Butler Kahn recently obtained a $3,000,000 settlement in a pedestrian accident case. The case was handled principally by Brittany Partridge and Jeb Butler.

Here’s more about the case.

1. Facts of the Pedestrian Accident

On the morning of April 25, 2022, our 76-year-old client had a doctor’s appointment. Ms. Wheeler* didn’t live far from her doctor’s office, so she decided to walk to her appointment that morning. She approached the intersection of North Avenue and Juniper Street in Atlanta and waited for the “walk” sign. The “walk” sign appeared, and Ms. Wheeler began walking across North Avenue in the crosswalk. At the same time, Mr. Smith was driving down Juniper Street in a Ford F-250. As he approached the intersection with North Avenue, Mr. Smith turned left directly into Ms. Wheeler, causing her to fall and sustain serious injuries.

The crosswalk where the collision occurred

When the police arrived on scene, Mr. Smith spoke with the investigating officer. He admitted Ms. Wheeler was in the crosswalk, she had four seconds left on the “walk” sign, he saw Ms. Wheeler in the crosswalk, and he hit her anyway. He told the officer, “It is what it is. I seen her, I just bumped her, and she fell.” As Mr. Smith spoke to the officer, he was smirking and laughing all the while Ms. Wheeler was lying on the stretcher covered in blood.

The at-fault driver speaking to the police officer on scene

After investigating the crash, the police officer found Mr. Smith at fault for the wreck and cited him for failing to yield while turning left in violation of O.C.G.A. § 40-6-72.

2. Our Client’s Personal Injuries and Treatment

The wreck caused severe injuries to Ms. Wheeler. Body camera footage showed Ms. Wheeler covered in blood.

Ms. Wheeler on the stretcher

The EMTs noted Ms. Wheeler’s shoulder “appeared deformed.” Her right hand was swollen and bleeding. Her left wrist and hand were bleeding. Her head was bleeding. Ms. Ward was in severe pain. EMS transported Ms. Wheeler to the emergency room, where doctors determined she suffered:

• multiple rib fractures (right anterior ribs 1, 3-8 and right posterior ribs at 1 and 2);
• a left elbow fracture;
• a left wrist fracture;
• a right wrist fracture;
• a right upper arm fracture;
• a collarbone fracture;
• a scalp hematoma;
• a traumatic knee arthrotomy (“a deep laceration that extends into the normally sterile intra-articular joint space and places the joint at risk of septic arthritis.”);
• multiple cuts to her hand; and
• multiple bruises

The day after the wreck, Ms. Wheeler underwent two surgeries: first a surgical fixation of her elbow with plates and screws, and then debridement of the skin, facia, muscle, and bone of her knee arthrotomy. Unfortunately, Ms. Wheeler developed an infection at her elbow surgery site. It took an additional surgery and months of IV antibiotic therapies to treat her infection. About ten months later, Ms. Wheeler passed away. Thanks to this wreck, she spent the last ten months of her life in and out of hospitals and rehabilitation centers.

3.What happens when your client passes away?

Ms. Wheeler was our client. Ms. Wheeler signed our representation agreement. When she passed away, we had to ensure the representative of her estate would work with us to pursue her claim.

Ms. Wheeler had a will appointing one of her sons as the executor and personal administrator of her estate. That meant we had to work with that son to ensure he would continue working with us to resolve Ms. Wheeler’s claim against Mr. Smith and his employer. Thankfully, we had a great relationship with that son, and he helped ensure a smooth transition.

We worked with a local probate attorney to file the proper paperwork required to have Mr. Wheeler’s’ son formally appointed by the probate court. It took some time, but the probate court granted Ms. Wheeler’s son letters of testamentary, allowing her son to carry out Ms. Wheeler’s affairs, including the claim we were pursuing on her behalf. We then signed a new fee agreement with Ms. Wheeler’s son as Personal Representative of Ms. Wheeler’s Estate.

excerpt of the signed Letters of Testamentary from the probate court

4. Respondeat Superior – Employer is Responsible for its Employee’s Car Wreck

When an employee is in the course and scope of their job and negligently causes a car wreck, the employer is liable for the employee’s actions. This rule is known as “Respondeat Superior.”

Georgia has a statute that lays out this rule. O.C.G.A. § 51-2-2 states that “[e]very person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.”

At the time of the wreck, Mr. Smith was in an F-250 owned by his employer traveling to an out-of-state job for his employer. He was also in uniform, wearing a polo with his employer’s name.

excerpt from the police report showing the truck owned by the employer

Because Mr. Smith was in the course and scope of his employment at the time of the wreck, his employer was responsible for his negligent actions. This meant the employer’s insurance policy insured Mr. Smith and provided coverage for Ms. Wheeler’s bodily injury claim.

5. Challenges in the Pedestrian Accident Case

The morning of the accident, Ms. Wheeler was heading to a doctor’s appointment. Unfortunately, she was battling cancer at the time of the wreck and had some other preexisting health issues. When Ms. Wheeler passed away ten months after the wreck, her official cause of death – the one that appeared on her death certificate – was cancer, not the pedestrian collision.

Based on the relatively short time between the accident and her death, we hoped that we could prove that the accident contributed to Ms. Wheeler’s death. Wrongful death cases in Georgia are very valuable and often settle for high numbers. We asked two different pathologists to review Ms. Wheeler’s medical records and let us know if it was more likely than not that the car accident contributed to Ms. Wheeler’s death. Unfortunately, neither pathologist believed Ms. Wheeler’s death was caused by the car wreck, in part due to the aggressive form of cancer she was battling. That meant that we wouldn’t be able to prove to a judge and jury that the pedestrian accident was the cause of Ms. Wheeler’s death.

Knowing that we could not connect Ms. Wheeler’s death to the accident caused two unique challenges. First, this meant that the period of Ms. Wheeler’s pain and suffering was limited to ten months. Second, since she was at the end of her life with other issues, the defense was likely to argue that Ms. Wheeler’s her last ten months would not have been great anyway, and that the pedestrian collision (allegedly) didn’t make things that much worse. We knew the defense would use those two arguments to ask the jury to return a low verdict.

Still, we believed this was still a strong case. Ms. Wheeler was a lovely woman who should not have had to live the last months of her life in hospitals and rehabilitation centers and undergoing orthopedic surgeries. She went from walking to being wheelchair bound. The ten months Ms. Wheeler suffered were the last ten months on this earth. She should have spent that precious time with family and friends, not surrounded by doctors and nurses. We believe that precious time had immense value.

6. $3,000,000 Personal Injury Settlement

We worked with Ms. Wheeler’s son to develop a plan for his mother’s claim. Thankfully, a $3,000,000 policy was available to cover Ms. Wheeler’s claim. After discussing our options, we chose to send a demand to the insurance company under O.C.G.A. 9-11-67.1, which is the statute that governs Georgia’s pre-lawsuit car wreck settlement demands.

There was a $3,000,000 insurance policy insuring Mr. Smith and his employer. Based on the facts of the case and Ms. Wheeler’s loss, we believed that Ms. Wheeler’s claim was worth at least $3,000,000. Because of this, we sent a demand for policy limits of the $3,000,000 policy. Approximately 22 days after we sent the demand, the insurance company accepted our demand and paid their insurance policy limits.

excerpt of the insurance company’s acceptance of our demand

The case settled for $3,000,000. We are grateful that Ms. Wheeler’s son trusted us to handle this case. He was pleased with the settlement.

*This name and all others in this article have been changed for privacy.