Lawyers and paralegals who had previously worked at personal injury firms that advertise heavily on television, billboards and bus placards have told me many tales about the business model of those firms.

They have told me how lawyers may be responsible for 600 cases at a time, with 100 or more in litigation.

They have told me how young lawyers in some of those firms are paid only for work on cases they settle before suit, so they have an extreme vested interest in taking whatever an insurance adjuster is willing to offer at that early stage, selling the client’s interest short. They have told me how in some firms non-attorneys employees actually negotiate with claims adjusters with no substantial attorney involvement. They have told me how those firms threaten clients that if they do not accept the insurance company’s pre-suit offer, they may be required to pay the other side’s attorney fees, long before suit is filed or the defense invokes the “offer of judgment” rule that would make that even theoretically possible.

That is a business model but not the practice of law as I know it. Every time I have accepted a case after a client left one the the big advertising firms, I have found that with moderate amount of real lawyer work, I have been able to increase the recovery 8 to 10 times beyond what a lawyer or paralegal at the prior firm had been pressuring the client to accept. It appeared that the case handling strategy at those firms was “sign ’em and flip ’em.”

“Run-of-the-Mill Justice” by Stanford Law professor Nora Freeman Engstrom, published in Georgetown Journal of Legal Ethics in 2009, analyzed the practices of “settlement mill” law firms — those that “advertise aggressively, sign a higher percentage of callers to contract, delegate more duties to non-lawyers, file fewer lawsuits, and take far fewer cases to trial” than legitimate law firms and attorneys.

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in “cookie cutter” fashion. Consequently, they spend “little time engaged in legal research, investigating claims, and preparing pleadings.” The article reports that “one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span.” That is absolutely consistent with what I have been told by a number of lawyers who had left such firms.

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact. That is consistent with what paralegals who once worked at such firms have told me.

Many of these settlement mills seldom file suit or investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan “one call that’s all” may be literally true — one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people who don’t know any better than to respond to heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All they need is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

Bar organizations can do little about law firms that operate in this manner because federal courts bar tough regulation of legal advertising. Their operations operate “under the radar” because most of them almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

Ken Shigley is a past president of the State Bar of Georgia (2011-12) and past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section (2015-16).  He is one of only 18 Georgia lawyers with double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010 – present).    Mr. Shigley has extensive experience representing parties in trucking and bus accidents,   products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Effective representation of the plaintiff in a case of serious injury or wrongful death often requires that counsel overcome an “independent contractor” defense.  That frequently involves solving a shell game of independent contractor business relationships used to evade financial responsibility. Sometimes lawyers refer to this as getting “beyond the monkey to the organ grinder.”

The general rule is that a defendant is not liable for the negligence of an independent contractor, but there are many exceptions.  While not comprehensive, this paper seeks to outline major theories for overcoming the independent contractor defense.

1. Interstate Motor Carriers.

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

The history of the regulations of motor carriers reveals that after the commencement of regulation in 1935, . . .  a substantial number of carriers . . . began to use equipment owned and driven by truckers who had no such ICC operating authority. This use was accomplished by a variety of leases, trip leases, and by other arrangements under which owner-operator truckers carried on the operations of the carriers with operating authority.  In contracting with such persons the carriers took care to constitute the lessors as independent contractors which enabled them to avoid the commission’s safety, financial, and insurance regulations that had been prescribed for equipment and drivers in order to protect the public.

Many of the owner-operators without authority were itinerant truckers known as “gypsies,” fly-by-night truckers with poor, unsafe equipment who had little financial ability. They may or may not have had adequate insurance. The hard core of the problem was the trip lease and its attendant evils which permitted an indifferent carrier to evade its safety and financial responsibility. . . . The practice of leasing made it difficult in accident cases to fix responsibility, and certified carriers could thus escape the consequences of the regulations and responsibility for accidents by employing irresponsible persons as independent contractors who were not financially accountable and who had no insurance or were under-insured.

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

Since 1956, federal law has treated truck drivers who are treated as independent contractors for purposes of tax and employment law as statutory employees of a motor carrier in the interstate motor carrier context.  The 1956 amendment to the Interstate Common Carrier Act was intended to require a motor carrier to be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants.  Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984); Morris v. JTM Materials, supra.

“These are basic requirements that are inherent in the relation of the for-hire carrier to the public. When they are lacking, the chaotic conditions that preceded enactment of the Motor Carrier Act, 1935 inevitably ensue.” Cox v. Bond Transp., Inc., 249 A.2d 579 (N.J. 1969).  The purpose is “to protect persons who are injured in highway accidents, by increasing the likelihood that a substantial entity will be available to respond to any judgment rendered.”  Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237 (Mo. 1983).  This eliminates “the defense of independent contractor by making the owner/operator of the equipment the ‘statutory employee’ of the carrier.”  Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984).

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

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

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

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

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

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

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

1. Restatement of Torts 2^nd – Liability Of An Employer Of An Independent Contractor

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

• Contractor’s Conduct In Obedience To Employer’s Directions

Restatement (Second) of Torts  § 410 provides:

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

Comment b states that this section deals only with the “liability of an employer who does not intend that the contractor shall cause physical harm to any other person, but who either employs a contractor to do work which, no matter how carefully done, involves an unreasonable risk of physical harm to others to whom he owes a duty to exercise care, or who employs a contractor to do work which could be safely done but for the fact that he directs the contractor to do it in a manner involving such risk.

The liability is based upon the fact that the employer has been negligent in directing his contractor to do work which is dangerous in itself or in the manner in which it is done. Therefore, the employer is subject to liability, under the rule stated in this Section, for only such physical harm as is caused by the dangerous character of the work or the dangerous manner in which it is directed to be done. He is not subject to liability for any harm caused by some improper method which the contractor, without any direction of his employer, adopts in doing the work.”

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

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

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

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

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

• Negligence In Selection Of Contractor

Restatement (Second) of Torts  § 411 provides:

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

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

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

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

• Failure To Inspect Work Of Contractor After Completion

 Restatement (Second) of Torts  § 412 provides:

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

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

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

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

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

Restatement (Second) of Torts  § 413 states:

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

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

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

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

• Negligence In Exercising Control Retained By Employer

Restatement (Second) of Torts  § 414 states:

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

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

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

 Restatement (Second) of Torts § 414A provides:

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

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

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

Restatement (Second) of Torts  § 415 states:

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

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

• Harm Caused By Negligence Of A Carefully Selected Independent Contractor

Restatement (Second) of Torts § 416 states:

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

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

• Work Done In Public Place
  

Restatement (Second) of Torts 417 states:

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

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

• Maintenance Of Public Highways And Other Public Places

 Restatement (Second) of Torts § 418 provides:

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

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

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

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

 Restatement (Second) of Torts § 419 provides:

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

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

•  Repairs Gratuitously Undertaken By Lessor

 Restatement (Second) of Torts § 420 provides:

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

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

Restatement (Second) of Torts § 421 provides:

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

• Work On Buildings And Other Structures On Land

Restatement (Second) of Torts § 422 states:

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

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

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

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

• Work Withdrawing Lateral Support

Restatement (Second) of Torts § 422A states:

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

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

• Making Or Repair Of Instrumentalities Used In Highly Dangerous Activities

Restatement (Second) of Torts § 423 provides:

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

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

• Precautions Required By Statute Or Regulation

  Restatement (Second) of Torts § 424 provides:

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

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

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

Restatement (Second) of Torts § 425 provides:

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

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

• Negligence Collateral To Risk Of Doing The Work

Restatement (Second) of Torts § 426 provides:

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

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

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

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

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

• Negligence As To Danger Inherent In The Work

Restatement (Second) of Torts § 427 states:

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

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

• Work Involving Abnormally Dangerous Activity

Restatement (Second) of Torts § 427A provides:

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

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

• Work Likely To Involve Trespass Or Nuisance

Restatement (Second) of Torts § 427B provides:

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

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

• Public Franchise / Unreasonable Risk of Harm.

Restatement (Second) of Torts § 428 states:

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

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

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

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

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

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

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

Restatement (Second) of Torts § 428 provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants. Where a customer relies upon the principal to provide goods or services, and the principal substitutes goods or services from an independent contractor, the principal may be liable for the contractor’s negligence.

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

—————————–

Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, a board-certified civil trial attorney of the National Board of Trial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice. This blog post is adapted from a paper accompanying a presentation by Mr. Shigley at the Southern Trial Lawyers Association seminar in New Orleans in 2012.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

No matter how many years a lawyer has practiced, there is no end to the need for exposure to bright new ideas from the best lawyers around the United States.

Over the past year, I had the opportunity to serve as chair of the Motor Vehicle Collision, Highway and Premises Liability Section of the American Association for Justice (AAJ). The largest section of AAJ, it encompasses the work of most “meat and potatoes” personal injury and wrongful death lawyers in America.

The section includes over 2,500 trial lawyers in all 50 states and specialized litigation groups on trucking litigation, bus litigation, traumatic brain injury (TBI), spinal cord injury (SCI), motorcycle litigation, bicycle litigation, resorts torts litigation and inadequate security litigation. The section and its litigation groups have active listservs for exchange of bright ideas.

Having worked for decades in all of these areas of personal injury litigation, chairing the section for a year was like a year of graduate school in my practice area.

After I became chair last year in Montreal, we sponsored national continuing legal education programs in New Orleans and Los Angeles, and I was moderator of an advocacy seminar at Boca Raton.  Presentations in our programs in the past year in seminars at Montreal, Boca Raton, New Orleans and Los Angeles included:

• Accident Investigation and Reconstruction in Motor Vehicle Cases
• Bus Cases Are Different From Auto Cases: Investigation and Evidence
• Cross-Examination of A Defense Medical Examiner, With Rules Of The Road™
• Daubert Motions In Motor Vehicle And Premises Cases
• Industry Standards: Evidence of Negligence in Premises Liability Cases
• Investigation and Discovery in a Sexual Assault Case
• Liability and Causation Defenses in the Typical Auto Case
• Rules Of The Road for Security and Violent Crime Cases
• Trying Better, Faster, And Cheaper!
• Twenty-Minute Auto Wreck Case Voir Dire
• Why I Handle Negligent Security Cases
• Greyhound’s “Most Precious Cargo”
• Making Small Cases Big Cases
• Eliminating the Soft Tissue Myth: Spine Injuries Are Serious
• Deposition
• Practicing In Multiple States
• Using Social Network Sites in Trucking and Motor Carrier Cases
• Trying High-Profile Motor Vehicle and Premises Cases
• Self-Driving Cars and Crash Avoidance Systems: The Future of Car Crashes
• Truck Crash Litigation For The Car Crash Lawyer
• Safe Or Scary: Negligent Security In Schools, Colleges, And Day Care
• Effects And Ethics Of Social Media In A Personal Injury Case
• Taking Down The Defense Medical Examiner
• How To Zealously Represent Victims Of Sexual Assaults While Protecting Your Client
• Auto Defect Cases: The Future Of Your Auto Practice

_____________________

Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy. His statewide law practice is based in Atlanta.  Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

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

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

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

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

• 

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

  

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

• 

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

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

—————-

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

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

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

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

Other officers of the section are:

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

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

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

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

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

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

———————-

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

Please vote here for “best legal blog.”  

—————–

When you are traveling away from home, you want to stay somewhere you feel secure. The last thing you expect while traveling is to stay at a hotel or motel that is unsafe because of hazardous conditions or unsavory characters on the premises.

All too often, criminals enter hotel and motel premises due to management’s failure to take reasonable measures to protect their guests. If the owner of the establishment has reason to expect a crime to be committed on its property, generally due to prior incidents on the property or in the immediate vicinity, there is a legal duty to deter and prevent individuals from committing crimes against those on the property.

Anything from poorly lit corridors and parking facilities, to untrained or out-manned security personnel can facilitate dangerous activities. It is also important to have all cameras monitored and exterior fences locked. Some facilities slack on these responsibilities and put their patrons in harm’s way.

It is also important for the company to complete appropriate background screening before hiring any job candidate. Negligent hiring can occur when an employer fails to screen applicants and hires someone with a criminal history. If an assault is committed by a company employee, who has access to potential victims while they work, the company may be legally responsible for injuries and damages caused by that employee.

If an employee is discovered to be dangerous or have a potential to be dangerous after initial hiring and is kept on staff and then commits a crime, a claim for negligent retention could be filed. If the employer fails to monitor and instruct an employee who poses a crime risk, and is allowed to commit an assault, this may establish a claim for negligent supervision.

We help the victims of these crimes to hold motel and hotel operators liable for inadequate security of their guests. If you or a loved one has been the victim of a crime while staying at hotel or motel, please contact our firm.

——————

Ken Shigley is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, lead author of Georgia Law of Torts: Trial Preparation & Practice, and a double board certified civil trial attorney.

Like many a three-year-old, John had slipped past the fence behind the grandparents’ house and through the gate. Although the gate door was closed, it was not locked. Stephanie said, “The next thing I know, one of the teenagers was yelling, “Momma, Brother is in the pool.”

John was found floating lifeless in the deep end of the pool with a pool net it appears he was trying to use like his grandfather did to clean the pool. John Michael was airlifted to Children’s Healthcare of Atlanta at Scottish Rite, where he died four hours later.

Now the twins’ mom is trying to spread the word about the dangers of what can happen when you’re not paying attention to your child, even if it is just for a moment to check the messages on your phone. She says, “If I can tell his story, if one parent can listen to it and say ‘You know what I need to pay a little closer attention to my child because it can happen to me’ then he won’t have died in vain. Because no parent should have to know the heartache.”

Years ago, I handled a case that was in many ways remarkably similar except the child survived with severe brain damage caused by near drowning of a beautiful 19-month-old girl on a soft April afternoon in Atlanta.  While her mom was breast feeding a newborn sibling on the sheltered patio of their condo, the toddler quietly slipped away. Mom frantically searched in one direction, guessing that the child had gone toward a playmate’s home.

But the child toddled in the opposite direction, toward the condominium pool that had not yet opened for the season. Even at 19 months, she was able to reach and open the substandard latch on the “locked” pool gate. She fell in the uncovered pool, apparently reaching for a floating ball that may have been there all winter. After exhaustive investigation, I found a maintenance man later testified he had told the complex manager for months they needed to replace the latch with a child proof model.

Demonstrating how anoxia(oxygen deprivation) in a near drowning brain injury can be worse than death, she had catastrophic brain damage.  She had a feeding tube for the years she survived, her limbs drew up in contractures and although her beautiful blue eyes tracked people around the room, her neurologist swore that there was no cognitive activity in her brain. It was as if the lights were on but nobody was home.

No amount of money could heal her but we were able to win enough to provide for the 24/7 skilled home nursing care she required. And to some degree the case may have helped to raise the consciousness of property managers and insurers about the need for proper pool enclosures, preventing tragedies for other children.

That experience led me to leave a firm where I mostly defended cases for insurance companies and pursue my calling representing individuals and families.

A hot summer afternoon at the pool offers rest and relaxation perfect for the season — cool water, a relaxing chaise chair, and a cold glass of lemonade by your side. However, pleasure of a pool must be coupled with prudence in  swimming pool safety due to the risks of drowning , near drowning and spinal cord injuries due to diving accidents.

Drowning ranks fifth among the leading causes of unintentional injury death in the United States. Every day, about ten people die from unintentional drowning. Of these, two are children aged 14 or younger.

The U.S. Consumer Product Safety Commission (CPSC) reports that each year nearly 300 children under the age of five drown in a pool or spa and another 5,100 children under the age of 15 go to hospital emergency rooms for near-drowning injuries. Children between the ages of 1 and 3 and African American children between the ages of 5 and 19 are most at risk of drowning.  More than 200 young children drown in backyard swimming pools each year.

To help prevent these tragic deaths while at the pool this summer, people need to be aware of their surroundings. They also need to make sure there are proper safety precautions taken before setting foot inside a pool setting.

PoolSafely.gov is a CPSC website devoted to promoting safety at water parks, municipal swimming pools and other indoor or outdoor aquatic facilities to demonstrate their support of the national campaign and the life-saving message that “simple steps save lives.” It includes a lot of good ideas to help keep your children and grandchildren safe during swimming pool season.

Here are  nine tips to help keep everyone safe at the pool this summer:

1.      Maintain an effective fence and gate enclosure around any swimming pool to prevent young children from wandering in without adult supervision.

• The fence must be at least four feet high, with no openings larger than four inches.
• The gate must be self-closing and self-latching.
• The latch on the gate must require one to reach over the gate and lift up, so that small children cannot open it.
• All chairs, tables, large toys or other objects that would allow a child to climb up to reach the gate latch or enable the child to climb over the isolation fence should be removed or kept inside the fenced area.
• If your house serves as a fourth side of a fence around a pool, install and religiously use door alarms and install window guards on windows facing pools or spas.
• Install pool and gate alarms to alert you when children manage to get past the first line of defense. Consider using a surface wave or underwater alarm.

2.      Teach all children to swim  by age four.

• When my children were about that age, we sent them to a swimming teacher who had a great reputation for teaching young children the basics of swimming.
• Helicopter parents were banned from the pool while the swim teacher endured the tykes’ screams and tears. We took both of our kids to him and they came back ready to start daily practices with the neighborhood pool swim team.

3.      Make sure a responsible adult trained in CPR and first aid, or a lifeguard, or is present and attentive at all times when children are in the pool area.

• If you have a home pool,  take Red Cross water safety, CPR and first aid courses.
• If your neighborhood operates a pool, push to hire a qualified lifeguard if possible.
• Issue the adult supervisor an item such as a whistle, bracelet, etc. to reinforce which adult is in charge of the safety of the children.

4.      Remember that a person who is drowning will not look like the dramatic “drowning”you see in TV and movies.

• More often, drowning victims are not flailing away and waving their arms around because instinct actually drives them to push themselves upward by moving their arms lateral and downward.

5.      Maintain constant, undistracted visual supervision of young children in and around the swimming pool.

• Never leave a young child unattended in or near water but stay in arm’s reach of very young kids. Do not trust a child’s life to another child or even an unreliable, distracted adult. A child can drown in the time it takes to answer a cell phone call or respond to a text message.
• Remove small children from the swimming pool for any distraction such as a telephone call, use of restroom, etc.
• Make sure children who have not learned to swim wear a US Coast Guard-approved personal flotation device.

Floaties, rafts and inflatable toys should never be substituted for adult supervision.

• Teach young children to ask permission before going near water and enforce that rule with meaningful discipline.
• If a child is missing, check the water first– every second counts!

6.      Establish and enforce clear pool safety rules,such as

• No diving
• No swimming alone
• No running in pool area
• No riding toys or electronic devices near pool
• Stay away from drains
• Don’t just post the rules where easily ignored. Reinforce their importance and impose meaningful consequences for breaking the rules.

7.      Make sure your pool and spa drains, drain covers and pool and spa covers comply with federal safety requirements.

• Older drains with uncontrolled suction posed a risk of drowning or disemboweling a child. Since 2007, federal law has to require anti-entrapment drain covers and other safety devices, as needed.
• Under the law, all public pools and spas must have ANSI/ASME A112.19.8 performance standard, or the successor standard ANSI/APSP-16 2011 compliant drain covers installed and a second anti-entrapment system installed, when there is a single main drain other than an unblockable drain.
• Maintain pool and spa covers in good working order.
• If you do not know what kind of drains, drain covers and pool covers you have, ask your pool service provider whether yours meet these standards.

8.      Be prepared for emergencies.

• Make sure everyone in the home knows how to respond to water emergencies by having an emergency plan in place with your children
• Have appropriate equipment, such as reaching or throwing equipment, a cell phone, life jackets and a first aid kit, within a reach at poolside, not inside the house.
• Make sure even very young children know how and when to call 911.

9.      Remember pool hygiene as well as safety.

• Keep your pool clean and clear by maintaining proper chemical levels, circulation and filtration. I represented a child in a near drowning in which an apartment pool was so murky that emergency personnel had trouble finding a black child on the white bottom of the pool.
• By keeping a pool clean and hygienic, you can see what is happening in the pool and minimize risks of earaches, rashes or diseases.
•  Protect your skin. Limit the amount of direct sunlight you receive between 10:00 a.m. and 4:00 p.m. and wear a carefully chosen sunscreen.
• Stay hydrated: Drink plenty of water regularly, even if you’re not thirsty. Avoid drinks with alcohol or caffeine

May you and your children reach the end of the summer swimming pool season as you began it, safe and healthy, though more tan and fit.

——————

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

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

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

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

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

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

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

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

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

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

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

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

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

————–

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

O.C.G.A. § 36-33-5 requires that notice be provided to a municipality within 6 months of the  claim. We lawyers still cling to old Latin phrases, even if only to make ourselves sound cool and justify having taken a dead language in high school, so we call this an “ante litem notice,” meaning it is a notice given before filing suit. The statute requires that

 Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating the time, place, and extent of the injury, as nearly as practicable, and the negligence which caused the injury. No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.

In a death claim, the time for the statute of limitation starts running on the date of death rather than the date of the injury that leads to death. That would apply to an ante litem notice as well because the death itself is the event upon which a claim for wrongful death is based so the time period does not begin until the time of death.

While some accurate specificity is required regarding the time, place and extent of injury, substantial compliance is generally good enough. This is in contrast to the technical strictness in ante litem notices to state government under the Georgia Tort Claims Act.

The time limit for giving a notice of claim to a city government may be “tolled” — stopping the clock — by mental incapacity and a few other limited circumstances, but it is very dangerous to assume such an extension of a time limit will work in a particular case.

Contact us if you have a serious personal injury or wrongful death claim against a city government in Georgia.

——————

Ken Shigley is a past president of the State Bar of Georgia (2011-12), with a statewide personal injury trial practice  based in Atlanta. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West 2010-13) and is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. He defended state and local governmental officials and employees in civil damage cases from 1982 to 1993, and since then has often represented individuals and families in personal injury and wrongful death cases against state and local governments.

Every year there are many incidents of deck collapses in which people are seriously injured or killed. Some of the common preventable causes of deck collapses, based on building code violations that could be detected with inspection, include:

–        Failure to protect against decay. Building codes require that all structural elements exposed to weathering must be protected against decay. That generally means using preservative-treated lumber.  If standard lumber is used in a deck the contractor or owner must apply an approved on-site treatment to the open and exposed ends and paint the rest to bring the deck into compliance.

–        Inadequate fasteners. Too often, building designs do not specify fasteners used to attach decks to the adjacent structure.  Building codes, however, require that in order to resist corrosion,  fasteners, joint hangers and anchor straps used in deck construction must be zinc-coated galvanized steel, stainless steel, silicon bronze, or copper. Building codes also specify the correct type, size, and number of fasteners that must be used. Decks must be affixed to the primary structure with specified types of lag screws, bolts and washers, not merely nailed. However, contractors may cut corners by using untreated or undersized nails to attach decks to the primary structure. The results can be fatal.

–        Insufficient support and anchoring. Current building codes require that all decks must be anchored against wind uplift and laterally braced to prevent the deck from racking and from becoming a projectile in high winds or an earthquake. Footings must both support the deck from downward load and secure it against uplift in high winds.

–         Missing or noncompliant guardrails and handrails. Building codes require guardrails for decks and porches whenever the floor surface is more than 30 inches above the surrounding grade. Guardrails must be no less than 36 inches high, and balusters must be not less than 4 inches apart. A bench may be built against a guardrail but the bench cannot itself be the guard. Screened porches and decks, if 30 inches or more above grade, must also have guardrails. If stairs include more or more risers, handrails are. If a staircase is more than 30 inches above the grade or floor below, a guardrail is also required.

Potential liability of a builder for defective construction of a deck is limited by an eight year statute of repose. O.C.G.A. § 9-3-51.

In seeking to prove liability of a property owner for injury or death resulting from a deck collapse, it is essential to prove the cause for the collapse – defective construction, inadequate maintenance, overloading, etc. – preferably supported by expert testimony about the specific inadequacies and code violations. In addition, it is necessary to establish that the defendant property owner had actual or constructive knowledge of the hazard.

In a 5 -2 decision, with Justice Benham and Presiding Justice Hunstein dissenting, the Georgia Supreme Court found that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant, and (2) instructions or special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights. In addition to the Supreme Court’s  analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion dispensed with the policy arguments argued by the plaintiffs.

None of that came as a surprise to me. The apportionment of fault rule as opposed to a rule of joint and several liability does have a certain appeal to people who have not had to deal with the realities of representing innocent injured people.

The apportionment statute presents an advocacy challenge for lawyers representing innocent people injured through the negligence or wrongful acts of others. For example, if a jury apportions 95% of a $1,000,000 verdicts to a non-party from which no damages can be recovered, and 5% of the verdict to a solvent defendant, then the innocent plaintiff only collects $50,000 of the $1,000,000 judgment. And if the solvent defendant made an offer of judgment under O.C.G.A. § 9-11-68, then the victim may be tagged with that defendant’s defense expenses and come out with nothing at all.

How can this be addressed? Several ideas have been put forward, none of which are foolproof. However, here are a few.

–  A timeline may be used to show a long pattern of negligence in management of a defendant company over a period of weeks or months, compared with the few seconds or minutes in which the the insolvent defendant or non-party was involved. For example, if a trucking company had a long pattern of failure to manage truck driver safety, hours of service, vehicle maintenance, etc., and both their truck driver and another driver were negligent at the moment of the crash, consider graphically illustrating the disparity in the amount of time each was involved in conduct leading to the crash. If a premises owner was repeatedly on notice of the risk of crime on the premises but allowed conditions to become a virtual invitation to criminal assault, then the timeline might help overcome the inclination to apportion everything to the criminal who exploited a target of opportunity.

– A scale may be used to illustrate the relative weight of the number of choices made by each party or non-party to whom fault must be apportioned. If a pebble or a coin on a balance scale represents each choice made that leads up to an injurious event, those made over months or years of safety mismanagement will weigh far more than one momentary bad choice at the time of the incident.

– Think in terms of epidemiology and prevention. The Centers for Disease Control has an entire department devoted to studying the epidemiology of accidents and injury prevention. Analyze how a prudent person in the position of the defendant could easily foresee a risk of injury and the simple, inexpensive actions by the party with the greatest opportunity to manage the situation could have prevented it. Then figure out graphic ways to present that.

None of these approaches are perfect, but they may suggest ways to overcome the obstacles created by the apportionment statute.

———–

Ken Shigley is immediate past president of the State Bar of Georgia and a double board certified Civil Trial Advocate and Civil Pretrial Advocate of the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). He is lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12). In addition, Mr. Shigley has an “AV Preeminent” rating in Martindale-Hubbell Law Directory and is listed as a “Super Lawyer” in Atlanta Magazine,  “Legal Elite” in Georgia Trend magazine, and in “Who’s Who in Law” in Atlanta Business Chronicle.

Kids and swimming pools are a delightful part of summer. This time of year I am often reminded of the pleasant memories of taking my two offspring to the neighborhood pool to play in the water with their friends. Memories of many neighborhood swim meets at the end of sweltering days. I never dreamed that those competitions between teams of young children from subdivision swim & tennis clubs in Sandy Springs would eventually lead to one of my little darlings becoming a triathlete.

But each summer the joy of pool play is accompanied by tragedy. The case that led me to switch from insurance defense to plaintiff’s practice over two decades ago involved a toddler who suffered profound irreversible brain damage due to anoxia (loss of oxygen to the brain) in a near drowning incident. Too often since then I have encountered cases of children drowned or, perhaps worse, victims of near drowning, in neighborhood, apartment and condominium pools.

A good starting point for parents, grandparents, apartment and motel managers, neighborhood swim club managers and others concerned about the safety of children around swimming pools is the Consumer Product Safety Commission Pool Safety website.

Most tragic accidents involving children at pools could be prevented if these rules promulgated by the CPSC were followed:

Have the Appropriate Equipment for Your Pool or Spa

Because humans are not perfect, it is important to install safety measures that can prevent tragedy even when people are momentarily inattentive.

• Install a four-foot or taller fence around the pool and spa and use self-closing and self-latching gates; ask your neighbors to do the same at their pools.
• Install and use a lockable safety cover on your spa.
• If your house serves as a fourth side of a fence around a pool, install door alarms and always use them. For additional protection, install window guards on windows facing pools or spas.
• Install pool and gate alarms to alert you when children go near the water
• Ensure any pool and spa you use has compliant drain covers, and ask your pool service provider if you do not know
• Maintain pool and spa covers in good working order
• Consider using a surface wave or underwater alarm

Stay Close, Be Alert and Watch Children in and Around the Pool

• Never leave a child unattended in a pool or spa and always watch your child when he or she is in or near water
• Teach children basic water safety tips
• Keep children away from pool drains, pipes and other openings to avoid entrapments
• Have a telephone close by when you or your family is using a pool or spa
• If a child is missing, look for him or her in the pool or spa first
• Share safety instructions with family, friends and neighbors

Learn and Practice Water Safety Skills

• Learn how to swim and teach your child how to swim
• Learn to perform CPR on children and adults, and update those skills regularly
• Understand the basics of life-saving so that you can assist in a pool emergency

That first near-drowning case that I handled involved a toddler slipping away from her mom, who was distracted feeding a newborn sibling on the bad deck of their rented condo.  In just an instant, her mom turned around and the 19-month-old was gone. The mom instinctively started searching in the direction of the child’s playmate’s home rather than the closed pool. Meanwhile, the child  was able to gain access to the gated and locked pool because the gravity latch was low enough for her to reach, and the chain wrapped around the gate was so loose that she could easily slip through. She was found floating near a ball in the pool.

Fortunately for the liability case, we found a former custodian who had warned management about the inadequacy of the pool gate and latch. But the child suffered massive, irreversible brain damage. Though she was a beautiful kid who looked amazingly like my own daughter, for the rest of her life it was as if the lights were on but nobody was home. The fact that we were able to recover funds sufficient to care for her for life was cold comfort to all who knew and loved her.

Although the CPSC has disseminated suggested rules governing pool enclosures for at least 22 years, and some of those have been adopted by local governments around the country, I still see motels, apartment complexes, etc. that have the old gravity latches on pool gates — easily opened by any small child who slips away from parents. Those are tragedies waiting to happen.

When I have handled such cases, the usual drill has been to gather evidence of prior criminal assaults on the premises to prove that the owner was on notice of the need for increased security, and then get an expert to testify about the types of security measures that should have been employed but were not.

Often when we have investigated potential cases of negligent security we have found a shocking number of assaults and shootings in parking lots and common areas at apartment complexes, night clubs, stores and shopping centers. That makes it relatively easy for a security expert to testify about both active and passive security measures that could have helped prevent the incident in question.

Last week, the Georgia Court of Appeals has provided a reminder that one must actually do the hard work of proving what the business actually did something wrong in its security measures.

In Yearwood v. Club Miami Inc., A12A0550, 12 FCDR 1820 (06/08/12), the Georgia Court of Appeals (Hon. Anne Barnes) affirmed a trial judge’s (Hon. Dax Lopez, State Court of DeKalb County) grant of directed verdict for the defendant night club in injury suit arising after the plaintiff was shot in defendant’s club. The plaintiff presented no evidence showing that defendant’s voluntary security measures were inadequate or insufficient or that defendant’s measures made security situation worse.

Surprisingly, the plaintiff presented no evidence of prior criminal acts on the premises and no testimony that the security checks and search for guns at the door was actually negligent rather than merely unsuccessful. The plaintiff’s case was essentially one assuming strict liability because the assailant got a gun past the club’s security measures.

The lesson in this case is that lawyers who represent people injured in criminal incidents on business premises must investigate prior similar criminal acts on the premises, conduct detailed discovery about the security measures that were or were not used, and introduce expert testimony from a credible security expert to present to the court exactly why the defendant’s conduct fell below the standard of care for premises security under the circumstances.

If all that can be done convincingly, and if there are insurance coverage or assets available, then there can be a good chance of recovering compensation for the victim. However, if such a case is not presented with adequate evidence and skill, it will fail.

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

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

11. Propose a stipulation that attorneys issue deposition subpoenas.

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

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

In the case of RASNICK v. KRISHNA HOSPITALITY, INC., a 77 year old man from Texas was staying at a motel in Jesup while on a work assignment in Georgia, and spoke with his wife several times per day. When his wife was unable to contact him in several attempts one evening, she repeatedly asked the motel staff to check on him because she was concerned about his health. The motel staff repeatedly refused.

The next morning a motel housekeeper found him on the floor of his room, unresponsive. An ambulance took him to a hospital where he soon expired due to heart problems. A cardiologist testified that would have survived had he received medical treatment the previous evening when his wife was begging the motel management to check on him.

While an innkeeper may have a legal duty to provide reasonable assistance to guest whose illness is observed, the Court held that it has no duty to investigate the possibility of an illness that is not observed.

To require that an innkeeper monitor in any manner the possible health problems of a guest, which are not caused by or are unrelated to the stay at the facility, is not only unwarranted as a matter of law but unworkable as a matter of fact and practicality. Pretermitting significant policy considerations including the potential fiscal impact on the hotel/motel industry, threshold issues would include questions involving the scope of the duty and possible triggering events. What type of inquiry would or should cause the innkeeper to inquire into the guest’s state of health and from whom? Would the triggering inquiry have to be from a family member or would a friend or colleague or anyone with ostensible concern about the guest’s health situation suffice? Such questions become crucial because issues implicating the guest’s privacy are extant. . . .

While issues of morality and humanity are certainly raised by the circumstances of this case, a moral or humane obligation does not compel the existence of a legal duty, the breach of which portends liability. . . . To conclude otherwise in this case would be an epitomization of the adage “bad facts make bad law.” In light of a legislative reluctance to do so and in recognition of clear considerations of policy and pragmatism, we decline to judicially engraft into the caselaw of this State, the additional duty upon innkeepers to investigate or check on their guests to determine if they are in medical need, as urged by Rasnick. This holding is sufficient to decide this case, and thus, we need not determine now whether any duty to render or summon medical aid as may be set forth in Section 314 (A) (2) should be adopted in Georgia.

I’m not reacting to this as a wrongful death lawyer, but as a neighbor, husband and father. Any sudden death is awful. Death at the hands of a violent criminal who invades your home is especially horrifying.

This is a shock to me. The Gramercy apartments building is just about a block from my church. I ran past Gramercy apartments regularly from before the beginning of construction, observing the demolition of the apartments that stood there before and the construction of this building. For 12 years my office was just around the block from Gramercy apartments. Now I drive past Gramercy at least twice a day. A couple my wife and I knew in our church were murdered in their home in Dunwoody just a couple of weeks ago. And as a father of a young woman in college far away from home, it makes me think about her safety.

It is premature to speculate whether the apartment management company would have any civil liability in this incident. However, I have been on plaintiff and defense sides of such cases arising at apartment complexes in metro Atlanta over the past 20 years. A few of the the potentially relevant points include:

• Whether there were prior criminal incidents, e.g., burglaries, assaults, etc., on the property or nearby, which would put the property owner or management on notice of the need for enhanced security.
• Whether the victim was targeted for personal reasons (generally no liability of owner or management) or was the victim of a random crime of opportunity that could have been prevented with better premises security (might be liability).
• Whether there were problems with broken or defective locks or security systems.

Investigation begins with the police. Fortunately, Atlanta has a pretty professional homicide unit. Any evaluation of potential civil liability comes later.

But first the victim’s family deserves space and time to grieve.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is  A Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers . He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, wrongful death, products liability,  spinal cord injury, brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.