Wrongful death claims in Georgia are necessarily emotional. When a family member is killed by someone else’s negligence, grieving survivors often have mixed feelings about filing a wrongful death lawsuit for that death. Certainly no amount of money can bring the departed loved one back. However, a monetary award is the only way that civil law has to recognize the value of the life, compensate for the death, and penalize the party at fault.

Skillful legal advocacy in a wrongful death case can generate funds to care for the family’s real needs and with which the family may appropriately memorialize the life of the departed. Within the requirements of allocation of damages to the spouse and children, survivors can choose to put a monetary award for wrongful death to any good use, whether to support a family deprived of the breadwinner, to educate children, or to fund a charity in the memory of the deceased.

Georgia’s wrongful death law was first enacted before the Civil War. It is one of the most humane wrongful death statutes and body of case law in the United States. Georgia law on wrongful death differs significantly from the wrongful death laws of all neighboring states. In most ways the Georgia law is better, but not always. If the facts provide a choice among different states, we weigh all the options as to where a case should be filed. Under multijurisdictional practice rules, we can handle all matters prior to filing suit in court in all but two states. When necessary to file suit in a state other than Georgia, we associate local counsel and obtain admission to practice pro hac vice in the other state.

In Georgia there are two separate claims that can be made for a death.

“Wrongful death” claim for full value of the life.

First is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. It defines the “full value of the life”   of the person who died to include both economic and intangible aspects. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case, but rather the “full value of the life” is determined by the enlightened conscience of an impartial jury. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.

The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.

In determining the intangible aspect of “full value of the life”  fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

“Survival action” for the estate of the deceased.

Second is what courts call a “survival action” because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering  before death plus the medical and funeral expense. Separate from the wrongful death claim on behalf of designated beneficiaries, the administrator or executor of the decedent’s estate has a claim for the decedent’s medical and funeral expenses, and for conscious pain and suffering before death.

Punitive damages may be awarded in connection with such a survival action on behalf of the estate but not for the wrongful death claim. Experienced legal counsel can weigh the factors in deciding whether to include a punitive damages claim.

Where the decedent died almost immediately after impact but could see what was about to happen, a claim for the mental pain of recognizing impending death may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

The decedent’s family members may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely appropriate in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Effect of liens.

Medical liens are often a factor in deciding what claims to include in a lawsuit. Liens for medical bills and other debts of the decedent apply to an estate’s claim but not to the wrongful death claim of survivors designated by statute. If there is limited insurance coverage and medical liens, survivors may decide to pursue only the wrongful death claim which is not subject to such liens, or to allocate all but a token amount of a settlement to the wrongful death claim. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims.

Valuation.

Because valuation of a wrongful death claim is affected by many factors, including disputed issues of liability, contributory negligence, comparative negligence, assumption of risk, proximate causation and insurance coverage considerations, it is important not to confuse the value of a case with the true value of the departed loved one’s life. We have handled wrongful death cases in which the recovery was $8,000,000 and others in which the recovery was $250,000 or less, all dependent upon the interplay of facts, insurance, and legal issues.

Who has the right to sue for wrongful death?

We often receive inquiries from family members whose rights to recover for wrongful death of a deceased family member are severed by operation of law. Sometimes we can work around these challenges, but sometimes not. It is important to get all close relatives of the deceased on the same page, but if the family is splintered and dysfunctional that can be virtually impossible.

A wrongful death claim in Georgia belongs to survivors who are identified by statute:

– A surviving spouse has the right to sue for wrongful death in Georgia, but must share the recovery equally with surviving children of the decedent. Where the surviving spouse is required to share a wrongful death recovery with the decedent’s minor child, the child’s share up to $15,000 may be held by the child’s natural guardian without posting a bond. If a minor child’s share of the recovery is $15,000 or more, a guardian of the child’s property must be qualified in probate court, and a bond posted. The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after attaining age 18, with the cash held by the child’s natural guardian remaining less than $15,000.

– If there is no surviving spouse, the right goes to surviving children. If the surviving spouse is missing, a court may permit the children to pursue the death claim alone.

– If there is neither a spouse nor child surviving, then the decedent’s parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors. There have been cases of an uninvolved absentee father being limited to as little as one half of one percent of the total recovery for the wrongful death of a child.

– In the absence of a surviving spouse, child or parent, the administrator of the decedent’s estate can sue on behalf of the next of kin. Even if the next of kin is a minor, e.g., a sibling, an anomaly in current Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than tolling that time limit due to the child’s age.

Call us today at our Atlanta office 404-253-7862 or submit your inquiry online, and find out if we can help.

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

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area 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, and 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 2008-2020, 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 time permits, he enjoys travel, backpacking and scuba diving.

Much of our Atlanta-based litigation law practice is based upon referrals from other attorneys around Georgia and North America for catastrophic injury and wrongful death cases in Georgia. Most of these are not simple, slam-dunk cases. Often we have to contend with a rat’s nest of convoluted, multi-layered liability defenses. Among those is often the “independent contractor” defense. The company that is the prime mover in an activity may cloak itself behind an “independent contractor” shell game, capturing most of the profits while trying to outsource all the risks of harm to others.

Here is a paper I presented on overcoming the independent contractor defense at a national continuing legal education program in New Orleans in 2012. While I haven’t updated it lately, covered all the nuances or included all the Georgia case citations, it does outline major issues in seeking to get through this particular maze.

Effective representation of a seriously injured person requires that counsel reach the pockets of a responsible entity with sufficient insurance coverage or assets to pay a judgment. That often requires reaching behind a screen of independent contractor business relationships erected to evade financial responsibility. The general rule is that a defendant is not liable for the negligence of an independent contractor, but there are many exceptions.  While not comprehensive, this paper seeks to outline major theories for overcoming the independent contractor defense.

Interstate Motor Carriers

Prior to 1956, interstate motor carriers commonly sought to evade financial responsibility by hiding behind “independent contractor” arrangements. In 1953, while addressing carriers’ evasion of  accountability similar to that engaged in by the ATF in this case, the United States Supreme Court described such practices as “evils that had grown up” in the industry, and that the ICC need not “sit idly by and wink at practices that lead to violations of its provisions.” American Trucking Ass’ns v. United States, 344 U.S. 298, 301, 311 (1953).  Those “evils” were summarized in Rediehs Express, Inc. v. Maple, 491 N.E.2d 1006 (Ind. Ct. App. 1986):

The history of the regulations of motor carriers reveals that after the commencement of regulation in 1935, . . .  a substantial number of carriers . . . began to use equipment owned and driven by truckers who had no such ICC operating authority. This use was accomplished by a variety of leases, trip leases, and by other arrangements under which owner-operator truckers carried on the operations of the carriers with operating authority.  In contracting with such persons the carriers took care to constitute the lessors as independent contractors which enabled them to avoid the commission’s safety, financial, and insurance regulations that had been prescribed for equipment and drivers in order to protect the public. Many of the owner-operators without authority were itinerant truckers known as “gypsies,” fly-by-night truckers with poor, unsafe equipment who had little financial ability. They may or may not have had adequate insurance. The hard core of the problem was the trip lease and its attendant evils which permitted an indifferent carrier to evade its safety and financial responsibility. . . . The practice of leasing made it difficult in accident cases to fix responsibility, and certified carriers could thus escape the consequences of the regulations and responsibility for accidents by employing irresponsible persons as independent contractors who were not financially accountable and who had no insurance or were under-insured.

“The use of non-owned vehicles led to public confusion as to who was financially responsible for accidents caused by those vehicles.” Graham v. Malone Freight Lines, Inc., 948 F.Supp. 1124, n.3 (D. Mass. 1996).   Thus, interstate motor carriers often “were able to escape liability for virtually all motor vehicle accidents occurring in the motor carrier’s business.”  Cincinnati v. Haack, 708 N.E.2d 214 (Ohio Ct. App. 1997). In such cases, it was “clear that the scheme as a whole is a mere subterfuge, an unpermitted evasion, not a real avoidance of the provisions of the law.”  Georgia Truck System, Inc. v. Interstate Commerce Commission, 123 F.2d 210 (5^th Cir. 1941), as it was “the motor carrier who has put the entire trip in motion,”American Transit Lines v. Smith, 246 F.2d 86, 87 (6^th Cir. 1957).

Since 1956, federal law has treated independent contractors as statutory employees of a motor carrier in the interstate motor carrier context.  The 1956 amendment to the Interstate Common Carrier Act was intended to require a motor carrier to be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants.  Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984); Morris v. JTM Materials, supra. “These are basic requirements that are inherent in the relation of the for-hire carrier to the public. When they are lacking, the chaotic conditions that preceded enactment of the Motor Carrier Act, 1935 inevitably ensue.” Cox v. Bond Transp., Inc., 249 A.2d 579 (N.J. 1969).  The purpose is “to protect persons who are injured in highway accidents, by increasing the likelihood that a substantial entity will be available to respond to any judgment rendered.”  Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237 (Mo. 1983).  This eliminates “the defense of independent contractor by making the owner/operator of the equipment the ‘statutory employee’ of the carrier.”  Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984).

The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 390.5, defines the term“employee” as,

any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.  Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.

The Regulatory Guidance to 49 C.F.R. § 390.5 , at Question 17, explains:

The term “employee,” as defined in § 390.5, specifically includes an independent contractor employed by a motor carrier.  The existence of operating authority has no bearing upon the issue.  The motor carrier is, therefore, responsible for compliance with the FMCSRs by its driver employees, including those who are owner-operators.

62 Fed. Reg. 16,407 (April 4, 1997). 49 C.F.R. Chapter III: Regulatory Guidance for the Federal Motor Carrier Safety Regulations, Interpretation to § 390.5, question 17 (1997)(emphasis added).  See also 49 C.F.R. § 390.5 (2002).

The definition of “motor carrier” includes “a motor carrier’s agent,” “employee” includes “an independent contractor while in the course of operating a commercial motor vehicle.” 49  C.F.R.§ 390.5, and “lease” includes a “contract or arrangement in which the owner grants the use of equipment, with or without driver . . . .” 49  C.F.R.§ 376.2. The alternative and disjunctive reference to “contract or arrangement” must have some significance other than mere redundancy. Moreover, “[e]very motor carrier, its officers, agents . . .  shall be instructed in and comply with the rules . . . .” 49  C.F.R. § 392.1.

These Regulations were intended to safeguard the public by preventing motor carriers from circumventing applicable regulations by leasing the equipment and services of independent contractors exempt from federal regulation. The definition of “lease” as “contract or arrangement” extends to any arrangement by which a carrier allows another to haul its freight for compensation. Any other construction would defeat the Congressional policy of requiring financially responsible interstate transportation. Hartford Ins. Co. v. Occidental Fire & Cas. Co., 908 F.2d 235 (7^th Cir. 1990); Transamerica Ins. Co. v. Maryland Cas. Ins. Co., 166 Ariz. 219, 801 P.2d 454 (1990).

Restatent of Torts 2^nd – Liability Of An Employer Of An Independent Contractor

The Restatement includes 15 exceptions to the general rule that an employer is not responsible for the negligence of an independent contractor.  These exceptions are sometimes referred to as non-delegable duties. This paper is not intended as a comprehensive analysis of court decisions applying, approving, rejecting or distinguishing these Restatement provisions.

Contractor’s Conduct In Obedience To Employer’s Directions

Restatement (Second) of Torts  § 410 provides:

The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.

 Comment b states that this section deals only with the “liability of an employer who does not intend that the contractor shall cause physical harm to any other person, but who either employs a contractor to do work which, no matter how carefully done, involves an unreasonable risk of physical harm to others to whom he owes a duty to exercise care, or who employs a contractor to do work which could be safely done but for the fact that he directs the contractor to do it in a manner involving such risk. The liability is based upon the fact that the employer has been negligent in directing his contractor to do work which is dangerous in itself or in the manner in which it is done. Therefore, the employer is subject to liability, under the rule stated in this Section, for only such physical harm as is caused by the dangerous character of the work or the dangerous manner in which it is directed to be done. He is not subject to liability for any harm caused by some improper method which the contractor, without any direction of his employer, adopts in doing the work.”

Comment c clarifies that “the orders and directions are not negligently given if the employer neither knows nor should know that the work involves such risk even though the contractor discovers during the progress of the work that such risks will be involved in following the orders and directions.”

Comment d explains that “this Section is most usually applicable where construction or repair work is entrusted to an independent contractor under plans and specifications provided by the employer, which prescribe the result to be attained and the material to be used in the work and the manner in which it is to be used. It is, however, equally applicable wherever an employer otherwise directs his independent contractor to do work which, in itself or as ordered to be done, is unreasonably dangerous to others.”

One of the illustrations in the comments is as follows: “A hires a taxicab, tells the driver, B, that he has only five minutes to catch his train, directs B to ignore traffic signals, and offers him a reward of five dollars if he will get to the station in time for the train. While B is driving the taxicab at an excessive rate of speed, it collides with the car of C, causing harm to C. A is subject to liability to C.” It would seem this should be applicable to a shipper, freight broker or logistics company who knowingly establishes positive or negative incentives for a trucker or trucking company to ignore hours of service and other safety regulations,

Comment h provides: “The act of the contractor which subjects the employer to liability under the rule stated in this Section is usually negligence on the part of the contractor. But this is not necessarily true. It may happen that the employer knows or should know of circumstances of which the contractor is excusably ignorant, and which make the work or the manner in which it is directed to be done unreasonably dangerous. In such a case, the contractor would not be subject to liability since he, as a reasonable man, would not realize the risk involved in his conduct. On the other hand, the employer, as a reasonable man, should realize the danger and is negligent in directing the work to be done.”

In Posner v. Paul’s Trucking Service, Inc., 380 F.2d 757 (1^st Cir.,1967), a freight broker required delivery by an independent contractor on a schedule that could not be made in compliance with hours of service rules, thus creating a jury question of the broker’s liability in negligently giving those instructions. Restatement § 410 has been seldom followed in Southern states but has been applied in at least a couple of Tennessee cases. See Givens v. Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 394 (Tenn., 2002)(Insurer and insured could be held vicariously liable for insurance defense lawyer’s abuse of process directed, commanded, or knowingly authorized by insurer or insured), and Waggoner Motors, Inc. v. Waverly Church of Christ, 159 S.W.3d 42, 53 (Tenn.Ct.App.,2004)(Where a church acting as its own general contractor retained and exercised control over independent contractor’s work, knew or had reason to know of the unreasonable risks posed by overspray, and ordered contractor to proceed despite his warnings of potential overspray damage, it was liable for the negligence of the subcontractor).

Negligence In Selection Of Contractor

Restatement (Second) of Torts  § 411 provides:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or

(b) to perform any duty which the employer owes to third persons.

Safety rather than financial responsibility is the focus of this section, so merely hiring an independent contractor that is not financially responsible is not enough

Failure To Inspect Work Of Contractor After Completion

Restatement (Second) of Torts  § 412 provides:

 One who is under a duty to exercise reasonable care to maintain land or chattels in such condition as not to involve unreasonable risk of bodily harm to others and who entrusts the work of repair and maintenance to an independent contractor, is subject to liability for bodily harm caused to them by his failure to exercise such care as the circumstances may reasonably require him to exercise to ascertain whether the land or chattel is in reasonably safe condition after the contractor’s work is completed.

 Comment c enumerates factors considered under this section as follows: “(1) the danger involved in the condition of the structure or chattel if the work is entrusted to the contractor is not carefully and skillfully done; (2) the character of the work—whether it is of the kind which a competent contractor is so likely to do properly that it is reasonable to rely entirely or to a certain extent upon his competence as a sufficient assurance that the work has been safely done; (3) the ability which the employer has or should have to appreciate the proper or improper character of the work done for him by the contractor; (4) the ease or difficulty of ascertaining the actual character of the completed work; and (5) the existence of a relation between the contractor’s employer and those injured by the careless or incompetent work of the contractor which entitles them to expect that the employer will personally exercise care for their safety.”

Comment e states that “[t]he rule stated in this Section subjects the employer of an independent contractor to liability only if, as a result of his failure to exercise such care as the circumstances require in inspecting the completed work done by his contractor, he fails to discover its bad condition and as a result bodily harm is caused to someone to whom he owes a duty of maintaining his land or chattels in reasonably safe condition.”

The extent of the employer’s knowledge and experience in the field of work to be done is to be taken into account.

Duty To Provide For Taking Of Precautions Against Dangers Involved In Work Entrusted To Contractor

Restatement (Second) of Torts  § 413 states:

One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer

(a) fails to provide in the contract that the contractor shall take such precautions, or

(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.

 This section is not concerned with routine precautions such as driving at a safe speed with good brakes. Rather, it deals with “peculiar risks” such as demolition of buildings, excavations, etc.

Negligence In Exercising Control Retained By Employer

Restatement (Second) of Torts  § 414 states:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

This requires more than a general right to determine objectives. There must be some retention of control of operative details, such as when a principal has a foreman on site to supervise work of contractors.

Duty Of Possessor Of Land To Prevent Activities And Conditions Dangerous To Those Outside Of Land

 Restatement (Second) of Torts § 414A provides:

A possessor of land who has employed or permitted an independent contractor to do work on the land, and knows or has reason to know that the activities of the contractor or conditions created by him involve an unreasonable risk of physical harm to those outside of the land, is subject to liability to them for such harm if he fails to exercise reasonable care to protect them against it.

 This does not create a duty to inspect, or any reason not to assume that an apparently contractor will not perform work properly. However, when the principal “knows or has reason to know that the contractor is engaging or is about to engage in an activity, or that he has created or is about to create conditions, which will involve such an unreasonable risk to others outside of the land, it is his duty to interfere, and to exercise reasonable care to prevent physical harm to such persons. . . ”

Duty To Supervise Equipment And Methods Of Contractors Or Concessionaires On Land Held Open To Public

Restatement (Second) of Torts  § 415 states:

A possessor of land who holds it open to the public for any purpose is subject to liability to members of the public entering for that purpose for physical harm caused to them by his failure to exercise reasonable care to protect them against unreasonably dangerous activities of, or unreasonably dangerous conditions created by, an independent contractor or concessionaire employed or permitted to do work or carry on an activity on the land.

 This is “based upon the failure of the possessor of the land in question to exercise reasonable care to supervise the equipment or methods of his contractor or concessionaire who carries on an activity which endangers the public attracted to the possessor’s land. In order that the liability shall exist, it is, therefore, necessary, not only that the contractor shall be negligent, but also that the possessor shall have a reasonable opportunity to ascertain the improper equipment or method of his contractor and to secure the substitution of safe equipment and methods.”  Comment c.

Harm Caused By Negligence Of A Carefully Selected Independent Contractor

Restatement (Second) of Torts § 416 states:

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

“[T]he employer remains liable for injuries resulting from dangers which he should contemplate at the time that he enters into the contract, and cannot shift to the contractor the responsibility for such dangers, or for taking precautions against them. . . . the fact that the contract contains express stipulations for the taking of adequate precautions and that the contractor agrees to assume all liability for harm caused by his failure to do so, does not relieve his employer from the liability stated in this Section. . . . It is sufficient that it is likely to involve a peculiar risk of physical harm unless special precautions are taken, even though the risk is not abnormally great. A “peculiar risk” is a risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions.” For example,” if the principal employs an independent contractor to operate a truck this does not apply to speed, maintenance of brakes, etc., but “if the contractor is employed to transport giant logs weighing several tons over the highway, the employer will be subject to liability for the contractor’s failure to take special precautions to anchor them on his trucks. . . . It is sufficient that it is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of doing the work, or the particular method which the employer knows that the contractor will adopt.”  Comments a, c and d.  Cross reference with Restatement §427, infra.

Work Done In Public Place

Restatement (Second) of Torts 417 states:

One who employs an independent contractor to do work in a public place which unless carefully done involves a risk of making the physical condition of the place dangerous for the use of members of the public, is subject to liability for physical harm caused to members of the public by a negligent act or omission of the contractor which makes the physical condition of the place dangerous for their use.

It is not necessary for work be done under or require a franchise, license or permit, or that such a franchise, permit, or license. It is enough that the work, unless carefully done, will involve making the physical condition of the public place dangerous for the use of the public. The words “public place” denote any place includes public highways, parks and public buildings, etc.

Maintenance Of Public Highways And Other Public Places

 Restatement (Second) of Torts § 418 provides:

(1) One who is under a duty to construct or maintain a highway in reasonably safe condition for the use of the public, and who entrusts its construction, maintenance, or repair to an independent contractor, is subject to the same liability for physical harm to persons using the highway while it is held open for travel during such work, caused by the negligent failure of the contractor to make it reasonably safe for travel, as though the employer had retained the work in his own hands.

(2) The statement in Subsection (1) applies to any place which is maintained by a government for the use of the public, if the government is under the same duty to maintain it in reasonably safe condition as it owes to the public in respect to the condition of its highways.

Insofar as this section is directed to liability of governmental entities, its application is in many localities limited by statutory limitations on governmental liability. However, it may also apply to a contractor who undertakes to repair, construct, or maintain a highway, and entrusts the work to a subcontractor;

Repairs Which Lessor Is Under A Duty To His Lessee To Make

 Restatement (Second) of Torts § 419 provides:

 A lessor of land who employs an independent contractor to perform a duty which the lessor owes to his lessee to maintain the leased land in reasonably safe condition, is subject to liability to the lessee, and to third persons upon the land with the consent of the lessee, for physical harm caused by the contractor’s failure to exercise reasonable care to make the land reasonably safe.

 This rule “applies only where a legislative enactment imposes the duty of repair or where the lessor by a covenant in the lease or otherwise has assumed a contractual duty to make repairs.”  Comment a.

Repairs Gratuitously Undertaken By Lessor

 Restatement (Second) of Torts § 420 provides:

 A lessor of land who employs an independent contractor to make repairs which the lessor is under no duty to make, is subject to the same liability to the lessee, and to others upon the land with the consent of the lessee, for physical harm caused by the contractor’s negligence in making or purporting to make the repairs as though the contractor’s conduct were that of the lessor.

Maintenance Of Structures On Land Retained In Lessor’s Possession Necessary To Tenant’s Enjoyment Of Leased Land

Restatement (Second) of Torts § 421 provides:

 A possessor of land who, having leased a part of the land, is under a duty to maintain in reasonably safe condition the part retained by him, and who entrusts the repair of such part to an independent contractor, is subject to the same liability to the lessee, and to others upon the retained part of the land with the consent of the lessee, for physical harm caused by the negligence of the contractor in failing to maintain such part of the land in reasonably safe condition, as though the lessor had himself retained the making of the repairs in his own hands.

 Work On Buildings And Other Structures On Land

Restatement (Second) of Torts § 422 states:

A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for physical harm caused to them by the unsafe condition of the structure

(a) while the possessor has retained possession of the land during the progress of the work, or

(b) after he has resumed possession of the land upon its completion.

This applies “only to injuries occurring while the possessor has retained possession of the premises during the progress of the work, or after he has resumed possession of the land upon the completion of the work. The rule stated in this Section has no application to injuries occurring while the land is turned over to the contractor and he is in exclusive possession of it. Thus where the employer moves out of his building and surrenders it to the contractor while it is undergoing construction, demolition, or repair, there is no liability under the rule here stated.” Comment c.

Work Withdrawing Lateral Support

Restatement (Second) of Torts § 422A states:

One who employs an independent contractor to do work which the employer knows or should know to be likely to withdraw lateral support from the land of another is subject to the same liability for the contractor’s withdrawal of such support as if the employer had retained the work in his own hands.

“[O]ne who employs an independent contractor to do work involving excavation, or other work of a kind which the employer knows or should know to be likely to result in the withdrawal of lateral support from the land of another, is subject to the same liability for a withdrawal of such support by the contractor as if he had retained the work in his own hands.” Comment b.

Making Or Repair Of Instrumentalities Used In Highly Dangerous Activities

Restatement (Second) of Torts § 423 provides:

One who carries on an activity which threatens a grave risk of serious bodily harm or death unless the instrumentalities used are carefully constructed and maintained, and who employs an independent contractor to construct or maintain such instrumentalities, is subject to the same liability for physical harm caused by the negligence of the contractor in constructing or maintaining such instrumentalities as though the employer had himself done the work of construction or maintenance.

This has been applied to high voltage electric lines and appliances, brakes on vehicles, explosives, radioactive materials, etc.

Precautions Required By Statute Or Regulation

  Restatement (Second) of Torts § 424 provides:

One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.

This has been applied to support a nondelegable duty to comply with a variety of building and safety codes.

Repair Of Chattel Supplied Or Land Held Open To Public As Place Of Business

Restatement (Second) of Torts § 425 provides:

One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business, or a chattel which he supplies for others to use for his business purposes or which he leases for immediate use, is subject to the same liability for physical harm caused by the contractor’s negligent failure to maintain the land or chattel in reasonably safe condition, as though he had retained its maintenance in his own hands.

This has been applied to elevators (Gaffney v. EQK Realty Investors, 213 Ga.App. 653, 445 S.E.2d 771 (1994)), escalators, hotel water heaters, security systems, premises safety and a wide variety of other context.

Negligence Collateral To Risk Of Doing The Work

 Restatement (Second) of Torts § 426 provides:

Except as stated in §§ 428 and 429, an employer of an independent contractor, unless he is himself negligent, is not liable for physical harm caused by any negligence of the contractor if

(a) the contractor’s negligence consists solely in the improper manner in which he does the work, and

(b) it creates a risk of such harm which is not inherent in or normal to the work, and

(c) the employer had no reason to contemplate the contractor’s negligence when the contract was made.

This “collateral negligence” or “casual negligence” in the operative detail of the work, as distinguished from the general plan or method followed or the result to be accomplished. It relates to negligence which is unusual or abnormal, or foreign to the normal or contemplated risks of doing the work, as distinguished from negligence which creates only the normal or contemplated risk. Comment a.

Negligence As To Danger Inherent In The Work

 Restatement (Second) of Torts § 427 states:

One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.

This is closely related to Restatement §16. However, It is not, necessary to the employer’s liability that the work be of a kind which cannot be done without a risk of harm to others, or that it be of a kind which involves a high degree of risk of such harm, or that the risk be one of very serious harm, such as death or serious bodily injury. It is not necessary that the work call for any special skill or care in doing it. It is sufficient that work of any kind involves a risk, recognizable in advance, of physical harm to others which is inherent in the work itself, or normally to be expected in the ordinary course of the usual or prescribed way of doing it, or that the employer has special reason to contemplate such a risk under the particular circumstances under which the work is to be done. Comments a and b.

Work Involving Abnormally Dangerous Activity

 Restatement (Second) of Torts § 427A provides:

One who employs an independent contractor to do work which the employer knows or has reason to know to involve an abnormally dangerous activity, is subject to liability to the same extent as the contractor for physical harm to others caused by the activity.

This has been applied in a wide variety of cases involving premises security, explosions, structure collapses, electrocution, toxins, etc.

Work Likely To Involve Trespass Or Nuisance

 Restatement (Second) of Torts § 427B provides:

One who employs an independent contractor to do work which the employer knows or has reason to know to be likely to involve a trespass upon the land of another or the creation of a public or a private nuisance, is subject to liability for harm resulting to others from such trespass or nuisance.

This provision has been invoked in a variety of circumstances, especially in cases involving flooding, pollutants or fire spreading to another’s property. 

Public Franchise / Unreasonable Risk of Harm

Restatement (Second) of Torts § 428 states:

An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.

Prior to adoption of the statutory employer rules in the interstate motor carrier context, this Restatement rule was used to overcome the independent contractor defense. See, e.g., Black v. Montgomery Trucking Co., Inc., 129 Ga.App. 36,(followed Restatement rule), reversed on other grounds without mention of either Restatement rule or federal statutes or regulations, 231 Ga. 211 (1973)(compare Dove v. National Freight, Inc., 138 Ga.App. 114 (1976)); Venuto v. Robinson, 118 F.2d 679 (3rd Cir., 1941)( Restatement 428 applied to hold interstate motor carrier liable for negligence of independent contractor driver); Hodges v. Johnson, 52 F.Supp. 488 (D.C.VA. 1943); War Emergency Co‑op. Ass’n v. Widenhouse, 169 F.2d 403 (4th Cir. 1948); Lehman v. Robertson Truck‑A‑Way, 122 Cal.App.2d 82, 264 P.2d 653 (Cal.App. 3 Dist. 1953); Louis v. Youngren, 12 Ill.App.2d 198, 138 N.E.2d 696 (Ill.App. 1 Dist., 1956); Eli v. Murphy, 39 Cal.2d 598, 248 P.2d 756 (Cal, 1952)(nondelegable duty of motor carrier to public).

However, some jurisdictions have declined to classify trucking as an unreasonably dangerous activity giving rise to a nondelegable duty under this statement of the Restatement, reasoning that “[t]he operation of any motor vehicle may be said to involve some risk to others but the use of [this independent contractor’s] equipment involved no more risk than that of any other.” Gaskill v. Calaveras Cement Co. 102 Cal.App.2d 120, 226 P.2d 633 (1951).   Lebrun v. Stop & Shop Supermarket Co., 67 Mass.App.Ct. 1102, 851 N.E.2d 478 (Table)(Mass.App.Ct.,2006).See also, Brown v. Truck Connections Intern., Inc., 526 F.Supp.2d 920 (E.D.Ark.,2007); Walker v. Wittenberg, Delony & Davidson, Inc., 241 Ark. 525, 531, 242 Ark. 97, 412 S.W.2d 621, 625 (1967).

There are also cases holding this inapplicable to a shipper which does not have a public franchise. See, e.g., Wilson v. IESI N.Y. Corp., 444 F.Supp.2d 298 (M.D.Pa.,2006).

Exempt commodity loads. In Serna v. Pettey Leach Trucking, Inc., 110 Cal.App.4th 1475, 2 Cal.Rptr.3d 835 (2003), the California Court of Appeals held that the Restatement (Second) of Torts § 428 applied to a interstate motor carrier even though that carrier was carrying a commodity (poultry) that was exempt from the economic regulations of the DOT.

Taxi cabs. Courts in several jurisdictions have applied Restatement § 428 to operation of taxi cabs under a public franchise so that taxi companies that lease cabs to drivers as independent contractors are vicariously liable. See, e.g., Belder v. Dandridge, 2002 WL 32076963 (Va.Cir.Ct. 2002); Teixeira v. Car Cab Three, Inc., 1994 WL 413034 (Mass.App.Div. 1994); Paige v. Red Top, Inc., 255 A.2d 279 (NJ App. Div. 1969).

Negligence In Doing Work Which Is Accepted In Reliance On The Employer’s Doing The Work Himself

Restatement (Second) of Torts § 428 provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Where a customer relies upon the principal to provide goods or services, and the principal substitutes goods or services from an independent contractor, the principal may be liable for the contractor’s negligence.

Conclusion.  Counsel for plaintiffs facing an independent contractor defense may use this paper as  a starting point for research, exploration and perhaps a bit of creativity, weaving together Restatement, statutes, regulations, local ordinances and common law to obtain fair compensation for their clients.

Ken Shigley 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. Work on all these types of cases requires expertise in insurance law.

A young truck driver from California lost his life on the side of I-16 in Laurens County, Georgia, on March 2^nd. This  tragedy highlights how truck drivers are in one of the most dangerous occupations.

According to news reports, a 22-year-old California truck driver was killed when he sideswiped a disabled semi in predawn darkness on the shoulder of I-16 in Laurens County, Georgia.

Shortly after 5 a.m., an 18-wheeler loaded with tangelos from Delano, California, sideswiped a disabled tractor-trailer on the right shoulder on I-16. The California citrus truck then went off the right side of the highway into a ditch and overturned, striking a a tree and destroying the cab. The 22-year-old truck driver died at the scene.

The driver of the other 18-wheeler had mechanical trouble and had been parked on the shoulder for nine hours since about 8 p.m. Thursday, according to the Georgia State Patrol. He was not hurt.

The circumstances of this crash raises a question of whether the truck parked on the shoulder may have violated safety rules on visibility of parked trucks on the road, contributing to cause of the crash.

Most often when commercial truck drivers crash the root cause analysis leads back to corporate management issues as the motor carrier had a duty under the Federal Motor Carrier Safety Regulations to require observance by their drivers of safety rules. Trucking companies are required to manage safety so as to require their drivers to follow the rules. In a crash involving two interstate tractor trailers, that analysis may involve both companies.

As with most fatal traffic crashes on Georgia highways,  the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT)  probably undertook a detailed reconstruction of the crash. In most tractor trailer accident cases over the years  we have seen that  failure of safety management in trucking companies. If the employer of the stopped tractor trailer did not enforce safety rules about visibility of stopped trucks, that could be a big factor.

Federal Motor Carrier Safety Regulations at 49 C.F.R. § 392.22 requires:

(a) Hazard warning signal flashers.

Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices –

General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95 of this subchapter, in the following manner:

(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

        (ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and

        (iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

Warning devices may be reflective triangles or flares, though reflective triangles are most common. The Commercial Drivers License (CDL) Manual at Section 2.5.2 goes into more detail about placement of warning devices:

Other drivers may not notice your vehicle even when it’s in plain sight. To help prevent accidents, let them know you’re there.

. . . .

 When Parked at the Side of the Road.

When you pull off the road and stop, be sure to turn on the four-way emergency flashers. This is important at night. Don’t trust the taillights to give warning. Drivers have crashed into the rear of a parked vehicle because they thought it was moving normally.

If you must stop on a road or the shoulder of any road, you must put out your emergency warning devices within ten minutes. Place your warning devices at the following locations:

If you must stop on or by a one-way or divided highway, place warning devices 10 feet, 100 feet, and 200 feet toward the approaching traffic.

News reports of this crash do not reveal whether the disabled tractor trailer had reflective triangles or flares, but none are visible in news photos and video of the crash scene.

Georgia wrongful death law provides for recovery of the “full value of the life” of the decedent, including both economic and intangible aspects of what the decedent’s life was worth to him. There is no deduction for living expenses and no need to prove dependency.  If a person dies due to the fault of someone else, Georgia law defines who has the claim for wrongful death. If married, the surviving spouse has the claim. If married with children, the statute defines the formula for dividing recovered funds between the spouse and children. If not married, the parents of the deceased have the right to recover for the wrongful death. If there is no surviving spouse, children or parent, then the representative of the estate can make the claim on behalf of heirs at law. There is never a wrongful death in Georgia for which no one can make the claim.

Of course, whenever anyone runs into a stopped truck, there is a question whether he was partially or entirely at fault even if the stopped truck did not have hazard flashers, reflective triangles or flares as required by law. Defense lawyers would certainly explore issues of driver impairment by fatigue affecting the young truck driver who was killed. Under Georgia’s modified comparative negligence law, if the victim is responsible for more than 50% of negligence leading to his injury, he or his survivors get nothing. If less than 50%, the recovery is reduced by the percentage of his negligence.

It is for the jury to decide negligence of all parties and the amount of damages.

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Ken Shigley‘s  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. Work on all these types of cases requires expertise in insurance law.

Every summer there are far too many instances of children dying when left in a hot vehicle. One such tragedy involving a child care center without adequate insurance led to a claim against a city government for negligent licensing of the child care center.

Many child care centers in Georgia have no liability insurance because child care centers in Georgia are not required to carry any specific amount of liability insurance. The regulations governing Family Child Care Learning Homes require only “notification of the absence of a liability insurance policy sufficient to protect its clients,” though the amount of insurance that would be  sufficient is never defined. The Rules for Child Care Learning Centers require only that a program seeking an  exemption from licensure “shall comply with the requirements regarding notification to parents of enrolled children if the program does not carry liability insurance.” Parents are asked to sign an acknowledgment that the center “does not carry liability insurance sufficient to protect my children in the event of an injury, etc.”

When I was chairman of the board of directors of a non-profit, church-based child development center, we carried substantial liability insurance, adopted strict policies and procedures, and installed state of the art security technology. We were a rare exception.

If a child is badly injured or killed in many Georgia child care centers, the absence of liability insurance is likely to leave the family without any effective legal recourse.

In the recent case of Calloway v. City of Warner Robins, 336 Ga.App. 714, 783 S.E.2d 175 (2016), a three-year-old child died of heat stroke when left in a hot vehicle for several hours while in the care of workers a child care center. Lacking effective recourse against the child care center and its employees, the parents included as defendants the City of Warner Robins and the city clerk for negligence in issuance of a business license without following certain procedures.

The Court of Appeals (McFadden, J.), held that the city was protected by sovereign immunity because a “municipality’s act of granting or revoking a business license constitutes a governmental function,” even if the issuance of the license was negligent.  Likewise, the city clerk who was sued only in his official capacity was protected by sovereign immunity.

From time immemorial the doctrine of sovereign immunity has restricted citizens’ rights to seek legal redress against the government for its wrongdoing. Georgia has subscribed to the doctrine of sovereign immunity since 1784, when it was adopted by statute from the common law of England. The concept of sovereign immunity is a carryover from the quaint legal fiction that “the King can do no wrong,” which survived the transition from individual absolute sovereign to representative democracy. Limiting the governmental treasury’s exposure to tort liability is the more contemporary justification for the rule.

Whatever the rationale, through most of Georgia’s history, the state enjoyed almost complete immunity for the wrongs of its agents. Sovereign immunity is recognized to be “a harsh doctrine, not an equitable one.” Indeed, it is just the opposite of equity–it is the state declaring that it cannot be sued even where it would otherwise be liable.

The extent to which governmental entities receive the protections of sovereign immunity varies, depending on the type of entity involved and the type of negligence claimed. Generally speaking, the state is subject to a broader waiver of sovereign immunity than counties and municipalities, with the prevailing law being that the state waives immunity unless liability is specifically excluded by the Georgia Tort Claims Act.

The inverse is true of counties and municipalities, which require a specific statutory waiver before they can be liable. In addition to the government’s own immunity, government officials enjoy personal immunity for their allegedly wrongful acts, referred to as official, or qualified, immunity, which is not absolute, but protects them from the burdens of liability and litigation in many circumstances.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.

Only a monstrous parent would intentionally leave a child in a hot car for hours to suffer and die. While that is the allegation in a pending murder case in Georgia, even if proven true it would be aberrational.

But every summer we hear of a rash of incidents in which a distracted, multitasking parents, usually functioning outside their normal routine, forgets a child sleeping in the back seat. The results are tragic — death or brain damage due to heat stroke. On average, 37 children die in this way in the US every year.

It can happen even to loving, caring, normally competent parents who thought this could never happen to them, but then become distracted.

Why has this become a common phenomenon in recent times? It is largely due to a string on unintended consequences. During the ‘90s that laws began requiring children ride in car seats, facing toward the rear, in the back seat, where they were safer but also more easily forgotten. About the same time, cell phones proliferated, providing another source of distraction for overstressed, multitasking parents.

There have been many suggestions in the media for parents to prevent such tragedies:

• Put something in the back seat –  handbag or briefcase, cellphone or employee badge.
• Keep a brightly colored stuffed animal in the car seat, and switch it to the front passenger seat when you put the child in the car seat.
• Ask someone to call you 10 minutes after your expected arrival time to make sure you didn’t forget the child.
• Always look in the back seat when you get out of the car, just in case.
• Rig up mirrors to always have the child in view.
• Development of auto or cell phone app technologies to back up parental memories.

None of these suggestions are foolproof. When I think of the times I left my cell phone or briefcase in the car, the times I intended to call my wife at a certain time, my own fallibility in remembering to look somewhere at a certain time, I realize how vulnerable busy parents are. While it has been a long time since I had small children, and they were out of child seats by about 1993 — before child seats had to be in rear-facing in the rear and before we all carried a smart phones in our pockets — I can easily imagine having a momentary but tragic lapse of mind.

So what do I suggest? Something simple, low tech, foolproof and easily made into a habit.

When you put a child in the car, take off one of your shoes, put your cell phone in that shoe, and place it next to the child seat. You will not leave the car without the shoe, and thus not without the child, and you will not be on the cell phone while driving.

Make it a habit, each and every time you put your child in the car, and while you are totally focused on the adorable child you love so much, lovingly take off one shoe. Lovingly put it on the floor or seat by the child. Lovingly put your cell phone in the shoe.

Then no matter how long the drive, how quietly the child sleeps or how distracted you may become in thoughts about the 4,736 things on your “to do” list, when you step out of the car with one shoe off and one shoe on, you will remember to get the child out of the car. Nobody is so distracted as to walk away with one shoe. On hot summer weekends, I often drive barefoot (perfectly legal in all states and safer than driving in flipflops), but I never forget my shoes when I reach my destination; if nothing else, hot asphalt reminds me.

While we still are looking forward to the possibility of grandchildren someday, we are prepared with the shoe in the back seat trick when the time comes.

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Ken Shigley, a double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is lead author ofGeorgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.    Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

The leadership of the Georgia State Patrol deserves credit for openness in promptly taking disciplinary action and publicly disclosing that a State Trooper’s reckless conduct caused the deaths of two west Georgia  teenagers and injuries to two others last week.

State Trooper Anthony J. Scott, 26, was fired Friday after investigators determined he was driving 91 mph five seconds before a crash that killed Kylie Hope Lindsey, 17, and Isabella Alise Chinchilla, 16, both of whom were back seat passengers and students at South Paulding High School. Front seat occupants Dillon Lewis Wall, 18, and Benjamin Alan Finken, 17, both of Douglasville, were also injured.

Trooper Scott was northbound on U.S. 27 in Carroll County last Saturday night. He had slowed from 91 to 68 mph when he struck a 2005 Nissan Sentra attempting a left turn onto Holly Springs Road, investigators said. The posted speed limit in the area is 55 mph.

In the old days, it would have been much easier for government officials to cover up what really happened and place the blame on a teen driver. Now, with so much electronic data preserved in the patrol car, it would have been much harder to maintain a coverup.

Nothing can be worse for parents that the untimely death of a beloved child. For an innocent daughter to die due to senseless recklessness of a law enforcement officer who is sworn to protect rather than endanger the public is doubly tragic.

Criminal charges for homicide by vehicle are likely. As the crash happened in Carroll County in the Coweta Circuit, the Georgia State Patrol announced that it will turn over its findings to Coweta Judicial Circuit District Attorney Pete Skandalakis.

Civil cases for wrongful death and personal injury against state employees are controlled by the Georgia Torts Claims Act (GTCA), which became law in 1992.  Under this law, the State of Georgia waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances.”

There is a long list of exceptions to potential state liability under this statute, but none of them would appear to apply to speeding through an intersection when there is no law enforcement emergency and without lights or siren operating.

Sovereign immunity is waived only up to the amount of $1 million per person and $3 million per occurrence.  A wrongful death claim (for full value of the life of the person who was killed) and a survival action (for pain and suffering, medical expenses and funeral expenses), however, whether brought by the same or separate persons, are subject to separate $1 million caps.

To make a claim under the Georgia Tort Claims Act, one must present a claim before suit in a technically precise manner. It is common for cases against the state to be thrown out of court for failure to strictly comply with the technicalities of the notice requirement. Compliance with the ante litem notice requirements is a condition precedent to a plaintiff’s right to file suit against the state, and the courts lack jurisdiction to adjudicate any such claims against the state unless and until the written notice of claim has been timely presented to the state as provided in O.C.G.A. §50-21-26(a).

Within 12 months of the incident causing injury or death, a written notice of claim must be sent by certified mail or statutory overnight delivery such as Fedex or UPS to the Risk Management Division of the Department of Administrative Services, the designated officer of the governmental agency involved, and the Attorney General.  The notice of claim must include,

“to the extent of the claimant’s knowledge and belief and as may be practicable under the circumstances, the following: (A) The name of the state government entity, the acts or omissions of which are asserted as the basis of the claim; (B) The time of the transaction or occurrence out of which the loss arose; (C) The place of the transaction or occurrence; (D) The nature of the loss suffered; (E) The amount of the loss claimed; and (F) The acts or omissions which caused the loss.”

Failure to state an amount being claimed defeats the claim, so one must state a dollar amount up to the maximum allowed under the GTCA.

This is all familiar territory to me. Last year, the Supreme Court of Georgia quoted my book,  Georgia Law of Torts: Trial Preparation and Practice, in a case discussing the scope of the GTCA. My first job out of law school was as an Assistant District Attorney in my hometown of Douglasville, working in Douglas, Paulding, Haralson and Polk Counties, then all part of the old Tallapoosa Judicial Circuit. That of course involved working with State Troopers, though we also prosecuted a State Trooper in Paulding County for sexual exploitation of several young girls. Later, for most of a decade, I was in an Atlanta law firm that defended suits against state officials and employees including State Troopers all over Georgia.

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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.

Please vote here for “best legal blog.”  

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Twice recently pedestrians died in predawn darkness on I-285 on the north side of Atlanta. Tragedy for the victims and their families led to massive morning traffic jams for hundreds of thousands of Atlanta area commuter.

On January 22, 2015, there was no clear explanation why a woman was walking on I-285. Several vehicles ran over her body before anyone apparently realized what had happened. That fatal incident remains a mystery.

Then on February 6, 2015, a collision at 4:30 AM led to one driver to get out of his vehicle, cross the emergency lane, then try to get back to his disabled vehicle. At that point he was struck and killed by another vehicle.

Over the years I have worked on a number of cases with similar scenarios. One of the last criminal jury trials I defended before switching to 100% civil litigation involved defense of a truck driver who struck a pedestrian at 4:30 AM on I-20 in Douglas County, then continued to the next exit before stopping. That pedestrian had run out of gas, was walking back to this car with a can of gas, and was stuck when attempting to cross the road to his car. He jumped back to avoid the oncoming truck just as the truck driver swerved to avoid him, and the fatal impact was in the emergency lane. We won acquittal of the truck driver on the charge of Homicide by Vehicle. He was convicted of only failure to stop and render aid because he did not stop at the scene. He paid a $1,000 fine and went home to his family.

A few years ago, we represented the mother of a young woman who was killed when struck by a tractor trailer after the car in which she was a passenger hydroplaned and was disabled on I-285 on a rainy night. It was a very tough liability case. Because the truck driver had not shown up for a drug test required under federal regulations and later was convicted of drug trafficking in Alabama, we were able to work out a compromise settlement. Without the drug issue, we probably would not have come out well at all.

Recently a lawyer in another state called me about helping with the trial of a case in which their client’s decedent was killed when struck by a truck in a disabled vehicle on an interstate highway in predawn darkness. I helped brainstorm possible approaches but respectfully declined to get involved in the case.

What should you do if your vehicle is disabled on the road at night? Here are a few of the many suggestions from AAA interspersed with my own thoughts:

1. Immediately activate your hazard flashers. With the bad events I have seen in my law practice, I hit the hazard flasher button as soon as I see traffic is slowing dramatically in the highway.
2. Get all the way off the road if you possibly can. Disabled vehicles in the roadway tend to get hit, sometimes due to following drivers speeding, failing to keep a lookout, etc. Even if you are innocent and the driver who hits you is grossly negligent in 100 ways, the outcome for you will not be good if you are hit.
3. Quickly note your vehicle’s locations – landmarks, mile markers, etc. – to give to the 911 operator and roadside assistance.
4. Call 911 for police or HERO unit help, and if appropriate call your auto club for roadside assistance.
5. If your car is disabled in a traffic lane, get yourself completely out of the road. If you are on the interstate, it may be safest to wait on the grassy right-of-way completely off the pavement. Getting cold and wet is better than being hit by a tractor trailer at highway speed.
6. If you must exit the vehicle try to do so from the passenger’s side, away from traffic. If that is not feasible, at least pull as far off the traffic lanes as possible. If you are blocked in by a concrete wall, just don’t get out. Either drive up the emergency lane to the next exit with you hazard lights flashing or sit still with you hazard lights flashing while waiting for assistance. That may be the “least bad” option.
7. If you wait in your vehicle, put up the hood and lock your doors. Exercise discernment about offers of help from strangers. Generally, ask them to call police for assistance. If you are threatened or harassed while waiting in your car, honk the horn repeatedly and flash the lights to attract attention. Don’t leave the engine on for extended periods to heat or cool the vehicle. You could put yourself and any passengers at risk of carbon monoxide poisoning.
8. If you have flares, reflective triangles, etc., set them out if you can do so. But be very careful to avoid any oncoming traffic.
9. Place a “Send Help” sign in a window so it is visible to other motorists. Open the vehicle’s hood and leave it open. Tie a light colored cloth to the antennae or door handle.
10. If possible, stay with the vehicle until uniformed law enforcement arrives, especially at night or during bad weather.
11. If you are stuck in an ice storm and slide off the road due to other vehicles stopping in front of you, exercise great caution in attempts to get back on the road. In such situations, calling 911 may be useless as police are already overwhelmed, and staying on the road overnight in the cold carries its own dangers including hypothermia and carbon monoxide poisoning. If you try to push you vehicle back onto the road in the ice, keep a watch out for oncoming hazards, such as speeding truckers who ignore their own safety rules. In our last ice storm, GDOT reported that all major accidents involved tractor trailers.
12. If you need to change a tire, exercise extreme caution regarding traffic. Too often we see reports of people stuck and killed while trying to change a tire in the emergency lane. It is better to ruin a tire or even a wheel by running on a rim to the next exit than to sacrifice your life for a tire. If you have to change a tire on the roadside, make sure you are way out of the traffic lanes. Don’t just park in the emergency lane of an interstate; park with the right side wheel well onto the grass. Better yet, call for roadside assistance so the flat tire can be addressed by a guy in a tow truck with flashing emergency light who will park behind you and both warn and block oncoming traffic.
13. Avoid standing directly behind or in front of your vehicle. Other drivers may not be able to see you, with potentially fatal results.
14. If you decide you must walk, write down: Your name, the date, the time you left, the direction you are going, the plate number of the vehicle you are riding in, description of the vehicle, name and description of the person you are riding with. Notify law enforcement of the location and circumstances in which you left your vehicle.
15. Read the rest of the AAA suggestions.

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Ken Shigley is a double board certified civil trial attorney in Atlanta, past president of the State Bar of Georgia and chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section.

Non-emergency medical transport crashes are often unnecessary causes of death and severe injury in Georgia. In a recent incident in Newnan, a Coweta EMS ambulance operated by American Medical Response employees, rolled over while transporting a chest pain patient to Piedmont Newnan Hospital. According to witnesses, the ambulance drove off the left side of the road, causing it to roll over. The patient, Tracy Thomas, 45, did not survive.

Failure of non-emergency medical transport personnel to follow safety rules has been the subject of serious claims in Georgia in recent years. Right next door to Coweta County, in 2013 a jury in very conservative Troup County awarded $2.5 million for the death of a profoundly disabled woman who was killed after non-emergency medical transport personnel failed to strap her in as required.

During my lifetime, emergency medical transportation has evolved from the “meat wagon” often operated by a local funeral home and driven by a high school kid who scooped up wreck victims and took them to either the funeral home or the hospital. One of my high school friends had that part-time job which involved a great deal more drama than my job sacking groceries. You can imagine how a minimally trained teenager operating a vehicle with flashing lights and siren would get into situations that made for exciting stories in homeroom on Monday. Fortunately, he survived, married well, and is now mayor of his town.

Starting in 1965 and accelerating after the Vietnam War, we have seen dramatic improvements with trained EMS and EMT personnel equipped with a great deal of life-saving technology.

With greater capacity has come higher expectations. Medical transport, either emergency or non-emergency, involves risks. Part of the risk arises from lack of use of seatbelts by EMS workers; failure to properly restrain patients and equipment; unpadded or intrusive equipment that can cause serious head-impact injuries; an structural deficiencies in ambulance design. Safety concerns have led to development of safety standards  from the National Fire Protection Association and National Highway Traffic Safety Administration.

Georgia law has long provided that ambulance is a common carrier so long as it undertakes to carry sick, injured, or disabled persons indiscriminately, and as such is held to a standard of extraordinary diligence. With regard to personal injuries to passengers, an ambulance operator as a common carrier has absolute liability for even the unauthorized and willful acts of its employees, although the ambulance company may not be liable for an employee’s theft of a patient’s jewelry. See, e.g., Bricks v. Metro Ambulance Service, Inc., 177 Ga.App. 62, 338 S.E.2d 438 (1985).

In Georgia, both emergency and non-emergency medical transport services are governed by the Emergency Medical Services Prehospital Clinical Operating Guidelines.  The primary focus of these guidelines is appropriately on medical triage decisions to save lives. However, there is also coverage of emergency vehicle operations, incorporating the provisions of O.C.G.A  § 40-6-6. The key points are:

• “The driver of any authorized emergency vehicle must always drive with due regard for the safety of all persons, including the patient being transported, the transport crew, and the public.”
• In responding to an emergency call, and only when the ambulance is making use of an audible signal and use of a flashing or revolving red light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle, the ambulance driver may:
  • Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
  • Exceed the maximum speed limits so long as he or she does not endanger life or property; and
  • Disregard regulations governing direction of movement or turning in specified directions.
  • However, this does “not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.”
  • When operating a vehicle as “an authorized emergency vehicle”, both the warning lights and audible signal must be in use. Operating a vehicle with only one of these warning devices in use, even in a bona fide emergency, does not relieve the ambulance driver from compliance with traffic laws.
  • Certain medical conditions may require the rapid transport of the patient, without use of an audible warning device due to the patient’s condition (e.g. acute MI, preeclampsia). In circumstances where lights only are used for transport, the vehicle cannot proceed as “an authorized emergency vehicle” and must proceed in complete compliance with traffic laws, including red lights, stop signs, speed limits, etc.
  • Pediatric patients must be restrained in accordance with the National Highway and Traffic Safety Administration’s “Best Practice Recommendations for Safe Transport of Children.” A key point is that, “No child or infant should ever be held in the arms or lap of parent, caregiver, or medic during transport.”
  • Guidelines for transport of patients with special health care needs include, “When moving a special needs patient, use slow, careful transfer. . . . Do not use excessive force to straighten or manipulate contracted extremities, as this may cause injury or pain to the patient. . . . Transfer the patient if possible to their medical “home” hospital. This may involve bypassing the closest facility.”

Other publications on ambulance safety state the common sense standards such as:

•  All patients on the stretcher must be secured at all times when the vehicle is in motion or the stretcher is being carried or moved.
• Any child transported to the hospital should be in the child’s own protective restraining device – child safety seat – when available. He/she should be placed in the device and the device should be belted to an ambulance seat. If the child actually is the patient, he/she should be secured onto the stretcher and if appropriate, kept in the child safety seat.

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Ken Shigley is an Atlanta-based trial attorney practicing statewide in Georgia. A former president of the State Bar of Georgia, he is lead author of Georgia Law of Torts: Trial Preparation and Practice, a board certified civil trial attorney of the National Board of Trial Advocacy, and chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section.