Claiming Punitive Damages In Commercial Motor Vehicle Accidents In Georgia

In automobile collision cases decided under Georgia law, "punitive damages are not recoverable where the driver at fault simply violated a rule of the road." Carter v. Spells, 229 Ga. App. 441, 442, 494 S.E.2d 279 (1997); ("A traffic violation, without more, simply does not rise to the level of willfully illegal behavior contemplated by the Georgia Code."). 

 The term "punitive damages" refers to damages awarded because of aggravating circumstances used to punish or deter a defendant. Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant. O.C.G.A. § 51-12-5.1. Punitive damages in personal injury cases are treated differently than other damages that may be claimed in a typical injury claim.

 The Georgia Court of Appeals confronted the issue of punitive damages in Fowler v. Smith, 237 Ga. App. 841, 516 S.E.2d 845 (1999). In Fowler, the Georgia Court of Appeals found that a genuine issue of material fact existed as to whether a truck driver's conduct exhibited that level of indifference required to support an award of punitive damages. In Fowler, the truck driver stopped his tractor-trailer behind a disabled vehicle in the center lane of Interstate 285. The driver did not place any warning devices in the highway, and although it was getting dark, he never activated the trailer's lights. Id. Thirty-five minutes later, the plaintiffs' decedent drove his car into the back of the trailer. Id. The plaintiffs sued the truck driver, his employer, and his employer's insurer, and the defendants moved for summary judgment on the plaintiffs' claim for punitive damages. Id. The trial court denied the defendants' motion and the Georgia Court of Appeals affirmed. The Court looked to the lack of lights or warning devices. The Appellate Court also pointed to evidence that the truck driver had the opportunity to move the vehicle out of the center of the highway in the thirty-five minutes prior to the collision, but failed to do so. Based on this evidence, the Georgia Court of Appeals concluded that a jury would be entitled to find that the truck driver's conduct "demonstrated that entire want of care which would raise the presumption of conscious indifference to the consequences." Id.

 In Highsmith v. Tractor Trailer Serv., the defendants stopped their pickup truck on the side of the highway when their truck started overheating. The defendants exited their vehicle, walked to the front of the truck, and opened the hood to determine the cause of the problem. Five minutes later, while the defendants were still underneath the hood of the truck, the plaintiffs' vehicle struck the left rear corner of a trailer attached to the defendant's truck, which remained partially in the roadway. The court concluded that the circumstance in Highsmith were far less egregious than those in Fowler, therefore no punitive damages were awarded.

For an award of punitive damages, defendant's actions must show willful misconduct, malice, fraud, wantonness, oppression, or a conscious disregard as to the consequences.

NJ Supreme Court Holds No Exceptions To Strict Liability For Dog Bites

The New Jersey Supreme Court partially reversed the decisions of lower Courts and held that under New Jersey law, there is no independent contractor exception to NJSA 4:19-16 (The Dog Bite Statute). Goldhagen v. Pasmowitz 2021 N.J. LEXIS 791 (Aug. 5, 2021). The Dog Bite Statute applies a strict liability standard to dog owners when their dog bites someone. This means that regardless of an owner’s intent, or prior knowledge of his/her pet’s vicious proclivities, he/she will be liable for damages if the dog bites someone and that person files suit against them. 

In Goldhagen, the Defendant had taken her dog to a pet care facility where Plaintiff worked as a “groomer and kennel assistant”. Id. at 9. Defendant informed the facility of the risk of aggression from her dog on an intake form, which would later be affixed to the door of her dog’s crate. Id. at 2. In the course of her duties, Plaintiff removed the dog from its crate without reading the form which contained the dog’s description, and was later bitten in the face, causing what the Court described as severe injuries. Id. at 1.

Subsequently, Plaintiff sued the Defendant dog owner at common law, and under the Dog Bite Statue. The Plaintiff lost in the trial court, with the Defendant being granted Summary Judgment pursuant to an Independent Contractor exception previously applied by the Appellate Division. Id. at 6. The Appellate Court later affirmed this decision. Id.

The New Jersey Supreme Court, however, upon granting cert, decided to reverse this decision and adopt a different approach. Id. at 31. (citing Reynolds v. Lancaster Cty. Prison, 325 N.J. Super. 298 (App. Div. 1999)). Specifically, the Court found that a plain reading of the Dog Bite Statute reveals no legislative intent to create an independent contractor exception, or any other exception, to the Strict Liability standard set forth in the Statute. Id. at 10. The Court’s rationale was that such a holding was not draconian for Defendant as New Jersey’s Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to - 5.8 would still apply to the extent fault was attributable to the Plaintiff. Id. at 11.

Said another way, while dog owners will still be held to a strict liability standard for the actions of their pet, a Plaintiff’s recovery can still be reduced by his/her own negligence. Id. For example, in Goldhagen, the Plaintiff’s “status as a professional experienced in the care of dogs…” would be relevant to any fault allocation. Id. Thus, while dog owners must be increasingly vigilant when it comes to monitoring their pets, it is clear that the Court cautioned against its holding being used as a sword by negligent Plaintiffs who find themselves on the receiving end of a potentially avoidable bite. 

Collateral Source Set-off and When Does it Apply

Under Florida’s Collateral Source Rule, defendants are limited significantly from presenting evidence of payments received by plaintiffs from other sources.  Without being able to credit those payments to the defense, this will potentially result in a windfall to plaintiffs.  The application of the law has become progressively more complicated over time, with different evidence and setoff rules applying to different types of payments.  Where Medicare or Medicaid payments are involved, for instance, courts have held that a jury may hear only the net amount of the medical bills after insurance adjustments.  However, where private health insurance is involved, courts have held that the jury may hear the total amount of the bills, although the defense is likely entitled to a post-verdict reduction or setoff.  Personal injury protection coverage (PIP) is treated differently in most contexts. 

The Second District Court of Appeal of Florida recently addressed collateral source setoffs pertaining to settlement proceeds received from the plaintiff’s uninsured motorist insurer.  In Ellison v. Willoughby, 46 Fla. L. Weekly D1361a (Fla. 2d DCA, June 11, 2021), the district court considered the question of whether settlement proceeds from the plaintiff’s uninsured motorist insurer constituted a payment from a “collateral source” within the meaning of section 768.76(2)(a)(2), Florida Statutes.

The court held that, consistent with the statute, the crediting of payments made under the plaintiff’s underinsured motorist policy turned on whether “a subrogation or reimbursement right exists.”   An uninsured/underinsured motorist insurer has a potential subrogation claim for the amount of uninsured motorist benefits paid as a result of the insured’s injuries. See Metro. Cas. Ins. Co. v. Tepper, 2 SO 3d 209, 214 (Fla. 2009).  Accordingly, if the settlement payments are subject to subrogation, they will not be viewed as collateral sources. The court further reasoned that: “[t]he cautious insured should not be penalized for obtaining UM insurance and, by the same token, it would be unfair for the tortfeasor to benefit by the insured's payment of the UM insurance premium or by the UM insurer's statutorily mandated payments on behalf of the tortfeasor.” Citing/quoting Economy Fire & Casualty Co. v. Obenland, 629 So. 2d 265, 267 (Fla. 2d DCA 1993).  

Since the applicability of the Collateral Source Rule and §768.76 is a significant and recurring concern for Florida litigants, Callahan and Fusco will continue to monitor court decisions on this issue.

A Change of Direction Requires Adequate Warning

The Second Judicial Department for the Supreme Court of the State of New York, Appellate Division, reversed a jury’s verdict because of the lower court’s failure to provide the jury with an instruction on the appropriate statutory standard whereby the violation constituted negligence per se.  See Barbara Moore v. City of New York, et al., ____ A.D.3d ___ 2021 N.Y. Slip Op. 04483 (2d Dept. 2021).  As the Trial Court never instructed the jury on the applicable standard to apply to the facts of the case, the Appellate Division reversed the judgment at the trial.

In Moore, the plaintiff was riding her bicycle on the street and approached a traffic light which was red upon her approach. The plaintiff stopped her bicycle along the side of defendants’ vehicle, which was also stopped at the red light. The defendants’ vehicle did not use its turn signal as the plaintiff approached the stopped vehicle and the plaintiff had no warning that the defendants intended to change direction.  Upon the light changing from red to green, the plaintiff proceeded to ride her bicycle straight while defendants’ vehicle turned right, thereby striking the plaintiff and running her over.  Due to the subject accident, plaintiff sustained serious injuries and the underlying action commenced.

During a bifurcated trial, the plaintiff testified to the above-referenced factual situation.  The defendants testified that it was the first vehicle stopped at the red light and prior to the light changing to green, the defendants activated the vehicle’s right turn signal; after the light changed and defendants checked its vehicle’s mirror, he slowly turned the vehicle never seeing the plaintiff.  The defendants deny ever hitting the plaintiff or her bicycle. The Trial Court instructed that the defendants were only required to place the plaintiff on reasonable notice of defendants’ intent to turn right and that defendants were “not required to signal at least 100 feet before turning his vehicle.”  Ultimately, the jury found the defendants were not negligent and the Trial Court dismissed the plaintiff’s complaint; the plaintiff then appealed.

The Appellate Division reversed the Trial Court’s dismissal of the plaintiff’s complaint as “[c]ourts are ‘obligated to interpret a statute to effectuate the intent of the Legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words.’” The Vehicle and Traffic Law was unambiguous and clear thereby requiring the defendants to signal “continuously during not less than the last one hundred feet.”  By defendants’ own testimony, the vehicle was not stopped shifting from a parked position but stopped at a red light which required an operator to signal continuously. Moreover, the unambiguous nature of the statute when combined with the trial facts, required the Trial Court to properly instruct the jury of the appropriate standards establishing the negligence per se of the defendants.

From a defense perspective, Moore teaches us the importance of understanding the legislative intent of the alleged violations of laws, statutes, and regulations upon receipt of a plaintiff’s discovery responses to adequately prepare viable defenses to asserted claims; the unambiguous language and the clear intent of the laws, statutes, and regulations will affect the progression of a trial as well as the ultimate outcome during a trial.  Therefore, during the course of a litigation, by understanding the legislative intent, the defense would have adequate warning of any changing direction whether the court, the plaintiff, or the defendant asserts the change during the course of the litigation for the benefit of the defense.

An Unrelated Death of a Claimant does not Entitle their Estate to Lump Sum Benefits when the Claimant has no Qualifying Dependent as Defined by WCL § 15(4)(d)

The issue for the Court of Appeals to determine in the Matter of Estate of Youngjohn v Berry Plastics Corp., 36 NY3d 595 (2021) was whether in light of the legislature's 2009 amendments to the Workers' Compensation Law (“WCL”) permitting payment of schedule loss of use (“SLU”) benefits through lump sum awards, a claimant's estate was entitled to recover the full value of a SLU award despite the limitation set forth in WCL § 15(4)(d). WCL § 15(4)(d) limits recovery by a claimant's estate to "an amount not exceeding reasonable funeral expenses" when a claimant dies of causes unrelated to the work injuries without a surviving spouse, child under the age of 18, or qualifying dependent.

In this case, the parties notified the Workers’ Compensation Board (“WCB”) that they had agreed on a SLU award, but the stipulation had not been approved prior to the claimant’s death, which was unassociated with his work-related injuries. At the time of his death, the decedent had no surviving spouse, minor children, or other qualifying dependents as defined by WCL § 15(4)(d). Proceedings were continued through the decedent's estate and a SLU stipulation was reached. However, a dispute arose regarding whether the Estate was entitled to the full value of the SLU award or only the portion of the award up to the date of decedent's death, with the remainder of the award capped in accordance with WCL § 15(4)(d). The Estate argued that, in light of the legislature's 2009 amendments authorizing lump sum SLU awards, the entirety of decedent's award accrued at the time of his accident or death, and that the 2009 amendments effectively rendered WCL § 15(4)(d) inapplicable to SLU awards.

The Court of Appeals held that when a claimant dies from unrelated causes before a lump sum SLU award is entered or received, the estate may recover only reasonable funeral expenses and that portion of the SLU award that would have been due to the claimant before death.

The Court of Appeals explained that the 2009 amendments allowed SLU awards to be made in one lump sum payment, but that the legislature did not amend WCL § 15(4)(d) which limits an estate's recovery of the portion of an SLU award to what would periodically become due up until the decedent's death. Therefore, the Court of Appeals found that to accept the Estate's argument that the entire SLU award became "due" to the claimant at or prior to his death, would be to hold that the legislature implicitly rendered Workers' Compensation Law § 15(4)(d) inapplicable to SLU awards. As a result, the Court further held that if the legislature intended for a claimant's estate to recover the full value of an SLU award under the circumstances in this case, then the law would have to be amended to reflect that.

In Big Move In Favor of Property Owners: NJ Supreme Court Implements "Ongoing Storm Rule" In Landmark Decision

Earlier last month the Supreme Court overturned the Appellate Division’s Ruling in Pareja v. Princeton International Properties, 463 N.J. Super. 231 (App. Div. 2020). This case pertained to a plaintiff who was allegedly injured, when he slipped and fell on the defendant’s property.  The night prior to the alleged incident, weather records submitted by defense counsel showed a wintry mix of light rain, freezing rain, and sleet had fallen.  More importantly, at the time of plaintiff’s alleged fall, light rain and pockets of freezing rain were falling as well.  The Appellate Court ruled that due to the circumstances, defendants had a duty of reasonable care to maintain the sidewalk even when precipitation was falling. Id. at 235.  The New Jersey Supreme Court disagreed.

In a 5-2 vote the New Jersey Superior Court held that “commercial landowners do not have a duty to remove the accumulation of snow and ice until the conclusion of the storm, but unusual circumstances may give rise to a duty before then.  244 N.J. 168 (2021). The Court also presented two exceptions to which a duty of this kind may arise: if the owner’s conduct increases the risk, or the danger is preexisting. Id.

The Court analyzed the decades of precedent pertaining to the removal of snow on sidewalks and determined that although the “ongoing storm rule” had not been expressly adopted, the Court had implicitly come to this conclusion over the course of its history. In 1944, the Court determined that the previous general principle of non-liability did not extend to situations where landowners, through their own negligence (improper snow removal), created a dangerous condition.  Further, in 1983, the Court implemented a duty on a landlord for failing to remove snow from storms that occurred earlier in the week and the night before. Mirza v. Filmore Corp., 92 N.J. 390, 400 (1983).  Thus, the Court had essentially taken the stance that liability would only arise “if actual or constructive notice” was presented by plaintiff. Id.

In addition, the Court found that to impose a duty on landowners does not consider the size, resources, and ability of individual commercial landowners may not be reasonable—or even possible—for smaller ones. Id. Further, the Court had no desire to submit every commercial landowner to litigation when it is not feasible to provide uniform, clear guidance as to what would be reasonable.

This decision brings the State of New Jersey in line with its neighbors Connecticut, Delaware, New York, and Pennsylvania.  Each have adopted and protected a form of the ongoing storm rule, recognizing the difficulty and futility of attempting to remove accumulations of snow and/or ice during an ongoing storm and that any duty to potential plaintiff’s should only be imposed after a reasonable time has passed since the conclusion of a storm.

As a result, commercial landowners can breathe a sigh of relief as to the onerous burden set by the Appellate Division.  However, commercial landowners are not completely absolved of liability, the Court implemented exceptions to this rule.  More importantly, the Court will still allow juries to hear questions of fact pertaining to when the actual storm concluded or whether the accumulation of snow and/or ice was caused by a previous storm.