A car crash can be one of the most traumatic events most people are likely to experience. It is an unexpected event that can be instantly life-changing for you and your family. There are 10 very important things that you need to do after a wreck in order to protect you, your family, and the compensation relief that you deserve.

1)                     Stay at the scene – The shock and trauma of being in an accident can cause you to not think clearly. However, it is very important that you stay at the scene of the accident and that you do NOT leave the scene. If you do leave the scene of the accident then it could imply guilt as well as result in criminal charges against you. Stay at the scene and wait for the police to arrive.

2)                     Call 911 and report the crash– It is very important that you call 911 and report the accident. Especially if you or the other party are injured. As soon as you can, call 911 and report the accident. If you call 911 first, then you will be able to explain what has happened and the events surrounding the scent better than anyone else can at that time. So call 911 and report the accident.

3)                     Do not admit fault or apologize – DO NOT say “I’m sorry” or apologize at the scene of the accident. Your judgment can be flawed in the emotions of the moment. Fault can be sorted out later. An impulsive statement can be used as an admission of guilt against you. It is very important to make sure that the police officer does not put your apology in their police report as well. So DO NOT apologize or say “I’m Sorry”.

4)                   Limit your conversation about the accident with the other party – After the crash, seek to exchange insurance information but do not get into further conversation. The other party may try to talk with you about what happened and why you did what you did or why they did what they did. It is very important that you do not engage in this type of conversation with the other party. Be polite and exchange information. If the other party tries to talk about what happened, politely refrain from such conversation until the police arrive.

5)                   Get photos and videos of the vehicles and the scene – Everyone these days has a smartphone so it is very important to remember to take pictures and videos of the scene. Try to take pictures and videos of the cars in the accident and the damage to both cars from all angles. Video the surrounding areas such as street intersections and weather conditions. Pictures and video of the surrounding area can be valuable information to your case. If the other driver was in a business vehicle, get clear photos of all writing on it. If it is a large truck get pictures of the truck door and all permit stickers.

6)                     If Injured, don’t move around – After the accident, the most common injury is a neck or back injury. This injury can be magnified or even cause permanent damage if you move around after the accident. If you feel like there is significant damage to your neck, back, or any body part then don’t move or get out of your car. Wait for the ambulance and first responders to arrive and check you out first. You may need to be carried out on a stretcher into the ambulance.

7)                     Go to the hospital if you have any injuries – At the time of the accident it is very important to take a moment and do a self-assessment of how your body is feeling. The adrenaline will be rushing through your body after an accident, so it will be difficult to feel certain pain until the adrenaline leaves your body. Take a minute and assess how you are physically feeling. Neck and back injuries will begin to hurt after the adrenaline is gone, so if there are any injuries, let the ambulance take you to the hospital to be checked out immediately.

8)                     Do not talk to the other party’s insurance company – After the accident, the other party’s insurance company will try to call you and get a statement from you of the events of the accident. They will do this over a recorded line. Other than giving the name of an attorney you have actually hired, do not talk to them or give any statements to them about the crash. The insurance company is not on your side and they are going to try and ask you questions that imply that you are guilty and responsible for the accident. Do Not speak to them.

9)                     Call our team AtlantaInjuryLawyer team at Johnson & Ward – After a motor vehicle crash,  you need advice and a road map on how to handle this traumatic experience. We have helped thousands of clients in your same situation navigate the legal process and battle the insurance companies. His experience will help you get fairly compensated and reimbursed for the injuries that you suffered. Call us at (404)253-7862.

10)                   Let your Attorney be your Advocate to the Insurance Company – The insurance company is not your advocate or your friend. Even your own insurance company does not have your best interest in mind. The insurance company works for the best interest of the insurance company. Their primary goal is to not pay out any money and then their second goal is to pay out the least amount of money possible. Let the AtlantaInjuryLawyer team at Johnson & Ward be your voice.

Ed Stone is a trial attorney specializing in personal injury law, including truck accidents, auto accidents, wrongful death, workers’ compensation, premises liability claims, dangerous or defective products,00 medical malpractice, and related Plaintiff’s tort litigation. He was born in Miami, Florida. He graduated from Kennesaw State University where he received a B.B.A. in Finance and Economics. After a first career in banking, he earned his J.D. degree from Atlanta John Marshall Law School in Atlanta, Georgia.

Member: Mr. Stone holds membership in the State Bar of Georgia and the Georgia Trial Lawyers Association. He is admitted to practice before all Georgia Superior, State, Probate, and Magistrate Courts. He is a member of Kennesaw Lodge No. 33, F & A. M., and a member of Pi Kappa Phi fraternity. Mr. Stone sits on the Board of Directors for the non-profit children’s charity, Lekotek of Georgia, founded in 1983, which has been helping families of all incomes and ethnicities whose children have physical and/or cognitive disabilities.

However, in many cases the claim of negligent hiring is not “merely duplicative” as the company’s  corporate conduct in turning a blind eye to safety that may have been the actual root cause of the tragedy. Negligent hiring of a truck driver  is a separate and distinct theory of liability from negligent entrustment of a truck to the driver.

The Georgia Supreme Court has approved Restatement of Torts 2d, § 213 Principal Negligent or Reckless. See e.g., Munroe v. Universal Health Services, Inc., 277 Ga. 861,862 (1), 596 S.E.2d 604, 405-06 (2004); Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233(2), 378 S.E.2d 857 (1989).

Restatement of Torts 2d, § 213 states:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . .

. . .

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:

(c) in the supervision of the activity . . . .

In  Munroe, supra, the Supreme Court held that “a defendant employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s ‘tendencies’ or propensities that the employee could cause the type of harm sustained by the plaintiff.”

The Court held, “the relevant question is whether [the defendant] knew or in the exercise of ordinary care should have known that … the employee it hired and retained to perform duties …. was unsuitable for that position because he posed a reasonably foreseeable risk of personal harm” to persons like the plaintiff.”  Accord, Coe v. Carroll & Carroll, Inc., 308 Ga.App. 777, 786 (2011); Cooper v. Marten Transport, Ltd., 2012 WL 12358220 (N.D. Ga., decided Feb. 23, 2012); Munroe v. Universal Health Services, Inc., 277 Ga. 861,862 (1), 596 S.E.2d 604, 405-06 (2004); Piney Grove Baptist Church v. Goss, 255 Ga.App. 380(2), 565 S.E.2d 569 (2002); Georgia Electric Co. v. Smith, 108 Ga.App. 851, 854(1), 134 S.E.2d 840 (1964).

The Georgia Supreme Court has repeatedly held that in order that a party may be liable as for negligence, “it is not necessary that he should have contemplated or even be able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” See, e.g.,  Smith v. Finch, 285 Ga. 709, 712, 681 S.E.2d 147 (2009).

We have seen truck crash cases in which truck drivers had driving records or medical conditions, either when hired or that developed over time, that were medically disqualifying to drive a tractor trailer, but employers just turned a blind eye to information that was right in front of their eyes. Some of those hazards could have been remedied if an employer had simply required the employee to go to a sleep specialist.

Thus, it is important to explore the root causes  of a tragedy that started long before the moment in which a truck driver did something that was the immediate cause of a crash. Often the forces were set in motion by the very act of hiring an incompetent truck driver, leading inexorably to disaster on the road.

If you have questions about a serious injury or wrongful death case in Georgia, contact us at 404-253-7862.

 is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

When my father’s generation came home from World War II, many of them carried psychological scars about which they kept quiet. My parents married young, at 21 and 18, the week he returned from combat in 1945. My mother said that dad fought the air war over Europe every night in his sleep for at least a decade. The longer-term ramifications of that played out in many ways throughout his life. As he lay dying over six decades later, he began to tell me for the first time the war experiences that had haunted him most through his life.

Recently, I was with a nurse practitioner and a community mental health counselor during their impromptu discussion of the ramifications of PTSD that they see regularly in dealing with people on the front lines of medicine and mental health. They rattled off numerous examples of what they almost daily among veterans of Vietnam, Iraq and Afghanistan, and survivors of a variety non-combat traumas.

When dad came home from WW2, there was no widely accepted medical name for this condition. The terms “shell shock” and “battle fatigue” were used, but were generally limited to debilitating short term reactions to battle in wartime rather than the chronic reactions that can stretch out over decades.

The term PTSD was not given a standard psychiatric definition until 1980 when the American Psychiatric Association (APA) added PTSD to the third edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-III) classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.

PTSD through history

From cave men attacked by saber tooth tigers to victims of twenty-first century terrorists, humans have always suffered similar psychological outcomes of violence. Over 400 years ago, Shakespeare in “Henry IV” presaged the modern diagnostic criteria for Posttraumatic Stress Disorder (PTSD), describing the post-battle condition of a character:

Tell me, sweet lord, what is ‘t that takes from thee
Thy stomach, pleasure, and thy golden sleep?
Why dost thou bend thine eyes upon the earth,
And start so often when thou sit’st alone?
Why hast thou lost the fresh blood in thy cheeks
And given my treasures and my rights of thee
To thick-eyed musing and curst melancholy?
In thy faint slumbers I by thee have watched,
And heard thee murmur tales of iron wars,
Speak terms of manage to thy bounding steed,
Cry “Courage! To the field!” And thou hast talk’d
Of sallies and retires, of trenches, tents,
Of palisadoes, frontiers, parapets,
Of basilisks, of cannon, culverin,
Of prisoners’ ransom and of soldiers slain,
And all the currents of a heady fight.
Thy spirit within thee hath been so at war
And thus hath so bestirred thee in thy sleep,
That beads of sweat have stood upon thy brow
Like bubbles in a late-disturbèd stream;
And in thy face strange motions have appeared,
Such as we see when men restrain their breath
On some great sudden hest. O, what portents are these?
Some heavy business hath my lord in hand,
And I must know it, else he loves me not.”
—Henry IV, Part 1 (2.3.39-67)

As a lawyer accustomed to dealing with clients who have been seriously injured or lost a loved one killed in a crash with a car or tractor trailer, the tendency is often to focus on the physical injuries – broken bones, back injuries, neck injuries, chronic pain, etc. It is easy to overlook the silent injury of Posttraumatic Stress Disorder (PTSD), or to confuse it with a traumatic brain injury.

What is PTSD?

PTSD is officially recognized as a mental health condition that some people develop after experiencing or witnessing a life-threatening event.  The diagnostic criteria are outlined in the Diagnostic and Statistical Manual of Mental Disorders, currently in the Fifth Edition, known as the DSM-5©.

In 2013, the American Psychiatric Association revised the PTSD diagnostic criteria and included PTSD in a new category Trauma- and Stressor-Related Conditions.  The diagnostic criterion for all of the conditions included in this new classification require exposure to a traumatic or stressful event.

The DSM-5 criteria for PTSD, ICD-9 309.81 or ICD-10 F43.10, for adults, adolescents and children over 6 years old are as follows (the DSM-5 has separate criteria for children 6 years and younger) 2:

Criterion A (one required) – the person was exposed to death or actual serious injury in the following way(s):

• Directly experiencing the traumatic event
• Witnessing the event as it occurred to others
• Learning the traumatic event occurred to a relative or close friend
• Indirect exposure to aversive details of the trauma

Criterion B (one required) – the traumatic event is persistently re-experienced in the following way(s):

• Unwanted upsetting memories
• Nightmares
• Flashbacks
• Emotional distress after exposure to traumatic reminders
• Physical reactivity after exposure to traumatic reminders

Criterion C (one required) – avoidance of trauma-related stimuli after the trauma in the following way(s):

• Trauma-related thoughts or feelings
• Trauma-related reminders

Criterion D (two required) – negative thoughts or feelings that began or worsened after the trauma in the following ways:

• Inability to recall key features of the trauma
• Overly negative thoughts and assumptions about oneself or the world
• Exaggerated blame of self or others for causing the trauma
• Negative affect
• Decreased interest in activities
• Feeling isolated
• Difficulty experiencing positive affect

Criterion E (two required) – trauma-related arousal and reactivity that began or worsened after the trauma in the following ways:

• Irritability or aggression
• Risky or destructive behavior
• Hypervigilance
• Heightened startled reaction
• Difficulty concentrating
• Difficulty sleeping

Criterion F (required) – symptoms last for more than 1 month

Criterion G (required) – symptoms create distress or functional impairment

Criterion H (required) – symptoms are not due to medication, substance abuse or other illness

When can PTSD appear after trauma?

Symptoms of PTSD usually begin within the first three months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. The DSM-5 refers to this as “delayed expression” with the recognition that while some symptoms typically appear immediately, others are often delayed.

Often a person’s reaction to trauma initially meets criteria for Acute Stress Disorder immediately after experiencing a traumatic event, but Acute Stress Disorder is distinguished from PTSD because the symptoms are restricted to a duration of three days to one month. The duration of PTSD symptoms varies with complete recovery within three months occurring in approximately 50% of adults. I had some of this after I was hurt in an explosion. For months, I looked away whenever there was an explosion on TV and was timid about lighting a gas grill. But that reaction passed.

However, some individuals remain symptomatic for more than 12 months and some for more than 50 years. There were times when an elderly neighbor stood in his driveway and openly wept about things he had experienced over sixty years earlier as a Marine on Peleliu and Iwo Jima.

Research indicates that PTSD is more prevalent in females and they experience PTSD for a longer duration on average than do males.   PTSD is associated with high levels of social, occupational and physical disability as well as considerable economic costs and high levels of medical utilization.

What are risk factors for PTSD in some people but not others?

Risk factors may increase a person’s chances of getting post-traumatic stress disorder (PTSD) compared to others who seem mentally unscarred by similar experiences Some of those risk factors include experiences of:

• Long-lasting, never-ending trauma
• Intense, severe trauma
• Situations that put one at greater risk for harm, such as first responders or those in the military
• History of substance, alcohol, or drug abuse
• A loss earlier in childhood, such as abuse or neglect.
• History of other mental health concerns or mental illness
• Few friends or close family members they can rely on for emotional support
• A history of mental illness within their family

How is PTSD involved after motor vehicle collisions?

Most people who are hurt in routine car and truck wrecks do not have PTSD. They may have some short term anxiety but nothing that rises to the level of PTSD. We have all had stressful conditions that we endured, sucked it up, and went on. When I was an insurance defense lawyer, I routinely sliced and diced psychologists who testified for exaggerated claims of PTSD that stretched beyond the diagnostic criteria.

However, there are vehicles crashes in which PTSD is a realistic issue. One study found that about 9% of motor vehicle crash survivors have symptoms of PTSD. Examples can include:

• A crash survivor who witnesses the death and sees the mangled corpse of a parent, spouse or child in the wreckage.
• A guy who was spun out of the line of impact when a tractor trailer ran over stopped traffic, so that he had minor physical injuries while everyone in the vehicle behind and in front of him was killed.
• A person trapped wide awake with the lifeless corpse of a family member until they are discovered, and as first responders labored to extract them.
• People who survived crashes in which they feared the immediate death of themselves or family members.

Any such experience in a car or truck crash is frightening, and it’s very common to experience a number of symptoms associated with PTSD, including:

• Feelings of anxiety and increased heart rate when you’re faced with reminders of the event.
• Hearing a horn honk or brakes screeching may automatically activate a fear response.
• Because of the anxiety that often follows an MVA, it’s natural that you may want to avoid some situations or experience hesitation at times, such as driving on the highway.
• Nervousness when driving or riding as a passenger, startling easily in traffic.
• Being more watchful. You’re more likely to scan your environment for potential sources of threats (for example, people driving too fast).

While we are careful to avoid exaggeration of on minor degrees of PTSD symptoms in auto and truck crash cases, we are alert to the need to have clients evaluated when appropriate for more serious and long-term PTSD symptoms. Whether mild or severe, credible PTSD symptoms can be presented as part of mental pain and suffering in car and truck crash cases.

If you have questions about a serious injury or wrongful death case in Georgia, contact us at 404-253-7862.

 is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

When my children were riding a bus to elementary school every day, like most parents I trusted the school bus driver to deliver them safely to school and back to our neighborhood. Usually that is what happens as school buses are generally considered the safest means of transporting children to and from school.

But occasionally children are seriously injured or killed in the process of being transported by school buses. We have successfully handled some of those cases.

School bus injury cases are not the same as car wreck cases. Lawyers handling those need to know the legal wrinkles unique to school bus personal injury and wrongful death cases in Georgia.

The biggest wrinkle in school bus injury cases is immunity.  Sovereign immunity, or governmental immunity, is the legal doctrine that the state (“sovereign”) is immune from civil suits unless it waives that immunity.  In Georgia, public schools have sovereign immunity from most injury claims. When we get calls about kids injured at school, about 99% of the time I have to tell folks they don’t have a case. I won’t take up space here to outline the extremely narrow exceptions for injuries at school.

Similarly, official immunity protects government officials and employees from liability for discretionary acts but not ministerial acts.

A ministerial act is one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Official immunity protects public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty. While a departmental policy requiring certain actions under certain situations may convert an activity from discretionary to ministerial, the decision whether specific acts are ministerial or discretionary is determined by the facts of the particular case. If the public employee must balance multiple factors and consequences, that makes the act discretionary. Standard v. Hobbs, 263 Ga.App. 873, 589 S.E.2d 634 (2003).

Sovereign immunity and official immunity are not the same thing and often must be analyzed separately. Primas v. City of Milledgeville, 296 Ga. 584, 769 S.E.2d 326 (2015)

Generally, the task of school officials “to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity” are discretionary and thus immune from liability. That includes virtually all issues of supervision of students. See, e.g., Payne v. Twiggs County School Dist., 232 Ga.App. 175501 S.E.2d 550127 Ed. Law Rep. 448 (1998). Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

The main exception to sovereign immunity in Georgia public schools is for injuries while a child is being transported by school bus as the legislature by statute has waived immunity for negligent use of a local government motor vehicle up to a limited dollar amount. Generally, sovereign immunity is waived with regard to injuries or deaths that arise out of negligent use of a covered motor vehicle up to either $500,000 per person and $700,000 per incident, or a higher amount if the local government entity adopts by resolution or ordinance a higher waiver, and either becomes part of an interlocal risk management agency or purchases liability insurance in such higher amount.

A 1991 amendment to Ga. Const. of 1983, Art. I, Sec. II, Par. IX extending sovereign immunity “to the state and all of its departments and agencies” includes county-wide school districts.

This sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” If a student is injured in a collision with another vehicle, then sovereign immunity is waived to the limited extent provided by statute. Coffee County School District v. King, 229 Ga.App. 143, 493 S.E.2d 563 (1997),

At least three Georgia statutes are involved in this issue.

First, O.C.G.A. § 33-24-51 provides for waiver of governmental liability “for a loss arising out of claims for the negligent use of a covered motor vehicle,” but only “to the extent of the amount of insurance so purchased.”

Second, O.C.G.A. § 36-92-2 provides for waiver of “sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle” up to $500,000 for injury or death of any one person in any one occurrence, or up to $700,000 aggregate for two or more people, for incidents after January 1, 2008. Paragraph (b) provides, “The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state.” It also provides for $50,000 limit on property damage claims.

O.C.G.A. § 36-92-2(d) further provides, “(d) The waiver provided by this chapter shall be increased to the extent that: (1) The governing body of the local governmental entity by resolution or ordinance voluntarily adopts a higher waiver; (2) The local government entity becomes a member of an interlocal risk management agency created pursuant to Chapter 85 of this title to the extent that coverage obtained exceeds the amount of the waiver set forth in this Code section; or (3) The local government entity purchases commercial liability insurance in an amount in excess of the waiver set forth in this Code section.”

Third, O.C.G.A. § 20-2-1090, provides, “The various school boards of the counties, cities, and independent school systems employing school buses are authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time resulting from an accident or collision in which such buses are involved. The amount of such insurance shall be within the discretion of the respective boards.”

So what happens if a child is injured or killed in a school bus incident that does not arise out of “negligent use of a covered motor vehicle?” This has come up in cases where a child was left for hours on a parked school bus, or was injured in an assault by another student.

Last year, in a case in which a special-needs middle school student was left locked in a school bus parked in the school’s transportation-system parking lot after school for hours, the Georgia Supreme Court has held that O.C.G.A. § 20-2-1090, which authorizes school systems to purchase insurance on school buses, does not waive sovereign immunity of a school district to the extent of such insurance. Fulton County School District v. Jenkins, 347 Ga. App. 448, 820 S.E.2d 75 (2018). Any such waiver of sovereign immunity must be express rather than implied. While other statutes expressly waive sovereign immunity to limited extent, O.C.G.A. § 20-2-1090 does not.

In scenarios arising out of negligent operation of a school bus, sovereign immunity it is waived up to the amounts set forth in O.C.G.A. § 33-24-51.Tift County School Dist. v. Martinez, 331 Ga.App. 423771 S.E.2d 117 (2015).

There have been numerous appellate court decisions deciding whether immunity was waived in specific circumstances. Here are just a few illustrative cases.

Sovereign Immunity waived:

• Loading at school and the process disembarking from buses until a child reaches the curb. DeKalb County School Dist. v. Allen, 254 Ga.App. 66, 561 S.E.2d 202 (2002).
• Child was injured attempting to cross an adjacent street just moments after disembarking from the school bus as “use” of the school bus encompassed unloading the children and assuring that they reach a place of safety which might include crossing a street while bus was “standing guard” with it lights flashing and all visual signals operating.  Georgia Farm Bureau Mut. Ins. Co. v. Greene,174 Ga.App. 120, 329 S.E.2d 204 (1985)

Sovereign Immunity not waived:

• One student attacked by another student shortly after they exited a school bus, as no collision or accident was involved. Rawls v. Bulloch County School District, 223 Ga.App. 234477 S.E.2d 383 (1996), certiorari denied Feb. 14, 1997. “When a student riding on a school bus suffers an injury that is not proximately caused by an accident or collision in which the bus is involved, such as when the student is injured due to an attack made by a fellow student, OCGA § 20–2–1090 is inapplicable.” Payne v. Twiggs County School Dist., 269 Ga. 361, 362(1), 496 S.E.2d 690 (1998).
• Child struck while waiting at a bus stop. Brock v. Sumter County School Bd., 246 Ga.App. 815, 542 S.E.2d 547 (2000).
• Child is struck by a car when walking home from an unauthorized drop-off site on a busy road when the bus had driven two miles away, as “use” of the bus does not encompass the school district’s route planning. Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).
• Grandparents boards bus without authorization to try to discuss with bus driver child’s suspension due to abusive conduct and falls getting off the bus. Hancock v. Bryan County Bd. of Educ., 240 Ga.App. 622, 522 S.E.2d 661 (1992).

If a school bus driver drops off a child at an unapproved, unsafe location, there may be waiver of immunity but not if the school district’s insurance policy defines “use” of the bus so as to exclude this. Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).

Thus, in evaluating injury cases arising from school bus operations, a lawyer should consider the following steps:

• Investigate the incident.
  • Get the police report.
  • Immediately send open records requests to both the law enforcement agency for any photos, video and witness statements they may have. There may have been a video on the bus.
  • Interview witnesses insofar as possible.
  • Determine what security cameras may have been in the area and obtain their recordings.
  • Since the waiver of sovereign immunity is limited, investigate possible liability of other potential parties.
• Send Open Records requests to school district for:
  • Copy of each insurance policy applicable to the bus.
  • Copy of any interlocal government risk management agreement applicable to the bus.
  • Copy of each resolution, ordinance or rule adopted setting an amount for waiver of sovereign immunity.
  • Copies of all policies and procedures regarding bus operation, maintenance, and job descriptions of personnel involved in operation and maintenance.
• Request insurance coverage information from the insurer under O.C.G.A § 33-3-28, and refer to that statute in addition to the Open Records Act in the letter to the school district.
• Review Federal Motor Vehicle Safety Standards
  • 571.213 Standard No. 213; Child restraint systems.
  • 571.213;49 CFR § FMVSS213Outline Safe, Ride News Publications
  • 571.225 Standard No. 225; Child restraint anchorage systems
  • 571.208 Standard No. 208; Occupant crash protection.
• Obtain and review reference materials on school bus safety.
  • Georgia Department of Education School Bus Safety Materials
  • Georgia Department of Education Transportation Rules
  • Georgia School Bus Driver Training Manual (download)
  • Georgia Commercial Drivers License Manual, Chapter 10
  • School Bus Safety Handbook
  • The School Bus Challenge CD
  • CDL Exam Secrets – Passengers & School Bus Endorsements

If you have questions about a serious injury or wrongful death to a school bus passenger in Georgia, contact us at 404-253-7862.

 is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

This week in north Georgia there was a fatal crash between a tour bus en route to a North Carolina casino and a tractor trailer blocking traffic lanes while waiting to turn left. This happened on Georgia Highway 515 (also known as the Zell Miller Mountain Highway) at the intersection with Whitestone Road in Gilmer County.  The bus driver was killed and 43 passengers suffered a variety of injuries.

The preliminary investigation by the Georgia State Patrol  blamed the truck driver. Troopers reported that the truck driver was making a left turn onto Highway 515 southbound when he paused for traffic, leaving the trailer projecting across and blocking northbound lanes. The northbound bus driver was reportedly unable to avoid crashing into the truck’s trailer. However, first reports are not always conclusive.

This crash highlights issues with both tractor trailer operation and tour bus operation.

It is well known in the trucking industry that making a left turn across a highway with a long vehicle creates problems that automobile drivers do not have. Any properly trained truck driver and company dispatcher planning a driver’s route should know the widely accepted safety principles in trucking is that a tractor trailer driver should never start turning until there is enough time for the rear of the vehicle to clear the intersection without forcing opposing drivers to slow down or swerve. This is supported by a variety of industry safety publications, including each state’s Commercial Driver’s License Manual, the USDOT’s “Commercial Vehicle Preventable Accident Manual, A Guide to Countermeasures,” safety publications of J.J. Keller Company and other driver training manuals.

The left turn across traffic hazard is so well known that some national trucking companies  have manuals for their drivers that prohibit left turns and U-Turns. These manuals make it clear that these are among the most dangerous maneuvers a tractor trailer driver can perform. The root cause analysis of this crash will likely involve failure of the company to train and manage its drivers and dispatchers to avoid left turns across traffic on highways.

Why are left turns in tractor trailers so dangerous? Studies have shown that making such a turn from a stop takes the average truck at least 40 seconds to complete. During that time, the trailer is blocking the travel lanes and presents a hazard to all other traffic. Traffic traveling 60 mph will travel approximately three-fourths  of a mile while the truck is completing this maneuver.

This crash occurred in daylight in a location with limited sight lines, and a left turn across traffic rather than a U-turn. It is even more dangerous at night because the brightness of the truck’s headlights will mask the marker lights on the trailer. The reflective striping on the side of the trailer is invisible until the trailer is close to be at a 90 degree angle across the road. Combine these phenomena with the fact that a car driver sits low enough to see under the trailer and focus on lights that are farther away and you have created an invisible barrier for approaching traffic.

According to news reports, this truck is owned by Polcon Tile & Terrazo out of Charlotte, North Carolina.  The company lists five trucks for private delivery rather than as a motor carrier hauling for others. The Federal Motor Carrier Safety Administration (FMCSA) safety records online show that in January 2015, inspectors issued two unsafe driving violations to Polcon drivers. One was a lane restriction violation in South Carolina, and another for failure to obey a traffic control device in Georgia. More information is probably available through a Freedom of Information Act request to the FMCSA.

Because Polcon operates tractor trailers for its own deliveries rather than as a motor carrier hauling for others, its liability insurance information is not available online.  Since first posting about this crash, I have learned that the company has liability insurance in the amount of $7,000,000.

Over the past 20 years, we have represented numerous injured occupants of tour buses, college buses and vans, etc. Often we have utilized joint prosecution agreements to coordinate efforts of counsel for victims.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence”Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley has earned three national board certifications from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

When I started practicing law in 1977, hardly anyone but TV stations had video cameras, which at the time were heavy, tripod-mounted and extremely expensive. The idea of being able to play a video recording of an event in court would have seemed like science fiction if anyone had been so fanciful as to suggest  it.

But today investigation of any serious injury or wrongful death case involves a hunt for video recordings from a variety of sources. We hardly could not have imagined this in my early days as a prosecutor.

In 1983, the first consumer camcorders began to appear. They were big, shoulder-held devices that recorded on large VHS cassettes. We had one of those to make video of our children when they were small. By the 1990s, compact digital tape technology became the dominant format. Formats continued to evolve until now cheap, compact, solid state video recording devices are incorporated into ubiquitous smart phones. While I seldom use the video recording feature on my iPhone, I discovered in a pinch that I could video record an hour-long doctor’s deposition on my phone.

Now the checklist for investigation of every significant case includes the search for video recordings as well as still photos from a wide variety of sources. Some include:

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  Police dashcam video. We routinely send an open records request for dashcam video from police vehicles. We recently concluded a case in which the Georgia State Patrol dashcam camera recorded a trooper’s questioning of a truck driver through an interpreter. On that video, he admitted that he had been on the phone and did not see the line of stopped vehicles before he ran over them, killing three people. Through phone records we determined that he was on the phone for 25 minutes with someone in South America. In another case, we have video of the defendant driver’s field sobriety test, resistance of arrest and refusal to submit to a blood alcohol test. That’s all golden.
• Police bodycam video. Good police officers love body cameras that

  

  corroborate what they report and save them from false accusations about their conduct. In one case, we obtained bodycam recordings of a truck driver who killed five people admitting before he “lawyered up” that, “I must have fell asleep.”
• Truck and bus cameras. A growing number of trucks and buses have Drivecam or similar video units recording what happens inside a truck cab or bus. Like a store security video camera, it can protect the company from allegations when the driver did nothing wrong. But the evidence can be impressive when it works for the victims of negligence. We have a case in the office now in which video inside a bus in another state clearly demonstrates a driver’s negligence.
• Inside security surveillance video. Video can make or break an injury claim. When a golf cart in an airport terminal mowed down a woman in the concourse, we immediately sent an open records request for surveillance video in the area where it happened.  Two cameras caught from different angles the golf cart speeding through the concourse and crashing into our client without warning. That eliminated all potential defenses on liability, which surely would have been hard fought. On the other hand, when a potential client came to me with a story of how his leg was broken at a “big box” home improvement store, I contacted the chain’s general counsel and suggested that we look at the video together. I went to their office, sat down in the law department office and watched the video of the incident. It was obvious that my potential client’s story was, to put it mildly, inaccurate. It saved me a lot of time and trouble.

• 

  Outside security cameras. Urban areas are increasingly blanketed with surveillance cameras. This was highlighted after the Boston Marathon bombing when the bombers were caught on numerous cameras. When we are hired early enough, we check out the surrounding area for cameras that might have inadvertently recorded anything of interest. Security cameras on stores, shopping centers, service stations, banks, ATM machines, etc. are of potential interest. In one of our cases, a security camera on a nearby store recorded not the crash itself but the last moments leading up to it.
• Public safety surveillance cameras. A higher level of video surveillance is operated by city governments and even the Department of Homeland Security. When a serious accident happens in a critical area of a city or in the national transportation infrastructure, we send an Open Records Act (state) or Freedom of Information Act (federal) for production of video recorded in the minutes surrounding the incident.People often ask if we can retrieve video from DOT traffic monitoring cameras, but they consistently deny that any recordings are retained. Usually we don’t get anything useful from any of the public surveillance systems, but when we do it can be really good stuff.
• Camera phones. Years ago, we would check with firemen who might have carried disposable cameras in their pockets when responding to major crashes. That led to discovery of some extremely dramatic scene photography. Now, in an era when virtually anyone at the scene is likely to have a cell phone that includes both still and video camera capabilities, investigation can include a broad search for individuals who may have recorded clips for themselves. That is a difficult search.

The downside of all this is that jurors may expect to see video in every case, much as TV shows like CSI lead some to expect DNA evidence in every case. Sometimes it is there, sometimes not. But jurors should understand the absence of particular forms of evidence does not preclude finding proof by a preponderance of evidence.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Distracted driving accidents often involve cell phones, texting and other electronic devices. For example, we recently concluded a case in which a truck driver was talking on his cell phone with someone in South America for nearly half an hour before he ran over a line of stopped traffic.

But something as apparently innocuous as eating and drinking is very often a fatal distraction too. We have had several cases in which a truck driver leaned over to pick up a dropped water bottle when he ran over other vehicles, killing or seriously injuring the occupants.

In this recent case in Albequerque, New Mexico, a bus driver was caught on video eating a burrito with both hands when he crashed into another vehicle and caused a chain reaction with other cars.

When my kids were learning to drive, we joked about people who drove while eating a burrito, talking on the cell phone, reading a newspaper and applying makeup. Any one of those is enough to be a fatal distraction.

Any food that is messy, requires more than one hand or can be a problem if dropped can be a fatal distraction for drivers. When I’m on a trip and feel the need to eat on the road, I try to stick with something simple like a banana or chicken nuggets. A burrito or a sloppy burger is just too distracting to eat while driving. If you must eat those, pull over, park and finish eating before driving. If a water bottle or other beverage is dropped on the floor, let it go until you are stopped in a safe place, If passengers want to have a five course meal on the road, that’s up to them, but the driver should minimize distractions from any source, including food and beverages.

The National Highway Traffic Safety Administration has rated the top 10 most dangerous foods and beverages to consume while driving, some of which are more dangerous than texting while driving. They are:

1. Hot coffee.  When hot coffee sloshes on your hand, lap or the front of your clothing, it is dangerously distracting. Rather than drinking it from an open cup or a flimsy paper cup from Starbucks or McDonald’s put it in an insulated and well-sealed commuter mug before you start driving. Not all commuter mugs are created equal. If you have one that dribbles, just trash it.
2. Hot soup.  Some people are tempted to eat or drink soup from one of the microwaveable single serving container. That is pretty obviously a bad idea. If you really need soup while traveling, transfer it to an good commuter mug. Better yet, eat it before you start driving.
3. Tacos. Everything I said about burritos applies equally to tacos. When it spills into your lap, as it almost inevitably will, it will result in dangerously erratic driving.
4. Chili.  You can’t even consume good chili from a commuter mug. Just don’t even think about it.
5. Juicy hamburgers.  When it dribbles on your clothing or the tomato falls in your lap, you will be dangerously distracted. Eat it before you drive. Or as my personal trainer (and son) would advise, don’t eat it at all.
6. Barbeque.  Any BBQ worth eating is dripping with sauce. (I won’t get into the debate between the varieties of BBQ native to various regions of the south.) Getting BBQ sauce all over your clothes and  car seat will surely lead to distracted driving. Don’t think you can outsmart messy BBQ sauce by spreading napkins all over yourself. Eat it before you drive.
7. Fried chicken.  Even if you can eat fried chicken with one hand, this finger-licking good Southern specialty will have you licking your fingers, wiping grease off the steering wheel, and generally getting distracted.
8. Donuts filled with jelly or creamy stuff, or dusted with sugar. You know these are messy to eat. The fillings ooze and drip, the powdered sugar scatters on your clothing, and you get distracted. And as with several of these foods, there are healthier alternatives anyway.
9. Canned or bottled drinks. You may be OK as long as you keep it in a drink holder, don’t dribble and keep your eyes on the road. If you fumble or drop it, let it go even if it messes up your car. As I mentioned above, I have had several cases in which innocent people died because a truck driver leaned over to pick up a dropped water bottle and took his eyes off the road.
10. Messy chocolate.  You may be OK snacking on M&M’s that melt in your mouth, not in your hand. But any chocolate that melts, smears and gets on your hands may be dangerously distracting when you drive.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

With over 2,500 members nationwide, the section includes specialized litigation practice groups on Trucking Litigation, Bus Litigation, Traumatic Brain Injury, Spinal Cord Injury, Motorcycle Litigation, Bicycle Litigation, Resort Torts Litigation and Inadequate Security Litigation.

A primary function of the section is to provide high quality national continuing legal education (CLE) programs. Shigley appointed lawyers to be in charge of developing programs for meetings in Boca Raton (February 2016), New Orleans (April 2016) and Los Angeles (July 2016). The section will also seek to increase its offerings of highly focused webinar programs. Shigley has been a frequent speakers at Georgia and national CLE programs for more than 20 years. He has served as chair of the board of trustees of the Institute for Continuing Legal Education in Georgia and as a trustee of the Institute for Continuing Judicial Education in Georgia.

Shigley also appointed people to be in charge of generating contributions to the existing document depository, the section’s email listserv, newsletter and participation in the AAJ Political Action Committee on a bipartisan basis. He is recruiting state liaisons for each of the 50 states and District of Columbia to assist with these functions as well as a study of inflation adjustments in minimum auto insurance requirements in the states.

Other officers of the section are:

Chair-Elect – Wade F. Suthard (Elizabeth, NJ) Responsible for planning and coordinating continuing legal education programs.  He will become section chair at the July 2016 convention in Los Angeles.

Vice Chair – Kenneth H. Levinson (Chicago, IL) Responsible for promoting and growing the Section’s Document Library and Listserv.

Secretary – Matthew A. Nace (Washington, DC) Responsible for long range planning, updating of bylaws as well as traditional Secretary duties.

Newsletter Editor – Jennifer Leonhardt Ojeda (Atlanta, GA) Responsible for soliciting articles and content for the Section’s quarterly newsletter.

Parliamentarian – Jason Studinski (Plover, WI) Membership Coordinator: Responsible for coordinating membership drives and recruitment efforts. Responsible, with the Section Chair and AAJ staff, for informing all Section members about Section meeting, education programs, and events as well as all other relevant event information. PAC Coordinate state liaisons

Immediate Past Chair – Robert L. Collins (Houston, TX) Liaison with AAJ and Other Sections. (in particular, with the Litigation Group and Section Oversight Committee and the New Lawyers Section).

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Ken Shigley is an Atlanta-based attorney whose practice focuses on serious personal injury and wrongful death cases. He is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy and lead author of Georgia Law of Torts: Trial Practice and Preparation.

There is a new budget proposal pending in the legislature to cut health insurance benefits for school bus drivers in Georgia. I know that state budgets are awfully hard, and that the Governor and his team mean well. No matter what Gov. Deal’s political critics may have said in the campaign, I know the man and know he is a good guy.

The rationale for cutting health insurance for 11,500 school bus drivers and cafeteria workers are part-time employees who work less than 30 hours a week, while other part-time state could not get health insurance benefits. The State Health Benefit Plan currently covers more than 630,000 state employees, teachers, other school personnel, retirees and dependents. The benefits cut could save the state more than $100 million per year. According to the Department of Community Health, the coverage for “non-certificated’’ school workers ran a deficit of $135 million in fiscal 2014, and this cut would cover most of that deficit.

Key legislators have pushed back against this proposal on the ground that these employees are an “essential part of the education delivery system.”

Aside from the issues of budget balancing and equity for other part-time employees, I am concerned about the potential unintended consequences for school bus safety.

School bus drivers work a few hours in the early morning and a few hours in the afternoon. It is difficult to combine that with a second part-time job. While many school bus drivers make as little as $8,000 per year, they drive a bus primarily for the health insurance benefits. According to State Rep. Bill Werkheiser (R-Glennville), “I predict if they pass it, 80 to 90 percent of the drivers in rural Georgia won’t drive.”

So what would happen if these poorly paid bus drivers quit due to loss of the health insurance that is their primary economic justification for driving a bus rather than taking some other minimum wage job? Who would drive school buses to transport Georgia’s children to their schools? What would be the consequences for safety?

Others who are qualified and experienced to drive large vehicles such as school buses might include truck drivers. But very few of them will give up a higher income to drive a bus. Years ago, school systems hired high school students to drive school buses. Hiring inexperienced 16 to 18 year old teenagers to drive school buses was such a great idea that the practice was terminated a long time ago.

In 2010, a trainee bus driver lost control of a bus on a rural road in Carroll County. A student was ejected and killed. In 2013, a collision of two school buses in Newton County resulted in 43 people being transported to a hospital. This month in North Dakota, 2 died and 11 were injured in a crash involving a school bus at a railroad crossing. Today in Texas, 22 kids were on a school bus that crashed at Fort Worth.

We have also seen a number of cases of children injured or killed during loading and unloading of school buses. Even an experienced dump truck or log truck driver would not be experienced in supervising a bus load of children and their boarding and debarking from a bus.

If in a few months we find 2,000 Georgia school buses are driven by inexperienced trainee bus drivers, transporting perhaps 80,000 children to school and back, safety will be affected and bad things will happen.

Politics and public budgets present awfully hard choices. And choices have consequences.

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Ken Shigley is an Atlanta-based, board-certified trial attorney focused on large truck and bus cases. He is a former president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section.

In my truck and bus crash practice in Atlanta, I have worked on some horrible crash cases. One was the Bluffton University baseball team bus crash several years ago. In that Atlanta case a tour bus carrying 33 members of the college baseball team en route to a spring tournament in Florida crashed off an overpass at I-75 and Northside drive in Atlanta. Five students were killed, as well as the bus driver and his wife.  Four students had critical injuries and the others had less serious injuries. I represented ten of the team members.

Today, the news from California includes what appears to be an even a worse bus crash in which a FedEx truck jumped the median barrier and crashed head on into a bus taking high school students from Los Angeles to visit a college in northern California. As both vehicles burned, a massive fire and column of black smoke could be seen from a long distance.

A total of ten people died in this crash on I-5. Eight people on the bus were killed – including five students, three chaperones one of whom was a college recruiter, and the drivers of both the FedEx truck and the bus. According to one report, 36 or 37 people sustained injuries that included burns, broken legs and noses and head injuries of undetermined severity.

It will likely to take a while to determine why the FedEx bus veered across the median. Investigation will undoubtedly include examination of the “black box” data recorder in the FedEx truck, data transmitted from the truck during its operation, the driver’s work hours, fatigue and physical condition, toxicology examination, mechanical inspection of the truck remains, site reconstruction including skid, gouge and yaw marks,  interviews with everyone who was in the area who can be identified, etc. One concern is that sometimes when vehicles are completely destroyed by fire, it becomes difficult if not impossible to read data in a severely burned electronic control module.

This was a trip meant to open doors to a group of low-income and first-generation prospective college students. Three buses, two from Los Angeles and one from Fresno, were en route Thursday evening to Humboldt State University in Arcata near Eureka in northern California when the FedEx truck crossed a median and slammed into one of the buses.

Tommy Chang, the instructional superintendent for the Los Angeles School District said the trip was meant to be a great opportunity to see what California offered to students in terms of higher education.

“Humboldt State University is deeply saddened by a tragic accident…involving a charter bus filled with prospective students,” the school said in a statement. “They were on their way to visit campus for the April 11 Spring Preview event. Our hearts go out to those who have been affected, and we are here to support them, and their families, in any way possible.”

The National Transportation Safety Board sent a special team from Washington to the scene on Interstate 5 near the town of Orland, about 100 miles north of Sacramento. The reason the FedEx truck crossed the median remains under investigation but that investigation could take months. The NTSB will investigate the human, mechanical and environmental issues. First it will seek collect perishable information that can disappear very quickly.

It will be interesting to see if this California crash contributes to evolving safety standards. After the Bluffton University bus crash in Atlanta, that tragedy led to changes in highway signage standards as well as a movement toward requiring seat belts on tour buses.

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Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of catastrophic personal injury and wrongful death.

As more reports have come out, it appears 18 people were injured and at least two are in serious condition.

Intrastate passenger carriers with this size vehicle in Georgia are required to carry bodily injury liability insurance of only $100,000 per person and $500,000 per accident, although interstate passenger carriers are required to have $5,000,000 liability coverage.

News reports indicate the shuttle bus was operated by MTI Limo & Shuttle Services, Inc., an intrastate passenger carrier with five vehicles and 20 drivers. Its liability insurance coverage is not publicly disclosed. It operates from the same address (2581 Sullivan Road, College Park) as MTI Bus Company, Inc., an interstate bus company based in College Park with $5,000,000 liability insurance coverage with Occidental Fire & Casualty.

According to news reports, the shuttle left skid marks 158 feet immediately before the impact. I will leave it to accident reconstruction experts to determine the speed of the bus before it struck the side of the tractor trailer.

Whenever I hear of a tractor trailer attempting a u-turn in the roadway, I suspect a possible violation of O.C.G.A. § 40-6-121, which prohibits a driver from attempting to proceed in the opposite direction where such a turn could not be made in safety and without interfering with other traffic. Violation of that statute is negligence as a matter of law. Motor carriers are required to exercise care in planning routes and to follow state traffic laws.

If the tractor trailer was an interstate motor carrier it is required to have at least $750,000 liability coverage, and is more likely to have at least $1,000,000 liability coverage. Larger companies often have much higher levels of coverage.

In a collision between a 15 passenger van and a tractor trailer resulting in serious injuries or death, one would need to investigate a broad range of safety issues regarding the operation of both vehicles, including speed of the van, improper u-turn by the tractor trailer, etc.

Ken Shigley is a former president of the State Bar of Georgia, which includes all lawyers licensed to practice in Georgia. His own law practice is specialized in representation of plaintiffs in cases of serious personal injury and wrongful death, especially those occurring in commercial truck and bus accidents.

The short answer is that in handling personal injury and wrongful death cases for individuals and families, I do not require any money up front from clients whose cases I accept. I evaluate the merits of a case much like I would try to evaluate a stock before investing in it. If I take the case, I charge a percentage of what I recover for the client and advance the expenses. Both fees and expenses come out of the recovery from the other side. If we lose, I eat the time and expense invested in the case.

Fees in most personal injury cases are generally one-third of the amount of the recovery, with the percentage escalating if the case is tried, if there is an appeal, etc.  While we prepare every case on the assumption that it will go to trial, about 95% of cases that are well screened and well prepared do settle before trial.  We can’t work for free, and this is how I provide my family and save for retirement, but when necessary to make the numbers work out for a client, I do sometimes make courtesy discounts.

Occasionally, particularly in trucking cases, there is an opportunity to force the other side to pay the attorney fees and expenses. If we can do it, that goes directly to the client’s bottom line because I don’t charge the same fee twice.

Expenses in personal injury and wrongful death lawsuits include filing fees, process servers, expert witnesses, court reporters, medical records, depositions with both stenographic and video recording, fees to treating physicians for their depositions, exhibit preparation, travel expense, etc. Knowing that if we lose, I will eat the expense, I am somewhat conservative about spending money. Case expenses on the types of cases injury and death cases I accept generally run from $2,000 to $5,000 for a routine car wreck case with limited insurance coverage up to ten times that amount, or more, for a complex commercial trucking or premises liability case.

Products liability and medical malpractice cases can easily run up expenses well into six figures. Once I was co-counsel in an automotive products liability case in which an associated firm spent $500,000 on expenses. That’s pretty bold. Frankly, I figured that if frugal Ken had been running that show my expenses might have been closer to $100,000.

If a law firm advances case expenses out of pocket, that is treated as a loan and cannot be deducted from income for tax purposes until such time as the case is lost and the “loan” is written off. That can severely constrain the capacity of a firm to aggressively prosecute cases as they come along.

The U.S. Tax Court recently reasserted that case expenses advanced by a contingent-fee law firm on behalf of its clients are “in the nature of loans” rather than tax-deductible expenses for the law firm. (Humphrey, Farrington & McClain, P.C., v. Commissioner of Internal Revenue).  Like many rulings before it, this case upholds Private Letter Ruling 8246013 (6/30/1982, IRC Sec(s). 162) which states that a law firm “…may not deduct as ordinary and necessary business expenses the various litigation costs advanced for a client on a contingent-fee case…”.

Therefore, in order to free up capital and increase capacity to do what needs to be done to develop serious personal injury and wrongful death cases, I maintain a litigation line of credit with Advocate Capital, which funds most of our case expenses. When cases are settled, the expenses are reimbursed to us out of the recovery. I then pay off the portion of the line of credit allocated to that case, and pass along as a case expense the nominal amount of interest incurred on those expenses. The transaction is a straight pass-through with full transparency and no markups.  Because we and Advocate track every expense by case number, that is a very simple bookkeeping exercise.

The impact on my capacity to aggressively develop major cases is huge. If I need to hire a top national expert witness for a wrongful death or catastrophic injury case, I can do it without worrying about the effect on operating capital in office operation or the need to pay for my daughter’s upcoming wedding. If I need to fly around the country to take depositions in a major case, I can just do it without hesitation. Of course, being inherently frugal, I still buy the cheapest web-saver plane tickets rather than flying first class, and stay at an economy motel when traveling for clients rather than a 5 star hotel.

For example, recently I was hired on an interstate tractor trailer wrongful death case at a time when cash flow was slow. Because I had ready access to adequate capital for case expenses without dipping into savings, there was no delay in hiring the best investigators and experts. The trucking company and its insurer had a “rapid response team” at the accident scene almost before the ambulance arrived. But I was able to have my own “rapid response team” on the way almost immediately after the first call from the client’s family attorney.

This makes a world of difference between weakness and strength, between failure and success.

Of course, I am frugal and don’t spend money on cases needlessly. Expenses are scaled to the potential recovery in the case. Having come up the hard way having to do things cheaply, I still resist spending a dime I don’t have to spend. I still know how to hold case expenses under $1,000 when that is what the case needs, using stock drawings out of medical books rather than custom made medical illustrations, snapshots blown up at the drug store and glued to cardboard rather than professional photos professionally mounted, etc. It’s all a matter of what fits the case.

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Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-13), and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board for Legal Specialty Certification. His Atlanta-based trial practice is focused on catastrophic injury and wrongful death cases arising from commercial truck and bus accidents and unsafe conditions on commercial premises.

A motor carrier or broker providing transportation … shall designate an agent in each State in which it operates by name and post office address on whom process issued by a court with subject matter jurisdiction may be served in an action brought against that carrier or broker. 49 U.S.C.A. § 13304(a).

This enables courts to obtain personal jurisdiction over an interstate motor carrier in states where the carrier may or may not do business, but in which it has a registered agent, for incidents occurring in a third state. McKamey, 744 A.2d at 532 n. 14 (citing cases).

By designating an agent in another state pursuant to the Motor Carrier Act, a corporation undertakes a “voluntary, reasoned act,” acknowledging that it may be sued in that state as a result of its interstate commercial enterprise-irrespective of where it may have committed the tort at issue. See Leonard v. USA Petroleum Corp., 829 F.Supp. 882, 886 (S.D.Tex.1993); Chick v. C & F Enterprises, LLC, 938 A.2d 112 (NH 2007).

A wide variety of strategic and tactical factors may come into consideration, including differences in substantive, evidentiary and procedural rules in various states, location of other potential defendants such as brokers and shippers, availability of witnesses and quality of the courts. These may be the possibility of a motion to dismiss or transfer a case based upon the doctrine of forum non conveniens. However, consideration of venue options may be far broader than most lawyers recognize.

Thanks to my friend Morgan Adams in Chattanooga for pointing this out to me.

Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia and secretary of the American Association for Justice Motor Vehicle, Highway and Premises Liability Section. He is a board member of the American Association for Justice Trucking Litigation Group and has been on the faculty of trucking litigation seminars from coast to coast. Mr. Shigley is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the American Board of Legal Specialty Certification (formerly National Board of Trial Advocacy), has an AV Preeminent rating in Martindale-Hubbell Law Directory, is listed as a “Super Lawyer” by Atlanta Magazine and “Legal Elite” by Georgia Trend, and is the lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12).

a. Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight 10,001 pounds or more, whichever is greater; or
b. Is designed or used to transport more than 8 passengers (including the driver) for compensation; or
c. Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
d. Is used in transporting material found by the Secretary of Transportation to be hazardous.
Every state has adopted most portions of the Federal Motor Carrier Safety Regulations for intrastate transportation.

Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia and secretary of the American Association for Justice Motor Vehicle, Highway and Premises Liability Section. He is a board member of the American Association for Justice Trucking Litigation Group and has been on the faculty of trucking litigation seminars from coast to coast. Mr. Shigley is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the American Board of Legal Specialty Certification (formerly National Board of Trial Advocacy), has an AV Preeminent rating in Martindale-Hubbell Law Directory, is listed as a “Super Lawyer” by Atlanta Magazine and “Legal Elite” by Georgia Trend, and is the lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12).

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.

As a direct result of the Bluffton team bus crash, today the United States Senate passed a bill on tour bus safety that would, if enacted into law, require safety belts and stronger seating systems to protect occupants of such buses, improve driver training, and require anti-ejection glazing windows to prevent passengers from being thrown out of the motorcoach.

It remains to be seen what, if anything, will happen in the House of Representatives.

Ken Shigley, President of the State Bar of Georgia, is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. The author of Georgia Law of Torts: Trial Preparation & Practice, Ken has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers.

12. Video recording of defendant depositions.

A party may videotape any deposition upon notice that it will be so recorded. OCGA 9-11-30 (b)(4); FRCP 30 (b)(3). A deposition of a party may be used by any adverse party for any purpose, including substantive evidence, without any foundation that the party is unavailable to testify, including reading or playing video of portions in the case in chief, not merely for impeachment. OCGA § 9-11-32(a); Fed.R.Civ.P. 32(a)(2); Griffin v. Bankston, 295 Ga.App. 387, 391, 671 S.E.2d 873, 877 (2008).  See also,   State Farm Mut. Auto. Ins. Co. v. Lincow, 715 F.Supp.2d 617, (E.D.Pa.,2010); Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., 2003 WL 25948971 (C.D.Cal.,2003); In re McLaren, 136 B.R. 705 (Bkrtcy.N.D.Ohio,1992); Roark v. Rydell, 174 Ohio App.3d 186, 881 N.E.2d 333 (Ohio App. 1 Dist., 2007); Devenyns v. Hartig, 983 P.2d 63 (Colo.App.,1998); State v Metz, 241 A.D.2d 192, 671 N.Y.S.2d 79 (N.Y.A.D. 1 Dept.,1998); Matter of the Adoption of N.A.P., 23 Kan.App.2d 257, 930 P.2d 609 (Kan.App.,1996).

Therefore, in any substantial case give notice of video recording of defendant depositions, and request synchronization of stenographic transcript and video in DVT format that may be easily edited on your computer. Be extremely specific in communicating to the court reporter and videographer the request for synchronized video and transcript. Not less than a month before trial, prepare video clips of adverse parties to play in the case in chief at trial.

11. Propose a stipulation that attorneys issue deposition subpoenas.

While federal law authorizes attorneys as officers of the court to issue subpoenas on standard forms, current Georgia law only allows deposition subpoenas issued and signed by counsel if there has been a stipulation of counsel pursuant to OCGA 9-11-45. Otherwise, subpoenas must be obtained from the Clerk. Propose such a stipulation early in the case in order to avoid a mad scramble to get subpoenas from the clerk for depositions or for trial.

Note that the need for such a stipulation will be eliminated on January 1, 2013, the effective date of the new Evidence Code. The new OCGA 24-13-21(d) will provide that “An attorney who is counsel of record in a proceeding may issue and sign a subpoena obtained by electronic or other means from the clerk of court as an officer of a court for any deposition, hearing, or trial held in conjunction with such proceeding.”

7. Draft jury instructions early.

Judges are understandably most comfortable using pattern jury instructions. Prior to drafting the complaint and discovery, compile all the applicable pattern jury instructions and prepare a preliminary draft of additional charges not covered by the pattern.  Research statutes and case law rather than simply relying solely upon patterns and forms. Then develop pleadings, interrogatories and deposition questions with the probable jury instructions in mind.

6. Investigate the case yourself.

Use Open Records Act requests to obtain all police photos and dashcam video,  and 911 logs and recordings. As soon as practicable, visit the scene of the incident in person and interview the reporting officer. When appropriate meet with the officer at the scene. Go see the vehicles in the junk yard. Get good photographs, though you may need to have someone else take the photos, hold the measuring tape, etc.  Interview witnesses. Consider use of investigators, but don’t rely solely upon them.