victim was a passenger in the tortfeasor’s vehicle, the insurance company often tried to hide behind the assumption of the risk defense. This legal doctrine, which is common in dog bite and other premises liability cases, excuses negligent conduct if the victim/plaintiff:
- Voluntarily assumed
- A known risk.
Getting into another person’s car is normally a voluntary act. However, if the victim had no other ride home, the act may not have been entirely voluntary. Additionally, a car crash, even if the other person had been drinking, is a theoretical risk. It’s only a known risk if the tortfeasor narrowly avoided an accident in the moments before the crash at issue.
Additionally, when the victim is thrown from the vehicle, there is a pretty good chance that the victim was not wearing a seat belt. Georgia is one of only a handful of states that recognizes the seat belt defense.
In Cobb County, insurance company lawyers can argue that victims who were not properly restrained are responsible for their own injuries. But to invoke the seat belt defense, the insurance company must do more than read safety statistics to the jury. Attorneys must call expert witnesses who testify about the nature and extent of the victim’s injuries. The victim’s attorney may challenge this evidence and also introduce rebuttal proof.
Count on a Tenacious Lawyer
Impaired motorists often cause serious injuries. For a free consultation with an experienced personal injury attorney in Marietta, contact The Phillips Law Firm, LLC. We do not charge upfront legal fees in negligence cases.