I have tried serious injury cases for over forty years. Years ago, I saw terribly low verdicts for catastrophic harm. More recently, we have seen eight-figure verdicts that would have shocked judges when I was a puppy lawyer. What changed?

Insurance defense folks in their seminars have used phrases like “nuclear verdicts.” That makes it sound reckless or irrational. But in my experience, most juries take their job seriously. They discuss seriously the facts of the case and legal principles on which the judge instructs them.

They also bring into the jury room their experience in the world in which we live.

Here are ten reasons verdicts have grown.

1. Big Numbers Don’t Shock People Like They Used To

Inflation has reshaped expectations. The U.S. Bureau of Labor Statistics tracks the steady rise in consumer prices through the Consumer Price Index. Citizens who wind up on juries see that in real time every time they buy groceries, gas, or homes.

They hear news reports of tycoons and even some politicians reaping billions on wild-sounding deals in technology, crytocurrency, etc. The “b word” (billion) seems little more fanciful than the “m word” (million) did 50 years ago.

When an economist projects $6 or $8 million over a lifetime of care, it no longer sounds imaginary. It sounds expensive but credible.

2. Medicine Keeps People Alive But At a Cost

When I was growing up, the ambulance arriving at a wreck scene was often operated by the funeral home.  The after-school and weekend job of one of my high school classmates was to drive the “meat wagon.” There was no first responder training and no paramedic on the scene to stabilize a catastrophically injured person. Too often, they just went straight to the funeral home. 

Many catastrophic injuries were fatal. Today, emergency medicine and advanced trauma care and rehabilitation save lives. But survival comes at a price. Often, it requires decades of structured support. Life care planners build detailed projections based on medical research and standards published through sources like the National Institutes of Health.

Jurors understand that survival without resources can mean suffering. They award money to fund stability.

3. Corporate Trust Has Eroded

Public trust in major institutions has declined over the years since Watergate. Surveys from the Pew Research Center  egularly document this trend.

When  internal documents and emails show ignored safety complaints or cost-cutting decisions, jurors can easily connect it to a broader narrative about profit over people. That matters in the jury room with rules-oriented jurors who distrust institutions.

In planning mock jury focus groups, we have often deliberately limited the group to the most politically and socially conservative people. They have surprised us by coming up with numbers much higher than a mock jury that represented a broader cross-section of the population.

4. Safety Rules Are Clear and Public

In trucking, aviation, medicine, and manufacturing, safety standards are spelled out in black and white. For example, commercial motor carriers operate under federal rules issued by the Federal Motor Carrier Safety Administration, which are simply explained in the Commercial Drivers License Manual. Commercial truck drivers and safety managers have no credible way to deny those are the industry standards they are supposed to follow.

Clear rules make liability feel concrete. When a company violates a clear safety rule, jurors see it not as just an accident but a deliberate and unsafe choice.

5. Social Media Changed the Background Noise

Years ago, corporate misconduct stayed local. Today, bad news travels fast. Anything that makes news anywhere seems local and immediate. Jurors have watched stories about defective products, data breaches, and regulatory failures. That background shapes how they interpret evidence. Jurors do not enter the courtroom empty-headed.

6. Trial Lawyers Tell the Story Differently Now

Modern trial strategy focuses on safety and preventability. Lawyers talk not about sympathy but about common sense safety  rules and how small decisions cascade into harm.

7. Anchoring Influences Damage Awards

When a lawyer suggests a specific figure for pain and suffering, that number becomes a reference point. Jurors may reduce it, but they rarely ignore it. Anchoring is not just  manipulation. It is human cognition at work. Psychologists have long studied how framing affects judgment. The concept of cognitive “anchoring” is well established, including in research summarized by the American Psychological Association.

The Georgia legislature in its latest “tort reform” tried to stop anchoring by enacting OCGA § 9-10-184, which provides, “ In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.”

In legislative debate, politicians talked about stopping lawyers from analogizing to the price of paintings and race horses. However, an experienced trial lawyer has no need to talk about such crudely irrelevant distractions. A good advocate can easily suggest to jurors a way to calculate value based on the evidence and reasonable deductions. Nearly two decades ago, I gave jurors a methodology tied to the evidence and linked to reality in their rural county through which they calculated a verdict a million dollars more than I asked for.

8. Younger Jurors View Institutions Differently

Now on the senior end of the generation gap, I have seen several times how generational shifts are real. Many younger jurors grew up during the financial crisis, corporate scandals, and rising inequality. They carry student debt. They have seen layoffs. They question concentrated power more readily.

This does not mean they are anti-business. It means they may weigh accountability differently than their parents or grandparents.

9. Transparency About Corporate Wealth

Public companies disclose executive compensation and financial performance through filings with the U.S. Securities and Exchange Commission. We all see news reports about individuals making billions on crypto or a tech tycoon closing in on a trillion dollars net worth, it registers. Even billboards for the lottery touting jackpots over a billion dollars feeds the idea that it could happen to them. At some level, all that registers. When jurors see astronomical CEO bonuses alongside safety violations, they calibrate verdicts accordingly.

A verdict that once seemed massive may now feel proportional.

10. Preventable Harm Sparks Moral Reaction

The most significant driver of large verdicts is not sympathy but preventability.

An impaired or fatigued trucker. A manufacturer that ignored a recall warning. A hospital that brushed aside red flags. When jurors conclude, “This did not have to happen,” damages climb. Moral judgment is powerful. It always has been but now it carries a bigger price tag.

Large verdicts do not come from thin air. They usually arise from clear liability and serious, permanent harm. Venue still matters. Facts matter more. I have seen conservative rural counties return modest verdicts in serious cases and urban juries surprise plaintiffs with restraint. But I have also seen the opposite, surprisingly adequate verdicts in the most conservative venues.

Money is the only remedy our civil system offers. Jurors know that. They cannot undo a spinal cord injury or restore a dead child. They can only assign responsibility in dollars.

After decades in the courtroom, I recognize that modern verdicts reflect modern expectations about safety, accountability, and dignity. When people on a jury believe a company or individual chose risk over safety, they are not afraid to respond firmly.

Ken Shigley, senior counsel at Johnson & Ward, Atlanta’s oldest personal injury specialty law firm, is a former president of the State Bar of Georgia. He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Truck Accident Law, Civil Trial Practice, and Civil Pretrial Practice. He was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice, and received the Traditions of Excellence Award from the State Bar of Georgia General Practice and Trial Section. B.A., Furman University; J.D., Emory University Law School; Certificates in mediation and negotiation, Harvard Law School. He began his career as an Assistant District Attorney, then worked a decade in an insurance defense law firm before entering plaintiffs’ practice.

For decades, I have represented the victims of catastrophic car and truck crashes. The most seriously hurt among them, with brain and spinal cord injuries, owed their survival in the days and weeks after injury to treatment in trauma centers and Intensive Care Units (ICU). Only later were they even eligible to benefit from excellent rehabilitation programs such as those at Shepherd and Emory.

Now ICU capacity at Georgia hospitals is virtually exhausted due to treatment of Covid-19 patients, about 97% of whom are unvaccinated. Both the physical capacity of hospitals in terms of ICU bed space and the human capacity in terms of trained staff are at a breaking point.

Ambulances transporting injury victims are being diverted from hospitals that are over capacity with unvaccinated Covid patients. Both hospitals with  Level 5 trauma centers in metro Atlanta,   Grady Hospital, and Wellstar Atlanta Medical Center,  this week are on “total diversion,” as emergency and ICU rooms are full. A trauma victim who normally would go straight to one of these hospitals, may not get in. Piedmont, Northside, and Emory Midtown are also diverting emergency patients because they are over capacity with most-unvaccinated Covid patients. Even if a trauma victim is accepted in an ER, there may be severe delay of treatment due to saturation of hospital capacity.

A friend who was a long-time ICU nurse at a major Atlanta hospital spent her last several months before retirement in the “war zone” of the first wave of Covid-19.  Like many dedicated medical personnel, the demands of the pandemic drove her to the decision to retire for the protection of her health and the well-being of her family. Seasoned ICU nurses are not easily replaced.

If a loved one is badly injured in Georgia today, with life depending on access to the best medical care, such access may be delayed by the decisions of people who chose not to get a readily available vaccine.

If you are hesitant to be vaccinated against Covid-19, remember that it’s not all about you. If your decision to forego vaccination lands you in a crowded ICU, it could be fatal to some innocent person suffering an unrelated injury or other medical crisis.

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

A senior counsel in the firm of Johnson & Ward, 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 one of only three Georgia lawyers to earn board certification in Truck Accident Law. He has served as 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 eleventh 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. Mr. Shigley is a widower, father of two adult children, and an elder in his church. 

Sterigenics plants in Smyrna and Covington, Georgia, have long used ethylene oxide in sterilization of medical equipment. The Environmental Protection Agency air assessment from last year found several census tracts around those plants had significantly increased cancer risks due to ethylene oxide. The EPA recently concluded that the gas is dangerous at lower levels than previously believed.

Ethylene oxide is an organic compound with the formula C₂H₄O. A colorless and flammable gas with a faintly sweet odor, it has many uses in industry but is not safe for household use. At room temperature it is a flammable, carcinogenic, mutagenic, irritating, and anaesthetic gas.

There is evidence from both human and animal studies that inhalation exposure to ethylene oxide can result in a wide range of carcinogenic effects. The International Agency for Research on Cancer classifies ethylene oxide into group 1, meaning it is a proven carcinogen. Ethylene oxide is classified as a class 2 carcinogen by the German MAK commission and as a class A2 carcinogen by the ACGIH. A 2003 study of  women exposed to the chemical while working in commercial sterilization facilities suggests ethylene oxide is associated with breast cancer incidence.

In 2015, Sterigenics reported emissions ethylene oxide from its Smyrna plant of  3,574 pounds. After federal regulators definitively linked ethylene oxide to cancer in humans in 2016, the company’s self-reported emissions of the chemical dropped to 226 pounds.

Due to past emissions data submitted by Sterigenics, t the federal Environmental Protection Agency to project an elevated risk of cancer in surrounding neighborhoods. Similar cancer clusters were reported near a Sterigenics plant in the Chicago area.

All cases involving cancer allegedly caused by chemical exposures are highly complex and involved an enormous amount of scientific analysis and expert witness testimony. These are not intersection collision cases.

We have begun to sign up Sterigenics cancer cases as victims and their survivors from the neighborhoods surrounding these plants have contacted us. As with any case involving complex science, we work with an experienced team to properly analyze and develop the scientific and medical evidence.

 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 2008-2019, 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.

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.

——————

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.

When younger lawyers ask me for advice on their cases, among my first questions are, “What is the venue?” and “Who is the judge?”   Often the response is, “Uh, I’ll get back to you.”

Facts and law are vitally important. But the identity of the decision makers – judge and jury – are crucial too. While phenomenal verdicts may occur in conservative rural counties in great cases, and the plaintiff will likely recover nothing in a rotten case even in the most generous venue, in average cases the identify of judge and county are crucial. For example, in a fatal log truck crash a couple of years, I worked hard to secure venue in Fulton County (Atlanta) rather than a rural county heavily dependent on the pulpwood industry in which the crash occurred. It made all the difference in the value of the case.

Earlier this year, the Georgia Court of Appeals published an important decision regarding venue in tort cases against state
government. When an action is brought under the Georgia Tort Claims Act against a State government defendant, even when the State entity is not the sole tortfeasor, the mandatory venue provision of O.C.G.A. § 50–21–28 applies. That code section provides that “[a]ll tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred[.]”

Thus, the determinative factor in venue for personal injury and wrongful death cases against state government in Georgia is determination of where “the loss occurred.”

In Board of Regents of University System of Georgia v. Jordan, 335 Ga.App. 703, 782 S.E.2d 809 (2016), the Court of Appeals of Georgia held:

The term “loss,” as used in the Georgia Tort Claims Act, is defined in OCGA § 50–21–22(3) as “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” (Emphasis supplied.) Had the legislature intended to limit venue for claims under the Georgia Tort Claims Act to the county where the negligent acts or omissions giving rise to the damages occurred, instead of where the “loss” occurred, it could have so provided. When the language of a statute is plain and unambiguous and does not lead to an absurd result, it supplies the sole evidence of legislative intent, and it must not be contravened. See Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga.App. 613, 614, 448 S.E.2d 476 (1994). Upon a plain reading of OCGA §§ 50–21–22(3) and 50–21–28, it is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Since it is undisputed in the cases before us that the plaintiffs incurred losses in DeKalb County, venue is proper in DeKalb County.

In this case, even though the claims arose from medical treatment at a state hospital at Augusta in Richmond County, the plaintiffs had corrective surgeries and long hospitalization in DeKalb County. Because part of “the loss occurred” in DeKalb County – generally a more plaintiff-friendly venue – venue was proper in DeKalb County.

The court appears to have invited the legislature to amend the statute to more narrowly define venue options. However, not all such judicial invitations elicit a response from the General Assembly.

There are many potential ramifications for venue determination in tort claims against state government. One illustration is that if a crash involving a state vehicle causes injury in County #1, the victim is transported to a hospital emergency department in County #2, then is transferred to a tertiary care hospital in County #3, and later dies in County #4, there may be venue under the statute in any of the four counties.

With 159 counties in Georgia, ranging from rural and conservative to liberal and urban, venue options are crucial.

————-

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.

Most of us today carry cell phones in our pockets with more processing power than the computers aboard the Apollo moon missions. Frequent news reports illustrate the dangers of thoughtless use of smartphones and social media. It has ensnared politicians and celebrities, sometimes crashing promising careers. This technology has created similar hazards for both plaintiffs and defendants in litigation who are careless about online social media privacy. While we are quick to look for the other side’s vulnerabilities, we must also play defense in protecting our clients from their own electronic blunders.

Many people today, especially younger ones, think nothing of sharing details of personal lives with the world through social networking sites. For this very reason, insurance companies, investigators, and defense attorneys may seek to compel access to social media accounts, computers, cell phones, and hard drives. Careless use of social media can be a kind of self-surveillance, a gift to the other side.

Information from such sources may be used to embarrass or discredit you when you are hurt. It may be used to falsely suggest that the your are exaggerating or that something else caused the injury. Even innocent joking between friends on social media might convince judges and juries that a plaintiff has been dishonest.

Here are ten precautions to avoid self-inflicted wounds through use of social media – Facebook, Twitter, Instagram, etc.

1. Archive the content of current accounts. Destruction of potential evidence may create bigger problems than the information itself. Therefore, it is important to preserve the current content of any social media accounts. Most social media sites include directions for archiving. We designate a staff person to help clients archive correctly.
2. Deactivate or discontinue using social media accounts. If you are going to be the plaintiff in a personal injury case, consider deactivating your Facebook profile and other social media accounts.  If you are not willing to completely deactivate an account you should—after archiving content —remove any information related to your injury or activities and avoid future posts.
3. Turn on the highest privacy setting. If you won’t discontinue use of social media, adjust privacy settings to the highest levels. This means making sure that only actual friends can see the information, rather than friends of friends or the general public. A useful tool is Facebook’s “View As” feature, which allows users to view their profile as it appears to someone else, whether a stranger or a Facebook friend. This might help you see exactly what is visible to the general public, something that isn’t always apparent from privacy settings. Be aware that Facebook publicly publishes “Interests,” even if accounts are otherwise private.
4. Beware of “friends.”  If social media use continues, it is important to edit “friend lists” so that only certain friends can see photo albums and status updates. Remove any “friends” you do not know well or at all, and accept only friend requests from people you know and trust.
5. Become invisible. You can remove yourself from Facebook search results by selecting “only friends” under the “search visibility” option in their profile settings. You can also remove your Facebook page from Google by unchecking the box for “Public Search Listing” in your Internet privacy settings. Make comparable changes to privacy settings in all other social media accounts.
6. Take down photos. After archiving current content,  remove and un-tag all photos of yourself that are not simple head shots.
7. Be cautious. Assume that anything you write on your social media accounts—including status updates, messages, and wall postings—will at some point be seen by defense lawyers, judges, and juries. Think about how such things might be perceived when viewed out of context.
8. Preserve all computers, tablets, or cell phones. If you lose or destroy an electronic communications device, opposing counsel could try to make it look like deliberate destruction of evidence. It is better to fight a battle over access to your devices than have a judge instruct a jury that it may assume the contents of the discarded or destroyed device would have been unfavorable to you.
9. Don’t send messages or information about the case. Do not send emails, text messages, or “private” social media messages about your claim, health, or activities to anyone except your lawyers. Careless emails and electronic messages can destroy a case.
10. Don’t post on websites or web chat groups. While you may find useful information in online support groups, you don’t own the information you post online. Such information you post is highly searchable. You should not enter any information on dating or insurance websites, post on message boards, participate in or comment on social media “private” groups or blogs, or use chat rooms.

This post is adapted from an article published in the January 2016 issue of Trial magazine by 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 of Georgia 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.  He can be reached at ken@shigleylaw.com.   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.

—————-

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.

GPS technology is one of the great conveniences of life in the 21^st century. When it works right it enables us to find our way through unfamiliar areas with ease.

Other times it can lead us terribly astray.

But at all times we should follow the device directions by entering destination information while safely parked and use the “human override” of common sense is following the driving directions.

Today in Atlanta, we have a tragic example of the importance of keeping those principles in mind.

Police report that King Fareed from North Carolina was focused on his phone’s GPS directions when he got lost near the Atlanta airport, and made an improper U-turn into the path of an approaching motorcyclist coming the opposite direction on Sullivan Road in College Park. The motorcyclist, Jamel Houseworth, was killed, giving rise to a wrongful death claim for his survivors.

Having flown into a lot of cities, picked up rental cars and headed out into unfamiliar streets relying on GPS directions, I can well imagine the disembodied voice of the GPS saying to make a legal U-turn as soon as possible. The potential for unsafe distraction is huge.

According to a news report from WSB TV, police are charging Fareed is being charged with involuntary manslaughter, improper U-turn and failure to use due care in use of an electronic device.

The pertinent Georgia code sections are:

O.C.G.A  § 40-6-393( c ):

Any person who causes the death of another person, without an intention to do so, by violating any provision of this title other than subsection (a) of Code Section 40-6-163 [passing a school bus], subsection (b) of Code Section 40-6-270 [hit and run], Code Section 40-6-390 [reckless driving] or 40-6-391 [driving under influence of alcohol or drugs], or subsection (a) of Code Section 40-6-395 [fleeing police officer] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death and, upon conviction thereof, shall be punished as provided in Code Section 17-10-3 [up to $1,000 fine and 12 months in jail].

O.C.G.A  § 40-6-121. U-turns, when prohibited

No vehicle shall be turned so as to proceed in the opposite direction:

(1) Upon any curve;

(2) Upon the approach to or near the crest of a grade where such vehicle cannot be seen by the driver of another vehicle approaching from either direction;

(3) Where such turn cannot be made in safety and without interfering with other traffic; or

(4) Where a prohibition is posted.

O.C.G.A  § 40-6-241.1. Wireless telecommunications device use prohibited

(b)(1) No person who is 18 years of age or older or who has a Class C license shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, e-mail, or Internet data.

(2) No person shall operate a commercial motor vehicle on any public road or highway of this state while:

(A) Holding a wireless telecommunications device to conduct a voice communication;

(B) Using more than a single button on a wireless telecommunications device to initiate or terminate a voice communication; or

(C) Reaching for a wireless telecommunications device in such a manner that requires the driver to maneuver so that he or she is no longer in a seated driving position properly restrained by a safety belt.

Here are some important safety tips for using a GPS in driving:

1. Remember that driving safely job one. It is more important than navigation. Better to get off course and lose a little time than to make an unsafe movement that could cost a life.
2. Be extra careful in familiarizing yourself with operation of the GPS unit. If using one with which you are not intimately familiar, take time to read product directions and get oriented to its operation while you are sitting still in the parking place before you even start to drive.
3. Don’t program the GPS while the car is moving. Enter the destination before you start. If you need to cancel or change a destination, pull over and stop in a safe place to do it.
4. Learn to use voice directions from the GPS. Make sure you have that working audibly before you start to drive. Only rarely should you glance at the GPS screen.
5. Mount the GPS out of driving sight lines so that it will not block your view of the roadway.
6. Use common sense to override GPS misdirection. If the GPS tells you to do down a one way street or the cart path of a golf course, go by what you see on the ground rather than what the electronic device tells you.

—————-

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.

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.

—– ——-

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.

For the second time in three weeks, the Governor has declared a “state of emergency” due to winter storms. The second, related to prediction of an impending major ice storm, looks more significant than the first. If predictions of power outages are accurate, you may have to read this on your phone or iPad that you charged up beforehand.

Georgia law defines a “state of emergency” as a “condition declared by the Governor when, in his judgment, the threat or actual occurrence of a disaster, emergency, or energy emergency in any part of the state is of sufficient severity and magnitude to warrant extraordinary assistance by the state to supplement the efforts and available resources of the several localities and relief organizations in preventing or alleviating the damage, loss, hardship, or suffering threatened or caused thereby.” O.C.G.A. § 38-3-3(7).

That sounds very impressive, but exactly what does it mean?

–        Governor’s emergency powers.  Georgia law (O.C.G.A. § 38-3-51) defines broad emergency powers for the Governor as follows:

(a) In the event of actual or impending emergency or disaster of natural or human origin . . . the Governor may declare that a state of emergency or disaster exists. . . . The state of emergency or disaster shall continue until the Governor finds that the threat or danger has passed or the emergency or disaster has been dealt with, to the extent that emergency or disaster conditions no longer exist, and terminates the state of emergency or disaster. No state of emergency or disaster may continue for longer than 30 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time. Thereupon, the Governor shall by appropriate action end the state of emergency or disaster.

(b) A declaration of a state of emergency or disaster shall activate the emergency and disaster response and recovery aspects of the state and local emergency or disaster plans applicable to the political subdivision or area in question and shall be authority for the deployment and use of any forces to which the plan or plans apply and for use or distribution of any supplies, equipment, and materials and facilities assembled, stockpiled, or arranged to be made available pursuant to Articles 1 through 3 of this chapter or any other law relating to emergencies or disasters.

(c) The Governor shall have and may exercise for such period as the state of emergency or disaster exists or continues the following additional emergency powers:

(1) To enforce all laws, rules, and regulations relating to emergency management and to assume direct operational control of all civil forces and helpers in the state;

(2) To seize, take for temporary use, or condemn property for the protection of the public in accordance with condemnation proceedings as provided by law;

(3) To sell, lend, give, or distribute all or any such property among the inhabitants of the state and to account to the proper agency for any funds received for the property; and

(4) To perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population.

(d) In addition to any other emergency powers conferred upon the Governor by law, he may:

(1) Suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, or regulations of any state agency, if strict compliance with any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency or disaster;

(2) Utilize all available resources of the state government and of each political subdivision of the state as reasonably necessary to cope with the emergency or disaster;

(3) Transfer the direction, personnel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services;

(4) Commandeer or utilize any private property if he finds this necessary to cope with the emergency or disaster;

(4.1) Compel a health care facility to provide services or the use of its facility if such services or use are reasonable and necessary for emergency response. The use of such health care facility may include transferring the management and supervision of the health care facility to the Department of Public Health for a limited or unlimited period of time not extending beyond the termination of the public health emergency;

(5) Direct and compel the evacuation of all or part of the population from any stricken or threatened area within the state if he deems this action necessary for the preservation of life or other disaster mitigation, response, or recovery;

(6) Prescribe routes, modes of transportation, and destinations in connection with evacuation;

(7) Control ingress and egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein;

(8) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, firearms, explosives, and combustibles; provided, however, that any limitation on firearms under this Code section shall not include an individual firearm owned by a private citizen which was legal and owned by that citizen prior to the declaration of state of emergency or disaster or thereafter acquired in compliance with all applicable laws of this state and the United States; and

(9) Make provision for the availability and use of temporary emergency housing.

(e) When the available funds are not sufficient for the purpose of paying the expenses incident to carrying out the provisions authorized by Articles 1 through 3 of this chapter, the Governor may transfer from any available fund in the state treasury such sum as may be necessary to meet the emergency or disaster; and the moneys so transferred shall be repaid to the fund from which transferred when moneys become available for that purpose by legislative appropriation or otherwise.

(f) In the event that the Governor proclaims an emergency or disaster, as defined by Articles 1 through 3 of this chapter, to be a catastrophe within the meaning of Article III, Section IX, Paragraph VI(b) of the Constitution of the state, the funds referred to in the paragraph may be utilized by the Governor for the purpose of carrying out the provisions authorized by Articles 1 through 3 of this chapter.

(g) In the event that the Governor proclaims an emergency or disaster, as defined in Articles 1 through 3 of this chapter, the Governor may provide welfare benefits to the citizens of this state in the form of grants to meet disaster related necessary expenses or serious needs of individuals or families adversely affected by an emergency or disaster in those cases where the individuals or families are unable to meet the expenses or needs from other means, provided that such grants are authorized only when matching federal funds are available for such purposes pursuant to the Disaster Relief Act of 1974 [FN1] (Pub. L. 93-288).

(h) [Energy emergency provision, omitted from this blog post.]

(i)[Public health and pandemic emergency provisions omitted from this blog post.]

(j) Any individual, partnership, association, or corporation who acts in accordance with an order, rule, or regulation entered by the Governor pursuant to the authority granted by this Code section will not be held liable to any other individual, partnership, association, or corporation by reason thereof in any action seeking legal or equitable relief.

–        Unified emergency command system. The Georgia Emergency Management Agency, in coordination with other state agencies, can operate a unified incident command system where there is a declared state of emergency. O.C.G.A. § 38-3-57.

–        Activation of state militia. The Georgia State Defense Force – a volunteer force distinct from both the National Guard and any private militia organizations – is a volunteer organization that provides an organized, trained, disciplined, rapid response uniformed force. Volunteers respond to needs and emergency situations as defined by the Adjutant General or the Governor.  O.C.G.A. § 38-2-6  (c) provides, “When the Governor orders into the active service of the state all or any portion of the organized militia as provided in this Code section, he shall declare a state of emergency in such locality and it shall be the duty of the Governor to confirm such declaration and order in writing which shall state the area into which the force of the organized militia has been ordered.”

In a major weather emergency, the Georgia State Defense Force joins the National Guard, DOT, law enforcement and other agencies in responding to the situation.

–        The Emergency Management Assistance Compact provides a system for cooperation between participating states in emergencies. O.C.G.A. § 38-3-81.

–        Removal of road obstructions. “State or local law enforcement officers, including fire department officials, and the department are authorized, upon the issuance of an executive order by the Governor declaring a state of emergency, with or without the consent of the owner, to remove or have removed any natural or manmade obstruction, cargo, or other personal property which is abandoned, unattended, or damaged and the law enforcement officer or the department determines such object to be a threat to public health or safety or to be contributing to traffic congestion. Any person, contractor, towing service, or other entity that is removing an obstruction, cargo, or other personal property pursuant to the instruction of a law enforcement officer, an official of a fire department acting under the authority of paragraph (1) of Code Section 25-3-1 or paragraph (3) of Code Section 25-3-2, or the department, and under the provisions of this Code section, shall be liable for damage or harm at the location where the obstruction, cargo, or other personal property was left abandoned or unattended, only when the person, contractor, towing service, or other entity was grossly negligent in the performance of his or her assigned duties; provided, however, nothing in this Code section shall limit liability for any damage or harm caused at a location different from the location where the obstruction, cargo, or other personal property was left abandoned or unattended.” O.C.G.A. § 32-6-4.

–        Immunity from liability of persons acting to prevent, minimize, and repair injury and damage resulting from catastrophic acts of nature.

O.C.G.A. § 51-1-29.2  provides as limited scope of civil immunity as follows:

“Any natural person and any association, fraternal organization, private for profit entity, not for profit entity, religious organization, or charitable organization and the officers, directors, employees, and agents of such associations, organizations, and entities, when such persons, associations, organizations, or entities are working in coordination and under the direction of an appropriate state agency, who voluntarily and without the expectation or receipt of compensation provides services or goods in preparation for, anticipation of, or during a time of emergency and in a place of emergency as declared by the Governor for the benefit of any natural person or his or her property to prevent or minimize harm to such natural person or to prevent, minimize, and repair injury and damage to such person’s property resulting from biological, chemical, or nuclear agents; terrorism; pandemics or epidemics of infectious disease; or catastrophic acts of nature, including, but not limited to, fire, flood, earthquake, wind, storm, or wave action, or any other occurrence which warrants the declaration of a state of emergency or disaster by the Governor pursuant to Code Section 38-3-51 or by a federal agency shall not be civilly liable to any natural person receiving such assistance as a result of any act or omission in rendering such service if such natural person, association, organization, or entity was acting in good faith and unless the damage or injury was caused by the willful or wanton negligence or misconduct of such natural person, association, organization, or entity. Nothing in this Code section shall be construed to amend, repeal, alter, or affect in any manner any other provision of law granting immunity or limiting liability. Nothing in this Code section shall be construed to abrogate the sovereign immunity of this state as to all actions executed by any party under this Code section.”

I have heard reports of one major auto insurance company directing adjusters to automatically deny all claims arising in the recent ice storm. If true, such denials would be based on a serious misinterpretation of the law. The insurance company’s actions would be in bad faith and potentially subject to awards of bad faith penalties and attorney fees except as to claims against anyone acting (a) without compensation at direction of an appropriate state agency, (b) in accordance with an emergency order, rule, or regulation entered by the Governor, or (c )  contractors and towing companies removing vehicles at the direction of law enforcement or fire departments.

The state of emergency does not protect from liability a trucking company or other motorist that continues to operate on icy roads without being directed by the Governor’s orders or at direction of emergency personnel.

–        Nonresident insurance adjusters. “No license by this state shall be required: (1) Of a nonresident independent adjuster for the adjustment in this state of a single loss or of losses arising out of a catastrophe common to all such losses; or (2) Of a nonresident adjuster who regularly adjusts in another state and who is licensed in such other state, if such state requires a license, to act as adjuster in this state for emergency insurance adjustment work for a period not exceeding 60 days and performed for an employer who is an insurance adjuster licensed by this state or who is a regular employer of one or more insurance adjusters licensed by this state, provided that the employer shall furnish to the Commissioner a notice in writing immediately upon the beginning of the emergency insurance adjustment work. The Commissioner may by rule or regulation establish criteria and procedures for adjusters operating under this Code section.” O.C.G.A. § 33-23-29 (b).

–        Court deadlines.  In a state of emergency, the Chief Justice of the Georgia Supreme Court or the chief judge of a judicial circuit may declare a “judicial emergency” when “the emergency substantially endangers or infringes upon the normal functioning of the judicial system, the ability of persons to avail themselves of the judicial system, or the ability of litigants or others to have access to the courts or to meet schedules or time deadlines imposed by court order or rule, statute, or administrative rule or regulation.” Such a “judicial emergency” order may extend time deadlines including:

(1) A statute of limitation;

(2) The time within which to issue a warrant;

(3) The time within which to try a case for which a demand for speedy trial has been filed;

(4) The time within which to hold a commitment hearing;

(5) A deadline or other schedule regarding the detention of a juvenile;

(6) The time within which to return a bill of indictment or an accusation or to bring a matter before a grand jury;

(7) The time within which to file a writ of habeas corpus;

(8) The time within which discovery or any aspect thereof is to be completed;

(9) The time within which to serve a party;

(10) The time within which to appeal or to seek the right to appeal any order, ruling, or other determination; and

(11) Such other legal proceedings as determined to be necessary by the authorized judicial official.  O.C.G.A. §§ 38-3-60 to 38-3-64.

–        Nonresident physician assistants. In a state of emergency, a physician assistant licensed in another jurisdiction may “may render such care that the physician assistant is able to provide with such supervision as is available at the immediate scene or at the local site where such need for medical care exists or at a relief site established as part of a state or local safety plan….” O.C.G.A § 43-34-103.

–        Nonresident professional counselors. State licensing requirements for professional counseling, social work, or marriage and family therapy may be suspended in an emergency. “Persons currently licensed to practice a specialty in another jurisdiction and who are practicing such specialty within a defined disaster area in order to alleviate the impact on persons affected by a disaster . . .  or a state of emergency . . .  , but only when such specialty services are provided without cost to the recipients, and only for a maximum of 30 consecutive days following a disaster or a state of emergency.” O.C.G.A § 43-10A-7.

–        Price gouging.  The Georgia Fair Business Practice Act, prohibits anyone doing business in any area in which a state of emergency has been declared, for so long as such state of emergency exists, to sell or offer for sale at retail any goods or services identified by the Governor in the declaration of the state of emergency necessary to preserve, protect, or sustain the life, health, or safety of persons or their property at a price higher than the price at which such goods were sold or offered for sale immediately prior to the declaration of a state of emergency.” But prices may be increased in an amount which accurately reflects an increase in cost of the goods or services or an increase in the cost of transporting the goods or services into the area plus the retailer’s average markup percentage. Any person who suffers damage or injury as a result of a disaster related violation shall have a cause of action to recover actual damages, punitive damages, if appropriate, and reasonable attorney’s fees.   O.C.G.A. §§ 10-1-393.4, 10-1-438

–        Emergency business registration ordinances.  Georgia law authorizes county and city governments to provide for emergency business registrations.  “Notwithstanding any other provisions of law, the governing authority of any county or municipality may provide by ordinance for a program of emergency registration of all or certain designated classes of businesses doing business in the county or municipality during a state of emergency declared by the Governor. Such ordinance may be implemented for a period during which the state of emergency continues and for a subsequent recovery period of up to three months at the direction of the governing authority. In any county or municipality adopting such an ordinance, no business subject to the ordinance may do business in the county or municipality without first registering in conformance with the provisions of the ordinance.” O.C.G.A. § 38-3-56.

–        Extension of deadlines under Georgia Lemon Law, which provides that “the lemon law rights period shall be extended by one day for each day that repair services are not available to the consumer as a direct result of a strike, war, invasion, terrorist act, blackout, fire, flood, other disaster, or declared state of emergency.” O.C.G.A. § 10-1-782

–        The state board of education may authorize departure from the 180 day school year. O.C.G.A. § 20-2-168. (A number of counties have reduced the number of school days due to economic factors during the recession, but that is another story.)

–        The Georgia Aviation Authority normally bills state agencies for use of state planes and helicopters. But “any billing to an agency by the authority shall be suspended whenever the Governor declares a state of emergency on any cost associated with aircraft used during and in response to the state of emergency.” O.C.G.A. § 6-5-4 (b)(5),  § 35-2-140.

–        Extension or postponement of qualifying periods and primaries and elections. O.C.G.A. §  21-2-50.1. Qualifying dates this year for state and federal elections in Georgia will be March 3-7, 2014. Let’s hope no state of emergency extends into March.

–         Eminent domain law allows for condemnation of “blighted property” in an urban area if it “(A) Presents two or more of the following conditions: (i) Uninhabitable, unsafe, or abandoned structures; (ii) Inadequate provisions for ventilation, light, air, or sanitation; (iii) An imminent harm to life or other property caused by fire, flood, hurricane, tornado, earthquake, storm, or other natural catastrophe respecting which the Governor has declared a state of emergency under state law or has certified the need for disaster assistance under federal law; provided, however, this division shall not apply to property unless the relevant public agency has given notice in writing to the property owner regarding specific harm caused by the property and the owner has failed to take reasonable measures to remedy the harm.” O.C.G.A. §  § 22-1-1

Finally, there are also emergency powers related to major public health emergencies that I hope will never go into operation, including suspension of health care facility certificate of need regulations and authorizing nurses and physician asisstants to sign death certificates during an influenza pandemic

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 castastrophic personal injury and wrongful death.

Tractor trailer drivers are required to exercise “extreme caution” in snow and ice, including getting off the road when necessary. Their employers are required to make sure they do exercise “extreme caution.” However, I seldom see many who take that seriously. That was driven home in Tuesday’s winter storm.

When Atlanta’s winter storm (#snowjam2014 #snowcalypse2014) hit metro Atlanta on Tuesday, causing an epic icy gridlock, I was taking depositions in Macon on a truck crash wrongful death case. We finally got through to our judge’s office to get an extension of a deadline for completing depositions, then headed back to Atlanta.

After hours in gridlock on I-75, I got off the downtown connector and took a circuitous route through icy secondary streets, eventually getting home shortly before midnight, eleven hours after I left Macon. A lifetime of driving Atlanta streets helps in improvising passable back routes. I was more fortunate that many folks who were stranded overnight in their cars or emergency shelters.

Many factors contributed to metro Atlanta’s vulnerability to a mere two inches of snow. I am not going to get into the blame game, except to note that:

One thing that did not surprise me in Snowjam 2014, a/k/a Snowlalypse, was the role tractor trailers played in the gridlock. Along my 11-hour trip home through ice and snow, I saw many tractor trailers operating as close to the posted speed limits as traffic conditions would permit until traffic ground to a halt. I saw very few tractor trailers that had slowed down without being blocked by traffic or that had been parked out of the traffic lanes to wait out the storm.

According to a report by Mike Morris and Andria Simmons in the Atlanta Journal-Constitution, GDOT Deputy Commissioner Todd Long pointed to traffic monitors and said, “What’s in common in every single accident we have today? Tractor trailers.”

In addition, tractor trailers contributed to gridlock by blocking expressway traffic lanes and exit ramps, as they could not get traction to get up even slight grades and hills, according to GDOT’s chief engineer Russell McMurry.

GDOT Deputy Commissioner Long said trucking companies continued to send deliveries into Atlanta after the storm started. He questioned whether there was legitimate need for them to be traveling inside the I-285 perimeter loop.  Pursuant to the authority granted in OCGA § 40-6-51, Georgia DOT has prohibited commercial truck traffic inside the I-285 perimeter of Atlanta except under limited conditions. GDOT requires that all trucks traveling on I-75, I-85, or I-20 must take I-285 around the city, except for the following reasons:

1. Pick up or delivery to or from a shipper physically located inside I-285;

2. Going to or from the carrier’s terminal facilities physically located inside I-285;

3. Going to or from a repair facility for service which is physically located inside I- 285;

4. A driver going to or from his residence located within the perimeter.

Otherwise, all large commercial trucks traveling on I-75, I-85, or I-20 must take I-285 around the city.

“They could be making deliveries, but it’s hard to believe they would be when most of the businesses are closed,” Long said.

Pretty much the same thing happened in the winter storm of January 2011. I recall I-20 inbound toward Atlanta was clogged with tractor trailers that kept driving into the snow and ice storm after they should have parked to wait out the storm. It took days to clear the tractor trailers from the expressways.

While trucking companies are not responsible for bad weather, they are responsible for exercising “extreme caution” in those conditions. Federal Motor Carrier Safety Regulation § 392.14, Hazardous conditions; extreme caution, provides:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

This is stated simply in the official Regulatory Guidance: “Under this section, the driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.”

Moreover, the Commercial Driver’s License handbook for every state in the US clearly explains the rule and specifies that in hazardous weather conditions the driver should slow down by at least one-third below the speed limit, and if necessary pull over.

Fortunately, I have not yet heard of any catastrophic crashes with tractor trailers in Atlanta’s Snowjam 2014. That may be because few vehicles could get up any speed while slipping and sliding on ice.

—–

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 castastrophic personal injury and wrongful death.

Our home state of Georgia has been ranked #1 in business climate, according to Site Selection magazine’s annual ranking of states’ attractiveness to corporate facility investors. The selection criteria included a survey of corporate site selectors, the states’ competitiveness, qualified projects so far in 2013 on a per capita basis and state tax burdens on new and mature firms.

Georgia  is now more economically competitive than states such as Texas that have enacted draconian measures to block access of injured people to their court systems.   Georgia has also become more attractive to businesses than North Carolina  and Tennessee , both of which have severely cut into the rights of injured people.

Nothing in Georgia’s legal environment holds back our business climate. Nothing about the availability of our court system to injury people and their survivors retards our economic competitiveness.

Georgia juries generally follow the state motto of “Wisdom, Justice, Moderation.”  And when the facts support a large verdict, Georgia juries are unafraid to adhere to the Latin inscription that hangs behind the Justices in the Supreme Court of Georgia: “Fiat justitia ruat caelum,” meaning “Let justice be done though the heavens fall.”

Before Site Selection magazine announced its state business climate analysis , site-selection teams at the dozens of manufacturers, biotech companies and aerospace concerns came to the same conclusion on their own, announcing Georgia locations for their next major capital investment projects.

Georgia is fortunate to political leaders today who recognize that it is infrastructure, education and tax systems that drive economic development, not “tort reform” measures that merely kick little people when they are down.

Ken Shigley is an Atlanta trial attorney who is a past president of the State Bar of Georgia and a board certified civil trial and pre-trial advocate of the National Board of Legal Specialty Certification .  His practice focuses on serious personal injury, wrongful death and commercial trucking litigation. 

There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.

The Georgia legislature in 2005 passed a poorly drafted omnibus bill designed to make it more difficult for injured people to recover their damages from parties at fault.  The Georgia Supreme Court eventually held the arbitrary cap on non-economic damages in medical malpracticecases was unconstitutional. Other provisions were either limited in their application or turned out to have unintended results that occasionally help well-represented injury victims.

But one section has virtually closed the courthouse to victims of serious personal injury  or wrongful death due to malpractice in hospital emergency departments. 

O.C.G.A. § 51-1-29.5  provides, in part:

(c) In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

(d) In an action involving a health liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the court shall instruct the jury to consider, together with all other relevant matters:

(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;

(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;

(3) The circumstances constituting the emergency; and  

(4) The circumstances surrounding the delivery of the emergency medical care.

Focusing on paragraph (c), most lawyers concluded that the standard of “clear and convincing evidence” of “gross negligence” is virtually a guarantee of immunity from liability for a health care provider or hospital in an emergency medicine context. In talking with potential clients who call about potential ER malpractice claims, I have often told them that this law virtually means that unless a doctor was obviously drunk and expressed a willful disregard for causing harm to the patient, the case was virtually unwinnable. It has become virtually impossible to find an experienced lawyer to take an emergency room malpractice case.

But paragraph (d) is also part of the statute. Now, finally, there is an appellate decision that focuses on the jury question of whether or not a particular treatment fit the definition of emergency care.

This month, in Howland v. Wadsworth, — S.E.2d —-, 2013 WL 5543486 (Ga.App., decided October 9, 2013),   the Court of Appeals  affirmed a $5,000,000 Gwinnett County judgment for a double amputee, holding that  whether the patient at some point had stabilized and was capable of receiving medical treatment as a nonemergency patient within the meaning of OCGA § 51–1–29.5(a)(5) was a question for the jury.  The jury could find, as it did, that the facts did not fit the definition of “emergency” so it could find for the plaintiff under the standard of preponderance of evidence of ordinary negligence rather than “clear and convincing evidence of gross negligence.”

In this case, the patient began experiencing pain in her feet and after several days noticed that her feet were cold and that she was unable to warm them, her pain worsened to the point she could no longer walk. She then called 911. An ambulance took her to the local hospital’s emergency room.  In the ambulance en route to the hospital, a paramedic assessed her condition, noted that she had normal vital signs and normal blood circulation in her legs, and obtained a brief medical history of diabetes and hypertension.  Upon her arrival at the ER, she was classified as a “level 4” patient, meaning that her condition was “non-urgent.” She was assigned a bed in “C-pod,” which is an area designated for the examination and treatment of patients who are expected to be “in and out in 90 minutes or less.” The triage nurse  noted complaints of significant pain in both feet that had increased over the past couple of days and that it was hard for her to walk. The nurse noted that her feet were cold to the touch, but that she had “positive” or “palpable” pulses in her feet at the time. 

Eventually, she was seen by a physician assistant who worked in the ER. He noted that Wadsworth was  “moderate” pain, ordered morphine, and did a differential diagnosis and ordered a venous ultrasound exam which ruled out deep vein thrombosis.  He did not order tests to check for partial arterial blockage. He diagnosed cellulitis, which can be treated with antibiotics on a nonemergency basis. Though the patient wanted to be admitted to the hospital for observation, she was given a prescription for antibiotics and pain medication and discharged after three hours in the ER.

About 12 hours later, an ambulance responded to an emergency call to her home in the middle of the night. Upon arrival, the paramedics found her unresponsive, with no blood pressure or pulse. After a paramedic performed CPR, vital signs improved, and she was again transported by ambulance to the same ER. Upon her arrival, Wadsworth had low blood pressure, a diminished pulse, and slow respiration, which are indicators of a near cardiac arrest. Later that afternoon, doctors performed an arteriogram  and determined that the arteries behind both of her knees were completely blocked.

Doctors later determined that the patient’s lower legs had suffered damage to the extent that they were no longer salvageable, and Wadsworth had both legs amputated below the knees.

Testimony of the physician’s assistant and physician that the patient was stabilized and properly could be discharged was evidence upon which the jury could determine that she was not in an “emergency” situation at that point, so that the ordinary negligence rather than “gross negligence” standard should apply.

All medical malpractice cases are still extraordinarily challenging. Emergency room malpractice cases are still even more challenging than others. But with this decision from the Court of Appeals, it may be a little easier to get lawyers to consider taking cases arising out of emergency department negligence in diagnosis and discharge.

Ken Shigley is an Atlanta trial attorney who is a past president of the State Bar of Georgia and a board certified civil trial and pre-trial advocate of the National Board of Legal Specialty Certification .  His practice focuses on serious personal injury, wrongful death and commercial trucking litigation.

Much of the funding for research and development has come from the Department of Defense in reaction to the large number of amputee survivors of the wars in Iraq and Afghanistan. However, as so often occurs, the technology spurred by wartime developments has broad civilian application.

One of the leaders in the field is Dr. Hugh Herr who at 17 lost both legs due to hypothermia in a mountain climbing incident. Driven forward by his rage at the prosthetic legs available at the time, he earned degrees from Harvard and MIT, won multiple patents for prosthetic innovations and became director of the Biomechatronics Research Group at the Massachusetts Institute of Technology Media Lab.

Among Dr. Herr’s projects now being pursued to improve prosthetic limbs  are:

1. Robotic ankle-foot prosthesis, one of Time magazine’s Top 10 Inventions of 2004, which mimics the action of a biological ankle and, for the first time, provides transfemoral amputees with a natural gait.
2. Artificial gastrocnemius muscle, a large muscle in the calf  which enables natural walking motion through plantar flexing of the foot at the ankle joint and flexing the leg at the knee joint.
3. Biomimetic active prosthesis for above knee amputees. The goal is to design a new generation of robotic knee prostheses capable of generating significant energy during level-ground walking, that can be stored in a battery and used to power a robotic ankle prosthesis and such activities as stair climbing.
4. Control of muscle actuated systems by electrical stimulation. The MIT team is investigating a variety of adaptive and robust control techniques to enable trajectory tracking, as well as mechanical power-output control under sustained oscillatory conditions. Got that?
5. Integrate “smart” technology into lower-limb prostheses. To address the effect of powered ankles on shock absorption and pressure where the prosthesis is attached to the leg, the MIT team seeks to integrate sensors and actuators into prosthetic legs so as to alleviate the increased risk of further amputations, excessive stress on both limbs, and discomfort at the stump/socket interface.
6. FitSocket. The FitSocket project aims to identify the correlation between leg tissue properties and the design of a comfortable socket. New 3D printers — of the sort my nephew in New York sells to industries around the country — will be useful for this.
7. Human walking model to combine joint mechanics, electromyography and mechanical economy. The hypothesis is that series-elastic clutch units spanning the knee joint can capture the dominant mechanical behaviors of the knee in level-ground walking.
8. Load bearing exoskeleton to augment running. A wearable exoskeleton designed place a stiff fiberglass spring in parallel with the complete leg during stance phase, then removes it so that the knee may bend during leg swing. The result is a bouncing gait with reduced reliance on the musculature of the knee and ankle.
9. Neural control of advanced prosthetics.  Researchers are working to develop means to allow amputees to control their powered prostheses by activating the peripheral nerves remaining in their residual limbs. This would be more natural than currently used myoelectric controls.
10. Sensor-fusions for EMG controlled prosthestics.  Researchers are working on improving the types of terrain a robotic ankle can successfully navigate by using command signals taken from the intact and residual limbs of an amputee combined with signals from sensors attached to the robotic ankle.
11. Variable impedance prosthetic (VIPr) socket design. To relieve the universal pressure discomfort in prosthetic sockets, researchers are developing methods for 3D scanning of anatomical points of residual limbs in order to perfectly match them with prosthetic sockets.
12. Volitional control of powered ankle-foot prosthesis.  This projects seeks to give transtibial amputees volitional control over their prostheses by combining electromyographic (EMG) activity from the amputees’ residual limb muscles with intrinsic controllers on the prosthesis.

As a lawyer representing amputation injury survivors, when there is insurance coverage or assets sufficient to pay a judgment, I need to consider these advances in working with a life care planner to project economic aspects of damages.

——————

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 castastrophic personal injury and wrongful death.

Maybe that is why most of my biking is on the Silver Comet Trail and other designated bike paths.

When we do ride on busy Atlanta streets, there are some practical bike safety tips we should keep in mind:

1. Protect yourself from head injuries.  One study reported that 97% of people killed in bicycle accidents were not wearing helmets. Wear a properly fitted bike helmet that has never sustained a crash.
2. Make yourself highly visible to drivers at all times. Never assume that just because you can see a car, the driver can see you.  Even if they are not talking on a cell phone or texting, they probably don’t see you unless you make yourself conspicuous. Assume the worst.  Any time you as a cyclist share streets with motorists, day or night, use powerful head and tail lamps, reflectors and light colored or reflective clothing.
3. Ride as far as possible to the right side of the road-with the traffic flow, not against it.
4. Obey traffic signs and signals just as if you were driving a car. Bikes must follow the same rules as  motorized vehicles. Obey all traffic signals and signs, and visually confirm an intersection is safe before entering it.
5. Use correct hand signals when making turns.  But visually confirm it is clear to make your turn, as too many drivers won’t notice the hand signal, won’t understand it or won’t care.
6. Use bike lanes where available — which is unfortunately rare in Atlanta.
7. Yield to Pedestrians and stay off the sidewalk (except for children). But I admit that when biking to the YMCA before dawn, I have sometimes chosen to go slowly on a deserted sidewalk rather than riding in a busy traffic lane with no paved shoulder or bike lane available.
8. Don’t weave in and out of traffic.
9. Don’t wear earphones while riding 
10. Know your own capabilities.  For example, until you are accustomed to clip-on pedals, be extra cautious about clipping in to your pedals when riding on a street with car traffic.

According to the Georgia Department of Transportation, 19 Georgians died in bike crashes  in 2012, compared with only 13 bicycle deaths in 2011.
While Georgia is behind some other states in promoting bike lanes, and Atlanta does not even make the list of the top 50 bike-friendly cities,  we are making progress.  We anchor one end of the Silver Comet and Chief Ladiga trails, a 95.5 mile paved path on a converted railroad bed linking Smyrna, GA, and Anniston, AL.  The PATH Foundation and Atlanta Bicycle Coalition are working to link together fragments of bike routes. In 2012 Atlanta made the Beltline Eastside Trail and 5th Street “green bike lane” open to cyclist wishing to escape the hub of traffic.

The importance of using bike paths and lanes is highlighted by the fact that none of the bike fatalities in 2012 occurred while the cyclist was in a bike lane that was separated from the road. These “cycle tracks” or “bike lanes” have been popping up all over the United States in big cities such as Chicago and New York.

Still, bike lanes practical for safe bike commuting are far too rare in Atlanta.  Over the past year, I have tried to find  a safe, practical way to commute by bike from my home in Sandy Springs to my office in Midtown Atlanta, other than just biking to the MARTA station nearest my home and then riding the train.  I found a convoluted route that would limit mixing with heavy traffic by roughly doubling the distance traveled. But there are just three places to cross Peachtree Creek, all on extremely busy streets without bike lanes. It’s just not worth it for me.

Looking forward, Georgia is looking into a project that would create safe bike lanes for cyclists. These lanes would be physically separated by planters or raised curbs and could dramatically affect the risk of bicycle injuries and deaths. The GDOT has adopted a “Complete Streets” Policy which calls for the construction teams to consider all modes of transportation a person might take including cycling and walking.

Along with planning for long-range changes to the road systems, Georgia has made progress over the past two years regarding bicycle safety laws.  In  2011 a “Better Biking Bill” was enacted by the General Assembly and signed by Governor Deal, including a requirement that states there must be at least three feet between a vehicle and a bicycle and increasing penalties for violations. Fines were raised to $250 for a first time violation, and a second violation gets a $500-$1,000 fine and 10 days to a year in jail.

But this brings to mind something my grandmother taught me: “He was right as rain as he sped along but he’s just as dead as if he had been wrong.”  It is good to have a law requiring drivers to give space to bikes, but it does not help the bicyclist who encounters a driver who ignores it.

There have been too many incidents of bicyclists with the right of way struck by cars and trucks – in Marietta in April 2013 , in Bartow County in November 2012 and others.

Rebecca Serna, executive director of the Atlanta Bicycle Coalition,  worries about the risks of hit and run accidents

“Hit-and-runs are more likely to result in the vulnerable user – the pedestrian or cyclist – becoming a fatality, because no one was there to call for help,” Serna said. “While crashes can happen to anyone, leaving the scene of a crash turns it into a crime. We are calling on all Georgians to drive or cycle with care and attention, and to always stop to render aid when they see someone in need.”

——————

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 castastrophic personal injury and wrongful death.

Every summer thousands of metro Atlanta residents take to the surrounding lakes in boats. And every summer we see fresh cases of boating accidents, often collisions between watercraft in which someone is drinking alcohol, often at night, killing or injuring people involved. Boating under the influence is a major hazard on Georgia lakes.

Last July on Lake Lanier, a fishing boat collided with a pontoon boat at night, immediately causing the deaths of two young brothers.The operator of the fishing boat failed a field sobriety test and refused to take a blood alcohol test. He was charged with boating under the influence, first-degree homicide by vessel, refusing to render aid and several other offenses. This week Hall County Superior Court Judge Kathy Gosselin denied a defense motion to dismiss those charges.

This incident, among others, helped prod the Georgia General Assembly to pass legislation

earlier this year to lower the blood alcohol limit for boat operators to 0.08 gr/%, the same for regular motor vehicles on the roads. Governor Nathan Deal, who is from Gainesville on Lake Lanier, is dead serious about cracking down on boating under the influence in order to save lives on Georgia’s lakes.

Nationally, according to the US Coast Guard, in 2012 some 4515 recreational boating accidents caused 651 deaths and 3000 injuries. The fatality rate was 5.4 deaths per 100,000 registered recreational vessels. The Centers for Disease Control in Atlanta, which deals with accidental injury risks as well as communicable diseases,  says alcohol use affects judgment, vision, balance, and coordination, is involved in about a third of all recreational boating fatalities, and is just as dangerous as driving under the influence on land.

Georgia boaters should study the Georgia boating safety rules including those on unsafe operation, accidents and casualties, and alcohol, take a boating safety course and generally increase their awareness of water safety and boating safety issues.

Unfortunately for victims, Georgia law still lags on financial responsibility for boating, as insurance is not required for a boat license. That may be an issue for legislators to consider in the future.  However, smart boat owners carry liability insurance for their boats and personal water craft. Representation of boating accident victims requires knowledgeable counsel who can make a thorough exploration of all insurance coverage possibilities.

———–

Ken Shigley is past president of the State Bar of Georgia (2011-12), is double board certified in civil trial advocacy and civil pretrial advocacy by the National Board of Legal Specialty Certification, published a book on trial preparation, and has a selective personal injury and wrongful death law trial practice based in Atlanta.

Supervised by the Governor’s Office of Highway Safety, this commission will prepare reports to the governor outlining ideas for a statewide strategy to educate teen drivers on hazards such as drunken driving and texting and driving.

“No one can advise our state on how to reach teenagers better than teenagers,” said Harris Blackburn, director of the highway safety office.

The deadline for teen drivers to apply to serve on the commission is Sept. 20.

It has been a long time since I was a teen driver, though only a few years since my children were teen drivers. We tend to forget how different our skills and judgment were when we lacked experience behind the wheel. This is a good move to collect fresh insights from today’s teen drivers.

Having worked with Governor Deal’s team on the Criminal Justice Reform Council, I am confident that this is not just window dressing but a legitimate effort to find ways to improve the safety of teens on the roads.

———————————————————————

 Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle). He currently serves on the Georgia Criminal Justice Reform Council.

Do advocates of more “loser pays” rules offer a solution in search of a problem?

Are people unaware of the “loser pays” sanctions that are already part of Georgia law?

As discussed in previous posts, Georgia already has five statutory “loser pays” rules, four of which passed in tort reform legislation during the time I have been practicing law, and one we have had since the Civil War. Georgia needs a sixth “loser pays” about as much as it needs a sixth law school at a time when graduates of the existing law schools have a really hard time finding jobs.

Georgia’s five “loser pays” rules are:

1. Offer of judgment / offer of settlement. O.C.G.A. § 9-11-68, passed as part of the 2005 tort reform legislation, provides for an award of attorney fees and expenses against a party that refuses to accept a settlement  offer and at trial does not improve upon the rejected offer by at least 25%.
2. Post-verdict jury award due to frivolous claim or defense. O.C.G.A. § 9-11-68(e), also part of the 2005 tort reform legislation, provides a remedy to recover “reasonable and necessary attorney’s fees and expenses of litigation.” Upon motion of the prevailing party when a verdict or judgment is rendered, in a bifurcated proceeding the finder of fact may determine whether the opposing party had presented a frivolous claim or defense, and then award damages against the party presenting the frivolous claim or defense.
3. Motion for fees and expenses where claim or defense was without substantial justification. O.C.G.A. § 9-15-14, enacted in 1986 tort reform legislation, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or  harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.”
4. Abusive litigation tort claim.  O.C.G.A. §§ 51-7-80 et seq., enacted in 1989 tort reform legislation, created a statutory tort of abusive litigation giving rise to liability against “any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another . . . if such person acts [w]ith malice; and [w]ithout substantial justification.” The claim for abusive litigation is initiated by a notice, with statutory proof of delivery, giving the other party an opportunity to voluntarily drop the allegedly abusive claim,defense, motion or position.
5. Code of 1863 – claim for fees and expenses due to bad faith, stubborn litigiousness, unneccessary trouble and expense. OCGA § 9-6-11, which has been in Georgia law since its enactment with the Code of 1863, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

I’ve always heard that if it ain’t broke, don’t fix it. Five “loser pays” rules is enough. Short of automatically taking the home and first-born child of anyone who loses in court, what more can anyone ask in the way of “loser pays” rules?

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

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.

———————-

Bar committee OKs rule change
Public defenders in same circuit would be allowed to represent co-defendants under proposed amendment

The State Bar of Georgia’s Disciplinary Rules and Procedures Committee on Wednesday unanimously approved a rule change that would allow public defenders in the same circuit to represent co-defendants unless specific conflicts of interest are identified.

The proposed amendment to the Georgia Rules of Professional Conduct on imputed disqualification, also known as Rule 1.10, states: “(d) A lawyer representing a client of a public defender office shall not be disqualified under this rule because of the representation by the office of another client in the same or a substantially related matter unless there is a conflict as determined by Rules 1.7, 1.8(f) or 1.9,” which determine conflicts of interest, according to Bar President Kenneth L. Shigley.

Backers of the amendment hope it serves as a compromise in a debate that has burned hot since April 2010, when the bar approved a formal advisory opinion prohibiting intra-circuit representation of indigent criminal co-defendants. Critics of that opinion, which is pending review by the state Supreme Court, said it would result in higher costs for the cash-strapped indigent defense system as more expensive outside lawyers would need to be hired to resolve conflicts.

But some lawyers questioned whether the proposed amendment would have any significant effect.

On Wednesday, Shigley said the new rules change allowing intracircuit representation of co-defendants should help public defender offices handling cases with multiple defendants where there is only a potential conflict.”The proposed amendment to Rule of Professional Conduct 1.10 is a measured, moderate approach to representation of multiple defendants in the public defender context,” Shigley said in a written statement. “It recognizes the need for practical flexibility in administration of the statewide public defender system, without diminishing lawyers’ ethical standards or defendants’ rights to vigorous, conflict-free representation.”

. . . .

The proposed amendment will go to the bar’s Executive Committee, which is scheduled to meet on Oct. 6 in Macon. Then, it would need the approval of the bar’s Board of Governors, which will convene on Oct. 29 at Jekyll Island, and finally the state Supreme Court before going into effect.

The state high court agreed to review the formal advisory opinion last year, but in August it delayed any decision until January. Members of the bar, as well as the Georgia Public Defender Standards Council, began publicly discussing a rules change that would have exempted public defenders from the conflict rules applied to private firms late this summer.

Georgia Public Defender Standards Council Director W. Travis Sakrison spoke against the formal advisory opinion during Wednesday’s hearing of the Disciplinary Rules and Procedures Committee.

According to Sakrison, the formal advisory opinion would require all public defender offices to divest themselves immediately of all co-defendants in cases where there may be a potential conflict. That rule would balloon the number of conflict cases and drain the public defender system of resources, he said. The estimated cost of finding new conflict counsel would have required the GPDSC to ask the Legislature for millions more in its budget, he said.

Instead, many circuit public defenders wanted their offices to have the ability to represent co-defendants up until the point an actual conflict arose, as long as proper ethical screens, such as separate computers and filing areas, were in place the entire time. And then, if there were an actual conflict, the public defender office could retain one of the co-defendants.

But supporters of the formal advisory opinion said the opinion supported the existing rules, which already outline conflicts and are meant to ensure adequate representation of indigent criminal defendants—a statement the Disciplinary Rules and Procedures Committee chairman, John G. Haubenreich, agreed with on Wednesday.” . . . .