By B.J. Survant
Carl Reynolds and I recently tried a case arising out of the death of Charlie Moore, the 76-year-old father of our five clients, and we obtained a $9.73 million verdict. The verdict was the largest ever in Twiggs County, Georgia.
On Sept. 27, 2007, Mr. Moore was heading to Dublin to go fishing with his lady friend Fannie Mae Kemp. She was driving, and Mr. Moore was a passenger. The two dated as youngsters and had reconnected in their later years. Ms. Kemp was driving east on I-16 in the outside lane, and it was raining. According to the accident report, Mr. Miller was also driving east on I-16 in the inside lane when he lost control of his vehicle. His vehicle then spun, crossed into the outside lane and its rear slammed into the rear of Ms. Kemp’s vehicle. Mr. Miller was cited for driving too fast for conditions.Carl Reynolds and I recently tried a case arising out of the death of Charlie Moore, the 76-year-old father of our five clients, and we obtained a $9.73 million verdict. The verdict was the largest ever in Twiggs County, Georgia.
At first, Mr. Moore’s injury seemed minor. After the accident, he checked on Ms. Kemp, got out of the vehicle, looked around the accident scene and inspected the vehicles involved. When the ambulances arrived, he was persuaded to go to the hospital. Shortly after arriving at the hospital, Mr. Moore suddenly became non-responsive due to a massive brain bleed. He died on Oct. 1, 2017, just four days after the accident.
The first case – one against Mr. Miller – seemed pretty simple as he was ticketed for driving too fast for the conditions. The problem, however, was that he only had $250,000 in coverage through Alfa Insurance Company. Because Mr. Miller told the investigating officer that he had hydroplaned, there was a second case to investigate – one against the Georgia Department of Transportation [“GDOT”]. If we were able to make a case against GDOT, we could potentially recover an additional $2 million for Mr. Moore’s family.
As in most cases, a possible hydroplane case requires a prompt investigation. We quickly hired Herman Hill, a professional engineer who formerly worked with GDOT. Mr. Hill’s expertise is road design, construction, and maintenance. We sent him to the site of the accident to conduct a survey to see if there was any merit to a claim that the roadway itself somehow contributed to the accident. The only physical evidence pertaining to the accident, aside from the damage to the vehicles, was a single gouge mark representing the point of impact between the two vehicles. Using that gouge mark as a starting point and going back approximately one thousand feet, Mr. Hill measured the cross slope at numerous spots in both eastbound lanes.
A cross slope is the amount of tilt or lean all roads have to facilitate water leaving the roadway to prevent accumulation. The proper amount of cross slope is dictated by the type of roadway. For high-speed and heavily-traveled roads like I-16, the proper cross slope is one-eighth of an inch per foot. This standard, which has been adopted by GDOT, was initially published by AASHO in 1965. Mr. Hill’s survey found several substandard cross slopes, particularly in the inside lane, the lane in which Mr. Miller was traveling when he lost control.
Even though we now had evidence that the road was too flat, there were several challenges to overcome. The primary hurdle initially was a legal one – getting past GDOT’s immunity defense. According to Mr. Hill, the plans and specifications for the roadway complied with the engineering standards in place when the road was built in 1969-70; therefore, GDOT was immune from any claim from any negligent design/construction case. GDOT, however, had a statutory duty to maintain state roads [O.C.G.A. § 32-2-2], and that statute duty broadly defined “maintenance” [I.d.] as the “preservation of [the] road[s]”. As a result, we framed the case against GDOT as a negligent maintenance case, thereby allowing us to defeat the immunity defense.
The remaining challenges were all based on the evidence, or more specifically, the lack of evidence. The evidence at the case’s onset was sparse:
- There were no eyewitnesses to the accident;
- Mr. Miller had no recollection of how the accident occurred. In fact, his last memory before waking up in the hospital with his wife by his side, was checking into a hotel in Morrow, Georgia, the night before the wreck;
- Ms. Kemp never saw the Miller vehicle before its impact with her vehicle so she couldn’t shed any light on how fast Mr. Miller was going or on how the accident occurred;
- When the officer arrived on the scene, it was not raining, and he did not note any accumulation of water on the roadway;
- Because the roadway was wet, there were no tire marks, scuff marks, yaw marks or any similar evidence on the roadway showing where Mr. Miller’s loss of control occurred; and
- Ms. Kemp and countless others had driven through the area of the accident without incident, suggesting there was no problem with standing water on the roadway.
As a result, we had no direct evidence that it was raining at the time of the accident, or if so, how hard it was raining. There was no direct evidence as to how fast Mr. Miller was going, which lane he was in as he drove along I-16, where on the roadway he was when he lost control, or perhaps most critically, why he lost control. Each of these evidentiary voids would ultimately become part of GDOT’s motion for summary judgment and its Daubert motion challenging Mr. Hill.
First, we needed to establish that it was raining at the time of the accident and how hard it was raining. There are excellent weather information sites online. I consulted Weather Underground, which established that both light and heavy rain fell about 45 minutes before the accident, but that same data indicated that it was not raining at the time of the accident. In interpreting data on this site, you must keep in mind that the data is recorded at various weather stations, and you have to figure out where that weather station is relative to the scene of your accident. The weather station in our case was located west and slightly north of the accident scene, so we surmised that the storm causing the rainfall at the weather station would move to the east and be at the scene of the accident about the time the wreck happened. To confirm this conclusion, we used color weather radar depictions and created an informal time-lapse presentation showing the movement of the area of heavy rainfall to and ultimately on top of the accident scene at the time of the accident. We obtained the radar depictions from the National Climatic Data Center. With this evidence and radar depictions, we were able to show that it was raining at the time of the accident and that rain was falling at a rate of approximately 1-2 inches per hour. We introduced all of this weather evidence through Mr. Hill as a component of the factual basis for his opinions.
After we knew the amount of rainfall at the scene of the accident, we needed to establish that such a rainfall would cause an accumulation of water on the road. We had Mr. Hill refine his survey to illustrate that there were large areas of roadway that were essentially flat. Now, instead of isolated cross slope measurements, we had a survey clearly showing that Mr. Miller’s car was in the middle of a series of flat portions of the roadway when he lost control.
Because speed is a factor in a hydroplane, we also needed to establish Mr. Miller’s speed. Speed, however, was also a tricky issue. We needed to establish that Mr. Miller was going too fast for the rainy conditions to secure liability against him, but if it appeared he was going too fast, a jury would likely excuse GDOT’s flat road. The only evidence we had as to speed was Mr. Miller’s statement to the investigating officer at the scene that he was going “about 70” (which was the posted speed limit) and Ms. Kemp’s vague recollection that she was going approximately 60-65 m.p.h and that she slowed before impact. We had Mr. Hill do a crush damage analysis which established that at the point of impact, Mr. Miller’s vehicle was going 41.75 m.p.h. faster than Ms. Kemp’s vehicle. This opinion allowed for a fairly large range of speeds for Mr. Miller that we felt would prevent the jury from blaming only Mr. Miller for the accident.
Our investigation into GDOT’s policies and procedures was essential to our verdict. Many of GDOT’s policies and procedures are readily available online [Transportation Online Policy & Procedure System (TOPPS)]. GDOT’s own documents proved to be a treasure trove.
GDOT’s Mission Statement, for example, is “The Maintenance Units within the Georgia Department of Transportation hereby affirm their commitment to provide a safe, efficient transportation system for all users.” At trial, we equated this statement a solemn promise by GDOT that Georgia roads would be safe for us to use and that GDOT broke that promise to our client and others using state roads.
Specifically, GDOT’s Drainage Manual proclaims that drainage and identifying drainage problems are its “most important,” “critical” functions “to prevent injuries and loss of life to the traveling public.” Using its own documents, therefore, we were able to establish how important proper drainage was, and then contrast that laudable goal with the testimony of its employees. One GDOT employee testified that GDOT’s inspections for drainage problems were made in a truck at highway speeds. Incredibly, one of GDOT’s maintenance managers testified that the one and only time GDOT checks the cross slopes of a road is if there has been a fatal accident at that location.
In our case, it was GDOT’s own survey that, in my opinion, carried the day. Because GDOT can close lanes of interstate highways to make measurements, while a reconstructionist like Mr. Hill could not, GDOT’s expert was able to take many more road elevation measurements than Mr. Hill was able to obtain. Indeed, when GDOT’s expert’s survey was unfurled, it was approximately 6-8 feet long. This huge exhibit, however, only contained the measurements of the road’s elevation at numerous points. It did not display the cross slopes. In other words, the data necessary to compute the cross slope was on the exhibit, but not in a form that clearly showed any deficiency.
Before GDOT’s expert’s deposition, I computed the cross slopes based on GDOT’s measurements and was pleasantly surprised to find that GDOT’s expert had actually identified several more spots at which the cross slope was deficient than Mr. Hill had noted. At his deposition, I had him calculate the cross slopes and agree to the numerous locations of the deficient cross slopes. This set up an easy cross-examination at trial. On cross, we simply went through each of his measurements, 90 percent of which showed an inadequate cross slope. In closing, I suggested to the jury that they use GDOT’s own survey as the test to determine if its road was safe, and when I asked rhetorically, “how did the GDOT do on that test?,” an older juror seated in the front row said out loud, “they failed that test” to which another juror behind her affirmatively agreed, “mmm hmm.” Obviously, these responses were reassuring.
In their closings, Mr. Miller blamed the GDOT and its flat road for his loss of control, and GDOT blamed Mr. Miller for his excessive speed and carelessness. Carl then explained to the jury that the defendants were not disputing liability as much as they were fighting over their respective fault. He then cleverly suggested that the jury reach a verdict as to the amount of damages first before apportioning liability. In our final words to the jury, Carl did a masterful job of establishing the tremendous value of all lives, including a 76-year-old like Mr. Moore.
The jury was only out about an hour and returned the verdict awarding our clients almost precisely what Carl had suggested to them in his closing argument. The jury awarded $7.5 million for the value of Mr. Moore’s life, $2.0 million for the pain and suffering he endured before his death, and other specials damages for a total verdict of $9,728,859.43. The jury apportioned liability 25 percent to Mr. Miller and 75 percent to GDOT.
The Monday following our verdict, I received two phone calls. First, the attorney defending Mr. Miller at trial on behalf of Alfa Insurance Company called to offer us its limits of $250,000. We politely declined. Second, Mr. Miller’s personal attorney in Montgomery, Alabama called to pass along his congratulations on the verdict (he was a plaintiff’s lawyer) and to let us know that he’d be representing Mr. Miller on his claim against Alfa Insurance Company for its negligent or bad-faith refusal to settle.
The verdict was great, and our clients were elated that a jury had appreciated the value of their father’s life. We got a nice spread in the Fulton County Daily Report, including a large photo above the fold. As everyone who tries cases knows, however, you can’t spend verdicts.
As expected, both the State and Mr. Miller challenged the propriety of the verdict, albeit following different paths. The State argued that even though the verdict against it was $7.3 million, its liability was capped by the Tort Claims Act. We challenged both the constitutionality of the cap as well as its interpretation by GDOT, and while the court was shocked to learn that the constitutionality of the cap had never been challenged, he ended up concluding that the cap was constitutional and that the State’s liability was capped at $2 million. Mr. Miller, on the other hand, filed a motion for new trial citing several purported errors made during the trial as well as the size of the verdict.
Within days of the judgment being amended to $2 million, we received a call from the Attorney General’s office informing us that the State had decided to pay. We met with our clients to discuss the offer as well as the merit and repercussions of our contemplated appeal. In the end, our clients wanted us to accept the $2 million, and we did.
Mr. Miller’s motion was denied, and we agreed to mediate the case. By then, a third set of attorneys had filed a notice of appeal. After a lengthy mediation, the case settled for approximately 10 times our original policy limits demand.
What started out as a simple car wreck case turned into a dangerous road case and failure to settle case. Only by pursuing all of these avenues, were we able to maximize our client’s recovery and obtain justice for our well-deserving clients. ●
About the Author
Bradley “B.J.” Survant is a partner with Reynolds, Horne & Survant in Macon, Georgia, and he specializes in catastrophic injury cases. He is also a member of the American Board of Trial Advocates [ABOTA] and AV rated. B.J. can be reached at email@example.com.
Our investigation into GDOT’s policies and procedures was essential to our verdict. Many of GDOT’s policies and procedures are readily available online. GDOT’s own documents proved to be a treasure trove.