The Georgia Department of Transportation and an allegedly at-fault driver have reached a $1.4 million settlement agreement in a wrongful death case involving a road defect blamed for a fatal car crash in Conyers.
GDOT had been warned about the road defect on Ga. 138, a busy highway thoroughfare, the day before the accident, which killed a woman who was behind the wheel. The warning came from a witness who emailed the agency and said in a sworn affidavit that the pavement was in poor condition for several months prior.
The lawsuit stemmed from a 2019 wreck in which co-defendant Jessica Ferguson, who was driving north on 138 in her 2004 Toyota Forerunner, collided head-on with Casey Cole, who was driving a 2016 Nissan Altima. Ferguson’s two passenger-side wheels plunged off the east side of the road, which had a 7- to 8-inch drop-off from the edge of the pavement to the ground.
When Ferguson tried to get back on the highway, her SUV overcorrected, crossed the center line and hit Cole’s vehicle. Cole was pronounced dead at the scene. The lawsuit was filed in March by Cole’s husband, Scott, and was mediated on Jan. 31 by Joe Murphey of Miles Mediation.
Max Wrongful Death Award
Plaintiffs lawyers Michael Ruppersburg, a shareholder with Blasingame, Burch, Garrard & Ashley’s office in Athens, and Josh Branch, owner of the Law Office of Joshua W. Branch in Athens, were able to get their client $1 million, the maximum wrongful death claim award under Georgia law, in the case.
“I think it was a very good result, given the circumstances,” Ruppersburg said of the funds awarded Scott Cole. “We were able to recover everything we could for the wrongful death claim. Given the facts of the pre-impact pain and suffering evidence, that was a substantial recovery as well. I would like to have thought we could have done better at trial, but that was Mr. Cole’s decision in this case. It was a terrible wreck and it was a preventable wreck.”
The other $400,000 in compensation consisted of $300,000 for the three seconds of pain and suffering Casey Cole allegedly felt prior to impact, and $100,000 from Ferguson’s insurer, the maximum allowed under her insurance policy.
“On the pain and suffering, after having our experts assess things, she had approximately three seconds of preimpact awareness,” Branch said of the evidence from her airbag module. “Was there an awareness? I would have been comfortable saying to a jury that there was. Thankfully and mercifully, she died upon impact, or at least she was unconscious then.”
Both lawyers said they hoped the Georgia Tort Claims Act is changed in the future to at least double the recovery cap to $2 million.
According to a news release from the plaintiffs lawyers, edge-of-pavement drop-offs (EOPDs) are dangerous, because the average driver does not know how to safely reenter the roadway after encountering one. The driver usually overcorrects, trying to get back onto the road and veers over into oncoming traffic.
GDOT considers any EOPD more than 2 inches in depth unsafe, and multiple agency workers testified this one was unsafe. GDOT policy is to repair an EOPD “as soon as possible after discovery,” the release stated.
According to GDOT work orders, its employees worked on this part of 138 at least 12 times in the four months prior to the crash. The agency’s maintenance foreman for that area inspected that highway on a monthly basis seeking out road defects such as this one.
The GDOT assistant district maintenance manager’s job also included inspecting 138 on a regular basis, but that position was vacant when the wreck occurred, and those inspections likely were not conducted.
Ruppersburg said before the lawsuit was filed, he and Branch sent GDOT an open records request for statewide data regarding all wrecks caused by road-shoulder defects. The records demonstrated that, from October 2014 to September 2019, there were 646 crashes in which an EOPD was a contributing factor.
“We have handled several cases like this and are getting ready to file one in the future,” Ruppersburg said of his firm’s experience with EOPD lawsuits, adding he’s litigating another road defect case and plans to file another in the next three to six months.
Branch said this was the first EOPD case he’d tried and that his firm is considering filing another one soon.
‘The Right Thing to Do’
The lawsuit, Howard Cole v. Georgia Department of Transportation & Jessica Ferguson, was filed in Rockdale County Superior Court (Case No. 2021-CV-1421).
GDOT was represented by Susan Levy and Daimon Carter of Levy Pruett Cullen in Decatur. When reached by phone, Levy deferred to Attorney General Chris Carr’s office for comment. A spokeswoman for Carr’s office said it was unable to comment on the lawsuit.
Mark Glidewell, Ferguson’s lawyer and a partner with Brannen Searcy & Smith in Savannah, said he could not comment on the lawsuit yet because he had not yet been authorized by his client to do so.
Ruppersburg thanked GDOT and its attorneys for “acknowledging this was a very serious and preventable wreck and offering to mediate the case very early and working with us to get it resolved.”
“It was the right thing to do,” he added.
Branch said he’s told family and friends to report EOPDs to GDOT and other responsible agencies such as municipalities, including even contacting their supervisors. He added he hopes this case spurs GDOT to improve its policies so wrecks such as this one are better avoided.
“There’s some good people who work at GDOT, but like all people, there are things they should do better,” Branch said. “I hope GDOT does go back and revamp these policies and procedures so they’re more aware of the issue. Scott Cole will never have his wife back. Those girls won’t have their mother back. Hopefully this embarks [GDOT] upon a sea change for them to prevent this type of thing.”
This article was updated at 5:04 p.m. Feb. 25 with corrected information regarding the lawsuit and settlement agreement.