In 2015, the Supreme Court of Georgia recognized that Georgia law of negligent entrustment follows the Restatement (Second) of Torts § 390, without reservation or exception. Restatement § 390 provides:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Zaldivar v. Prickett, 297 Ga. 589, 602-03, 774 S.E.2d 688, 697 (2015), et cit. (Majority opinion by Justice Blackwell, dissent by Justice Benham on apportionment issue only).

A 1997 Court of Appeals decision said that the Georgia rule on negligent entrustment is narrower than the Restatement rule, requiring actual rather constructive knowledge. Carolina Cable Contractors, Inc. v. Hattaway, 226 Ga.App. 413, 416 (4), 487 S.E.2d 53 (1997)(Smith, J.) (physical precedent only). However, because that decision is “physical precedent only” it is not binding on lower courts.

Moreover, circumstantial evidence can be used to prove actual knowledge. Carolina Cable, 226 Ga. App. at 416-17.  The direct evidence of degrees of actual knowledge is circumstantial evidence from which jurors may reasonably infer a greater degree of actual knowledge than that to which a trucking company admits.

The Federal Motor Carrier Safety Regulations, 49 CFR § 391.23, requires interstate motor carriers to investigate the driving background of driver applicants. “The investigation may consist of personal interviews, telephone interviews, letters, or any other method for investigating that the carrier deems appropriate.” 49 CFR § 391.23 (c)(2). The minimum required includes requests for information to prior employers and checking state motor vehicle records.

However, that is only the “minimum” required. 49 CFR § 391.23(d). “By the regulations’ own terms, employers may investigate driver employment histories and driving records beyond the minimum standards established by the regulations themselves. The trucking industry’s needs and concerns involving drivers extend to a range of past accidents, incidents, mishaps, occurrences and events well beyond those encompassed by § 390.5.” Cassara v. DAC Services, Inc., 276 F.3d 1210, 1225 (10^th Cir., 2002) It is a floor not a ceiling, for checking driver backgrounds. If a motor carrier has actual knowledge of a collision within the previous three years that is not revealed in those records, a duty arises to check the accuracy of the driver applicant’s self-serving description of the incident.

A Plaintiff may get to a jury “by showing that an employer had actual knowledge of numerous and serious violations on its driver’s record, or, at the very least, when the employer has flouted a legal duty to check a record showing such violations.” Mastec North America, Inc. v. Wilson, 325 Ga.App. 863, 755 S.E.2d 257, 259-60 (2014); Western Indus. v. Poole, 280 Ga.App. 378, 380(1), 634 S.E.2d 118 (2006); Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 829–830(3), 435 S.E.2d 54 (1993).

Circumstantial evidence of knowledge of such factors of incompetency is sufficient to create a question of fact for jury determination on the issue of negligent entrustment. It is sufficient to show knowledge on the part of the entruster by presenting facts from which it could reasonably be inferred that the entruster knew of the driver’s poor driving habits or skills. CGL Facility Management, LLC v. Wiley, 328 Ga. App. 727, 732-33 (2), 760 S.E.2d 251 (2014) (allowing the claim to go to the jury because there was a question of fact where the employer could have had knowledge of the driver’s incompetence based on prior incidents); Dougherty Equipment Co., 327 Ga.App. 434, 439(2), 757 S.E.2d 885 (2014); Ed Sherwood Chevrolet v. McAuley, 164 Ga.App. 798, 802(1), 298 S.E.2d 565 (1982). Cf., Gill Plumbing Co., Inc. v. Macon, 187 Ga.App. 481, 483 (2) 370 S.E.2d 657, 659 (1988)(sufficient to show facts from which knowledge of driver’s poor driving habits or skills could be inferred).

Even if any one of these factors standing alone might be enough to create a jury question on negligent entrustment, the overlapping combination of several pertinent factors may be sufficient to authorize jurors to rationally conclude that a trucking company was aware that it was unsafe to entrust an employee to operate a large truck, at least without further training or in some instances evaluation of sleep disorders.

Such claims are extremely fact-sensitive and must be evaluated in light of the specific combination of facts in each case.

If you have questions about a serious injury or wrongful death case in Georgia, contact us at 404-253-7862.

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

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

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

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

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

A tractor-trailer pulled from the highway shoulder in front of an approaching SUV on I-95 in Jasper County, SC, just north of Savannah, about 9:30 PM Wednesday night, August 8, 2018. The impact killed Raymond Jackson, Jr., driver of the approaching vehicle, a 1999 Ford Expedition. This happened about 3 miles north of the Georgia-South Carolina line, between the Savannah River and Hardeeville.

Initial news reports  of this crash involving vehicles emerging from Georgia do not identify the trucker, the trucking company or the person killed.  If all had Georgia residence at the time, then potentially a Georgia court might apply some points of Georgia law different from South Carolina law, such as the measure of damages and procedures regarding wrongful death claims.

Visibility of tractor trailers at night is a huge problem nationally.  All large commercial motor vehicles are required to have red and white reflective tape and/or conspicuity sheeting  to help make them visible to oncoming traffic. The tape often becomes dirty and worn, making it less effective. In addition, it loses effectiveness when viewed at an angle, such as when a truck is merging from the shoulder into traffic. The regulations are a bare minimum and prudent trucking companies exceed the minimum.

Recently I participated in a national truck driving and safety program for lawyers at a truck driving school’s proving ground in Montana. We went through night time exercises to check the distance and time for recognition of hazards on a dark road. Without getting into stopwatch and distance measurement numbers, it would be nearly impossible for a motorist approaching at the speed limit in the dark to perceive that a poorly illuminated tractor trailer is slowly merging from the shoulder into the roadway in time to react and avoid the hazard. In such situations, the driver of an oncoming vehicle may be a “sitting duck” unable to avoid a tragic crash.

In addition, merging a tractor trailer from the emergency or breakdown lane of the highway into oncoming traffic is highly dangerous even in daylight. The truck driver was charged with failure to yield right of way. South Carolina Code Section  56-5-2350, vehicle entering roadway, provides,

“The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.”

If a wrongful death claim were made in South Carolina for the surviving spouse, children or other heirs of the person killed, it would be under the South Carolina wrongful death statute.

Any vehicle that stops on the shoulder of a highway must eventually merge back onto the highway from the shoulder emergency lane.  For trucks, because of their great size and weight, this is very dangerous. It takes a lot more time for a tractor trailer to accelerate to highway speed than it does for a passenger car.  That is why truck drivers are trained not to use the shoulder emergency lane unless they absolutely must. Because of their great weight, large trucks also take much longer to accelerate and safely match the speed of traffic so they can merge.

Experts such as my Ohio friend Michael Leizerman say that once a truck is ready to move from the shoulder emergency lane and reenter the flow of traffic, the truck driver should first deactivate the emergency hazard flashers. Then the truck driver should activate the left turn signal and and begin to accelerate the truck while still  in the shoulder lane.  Using the emergency lane as an acceleration lane the truck driver should reach a speed close to that of traffic and watch for an safe space to merge into.  The duty is on the truck driver to make sure that he can safely merge into traffic without causing an accident.

Turning the left turn signal on notifies other motorists that the semi-truck is going from a stopped condition to a mobile condition. The left turn signal should not be activated until the truck is ready to move — while the truck is immobile the emergency lights should be on at all times.

The Commercial Drivers License (CDL) Manual is essentially identical in all states though each state issues it with different cover and introductory material. In handling truck crash cases, we refer to the CDL manual of the state in which the truck accident occurs, the state in which the truck driver is licensed and the state in which the company is based. The South Carolina version of the CDL manual includes the following instructions:

2.4 – Seeing. To be a safe driver you need to know what’s going
on all around your vehicle. Not looking properly is a
major cause of accidents.

. . .

2.4.2 – Seeing to the Sides and Rear
It’s important to know what’s going on behind and to
the sides. Check your mirrors regularly. Check more
often in special situations.

Mirror Adjustment. Mirror adjustment should be
checked prior to the start of any trip and can only be
checked accurately when the trailer(s) are straight.
You should check and adjust each mirror to show
some part of the vehicle. This will give you a
reference point for judging the position of the other
images.

Regular Checks. You need to make regular checks
of your mirrors to be aware of traffic and to check
your vehicle.

Traffic. Check your mirrors for vehicles on either
side and in back of you. In an emergency, you may
need to know whether you can make a quick lane
change. Use your mirrors to spot overtaking
vehicles. There are “blind spots” that your mirrors
cannot show you. Check your mirrors regularly to
know where other vehicles are around you, and to
see if they move into your blind spots.

. . .

Special Situations. Special situations require more
than regular mirror checks. These are lane
changes, turns, merges, and tight maneuvers.
Lane Changes. You need to check your mirrors to
make sure no one is alongside you or about to pass
you. Check your mirrors:

Before you change lanes to make sure
there is enough room.
After you have signaled, to check that no
one has moved into your blind spot.
Right after you start the lane change, to
double-check that your path is clear.
After you complete the lane change.

. . .

Merges. When merging, use your mirrors to make
sure the gap in traffic is large enough for you to
enter safely.

. . .

2.5 – Communicating
2.5.1 – Signal Your Intentions
Other drivers can’t know what you are going to do
until you tell them.
Signaling what you intend to do is important for
safety. . . .

An 80,000 pound semi truck does not take off with great speed from a standing stop when entering the highway from a parked position on the shoulder of a highway. The handling is simply not the same as a sports car. Thus, a professional truck driver must allow plenty of time and space to enter traffic lanes from the highway shoulder.

We have handled truck accident cases in which truck drivers decided it was a great idea to pull into a traffic lane within a few car length of a car approaching at highway speed, with predictable results. In one such incident, the truck driver was medically impaired by chronic obstructive pulmonary disorder (COPD), a disqualifying condition. It would have barred him from driving if disclosed to the DOT medical examiner. When I took the deposition of the truck driver’s personal physician, he testified that the trucker’s COPD was so severe he was not supposed to go anywhere without an oxygen tank and the lack of oxygen to the brain could have cognitive effects.

News reports of the crash on I-95 this week do not indicate why the truck driver chose to park on the shoulder at night. Nothing short of unforeseeable mechanical breakdown would justify that dangerous choice. Media reports also do not indicate why the trucker pulled into the path of an approaching vehicle without yielding the right of way. Was it due to fatigue, physical or cognitive impairment, distraction, or some other cause?

For an experienced trucking attorney, this appears to be a case of clear liability even though the insurance company’s lawyers would undoubtedly try to blame the victim who happened upon a truck executing a highly dangerous maneuver in the dark.

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

A fiery crash on I-95 at Richmond Hill near Savannah in Chatham County on July 26^th caused the wrongful death of a woman and sent her husband to a specialized burn unit in Augusta. It appears all too typical of other truck accident cases we have handled throughout Georgia, including those in the Savannah area and along I-95 and I-16.

According to news reports, as a southbound tractor trailer approached the exit the driver moved from the center lane to the right lane. Approaching a line of cars slowed in traffic, the truck driver then tried to get back into the middle lane when struck another tractor-trailer, causing it to spin out of control and into the line of cars waiting to exit. The tractor-trailer struck two SUVs. One SUV was thrown over a concrete barrier onto railroad tracks.

The second SUV was pinned against a concrete barrier over the CSX railroad tracks and burst into flames. The occupants, a husband and wife, were caught in their burning vehicle. The wife was killed and the husband was badly burned and transported to a specialized burn unit in Augusta.

As with most fatal traffic crashes on Georgia highways, the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT) is undertaking a painstaking reconstruction of the chain reaction collision. While news reports have not identified the cause of the fatal truck crash, experience in handling many tractor trailer accident cases over the years suggests likely factors, all of which are related to failure of safety management in trucking companies. Truck driver fatigue and distraction are common factors.

Safety management by trucking companies

.

Most often when commercial truck drivers crash due to fatigue, the root cause analysis leads back to corporate management issues as the motor carrier had a duty under the Federal Motor Carrier Safety Regulations to require observance by their drivers of safety rules. Trucking companies are required to manage safety so as to require their drivers to follow the rules. The Federal Motor Carrier Safety Regulations at 49 C.F.R. §390.11 provides: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.” In addition, “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.” 49 C.F.R. §390.13.

Speed

Speed too fast for conditions is almost always a factor when a tractor trailer crashes into a line of vehicles slowed by traffic conditions or in a construction zone. Excessive speed is involved in 58% of crashes and attributable to the large truck in 65% of those. I suspect that is underestimated because the data comes from police reports. The SCRT unit will gather data from electronic control module and possibly other electronic data sources in the tractor trailers and possibly other vehicle to show the speed, braking and deceleration in each vehicle.

Driver impairment

One of the most important and most frequently violated safety rules for truck drivers, as to which motor carriers have a duty to enforce among their drivers, is one related to impaired driving. “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. . . .” 49 C.F.R. §392.3.

News reports are silent on possible fatigue factors in this crash, but among those we see most often are violation of work hours rules and untreated sleep apnea.

Truck driver fatigue

Hard working truckers tend to drive too long and sleep too little, with outcomes that are predictable. They have “hours of service limits” and are required to log their time driving, on duty but not driving, off duty and in the sleeper berth. The current limits are 11 hours driving out of 14 hours on duty, followed by at least 10 hours off duty, up to 60 hours in a week or 70 hours in an 8 day period on the road. But they can under certain circumstances restart the clock and get behind the wheel. That provision can allow a truck driver to drive up to 81 hours per week.

As many as one-third of truck drivers admit to falsifying their hours of service logs, often under pressure from employers and shippers to get the job done quickly, to meet financial incentives, or simply to make more money. In a truck crash we are handling at I-16 and I-95, we have a video of the truck driver at the scene saying, “I must have went to sleep.”

While there is no easy scientific test to determine when fatigue contributes to the cause of a crash, but we can often peel away the layers of deception through detailed review of trip records. Once after deconstructing his trip records, a trucker in Ohio admitted to me in deposition that he had been driving 20 of the previous 24 hours, had driven from Ohio to Atlanta, back to Ohio, and after a one hour nap started driving back to Atlanta. He ran over a family and killed their son. In another case, a truck driver actually admitted on police video at the crash scene, “I must have went to sleep.”

Sleep apnea

There is nothing in the news reports to suggest whether or not fatigue related to sleep apnea may have been a factor in this crash, but it is something we look into when appropriate.

The US Department of Transportation Medical Review Board has recommended that individuals with a Body Mass Index (BMI) over 40 “should be referred for diagnostic sleep evaluations.” The National Transportation Safety Board has reported, “Drivers with sleep apnea are seven times more likely to be involved in an automobile accident than those without sleep apnea” Drivers with undiagnosed obstructive sleep apnea who are not receiving proper treatment are prone to making critical mistakes or even fall asleep while driving due to their fatigue.”  The Federal Motor Carrier Safety Administration has warned truck drivers that, “Untreated sleep apnea can make it difficult for you to stay awake, focus your eyes, and react quickly while driving. In general, studies show that people with untreated sleep apnea have an increased risk of being involved in a fatigue-related motor vehicle crash.”

In one fatal truck crash we have handled, just a cursory review of the driver qualification file in the trucking company’s records revealed that the truck driver was “morbidly obese” with a BMI of 41.5, putting him severely at risk of obstructive sleep apnea. There was nothing in the records to indicate any evaluation or treatment for sleep apnea. After crashing into a clearly visible line of stopped traffic at a red light, he admitted to an officer that he was fatigued four and one-half hours after reporting for work.

Driver distraction

While there is nothing in news reports to indicate whether the truck driver was distracted, that is a common factor we investigate in major truck crashes. Cell phones, texting, fiddling with GPS units, food and beverages are among the common causes of driver distraction leading to crashes.

We often fight with trucking companies’ insurers over production and forensic download of data from smart phones that law enforcement typically does not attempt to access. A cell phone download may reveal vice and text connections and use of other communications apps such as Facetime, Facebook Messenger, etc. In addition, GPS data from the cell phone may be compared with electronic data from the truck regarding locations, speed and activity of the truck, and patterns and practices that may cast light upon the root cause of the crash. Cell phone data may reveal the truck driver’s off-duty activities contributing to dangerous fatigue on the job. For example, a driver was working a second job in his off hours which would have contributed to accumulated fatigue, chronic sleep deprivation, and irregular work and rest cycles which could likely lead to the inevitable result of a catastrophic truck crash.

Direct solicitation of accident victims

Victims in such crashes should be aware that any lawyer who directly solicits them is violating both a State Bar ethics rule punishable by disbarment and a Georgia criminal law.

—————-

Ken Shigley‘s “singular focus has been filing lawsuits for people hit by trucks.” Atlanta Journal-Constitution, May 7, 2018. He is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. Work on all these types of cases requires expertise in insurance law.

This crash happened on a snow covered highway. Both trucks and buses in interstate commerce are required to exercise “extreme caution” in weather conditions affecting traction and visibility. The Commercial Driver’s License manuals gets a little more specific, telling drivers: “Reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road. On packed snow, reduce speed by a half, or more.  If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so.”

I would bet a steak dinner at Bone’s that this bus driver didn’t comply.

It appears this may be consistent with the “Chinatown bus lines” operations that in recent years have become notorious for unsafe operations, especially in routes running out of New York City. Popular due to low fares, these operations often use older vehicles in which equipment issues are common. Princess, however, appears to operate on a tour charter basis, unless it was operating under contract with one of the “Chinatown bus lines.”

According to the Federal Motor Carrier Safety Administration, Princess has liability insurance for the first million dollars with Prime Insurance Company and from $1 million to $5 million with Axis Surplus Insurance Company.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

—–

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

Handling tractor trailer accident cases on behalf of injured people and their families across Georgia, I often see reports in which I think, “there but for the grace of God” would be a catastrophe. This week there have been four news stories of metro Atlanta crashes involving  tractor trailers. I don’t know the causes at this time, but usual suspects include speed, space management, fatigue and distraction. There are other factors that can come into play but I will not speculate about them.

Interstate 75- Fulton County

An accident involving a jackknifed semi-truck and another vehicle blocked all lanes of northbound I-75 in Fulton County before Cleveland Avenue during the morning commute Thursday.

One person was injured in the incident and taken to a local hospital. It is unclear from which of the vehicles the person was taken and the extent of that person’s injuries. The lanes were all re-opened around 8:30 a.m.

Highway 20- Cherokee County

One victim remains hospitalized after Sunday’s three vehicle accident on Highway 20 & Knox Bridge involving a tractor trailer, which slowed traffic to a standstill in a very busy area of Cherokee County. A 72-year-old woman from Canton was reported in critical condition at Wellstar Kennestone Hospital in Marietta after her 2006 Nissan Pathfinder was hit head-on by an 18-wheeler.

The tractor trailer, driven by Roman A. Tinajero, 40, from California, was traveling westbound on Highway 20 when it left the roadway as it tried to negotiate a curve. Georgia State Patrol spokesman Gordy Wright said Tinajero overcorrected, crossed the centerline and hit Barber’s vehicle, which overturned off the roadway.

A Toyota Camry driven by an 18-year-old male from  White County, then struck the tractor trailer after the crash. Two people in his vehicle were also transported to Kennestone for treatment.

The truck driver was charged with failure to maintain lane, driving too fast for conditions, and driving on the wrong side of the roadway Georgia State Patrol spokesperson Tracey Watson said Monday.

I-285 & I-20 ramp.

A tractor trailer loaded with beer overturned on a ramp at I-285 south and I-20 east at about 2 AM.  No injuries were reported but crews had to clear beer from the side of the road. I wonder if there were crowd control problems with folks trying to make off with spilled product.

Worth County, Georgia

Last Friday night in Worth County, two people died in a collision with a semi-truck. A man celebrating his 23^rd birthday died at the scene at the intersection of Highway 112 and Shingler Road. An 81-year-old man was airlifted to a hospital in Macon where he died later Friday night.

Investigators say one of the victims pulled into the path of the semi that was heading north on Highway 112. The 18-wheeler crashed into that driver’s pickup and then the oncoming pickup truck that the other victims was driving.

We often see this pattern where a truck driver swerves in reaction to a vehicle emerging from a side road, crashing on the opposite side of the road. Commercial truck driver training ideally should include a trained reflex to go straight or swerve right in order to avoid chasing down the emerging vehicle on the other side of the road or, as in this case, crashing head on into an innocent motorist coming the other way.

A tractor-trailer, a construction truck, and a Nissan Maxima also were involved in the wreck, which happened around 6:20 p.m. Three other people, whose names were not released, were transported to local hospitals for treatment, Coloma said. Their conditions were not known as of Thursday.

1-285 was closed at Clark Howell Highway throughout Wednesday evening and drivers were diverted onto Riverdale Road. All lanes reopened overnight before the Thursday morning commute.

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

That flying transmission part sliced off the arm of a young mother, Jemeka Malone, and killed her 8-year-old son, Cameron McIlwain. Ironically, the husband and father, Quantaine Malone, is himself a long-haul truck driver. This incident was featured in the Atlanta Journal-Constitution in an investigative article by Katie Leslie (who phoned me for comment Friday morning) and an article about the family by Craig Schneider.

Online records from the Federal Motor Carrier Safety Administration reveal that CW Transport had vehicle maintenance violations worse than 94.6% of trucking companies in its size category. Records also show the company worse than 67.5% of its peers in terms of unsafe driving violations. Most of the individual violations seem mundane, but cumulatively they paint a picture of a company blatantly indifferent safety concerns. Among the violations were citations for operating without periodic inspections and failure to correct defects noted earlier by inspectors. As I told the newspaper reporter, this company’s safety record is awful but not the worst I have seen.

Ironically, despite its terrible record of vehicle maintenance and unsafe driving violations, CW Transport makes apparently inconsistent claims on its website, including statements about safety compliance and training, age and quality of equipment, and safety performance awards. It would be interesting to see who gave a safety performance award to a company that has vehicle maintenance violations worse than 94.6% of its peers.

The Georgia State Patrol SCRT (Specialized Collision Reconstruction Team) unit is investigating and reconstructing this incident. I expect it will be a good while before their report is released. It is undetermined whether the CW Transport driver, David Washington, will face criminal charges.

My observation in cases over the years has been that companies that contract to transport garbage from collection sites to remote landfills often operate with worn out, poorly maintained equipment and some of the least qualified truck drivers. The smell of the loads alone can result in truck drivers who can possibly work anywhere else leaving these companies.

CW Transport is owned by Gregory Wynn, who is also listed as CEO of CTC Construction LLC (formerly Wynn Builder Group, LLC) and of JLW Management, Inc. (a real estate management company administratively dissolved in 2010), etc.

Investigative reports have noted that Wynn hosted a fundraiser for Mayor Kasim Reed, gave $1,000 to the mayor’s campaign,  and that CTC won numerous City of Atlanta construction and demolition contracts including contract for emergency services debris removal, while CW Transport got a piece of the action as a minority joint venture or subcontractor for City of Atlanta waste removal.

None of that proves anything related to this tragedy.What is apparent, however, is that Wynn’s companies have done fairly well in securing City of Atlanta contracts while promising a great deal more on safety concerns than has been delivered.

And now CW Transport’s poor truck maintenance has cost an 8-year-old child his life and cost his mom both her arm and her child.

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).

ABCO’s poor safety record culminated July 2012 when an ABCO truck driver ran a red light on Thornton Road in Douglas County, Georgia, causing a tragic crash that took the lives of two AutoTrader.com employees and injured 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 worked 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 past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice.  His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

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.

Rosario Velez, 44, was making a phone call from her minivan stopped in the I-285 emergency lane  at Riverside Drive when she was struck by an 18-wheeler. Police reported that the trucker crossed over into the emergency lane to strike her vehicle.

Today, Sandy Springs police arrested the truck driver, Joseph Leon Golden, 43, of El Paso, Texas. He has been charged with  second-degree vehicular homicide and a lane violation, and is being held at the Fulton County Jail on $5,500 bond.

Ken Shigley  is author of Georgia Law of Torts: Trial Preparation & Practice and president-elect of the State Bar of Georgia.   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). 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. Married 27 years, he is the proud father of Anne Shigley and Ken Shigley, Jr.

This post is subject to our ethical disclaimer.

Cristela Guerra and Janine Zeitlin of the Fort Myers News-Press

reported that the tractor-trailer was  hauling sand out of Ortona Sand Co., five to six miles from where the accident occurred.  The van, registered to a farm labor contractor, was not authorized to transport farm workers and had not passed vehicle safety inspections. 

According to USDOT information, West Coast Aggregate Haulers is based in Venice, Florida, and reports operation of only one power unit, hauling aggregate on interstate trips only. In the past 24 months West Coast Aggregate had two truck inspections, failing one of them. 

Florida requires only $300,000 liability insurance for trucks of intrastate haulers with a gross vehicle weight of 44,000 to 80,000 pounds, compared with the minimum $750,000 required for interstate truckers and the measly $100,000 required for intrastate haulers in Georgia.  However, we often find in Georgia that trucks hauling timber and  building materials such as sand actually carry $1 million liability coverage due to contractual requirements.

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 will speak this week at a seminar in Chicago sponsored by  the Interstate Trucking Litigation Group of the American Association for Justice. A member of the Million Dollar Advocates, he has successfully tried truck, bus and passenger van accident cases with multimillion dollar verdicts and settlements.  He has lectured on truck and bus litigation topics at  continuing legal education programs throughout the United States. 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.

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

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 truck, bus and passenger van accident cases with multimillion dollar verdicts and settlements.  He has lectured on truck and bus 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.

Today’s news feeds included two sharply contrasting cargo spills in truck wrecks — ammonia nitrate on I-20 in eastern Georgia and Oreo cookies in Illinois.

At Morris, Illinois, about 50 miles south of Chicago, a truck loaded with 14 tons of double-stuffed Oreo cookies overturned, spilling cookies all over the highway. No, it wasn’t in a collision with a milk truck.

A potentially more serious situation was a wreck on I-20 about 45 miles west of Augusta, Georgia.  About 2:30 AM, a truck loaded with 24 tons of ammonium nitrate used both as fertilizer and as an oxidyzing agent in explosives, overturned and began leaking. Three people were reported injured.

Ammonium nitrate is used in powerful military explosives such as the “daisy cutter” bomb.  It has been involved in a number of distastrous accidental explosions, most notably the Oklahoma City federal building bombing in 1995 which killed 168 (or perhaps 169) people and  the Texas City explosion on a ship in 1947 which killed 547. 

Ammonium nitrate mixed with diesel fuel is quite a volatile mix. If this spill occurred in a heavily populated area, and a spark was added, it could have had monumentally catastrophic consequences.

Motor carriers haulilng ammonium nitrate must comply with strict “HazMat” shipping regulations and carry at least $5,000,000 liability insurance. “HazMat” truck drivers must clear security check by the Department of Homeland Security. 

“HazMat” truck drivers have told me in emotional detail of the added stress involved in their jobs. Recently one who delivers gasoline to service stations five or six nights per week told me how every year he has worked in that job, one or two fellow drivers — usually those who are short on training and experience — have died in explosions and fires.  He explained how the divorce rates for HazMat drivers are apparently higher than average, which he attributed to the combination of higher pay and higher stress.

If I were a truck driver, I think I’d rather stick with loads of Oreos.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on 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.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck and bus accidents.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Chair of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He focuses on 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.

Ken Shigley is a trucking and product safety trial attorney based in Atlanta.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck  and bus accidents.  Click here for a free consultation with no obligation.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck  and bus accidents, representing truck drivers and their survivors as well as people injured when hit by trucks.

I am familiar with this area because my son is attending college nearby. At least he seldom has reason to get on I-5 except to go to LAX for visits home.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” inGeorgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

Use of foreign truck drivers and allowing Mexican trucking companies to operate nationwide in the US has been an increasingly controversial topic in the trucking industry.  For the last few years it has become increasingly evident that if the trucking industry could outsource driving jobs to third world countries to save money, it would do so.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states (recently including Alabama, Nevada and Florida) subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.