The minimum liability insurance required for large trucks in interstate commerce was set at $750,000 forty years ago in 1981 at the beginning of the Reagan Administration. Everything else has gotten more expensive in the past forty years. Nothing costs the same since then–not the truck, the repairs, the gas, or the tolls, so it is completely unrealistic for the truckers to have the same insurance as they did forty years ago.

If adjusted for the Consumer Price Index, it would be $2,203,415.84 today. People who are injured by trucking negligence need to pay their medical bills so trucking safety advocates have sought for years to bring some balanced fairness to others on the road. If adjusted to the rate of medical inflation it would be about $5 million.

This year, legislation is moving forward in Congress to adopt a compromise increase to   $2 million as a reasonable compromise.

The principal opposition to this inflation adjustment on minimum insurance coverage for large trucks is the Owner-Operator Independent Drivers Association (OOIDA). While portraying itself as the representative of individual truck drivers, OOIDA operates largely as an insurance company. That is a pattern familiar in several national organizations that portray themselves as grassroots groups but are essentially insurance companies.

On June 10, 2021, U.S. House Committee on Transportation and Infrastructure approved a provision of the 2021 Highway Bill to increase the minimum insurance required for interstate motor carriers for the first time in forty years, from $750,000 to $2,000,000, over the opposition of congressmen allied with OOIDA.

The greatest threat of injury and death to truck drivers comes not from smaller vehicles on the highways, but from collisions with other large trucks. We have represented a number of semi-truck drivers over the years who were badly injured when their trucks were struck by other tractor-trailers. It is ironic that OOIDA would oppose the inflation adjustment of insurance that would protect its own members against the greatest threat of injury to themselves.

The legislative process is contentious. The struggle to update trucking insurance coverage for forty years of inflation is far from over. Those that oppose that update will pull out all the stops in the House Rules Committee and in the Senate to block measures for improved trucking safety and adequate compensation for the victims of large truck crashes.

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

A senior counsel in the firm of Johnson & Ward, Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

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

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

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2020, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. Mr. Shigley is a widower, father of two adult children, and an elder in his church. 

Ken Shigley of Shigley Law LLC, based in Atlanta, Georgia, recently earned his third national board certification, in Truck Accident Law, from the National Board of Trial Advocacy. Certification is based upon exhaustive testing, documentation of extensive experience in the field of trucking accident litigation, writing samples, and professional recommendations from lawyers and attorneys familiar with the applicant’s work.

The National Board of Trial Advocacy operates under authority of the American Bar Association.   “There is no dispute about the bona fides and the relevance of NBTA certification…. Disclosure of information . . .  both serves the public interest and encourages the development and utilization of meritorious certification programs for attorneys.” U.S. Supreme Court Justice Stevens in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 110 S.Ct. 2281 (1990). Mr. Shigley previously attained NBTA board certification in Civil Trial Law (1995) and Civil Practice Law (2012).

Why hire a board certified attorney?

Truck Accident Law deals with the procedural, substantive and practical issues unique to collision cases involving commercial tractor trailers, buses and other commercial motor vehicles and all of the people and entities in the transportation cycle.

The trucking industry is comprised of 3.5 million professional drivers. The size and weight of commercial motor vehicles and trucks in an accident cause significant damage to drivers, passengers and property. The US Department of Transportation reports that there are around 500,000 trucking accidents each year. According to the National Highway Traffic Administration approximately 4,000 people die and 104,000 are injured annually. One out of every eight traffic fatalities involves a truck collision. Trucking is regulated by the Federal Motor Carrier Safety Administration, a division of the US Department of Transportation.

Shigley is a member of the Board of Regents of the Academy of Truck Accident Attorneys.  ATAA recognizes attorneys who have documentable knowledge, real experience and proven results in handling truck crash cases so that victims can choose lawyers with confidence. It provides lawyers who handle truck crash cases for victims with the very best cutting edge education and resources available to both improve their knowledge and skillset.  Lawyers can claim to be anything in TV ads, on the Internet or in promotional material, but every ATAA Board Certified member has been thoroughly vetted and tested.

The National Board of Trial Advocacy provides board certification for attorneys who have demonstrated skill and expertise in a particular field and have proven it through rigorous examination and testing by the NBTA. The NBTA is one of the organizations accredited by the American Bar Association to demonstrate that lawyers certified have an enhanced level of expertise and substantial involvement in the specialty area of certification. The standards are designed to enable the NBTA to evaluate thoroughly the objectives, standards and procedures of attorneys and to facilitate public access to appropriate legal services.

Similar to the medical profession in which the body of knowledge is so large that it’s impossible for one doctor to remain current in all specialty areas, the body of law has grown so large and complex that attorneys can no longer be all things to all people. Unlike the medical profession, which has embraced specialization and specialty certification, the legal arena has been slow to acknowledge publicly what it has known for years: nearly all lawyers specialize but do so without substantiation beyond “reputation” or simply saying it is so.

Mr. Shigley’s two prior NBTA board certifications are Civil Trial Law (1995) and Civil Practice Law (2012). 

Civil Trial Law may include civil litigation, personal injury litigation, and any other type of litigation that is not criminal in nature, such as property disputes, construction or insurance claims and a wide array of other civil controversies. Second, usually money damages are at stake in civil litigation.

Despite what is seen on television dramas, cases do not always have to go to trial. However, it is impossible to know in advance which cases will settle and which will go to trial, and because settlement amounts reflect predictions about the most likely result if the case is tried, it is wise for people to hire well qualified trial attorneys to handle their claims or defense of claims whether they think the case will be tried or settled out of court. It is important to understand

Trial attorneys must have knowledge,experience, great communications skills and a thorough understanding of group decision making dynamics and persuasion. In trial practice a misstep can end a case, so having a trial attorney who is making his trial debut may be dangerous, especially in a case involving substantial damages.

certification involves preparing and resolving cases before trial, including litigation proceedings from inception of litigation through discovery, pretrial motions and hearings, and alternative dispute resolution procedures in all areas of substantive law before state courts, federal courts, administrative agencies, and arbitrators.

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

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

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

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

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

When a family member is killed or seriously injured in a crash with a tractor trailer, a normal human instinct is to wait a decent interval before consulting an attorney. Then one may be inclined to take one’s time talking with a hometown lawyer who handles an occasional car wreck case along with divorces, criminal cases and real estate closings.  Meanwhile, trucking companies and their insurance companies are busy burying incriminating evidence.

A recent case in our office illustrates the importance of striking hard and fast to preserve evidence. While a truck crash victim was in ICU at the local hospital for three days, lingering in a coma on the front porch of eternity, a relative reached out to one of my colleagues who immediately brought me into the case.

While the undamaged truck  was still in police impound, we immediately filed a petition in the Superior Court of the county where the crash occurred for temporary restraining order to lock down a long list of physical and electronic evidence for expert inspection. We recovered telematic data that proved the truck was going 10 MPH over the speed limit, still accelerating, until it crashed into a line of cars stopped at a red light.

We also recovered from the truck dashcam and driver view video. It dramatically showed in split screen the truck speeding into the line of stopped cars without slowing or braking while the truck driver idly gazed around with bleary eyes. That video concluded with our victim’s car exploding into the truck’s windshield.

If we had not acted quickly to obtain a court order to preserve evidence, much of that critically important data would have been “lost” and we never would have seen it.

I really wanted to try that case before a jury. Our focus groups felt the case was worth an impressive amount in “high eight figures.” But the clients chose to accept a confidential settlement in the “high seven figures” rather than go through the emotional ordeal of trial. I cannot argue with the family’s choice for quiet closure.

Standard operating procedure for trucking companies and insurers is to send a rapid response team to the crash scene before the vehicles are removed, sometimes before an ambulance can remove a victim. The rapid response team generally includes a defense lawyer, investigator and accident reconstruction expert. They work under the cloak of trial preparation under the supervision of legal counsel in an effort to keep their work secret.

When a victim’s traumatized family is in a hospital vigil or planning a funeral, the trucking company’s insurer has a rapid response team combing over the evidence. They may persuade police investigators to see the defense point of view and quietly delete telematics and video data that would be damning.

By the time the victim’s family hires a lawyer who knows anything about litigation of serious truck accident cases, the most important evidence may have disappeared. We have had cases where truck driver logs and other critical evidence was “lost” while State Troopers were focused on directing traffic and removing debris from the highway and a rapid response team combed over the truck.

Another mistake that families of victims often make is to choose a lawyer who does not litigate serious truck crash cases. That may a good hometown lawyer who handles regular car wreck cases but does not have expertise in trucking. Or it may be a “personal injury settlement mill” that advertises heavily but just tries to flip cases fast to get the easy money without of serious work.

That includes law firms that run expensive television ads and billboards with pictures of big trucks. They may claim to have legions of trucking lawyers, but are not involved in any of the national organizations of trucking law experts and do not do the serious work involved in such cases. If those firms can’t settle easily, they may associate a trucking specialist, but by then evidence is likely lost.

Too often families of crash victims, not knowing any better, hire a lawyer who solicits them directly or through an agent or “runner” in the days after the crash. Such solicitation of victims is an ethical violation punishable by disbarment in Georgia. If you want to hire a lawyer who is willing to commit a major ethical violation in order to get the case, remember that when you lie down with dogs you get up with fleas.

The Academy of Truck Accident Attorneys is a great place to find a real trucking attorney.

If a family member is the victim of a catastrophic truck crash  in the Southeast, call us at (404)253-7863.

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.

You are a great lawyer in your area of practice. You are also smart enough to know when a big case may require prompt action outside your comfort zone.

Just as a trial lawyer may not feel comfortable handling a complex real estate, divorce or estate planning matter, a great lawyer in those fields may not want to risk a client’s rights by trying to figure out how to handle a catastrophic truck crash case.

When you get a call from a friend or client that a family member has been killed or seriously injured in a crash with a tractor trailer in Georgia, one common reaction is be to defer the trouble and expense of serious investigation, assuming you can settle quickly for the known policy limits.  You may get the “low hanging fruit” that way but miss millions of dollars in potential recovery for your client that is not immediately obvious on the surface. If that happens, you may miss a reporting deadline with your E&O carrier before you recognize the mistake.

It is common for trucking insurance companies to tender a first layer of insurance coverage and make soothing conversation while concealing additional layers of coverage. We had a case in which an excess insurance company denied in writing that it insured the trucking company. But we kept digging. A year later that insurer paid out $3 million for the trucking company it had denied insuring.

While victims and their family attorneys wait for the insurance company to “do the right thing,” trucking companies and their insurers may busy burying incriminating evidence. Standard operating procedure for trucking companies and insurers is to send a rapid response team to the crash scene before the vehicles are removed, often before an ambulance can remove a victim. A rapid response team generally includes a defense lawyer, investigator and accident reconstruction expert. They work under the cloak of trial preparation under the supervision of legal counsel in an effort to keep at least part of their work secret.

When a victim’s traumatized family is in a hospital vigil or planning a funeral, the trucking company’s insurer has that rapid response team combing over the evidence. They may bring in investigators who are retired state troopers to coax less experienced law enforcement officers to the the defense point of view. At the same time, they may be quietly deleting electronic data that would be damning.

By the time the victim’s family decides to aggressively push the case and gets a lawyer experienced in litigation of serious truck accident cases, the most important evidence may have disappeared. We have had cases where critical evidence was “lost” at the scene while State Troopers were focused on directing traffic and removing debris from the highway and a rapid response team combed over the truck.

A recent case in our office illustrates the importance of striking hard and fast to preserve evidence. While a truck crash victim was in ICU at the local hospital lingering in a coma before death, a relative reached out to a lawyer in another practice area he happened to know. That lawyer, whom I have known all his life, then immediately called me.

While the undamaged truck  was still in police impound, we immediately filed a petition in the Superior Court of the county where the crash occurred for a detailed temporary restraining order to lock down evidence. With the help of our expert, we recovered telematic data that proved the truck was going 10 MPH over the speed limit, still accelerating until it crashed into a line of cars stopped at a red light.

We also recovered from the truck dashcam and driver view video. It dramatically showed in split screen the truck speeding into the line of stopped cars without slowing or braking while the truck driver idly gazed around with bleary eyes. That video concluded with our victim’s car exploding into the truck’s windshield. It was a powerful exhibit.

If we had not acted quickly to obtain a court order in order to preserve evidence, the truck would have been put back in service  and much of that critically important data may have been “lost.” We would never have seen the video or the telematic data.

There was a discovery fight about access to the truck driver’s cell phone for a forensic download. Coincidentally, the solicitor general in the county where the crash occurred issued a search warrant to obtain the cell phone for forensic evaluation. Cell phone data showed that the truck driver had been texting on his phone rather than sleeping all but three hours the night before.

Further investigation revealed that a medical examiner had signed a document stating the driver was disqualified due to non-compliant obstructive sleep apnea, though the trucking company denied that it had received that report.

We also found that the company was on notice of a prior incident in which the truck driver rear-ended another car stopped at a stop light. Despite knowing of the incident, the company failed to obtain a copy of that accident report which would have revealed the driver lied about what happened.

I really wanted to try that case before a jury. Our two focus groups valued the case in “eight figures.” But the clients chose to accept a confidential settlement in the “high seven figures” rather than go through the emotional ordeal of trial. I cannot dispute the family’s preference for quiet closure.

While a good lawyer in an unrelated area of practice, the family’s attorney readily recognized that he did not have expertise in trucking litigation. By associating a trucking lawyer, he made over one million dollars for helping with client relations and serving as “second chair” without investing his own funds in the substantial case expenses.  Choosing to annuitize that fee seven figure fee, he now has a financial plan substantially improving the quality of the rest of his life.

Georgia Rule of Professional Conduct 1.5(e) recognizes that clients are best served when lawyers can bring in other attorneys with needed areas of expertise, and still share in the responsibility and the fees. It provides:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and

(3) the total fee is reasonable.

Fully complying with this rule and documenting the client’s consent to an appropriate allocation of fees and responsibility between counsel, we generously share fees with c0-counsel who bring cases to us. Thus,  attorneys in Georgia and across North America who are preeminent in bankruptcy, real estate, securities, probate or corporate law readily acknowledge when they need to refer a client to a lawyer who specializes in tort law. Similarly, we refer matters outside the scope of practice to experts in those specialties.

We work closely with referring lawyers, who may have as much or as little involvement as they wish. A lawyer who practices in another state or another area of law may net a greater fee than if they had done all the work themselves. But the main thing is that a referring lawyer can know that the client is in good hands.

When associated by attorneys in neighboring states, we have been admitted pro hac vice for individual cases.

If a client has a claim for a catastrophic truck crash anywhere in the Southeast, call us at (404)253-7863.

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.

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.

However, in many cases the claim of negligent hiring is not “merely duplicative” as the company’s  corporate conduct in turning a blind eye to safety that may have been the actual root cause of the tragedy. Negligent hiring of a truck driver  is a separate and distinct theory of liability from negligent entrustment of a truck to the driver.

The Georgia Supreme Court has approved Restatement of Torts 2d, § 213 Principal Negligent or Reckless. See e.g., Munroe v. Universal Health Services, Inc., 277 Ga. 861,862 (1), 596 S.E.2d 604, 405-06 (2004); Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233(2), 378 S.E.2d 857 (1989).

Restatement of Torts 2d, § 213 states:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: . . .

. . .

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:

(c) in the supervision of the activity . . . .

In  Munroe, supra, the Supreme Court held that “a defendant employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s ‘tendencies’ or propensities that the employee could cause the type of harm sustained by the plaintiff.”

The Court held, “the relevant question is whether [the defendant] knew or in the exercise of ordinary care should have known that … the employee it hired and retained to perform duties …. was unsuitable for that position because he posed a reasonably foreseeable risk of personal harm” to persons like the plaintiff.”  Accord, Coe v. Carroll & Carroll, Inc., 308 Ga.App. 777, 786 (2011); Cooper v. Marten Transport, Ltd., 2012 WL 12358220 (N.D. Ga., decided Feb. 23, 2012); Munroe v. Universal Health Services, Inc., 277 Ga. 861,862 (1), 596 S.E.2d 604, 405-06 (2004); Piney Grove Baptist Church v. Goss, 255 Ga.App. 380(2), 565 S.E.2d 569 (2002); Georgia Electric Co. v. Smith, 108 Ga.App. 851, 854(1), 134 S.E.2d 840 (1964).

The Georgia Supreme Court has repeatedly held that in order that a party may be liable as for negligence, “it is not necessary that he should have contemplated or even be able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient if, by exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.” See, e.g.,  Smith v. Finch, 285 Ga. 709, 712, 681 S.E.2d 147 (2009).

We have seen truck crash cases in which truck drivers had driving records or medical conditions, either when hired or that developed over time, that were medically disqualifying to drive a tractor trailer, but employers just turned a blind eye to information that was right in front of their eyes. Some of those hazards could have been remedied if an employer had simply required the employee to go to a sleep specialist.

Thus, it is important to explore the root causes  of a tragedy that started long before the moment in which a truck driver did something that was the immediate cause of a crash. Often the forces were set in motion by the very act of hiring an incompetent truck driver, leading inexorably to disaster on the road.

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

 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 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.

Much of our Atlanta-based litigation law practice is based upon referrals from other attorneys around Georgia and North America for catastrophic injury and wrongful death cases in Georgia. Most of these are not simple, slam-dunk cases. Often we have to contend with a rat’s nest of convoluted, multi-layered liability defenses. Among those is often the “independent contractor” defense. The company that is the prime mover in an activity may cloak itself behind an “independent contractor” shell game, capturing most of the profits while trying to outsource all the risks of harm to others.

Here is a paper I presented on overcoming the independent contractor defense at a national continuing legal education program in New Orleans in 2012. While I haven’t updated it lately, covered all the nuances or included all the Georgia case citations, it does outline major issues in seeking to get through this particular maze.

Effective representation of a seriously injured person requires that counsel reach the pockets of a responsible entity with sufficient insurance coverage or assets to pay a judgment. That often requires reaching behind a screen of independent contractor business relationships erected to evade financial responsibility. The general rule is that a defendant is not liable for the negligence of an independent contractor, but there are many exceptions.  While not comprehensive, this paper seeks to outline major theories for overcoming the independent contractor defense.

Interstate Motor Carriers

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

The history of the regulations of motor carriers reveals that after the commencement of regulation in 1935, . . .  a substantial number of carriers . . . began to use equipment owned and driven by truckers who had no such ICC operating authority. This use was accomplished by a variety of leases, trip leases, and by other arrangements under which owner-operator truckers carried on the operations of the carriers with operating authority.  In contracting with such persons the carriers took care to constitute the lessors as independent contractors which enabled them to avoid the commission’s safety, financial, and insurance regulations that had been prescribed for equipment and drivers in order to protect the public. Many of the owner-operators without authority were itinerant truckers known as “gypsies,” fly-by-night truckers with poor, unsafe equipment who had little financial ability. They may or may not have had adequate insurance. The hard core of the problem was the trip lease and its attendant evils which permitted an indifferent carrier to evade its safety and financial responsibility. . . . The practice of leasing made it difficult in accident cases to fix responsibility, and certified carriers could thus escape the consequences of the regulations and responsibility for accidents by employing irresponsible persons as independent contractors who were not financially accountable and who had no insurance or were under-insured.

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

Since 1956, federal law has treated independent contractors as statutory employees of a motor carrier in the interstate motor carrier context.  The 1956 amendment to the Interstate Common Carrier Act was intended to require a motor carrier to be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants.  Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984); Morris v. JTM Materials, supra. “These are basic requirements that are inherent in the relation of the for-hire carrier to the public. When they are lacking, the chaotic conditions that preceded enactment of the Motor Carrier Act, 1935 inevitably ensue.” Cox v. Bond Transp., Inc., 249 A.2d 579 (N.J. 1969).  The purpose is “to protect persons who are injured in highway accidents, by increasing the likelihood that a substantial entity will be available to respond to any judgment rendered.”  Johnson v. Pacific Intermountain Express Co., 662 S.W.2d 237 (Mo. 1983).  This eliminates “the defense of independent contractor by making the owner/operator of the equipment the ‘statutory employee’ of the carrier.”  Shell v. Navajo Freight Lines, 693 P.2d 382 (Colo. Ct. App. 1984).

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

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

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

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

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

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

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

Restatent of Torts 2^nd – Liability Of An Employer Of An Independent Contractor

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

Contractor’s Conduct In Obedience To Employer’s Directions

Restatement (Second) of Torts  § 410 provides:

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

 Comment b states that this section deals only with the “liability of an employer who does not intend that the contractor shall cause physical harm to any other person, but who either employs a contractor to do work which, no matter how carefully done, involves an unreasonable risk of physical harm to others to whom he owes a duty to exercise care, or who employs a contractor to do work which could be safely done but for the fact that he directs the contractor to do it in a manner involving such risk. The liability is based upon the fact that the employer has been negligent in directing his contractor to do work which is dangerous in itself or in the manner in which it is done. Therefore, the employer is subject to liability, under the rule stated in this Section, for only such physical harm as is caused by the dangerous character of the work or the dangerous manner in which it is directed to be done. He is not subject to liability for any harm caused by some improper method which the contractor, without any direction of his employer, adopts in doing the work.”

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

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

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

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

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

Negligence In Selection Of Contractor

Restatement (Second) of Torts  § 411 provides:

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

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

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

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

Failure To Inspect Work Of Contractor After Completion

Restatement (Second) of Torts  § 412 provides:

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

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

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

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

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

Restatement (Second) of Torts  § 413 states:

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

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

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

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

Negligence In Exercising Control Retained By Employer

Restatement (Second) of Torts  § 414 states:

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

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

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

 Restatement (Second) of Torts § 414A provides:

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

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

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

Restatement (Second) of Torts  § 415 states:

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

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

Harm Caused By Negligence Of A Carefully Selected Independent Contractor

Restatement (Second) of Torts § 416 states:

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

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

Work Done In Public Place

Restatement (Second) of Torts 417 states:

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

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

Maintenance Of Public Highways And Other Public Places

 Restatement (Second) of Torts § 418 provides:

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

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

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

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

 Restatement (Second) of Torts § 419 provides:

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

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

Repairs Gratuitously Undertaken By Lessor

 Restatement (Second) of Torts § 420 provides:

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

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

Restatement (Second) of Torts § 421 provides:

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

 Work On Buildings And Other Structures On Land

Restatement (Second) of Torts § 422 states:

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

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

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

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

Work Withdrawing Lateral Support

Restatement (Second) of Torts § 422A states:

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

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

Making Or Repair Of Instrumentalities Used In Highly Dangerous Activities

Restatement (Second) of Torts § 423 provides:

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

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

Precautions Required By Statute Or Regulation

  Restatement (Second) of Torts § 424 provides:

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

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

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

Restatement (Second) of Torts § 425 provides:

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

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

Negligence Collateral To Risk Of Doing The Work

 Restatement (Second) of Torts § 426 provides:

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

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

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

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

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

Negligence As To Danger Inherent In The Work

 Restatement (Second) of Torts § 427 states:

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

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

Work Involving Abnormally Dangerous Activity

 Restatement (Second) of Torts § 427A provides:

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

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

Work Likely To Involve Trespass Or Nuisance

 Restatement (Second) of Torts § 427B provides:

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

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

Public Franchise / Unreasonable Risk of Harm

Restatement (Second) of Torts § 428 states:

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

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

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

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

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

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

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

Restatement (Second) of Torts § 428 provides:

One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Where a customer relies upon the principal to provide goods or services, and the principal substitutes goods or services from an independent contractor, the principal may be liable for the contractor’s negligence.

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

Ken Shigley is a past president of the State Bar of Georgia, past chair of the 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.

A chain reaction crash involving four big rig tractor trailers on I-285 near Camp Creek Parkway in south Fulton County, GA, killed a woman in a passenger car on June 19, 2018.

According to the Georgia State Patrol, A tractor-trailer was traveling northbound when it struck three other big rigs and the rear of a car, pushing the car underneath another tractor-trailer.

News photos showed that at least one truck’s cab was badly crushed and the roof of the passenger car was caved in.

In addition to the one fatality, five others were taken to Grady Memorial Hospital. It took several hours to clear the debris.

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.

Fatigue

News reports are silent on whether fatigue related was have been a factor in this crash, but it is something we look into when appropriate.

Truck drivers work long, hard hours, and some tend to drive too long and sleep too little, with tragic outcomes. Trucking safety rules include “hours of service limits.” Truck drivers 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 legally drive at 80,000 semi rig 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. Electronic logging systems now automate that process, but the systems are subject to being hacked in order to squeeze in more hours than are legal.

In a big rig semi truck crash we are handling in the Savannah area, we have a video of the truck driver admitting to an officer, “I must have went to sleep.”

While there is no blood test to determine when fatigue contributes to the cause of a crash, we often can dig through layers of of trip records to prove violation of the work hours rules. In once case we deconstructed trip records in the deposition of an Ohio truck driver until he admitted 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.

Sleep apnea

When physical characteristics of at-fault big rig truck drivers suggest the likelihood of obstructive sleep apnea that if untreated can contribute to dangerous driver fatigue, we explore whether the trucking company failed to monitor that as part of safety management. 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 big rig crash we have handled, our review of the driver qualification file in the company’s records shoed that the truck driver was “morbidly obese” with a BMI of 41.5, putting him severely at risk of obstructive sleep apnea. The company had not done anything to get evaluation or treatment for sleep apnea. After crashing into a line of stopped traffic stopped at a red light, he admitted that he was impaired by fatigue only  four and one-half hours after reporting for work.

Driver distraction

There is nothing in news reports to indicate whether the big rig truck driver in this crash was distracted, but 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.

When fitting, we fight discovery battles 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 voice  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 big rig semi truck 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.

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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.

A young truck driver from California lost his life on the side of I-16 in Laurens County, Georgia, on March 2^nd. This  tragedy highlights how truck drivers are in one of the most dangerous occupations.

According to news reports, a 22-year-old California truck driver was killed when he sideswiped a disabled semi in predawn darkness on the shoulder of I-16 in Laurens County, Georgia.

Shortly after 5 a.m., an 18-wheeler loaded with tangelos from Delano, California, sideswiped a disabled tractor-trailer on the right shoulder on I-16. The California citrus truck then went off the right side of the highway into a ditch and overturned, striking a a tree and destroying the cab. The 22-year-old truck driver died at the scene.

The driver of the other 18-wheeler had mechanical trouble and had been parked on the shoulder for nine hours since about 8 p.m. Thursday, according to the Georgia State Patrol. He was not hurt.

The circumstances of this crash raises a question of whether the truck parked on the shoulder may have violated safety rules on visibility of parked trucks on the road, contributing to cause of the crash.

Most often when commercial truck drivers crash 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. In a crash involving two interstate tractor trailers, that analysis may involve both companies.

As with most fatal traffic crashes on Georgia highways,  the Georgia State Patrol Specialized Collision Reconstruction Team (SCRT)  probably undertook a detailed reconstruction of the crash. In most tractor trailer accident cases over the years  we have seen that  failure of safety management in trucking companies. If the employer of the stopped tractor trailer did not enforce safety rules about visibility of stopped trucks, that could be a big factor.

Federal Motor Carrier Safety Regulations at 49 C.F.R. § 392.22 requires:

(a) Hazard warning signal flashers.

Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices –

General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95 of this subchapter, in the following manner:

(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

        (ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and

        (iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

Warning devices may be reflective triangles or flares, though reflective triangles are most common. The Commercial Drivers License (CDL) Manual at Section 2.5.2 goes into more detail about placement of warning devices:

Other drivers may not notice your vehicle even when it’s in plain sight. To help prevent accidents, let them know you’re there.

. . . .

 When Parked at the Side of the Road.

When you pull off the road and stop, be sure to turn on the four-way emergency flashers. This is important at night. Don’t trust the taillights to give warning. Drivers have crashed into the rear of a parked vehicle because they thought it was moving normally.

If you must stop on a road or the shoulder of any road, you must put out your emergency warning devices within ten minutes. Place your warning devices at the following locations:

If you must stop on or by a one-way or divided highway, place warning devices 10 feet, 100 feet, and 200 feet toward the approaching traffic.

News reports of this crash do not reveal whether the disabled tractor trailer had reflective triangles or flares, but none are visible in news photos and video of the crash scene.

Georgia wrongful death law provides for recovery of the “full value of the life” of the decedent, including both economic and intangible aspects of what the decedent’s life was worth to him. There is no deduction for living expenses and no need to prove dependency.  If a person dies due to the fault of someone else, Georgia law defines who has the claim for wrongful death. If married, the surviving spouse has the claim. If married with children, the statute defines the formula for dividing recovered funds between the spouse and children. If not married, the parents of the deceased have the right to recover for the wrongful death. If there is no surviving spouse, children or parent, then the representative of the estate can make the claim on behalf of heirs at law. There is never a wrongful death in Georgia for which no one can make the claim.

Of course, whenever anyone runs into a stopped truck, there is a question whether he was partially or entirely at fault even if the stopped truck did not have hazard flashers, reflective triangles or flares as required by law. Defense lawyers would certainly explore issues of driver impairment by fatigue affecting the young truck driver who was killed. Under Georgia’s modified comparative negligence law, if the victim is responsible for more than 50% of negligence leading to his injury, he or his survivors get nothing. If less than 50%, the recovery is reduced by the percentage of his negligence.

It is for the jury to decide negligence of all parties and the amount of damages.

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Ken Shigley‘s  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.

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.

“TMI” for “too much information” is a common, joking expression for overdisclosure of personal details in conversation or social media.

Now it appears that trucking companies with bad safety records yelled “TMI!” loudly enough, and spent enough money on “K” Street lobbyists and campaign contributions to impede public access to their safety records.

Five years ago, the Federal Motor Carrier Safety Administration (FMCSA) launched a new trucking safety initiative called the Compliance, Safety, Accountability (CSA) program.  At the heart of this program was a Safety Measurement System (SMS) designed to analyze violations from inspections and crash data. The idea was to be able to quantitatively identify carriers with a pattern of unsafe practices in order to intervene to correct safety violations before they result in catastrophic injuries or deaths.

The SMS assessment included seven safety improvement categories, called BASICs: unsafe driving, fatigued driving, driver fitness, substance/alcohol abuse, vehicle maintenance, cargo and crash indicators. Examining data category-by-category could shed light on repeat patterns of unsafe trucking practices.

A key element of the program was that companies exhibiting high-risk behavior would be notified and given an opportunity to correct safety violations before they matured into tragedies on the road. The FMCSA and state law enforcement were enabled to utilize a variety of tools including warning letters, roadside inspections and compliance reviews. If early warnings are not heeded by the carrier companies, the administration can apply costly fines & penalties.

For the past five years, CSA provided the public with improved access to safety data. Shippers and brokers could easily check online for a trucking company’s safety record when choosing who would haul their loads. If they selected a trucking company with a terrible and easily accessible safety record, that could create questions about negligent selection and retention in the event of a terrible crash. In addition, insurers could use the CSA data in liability insurance underwriting analysis.

Some of the benefits of public disclosure of  the SMS / CSA, as pointed out by my friend Steve Gursten in Michigan, have been the raising of awareness of the importance of commercial trucking safety, causing motor carriers to devote more attention and resources to safety initiatives due to accountability that comes with having the carrier data publicly displayed, and holding motor carriers accountable when conducting business. About 70 million users logged onto the Safersys website each year, creating a community of transparency that encouraged a culture of commercial motor vehicle safety, created incentives for motor carriers to improve their safety performance, and allowed other companies and members of the public to make informed decisions based on all available sources of FMCSA data.

My routine in reviewing potential truck crash cases in the past five years has included checking the SMS/CSA records at http://safersys.org, often during the initial phone call with a potential client.  While companies with good records had bad wrecks, and companies with bad records were not always at fault, a bad safety record was often telling.

Trucking companies and truck drivers did complain bitterly about the program. Much of the truck driver commentary is wrapped in general rage about being told how many hours they could drive (despite all the science about the limits of human fatigue and circadian rhythms), electronic data recorders and safety regulation in general.  Some of that reminds me of a truck driver whose deposition I took a while back who referred to his company’s safety director as “the safety moron.”

More articulate criticism of SMS and CSA has raised questions about the accuracy of the data and the scoring algorithms in the FMCSA methodology. A few months ago in Illinois, I took the deposition of the former CEO of what was once a large trucking company that had the worst CSA safety scores I have ever seen. He complained that the CSA formulas did not adequately take into account that his company’s size was declining due to business reversals of their largest hometown customer. Others complained about having wrecks that were not their fault counted against them in the formulas,

All the public and commercial use of the system (such as by shippers, brokers and insurance companies), was the focus of arguments against the CSA methodology, according to a media analysis by Todd Dills.  FMCSA compared the crash rates of carriers with sufficient and insufficient data in the system to produce a score. FMCSA said that carriers with scores above intervention thresholds had the highest average crash rates overall. Further, FMCSA looked at the crash rates of groups of carriers with scores above the intervention thresholds in BASICs other than the Crash Indicator, separating those populations by the number of inspections recorded by the system. The highest crash rates were shown for carriers with 11-20 inspections in the system.

The FMCSA report said that increasing the data sufficiency standards to as high as 20 inspections would make it more difficult for the agency to make appropriate safety interventions with the group showing that highest average crash rate. The SMS “ensures that there is oversight on the largest population possible—including both small and large carriers,” the FMCSA report summarizes. “Since introducing the use of the system, violation rates have dropped by 14 percent. Motor carriers are paying attention to their safety data more than ever before, which improves safety.”

Last August, ten trade associations representing companies that own and operate commercial trucks and buses have jointly asked the US DOT to remove the SMS data from public view, citing several reports highly critical of the SMS’ methodology in identifying high-risk carriers. They claimed that, “Removing carriers’ SMS scores from public view “will not only spare motor carriers harm from erroneous scores, but will also reduce the possibility that the marketplace will drive business to potentially risky carriers that are erroneously being painted as more safe.”

When Congress deliberated the massive five-year highway funding bill a little over a month ago, the trucking industry pulled out all the stops in lobbying key members of Congress to insert language to suppress public access to CSA / SMS data. I was not at the committee hearings where the 1,300 page bills was discussed, but I would bet there was not lengthy dialogue on the pros and cons of this public safety measure.

The bill removes from public view the bulk of the Compliance, Safety, Accountability system’s Safety Measurement System. The legislation removes from public view all carriers’ percentile rankings in the seven SMS BASICs It requires FMCSA and the Government Accountability Office to identify the program’s faults, develop a plan to fix them and then implement those fixes before the system can go live again. Congress in the bill directs FMCSA to study issues like carriers’ crash risk and its correlation to CSA scores, CSA’s rankings methodology, accuracy of the CSA data, incorporating crash fault accountability and how the public uses CSA scores in making business decisions or overall safety determinations of carriers. The bill requires the report to be produced within 18 months. Congress also prohibited FMCSA from continuing to use the system and its data to make safety determinations about carriers. Until FMCSA can implement a so-called “corrective action plan,” the CSA program will remain dormant.

Therefore, as of December 4, 2015, much of the information previously available on the Federal Motor Carrier Safety Administration’s (FMCSA) website related to a trucking company’s safety performance will no longer be displayed publicly. This will prevent easy access to the public and to others who want to know about a company’s safety rating. This also applies to information provided to the public through the QCMobile app.

As my friend, Morgan Adams in Chattanooga, has pointed out, “Now, instead of simply looking for what has been free, public safety information, you will have to pay for the records to find out how safe a trucking company is and wade through the labyrinth of regulations to do a formal request for information to the government. The government protected the trucking companies, not the people on this one. Looks like yet another reason to hire a lawyer for your truck accident case but in this instance you shouldn’t have to.”

In light of this congressional action, the handling of motor carrier crash cases will be slightly altered. We can no longer get safety performance data about trucking companies online. However, we can still submit Freedom of Information Act requests to the Federal Motor Carrier Safety Administration. While the FMCSA FOIA office is often overwhelmed with work, and that overloading of staff may increase, they do try to be cooperative.

To be effective in such requests, we will promptly upon being asked to evaluate a potential case, send a concise FOIA request by email to https://www.fmcsa.dot.gov/foia/foia-requests. We will get the same information, at least for now, but it will take weeks or months longer to get it.

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Ken Shigley, past president of the State Bar of Georgia, is chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section. He is also a national board member of the Academy of Truck Accident Attorneys, a certified civil trial attorney of the National Board of Trial Advocacy and past chair of the Institute for Continuing Legal Education in Georgia Board of Trustees.

The approaches to finding significant additional insurance coverage are not really legal alchemy or voodoo.  But they do involve a critical knowledge of subtle complexity gathered over 38 years in law practice that does not appear in books or legal research databases.

It is no secret that big truck wrecks can cause a lot of carnage. When an 80,000-pound tractor trailer bigger than a Sherman tank runs over a small passenger car stopped in traffic at highway speed, a tremendous amount of kinetic energy is unleashed.  We often see the catastrophic outcomes involving multiple fatalities and injuries.

The minimum insurance required for interstate trucking companies has not changed since President Reagan was in office. Even though there has been a lot inflation over the past 30 years and the purchasing power of that insurance has steadily dwindled, all Congress has been able to do is block an inflation adjustment in response to industry lobbying.

Minimum insurance for general freight tractor trailers in interstate commerce was set at $750,000 in 1981. Minimum coverage for interstate hazmat trucks and passenger buses was set at $5,000,000 in 1985.

If the $750,000 minimum insurance limit were adjusted for inflation from 1981 according to the Consumer Price Index, it would be about $2 million. Adjusted at the medical inflation rate, which is more appropriate for personal injury claims, it would be $4,422,000. But we all know how effective Congress is these days.

It’s even worse In Georgia. For trucks operating only inside Georgia, the minimum insurance required coverage for big commercial trucks is only $100,000. That has remained stagnant for decades.

That’s where we come in, searching for additional insurance that is invisible to most lawyers. Here are a few examples.

From $1 million insurance to $50 million insurance. In a truck crash case on an interstate highway in south Georgia with multiple death and injury claims, the trucking company’s insurer insisted that there was only $1 million insurance coverage, so all the families had to just divide that and sign releases. Lawyers for several of the families brought me to look for more coverage. Knowing where and how to look, I found another $50 million of insurance coverage.

 From $1 million insurance to $10 million insurance.  In another recent case involving multiple fatalities in a tractor trailer crash on an interstate highway in Georgia, the trucking company’s insurer represented that there was only a single $1 million insurance policy. They insisted that we needed to have a mediation to decide how to divide that policy and release all claims.  We declined and pursued a combination of intermodal freight and maritime law theories. That led to uncovering $10 million in additional coverage.  We settled confidentially before trial for at least as much as the expected jury verdict value in the small south Georgia county where the case was filed.  Ironically, that was paid mostly by an insurance company that had before suit denied in writing that it had ever heard of the company it insured.

From $250,000 to $2 million. In another case, involving a defective piece of warehouse equipment rather than a tractor trailer, the insurer for the Florida welding shop that made a knockoff work stage on special order, represented that there was only $250,000 insurance for a wrongful death claim. We kept digging and found that company had a cumulative total of $1 million coverage under insurance policies they did not realize overlapped. After collecting that million in Florida, we then came back to Georgia, classified a forklift as an office supply to due the distributor for violation if the Georgia Fair Business Practices Act, and collected their $1 million policy limit. In the end we collected $2 million after the first insurance company insisted there was only $250,000 coverage.

From $25,000 to $400,000.  In one recent case, a log truck was making a u-turn in the dark on a rural highway without proper lights and reflectors. Witnesses said it was not visible until they were “slap up on it.” A man driving to work in predawn darkness was killed. The 18 wheeler log truck incredibly had only $25,000 insurance coverage.  After litigating over insurance coverage and bankruptcy issues as well as the original wrongful death claim, we collected about 16 times that much from the insurer for the logger who loaded the truck and the insurance agent that improperly handled the logger’s phone call reporting  the claim. It was less than the theoretical value of the claim but it was enough for the decedent’s daughters to get a good launch in adult life.

This often requires creatively “thinking outside the box.” I will not publish the methods for free on the internet, but I am happy to assist clients and lawyers anywhere in the country who hire me for that purpose.

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.

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As Georgia faces the prospect of a winter storm this week, we also face the prospect of truck wrecks caused by violations of an important trucking safety rule. Last year, for example, a Georgia DOT spokesman was quoted saying that every major accident in Georgia’s “Snowmageddon 2014” ice storm involved a tractor trailer.

The safety rule throughout the United States is that trucking companies and their drivers are required to exercise “extreme caution” in conditions adversely affecting traction and visibility.

Federal Motor Carrier Safety Regulation 392.14 which provides that, “Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice … 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.”

The practical interpretation of that rule, as expressed in the Commercial Driver’s License manuals of every state with only minor variations, state:

2.6.2 – Matching Speed to the Road Surface

You can’t steer or brake a vehicle unless you have traction. Traction is friction between the tires and the road. There are some road conditions that reduce traction and call for lower speeds.

Slippery Surfaces. It will take longer to stop, and it will be harder to turn without skidding, when the road is slippery. Wet roads can double stopping distance. You must drive slower to be able to stop in the same distance as on a dry road. 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.

Identifying Slippery Surfaces. Sometimes it’s hard to know if the road is slippery. Here are some signs of slippery roads:

Shaded Areas. Shady parts of the road will remain icy and slippery long after open areas have melted.

Bridges. When the temperature drops, bridges will freeze before the road will. Be especially careful when the temperature is close to 32 degrees Fahrenheit.

Melting Ice. Slight melting will make ice wet.

Wet ice is much more slippery than ice that is not wet.

Black Ice. Black ice is a thin layer that is clear enough that you can see the road underneath it. It makes the road look wet. Any time the temperature is below freezing and the road looks wet, watch out for black ice.

Vehicle Icing. An easy way to check for ice is to open the window and feel the front of the mirror, mirror support, or antenna. If there’s ice on these, the road surface is probably starting to ice up.

Unfortunately, too often trucking companies push their drivers to stay on schedule despite ice and snow. Too often police officers working wrecks are unfamiliar with the “extreme caution” rule requiring them to slow down, and seem to think truckers are heroic in efforts to stop 80,000 tractor trailers when driving at normal highway speeds on sheets of ice. But when bad things happen, we know how to hold accountable the trucking companies that refuse to require compliance with this important safety rule.

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Ken Shigley is an Atlanta-based trial attorney practicing statewide in Georgia. A former president of the State Bar of Georgia, he is lead author of Georgia Law of Torts: Trial Preparation and Practice, a board certified civil trial attorney of the National Board of Trial Advocacy, and chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section.

When a commercial truck driver is killed or seriously injured due to the negligence of the driver of a smaller vehicle, it is important to find out whether the insurance policy on the commercial truck includes uninsured / underinsured (UM/UIM) coverage. If so, that UM/UIM coverage would be available to compensate the truck driver or his/her family.

Getting that UM/UIM coverage information from the trucking company and its insurer prior to litigation can be tricky. Official Code of Georgia § 33-3-28 does require pre-suit disclosure of insurance coverage information by insureds and insurers. It provides, in part: “Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage.”

Although the statute really has no teeth, a lot of insurance companies are pretty good about disclosing liability limits if the question is posed exactly the right way.  For example, if two entities within the same group of insurance companies issue the primary auto policy and the umbrella policy, you have to send the request to each of the two entities, supported by an affidavit from the claimant to comply with procedure in the statute. If one does not ask the entity issuing the umbrella policy, the related entity will not provide that information.

The statute does not talk about disclosure of UM/UIM coverage, but neither does it exclude it. Voluntary compliance by a trucking company’s insurer regarding a request for UM/UIM coverage information on behalf of an injured truck driver cannot be assumed. Some will, some won’t.

Once that information is obtained, some trucking insurance policies include UM/UIM coverage the match the liability policy limits, most often $1,000,000, though the minimum liability coverage for general freight haulers in interstate commerce is $750,000. The UM/UIM coverage is not required, but it doesn’t cost much extra. It is always worth checking to determine whether it exists.

If the insurer does not comply with a pre-suit request for information under O.C.G.A. § 33-3-28, it may be necessary to file suit against the driver at fault, serve the trucking company’s insurer as a UM/UIM carrier, and conduct formal discovery to obtain a complete copy of the policy.

This comes to mind because of a news story today of a fatal crash in Gwinnett County, Georgia. Eric Murray, 39, a truck driver from Minneapolis, Minn., was driving a tractor-trailer that was struck by a minivan that was attempting to merge onto I-85 northbound from Beaver Ruin Road. A passenger in the tractor-trailer, Bryant Garrott, 62, of Minneapolis, was also injured Gwinnett Medical Center.

Gwinnett Police charged Maria Zeelaya Torres, 44, of Norcross, with second degree vehicular homicide for causing the crash.

Over the years, we have represented numerous injured truck drivers. Recently, we recovered a good settlement for a truck driver who was injured when he rear-ended an SUV on an expressway even though the police blamed the truck driver for the wreck.ely that she has more the mandatory minimum auto insurance.

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Ken Shigley, past president of the State Bar of Georgia, has an Atlanta based law practice focused on commercial transportation accidents involving serious personal injury and wrongful death. 

The Georgia Chamber of Commerce held a forum on tort reform last week. According to today’s Daily Report, Rep. Rich Golick, chair of the House Non-Civil Judiciary Committee who is a corporate attorney for Allstate Insurance Company in his “day job,” told the attendees:

“Go talk to the plaintiffs bar. … See if consensus can be struck,” he said. “I beseech you — it’s the middle of August and there is a run-off and a general election — now is a great time for quiet conversation in quiet rooms where consensus can be achieved.”

After the forum, Golick said, “My sense is that the General Assembly doesn’t have a taste for litigation that would create a holy war in Georgia.”

Rep. Golick is right. While there may be tweaks in Georgia tort law and procedure on which there could be consensus, my sense of the climate after dealing with the legislature last year as State Bar president is that there is little eagerness to add much more to the broad tort reform legislation that Georgia enacted in 2005.

Here are some of the issues discussed at the forum and my thoughts on them.

E-Discovery.

At the Chamber forum, a representative of General Electric complained about burdensome discovery processes regarding electronically stored information. I’m all for developing a state rule on e-discovery that reasonably limits burdens and costs without enabling concealment of important evidence.

Perhaps the G.E. representative who flew in for the meeting was unaware that there is already a joint Bar-Chamber task force working on this in Georgia. Last spring, one of the last things I did as State Bar president was to cooperate with the Georgia Chamber of Commerce in appointing a joint task force on development of electronic discovery rules to include provisions for cost control and proportionality. By agreement with the Chamber representatives, that task force is chaired by Cobb County Superior Court Judge Steve Schuster and includes 4 Bar appointees and 4 Chamber appointees. They have just begun to work.

Time limit demands.

State Sen. Bill Cowsert of Athens is quoted in the Daily Report saying he would like to see legislation next session that would set “a reasonable length of time to give an insurance company to settle a case.” This grows out of the case Southern General Ins. Co. v. Holt, 262 Ga. 267; 416 S.E.2d 274 (1992), which held that a plaintiff may place a reasonable time limit on an offer to settle for policy limits. If a case is not settled within the time limit, then the insurer may be exposed to a judgment in excess of its insured’s policy limits if a jury returns a verdict for a greater amount.

Insurer bad faith liability is based on the principle that a liability insurer has a duty of good faith to its own insured to give equal consideration to the insured’s interests as its own.  For nearly half a century it has been the law in Georgia that if the insurer refused an opportunity to protect the insured by settlement within policy limits it could be responsible for the full amount of a judgment against the insured. The Holt case in 1992 held that within the facts of that case, a 10 day time limit on an offer to settle for policy limits was reasonable.

The importance of a time limit in this context is to provide an incentive for an insurance company to stop stonewalling and unnecessarily putting at risk the personal or corporate assets and income of the insured defendant.

My general approach has been to give an insurer a 30-day time limit after providing the bulk of medical bills, medical records, income loss records, photos, reports, etc., so that the insurer would have a fair opportunity to assess damages in excess of policy limits. When there is a request for more time, I generally allow a reasonable extension. Occasionally, I have felt that a shorter time limit was appropriate but one should be careful to be reasonable both in substance and in appearance.

Senator Cowsert is quoted in the Daily Report as saying, “Reputable plaintiffs lawyers will give you 30 to 60 days.”  A bill he introduced in the last legislative session would have required 60 days. I told him I generally give 30 days, to which he replied, “yeah, but you’re a good lawyer.”

The key here is the need for reasonableness and fairness on both sides with standards that keep both sides honest. I hope that both sides can work together to develop a fair, simple and balanced standard.

Seat Belt Evidence.

At the Chamber forum, a representative of an auto manufacturer urged change in Georgia law that excludes evidence that an injury victim was not wearing a seat belt. The origin of this rule is that the late House Speaker Tom Murphy did not like seat belts, did not want to wear one, and would allow passage of a law requiring seat belt use only if non-use were excluded from evidence.  I can understand the viewpoint of those who think this makes little sense.

One problem is that even when an injury victim was consistently conscientious about always wearing a seat belt, in the trial of a catastrophic case involving defective design of a vehicle, the defense is likely to bring in highly paid experts to suggest that the person was not wearing the seat belt even if they were.  Part of the strategy is to inject even greater complexity and confusion with highly paid testimony about the meaning of markings on belts and buckles, and whether those result from normal wear and tear versus stress loading. This can add vast amounts to the cost of litigation, bog down a jury in unnecessary complexity on ancillary issues, and often unfairly feed a “blame the victim” defense strategy.

I don’t know what the ideal solution should be, but I do hope that any legislative changes would be the result of negotiation and conscientious consensus rather than one side bulldozing over the other in the legislature.

Attorney Fees.

Georgia has five statutory “loser pays” rules. The oldest is OCGA 13-6-11 which was passed with the Code of 1863. For nearly 150 years, it has provided that when a defendant acts in bad faith, is stubbornly litigious or causes unnecessary trouble and expense, it can be held liable for expenses of litigation including attorney fees.  In the past generation, there has been a series of cases holding that violation of mandatory safety rules can be considered by a jury as evidence of bad faith in the transaction, and thus a basis for an award of attorney fees.

I have used this in trucking cases where we can prove violation of Federal Motor Carrier Safety Regulations or the correlate state safety rules.  There is also a case approving use of a fire safety code as evidence of bad faith in the transaction.

Whenever asked, I have urged my fellow plaintiff lawyers to refrain from pushing this too far and provoking a backlash. Whenever a younger lawyer has asked my advice, I have told them to avoid overreaching by claiming that there is bad faith every time a driver breaks a traffic law.That is qualitatively different from systemic violation of very specific safety rules which a relatively sophisticated party is obligated to follow and require its employees to follow for protection of the public.

Perhaps there could be a compromise on defining the scope of what would constitute bad faith in the transaction under OCGA 13-6-11, perhaps by simply codifying what is in current case law. Or perhaps the provisions of this statute could be made available to both sides. But I urge legislators to refrain from throwing out the baby with the bath water by more substantially changing a law that has been functional part of the Georgia code since the Civil War.

Medical costs.

Some at the Chamber forum advocated allowing evidence of the actual amount a medical provider accepted in payment from a health insurance company in payment of medical bills, rather than the larger “sticker price” that appears on a medical bill. That would override the venerable “collateral source” rule that does not allow presentation to the jury of either liability insurance or medical insurance information. If a person has provided for her health care by having insurance the defendant who causes her injury should not get a discount for that.

Frankly, there are a few medical providers, particularly some pain clinics, that inflate the “sticker price,” knowing they will accept a lesser amount from an insurer. Their reasoning is incomprehensible to me.  On the rare occasion when I have seen that in representing a plaintiff, I have hired a billing expert to provide evidence of what the UCR (usual, customary and reasonable) billing amount should have been. I don’t want to blow my credibility by endorsing obviously inflated medical bills.  If bills are inflated, either side should be able to show what the UCR billing should have been, and if so perhaps the amount of an enforceable medical lien should not exceed what a jury finds is the UCR amount.

The larger reality today is that medical insurance programs usually include an aggressively enforced reimbursement clause requiring that the insurer be paid back most or all of what they pay for an injury victim’s medical bills. If the law were changed to limit evidence of medical expense to the amount a medical provider accepted under a contractual agreement from a medical insurer, then in all fairness the jury should also be told that none of the money included in the verdict for medical expense would go to the injured person but would only benefit an insurance company. Therefore, they should award more money if they intend to help the injured person.

Then why not let it all hang out by allowing evidence of the defendant’s liability insurance limits (which jurors usually want to know), what both parties paid for their various insurance coverages, etc.?

Or just leave well enough alone.

Duty to Warn.

An auto industry representative urged adoption of a law eliminating any continuing duty  of manufacturers to warn of some danger it became aware of after the sale of a vehicle. On first blush that may sound sound fair. But what of the situation where a manufacturer learns that a design defect is responsible for a mounting number of deaths and catastrophic injuries? Should there not be a duty to warn consumers of that?

Perhaps there is a room for a legislative tweak in existing law on duty to warn, but as Rep. Golick suggested, it should be done through consensus.

Bifurcation of trials.

Georgia law already requires bifurcation of trial where punitive damages are claimed, with a second phase of trial to consider any punitive award after liability and compensatory damages are decided. A representative of an auto manufacturer proposed a further level of bifurcation between liability and damages. It is not entirely clear from the news story exactly what he was proposing, but I am confident it is carefully designed to help defendants and reduce any leverage available to injured people.

One astute defense strategy is to attempt to exclude all evidence of the defendant’s bad conduct by any means available, sometimes by conceding liability at the last moment after years of fighting accountability. Then, if that strategy works, the plaintiff’s injury is removed from the context of what caused it and the trial becomes entirely about attacking the injured plaintiff to try to make it appear as if the jurors are inconvenienced merely because a greedy plaintiff is overreaching. Never mind that the defendant may have resolutely denied liability right until the eve of trial.

It has been the law in Georgia since at least the mid-19th century that evidence of the defendant’s conduct goes into evidence even if there is an offer of a stipulation to liability. That is a good rule and we should keep it.

 I’m a pretty conservative guy, both politically and personally, a member of a bunch of conservative organizations, and spent a decade representing insurance companies before I went into plaintiffs’ practice. I don’t see the world in terms of personal injury plaintiffs always being right and good or corporations and insurers always being wrong and evil. I recognize that there is necessarily always a dynamic interplay between interests in setting the rules in the area of tort and insurance law.

The outcome is likely to be better and fairer if it is a result of respectful dialogue, negotiation and consensus rather than pure power politics.

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

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.

In San Jose, California, taking an exit on I-680, Hieu Huynh was  riding in a Toyota Camry driven by her daughter. The daughter saw a truck coming and tapped her brakes to create some space.  She didn’t see the rig tipping over, but her mother did.  The mother told the daughter to veer left, just as the big rig trailer filled with broccoli crashed down on top of the passenger side of the Camry, killing the mother.

According to the California Highway Patrol, the tractor trailer was going too fast in the curve.

Investigation in trucking crashes often extends beyond what happened immediately on the roadway. We often find that a pattern of disregard for safety in the management of the trucking company is an underlying factor. It may involve negligence in hiring, training and supervision of truck drivers, failure to adequately monitor compliance with hours of service rules, and failure to monitor driver speed and operations.

In Georgia, we represent families and individuals in serious neck and back injury, burn injury, brain injury, amputation injury, spinal cord injury, fracture injury and wrongful death  cases arising from tractor trailer and big rig crashes.

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.