1. Inadequate insurance on Georgia log trucks.

Georgia law requires only $100,000 liability insurance for 18-wheeler log trucks with tree-length timber that operate only within Georgia’s state lines. This is grossly inadequate for catastrophic injury and wrongful death cases. Through decades of experience, we have found ways to locate other insurance coverages and multiply the potential recovery. In a recent log truck case in rural Georgia, we recovered sixteen times the truck’s insurance policy limit—$1.6 million—although the coverage on the truck was only $100,000.

2. Visual confusion of overlength loads in Georgia log truck accidents.

Drivers approaching an overlength log load from the rear confront a lot of visual confusion as the load extends far beyond the end of the trailer. Often, the end of a load of logs bounces around, almost dragging on the pavement and obscuring the taillights of the trailer. The fancy word for this is “conspicuity.” This is especially dangerous in twilight or dark, too often causing impalement or beheading of an innocent person in a following vehicle.  We have had numerous cases where a load of logs extending twenty feet or more behind a trailer impaled the vehicle of an innocent driver.

3. Log load swing out on turns.

Another hazard is when an extended load of logs swings out in a turn. We had a case in which a log truck driver in predawn darkness was making a U-turn on a divided four-lane highway. The extended load of logs formed a black fence in the dark across a traffic lane. The grisly results of such accidents are all too predictable.

4. Inadequate Georgia log trucking safety rules.

Log trucks operating solely within the state lines of Georgia are subject to the Georgia Forest Products Trucking Rules, not the stricter Federal Motor Carrier Safety Rules. These state rules were written by representatives of the logging industry in a way to avoid citations and prosecutions for unsafe practices. There is no specific rule on one of the greatest hazards, tree-length logs hanging twenty feet or more off the end of a trailer on highways. Through long experience, we have found ways to layer the federal rules and other industry materials with expert testimony from retired loggers with many years of experience to support a standard of safety that is more reasonable than the minimal, lax state regulations.

5. Weak enforcement of Georgia’s weak log truck safety rules.

Georgia law requires both a red flag and a red light on the extreme end of the load must be plainly visible from 500 feet to the rear and sides. While some sort of light is usually hung at the end of the load, it is rarely visible more than about fifty 50 feet behind the truck on the highway. Often when following log trucks, you may see the required light is weak, flickering, with a loose bulb, poor wiring, and poorly maintained. The red flags are often extremely dirty, stained, and barely visible.

The same is true about side reflectors, which are required on log trailers to make them visible to drivers approaching from the side at night. The reflectors are often thickly covered with mud, damaged, or missing. With few trucking safety enforcement officers spread thin across the state, enforcement is rare.

6.  Inadequate training of Georgia log truck drivers.

Due to low qualification requirements and low pay, log truck drivers are often the least trained and qualified truck drivers on the road. Log truck drivers can be 18 rather than 21, and with only a brief Commercial Driver’s License training course that covers nothing about the unique hazards of log trucks. They are often nice people but are not well trained. The basic Commercial Driver’s License training does not cover anything about extended-length loads of logs or the need to make sure logs are cut shorter for safety. In one recent fatality case, the log truck driver was a recent immigrant from Guatemala who had been driving a truck only a short time and had no training about the specifics of log truck safety.

7. Unconscious bias of rural law enforcement officers in favor of log truck operators.

Nearly all log truck operators, drivers, and crashes are in rural counties where the forest products industry is a major part of the local economy. Everyone in the county – including law enforcement officers and potential jurors — grows accustomed to seeing objectively unsafe practices in log truck operations, so they think the danger is normal. Law enforcement officers and potential jurors in those counties are likely to have friends and relatives who are timber producers and haulers. Knowing this is hard labor, it is only human to be sympathetic to the log truck operator. We are alert to ways of dealing with unconscious bias and overcoming it.

8. Inadequate training of law enforcement officers responding to log truck crashes in Georgia.

Even if they are not biased in favor of log truck operators because a friend or relative is one, the rural deputy sheriffs who most often respond to log truck crashes have not been trained on the inadequate Forest Products Trucking Rules. They don’t know that a light in the rear of the load must be clearly visible from 500 feet. They don’t know how many reflectors must be clearly visible on the side of a trailer. They don’t know to ask who loaded the trailer or where they are hauling the logs to. Because they are not trained in this, they do not get a lot of critical information or take the right photos at the scene. At Johnson & Ward, through long experience we have found ways to ferret out critical information that officers not adequately trained in log truck safety do not know to look for.

8. Unfavorable venues for Georgia log truck accident cases.

Lawsuits must be filed in the county where a defendant resides. Logging operators almost always reside in rural counties where the forest products industry is dominant and most jurors have friends and relatives who work in that industry, so they are accustomed to seeing unsafely overloaded log trucks every day. Their sympathies lie with the log truck operator. At Johnson & Ward, through long experience we have succeeded in securing venue in urban counties where judges and jurors can view unsafe log truck operations with fresh eyes.

If a tragic log truck accident has impacted you or your family, contact us today. Let our experience work for you.

Over decades representing individuals and families devastated by highway crashes with large trucks, one of the most poorly understood hazards we have seen is that of tractor trailers parked on the side of the road. Among the hazards presented by semi trucks parked in the emergency lane is decapitation of people in an approaching car due to trailer underride.

Often late at night on Georgia highways, we see tractor trailers parked on what many people commonly refer to as the “emergency lane” next to the traffic lanes. Unfortunately, many people even in the trucking industry do not appreciate how dangerous this can be for the truck driver and for motoring public.

Stopping on the roadside increases risks of a potential deadly crash, which can be prevented through management practices that include good trip planning, vehicle inspections, and appropriate equipment maintenance.

Due to the severe risk posed by parking on the roadside, trucking company management should require drivers not to stop along the roadside in non-emergency situations. At the very least, trucking companies should instruct drivers to exit the highway and find a safe place to park when necessary.

The hazard is multiplied when large trucks park on the roadside at night without using hazard flashers and warning devices. Just about every time I make a road trip at night, I see an unilluminated tractor trailer parked in the dark inches from the traffic lane.

If a driver absolutely must stop on the side of the road, motor carriers should train drivers and dispatchers on actions that can be taken to reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include:

• Immediately turn on hazard flashers when slowing and leave them on while stopped.
• Immediately set out warning devices (reflective triangles or flares) in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR § 392.22.
• Keep marker lights on after dark.
• Avoid parking on curves or on the downside of undulated roads that obscure the approach of oncoming traffic.
• Park as far off the traveled roadway as safely possible. Remember shoulders can be soft and have a steep drop-off or ditch.
• When stopped, set parking brakes.
• Notify employer as soon as possible to arrange roadside assistance.
• Avoid falling into traffic by using three points of contact exiting /entering the cab or climbing onto the catwalk or trailer.
• Walk along the side of the vehicle opposite traffic.
• Watch out for debris or uneven surfaces when outside the vehicle.
• Use a visible flashlight after dark.
• Wear reflective clothing (such as a high visibility safety vest) when exiting the vehicle.

National highway design standards from the American Association of State Highway and Transportation Officials (AASHTO) recommend construction standards for shoulder and right of way design. This includes the removal of dangerous obstructions such as, trees, steep slopes, or abutments. The reason for this design standard is to clear the roadside of obstructions which hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails feasible to redirect errant vehicles back onto the paved portion of the roadway.

The Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

According to the Roadside Design Guide by the American Association of Highway Transportation Officials, highway shoulders, a clear zone is

The total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

The Clear Zone, is further defined as

An unobstructed, traversable roadside area that allows a driver to stop safely, or regain control of a vehicle that has left the roadway. The width of the clear zone should be based on risk [of immediate danger]. Key factors in assessing risk include traffic volumes, speeds, and slopes. Clear roadsides consider both fixed objects and terrain that may cause vehicles to rollover.

Thus, the shoulder of the highway isn’t designed for parking at all. It is a “clear zone” or “recovery zone” and not a parking area. But every day we see 18-wheelers parked in the “recovery zone” or shoulder, over parked overnight and not illuminated.

Personal cars and trucks are doing the same thing, but the hazard they present is less severe. When a truck driver parks an 18-wheeler or other large Commercial Motor Vehicle (CMV) in on the shoulder of a highway in what is designed as a “Clear Zone,” the driver creates an eminent hazard to occupants any vehicle which may depart, for whatever reason, from the travel portion of the roadway.

Tractor trailers parked in the “clear zone” or “recovery zone” present a vastly greater danger to people in approaching cars that would another car parked in the same position. When a car veers out of its lane and collides with a stopped car of the same size, there may be serious injuries. But when the same car collides with an 80,000 pound tractor trailer, the physics of the collision is vastly different.   Semi-trucks are not only larger and heavier than regular vehicles, but their trailers also stand high off the ground. If a car traveling at highway speeds comes into contact with the trailer of an 18-wheeler, the big rig is the perfect height to sheer off the top of the car and kill or perhaps decapitate anyone inside.

Even if a parked semi-truck is illuminated at night, there is a recognized condition known as the “Moth Effect” which may contribute to an unwary driver running into a truck parked on the shoulder. The “Moth Effect” occurs when drivers are attracted to flashing lights or other things along the roadway, especially when fatigued.  The “Moth Effect” is especially likely when visibility conditions are reduced at night or in heavy rain which is common in Georgia.

When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, we investigate deeply and retain appropriate experts. We have to determine why the driver chose that particular spot to pull off and stop.  We normally download electronic control module data and other electronic records from both vehicles. Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break.” Did the driver have the ability to stop in a safer location?

A lot of people who see these collisions and are uninformed on the safety standards involved assume that it is always the fault of the driver of the car that struck the parked tractor trailer. Thus, it is necessary to thoroughly investigate and, we hope, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash.

If a loved one is killed or injured due to collision with a tractor trailer parked on the roadside, call us at (404) 253-7962 for a consultation to see whether or not there is a viable case.

Ken Shigley is recipient of the 2019 Tradition of Excellence Award from the State Bar of Georgia General Practice and Trial Section. He is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.

Strategy is essential in litigation. Among the most important strategic considerations is determining in which court a case may be litigated and tried. Most trucking crash cases involve an analysis of jurisdiction and venue questions.

In Georgia state courts, cases must be filed in a county where a defendant is a resident. Federal courts are options if there is complete diversity of citizenship, meaning that all plaintiffs reside in a state different from all defendants, or if there is “federal question” jurisdiction. In tractor trailer crash cases, we usually but not always file in state courts in Georgia because of the relatively more user-friendly procedures in the state court system. Occasionally, we choose to file in a federal court when available rather than a small, rural county where the trucking company and its driver are located. Most often, plaintiff attorneys file cases in state courts against out of state trucking companies and drivers based on the Nonresident Motorist jurisdiction provisions which provide for venue where the crash happened or where the injured Georgia resident resides, Then the defense usually files a notice of removal to federal court under “diversity of citizenship” jurisdiction.

Rarely does a defendant in a trucking case claim “federal question” jurisdiction in federal court. However, that happened in a case recently in which we are co-counsel in five of six cases arising from a tragic crash at the intersection of I-16 and I-96 in Pooler just outside Savannah, and preparing the briefs in all six companion cases. As the plaintiffs and two defendants are Georgians, there was no diversity jurisdiction. The last defendant served filed notices to remove all six cases from the State Court of Chatham County to the U.S. District Court for the Southern District of Georgia, claiming that the Shipping Act of 1984 created federal question jurisdiction. We immediately filed motions to remand all the cases back to the State Court of Chatham County.

One of the six cases was assigned to the Hon. Lisa Godby Wood in Brunswick and five were assigned to the Hon. William Moore in Savannah. Within two weeks after completion of briefing on the motions to remand, Judge Wood on January 9, 2017, granted the motion to remand in an order that has been published online in the Westlaw database. Moody, et al v. Great West, et al, 2017 WL 77417 (Wood., J.)(S.D. Ga. Jan. 9, 2017).

Under federal case law cited by Judge Wood, removal statutes are construed narrowly and uncertainties are resolved in favor of remand. This is due to respect for state sovereignty and the independence of state courts, as state courts are generally presumed competent to interpret and apply federal law. Removal is also construed narrowly because the plaintiff is the master of the claim and may avoid federal jurisdiction by exclusive reliance on state law.

Shortly thereafter, Judge Moore announced he was taking his well-earned senior status as he approached his 77th birthday.  U.S. Magistrate Judge Stan Baker of Brunswick has been nominated as his successor. A U.S. Senate confirmation hearing for Judge Baker may come around the end of the year, though apparently no one really knows. We have no idea whether there will be an order on the motions for remand in the other five cases before Judge Baker takes office.

The defendants removed these case to the Southern District Court of Georgia claiming that there were federal questions a under the Shipping Act and Federal Motor Carrier Safety Regulations. Defense attorneys often attempt to remove their client’s case to a federal court in an effort to afford a higher level of protection for their out of state client who may fear a plaintiff’s “home court” advantage, or simply to bog down a case in federal court procedures that some lawyers believe are more likely to favor the defense.

However, the statutes concerning removal are construed narrowly out of respect for a state’s sovereignty and the state courts independence. To that end the Court looked to see if we had raised a federal claim or if perhaps there may have been a substantial federal question embedded somewhere in our claim.

Judge Wood’s order in January thoroughly eviscerated the claim of “federal question” jurisdiction in an intermodal trucking cases based on the Shipping Act of 1984. Judge Wood ruled that we had not raised a federal claim as our sole cause of action, wrongful death, was a state claim. While the legal theory makes reference to the Shipping Act and Federal Motor Carrier Safety Regulations, which are both federal law, the Court agreed that “the mere presence of a federal issue in a state cause of action” does not make it into a federal one.

The Court then looked at whether our claim contained a substantial federal question somewhere within it. When determining if there is the possibility of an embedded federal question in a claim there are a few factors a court will look at. First it’s important to understand what might be considered substantial. Substantiality depends on how important or impactful the issue at hand is going to be when weighed against the federal system as a whole. There are no “bright line” rules on this. In fact, the Supreme Court went so far as to compare a relevant precedent to that of a Jackson Pollock painting. What the Court will do is ask questions such as “Will this case control many other cases?”, or, “Does the federal government have an interest in litigating this case in a federal forum?”

Our team was successful in showing the Court that our claim was not going to have a substantial impact on the federal justice system or far reaching implications into federal law that may change the outcomes of future cases, but rather that our claim would have meaningful and substantial impact to the family members who were affected by the wrongful death of their loved one and the Court remanded to Georgia state court where this case belonged.

Despite the delay surrounding nomination of a new judge, we are optimistic that ultimately there will be a ruling in the other five cases consistent with Judge Wood’s order, and that all six cases will find their way back to the State Court of Chatham County for trial.

 Ken Shigley is a past president of the State Bar of Georgia, former chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation and Practice now in its eighth annual edition, a Certified Civil Trial Attorney of the National Board of Trial Advocacy, past chair of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice, past chair of the Georgia Insurance Law Institute, and a Diplomate of the National College of Advocacy. He has handled many catastrophic truck crash cases involving wrongful death, serious personal injury, neck and back injury, brain injury, spinal cord injury and burns. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Truck crash on I-16 at I-95 on 5/19/2015 killed 5. Truck driver admitted falling asleep, is charged with 5 counts of vehicular homicide.

In the spring of 2015, there were two separate five-fatality truck crashes on I-16 in Georgia. The first one got most of the publicity because the victims were all beautiful young nursing students, but both were equally lethal and egregious. In both cases, there were at least indications that a truck driver fell asleep before running over a line of stopped traffic.

On April 22, 2015, in Bryan County, John Wayne Johnson, a truck driver from Louisiana driving for Total Trucking, a subsidiary of US Express, ran over vehicles stopped traffic. He killed five Georgia Southern University nursing students and injured two others. It appears he went to sleep as there was clear visibility on a long, straight stretch of road before he ran over the stopped vehicles. Johnson admitted he had been texting and exchanging sexually provocative message with a woman while driving but denied he was on the phone at the time of the crash.

Less than a month later, on May 19, 2015, on I-16  at its intersection with I-95, a line of traffic was stopped due to road work. David Gibbons of Pooler, driving from Georgia Freightways Corporation, while towing an intermodal container chassis trailer that carried a shipping container for CMA CMG (America), LLC, the US subsidiary of a French shipping line. The tractor-trailer was seen weaving for some distance prior to crashing into the line of stopped traffic, killing five people and injuring one. While the driver’s cell phone was allegedly destroyed in the resulting fire, phone bills indicated he was connected to the internet all day. He admitted to police on video at the scene, “I must have went to sleep.” The GBI crime lab found that he had a sleeping medication in his system, the most common trade name for which is Ambien. In deposition, he asserted his 5th Amendment right to remain silent on every question other than his name. (Disclosure: Our firm is involved as co-counsel in several of those cases.)

This spring, the Chatham County District Attorney charged Gibbons for five counts of vehicular homicide for the May 2015 crash.. This week, a Bryan County grand jury indicted Johnson for on nine counts based on the April 2015 crash, including five counts of first-degree vehicular homicide, serious injury by vehicle, reckless driving, following too closely, and failure to exercise due care. In an unusual move, the company that employed him was also indicted.

Several weeks ago, the civil cases arising from the Bryan County case were settled for substantial amounts. That was relatively simple as such things go since the trucking company and its parent company reportedly had $100 million in liability insurance coverage.

The Chatham County civil cases remain pending. It is more complex because a small trucking company with few assets had only had $1 million liability insurance coverage, so it is necessary to involve companies that are responsible for the flow of intermodal freight traffic into and through Georgia. Those cases remain actively in litigation with trial dates scheduled in 2017.

The conditions that led to both of these lethal crashes remain essentially unchanged. Truck traffic, largely to and from the Port of Savannah, may have had some cyclical waning but remains heavy. Tired and impaired truck drivers are still on the road. The Georgia Department of Transportation continues to repair sections of roadway, leading to lane closures and occasional traffic backups.

Moreover, trucking companies still resist use of forward collision avoidance technology and in-cab devices to monitor and alert drowsy drivers.  As Congress is concerned more about protecting trucking companies from implementation of more safety measures than with safety of the public on the roads, these tragedies will continue until being unsafe becomes more expensive than being safe.

Ken Shigley is 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 a member of the Board of Governors of the Academy of Truck Accident Attorneys,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.shigley@johnsonward.com.

Imagine that a commercial airliner crashed every other week in the United States, month after month, year after year. That is the level of carnage we have today in large truck crashes on America’s highways. In 2013, there were 3,964 people killed and an estimated 95,000 people injured in crashes involving large trucks, according to the National Highway Traffic Safety Administration. That year an estimated 342,000 large trucks were involved in police-reported traffic crashes during 2013. Of the fatalities in 2013, 71 percent were occupants of other vehicles, 17 percent were occupants of large trucks, and 11 percent were nonoccupants.

In our law practice, we see a portion of this carnage all the time. After years of seeing the aftermath of immeasurable damage to human bodies, and tucking into sealed files the photos I can never show to family members of the deceased, I still cringe at those sights.

Why does this mayhem continue on our highways, year after year? Here are some of the major cause:

• Speed too fast for conditions is most common single factor, involved in 58% of crashes and attributable to the large truck in 65% of those. I suspect that is underestimated because the data comes from police reports. While police try to do a good job, they typically do not have access to electronic control module data and are often not trained on trucking rules. If there is a fatal t-bone crash involving a tractor-trailer and a car entering from a side road, police may just blame the deceased driver of the car without digging deeply enough to know that the truck was exceeding the speed limit and could have stopped if it had been traveling at the speed limit. If a large truck is traveling the posted speed limit on a sheet of ice, even though their rules require “extreme caution” in adverse weather and when operating on ice to “reduce speed to a crawl and stop driving as soon as you can safely do so,” an officer ignorant of those rules may still blame the victims. I have seen both factors recently in my trucking litigation practice.
• Straying from lane of travel or driving on edge of the road. This factor is about equally attributable to large trucks and other vehicles. We see cases where this has happened. Without reliable eyewitnesses, it is often difficult to ascertain which vehicle veered out of its lane in the absence of clear physical evidence on the roadway.
• Driver errors, such as failure to keep a proper lookout or following too closely. We often handle cases in which a tired or distracted truck driver failed to observe traffic slowed or stopped ahead and ran over passenger cars that were just sitting ducks in the road. We handled a case in Brunswick in which a trucker was talking on his cell phone with someone in South America and did not see the line of stopped traffic in which he killed three people and injured several others. We have a case in Savannah in which a sleepy, inattentive truck driver failed to observe that traffic had stopped in a construction zone; he killed five people and seriously injured another.

Of course, most of these factors can contribute to crashes of smaller vehicles. Most of us have experienced fatigue when driving on long trips, or have had lapses of attention while driving. But large trucks are different. Basic physics of mass and kinetic force is a big difference. Large commercial trucks weigh up to 80,000 pounds, and some of them are allowed to weigh more. Because of their greater size, it can take twice as much time and distance to stop as a passenger car even if brakes are working perfectly.

They also operate for vastly more miles per year that passenger cars, so that maintenance needs are greater.

• Mechanical violations. A study in 2010 found that 56% of trucks involved in crashes had at least one mechanical violation, and 30% had a condition so serious it should have been taken out of service before the wreck. The most common of those mechanical violations involved brakes.
• Brakes. Various studies have reported that from 36% to 56% of large trucks inspected after crashes are found to have defective brakes, and that trucks with faulty brakes are more than twice as likely to be the vehicle that caused the crash.
• Steering. The same study revealed that 21% of trucks in crashes that were inspected had defects in steering equipment.

Most truck drivers are hardworking, responsible people, but they are fallible. Their long hours, mostly sedentary lifestyle and the difficulty of earing healthily at truck stops

• Driver fatigue. Hard working truckers tend to drive too long and sleep too little, with outcomes that are predictable. They have “hours of service limits” and are required to log their time driving, on duty but not driving, off duty and in the sleeper berth. The current limits are 11 hours driving out of 14 hours on duty, followed by at least 10 hours off duty, up to 60 hours in a week or 70 hours in an 8 day period on the road. But they can under certain circumstances restart the clock and get behind the wheel. That provision can allow a truck driver to drive up to 81 hours per week.  As many as one-third of truck drivers admit to falsifying their hours of service logs, often under pressure from employers and shippers to get the job done quickly, to meet financial incentives, or simply to make more money. While there is no easy scientific test to determine when fatigue contributes to the cause of a crash, but we can often peel away the layers of deception through detailed review of trip records. Once after deconstructing his trip records, a trucker in Ohio admitted to me in deposition that he had been driving 20 of the previous 24 hours, had driven from Ohio to Atlanta, back to Ohio, and after a one hour nap started driving back to Atlanta. He ran over a family and killed their son. In another case, a truck driver actually admitted on police video at the crash scene, “I must have went to sleep.”

• Driver impairment. In addition to fatigue, illness, drugs and alcohol can be factors. Obstructive sleep apnea is an illness that underlies many fatigue-related crashes. This is just one of the long list of disqualifying medical conditions. Prescription and non-prescription drugs may result in drowsiness or misjudgment. Occasionally, alcohol intoxication is involved. A childhood friend of my daughter was killed when an intoxicated trucker rear-ended her family’s vehicle.

In investigation of the causes of catastrophic truck crashes, we explore all these common causes and more.

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Ken Shigley is chair of the American Association for Justice (AAJ) Motor Vehicle Collision, Highway & Premises Liability Section which includes the Trucking Litigation Group of which he is a former board member. He is a member of the board of governors of the Academy of Truck Accident Attorneys, and a board certified civil trial attorney of the National Board of Trial Advocacy. In addition, he is lead author of Georgia Law of Torts: Trial Preparation and Practice, past president of the 45,000 member State Bar of Georgia, and past chair of the Institute for Continuing Legal Education in Georgia.

Last week in Cherokee County, a Comcast truck failed to stop behind a car that had stopped to turn, went into the opposite lane, and struck head-on an oncoming car, killing the driver.

According to media reports, at the intersection of Ga. 140 and Avery Road, a Ford Fiesta  stopped to turn left onto Avery Road just before 12:30 p.m. on September 28, 2015.  For unknown reasons, a Comcast truck steered to the left to avoid hitting the Ford and traveled into the westbound lanes striking a Chevy pickup head-on.

The driver of the pickup — who I understand was a really good guy with whom I have several friend in common —   died at the scene of the crash. The driver of the Comcast truck and an occupant of the Fiesta were also injured.

One must reserve judgment pending investigation, but the list of possible causes may include driver distraction (e.g., cell phone, texting, GPS manipulation, food or beverage, etc.), driver impairment (medical, fatigue, etc.), speed, following too closely, mechanical failure, etc.

This is similar to the scenario in a case I tried several years ago in Calhoun in Gordon County. A box truck failed to stop behind a retired teacher who was preparing to make a turn at an intersection. The truck driver was not medically qualified to drive a commercial truck, lacked depth perception, and failed to accurately judge time, speed and distance as he approached the stopping car. He crossed into the opposite lane, passed through the intersection on the wrong side, and crashed into an approaching pickup truck. Fortunately, our client was able to avoid headon impact but the driver’s side of his vehicle was shorn away in the impact. He lived but had a shattered femur that caused a permanent impairment. The jury in Gordon County awarded a verdict of $2.3 million for his injury.

Even though the first priority is the need to process grief and celebrate the life of the loved one who was killed, in such cases it is important for family members to act quickly to make sure the case is properly investigated. Commercial vehicles generally have a great deal of data that can be downloaded after a crash. If police fail to do a thorough investigation and reconstruction, and allow a truck to be removed from impound before the family has a chance to send its own investigator, that electronic data evidence may be lost. For example, we had a case involving a fatal collision south of Atlanta. The police impounded the truck, but somehow allowed the trucking company to remove it from impound prematurely. The truck was repaired, put back in service and driven several hundred miles, overwriting data about the crash. We were able to retrieve some data from a Garmin GPS unit that was found on the dash in the truck cab, but that was far less valuable that the data that was erased.

The first step in such an investigation is to immediately serve the company with a notice of the need to preserve evidence, including a list of categories of evidence to preserve inviolate. Then as soon as practicable an inspection should be scheduled with a competent accident reconstruction expert.

Georgia wrongful death law includes two types of potential claims. First is the wrongful death suit for the “full value of the life,” which may include both economic damages such as value of lifetime income and benefits reduced to present value, and intangible value of life for what the experience of living was worth to the person who was killed. This claim must be brought by specific categories of survivors in priority order: spouse, children, parents, and then by the representative of the estate on behalf of other heirs at law. Second is a “survival action” for pain and suffering before death, medical and funeral bills, etc. The “survival action” must be filed by the executor or administrator of the estate. Sometimes we include both claims in a suit, and sometimes for tactical reasons we file one and leave out the other.

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Ken Shigley is a trial attorney practicing statewide in Georgia, focused on serious personal injury and wrongful death cases, especially arising from commercial truck accidents. 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.

Once again, a tractor trailer making a u-turn in dark or fog on a rural Georgia road has proven fatal. Once again, a turning tractor trailer forms a deadly and virtually invisible fence across a highway.

On September 30th at Lenox, Georgia, a man was killed when he collided with a Scruggs Concrete semi-truck attempting to make a u-turn in the roadway in foggy conditions. He was killed when the collision sheared off the top of his pickup truck.

This is an all too common form of truck crash across the United States, largely due to poor training and management at companies that operate the trucks.

A poorly trained, poorly manged and poorly supervised truck driver might not know better than to make a u-turn in the road at night or in the fog. But the intelligent, trained action is to avoid this. The fundamental duty of any driver is to exercise reasonable care. A lot of things can go into that. For a professional driver of tractor trailers, safety regulations, vehicle size, professional training and industry standards must be considered.

Because of its size — 80,000 pounds (or more for some types) and 48 to 60  feet in combined length — a tractor trailer cannot move quickly from a starting position.   A widely quoted estimate is that it takes 15-30 seconds for an 18-wheeler to execute a u-turn.  During that time, the trailer will have the highway blocked in both directions for roughly 12 seconds.  If the truck driver has difficulty executing the turn in the space available, the truck will block the road even longer.

An approaching motorist, especially at night or in fog, may not have time to perceive, react to, and avoid the tractor-trailer during the time that the highway is blocked. The result, as in this tragic incident, is often that the approaching motorist cannot stop in time to avoid going under the trailer that blocks the road.

The Federal Motor Carrier Safety Regulations include rules on conspicuity (visibility) commercial motor vehicles such as tractor trailers. In general, trailers must meet the conspicuity standards found at FMVSS 108 (49 C.F.R. § 571.108). In a u-turn case, rules about visibility from the side are most significant. These vary slightly between federal and state rules for intrastate operations in some instances, but generally the rules require lights and reflective tape or sheeting to make the trucks visible to other motorists. The reflective material must have alternating red and white colors and be positioned horizontally, beginning and ending and the front and rear ends of the trailer.

Often in cases where a tractor trailer is attempting a u-turn in low light conditions, all an approaching driver sees is headlights in the opposite lane. By the time the driver perceives that a tractor trailer is straddling both sides of the highway, there is too little time to react and avoid a crash.

Conspicuity tape and reflectors are cheap. Going another half mile down the road to a place where a turn can be made safely off the highway is cheap. Lives are precious. Too often companies operating big trucks on the highway fail to weigh those values.

We often see tractor trailers that do not comply with conspicuity standards. In one recent case involving a log truck making a u-turn on a rural Georgia highway in the dark, side lights and reflectors were missing and what little reflective tape was on the trailer was worn and dirty. In sum, it had less than one-third of the conspicuity devices required by even the relatively slack rules governing log trucks in Georgia. With logs extending 20 feet off the rear of the trailer and lights not working properly, it formed a black fence across the highway in the dark.

Georgia Code Section 40-6-121 says, “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.” Trucking industry standards go beyond that, taking into account vehicle size and visibility.

Drivers of tractor trailers are professionals who require special training and licensing. Operating vastly larger vehicles than a passenger car or pickup truck, their standard of reasonableness in driving takes into account the type of vehicle they are operating. The basics of that are outlined in the Commercial Drivers License (CDL) manual, which is essentially the same in all states.

Driver manuals from major trucking companies with good safety programs include industry standards higher than the minimum requirements of statutes. Some flatly state that truck driver should never make u-turns in roads under any circumstances. Some command that their drivers never make a left turn on a highway. They should go to the next place they can turn around off the road without blocking the road by making a u-turn.

The concrete industry has a wealth of driver training videos through the National Ready Mixed Concrete Association, covering most any situation that can arise in operation of those specialized vehicles. Every time I have handled a case involving a concrete truck, I have found that there were great training materials that if used would have educated the driver to avoid the hazard. And every time, I have found that the company did not bother to use those training materials. Once a concrete driver, upon seeing the training video for the first time in his deposition, exclaimed, “them [expletive deleted] never showed me that; if I had known, this wouldn’t have happened!”

Root cause analysis of these totally preventable and unnecessary crashes usually goes back to corporate management, training and supervision.  If a driver was lost, it is likely because dispatch failed to provide good directions and GPS systems. If the driver was tired, we need to consider whether the company adequately monitored fatigue and hours of service compliance, including the auditing driver logs against available documents to catch log falsification.

The bottom line is that an 18-wheeler driver simply cannot safely make a u-turn on a public road, especially in conditions of reduced visibility. Every time a tractor-trailer driver makes a u-turn in a highway, he creates a clear and present risk of injury or death just to save the time it would take  to go a little way down the road to a place he
could safely change directions. Every company that fails to train its drivers to avoid u-turns has an unspoken policy of endangering the public.

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Ken Shigley is a trial attorney practicing statewide in Georgia, focused on serious personal injury and wrongful death cases, especially arising from commercial truck accidents. 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.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

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

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

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

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

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

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

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

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

Most people who see a tractor trailer crash have no idea of the significance when the trailer is a skeleton chassis with a freight container bolted to it. State troopers don’t know. Motor carrier enforcement officers don’t know. Accident reconstruction experts don’t know. About 99.99% of lawyers who handle tractor trailer crash cases don’t understand it. They have never been trained on it and have not had occasion to research and study it in depth.

We have had good success with these cases, but I’m not going to publish a how-to manual for lawyers on the internet. If I did, one of my brethren would take the germ of an idea without deep study and mess it up.

But here are a few key points:

1. What is intermodal freight?

If you stand on the riverfront at Savannah, Jacksonville or Charleston, or at other ports around the world, you seemassive ocean freighters stacked high with colorful boxes.  Those boxes are steel containers filled with all manner of freight, going to and from ports around the planet. Before and after their ocean voyages, these containers are mounted on train cars and truck trailers. It is called “intermodal” because the same freight container can transfer between ship, rail and truck without handling of the freight itself when it switches between modes. Intermodal shipping saves tremendously on expense, improves security, reduces damage and loss, and allows freight to be transported faster.

1. What is the story of the evolution of container freight?

The idea of containerized freight handling began in the 1700s with tubs of coal on canal barges in England. The concept evolved with railroads and trucking but didn’t really get off the ground until the 20^th century. In 1933, the International Chamber of Commerce established The International Container Bureau (Bureau International des Conteneurs, BIC), which set the first standards for freight containers used in international traffic. By the 1950s, standards developed by the US Department of Defense began to revolutionize container shipping.  Between 1968 and 1970, the International Organization for Standardization (ISO) issued standards based upon American military practices. Since 1980, the use of 20 foot and 40 foot freight containers has come to dominate worldwide shipping.

Every time I drive down I-75 from Atlanta to Macon and then I-16 to Savannah, I see at least a hundred intermodal container freight tractor-trailer units sharing the highway with me. On I-95 between the Florida and South Carolina lines, it is pretty much the same.  When I look down from my office window in Atlanta, I often see freight containers double-stacked on rail cars on the track that runs parallel to the MARTA line across the street. With the expansion of the Port of Savannah, we will see more and more container freight in Georgia.

1. What are the top container freight ports?

 Of the top 20 container freight ports in the world, 8 are in China. The  others are  at Singapore, Hong Kong, South Korea, Dubai, Netherlands (Rotterdam),  Malaysia, Taiwan, Germany (Hamburg),  Belgium (Antwerp), and the US (Los  Angeles and Long Beach). Savannah ranks #46 in the world. It is about to get a lot  busier with enlargement of the Panama Canal and port expansion on which  dredging work has begun. Savannah has a favored location because of a  sophisticated analysis of efficient road and railway access to the South and    Midwest. It contributed to the role of Georgia and Atlanta as a commercial hub.  For that reason, expansion of the Port of Savannah has been a huge public policy  priority for the Governor of Georgia, Mayor of Atlanta, and a broad range of other  political and business leaders in Georgia.

Charleston ranks #82 in the world. Jacksonville, which handles freight traffic to Puerto Rico and the Caribbean, is not in the top 100 but it still contributes a lot of container truck traffic to I-95 in Georgia. Other busy container ports in the US include NY/NJ (#26), Oakland (#62), Newport News (#64), Houston  (#74), Tacoma(#78) and Seattle (#83).

1. Who are the truckers towing intermodal container freight trailers?

When intermodal freight containers are put on trucks for the land portion of the shipment, the trucking company used is likely to be a small one with few assets, 20 to 50 leased tractors and a single-limit $1 million liability insurance policy. The drivers for those companies are typically pushed hard with inadequate pay and inadequate rest.

There may be a convoluted transaction involving a logistics company, a freight forwarder, non-vessel operating common carrier, ocean transportation intermediary or a freight broker, seeking  to provide layers of insulation between the most responsible entities and the little trucking company and driver. That is intended to insource the profits and outsource the risk, creating a barrier to financial accountability on the part of the larger companies that pull the strings.

When there is a catastrophic crash involving an intermodal tractor-trailer unit, the insurer for the tiny trucking company often goes to the survivors of however many people were killed and offers to split that one million dollar policy. If, for example, five people were killed, they will offer to give each of the families $200,000 each if they all sign full releases. If there were three deaths and a bunch of serious injuries, they might invite everyone to go to a mediation to decide how to split that million dollars. They swear that is all the insurance there is or will ever be.

Perhaps the lawyers and claims adjusters at that level really believe what they are saying. Perhaps they have been given the “mushroom treatment” – kept in the dark and fed manure.

Most people who don’t know better take that “low hanging fruit.”

But there is a lot more if you know how to get it.

1. How can I recognize that a tractor-trailer was carrying an intermodal shipping container?

On first glance, most intermodal tractor-trailer units look a lot like any other tractor-trailer. But if you know what to look for, you can tell the difference.

First, what are the name markings on the body of the trailer? If the trailer body is a freight container bolted to a trailer chassis, it probably bears the name of an intermodal shipping company. Those we see on the interstate highways in Georgia operating from the Port of Savannah include: Moller-Maersk (also Maersk Sealand), CMA CGM, COSCO, Hapag-Lloyd, Evergreen, APL, CSCL, Hanjin Shipping, NYK Line, Hamburg Sud, “K” Line, Yang Ming, Hyundai, ZIM, United Arab Shipping Co. (UASC), CSAV. There are also other intermodal shipping companies operating in the Caribbean trade out of the Port of Jacksonville that send a steady flow of containers mounted on trucks up I-95 through Georgia.

Second, what are the markings on the rear doors of the trailer? Intermodal freight containers include a 3-letter owner code, a one-letter product group code, 6 digit registration number, 1 digit “check digit”, 4 digit size and type code. Below that are the maximum weight, container or “tare” weight, payload weight (all expressed in both kilograms and pounds), and the cubic capacity expressed in both cubic meters and cubic feet.

Third, what are the numbers on the trailer frame below the doors and above the tag, and on the side of the center frame rail of the trailer? If it is an intermodal tractor-trailer unit, the Federal Motor Carrier Safety Administration requires display of a USDOT registration number on the trailer chassis above the rear tag. It includes a four-letter code to indicate the registered owner, a six-digit registration number and one-digit “check digit.” With that we can figure out what company initially registered that trailer chassis.

None of this information appears on standard police crash report forms. Most law enforcement agencies simply don’t know to look for it. They will record information about the trucking company but none of the information about the trailer.

In addition to standard rectangular containers for general freight, we often see refrigerated (“reefer”) or insulated containers, open top bulk containers, flat racks used to transport machinery, and tank containers with cylindrical vessels mounted in a rectangular steel framework. They bear similar markings.

1. What difference does it make to injury victims if a tractor-trailer unit included an intermodal container chassis trailer?

There are no published court decisions on this. Perhaps there never will be as serious claims tend to be settled confidentially before any court decision. However, we have had success in combining federal motor carrier regulations, federal maritime regulations, ocean bills of lading and international maritime treaties to reach insurance coverage far greater than a single limit one million policy typically carried by a small trucking company. My friend and colleague, David Nissenberg in California, author of The Law of Commercial Trucking: Damages to Persons and Property, has been invaluable in figuring this out.

We have found that if we do it right, we can gain access to enough additional insurance to obtain a fair but confidential settlement of almost any cases that may arise with intermodal freight shipments on the highways of Georgia.  Due to settlement terms, I am not liberty to reveal anything about any of the intermodal cases we have handled.

I am not publishing the legal theories we use or posting copies of briefs and legal memoranda online. That is for the same reason that I did not publish an article or give seminar presentations years ago when I figured out that by classifying a forklift truck as an office supply I could bring a wrongful death suit against an equipment distributor under the Georgia Fair Business Practices Act, which provides for treble damages, punitive damages and award of attorney fees.  I knew then, and know now, that if I freely shared my work product, some lawyer who has not studied it in depth would try to use it without studying the foundations in depth, lose, and mess it up for everyone else.

1. What if an intermodal truck crash happened in a state other than Georgia?

Intermodal freight has worldwide scope. Our practice is primarily in Georgia. But that does not mean we are limited to handling cases arising from intermodal truck crashes in Georgia. Most major ocean carriers and intermodal equipment providers do business in Georgia through the booming Port of Savannah. If an incident has a Georgia nexus, we may be able to handle the case in Georgia. Every question of jurisdiction and venue require a fact-sensitive analysis of details. But, for example, any Georgia resident injured in a crash occurring anywhere in the country may file suit here so long as the rig is on an interstate trip and the trucking company has registered an agent for service of process covering Georgia.

1. Every case is different.

We cannot promise an outcome in any case. Each of these cases is different. While there are points of commonality, the facts of each case are different and the specific combination of legal theories may be different. One size does not fit all.

If a loved one was catastrophically injured or killed due to a collision with a tractor-trailer in which the trailer was an intermodal container chassis with freight container mounted on it, call us.

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

NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer or truck driving schools, see Truckers Justice Center. 

One day in Kansas City, I took the deposition testimony through an interpreter of a Bosnian immigrant truck driver. He was driving with a Florida Commercial Driver’s License (CDL) when he crashed an 18-wheeler into my client on a Georgia interstate highway.

I asked where he got his truck driver training. He said some Russian guy in North Carolina, whose name he could not recall, trained him. How did he study the Commercial Drivers License manual, published in English?   He said his 10-year-old daughter read it and translated it for him. She may have been a precocious child, but really? I didn’t think then to dig into how he was able to take and pass the Florida CDL tests.

For several years, a high percentage of our serious truck crash cases have involved immigrant truck drivers who have to testify through interpreters. They drive the highways of America in little bubbles of their home countries, talking by cell phone as they drive with people in their home countries, listening to music in a native dialect, and never really interacting with America language or culture.

When I look back over the past several years, all the truck drivers with inadequate English whom I have encountered in truck crash cases had obtained their CDL’s in either Florida or New Jersey. Perhaps that is just a coincidence. Perhaps.

I deeply respect the immigrant work ethic that leads many newcomers to this country to work hard in jobs that it is hard to find enough Americans to do. Occasionally I have represented hard-working immigrant truckers, visited in their homes and met their wives and children.  But language proficiency has real implications for safety. That is why interstate commercial truck drivers are required to be able to read and speak English well enough to read signs, make entries on records and interact with the public and police. (49 C.F.R Section 391.11)

Now FBI and Florida law enforcement officials have charged four people, including three Russian immigrants, with operating a fraudulent business to provide CDL’s to unqualified immigrants.

Ellariy Medvednik,, Natalia Dontsova, Adrian Salari, and Clarence Davis  have all been indicted for conspiracy to aid and abet the unlawful production of Florida driver licenses and commercial driver licenses. According to the indictment, they were associated with Larex, Inc., a commercial truck driving school that marketed itself online to Russian speakers.

Russian speaking people from elsewhere seeking Florida CDLs would contact Medvednik to arrange for Larex’s services at a price of $2,000 to $5,000. It only took a few days to get a license through the school. A typical truck-driving school lasts three or four weeks and costs at least $6,000.

Many of the CDL applicants were Russian-speaking immigrants living in New York, Illinois, California and Virginia. These  would travel to Florida to obtain their CDLs with the intention of returning to those states immediately afterward.

However, to obtain a Florida CDL, an individual must first possess a Florida driver license. Florida restricts its driver licenses and CDLs to Florida residents. The Russian defendants would provide false documentation that the applicants resided with them in Florida, so that the applicants could obtain Florida driver licenses.

They would then proceed to fraudulently obtain a Florida CDL.  Dontsova, using covert communication equipment, provided answers to the students during the written portion of the CDL exam, leading to issuance of a CDL permit.

Second, Larex hired Davis, a third-party tester authorized by the State of Florida, to administer vehicle inspection tests, basic control skills tests, and road tests. According to the US Attorney, Davis routinely passed and certified students who should have failed based on their test performance. Based on Davis’s certifications, these Russian applicants were able to obtain Florida CDLs. At least 600 people have been identified as utilizing Larex’s services with Davis as the third-party tester to obtain a CDL.

The FBI started investigating the school in June 2013 after the Orange County Tax Collector’s Office noticed that many people had applied for a CDL using the same home address. This led to a sting investigation in which a Russian-speaking informant posed as an applicant and went through the whole process, and ultimately a federal search warrant for the records at Larex.

The implication for public safety across the United States is that hundreds of unqualified truck drivers, who are not sufficiently proficient in English to qualify for a CDL, and who could not pass either the written or the road tests, were authorized to drive 80,000 tractor trailers on every highway in the United States. Most probably were hired for small, fly-by-night trucking companies that to turn a blind eye to  driver qualifications and compliance with safety rules.

I hope they do not run into my future clients on the road.

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute 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. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

An overturning concrete mixer truck injured former Atlanta Mayor and United Nations Ambassador Andrew Young on Monday afternoon, May 11th, at the corner of Hemphill Avenue and 14th Street, in the trendy West Midtown area just north of the Georgia Tech campus. Young, the visionary 83-year-old icon of civil rights and Atlanta politics, was taken to a hospital as a precaution.

News photos of the scene make it clear to me what probably happened. In loaded cement mixer trucks the center of gravity is high and constantly shifting. Standard truck driver training materials in the ready-mix concrete industry detail the handling characteristics. Concrete industry training materials describe how a loaded cement mixer truck will tip up on two wheels when making a ninety degree turn on level pavement at 12 miles per hour, and will roll over at 16 miles per hour.

The news photos show a typical pattern of a concrete mixer truck overturning in a right turn at an intersection.

A while back, I handled a case in which concrete mixer truck rolled over when making a turn in a level intersection in Dalton, Georgia, landing on a family vehicle much as one landed on and crushed Young’s vehicle. In our case in Dalton, the truck driver had just obtained his CDL a couple of months earlier. (That’s the one illustrated above.) His only training specific to operation of a concrete mixer truck consisted of showing him how to work the mixer controls.

At his deposition, I showed the concrete truck driver the standard industry training video. He swore that he had never been trained on any of that, and if he had been trained the accident and injury never would have happened.

As construction activity expands with economic recovery, concrete delivery increases. Too often, concrete truck drivers are not trained with standard industry training materials. Untrained, they do not know better than to take turns at 16 mph and flip over.
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Ken Shigley is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-15), and was chair of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice (2015-16).

The families of the Georgia Southern nursing students killed or injured this week when a tractor trailer ran over them on I-16 bear a huge burden of pain and grief. As a parent, I cannot imagine anything worse than the sudden death of a child who has had you wrapped around her finger from the first time you held her in your arms.

The families need time, space, privacy and gracious consideration from others to have space to grieve, each in their own way.

After any such tragedy waves of welcome and unwelcome people descend upon the survivors.

First may come the well-meaning relatives, friends, neighbors and pastors. I can imagine that each family’s home has been deluged with casseroles and that parents’ Sunday School classes have signed up to provide meals for the next month. That loving embrace can help one keep going through the early days.

But then, after the funeral, folks go back to their everyday lives, leaving parents and siblings to sit in the departed child’s bedroom and weep for hours in the dark. Each must process the stages of grief.

Soon come the claims adjusters, feigning sympathy, lulling the parents into complacency, and giving the impression that they will do everything they can to make things right. They are well trained to insinuate themselves into the confidence of grieving families for the calculated purpose of minimizing the cost for the trucking company and its insurers. Think of wolves in sheep’s’ clothing. No matter what they say, they are not on the side of the victims. They are there with one purpose, to save the company as much money as humanly possible.

And then, unfortunately, are the members of my profession who ignore ethics rules against solicitation. These are the proverbial “ambulance chasers” who descend upon the families, either in person or through agents often called “runners” or “cappers.” Defying both State Bar of Georgia ethics rules and Georgia criminal law, they solicit cases from grief-stricken families.
Over the years, clients and others have told me stories of being approached even in hospitals and funeral homes, in the first hours or day after a tragedy, by people who represent themselves as “counselors,” “investigators,” “spiritual advisers” and even clergy, who slip into conversation a question about whether they have a lawyer yet.

One client whose wife was killed when their car was run over by a tractor trailer on an interstate highway, and whose son called me to meet with him at home the week after the funeral, showed me a thick package he had received by Fedex from a law firm in Washington, DC, that apparently solicits victims of major catastrophes all over the country.

Georgia Rule of Professional Conduct 7.3 provides:

A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.”

It also provides:

A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
. . . . the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.

This Bar ethics rule further provides that a lawyer shall not compensate anyone for recommending the lawyer’s employment except under a bona fide lawyer referral service approved by the Bar. Thus, paying someone else to solicit cases is a disbarment offense.

While the maximum penalty for a violation of Rule 7.3 is disbarment, it is difficult for the Bar’s general counsel to prosecute those cases because there are seldom people motivated to both file grievances and show up to testify. Even out of state lawyers are theoretically subject to reciprocal discipline in their home state for violation of these rules in Georgia if the Bar has solid evidence upon which to prosecute the case.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Bottom-feeding, ambulance-chasing lawyers who are not concerned about their professional reputation have felt free to violate this rule. Because people who are solicited either hang up immediately, or are too unsophisticated and naïve to recognize a problem, there has been hardly any way to prosecute the cases. It is very difficult to do that without a sting investigation, which the Bar’s general counsel has not felt equipped to do. The main “runner” case for which there has been bar discipline in recent years came about only when federal agents executed a search warrant at a law office, found the “runner book” and turned it over to the State Bar.

One of my great frustrations as State Bar president in 2011-12 was the difficulty of aggressively prosecuting such violations. Lacking law enforcement resources, the General Counsel’s office was extremely reluctant to organize the kind of sting investigation I knew, as a former prosecutor, could be effective. I appointed a committee to organize training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. That committee included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which the Supreme Court later approved, we were unable to get overburdened law enforcement agencies or prosecutors interested in making “runner” cases.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution. Anyone who receives such a solicitation should get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

In 2014, the Georgia legislature passed Georgia Code Section 33-24-53 to read to somewhat strengthen the law against injury case solicitation as follows:

(a) As used in this Code section, the term:
(1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from a practitioner or health care service provider, whether directly or indirectly, to solicit, procure, or attempt to procure a client, patient, or customer at the direction or request of, or in cooperation with, a practitioner or health care service provider whose purpose is to obtain benefits under a contract of insurance or to assert a claim against an insured or an insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include:
(A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or (B) A practitioner or health care service provider who procures clients, patients, or customers through the use of public media or by referrals or recommendations from other practitioners or health care service providers.
(2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph.
(3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer.
(b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation.
(c) It is unlawful for:
(1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and (2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer.
(d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

The weakness of this law is that law enforcement agencies are seldom motivated to initiate effective investigations for a misdemeanor first offense, so there is unlikely to ever be a felony second offense to prosecute.

I hope that the families affected by this tragedy will reject those who solicit them in violation of the State Bar and Georgia criminal law prohibitions, do their own due diligence research, and select qualified lawyers to seek justice.

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Ken Shigley is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-15), and chair-elect of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice. His practice is focused primarily on commercial trucking liability cases. The firm also includes, in an “of counsel” capacity, David Nissenberg, author of The Law of Commercial Trucking: Damages to Persons and Property, a two-volume text on commercial trucking law which is supplemented annually.

Georgians are shocked and saddened today by a truck crash on I-16 in Bryan County that snuffed out the promising young lives of five nursing students at Georgia Southern University.

The grief is personal for a 2013 Georgia Southern graduate in our office who was a close friend of two of the five girls who were killed. For me as the father of two young adults, I shudder to comprehend their parents’ loss. One friend on the coast described the whole event as “surreal.”

The crash happened about 5:45 AM in predawn darkness on Wednesday. The five nursing students were in a sedan and SUV headed east on I-16, going to their last day of clinical training for the semester at St. Joseph’s/Candler Hospital in Savannah. Traffic had slowed due to another accident ahead.

A tractor trailer failed to stop and crashed into the stopped traffic, causing a seven vehicle pileup. The Georgia Southern students were in an SUV and a passenger car, both of which were impacted. The passenger car burst into flames.

The tractor trailer was operated by Total Transportation of Mississippi, LLC, based in Richland, MS, a suburb of Jackson. A subsidiary of US Xpress which is based in Chattanooga, Total has unsafe operation score worse than 90% of all motor carriers in the US. On the Federal Motor Carrier Administration website, it lists 748 trucks and 938 drivers, registered to haul general freight in 48 states.

The cause of the truck driver’s inattention is unknown at this time. At that time of morning, fatigue is a likely suspect if he had driven through the night. Federal Motor Carrier Safety Regulations limit interstate truck drivers to driving 11 hours out of a 14 hour shift before a 10 hour break. Even if there is not an hours of service violation, a driver can be impaired by fatigue due to other factors including disruption of circadian rhythms.

Another common possibility is cell phone distraction. Federal Motor Carrier Safety Regulations prohibit use of handheld cell phones during operation of a commercial motor vehicle on the highway. However, at that early hour cell phone distraction may be somewhat less likely. In any event, I hope the SCRT team obtained a search warrant for the data recorded on the phone’s SIM card.

I am 99.9% certain that the trucking company had a rapid response team, under the direction of a trucking defense lawyer, at the scene about as soon as ambulances arrived. Before the families of these students learned of their tragic loss, the company probably had at least one retired law enforcement investigator and a defense lawyer there to observe and, if possible, influence the investigation. We have handled cases in which crucial evidence was lost from a crash scene while the state troopers were dealing with hurt people and traffic but the company’s rapid response team was concerned only with minimizing the company’s legal problems.

The promising nursing students whose lives were tragically taken in this crash were:

• Emily Clark, 20, Powder Springs • Morgan Bass, 20, Leesburg • Abbie Deloach, 21, Savannah • Catherine (McKay) Pittman, 21, Alpharetta • Caitlyn Baggett, 21, Millen
For a parent, it is hard to imagine anything worse than the sudden death of a child. Contrary to the normal order of nature, it is like having a hole punched in the heart.

Two other nursing students, Megan Richards of Loganville and Brittney McDaniel of Reidsville, were injured and transported to a Savannah hospital for treatment. By Thursday afternoon, Richards had been treated and released. No information has been made public on McDaniel’s condition.

The crash scene as portrayed in news reports was strikingly similar to a case we are preparing for trial in the fall in Brunswick. In that incident on I-95, a truck driver was on his cell phone more than 20 minutes up to the time of the crash, talking with someone in Colombia, South America, and did not notice any of the vehicles stopped in the road ahead of him.

In this case, my educated guess is that it will take several months for the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) to complete all details of investigation and reconstruction. Unless alcohol or drugs turn up in the truck driver’s blood test, I expect these deaths will be prosecuted as five counts of misdemeanor homicide by vehicle, plus whatever other traffic charges may be included, in the State Court of Bryan County at Pembroke. Each misdemeanor count is punishable by up to 12 months incarceration. In that court, Ray Smith is the Solicitor General and Jack Carney is the Judge.

The prosecutor can withhold access to the SCRT investigative report while criminal charges remain pending. Most seasoned prosecutors, however, are willing to share that file with attorneys for victims.

Civil cases arising from this crash are likely to end up in federal court due to diversity of citizenship between plaintiffs (mostly Georgia) and defendants (company in Mississippi, driver unknown). One option would be the U.S. District Court for the Southern District of Georgia in Savannah. Because a couple of the young women were from metro Atlanta, another possibility would be the U.S. District Court for the Northern District of Georgia in Atlanta. If a Georgia resident could be found to credibly share fault, the civil cases could be filed in the county where that Georgia resident resides, avoiding the red tape of federal court.

Ken Shigley is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-15), and chair-elect of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice. His practice is focused primarily on commercial trucking liability cases.

Possible charges are pending against the driver of the tractor-trailer operated by Millis Transfer, Inc. According to the Federal Motor Carrier Safety Administration records, that company is based in Black River Falls, Wisconsin, but the company website lists a terminal in Carterville, Georgia. News reports to not mention whether the alcohol and drug tests required under federal law were done.

It is speculative to guess why this tragedy happened, but some of the likely suspects in similar truck crashes are:

• Illegal left turn. Georgia law requires that the driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction that is within the intersection or so close to it as to constitute an immediate hazard.
• Possible hours of service violation. Federal Motor Carrier Safety Regulations require that drivers of commercial vehicles in interstate commerce drive no more than 11 hours out of 14 hours on duty, then take a 10 hour rest break, and to get longer weekly breaks. We often see hours of service violations in truck drivers from the Midwest traveling to Georgia. I don’t know whether that is the case here.
• Truck driver impairment due to fatigue, medication, illness, etc. This often goes hand in hand with hours of service violations, but we also often see drivers impaired by medication.
• Possible use of a hand held cell phone or other driver distraction. A relatively new Federal Motor Carrier Safety Administration rule restricts the use of all hand-held mobile devices by drivers of commercial vehicles. My guess is that the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) is checking any cell phone SIM card and billing records.

Georgia wrongful death law gives designated survivors the right to bring a wrongful death action against the responsible parties. In Georgia, there can be two separate claims that may be asserted against a person or corporation who negligently causes a death:

– A “wrongful death” claim for the “full value of the life” which belongs to survivors designated by statute. If there is neither a spouse nor child surviving, then the decedent’s parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors.
– A “survival action” which belongs to the estate and is brought by the executor or administrator of the deceased for pain and suffering before death, medical expense and funeral expense. This claim may be filed by the administrator or executor of the decedent’s estate.

Ken Shigley is past president of the State Bar of Georgia (2011-12), past chair of the Institute for Continuing Legal Education in Georgia board of trustees (2012-13), board certified civil trial and pretrial advocate (National Board of Legal Specialty Certification) lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-13). His Atlanta-based practice focuses on cases of wrongful death and catastrophic personal injury, including brain injury and spinal cord injury.

Ken Shigley is an experienced trucking trial attorney in Atlanta, Georgia, and immediate past president of the 42,000 member State Bar of Georgia.

His practice is focused on high end personal injury and wrongful death cases, primarily resulting from motor carrier accidents – commercial trucks, buses, tractor trailers, big rigs, dump trucks, tanker trucks, cement trucks, straight trucks, delivery trucks, log trucks, etc.

He is on the national board of the Interstate Trucking Litigation Group of the American Association for Justice, and has taught other lawyers from coast to coast about aspects of litigating trucking cases

Reports have surfaced that the deceased was driving a Nissan Pathfinder on I-85 in Gwinnett County when a tractor trailer switched lanes and forced the vehicle into another lane which was occupied by a box truck. After the vehicle hit the box truck, it left the road at high speeds crashing into a steep hill between I-85 and the interstate ramp at Steve Reynolds Boulevard.

Gwinnett police spokesman Cpl. Jake Smith said the vehicle flipped several times which caused the woman to be ejected from the front passenger seat. The children and the man in the vehicle were taken to Children’s at Egleston Hospital where Cpl. Smith said they are likely to survive. Smith reports that the box truck stopped at the scene and was cooperative with investigators. However, the tractor trailer failed to stop and was later found in Cobb County, according to investigators.

“The truck driver was questioned,” Gwinnett County police spokesman Cpl. Edwin Ritter said. “Investigators are following up on all leads.”

When fatal crashes such as this one occur, the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) is called to the scene. The mission of this specialized team is to provide a means by which fatal crashes can be investigated by specially trained investigators. The SCRT works to collect and document all evidence so their can be a successful court hearing. The SCRT is also responsible to gathering information that could help avoid future collisions. There are five teams of investigators throughout the state to assist officers with deadly crashes. These officers are on call 24 hours a day, seven days a week and help with cases ranging from fatal crashes to officer involved shootings.

It is still speculative to guess the cause of the crash, but a few of the many Federal Motor Carrier Regulations that could be implicated in this case include:
– Improper lane change in violation of Georgia traffic law: This would become a violation if investigators find the truck failed to use a signal, failed to be within a reasonably safe passing distance, or failed to signal a stop or sudden decrease in speed.
– Possible hours of service: This would become a violation if the investigation reveals the truck driver was a long haul driver in interstate commerce and had not complied with the rule requiring a 10 hour rest break after operating no more than 11 hours in a 14 hour work day.
– Possible use of a hand held cell phone or other driver distraction: A new FMCSA rule restricts the use of all hand-held mobile devices by drivers of commercial vehicles. Unless the call can be made with a single button, hands-free phone in close proximity. It would be considered a violation if the driver is also reaching for a mobile device in a way that requires the driver to move out of the driving position.

– Truck driver impairment due to fatigue, medication, illness, etc.

Continue reading “Hit and Run by Tractor Trailer Kills Woman in Gwinnett” >>

Kenneth L. Shigley Past President, State Bar of Georgia (2011-12)
Board Certified Civil Trial Advocate & Civil Pretrial Advocate,
National Board of Legal Specialty Certification Attorney Referrals:
https://www.atlantainjurylawyer.com/attorney-lawyer-1008566.html

Shigley Law, LLC One Midtown Plaza 1360 Peachtree Street, Suite 910 Atlanta , Georgia 30309 Phone: 404.253.7862 Fax: 678.791.1728 Email: ken.shigley@johnsonward.com

One advantage of this “direct action” statute is that the injury victim or decedent’s survivors would not have to chase down a trucker who might be elusive. Another is that it removes any doubt from jurors’ minds as to whether the defendant has insurance, though the amount of coverage is not revealed.

For year there has been doubt about how this applied to interstate trucking cases. If the trucking company was just operating within Georgia, and the insurance company was authorized to do business in Georgia, the direct action law clearly applied. If the trucking company was from another state, we operated in a gray area in deciding whether or not to include the insurer in a suit. Trucking companies and their insurers generally contended that the Georgia Direct Action Statute prevented plaintiffs from joining insurers of motor carriers that do not engage in intrastate commerce in Georgia. In representing plaintiffs, we often searched for aspects of intrastate trucking in the business of even an out-of-state trucking company.

Several months ago in a case in which I was involved, Judge Thomas Thrash of the U.S. District Court for the Northern District of Georgia ruled that the “direct action” statute also applies to interstate trucking cases in Georgia.

In Bramlett v. Bajric, 2012 WL 4951213 (N.D.Ga.,2012), Judge Thrash ruled that:

[I]nsurers of interstate carriers can be joined as parties under the statute. First, the statutory language itself indicates that the joinder provisions apply to both intrastate and interstate carriers. O.C.G.A. § 40–2–140(c)(4) states that “[a]ny person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier.” (Emphasis supplied). The phrase “Code section,” as used throughout the Georgia Code, refers to the entire section 40–2–140.FN1 The proper title for the section is Title 40, Chapter 2, Article 6A, Section 40–2–140. See O.C.G.A. § 40–2–140 (emphasis supplied). In the absence of any constraining language, there is no reason to think that the § 40–2–140(c)(4)’s reference to “this Code section” refers to anything but the entire code section, 40–2–140. Therefore, the plain language of the statute indicates that injured parties are able to join the insurers of interstate motor carriers.

This is significant in the handling of serious injury and wrongful death cases arising in Georgia against interstate trucking companies.

Along with the ability to seek an award of contingent attorney fees for violation of Federal Motor Carrier Safety Regulations, which may be considered as evidence of bad faith in the transaction under O.C.G.A. § 13-6-11, this helps make Georgia courts a viable option when there is a question where to file suit for a catastrophic trucking case.

Ken Shigley is past president of the State Bar of Georgia and former chair of the trustees of the Institute for Continuing Legal Education in Georgia. He is one of 18 Georgia lawyers with double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation & Practice. Based in Atlanta, his law practice mostly based on referrals from other attorneys in plaintiffs’ personal injury and wrongful death cases arising from motor carrier accidents.

According to early news reports, a car pulled over to yield to the approaching ambulance, with its lights and siren activated, as required under Georgia law, and the tractor trailer then jackknifed into the path of the ambulance.

The Georgia State Patrol’s Specialized Crash Reconstruction Team is investigating. It is early to speculate about what laws may have been violated, but possibilities include:
– Following too closely
– Speed too fast for conditions – Failure of semi driver to yield to approaching emergency vehicle
– Possible hours of service violation if investigation reveals trucker was long haul driver in interstate commerce and had not complied with rule requiring 10 hour rest break after operating no more than 11 hours in 14 hour work day, etc.
– Possible driver distraction theories.

Investigation will probably include examination of data in the truck engine’s electronic control module (ECM) if it was turned on, in any Qualcomm or other satellite communications system, and in any GPS device in the truck. We find that sometimes when ECM data is lost or destroyed a GPS provides speed and hours of service data.

Ken Shigley is past president of the State Bar of Georgia (2011-12). His law practice focuses on representation of plaintiffs in cases of serious personal injury and wrongful death, including those occurring in commercial truck and bus accidents.

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

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

But it is important to know that the trucking company and its insurance company get a rapid response team to the crash scene before the vehicles are moved. While the victims are in an ambulance or in the emergency room, the trucking company has its investigators massaging evidence and trying to influence the police report.

Some electronic data from tractor trailers may be lost or destroyed within a few days if there is not quick action to assure that it is preserved. Every minute of delay leads to loss of crucial evidence.

Therefore, it is vitally important for the victim’s family to move quickly after a catastrophic truck crash to hire a lawyer who specializes in trucking cases and who can deploy his or her own rapid response team. While responses may be scaled to the seriousness of the case, the ultimate rapid response may include:

• a highly qualified accident reconstruction expert with solid experience in reconstructing crashes involving large commercial vehicles, not just car wreck.

• a trucking safety expert qualified to assess violations of trucking safety rules;

• a conspicuity expert qualified to assess visibility of vehicles in the conditions existing at the time of the crash;

• a forensic evidence photographer qualified to preserve the actual appearance of the vehicles and conditions under existing lighting conditions;

• a human factors expert who can assess perception and reaction under the conditions on
the roadway;

• a forensic computer expert qualified to obtain and interpret the wide array of event data recorders and computers on large commercial trucks.

In a catastrophic truck wreck it is a mistake to rely solely upon the police report, even when reasonably well qualified police accident reconstructionist are involved.

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