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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Ken Shigley is an Atlanta trial attorney focused on serious personal injury and wrongful death cases. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of the Institute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In ABCO’s case, this bad safety record culminated in a tragic crash on Wednesday on Thornton Road in Douglas County, Georgia, when an ABCO truck driver ran a red light, taking the lives of two co-workers at AutoTrader.com (a Cox Enterprises subsidiary) and injuring four others.

I was in Chattanooga, at the office of another trucking trial attorney, when I got a message to return a call from the family of two of the injury victims who had been referred by their family’s attorney in another state.

ABCO’s record with the Federal Motor Carrier Safety Administration shows unsafe driving violations with a 74.3 percentile score. Anything over 60th percentile is unsatisfactory. In the past two years, ABCO had 81 reported unsafe driving violations, and has rated unsatisfactory for unsafe driving violations for every reporting period since December 2010. That is probably the tip of the iceberg, as it only indicates the times they got caught.

Specific reported violations include:

– Failure to obey traffic control device, 8 violations – Following too close, 11 violations – Improper lane change, 3 violations – Lane Restriction violation, 5 violations – Improper passing , 1 violation – Reckless driving, 1 violation – Speeding, 14 violations – Speeding 15 or more miles per hour over the speed limit, 4 violations – Speeding work/construction zone, 4 violations
In 2011 and 2012, ABCO has had 18 reported crashes, 8 of which involved injuries, with a total of 17 people injured. These include:

– 6/22/12, Pennsylvania, 2 injured – 12/9/11, New York – 12/2/11, Ohio – 11/29/11, Colorado – 11/2/11, New York, 1 injured – 10/11/11, Virginia – 9/9/11, Missouri – 4/27/11, Kentucky – 4/7/11, Florida, 1 injured – 3/5/11, Alabama – 2/10/11, Virginia, 7 injured – 1/20/11, Ohio – 11/23/10, Florida, 1 injured – 11/3/10, Indiana, 1 injured – 10/25/10, Ohio – 8/29/10, Texas, 1 injured – 7/31/10, Virginia, 3 injured – 7/9/10, Connecticut
Regarding fatigued driving, one of the most common underlying causes of truck crashes, ABCO is right at the threshold for an unsatisfactory rating — 59.8 percentile when anything over 60 percentile is considered unsatisfactory. ABCO was over the 60 percentile threshold for unsatisfactory driver fatigue rating for 4 of the past 6 reporting periods. Reported violations only indicate when they got caught, so they are normally the tip of the iceberg. Violations include:

– False report of driver’s record of duty status, 8 (lying about driver logs)
– Requiring or permitting driver to drive more than 11 hours, 8 violations – Requiring or permitting driver to drive after 14 hours on duty, 20 violations
It was with that background that an ABCO Transportation tractor-trailer operated by 64-year-old Robert John Sansom, of Colorado ran a red light on Thornton Road in Douglas County, Georgia, on Wednesday, July 11th. Two women on their lunch break were killed — Tracy Downer and Michelle Chinnis, both of whom in sales for AutoTrader.com, a website owned by Cox Enterprises. Four other people were injured in the crash . According to an article by Alexis Stevens in the AJC, Downer previously worked in advertising at the AJC from 1993 to 2010, was married with a son and a daughter, and Chinnis is survived by a 16-year-old daughter.

Victims and their families may choose separate attorneys or joint representation in such instances of serious personal injury or wrongful death, as this is a potential conflict that may be waived in writing after informed consent pursuant to Georgia Rule of Professional Conduct 1.7.

Whenever there are multiple victims of a crash such as this one, it is important to coordinate representation. Most recently, we were involved in the joint prosecution group coordinating representation of member of the Bluffton University baseball team arising from a bus crash in Atlanta in 2007. Where there are no substantial indications of fault on the part of any of the victims, the only potential conflict among them is generally concern about adequacy of insurance coverage and assets to cover all claims.

The Federal Motor Carrier Safety Administration website only shows for ABCO a $1,000,000 liability policy with Protective Insurance Company. However, an interstate motor carrier with 174 trucks is likely to carry an excess liability insurance policy with considerably higher limits, perhaps an additional $5,000,000 to $20,000,000. That information is not public and generally is reliably documented only in litigation.

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

Now the Federal Motor Carrier Safety Administration has issued a rule barring use of hand held cell phones by commercial truck drivers in interstate commerce. The agency stated the rationale for the rule in part as follows:

Using a hand-held mobile telephone may reduce a driver’s situational awareness, decision making, or performance; and it may result in a crash, near-crash, unintended lane departure by the driver, or other unsafe driving action. Indeed, research indicates that reaching for and dialing hand-held mobile telephones are sources of driver distraction that pose a specific safety risk.

The agency summarizes much of the research on cell phone distraction in explaining its conclusion that “it is the action of taking one’s eyes off the forward roadway to reach for and dial a hand-held mobile telephone … that has the greatest risk.”

Ken Shigley is president of the State Bar of Georgia, a Certified Civil Trial Attorney of the National Board of Trial Advocacy and has an Atlanta-based law practice focused on representation of people seriously injured in commercial trucking accidents.

The latest Notice of Proposed Rulemaking was published April 29 by the Pipeline and Hazardous Materials Safety Administration, part of DOT, would prohibit use of a handheld cell phone by drivers moving a quantity of hazardous materials that must be placarded under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73 in intrastate commerce.

This would expand upon rules already proposed by the Federal Motor Carrier Safety Administration (also part of DOT). FMCSA barred texting by commercial motor vehicle drivers in a September 2010 final rule. It proposed to restrict the use of hand-held mobile phones in a Dec. 21, 2010,

PHMSA estimates that there are approximately 1,490 intrastate motor carriers that could be affected by this rulemaking.

Ken Shigley is an Atlanta, Georgia, trial attorney. He has been designated a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend), and rated “AV Preeminent” by Martindale-Hubbell Legal Directory. He is author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010), a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and currently president-elect of the 42,000 member State Bar of Georgia. He has extensive experience in litigation and trial of cases involving serious personal injury, wrongful death, trucking accidents, automobile accidents, products liability, premises liability, and insurance. Mr. Shigley is a graduate of Furman University and Emory University Law School. This blog post is subject to our ethical disclaimer.

The study showed that the top 5 percent of drivers with the most driving distractions were distracted 67 percent of the time during which a risky driving maneuver was observed – nearly six times more often than the rest of the drivers.

Just 5 percent of the drivers accounted for the majority of events involving those devices – 57 percent of all mobile phone incidents captured and 52 percent of all operating-handheld-device incidents.

The nine most common distractions observed in conjunction with a risky driving maneuver were:

* Object in Hand, 44.5%, which includes mp3 players, PDAs and paperwork * Talking on a Handheld Mobile Phone, 13.4%
* Beverage, 12.7%
* Food, 10.1%
* Smoking, 9.9%
* Operating a Handheld Device, 9.1%
* Talking/Listening Mobile Phone – Hands Free, 5.2%
* Manifest, Map or Navigation, 1%
* Grooming/Personal Hygiene, 0.6%

Ken Shigley is an Atlanta, Georgia, trial attorney. He has been designated a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend), and rated “AV Preeminent” by Martindale-Hubbell Legal Directory. In addition, he is author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010), a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and currently president-elect of the 42,000 member State Bar of Georgia. He has extensive experience in litigation and trial of cases involving serious personal injury, wrongful death, trucking accidents, automobile accidents, products liability, premises liability, and insurance. Mr. Shigley is a graduate of Furman University and Emory University Law School. This blog post is subject to our ethical disclaimer.

Right now I’m working on a brief opposing a motion to exclude my expert witness from testifying about cell phone distraction in driving. I am scheduled to speak on driver distraction in trucking at the American Association for Justice convention in Vancouver this July. The Kentucky crash provides more material for that presentation.

Ken Shigley is a commercial trucking safety trial attorney who has extensive experience representing parties in interstate trucking collision cases. He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005 and is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Mr Shigley is president-elect-designee of the 41,000 member State Bar of Georgia, of which he will serve as president in 2011-12.

This post is subject to our ethical disclaimer.

HB 938 would prohibit the use of wireless telecommunications devices for sending or reading text messages while operating a motor vehicle. A conviction would be punishable by a fine of not less than $50.00 nor more than $100.00. In addition, two points would be assessed to violators of this provision. The bill provides exceptions for engaging in a wireless communication using a wireless telecommunications device in emergency situations.

This bill would amend Code Section 40-5-57.4 by requiring the driver’s license of any operator of a motor vehicle, who is determined to be at fault for causing an automobile accident while texting, be suspended. A first suspension shall be for a period of 90 days. A second or subsequent suspension shall be for a period of six months. The suspension will terminate after the suspension period and when the person pays a restoration fee of $60.00 or, $50.00 when processed by mail.

HB 944 would prohibit a person from writing, sending, or reading a text-based communication on a wireless telecommunications device while operating a motor vehicle. It provides for exceptions in emergency situations. Any conviction for a violation would be a misdemeanor punishable by a fine of not more than $300.00.

Ken Shigley is a trucking safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia.

Mr. Shigley has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer of the 41,000 member State Bar of Georgiam and the unopposed nominee for President-Elect to serve as President in 2011-12.This post is subject to our ethical disclaimer.

I was therefore quite interested in a recent report of a truck accident on the New York Thruway near Pembroke, New York, when a young mother of two sons was killed on Christmas Eve. She was a teacher of special needs children and had sons ages 3 and 1. According to a Buffalo News report, she had just dropped off her older son at a relative’s house in Rochester (where my daughter attends RIT), and was on her way to finish her Christmas shopping.

New York State Police are investigating whether the truck driver was using his laptop computer when he crashed into the young mom’s car, which was disabled after striking a deer. Other vehicles had swerved around her but the trucker did not.

Electronic distractions are a huge issue in traffic safety, particularly in trucking. Cell phones, text messaging, and the various electronic devices for communication with trucking dispatchers, are increasingly subjects of study.

Ken Shigley is a trucking safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, cement truck, dump truck and bus accidents statewide in Georgia. Involvement in individual cases in other states is undertaken in strict compliance with the multijurisdictional practice and pro hac vice rules of each state.

He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

Mr. Shigley has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer and a candidate for President-Elect of the 41,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

But last Sunday, I saw one.

While helping my son move his car and his stuff home from California, I was taking a turn driving east of Albuquerque when we saw a column of black smoke just ahead. As traffic ground to a halt, we saw that about 200 yards ahead on the westbound lanes of I-40, one tractor trailer had rear-ended another, and was beginning to burn.

Another bystander said that her husband had broken out a window in the cab of the striking vehicle and pulled the unconscious driver out before his rig burst into flames.

As traffic was blocked in both directions, my son and I waited over an hour, watching as the truck was engulfed in flames and a huge column of black smoke rose into the clear New Mexico sky.

Numerous emergency vehicles responded. Eventually a helicopter landed in our eastbound lanes and evacuated the truck driver.

While we waited, I talked with the drivers of trucks stopped behind us. A bulk freight tanker filled with plastic pellets was stopped behind me at an angle blocking both lanes. One of the other truckers thanked him for blocking both lanes that way, so that others would not get closer to the fire before stopping. He responded that he had no choice. Due in part to handling characteristics with that load, he had a hard time stopping without hitting us, and wound up at an angle across both lanes.

The truck drivers waiting on the road talked some about the new CSA 2010 (Comprehensive Safety Analysis) program coming online soon at the Federal Motor Carrier Safety Administration. A seasoned truck driver (about my age) was concerned that anyone who has been driving over the road for 30 years, with the diet and exercise difficulties that go with that, is bound to have medical conditions that require medication that would be reported under the new system.

They also talked a little about how they manage rest, diet and exercise. Or don’t manage it, as the case may be. One mentioned the near monopoly in the truck stop business, and the lack of healthy food or exercise facilities at truck stops. If the giant players in the truck stop industry would put in healthy food and fitness facilities, it would help a lot in improving truck driver health and public safety.

Eventually the helicopter took off and we were able to drive away. As we passed the burned out tractor trailer, it was difficult to recognize the completely incinerated tractor. Traffic was backed up for many miles on the westbound lanes of I-40 and probably was not cleared for quite a while longer.

No, I don’t know the causes of the crash — fatigue, distraction, speed, following too closely, or even sudden stopping in the middle of an open interstate through the desert.

Fortunately, it was another tractor trailer that was hit. While the trailer of the lead vehicle was destroyed, there was no direct impact to the cab. If a small vehicle had been hit in that manner, and then involved in the truck fire, it is unlikely any occupants would have survived.

Ken Shigley is a trucking safety trial attorney representing seriously injured people in tractor trailer, big rig, intermodal container freight, cement truck, dump truck and bus accidents statewide in Georgia. He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

He has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer and a candidate for President-Elect of the 41,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

Electronic distractions that cause concern include cell phones, text messaging, CB radios, email, on-board computers and navigation devices.

Recent studies have shown that driving while talking on a cell phone — even hands free — increases accident risk equivalent to driving with 0.08 blood alcohol, the threshold for DUI, and that texting while driving increases accident risk 23 times.

Ken Shigley is a trucking safety trial attorney representing seriously injured people in tractor trailer, big rig, intermodal container freight, cement truck, dump truck and bus accidents statewide in Georgia. He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

He has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer and a candidate for President-Elect of the 41,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

About 4 AM last Friday on I-65 in Indiana, a family of five was killed when a tractor trailer rear-ended their vehicle which had slowed for traffic

Several years ago, something similar happened to a family in our neighborhood in Sandy Springs. The parents survived but their lovely teenage daughter, who had been a friend of my daughter since kindergarten, was killed instantly when a tractor trailer ran right over them as they slowed for congested traffic on I-20 in Alabama. After seeing so many incidents of this sort, I automatically hit the hazard flasher button whenever traffic slows ahead of me on the expressway.

The predawn hours are an all too common time for this sort of crash. Driver fatigue and efforts to keep driving despite sleepiness are often a factor.

Investigation of such incidents should include tracking down and examining all driver logs, trip receipts, Prepass records, weigh station records, bills of lading, etc., etc., to determine whether there were violations of hours of service rules in the Federal Motor Carrier Safety Regulations. It should also include investigation of the driver’s medical history, including any disqualifying medical conditions and use of prescription or non-prescription medications that may affect alertness.

Ken Shigley is a trial attorney in Atlanta, Georgia who has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale), and is a Certified Civil Trial Advocate of the National Board of Trial Advocacy. He served as chair of the Southeastern Motor Carrier Litigation Institute, is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is a frequent speaker at continuing legal education programs for the Interstate Trucking Litigation Group of the American Association for Justice. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer of the 40,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

See our recent posts on cell phone distractions and the absence of seat belts on busses.

Ken Shigley has been a trial lawyer in Georgia for 31 years. A member of the Million Dollar Advocates Forum, he has successfully prosecuted truck, bus and van accident cases with multimillion dollar verdicts and recoveries. He served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations, is a member of the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice.He has lectured on trucking litigation topics at continuing legal education programs both at home in Georgia and in Nashville, New Orleans and St. Louis, and is scheduled to do so in Chicago this fall. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and was recently elected Secretary of the 39,000 member State Bar of Georgia.

When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.

Now we learn that the train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts. This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.

Current state laws about cell phone use and text messaging while driving include:
* Handheld cell phones: California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
* Text Messaging: Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
* Novice Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
* School Bus Drivers: In 16 states and the District of Columbia, school bus drivers are prohibited from all cell phone use when passengers are present, except for in emergencies.
* Other rules: Some cities, such as Phoenix and Detroit, have cell phone laws, but nine states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.

In the wake of the LA commuter train tragedy, my hunch is that legislators in states around the country will pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving. Most any call phone user who does not now have a Bluetooth or other hands-free device in the car will do so within the next couple of years.

In auto and truck accident litigation, we have already become even more diligent and aggressive about discovery of cell phone and text messaging records. With heightened sophistication about electronic discovery, this will be an increasingly significant factor in lawsuits.

There are at least three potential uses of cell and text evidence:

1. The defendant’s cell phone and text usage while driving may be considered “conscious indifference to consequences” sufficient to support an award of punitive damages, similar to drunk driving.

2. The plaintiff’s cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.

3. If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer’s business, then the employer and its insurance policy may be drawn into the case.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, Ken Shigley has served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. He is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice. A member of the Million Dollar Advocates, he has successfully tried trucking accident cases to multimillion dollar verdict. He has lectured on trucking litigation topics at continuing legal education programs both at home in Georgia and in Nashville, New Orleans and St. Louis, and is scheduled to do so in Chicago this fall. He is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and was recently elected Secretary of the 39,000 member State Bar of Georgia.

A recent study of driver distraction by Volvo concludes:

It is positive that the number of safety and information systems in modern vehicles is increasing. Taken individually, they offer many benefits as regards traffic safety and productivity, for instance, but the driver does risk being over-burdened by too much information. Especially bearing in mind that many drivers also have their mobile phones and perhaps also a GPS navigator in the vehicle. In order not to jeopardise traffic safety, we have developed solutions that allow all the systems to interact smoothly,

If you are driving 60 mph and take your eyes off the road for three seconds, you will drive the equivalent length of a football field without knowing what’s going on around you. Therefore, it is perhaps not surprising that a major 2006 study, sponsored by National Highway Traffic Safety Administration and Virginia Tech, found that nearly 80% of crashes, and 65% of near-crashes, involved some form of driver inattention, such as cell phone use and drowsiness, within three seconds before the event.

The reports a study last year found high numbers of drivers who were distracted by talking on cell phones, sending text messages, reading the newspaper and even shaving while driving. A followup study cites the availability of technology was mentioned by 35% as the reason distracted driving is so common, and 48% considered cell phones and other technology use to be the most dangerous distraction. Nearly half of teens and Gen Y drivers blamed having to stay connected socially as a reason why they drive while distracted. For boomers, the pressure was more work-related.

When I started out as a young prosecutor, public awareness of the problem of drinking while driving was nowhere near what it is now. It was too often a matter of jokes rather than revulsion.

It appears that public awareness of the dangers of cell phone use and texting while driving is now about where awareness of drinking and driving was in the late seventies.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley specializes in cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks. Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. A former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute, he is a Certified Civil Trial Advocate of the National Board of Trial Advocacy..