Articles Posted in Car Collisions

Several weeks ago, a Georgia mother of two was convicted of vehicular homicide in the second degree in Cobb County, Georgia. She was not driving or operating a vehicle. This conviction left a good many folks scratching their heads. How could a Georgia citizen be convicted of the death of another person by vehicle when such citizen was not even operating a vehicle or car at the time of death? Let me explain.

On the evening of April 12, 2011, Raquel Nelson, a 29 year old mother of three, was crossing Austell Road near Marietta, Georgia with her children to get to the Somerset Apartments. They made it to the median in the middle of the road and then proceeded westward over the remaining lanes of traffic.

On or around the same time, Jerry L. Guy, a 47 year old man from Marietta, was operating his van and collided into Raquel, her daughter and her son A.J. As a result of the pedestrian collision, A.J. Nelson died. Mr. Guy fled the scene of the collision. He was later apprehended and charged with vehicular homicide in the first degree, among other charges. Guy’s attorney admitted that Guy had drunk alcohol and presumably ingested pain medication earlier on the day of the collision. Guy was also partially blind in one eye. He entered into a plea bargain, and was sentenced to six months in jail and received a five year probation. Meanwhile, the mother, who was not driving a vehicle, was charged with vehicular homicide in the second degree for the death of her son. You can’t make this stuff up.

On July 12, 2011, three months from the date of the incident, Raquel Nelson was convicted in Cobb County of vehicular homicide in the second degree, crossing roadway elsewhere than at a crosswalk and reckless conduct. Her possible sentence included 36 months of prison time. Without going into too much detail, Judge Katherine Tanksley of the Cobb County State Court, offered Ms. Nelson a new trial.
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On October 4, 2010, Carroll County school bus driver Kenneth Ross Herringdine, a driver trainee, turned the ignition on his school bus and started the afternoon bus route in Carroll County, Georgia with the students of Temple High School of Temple, Georgia. Alongside him for the ride that day was a bus driver trainer, Sheri Lyn Davis.

In fact, Ms. Davis also rode in the bus the day before as she charted Mr. Herringdine’s performance. The day before the wreck, Ms. Davis had noted Herringdine’s subpar performance behind the wheel and the unwillingness of the students to board his bus for the ride home. When questioned by the police after the wreck, Ms. Davis stated that Herringdine “looks straight ahead and is slack with his mirror usage” and “does not pay attention.” Despite these observations and the fact that Herringdine had run over and killed a dog earlier on the day of the wreck while under her watch, Ms. Davis allowed Herringdine to tempt fate and roll the dice. Even worse, at the time of the fatal wreck, Herringdine had not yet received all of his certifications to operate a school bus on a full time basis.

Against this backdrop, Herringdine allegedly drifted off the road on Highway 113 across a private driveway and over a culvert where it rested into a ditch. Toxicology tests showed that Herringdine had previously ingested cough medicine which contained brompheniramine, a drug that can cause dizziness, fatigue and sleepiness. Students on the bus complained that the driver appeared drowsy. Over twelve students were injured and one student, 17 year old James Rashawn “Ray Ray” Walker, was ejected through a bus window and died when the bus rolled over him.

On July 12, 2011, Herringdine pled guilty to failure to maintain lane and was sentenced to a year’s probation and a $600 fine in a plea negotiation with the Carroll County Solicitor. Under O.C.G.A. 40-6-48(1), a motorist is required to drive within a single lane and shall not move from such lane until such time as the motorist determines that the move can be made safely. A violation of this law is considered a misdemeanor. Additionally, there are other Georgia laws of the road that bus drivers must follow. Further, a school bus is considered a “common carrier” under Georgia law which will afford further protection and a higher duty of care to the students on the bus.

Despite the resolution of the criminal charges against him, Herringdine now has to resolve the related civil claims. And Herringdine may not be alone inasmuch as the Carroll County School System has acknowledged that he lacked state certifications required to operate a bus with students on board and that evidence reflected the school system was previously aware of his deficiencies.

If Herringdine was an employee of the Carroll County school system or acted as an agent on its behalf, the school system may also be liable for the damages and the death caused by his actions and/or omissions. Further, under Georgia law, if the school system purchased a policy of insurance on the school bus, then the insurance policy should afford insurance coverage to Herringdine.

I would assume that Walker’s parents will file a suit for damages in a civil court for the death of their son. If their son had a will at the time of the death, the will should specify the executor of the estate who would be authorized to file such suit. If their son died without a will (which is most probable at his young age), then his immediate family and/or next of kin could petition the probate court to appoint an individual to act as the administrator of the estate.
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In Georgia, as it the case with most states, a bicycle is legally considered “a vehicle.” This classification by Georgia means that general vehicle traffic law applies to the operation of a bicycle. Thus, any Georgia statute that applies to the term “a vehicle” (as opposed to “motor vehicle”) applies to bicycles as well.

Despite the applicability of numerous general vehicle laws to bicycling, many motor vehicle motorists are still unaware of the laws. According to the Georgia Department of Community Health, over 795 bicyclists were involved in road crashes in 2007. Of the 795 crashes, 11 were fatal. Some of these crashes occurred by motor vehicles passing from behind the bicyclist.

On May 17, 2011, Governor Nathan Deal signed HB 101 (now known as O.C.G.A. 40-6-56) into law. In pertinent part, O.C.G.A. 40-6-56(b) mandates that “…the operator of a motor vehicle, when overtaking and passing a bicycle that is proceeding in the same direction on the roadway, shall leave a safe distance between such vehicle and the bicycle and shall maintain such clearance until safely past the overtaken bicycle.” Subparagraph (a) of the same statute defines a safe distance as “not less than three feet.” This statute became effective July 1, 2011. Previously, the law did not define a safe distance and left it to the courts and/or juries.

On July 4, 2011, Bryan Morgan, a 52-year-old Marietta man, was struck from behind by a Toyota Camry, while traveling southbound on Roswell Road near Hightower Trail in Sandy Springs, Georgia. As a result of the injuries, Mr. Morgan died the same day. According to the article in the Atlanta Journal Constitution, an investigation is pending and the motorist has not yet been charged by the police.

I think it is pretty clear that if Mr. Morgan was struck from behind (as the evidence suggests), then the motorist was not maintaining a distance of three feet or less. Apparently, Mr. Morgan’s son was also riding a bicycle with his father at the same time. The testimony of the son may be crucial in determining whether or not the motorist maintained a safe distance under the new law that was enacted just several days before this tragedy. I would imagine that the Morgan family might also hire an accident reconstruction expert to review the property damage to the auto and bicycle as well as any witness statements, skid marks or other roadway evidence to aid in this determination.

Georgia Bikes, a nonprofit statewide organization located in Athens-Clarke County, works to improve bicycling conditions and promote safe bicycling throughout the state and was instrumental in lobbying and educating the legislature which was critical in getting the new bike law passed. The new statute was the first reform to Georgia’s bike safety laws since the 1970s. However, the job of Georgia Bikes is not yet complete as the law is only as widely effective as it is widely known by motorists. I am honored to help spread the word.
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As arguably the first personal injury attorney to achieve a punitive damage award from a jury in Georgia for cell phone use while driving, I was interviewed for a front page article in the Atlanta Journal Constitution over six years ago regarding my thoughts pertaining to a cell phone ban ordinance. At the time of that article, I opined that the ordinance was a good idea in theory. However, in practice, the ordinance was almost impossible to enforce.

Fast forward to the present. The State of Georgia enacted a law that went into effect on July 1, 2010 that was designed to curb motorists who text and drive. Recently, the Atlanta Journal Constitution wrote a story pertaining to this law and its impact on motorists.

The results are not good. The Georgia State Patrol issued 105 citations since the law went into effect. Cobb County Police only issued 25 citations and surprise, wait for it, Fulton County Police have written zero citations. A violation carries a $150 fine and one point on the motorist’s driver’s license.

One similarity between the cell phone ordinance and the texting ordinance is the lack of enforcement. As I mentioned in my previous interview with the AJC, the only real opportunity that law enforcement has to issue a citation is either from personally witnessing the criminal behavior or the admission of the motorist. Self-interest usually stops the motorist from confessing to a $150 fine, a point on the license and a trip to the courthouse. And being in the right place at exactly the right time usually prevents police from being a first hand witness to a texting. In support, the recent AJC article references a citation issued as the result of a motorist being caught by an officer at a red light while texting.

I believe that a majority of rear end collisions today in the Greater Atlanta area are due to inattentiveness of the motorist caused by physically dialing a phone number on a mobile phone or texting while driving. The question becomes how do you prove it at trial? I handle numerous bodily injury claims resulting from car crashes in Fulton, DeKalb, Cobb, Gwinnett, Clayton and Henry counties. If the claim results in a lawsuit, I am entitled to propound certain questions and document requests to the offending motorist regarding cell phone and/or texting use at the time of the car collision. The motorist must generally verify that his or her answers to my questions or production of documents to my requests are true. As an additional matter, I will subpoena a certified copy of the motorist’s cell phone records to see if the driver was using the mobile phone device at the exact time of the crash. If the records indicate that the driver was using the mobile device at or very close to the time of the collision (as usually referenced in the first page of the accident report by the investigating officer), then the motorist has some explaining to do to the jury and the judge.
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