L-R: Michael Walker, Max Thelen, Edward Piasta and Christopher Newbern/photo by John Disney L-R: Michael Walker, Max Thelen, Edward Piasta and Christopher Newbern/photo by John Disney

A Fulton County jury delivered a post-apportionment award of nearly $9.6 million to the son and estate of a man killed when he fell through a missing guardrail at the Civic Center MARTA station, plunging more than 20 feet to his death.

The plaintiffs’ lawyers said MARTA attempted to shift the blame onto the deceased, arguing Carlos Hicks was drinking heavily before the accident, and had a blood alcohol content of 0.311 percent, almost four times the limit for legal impairment.

“We admitted that up front. Our first words were ‘Carlos was drinking, he needed a ride home,’” said Chris Newbern. “Our position is that MARTA holds itself out as a designated driver for people who’ve been drinking. It’s not illegal to be drunk.”

Newbern’s law partner, Ed Piasta, said MARTA turned down a $5 million settlement offer earlier this year.

“They never responded, they never reached out even during trial,” said Piasta. “We didn’t make any offers during trial either, and there was no talk of high-lows.”

The lawyers and their Piasta Newbern Walker partner Michael Walker handled the case with assistance from Darren Summerville and Max Thelen of the Summerville Firm.

MARTA was defended by Thomas “Woody” Sampson II, Jeffrey Tompkins and Gerond Lawrence of Thomas Kennedy Sampson & Tompkins.

Sampson said he made an oral motion for judgment notwithstanding the verdict when it was delivered, which Fulton County Superior Court Judge Wendy Shoob took under advisement. Failing that, he said, “we’re definitely going to appeal.”

According to the lawyers and court filings, Hicks, 42, was on the upper level of the MARTA station around 7 p.m. in February 2013. A metal guardrail was removed and replaced several years earlier as part of a never-completed construction project to build a second Twelve Centennial Park Hotel adjacent to the station. The project was canceled in 2007 when the economy hit the skids.

The metal guardrail was replaced by a wooden one, but a section of it fell off, according to plaintiffs’ filings. That left a 25-inch hole in the guardrail at least seven months before the accident.

The defense portion of the pretrial order said video showed Hicks leaning on an adjacent concrete “parapet” wall next to the hole for several minutes, then turn and step back in an apparent attempt to again lean against the parapet.

“Hicks, however, did not make it,” the defense account said, and “fell through the open hole that he had had been standing next to for at least the preceding seven minutes.”

In addition to having a 0.311 percent BAC, Hicks was carrying an unopened bottle of vodka, the defense said.

Hicks’ son, Pissaro Wright, and sister and estate administrator Christina Hicks sued MARTA in Fulton County Superior Court.

MARTA claimed the developers of the hotel project, Novare Centennial Park and Portal Holdings, were liable for the accident because they removed the metal handrail years earlier and never replaced it. MARTA brought them into the case as nonparty defendants, and they were listed on the verdict form but did not participate at trial, Newbern said.

During a two-week trial, MARTA presented testimony by a toxicology expert concerning the volume and effects of alcohol that would have been present in Hicks’ body, and a lighting expert “who said the area was well-lit, which was disputed,” Newbern said.

The plaintiffs did not call any experts, the lawyers said, but they did introduce testimony from Randy Hanzlick of the Fulton County medical examiner’s office.

“He was [a] hero,” said Piasta. “The MARTA police originally called it [a] suicide. He determined it was an accident.”

In addition to faulting Hicks, the plaintiffs’ lawyers said MARTA argued it was unaware of the missing guardrail because the hotel developers never notified it.

“The problem with that was that MARTA moved a bus stop there three years after the construction ended,” said Newbern.

“Our position was that Novare had not been on-site for five years,” he said. “It was MARTA’s bus station, MARTA’s wall and MARTA’s problem.”

“One issue at trial was that Carlos was unemployed throughout his life,” said Newbern. “He lived with his elderly parents. His father died of leukemia shortly after he died, and he was their caretaker. During my last closing, I communicated that his life had tremendous value.”

“The last thing MARTA did was put in a demonstrative exhibit of how much Carlos drank. They put into evidence a 750 milliliter bottle,” said Piasta. “I grabbed the bottle and said, ‘This is a lot of liquor. That doesn’t mean he had to die. Maybe Carlos needed help, but he needed a ride home first.’”

Newbern said he asked for between $12 million and $20 million for a wrongful death at closing, and $3 million for pain and suffering.

After about a day-and-a-half of deliberations, the jury awarded $11.25 million, but apportioned 10 percent of the liability to Hicks and 5 percent to the contracting companies, leaving MARTA liable for nearly $9.6 million.

Sampson said he spoke with some of the jurors afterward.

“Some of them were a little confused about superior knowledge and what the plaintiffs had to prove to prevail,” he said. “I feel good about our chances on appeal.”

“We enjoyed trying the case in front of Judge Shoob, and the plaintiffs’ lawyers did a great job,” Sampson said. “My hat’s off to them.”

The trial was the first for Newbern, Piasta and Walker since they set up shop together in January, and the trial had to be reset to an earlier date than originally scheduled because Piasta is shipping out with his Army National Guard unit later this month.