Hit by a Drunk Driver

Hit by a Drunk Driver in Atlanta; What Rights Exist Under the Law?

There are substantial civil penalties to punish the wrongdoer.

Drunk drivers are a hazard on Georgia roads and are responsible for more than 20% of fatal crashes. Most of us know that the criminal justice system metes out some justice in probation and fines but many are unaware that when you are hit by a drunk driver in Georgia, the civil law allows the jury to award punitive damages as well.

Georgia law provides that punitive damages may be awarded in addition to compensatory damages when the person that caused the injury behaved in a way that showed a reckless indifference to the consequences. Punitive damages are awarded to punish and deter reckless behavior. O.C.G.A. § 51-12-5.1

That means that if the person or company that caused a serious injury in Georgia did so in a fashion that is reckless, then punitive damages may be available in addition to the medical bills, lost wages, and human suffering. It is important to know that not every type of bad driving or poor decision making entitles a Plaintiff to seek punitive damages. Below, we will discuss what types of behavior will allow the issue to go to the jury.

Punitive Damages are Available Against Drunk Drivers in Georgia

It is the law in Georgia that if the at-fault driver was drunk at the time of the collision, the injured party may recover punitive damages. Click here to read how the Court of Appeals has explained the logic behind punitive damages: Cheevers v. Clark, 214 Ga.App. 866, 869(4), 449 S.E.2d 528 (1994)

Outrageous and Dangerous Behavior Will Allow Punitive Damages

In Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 828(2), 435 S.E.2d 54 (1993), the defendant trucking company knew that their drivers sped on a regular basis to make runs on time and in the crash with the plaintiff they struck plaintiff’s vehicle twice and kept pushing. In J.B. Hunt Transport v. Bentley, 207 Ga.App. 250, 255(2), 427 S.E.2d 499 (1992), the driver discovered a major mechanical problem but decided to keep driving for another 20 miles.

Georgia Tractor Trailer Crashes Provide Unique Facts that Allow Punitive Damages

Tractor trailer and trucking crashes in Georgia are unique in a number of respects and the Georgia Appellate Courts seem to allow punitive damages more frequently for even basic rule violations, something they don’t do for standard car crashes in Georgia. The logic behind this, although unspoken, is likely the sense that professional drivers should know the rules better than amateurs and are held to a higher standard of care. In Fowler v. Smith, 237 Ga.App. 841, 516 S.E.2d 845 (1999), the tractor-trailer driver violated 49 CFR § 392.22(b) by being stopped in the interstate’s center lane for 35 minutes and did not place the required triangular warning devices behind his vehicles. The Court also noted that the trucker did not turn on his tractor-trailer lights.

Punitive Damages are Not Available for Simple Traffic Violations

Some clients want to know if punitive damages are available in other types Georgia injury cases where the other driver was violating a rule of the road like speeding or blatantly running a red light and the answer is no. Bradford v. Xerox Corp ., 216 Ga.App. 83, 453 S.E.2d 98 (1994). If the driver is not intoxicated but had been drinking it can affect the value of a Georgia case in the negotiations phase, but will probably not support a punitive damages award. In Coker v. Culter, 208 Ga.App. 651, 431 S.E.2d 443 (1993), the plaintiff was not allowed to ask the jury for punitive damages where the at-fault driver was speeding on wet roads, had consumed some alcohol, and behaved like a jerk after the collision.

Unless the Wrongdoer Acted with Intent to Harm, Georgia Punitive Damages are Capped

Georgia law does cap punitive damages at $250,000.00 unless the party acted with the specific intent to harm. O.C.G.A.51-12-5.1There are certain exceptions but as a general rule, this applies.

When trying to decide whether to hire an Atlanta personal injury attorney, make sure that your interview the lawyer in person before you make your decision. If punitive damages are involved, grill the lawyer extensively on their strategy for your case.

In catastrophic injury and wrongful death cases, you should also be sure to have the attorney look into where the drunk driver was drinking. Georgia has Dramshop Laws that allow the victim to sue the bar if they served a visibly intoxicated person whom they should have known would soon be driving. Here is an example of a lawsuit involving the death of UGA student where we proceeded against the drunk drivers and the bar where they were drinking.

Examples of Settlements and Verdicts in Drunk Driving Cases

• $7,300 in medical bills for Emergency room and physical therapy. $35,000 settlement with DUI.
• $6,500 for TFCC ligament injury with DUI, the offer was only $15,000 from USAA. The case is headed towards trial as the offer is too low.
• $33,000 in emergency room and physical therapy and epidural injections caused by DUI driver. $145,000 settlement.
• $27,000 in emergency room care with 2 orthopedic follow-ups for a possible compression fracture where the client was in the same car with a drunk driver and allegedly knew that the driver was drinking. Case settled for $90,000 when we learned our client was on social media posting about weight lifting and golfing despite claiming disability in deposition.
• Policy limits of $350,000 paid to the passenger in DUI driver car crash with a broken arm and jaw and substantial medical bills. Although the insurer argued that our client assumed the risk of riding with the drunk driver, the gravity of the injuries outweighed that argument. The different results with another passenger who had $22,000 in bills and some pre-existing medical history. Our auto accident attorneys in Atlanta settled for $50,000 just prior to trial.
• Currently representing a young lady who lost 4 fingers in a crash as a passenger in a DUI case. Given that it is her dominant hand and she has other substantial orthopedic injuries, nothing less than policy limits will be accepted.

Trial Verdicts that Illustrate DUI Principles

Cobb County DUI Case With Prior DUIs Yields no punitive damages due to weak medical care

Kane v. Case, Cobb County November 2014

In a high impact collision with an admitted DUI driver, the plaintiff was ER transport from the scene, followed up with her PCP and had 2 PT visits. A year and a half went by and she went to a chiropractor for a while. She went to another chiro starting in 2012 through the date of trial.

The defendant had 3 prior DUIs and 2 subsequent and had two other felony convictions that came in for impeachment. The case was trifurcated.

Plaintiff was challenged by the huge gap in care, the fact that there was a second crash in 2010. The last offer was $50,000 and the last demand was $200,000. That is the problem with getting over-focused on the DUI facts. They are important but only work on a strong medical case foundation. The jury awarded $22,000 for the medical but no punitive damages. The plaintiff lost $28,000 by being greedy and I would wager the defense would have paid more if the demand were reasonable.

Low Blood Alcohol Level Yields Low Verdict in Gwinnett

Oliver v. Conyers, 02/15

An employee sued a fellow employee for a car accident after the company Christmas party. The defendant was .066 BAC, which is below the .08 presumption of impairment. Clearly the jury did not like this and only awarded $5,000 when the insurance company had offered $7,500 to settle the case. Bad decision. You cannot get too pushy on punitive damages claims. If the jury feels you are being unfair, they will punish the plaintiff.

$100,000 in Punitives When Driver Has Prior Convictions in DeKalb County

Schroeder v. Dagne, January 2015

In a high-velocity crash with an alleged drunk driver, the jury awarded $177,000 on $26,000 in medical bills to a mom and her daughter in the first phase of a bifurcated trial. The jury heard evidence that the driver had a prior DUI conviction and a prior felony conviction. The aggravated damage number shows pretty clearly that the jury took the prior history into account. In the punitive phase of the case, the jury awarded another $100,000 in punitive damages to punish the wrongdoing.

Sample Wrongful Death DUI and Dram Shop Lawsuit

IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA

JEAN CHOI, as Surviving Mother of EDDIE H. KO (Deceased), ) CIVIL ACTION
)
Plaintiff, ) FILE NO. ________________
)
vs. )
)
JURY TRIAL DEMANDED
)
SOON M. KWON, IN J. KWON, GHO H. LEE, TONY KA, and ABC COMPANY, )
)
Defendants.
)
)
)
)

COMPLAINT FOR WRONGFUL DEATH

COMES NOW Jean Choi and makes and files this Complaint for the Wrongful Death of her son, Eddie H. Ko against Defendants Soon M. Kwon, In J. Kwon, Gho H. Lee, Tony Ka, and ABC Company and shows to the Court the following:

PARTIES AND JURISDICTION:

Jean Choi is the mother and statutory claimant for the wrongful death of Eddie H. Ko. She is a resident of Gwinnett County, Georgia.

Defendant Soon M. Kwon is a resident of Gwinnett County, Georgia, and may be served with a copy of the Summons and Complaint at his home address located at 2617 Gadsen Walk, Duluth, GA 30097.

Defendant In J. Kwon is a resident of Gwinnett County, Georgia, and may be served with a copy of the Summons and Complaint at his home address located at 2617 Gadsen Walk, Duluth, GA 30097.

Defendant Gho H. Lee is a resident of Gwinnett County, Georgia, and may be served with a copy of the Summons and Complaint at his home address located at 2500 Pleasant Hill Road, #1223, Duluth, GA 30096.

Defendant Tony Ka is a resident of Gwinnett County, Georgia, and may be served with a copy of the Summons and Complaint at his home address located at 3525 Club Drive, Apartment 916, Lawrenceville, GA 30044.

Defendant XYZ COMPANY is a company whose identity and principle place of business are currently unknown but which is believed to be located in Gwinnett County, Georgia. Once identified, plaintiff will substitute XYZ Company’s correct name in the style of this case and will serve said company as provide by Georgia law.

Jurisdiction and venue are proper in this Court.

BACKGROUND

On or about December 12, 2010, Eddie H. Ko was the driver of a 2005 Honda Accord traveling northbound on Steve Reynolds Boulevard (toward Old Norcross Road).

At the time of the collision, Defendants Soon M. Kwon and Gho H. Lee were driving their respective vehicles southbound on Steve Reynolds Boulevard (toward Satellite Boulevard) when they negligently collided with each other, causing the vehicle driven by Soon M. Kwon to cross the centerline of Steve Reynolds Boulevard and collide head-on with the vehicle being driven by Eddie H. Ko.

At the time of the collision, Defendant Soon M. Kwon was under the influence of alcoholic beverages to the extent that it was unsafe for him to drive an automobile.

At the time of the collision, Defendant Gho H. Lee was under the influence of alcoholic beverages to the extent that it was unsafe for him to drive an automobile

As a result of the collision, Eddie H. Ko sustained fatal injuries and was pronounced dead at Grady Hospital at approximately 3:00 a.m. on December 13, 2010.

LIABILITY OF DEFENDANT SOON M. KWON

Plaintiff re-alleges and incorporates the allegations contained in paragraphs 1 through 12 above as if fully set forth herein verbatim.

Defendant Soon M. Kwon is liable to the Plaintiff for negligently and recklessly driving while under the influence of alcohol, and for negligently and recklessly making contact with the vehicle driven by Gho Lee.

Defendant Soon M. Kwon’s drunk driving was a proximate cause of Eddie H. Ko’s death.

Defendant Soon M. Kwon’s actions demonstrated willful misconduct, malice, and/or an entire want of care that establishes a conscious indifference to the consequences and entitles the Plaintiff to an award of punitive damages.

LIABILITY OF DEFENDANT IN J. KWON

Plaintiff re-alleges and incorporates the allegations contained in paragraphs 1 through 14 above as if fully set forth herein verbatim.

Defendant In J. Kwon was the owner of the 2008 Lexus automobile being driven by defendant Soon M. Kwon at the time of the subject collision.

Defendant In J. Kwon negligently entrusted his 2008 Lexus automobile to Defendant Soon M. Kwon on the occasion of the collision that lead to the death of Eddie H. Ko.

In the alternative, Defendant In J. Kwon is liable to the plaintiff under the Georgia Family Practice Doctrine if he is a family member of Defendant Soon M. Kwon and if he furnished the vehicle in question to Soon M. Kwon in furtherance of a family purpose, as that term is defined under Georgia law.

Defendant In J. Kwon’s actions proximately caused the death of Eddie H. Ko.

LIABILITY OF DEFENDANT GHO H. LEE

Plaintiff re-alleges and incorporates the allegations contained in paragraphs 1 through 21 above as if fully set forth herein verbatim.

Defendant Gho H. Lee is liable to the Plaintiff for negligently and recklessly driving while under the influence of alcohol, and for negligently and recklessly being a contributing cause to the collision that killed Eddie H. Ko.

Defendant Gho H. Lee’s drunk driving was a proximate cause of Eddie H. Ko’s death.

Defendant Gho H. Lee’s actions demonstrated willful misconduct, malice, and/or an entire want of care that establishes a conscious indifference to the consequences and entitles the Plaintiff to an award of punitive damages.

LIABILITY OF DEFENDANT TONY KA

Plaintiff re-alleges and incorporates the allegations contained in paragraphs 1 through 25 above as if fully set forth herein verbatim.

Defendant Tony Ka was the owner of the 2010 Kia Forte automobile being driven by defendant Gho H. Lee at the time of the subject collision.

Defendant Tony Ka negligently entrusted his 2010 Kia Forte automobile to Defendant Gho H. Lee on the occasion of the collision that lead to the death of Eddie H. Ko.

In the alternative, Defendant Tony Ka is liable to plaintiff under the Georgia Family Practice Doctrine if he is a family member of Defendant Gho H. Lee and if he furnished the vehicle in question to Gho H. Lee in furtherance of a family purpose, as that term is defined under Georgia law.

Defendant Tony Ka’s actions proximately caused the death of Eddie H. Ko.

LIABILITY OF DEFENDANT ABC COMPANY

Plaintiff re-alleges and incorporates the allegations contained in paragraphs 1 through 30 above as if fully set forth herein verbatim.

Immediately prior to the collision, Defendants Soon M. Kwon and Gho H. Lee were served alcoholic beverages by agents and employees of Defendant ABC Company (a company whose true name is presently unknown) at its establishment.

Prior to the collision that killed Eddie H. Ko, agents and employees of Defendant ABC Company sold, furnished or served alcoholic beverages to Defendants Soon M. Kwon and Gho H. Lee, who were at that time in a state of noticeable intoxication.

Defendant ABC Company knew or should have known that the Defendants Soon M. Kwon and Gho H. Lee would soon be driving motor vehicles.

The acts of the agents and employees of the Defendant ABC Company were a proximate cause of the death of Eddie H. Ko under Georgia’s Dramshop laws.

DAMAGES

Jean Choi brings this action individually, as the statutory wrongful death claimant for the death of Eddie H. Ko, and is entitled to recover of each and every defendant herein the full value of the life of Eddie H. Ko, including all economic and non-economic damages allowed by law, as will be shown by the evidence in the case.

WHEREFORE, Plaintiff prays that she have a trial on all issues and judgment against Defendants as follows:

That Plaintiff recover the full value of the life of Eddie H. Ko, including all economic and non-economic damages allowed by law, with interest and Court costs;

That Plaintiff recover punitive damages from defendants Soon M. Kwon and Gho H. Lee as a result of their willful, wanton and reckless conduct;
c. That Plaintiff recover such other and further relief as is just and proper;
d. That all issues be tried before a jury.

This ____ day of TIME @ “MMMM, yyyy” May, 2011.

Christopher Simon Attorney at Law
Georgia Bar No. 646922
Attorney for Plaintiff
Christopher Simon Attorney at Law
3535 Piedmont Roa
Building 14, Suite 410
Atlanta, GA 30303
Tel: (678) 608-2788
Fax: (404) 841-8534

If you landed on this page and are facing criminal traffic charges in Virginia, we can suggest you check with fellow UVA graduate, Andrew Flusche’s law practice. He specializes in Virginia Reckless Driving defense law.

• 4 Simple Steps to Follow After Being Hit By a Drunk Driver