I have tried serious injury cases for over forty years. Years ago, I saw terribly low verdicts for catastrophic harm. More recently, we have seen eight-figure verdicts that would have shocked judges when I was a puppy lawyer. What changed?

Insurance defense folks in their seminars have used phrases like “nuclear verdicts.” That makes it sound reckless or irrational. But in my experience, most juries take their job seriously. They discuss seriously the facts of the case and legal principles on which the judge instructs them.

They also bring into the jury room their experience in the world in which we live.

Here are ten reasons verdicts have grown.

1. Big Numbers Don’t Shock People Like They Used To

Inflation has reshaped expectations. The U.S. Bureau of Labor Statistics tracks the steady rise in consumer prices through the Consumer Price Index. Citizens who wind up on juries see that in real time every time they buy groceries, gas, or homes.

They hear news reports of tycoons and even some politicians reaping billions on wild-sounding deals in technology, crytocurrency, etc. The “b word” (billion) seems little more fanciful than the “m word” (million) did 50 years ago.

When an economist projects $6 or $8 million over a lifetime of care, it no longer sounds imaginary. It sounds expensive but credible.

2. Medicine Keeps People Alive But At a Cost

When I was growing up, the ambulance arriving at a wreck scene was often operated by the funeral home.  The after-school and weekend job of one of my high school classmates was to drive the “meat wagon.” There was no first responder training and no paramedic on the scene to stabilize a catastrophically injured person. Too often, they just went straight to the funeral home. 

Many catastrophic injuries were fatal. Today, emergency medicine and advanced trauma care and rehabilitation save lives. But survival comes at a price. Often, it requires decades of structured support. Life care planners build detailed projections based on medical research and standards published through sources like the National Institutes of Health.

Jurors understand that survival without resources can mean suffering. They award money to fund stability.

3. Corporate Trust Has Eroded

Public trust in major institutions has declined over the years since Watergate. Surveys from the Pew Research Center  egularly document this trend.

When  internal documents and emails show ignored safety complaints or cost-cutting decisions, jurors can easily connect it to a broader narrative about profit over people. That matters in the jury room with rules-oriented jurors who distrust institutions.

In planning mock jury focus groups, we have often deliberately limited the group to the most politically and socially conservative people. They have surprised us by coming up with numbers much higher than a mock jury that represented a broader cross-section of the population.

4. Safety Rules Are Clear and Public

In trucking, aviation, medicine, and manufacturing, safety standards are spelled out in black and white. For example, commercial motor carriers operate under federal rules issued by the Federal Motor Carrier Safety Administration, which are simply explained in the Commercial Drivers License Manual. Commercial truck drivers and safety managers have no credible way to deny those are the industry standards they are supposed to follow.

Clear rules make liability feel concrete. When a company violates a clear safety rule, jurors see it not as just an accident but a deliberate and unsafe choice.

5. Social Media Changed the Background Noise

Years ago, corporate misconduct stayed local. Today, bad news travels fast. Anything that makes news anywhere seems local and immediate. Jurors have watched stories about defective products, data breaches, and regulatory failures. That background shapes how they interpret evidence. Jurors do not enter the courtroom empty-headed.

6. Trial Lawyers Tell the Story Differently Now

Modern trial strategy focuses on safety and preventability. Lawyers talk not about sympathy but about common sense safety  rules and how small decisions cascade into harm.

7. Anchoring Influences Damage Awards

When a lawyer suggests a specific figure for pain and suffering, that number becomes a reference point. Jurors may reduce it, but they rarely ignore it. Anchoring is not just  manipulation. It is human cognition at work. Psychologists have long studied how framing affects judgment. The concept of cognitive “anchoring” is well established, including in research summarized by the American Psychological Association.

The Georgia legislature in its latest “tort reform” tried to stop anchoring by enacting OCGA § 9-10-184, which provides, “ In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.”

In legislative debate, politicians talked about stopping lawyers from analogizing to the price of paintings and race horses. However, an experienced trial lawyer has no need to talk about such crudely irrelevant distractions. A good advocate can easily suggest to jurors a way to calculate value based on the evidence and reasonable deductions. Nearly two decades ago, I gave jurors a methodology tied to the evidence and linked to reality in their rural county through which they calculated a verdict a million dollars more than I asked for.

8. Younger Jurors View Institutions Differently

Now on the senior end of the generation gap, I have seen several times how generational shifts are real. Many younger jurors grew up during the financial crisis, corporate scandals, and rising inequality. They carry student debt. They have seen layoffs. They question concentrated power more readily.

This does not mean they are anti-business. It means they may weigh accountability differently than their parents or grandparents.

9. Transparency About Corporate Wealth

Public companies disclose executive compensation and financial performance through filings with the U.S. Securities and Exchange Commission. We all see news reports about individuals making billions on crypto or a tech tycoon closing in on a trillion dollars net worth, it registers. Even billboards for the lottery touting jackpots over a billion dollars feeds the idea that it could happen to them. At some level, all that registers. When jurors see astronomical CEO bonuses alongside safety violations, they calibrate verdicts accordingly.

A verdict that once seemed massive may now feel proportional.

10. Preventable Harm Sparks Moral Reaction

The most significant driver of large verdicts is not sympathy but preventability.

An impaired or fatigued trucker. A manufacturer that ignored a recall warning. A hospital that brushed aside red flags. When jurors conclude, “This did not have to happen,” damages climb. Moral judgment is powerful. It always has been but now it carries a bigger price tag.

Large verdicts do not come from thin air. They usually arise from clear liability and serious, permanent harm. Venue still matters. Facts matter more. I have seen conservative rural counties return modest verdicts in serious cases and urban juries surprise plaintiffs with restraint. But I have also seen the opposite, surprisingly adequate verdicts in the most conservative venues.

Money is the only remedy our civil system offers. Jurors know that. They cannot undo a spinal cord injury or restore a dead child. They can only assign responsibility in dollars.

After decades in the courtroom, I recognize that modern verdicts reflect modern expectations about safety, accountability, and dignity. When people on a jury believe a company or individual chose risk over safety, they are not afraid to respond firmly.

Ken Shigley, senior counsel at Johnson & Ward, Atlanta’s oldest personal injury specialty law firm, is a former president of the State Bar of Georgia. He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy: Truck Accident Law, Civil Trial Practice, and Civil Pretrial Practice. He was the lead author of eleven editions of Georgia Law of Torts: Trial Preparation and Practice, and received the Traditions of Excellence Award from the State Bar of Georgia General Practice and Trial Section. B.A., Furman University; J.D., Emory University Law School; Certificates in mediation and negotiation, Harvard Law School. He began his career as an Assistant District Attorney, then worked a decade in an insurance defense law firm before entering plaintiffs’ practice.

Kenneth L. Shigley, Sr., of Atlanta, Georgia, has been named one of America’s Top 100 Personal Injury Attorneys ® for 2020.

Selection to America’s Top 100 Personal Injury Attorneys® is by invitation only and is reserved to identity the nation’s most exceptional litigators for high-value personal injury, catastrophic injury, wrongful death, product liability, and medical malpractice matters.
To be considered for selection, an attorney must focus more than 50% of their active legal practice on personal injury, catastrophic injury, wrongful death, product liability, and/or medical malpractice matters. These minimum qualifications are required for initial consideration. Thereafter, candidates are carefully screened through Advanced Data Analytics evaluating a broad array of criteria, including the candidate’s professional experience, litigation experience, significant personal injury settlements and/or verdicts, peer reputation, and community impact in order to rank the candidates throughout the state.

Only the top 100 qualifying attorneys in each state will receive this honor and be selected for membership among America’s Top 100 Personal Injury Attorneys®. With these extremely high standards for selection to America’s Top 100 Personal Injury Attorneys®, less than one-half percent (0.5%) of active attorneys in the United States will receive this honor — truly the most exclusive and elite level of attorneys in the community.

Mr. Shigley’s qualifications include:

• President, State Bar of Georgia, 2011-12
• Tradition of Excellence Award for lifetime achievement, 2019
• First Georgia lawyer to earn three board certifications from National Board of Trial Advocacy (Truck Accident Law, Civil Trial Practice, Civil Pretrial Practice)
• Chair, American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, 2015-16
• Lead Author, Georgia Law of Torts: Trial Preparation & Practice
• Chair, Institute for Continuing Legal Education in Georgia, 2012-13
• Georgia “Super Lawyer” (since 2004)
• “AV Preeminent” rating in Martindale-Hubbell Law Directory (since 1989)
• Avvo 10.0 out of 10.0

See representative verdicts and settlements.

Wrongful death claims in Georgia are necessarily emotional. When a family member is killed by someone else’s negligence, grieving survivors often have mixed feelings about filing a wrongful death lawsuit for that death. Certainly no amount of money can bring the departed loved one back. However, a monetary award is the only way that civil law has to recognize the value of the life, compensate for the death, and penalize the party at fault.

Skillful legal advocacy in a wrongful death case can generate funds to care for the family’s real needs and with which the family may appropriately memorialize the life of the departed. Within the requirements of allocation of damages to the spouse and children, survivors can choose to put a monetary award for wrongful death to any good use, whether to support a family deprived of the breadwinner, to educate children, or to fund a charity in the memory of the deceased.

Georgia’s wrongful death law was first enacted before the Civil War. It is one of the most humane wrongful death statutes and body of case law in the United States. Georgia law on wrongful death differs significantly from the wrongful death laws of all neighboring states. In most ways the Georgia law is better, but not always. If the facts provide a choice among different states, we weigh all the options as to where a case should be filed. Under multijurisdictional practice rules, we can handle all matters prior to filing suit in court in all but two states. When necessary to file suit in a state other than Georgia, we associate local counsel and obtain admission to practice pro hac vice in the other state.

In Georgia there are two separate claims that can be made for a death.

“Wrongful death” claim for full value of the life.

First is a wrongful death claim for the full value of life which belongs to survivors designated by statute: spouse, children, parent, or heirs at law depending on the circumstances. It defines the “full value of the life”   of the person who died to include both economic and intangible aspects. Georgia law does not mandate any rigid formula or arbitrary on the damages awarded in a wrongful death case, but rather the “full value of the life” is determined by the enlightened conscience of an impartial jury. Unlike some states, however, the subjective grief of the survivors is not part of the calculation of damages.

The economic aspects of “full value of the life” include the projected lifetime income and benefits and the value of their uncompensated services to family and community, reduced to present value.

In determining the intangible aspect of “full value of the life”  fair and impartial jurors are guided by their “enlightened conscience” in assessing the quality of life, relationships, activities, passions and pursuits, and determine what the experience of living was worth to that person who died. The intangible value of life is not reduced to present value.

“Survival action” for the estate of the deceased.

Second is what courts call a “survival action” because the rights of the decedent survive the death and belong to the estate of the deceased. That claim may be pursued by the executor or administer seeking compensation for the pain and suffering  before death plus the medical and funeral expense. Separate from the wrongful death claim on behalf of designated beneficiaries, the administrator or executor of the decedent’s estate has a claim for the decedent’s medical and funeral expenses, and for conscious pain and suffering before death.

Punitive damages may be awarded in connection with such a survival action on behalf of the estate but not for the wrongful death claim. Experienced legal counsel can weigh the factors in deciding whether to include a punitive damages claim.

Where the decedent died almost immediately after impact but could see what was about to happen, a claim for the mental pain of recognizing impending death may have great value. In appropriate cases, an accident reconstruction can help establish how much time the person had to recognize impending doom before being killed.

The decedent’s family members may choose to pursue both claims or only one of them depending on what makes the most sense under the circumstances. It is entirely appropriate in Georgia for the family, with experienced legal counsel, to pursue both claims, or to choose to file one claim and abandon the other.

Effect of liens.

Medical liens are often a factor in deciding what claims to include in a lawsuit. Liens for medical bills and other debts of the decedent apply to an estate’s claim but not to the wrongful death claim of survivors designated by statute. If there is limited insurance coverage and medical liens, survivors may decide to pursue only the wrongful death claim which is not subject to such liens, or to allocate all but a token amount of a settlement to the wrongful death claim. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims.

Valuation.

Because valuation of a wrongful death claim is affected by many factors, including disputed issues of liability, contributory negligence, comparative negligence, assumption of risk, proximate causation and insurance coverage considerations, it is important not to confuse the value of a case with the true value of the departed loved one’s life. We have handled wrongful death cases in which the recovery was $8,000,000 and others in which the recovery was $250,000 or less, all dependent upon the interplay of facts, insurance, and legal issues.

Who has the right to sue for wrongful death?

We often receive inquiries from family members whose rights to recover for wrongful death of a deceased family member are severed by operation of law. Sometimes we can work around these challenges, but sometimes not. It is important to get all close relatives of the deceased on the same page, but if the family is splintered and dysfunctional that can be virtually impossible.

A wrongful death claim in Georgia belongs to survivors who are identified by statute:

– A surviving spouse has the right to sue for wrongful death in Georgia, but must share the recovery equally with surviving children of the decedent. Where the surviving spouse is required to share a wrongful death recovery with the decedent’s minor child, the child’s share up to $15,000 may be held by the child’s natural guardian without posting a bond. If a minor child’s share of the recovery is $15,000 or more, a guardian of the child’s property must be qualified in probate court, and a bond posted. The bond requirement may be avoided if the probate court approves a structured settlement with annuity payments going to the child after attaining age 18, with the cash held by the child’s natural guardian remaining less than $15,000.

– If there is no surviving spouse, the right goes to surviving children. If the surviving spouse is missing, a court may permit the children to pursue the death claim alone.

– If there is neither a spouse nor child surviving, then the decedent’s parents have the right to sue under Georgia law. If the parents of a deceased child are divorced or living apart, the trial court has full discretion to allocate the wrongful death recovery between them, considering any pertinent factors. There have been cases of an uninvolved absentee father being limited to as little as one half of one percent of the total recovery for the wrongful death of a child.

– In the absence of a surviving spouse, child or parent, the administrator of the decedent’s estate can sue on behalf of the next of kin. Even if the next of kin is a minor, e.g., a sibling, an anomaly in current Georgia law requires that an administrator file suit on behalf of the minor beneficiary within two years from the date of death rather than tolling that time limit due to the child’s age.

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

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 2008-2020, 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. He is a widower, father of two adult children, and an elder in his church. When time permits, he enjoys travel, backpacking and scuba diving.

Sterigenics plants in Smyrna and Covington, Georgia, have long used ethylene oxide in sterilization of medical equipment. The Environmental Protection Agency air assessment from last year found several census tracts around those plants had significantly increased cancer risks due to ethylene oxide. The EPA recently concluded that the gas is dangerous at lower levels than previously believed.

Ethylene oxide is an organic compound with the formula C₂H₄O. A colorless and flammable gas with a faintly sweet odor, it has many uses in industry but is not safe for household use. At room temperature it is a flammable, carcinogenic, mutagenic, irritating, and anaesthetic gas.

There is evidence from both human and animal studies that inhalation exposure to ethylene oxide can result in a wide range of carcinogenic effects. The International Agency for Research on Cancer classifies ethylene oxide into group 1, meaning it is a proven carcinogen. Ethylene oxide is classified as a class 2 carcinogen by the German MAK commission and as a class A2 carcinogen by the ACGIH. A 2003 study of  women exposed to the chemical while working in commercial sterilization facilities suggests ethylene oxide is associated with breast cancer incidence.

In 2015, Sterigenics reported emissions ethylene oxide from its Smyrna plant of  3,574 pounds. After federal regulators definitively linked ethylene oxide to cancer in humans in 2016, the company’s self-reported emissions of the chemical dropped to 226 pounds.

Due to past emissions data submitted by Sterigenics, t the federal Environmental Protection Agency to project an elevated risk of cancer in surrounding neighborhoods. Similar cancer clusters were reported near a Sterigenics plant in the Chicago area.

All cases involving cancer allegedly caused by chemical exposures are highly complex and involved an enormous amount of scientific analysis and expert witness testimony. These are not intersection collision cases.

We have begun to sign up Sterigenics cancer cases as victims and their survivors from the neighborhoods surrounding these plants have contacted us. As with any case involving complex science, we work with an experienced team to properly analyze and develop the scientific and medical evidence.

 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.

Death by decapitation due to trailer underride  can  result when tractor trailers park on the roadside.

The kneejerk response of most people seeing pictures of these incidents is to simply blame the dead person. But it’s not that simple. When an innocent passenger is killed or maimed, some portion of fault is normally apportioned to the driver who departed from the traffic lane for whatever reason. But it is necessary to also examine a trucking company’s decision to violate safety standards by parking a big rig on the side of the road.

A lot of people who see these collisions and are uninformed on the safety standards involved assume that it is always 100% the fault of the driver of the car that struck the parked tractor trailer. Thus, it is necessary to thoroughly investigate and, if possible, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash.

In over 40 years of law practice, including 28 years representing individuals and families devastated by highway crashes with big commercial trucks, one of the least understood hazards is that of tractor trailers parked on the side of the road.

Just about every time I drive through Georgia late at night, I see unlit tractor trailers parked in the dark inches from the right traffic lane . Too many people even in the trucking industry do not understand how hazardous this can be.

It is foreseeable that cars will occasionally leave the traffic lane. That can happen for any of a number of innocuous reasons that should not be punished by decapitation. A driver may swerve to avoid another vehicle, a deer or a dog, or when distracted by a child or pet inside the vehicle. One may hydroplane and spin off the road when water pools in a low spot in pavement on a highway during heavy rain. (That happened to my wife at a spot on I-20 that was well known to state troopers for frequent hydroplaning.) Because innocuous departure from the traffic lane is common, highways include rumble strips at the end of the road.

The foreseeability of vehicles departing from the traffic lane is why highways built in the United States in recent decades have incorporated road design features to make roadsides forgiving for drivers who makes such mistakes.

The American Association of State Highway and Transportation Officials (AASHTO) recommends construction standards for shoulder and right of way design. This includes clearance of obstructions such as, trees, steep slopes, or abutments which may hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails whenever feasible to redirect drifting vehicles back onto the paved portion of the roadway.

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

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

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

The Clear Zone, is further defined as

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

The highway shoulder is not  designed for parking. It is a “clear zone” or “recovery zone,” not a parking area. But every day we see 18-wheelers parked in that “recovery zone” or shoulder, parked overnight and not illuminated.

Personal cars and trucks are doing the same thing, but the hazard they present is less severe. When a trucker parks a large Commercial Motor Vehicle (CMV) in on the shoulder of a highway in what is designed as a “Clear Zone,” that truck is a large, immovable, rigid barrier blocking the “clear zone.” That creates an eminent hazard to occupants of any vehicle which may depart, for whatever reason, from the travel portion of the roadway.

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

Conspicuity of big rigs parked on the roadside, especially in lighting and weather conditions affecting visibilty is a hazard well known in trucking. That is why the Federal Motor Carrier Safety Regulations have strict rules on this. At § 392.22 on Emergency Stops, the regulations require, “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” As soon as possible, and in all cases within 10 minutes, the driver must places three reflective triangles or flares.

Trucking company corporate management can reduce this risk of a deadly crash through management practices that include good trip planning so that drivers can reach safe places for planned stops before they run out of safe driving hours. Companies should manage their fleets to make frequent vehicle inspections and perform appropriate equipment maintenance.

Trucking company management should require drivers not to stop along the roadside in non-emergency situations, and instruct drivers to exit the highway and find a safe place to park when necessary. Truckers multiply this risk when they park large trucks park on the roadside at night without using hazard flashers and warning devices.

If due to mechanical breakdown a truck driver has no choice but to stop on the side of the road, trucking companies should train drivers and dispatchers on things they can do to  reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include:

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

Even if a parked semi-truck is illuminated at night, there is a recognized condition known as the “Moth Effect” which may contribute to an unwary driver running into a truck parked on the shoulder. The “Moth Effect” occurs when drivers are attracted to flashing lights or other things along the roadway, especially when fatigued.  The “Moth Effect” is most likely when visibility conditions are reduced at night or in fog or heavy rain which is common in Georgia. When required to stop due to extreme weather conditions, truckers should attempt to get to the next exit in order to avoid blocking the “clear area” on the roadside.

When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, we investigate deeply and retain appropriate experts. We have to determine why the driver chose that particular spot to pull off and stop.  We normally download electronic control module data and other electronic records from both vehicles. How long had the truck been parked? Was there a dash cam video on either vehicle that could be evidence? Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break” on the roadside rather than in a safe place off the road? Did the truck driver have the ability to stop in a safer location?

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

Ken Shigley is 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 handling Georgia wrongful death cases in which the victim had very little conscious survival time, we often have to address the question whether to make a claim for pain and suffering before death.

In Georgia, wrongful death cases may include two separate claims.

First is the wrongful death claim for “full value of the life” which belongs to family members designated by O.C.G.A. § 51-4-2 – spouse, children or parents. Recovery for the “full value of the life” includes both economic and intangible components and is not subject to claim of the decedent’s creditors and medical providers.

Second is a “survival action” authorized by O.C.G.A. § 9-2-41 and brought by the administrator or executor of the decedent’s estate for pain and suffering, medical expense and funeral expenses. Any recovery under this claim is subject to claims of creditors.

In many of the cases we see, particularly truck crashes, the decedent loses consciousness rather quickly and survival time is short. However, if a credible claim for pain and suffering can be made, it can add substantial value to a jury verdict.

Moreover, the estate’s claim may be a necessary piece of the puzzle in order to make a claim for punitive damages based upon months or years of the corporation’s independent negligence in hiring, training and supervising employees extending far beyond the momentary negligence of an employee, e.g., a truck driver, who should never have been entrusted with an 80,000 pound tractor trailer in the first place.

This is especially important when a corporation admits ordinary negligence on the part of the employee and admits that the employee was in course and scope of employment. Some judges apparently do not  understand or care how often the root cause of a tragic crash lies in management practices that turn a blind eye to safety. Such judges have created precedents exclude evidence of mismanagement leading to the crash in that scenario.

But if there is a claim for punitive damages for the company’s patterns and practices that show conscious disregard for safety, evidence of unsafe management practice may be admissible. Because punitive damages are not recoverable in wrongful death cases in Georgia, the survival action gains greater importance. Thus, the pain and suffering claim that might in other circumstances be superfluous becomes a key element in bringing corporate misconduct to light and obtaining full justice.

1. Mental pain and suffering in before and during a fatal crash.

In Georgia, a jury may infer consciousness of impending death, and thus mental pain and suffering, from evidence immediately prior to impact or following her injury. Department of Transp. v. Dupree, 256 Ga.App. 668, 570 S.E.2d 1(2002).

During a crash, even if the survival time before death was extremely brief, jurors may reasonably infer that the victim experienced both severe physical pain and fear of impending death in those moments. That alone can be sufficient to support a genuine issue of material fact for jury determination.

In Walker v. Daniels, 200 Ga.App. 150, 156 (3), 407 S.E.2d 70 76 (1991), the defense contended that the decedent could not have had any consciousness between injury and death due to a blunt impact to his neck in the diving area of a university swimming pool.  However, there was evidence from which a jury could have determined that he either was or not conscious when he inhaled water that was the immediate cause of drowning. Thus, the court held, “Under this evidence, questions concerning the decedent’s pain and suffering were for the jury to decide.”

2. Physician’s testimony about presuming pain despite apparent absence of consciousness.

Treating physicians may testify that they treat for pain even when a patient appears unconscious, and are careful talking about a comatose patient because so many patients wake up and report hearing conversations while everyone though they were comatose. Such medical testimony can be crucial in supporting a claim for pain and suffering despite a patient’s unresponsiveness.

The Reference Manual on Scientific Testimony recognizes that “treating physicians are generally permitted to testify” and “treating physicians’ testimony is often given greater weight than testimony from physicians who have not examined the patient.” Reference Manual on Scientific Testimony 449, n. 41(2d Ed.).

“A physician may be asked to testify about the physical condition of a plaintiff, diagnosis, treatment, causes of the plaintiff’s condition, or prognosis.” Id. at 439.  The methodology and data that treating physicians reasonably consider good grounds for opinions or inferences in medical practice are sufficiently reliable to form the basis of a qualified medical expert’s testimony in court. Whether a patient under his direct care experienced pain before her death is quintessentially a matter within the scope of a treating physician’s testimony.

It is well established that the opinion, diagnosis, and medical evidence of treating physicians should be accorded substantial weight unless “good cause” is shown for not doing so.  Treating physicians can generally “express an opinion as to ‘the cause of any medical condition presented in a patient, the diagnosis, the prognosis and the extent of the disability, if any, caused by the injury.”

See, e.g., Cohen v. Lockwood, 2004 WL 763961 (D.Kan. 2004) (unpublished opinion); Zanowic v. Ashcroft, 2002 WL 373229, 52 Fed.R.Serv.3d 702 (S.D.N.Y. 2002) (unpublished opinion) at *2(quoting Shapardon v. West Beach Estates, 172 F.R.D. 415, 416 (D.Haw. 1997); Laski v. Bellwood, 132 F.3d 33 (6th Cir.1997)(trial court abused its discretion by not permitting treating physicians to testify about cause of plaintiff’s back pain); Mangla v. Univ. of Rochester, 168 F.R.D. 137, 139 (W.D.N.Y. 1996); Santoro v. Signature Const., Inc., 2002 WL 31059292 (S.D.N.Y., 2002)  (unpublished opinion). See also, Pittman v. ANR Freight Systems, Inc., 2002 WL 2026257 (6th Cir., 2002) (unpublished opinion); McGregor v. Paul Revere Life Ins. Co., 2004 WL 68692 (9th Cir., 2004).

In a case we successfully handled recently, the attending physician who supervised the victim’s care from her arrival in the emergency room until her death gave expert testimony that in the hospital she was moaning, breathing on her own, and that he believed she experienced pain during her hospitalization until the time of death.

We contended that expert medical testimony was sufficient to establish a genuine issue of material fact for jury determination, and to require denial of summary judgment. The affidavit from Defendants’ specially retained medical expert did no more than set up an opposing argument to present to the jury.

There were no reported Georgia decision directly on point. However, decisions by courts in other jurisdictions with laws consistent with Georgia law are helpful. In Kretek v. Board of Commissioners of Luna County, 2014 WL 11621697 D. New Mexico, decided Feb. 26, 2014), testimony of the treating physician was equivocal about the nature and degree of suffering the patient may have experience while comatose prior to death. Thus, the court denied a motion in limine to exclude the physician’s testimony on this issue.

Thus, if the potential for financial recovery far exceeds any medical liens or creditor claims, it may be worthwhile to raise a claim for pain and suffering even if the decedent’s survival time was brief. Other times, if the potential for recovery is more limited and creditors’ potential claims are substantial, it may not be worth it.

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.

When my children were riding a bus to elementary school every day, like most parents I trusted the school bus driver to deliver them safely to school and back to our neighborhood. Usually that is what happens as school buses are generally considered the safest means of transporting children to and from school.

But occasionally children are seriously injured or killed in the process of being transported by school buses. We have successfully handled some of those cases.

School bus injury cases are not the same as car wreck cases. Lawyers handling those need to know the legal wrinkles unique to school bus personal injury and wrongful death cases in Georgia.

The biggest wrinkle in school bus injury cases is immunity.  Sovereign immunity, or governmental immunity, is the legal doctrine that the state (“sovereign”) is immune from civil suits unless it waives that immunity.  In Georgia, public schools have sovereign immunity from most injury claims. When we get calls about kids injured at school, about 99% of the time I have to tell folks they don’t have a case. I won’t take up space here to outline the extremely narrow exceptions for injuries at school.

Similarly, official immunity protects government officials and employees from liability for discretionary acts but not ministerial acts.

A ministerial act is one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Official immunity protects public officers acting in their official capacity from suit unless they negligently perform a ministerial duty or act with actual malice or intent to cause injury while performing a discretionary duty. While a departmental policy requiring certain actions under certain situations may convert an activity from discretionary to ministerial, the decision whether specific acts are ministerial or discretionary is determined by the facts of the particular case. If the public employee must balance multiple factors and consequences, that makes the act discretionary. Standard v. Hobbs, 263 Ga.App. 873, 589 S.E.2d 634 (2003).

Sovereign immunity and official immunity are not the same thing and often must be analyzed separately. Primas v. City of Milledgeville, 296 Ga. 584, 769 S.E.2d 326 (2015)

Generally, the task of school officials “to monitor, supervise, and control students is a discretionary action protected by the doctrine of official immunity” are discretionary and thus immune from liability. That includes virtually all issues of supervision of students. See, e.g., Payne v. Twiggs County School Dist., 232 Ga.App. 175501 S.E.2d 550127 Ed. Law Rep. 448 (1998). Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

The main exception to sovereign immunity in Georgia public schools is for injuries while a child is being transported by school bus as the legislature by statute has waived immunity for negligent use of a local government motor vehicle up to a limited dollar amount. Generally, sovereign immunity is waived with regard to injuries or deaths that arise out of negligent use of a covered motor vehicle up to either $500,000 per person and $700,000 per incident, or a higher amount if the local government entity adopts by resolution or ordinance a higher waiver, and either becomes part of an interlocal risk management agency or purchases liability insurance in such higher amount.

A 1991 amendment to Ga. Const. of 1983, Art. I, Sec. II, Par. IX extending sovereign immunity “to the state and all of its departments and agencies” includes county-wide school districts.

This sovereign immunity “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” If a student is injured in a collision with another vehicle, then sovereign immunity is waived to the limited extent provided by statute. Coffee County School District v. King, 229 Ga.App. 143, 493 S.E.2d 563 (1997),

At least three Georgia statutes are involved in this issue.

First, O.C.G.A. § 33-24-51 provides for waiver of governmental liability “for a loss arising out of claims for the negligent use of a covered motor vehicle,” but only “to the extent of the amount of insurance so purchased.”

Second, O.C.G.A. § 36-92-2 provides for waiver of “sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle” up to $500,000 for injury or death of any one person in any one occurrence, or up to $700,000 aggregate for two or more people, for incidents after January 1, 2008. Paragraph (b) provides, “The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state.” It also provides for $50,000 limit on property damage claims.

O.C.G.A. § 36-92-2(d) further provides, “(d) The waiver provided by this chapter shall be increased to the extent that: (1) The governing body of the local governmental entity by resolution or ordinance voluntarily adopts a higher waiver; (2) The local government entity becomes a member of an interlocal risk management agency created pursuant to Chapter 85 of this title to the extent that coverage obtained exceeds the amount of the waiver set forth in this Code section; or (3) The local government entity purchases commercial liability insurance in an amount in excess of the waiver set forth in this Code section.”

Third, O.C.G.A. § 20-2-1090, provides, “The various school boards of the counties, cities, and independent school systems employing school buses are authorized and required to cause policies of insurance to be issued insuring the school children riding therein to and from school against bodily injury or death at any time resulting from an accident or collision in which such buses are involved. The amount of such insurance shall be within the discretion of the respective boards.”

So what happens if a child is injured or killed in a school bus incident that does not arise out of “negligent use of a covered motor vehicle?” This has come up in cases where a child was left for hours on a parked school bus, or was injured in an assault by another student.

Last year, in a case in which a special-needs middle school student was left locked in a school bus parked in the school’s transportation-system parking lot after school for hours, the Georgia Supreme Court has held that O.C.G.A. § 20-2-1090, which authorizes school systems to purchase insurance on school buses, does not waive sovereign immunity of a school district to the extent of such insurance. Fulton County School District v. Jenkins, 347 Ga. App. 448, 820 S.E.2d 75 (2018). Any such waiver of sovereign immunity must be express rather than implied. While other statutes expressly waive sovereign immunity to limited extent, O.C.G.A. § 20-2-1090 does not.

In scenarios arising out of negligent operation of a school bus, sovereign immunity it is waived up to the amounts set forth in O.C.G.A. § 33-24-51.Tift County School Dist. v. Martinez, 331 Ga.App. 423771 S.E.2d 117 (2015).

There have been numerous appellate court decisions deciding whether immunity was waived in specific circumstances. Here are just a few illustrative cases.

Sovereign Immunity waived:

• Loading at school and the process disembarking from buses until a child reaches the curb. DeKalb County School Dist. v. Allen, 254 Ga.App. 66, 561 S.E.2d 202 (2002).
• Child was injured attempting to cross an adjacent street just moments after disembarking from the school bus as “use” of the school bus encompassed unloading the children and assuring that they reach a place of safety which might include crossing a street while bus was “standing guard” with it lights flashing and all visual signals operating.  Georgia Farm Bureau Mut. Ins. Co. v. Greene,174 Ga.App. 120, 329 S.E.2d 204 (1985)

Sovereign Immunity not waived:

• One student attacked by another student shortly after they exited a school bus, as no collision or accident was involved. Rawls v. Bulloch County School District, 223 Ga.App. 234477 S.E.2d 383 (1996), certiorari denied Feb. 14, 1997. “When a student riding on a school bus suffers an injury that is not proximately caused by an accident or collision in which the bus is involved, such as when the student is injured due to an attack made by a fellow student, OCGA § 20–2–1090 is inapplicable.” Payne v. Twiggs County School Dist., 269 Ga. 361, 362(1), 496 S.E.2d 690 (1998).
• Child struck while waiting at a bus stop. Brock v. Sumter County School Bd., 246 Ga.App. 815, 542 S.E.2d 547 (2000).
• Child is struck by a car when walking home from an unauthorized drop-off site on a busy road when the bus had driven two miles away, as “use” of the bus does not encompass the school district’s route planning. Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).
• Grandparents boards bus without authorization to try to discuss with bus driver child’s suspension due to abusive conduct and falls getting off the bus. Hancock v. Bryan County Bd. of Educ., 240 Ga.App. 622, 522 S.E.2d 661 (1992).

If a school bus driver drops off a child at an unapproved, unsafe location, there may be waiver of immunity but not if the school district’s insurance policy defines “use” of the bus so as to exclude this. Roberts v. Burke County School Dist., 267 Ga. 665, 482 S.E.2d 283 (1997).

Thus, in evaluating injury cases arising from school bus operations, a lawyer should consider the following steps:

• Investigate the incident.
  • Get the police report.
  • Immediately send open records requests to both the law enforcement agency for any photos, video and witness statements they may have. There may have been a video on the bus.
  • Interview witnesses insofar as possible.
  • Determine what security cameras may have been in the area and obtain their recordings.
  • Since the waiver of sovereign immunity is limited, investigate possible liability of other potential parties.
• Send Open Records requests to school district for:
  • Copy of each insurance policy applicable to the bus.
  • Copy of any interlocal government risk management agreement applicable to the bus.
  • Copy of each resolution, ordinance or rule adopted setting an amount for waiver of sovereign immunity.
  • Copies of all policies and procedures regarding bus operation, maintenance, and job descriptions of personnel involved in operation and maintenance.
• Request insurance coverage information from the insurer under O.C.G.A § 33-3-28, and refer to that statute in addition to the Open Records Act in the letter to the school district.
• Review Federal Motor Vehicle Safety Standards
  • 571.213 Standard No. 213; Child restraint systems.
  • 571.213;49 CFR § FMVSS213Outline Safe, Ride News Publications
  • 571.225 Standard No. 225; Child restraint anchorage systems
  • 571.208 Standard No. 208; Occupant crash protection.
• Obtain and review reference materials on school bus safety.
  • Georgia Department of Education School Bus Safety Materials
  • Georgia Department of Education Transportation Rules
  • Georgia School Bus Driver Training Manual (download)
  • Georgia Commercial Drivers License Manual, Chapter 10
  • School Bus Safety Handbook
  • The School Bus Challenge CD
  • CDL Exam Secrets – Passengers & School Bus Endorsements

If you have questions about a serious injury or wrongful death to a school bus passenger 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.

On a warm October afternoon two years ago, wearing one of the yarmulkes that Jewish funeral directors provide for non-Jewish attendees, I helped shovel red Georgia dirt into the open grave of an old client and friend. As I did so, I pondered the unanswered question whether long-term side effects of her food poisoning a quarter century earlier had contributed to her death after years of internal organ illnesses.

A recent decision of the Georgia Supreme Court on what is required to get a food poisoning case to a jury brought that grim saga back to mind.

In Patterson v. Kevon, 2018 WL 3965745, the Georgia Supreme Court unanimously ruled on .August 20, 2018 that circumstantial evidence was sufficient to allow a jury trial on a suit against a caterer for alleged food poisoning of guests. In doing so, the Supreme Court overturned a line of Court of Appeals authority that classified food poisoning cases as “a unique species of negligence cases” imposing a heavier burden upon the plaintiff to show proximate cause than that generally required of nonmovants on summary judgment.

Briefly summarized, the Pattersons became ill after eating food at a wedding rehearsal dinner prepared, catered, and served by Big Kev’s Barbeque. They sued for negligence, violation of the Georgia Food Act (OCGA § 26-2-20 et seq.), and products liability, alleging that the food at the dinner was defective, pathogen-contaminated, undercooked, and negligently prepared.

The caterer moved for summary judgment, showing that the Pattersons also consumed items prepared by others at the rehearsal dinner, such as dessert or alcohol, as well as improperly stored leftovers from the rehearsal dinner and food at the wedding reception the following day. In addition, the caterer showed that the Pattersons ate other meals, including fast food, and drove to Florida before Mr. Patterson began to feel ill, three days after the rehearsal dinner, and that Mrs. Patterson did not begin to feel ill until several days later. In addition, the caterer asserted that the owners of the event venue, their employees, and other guests who consumed the food did not become ill.

On the other hand, the Pattersons presented evidence that several people became ill with similar symptoms after eating the caterer’s food at the rehearsal dinner. Both Mr. Patterson and a guest at the rehearsal dinner who thecaterer’s  meal but did not consume food at the wedding reception, both tested positive for salmonella. Three other guests testified that they became ill at around the same time after eating at the rehearsal dinner. Four other people who became ill, including Mrs. Patterson, did not eat at the wedding reception, and other guests who became ill testified that they did not consume dessert, drinks, or leftovers. As many as 16 to 20 people became ill after the dinner.

The trial court granted summary judgment and the Court of Appeals affirmed 5-4, holding:

suits alleging illness from food poisoning that are based entirely on circumstantial evidence are a unique species of negligence cases, and our prior decisions have required plaintiffs in this context to bring forth evidence demonstrating that the only reasonable hypothesis for why they became ill was due to acts or omissions of the defendant, to the exclusion of all other reasonable theories. This special element prevents a plaintiff from recovering solely on the basis of speculation and conjecture and requires plaintiffs to engage in a rigorous examination of all reasonable theories of contamination. This standard also shields defendants from what, in some cases, may amount to fallacious post hoc, ergo propter hoc arguments that advance the plaintiff’s theory of contamination. In so doing, this rule reserves to the jury only those cases in which evidence brought forth by the plaintiff establishes a clear and direct link between the defendant’s food and the plaintiff’s injuries.

Two vigorous dissents, by Judges Doyle and McFadden, detailed the Pattersons’ evidence and pointed out that the standard established by the majority was more appropriate for the burden of proof at trial rather than on motion for summary judgment.

The Supreme Court in an opinion authored by Justice Michael Boggs unanimously rejected any requirement to exclude every other reasonable hypothesis, noting that the Court of Appeals majority opinion conflated summary judgments cases with decisions on appeals after jury verdicts. These cases are highly fact specific. In most cases, either for plaintiffs or defendants, have turned upon the availability or unavailability of expert testimony evidence about presence or absence of pathogens. In this case, the caterer failed to counter the plaintiffs’ evidence of proximate cause.

This decision removes an anomaly the consideration of summary judgement motions on food poisoning cases in Georgia. However, the plaintiff still must prove causation. As a practical matter, “jury proof” still requires a preponderance of evidence that excludes other reasonable hypotheses of cause. In evaluating a claim of food poisoning, I want lab tests to prove what pathogen caused an illness, probability that it was related to the food consumed, evidence that people who ate the same food got sick and companions who did not eat the same food did not get sick, and some way to minimize other explanations of illness.

In that food poisoning case that I handled years ago, three coworkers at a bank went to dinner together. Two had fried chicken while the third ate something else. Two fell ill with similar symptoms. One of them was hospitalized and tests of stool samples showed the presence of Campylobacter which is common in uncooked poultry. Consumption of undercooked poultry can easily cause gastic infection within 2 to 5 days.

My client recovered from the acute gastric illness and we settled her case for what we felt was a good amount. But we stayed in touch over the subsequent years. Long-term complications of Campylobacter food poisoning infections are rare. But this lady developed complex long-term problems with internal organs which led to her death about 25 years after her food poisoning. No doctors could directly relate her lethal illness to the food poisoning, but as I took my turn tossing a shovel of dirt into her grave, I wondered if a supper of undercooked chicken contributed to her death a so many years  later.

If I handle food poisoning cases in the future, I will be sure to explore with physicians and experts the risks of long-term health consequences long after the initial acute illness has resolved.

.

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

A 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.

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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.

Very often, in wrongful death lawsuits I represent families who after traumatic loss of a family member struggle with grief. Mourning the death of a loved one is a universal experience that sooner or later befalls all of humanity. But despite the common themes, everyone has a different experience of grief and loss.

I wrote this by the deathbed of my sedated wife of 34 years.   Nearing the end of a valiant 29-year battle with recurring brain tumors and two months in home hospice, as she slept, I wrote. It was my way to cope.  With time for final conversations in anticipation of her passage from this life, our experience was vastly different from one who suddenly loses a spouse, parent or child in a truck-car crash.

Most people have heard of the Kubler-Ross five stages of grief — denial, anger, bargaining, depression and acceptance. That is a valuable structure for thinking about how we handle death and learn to live without the one we lost. But we should not view it as a linear timeline for how to cope with grief.

People who are dealing with the loss of a loved one should not be ashamed to consult with an experienced grief counselor, even just as a consultant on how to work through a painful passage in life. A pastoral counselor at my church shared with me John Worden’s outline on the “Tasks of Mourning” from the now-defunct Center for Grief Care and Education in San Diego.

1. To accept the reality of the loss.Long after our mind accepts the fact of death, our body and imagination go on living as if the death did not occur. We may hear the voice of the person who has died, feel their touch, see them in a familiar chair. We may buy special foods for them, or mentally recite stories to share with them. Each time we fail to find them, we acknowledge a little more deeply the fact that they are gone and the hold that they have left in our lives. This slow one-day-at-a time work of acknowledging the first task of mourning.
2. To work through the pain of grief. Enduring waves of sorrow, explosions of rage, stretches of bleak despair, restless searching, and questioning why are included in the second task of mourning. When a person has been an important part of our lives for many years, the pain of losing them cannot be experienced all at once. Even if our feelings for them were mixed, the years leave their mark. We may feel the pain of loving not only what we had, but what we never had as well.
3. To adjust to an environment in which the deceased is missing.In a very real sense, we face a new and unfamiliar world. We need to adjust, just as an immigrant needs to adjust to the language and culture of his new country. We need to develop and get used to new routines, learn to handle new responsibilities, learn to interact with other people in new ways. This process of discovering what this new world is like and learning how to cope with it is the third task of mourning.
4. To emotionally relocate the deceased and move on with life.No, we do not want to stop loving the person who has died or cherishing the memories. Yet, the fourth task of mourning is to find a place for the deceased that will not impair our ability to give and receive love here on earth. We remain connected to our loved one through our recollections and memorializing acts and are able to simultaneously invest in life. Whether or not we enter similar relationships (such as remarrying or having more children), our task is to discovery people, activities, and causes to invest in, to experience love, and to satisfy our need to be loved. Opening again to loving and being loved is the fourth task of mourning.

This reminds me of one of my maternal grandmother who lost two daughters, at 7 and 14, shortly before my mother was born in 1926. All her life, in their modest mill village house on the wrong side of the tracks in Tuscaloosa, framed photos of those girls frozen in time almost a century ago dominated the living room. All her life, for roughly 60 years after losing them, she would occasionally talk about those girls and weep. But that did not diminish her boundless love for her other children and eventually grandchildren.

While one must find a way to move on after loss, one never forgets. Our hearts are big enough to hold both for the loved one who has died and for the living.

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Ken Shigley is a past president of the State Bar of Georgia, a board-certified civil trial attorney, and author of Georgia Law of Torts: Trial Preparation and Practice. He has practiced law in Georgia over forty years.

This morning on her way to work, a paralegal in our office was injured when someone rear-ended her car on the way to work. When she was waiting for a CT scan in the hospital emergency department, she sent us a text reporting that she had already been called on her cell phone by two “runners” to solicit her for unidentified lawyers. Apparently someone in the police department, ambulance service or hospital had corruptly sold her personal information to someone who was willing to commit a crime and a disbarment offense to solicit her for a case. I asked if she would like to participate in a “sting” investigation to get those lawyers disbarred.

Here are the two things you may do after such a solicitation to help stamp out this predatory practice:

1. Contact Paula Frederick, General Counsel of the State Bar of Georgia
   [paulaf@gabar.org, (404) 527-8720]  This is a disbarment offense but no cases are made without someone filing a grievance, so offer to participate in an investigation and to file a grievance.
2. Contact the District Attorney or Solicitor General in the county where the solicitation occurred. Find Your Prosecutor.  Offer to participate in an investigation of the criminal offense and to testify.

Too many times during my career, I have been asked to take over cases that were already ruined  through mishandling by bottom feeding lawyers who solicited the cases in clear violation of Bar ethics rules, either directly or through a “runner” or a chiropractor. By the time those clients fired their original lawyers and came to me, great damage had been done to their cases. Sometimes I was able to salvage a respectable case, but often those cases were “FUBAR” (WWII era military acronym for “fouled(?) up beyond all recognition”).

And too many times, I have had calls from injured people who said they wanted to get a “real lawyer” rather than the idiots who were calling them on the phone to solicit them a day or two after a wreck.

After the Georgia Southern University nursing student tragedy in 2015, I published an op-ed in the Daily Report, “Victims’ Families Need Time to Grieve, Should Report Ambulance Chasers.”

All too often I hear of injury victims who were directly solicited by phone or in a hospital by “runners” working for unethical, bottom-feeding lawyers. If you or a loved on is solicited after suffering an injury, you should know that any lawyer who participates in that sort of solicitation is subject to disbarment if caught.

Georgia Rule of Professional Conduct 7.3 provides, in part, as follows:

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

Solicitations of accident victims by mail are improper within the first 30 days after the injury. Rule 7.3 also provides:

(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, lawyer’s partner, associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if: . . .

(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication;

The maximum penalty for a violation of  Rule 7.3 is disbarment.

This stain on the legal profession is not limited to Georgia. In some states there have been damage suits against lawyers who use “runners” on the basis of violation of Fair Business Practice statutes. In Florida, the Attorney General issued a statewide grand jury report on the fraudulent practices involved with solicitation of injury victims by “runners.” Texas recently passed a law attacking this practice as “barratry.” Another approach could be to make any fee contract obtained through use of runners voidable at any time in order to reduce the financial incentive, but that too could be subject to abuse by clients falsely claiming at the time of settlement that a runner was involved in order to extort an innocent lawyer in to giving up an honestly earned fee.

Respectable plaintiffs’ personal injury lawyers across the country have almost universally condemned this insidious practice of solicitation of cases through runners.

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

Therefore, as State Bar president, I pushed to provide training for State Court solicitors, law enforcement and hospital attorneys on how to carry out these investigation. I appointed a committee to address the problem, and included former FBI agents, State Court solicitors and hospital counsel. While we passed a tweak of lawyer advertising rules, which were approved by the Supreme Court two years later, we were unable to get overburdened law enforcement agencies or prosecutors interested in making these cases.

One of the things I tried to attack during my term as State Bar president was the use of “runners” to unethically solicit people who have been involved in car wrecks. I appointed a committee to explore options for attacking the problem. However, vigorous prosecution of these cases would require an effective sting investigation, which as a former prosecutor I was willing to attempt. However, that is something with which the Bar’s general counsel has never felt comfortable. Sting investigations could be undertaken by law enforcement, but they are reluctant to commit resources for such investigations when the criminal offense is only a misdemeanor. Thus, I eventually came to the conclusion that the only way to get meaningful enforcement is to make it a felony.

In 2014, the legislature took a stab at it, making the second offense a felony. HB 828 passed at the close of the session on March 20th. While I was not involved in drafting this bill, I did have conversations on the topic several months ago with one of the lead sponsors.  Its bipartisan sponsors include Rep. Wendell Williard (R-Sandy Springs, chair of House Judiciary Committee), Rep. Ronnie Mabra (D-Fayetteville), Rep. Dustin Hightower (R-Douglasville), Rep. Trey Kelley (R-Cedartown), Rep. Calvin Smyre (D-Columbus) and Rep. Pam Stephenson (R-Atlanta). The Senate sponsor was Sen. Hunter Hill (R- Atlanta).

This bill enacts a new Code Section 33-24-53 to read as follows:

(a) As used in this Code section, the term:

(1) ‘Capper,’ ‘runner,’ or ‘steerer’ means a person who receives a pecuniary benefit from  a practitioner or health care service provider, whether directly or indirectly, to solicit,  procure, or attempt to procure a client, patient, or customer at the direction or request of,  or in cooperation with, a practitioner or health care service provider whose purpose is to  obtain benefits under a contract of insurance or to assert a claim against an insured or an  insurer for providing services to the client, patient, or customer. Capper, runner, or steerer shall not include:

(A) Any insurance company or agent or employee thereof who provides referrals or recommendations to its insureds; or

(B) A practitioner or health care service provider who procures clients, patients, or  customers through the use of public media or by referrals or recommendations from  other practitioners or health care service providers.

(2) ‘Practitioner’ means an attorney, health care professional, owner or partial owner of a health care practice or facility, or any person employed or acting on behalf of any of the individuals in this paragraph.

(3) ‘Public media’ means telephone directories, professional directories, newspapers and other periodicals, radio and television, billboards, and mailed or electronically transmitted written communications that do not involve in-person contact with a specific prospective client, patient, or customer.

(b) Except as provided for in paragraph (5) of subsection (a) of Code Section 50-18-72, it is unlawful for any person in an individual capacity or in a capacity as a law enforcement officer, law enforcement records staff member, wrecker services staff member, emergency staff member, physician, hospital employee, or attorney to solicit, release, or sell any information relating to the parties of a motor vehicle collision for personal financial gain. This subsection shall not apply to mass public media advertisement and solicitation.

(c) It is unlawful for:

(1) Any person in an individual capacity or in a capacity as a public or private employee or any firm, corporation, partnership, or association to act as a capper, runner, or steerer  for any practitioner or health care service provider. This paragraph shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct; and

(2) Any practitioner or health care service provider to compensate or give anything of value to a person acting as a capper, runner, or steerer. It is also unlawful for any capper, runner, or steerer to recommend or secure a practitioner’s or health care service provider’s employment by a client, patient, or customer if such practitioner or health care service provider obtains or intends to obtain benefits under a contract of insurance or asserts a claim against an insured or an insurer for providing services to the client, patient, or customer.

(d) Any natural person convicted of a violation of this Code section shall, on the first offense, be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment of not less than 30 days and a fine not to exceed $1,000.00. Any natural person convicted of a second or subsequent violation of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment of not more than ten years and by a fine of not more than $100,000.00 per violation.”

SECTION 2.

Code Section 50-18-72 of the Official Code of Georgia Annotated, relating to when public disclosure of records is not required, is amended by revising paragraph (5) of subsection (a)  as follows:

“(5) Individual Georgia Uniform Motor Vehicle Accident Reports, except upon the  submission of a written statement of need by the requesting party to be provided to the  custodian of records and to set forth the need for the report pursuant to this Code section;  provided, however, that any person or entity whose name or identifying information is  contained in a Georgia Uniform Motor Vehicle Accident Report shall be entitled, either  personally or through a lawyer or other representative, to receive a copy of such report;  and provided, further, that Georgia Uniform Motor Vehicle Accident Reports shall not  be available in bulk for inspection or copying by any person absent a written statement  showing the need for each such report pursuant to the requirements of this Code section.

For the purposes of this subsection, the term ‘need’ means that the natural person or legal entity who is requesting in person or by representative to inspect or copy the Georgia Uniform Motor Vehicle Accident Report:

(A) Has a personal, professional, or business connection with a party to the accident;

(B) Owns or leases an interest in property allegedly or actually damaged in the accident;

(C) Was allegedly or actually injured by the accident;

(D) Was a witness to the accident;

(E) Is the actual or alleged insurer of a party to the accident or of property actually or allegedly damaged by the accident;

(F) Is a prosecutor or a publicly employed law enforcement officer;

(G) Is alleged to be liable to another party as a result of the accident;

(H) Is an attorney stating that he or she needs the requested reports as part of a criminal  case, or an investigation of a potential claim involving contentions that a roadway,  railroad crossing, or intersection is unsafe;

(I) Is gathering information as a representative of a news media organization; provided, however, that such representative submits a statement affirming that the use of such accident report is in compliance with Code Section 33-24-53. Any person who knowingly makes a false statement in requesting such accident report shall be guilty of a violation of Code Section 16-10-20;

(J) Is conducting research in the public interest for such purposes as accident prevention, prevention of injuries or damages in accidents, determination of fault in an accident or accidents, or other similar purposes; provided, however, that this subparagraph shall apply only to accident reports on accidents that occurred more than 60 days prior to the request and which shall have the name, street address, telephone number, and driver’s license number redacted; or

(K) Is a governmental official, entity, or agency, or an authorized agent thereof, requesting reports for the purpose of carrying out governmental functions or legitimate governmental duties.

What to do if you or a loved one is directly solicited for a personal injury or wrongful death case:

Would you really want your important case to be handled by a bottom feeding scumbag of a lawyer so unethical and desperate that he is willing to risk losing his license to practice law if he is caught in that solicitation?

If you receive such a solicitation, get the name and number of the caller and then immediately call the State Bar of Georgia Office of General Counsel  at (404) 527-8720, and offer to assist in investigation and file a grievance for violation of Rule 7.3.

Since this is also a criminal offense, report it to your local District Attorney.

The State Bar needs to enforce the ethical rules and uphold virtue in the legal profession, but it cannot make strong disciplinary cases against such unethical lawyers without evidence required to support a prosecution.

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Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, a board-certified civil trial attorney of the National Board of Trial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice. He may be reached at 404-253-7862 or ken@shigleylaw.com. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.

Every summer there are far too many instances of children dying when left in a hot vehicle. One such tragedy involving a child care center without adequate insurance led to a claim against a city government for negligent licensing of the child care center.

Many child care centers in Georgia have no liability insurance because child care centers in Georgia are not required to carry any specific amount of liability insurance. The regulations governing Family Child Care Learning Homes require only “notification of the absence of a liability insurance policy sufficient to protect its clients,” though the amount of insurance that would be  sufficient is never defined. The Rules for Child Care Learning Centers require only that a program seeking an  exemption from licensure “shall comply with the requirements regarding notification to parents of enrolled children if the program does not carry liability insurance.” Parents are asked to sign an acknowledgment that the center “does not carry liability insurance sufficient to protect my children in the event of an injury, etc.”

When I was chairman of the board of directors of a non-profit, church-based child development center, we carried substantial liability insurance, adopted strict policies and procedures, and installed state of the art security technology. We were a rare exception.

If a child is badly injured or killed in many Georgia child care centers, the absence of liability insurance is likely to leave the family without any effective legal recourse.

In the recent case of Calloway v. City of Warner Robins, 336 Ga.App. 714, 783 S.E.2d 175 (2016), a three-year-old child died of heat stroke when left in a hot vehicle for several hours while in the care of workers a child care center. Lacking effective recourse against the child care center and its employees, the parents included as defendants the City of Warner Robins and the city clerk for negligence in issuance of a business license without following certain procedures.

The Court of Appeals (McFadden, J.), held that the city was protected by sovereign immunity because a “municipality’s act of granting or revoking a business license constitutes a governmental function,” even if the issuance of the license was negligent.  Likewise, the city clerk who was sued only in his official capacity was protected by sovereign immunity.

From time immemorial the doctrine of sovereign immunity has restricted citizens’ rights to seek legal redress against the government for its wrongdoing. Georgia has subscribed to the doctrine of sovereign immunity since 1784, when it was adopted by statute from the common law of England. The concept of sovereign immunity is a carryover from the quaint legal fiction that “the King can do no wrong,” which survived the transition from individual absolute sovereign to representative democracy. Limiting the governmental treasury’s exposure to tort liability is the more contemporary justification for the rule.

Whatever the rationale, through most of Georgia’s history, the state enjoyed almost complete immunity for the wrongs of its agents. Sovereign immunity is recognized to be “a harsh doctrine, not an equitable one.” Indeed, it is just the opposite of equity–it is the state declaring that it cannot be sued even where it would otherwise be liable.

The extent to which governmental entities receive the protections of sovereign immunity varies, depending on the type of entity involved and the type of negligence claimed. Generally speaking, the state is subject to a broader waiver of sovereign immunity than counties and municipalities, with the prevailing law being that the state waives immunity unless liability is specifically excluded by the Georgia Tort Claims Act.

The inverse is true of counties and municipalities, which require a specific statutory waiver before they can be liable. In addition to the government’s own immunity, government officials enjoy personal immunity for their allegedly wrongful acts, referred to as official, or qualified, immunity, which is not absolute, but protects them from the burdens of liability and litigation in many circumstances.

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

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

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

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

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

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

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

_____________________

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

When younger lawyers ask me for advice on their cases, among my first questions are, “What is the venue?” and “Who is the judge?”   Often the response is, “Uh, I’ll get back to you.”

Facts and law are vitally important. But the identity of the decision makers – judge and jury – are crucial too. While phenomenal verdicts may occur in conservative rural counties in great cases, and the plaintiff will likely recover nothing in a rotten case even in the most generous venue, in average cases the identify of judge and county are crucial. For example, in a fatal log truck crash a couple of years, I worked hard to secure venue in Fulton County (Atlanta) rather than a rural county heavily dependent on the pulpwood industry in which the crash occurred. It made all the difference in the value of the case.

Earlier this year, the Georgia Court of Appeals published an important decision regarding venue in tort cases against state
government. When an action is brought under the Georgia Tort Claims Act against a State government defendant, even when the State entity is not the sole tortfeasor, the mandatory venue provision of O.C.G.A. § 50–21–28 applies. That code section provides that “[a]ll tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred[.]”

Thus, the determinative factor in venue for personal injury and wrongful death cases against state government in Georgia is determination of where “the loss occurred.”

In Board of Regents of University System of Georgia v. Jordan, 335 Ga.App. 703, 782 S.E.2d 809 (2016), the Court of Appeals of Georgia held:

The term “loss,” as used in the Georgia Tort Claims Act, is defined in OCGA § 50–21–22(3) as “personal injury; disease; death; damage to tangible property, including lost wages and economic loss to the person who suffered the injury, disease, or death; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” (Emphasis supplied.) Had the legislature intended to limit venue for claims under the Georgia Tort Claims Act to the county where the negligent acts or omissions giving rise to the damages occurred, instead of where the “loss” occurred, it could have so provided. When the language of a statute is plain and unambiguous and does not lead to an absurd result, it supplies the sole evidence of legislative intent, and it must not be contravened. See Hall County Bd. of Tax Assessors v. Peachtree Doors, 214 Ga.App. 613, 614, 448 S.E.2d 476 (1994). Upon a plain reading of OCGA §§ 50–21–22(3) and 50–21–28, it is clear that the legislature intended to allow a tort action to be brought against the State in the county where economic loss, pain and suffering, mental anguish, and other elements of actual damages occurred. Since it is undisputed in the cases before us that the plaintiffs incurred losses in DeKalb County, venue is proper in DeKalb County.

In this case, even though the claims arose from medical treatment at a state hospital at Augusta in Richmond County, the plaintiffs had corrective surgeries and long hospitalization in DeKalb County. Because part of “the loss occurred” in DeKalb County – generally a more plaintiff-friendly venue – venue was proper in DeKalb County.

The court appears to have invited the legislature to amend the statute to more narrowly define venue options. However, not all such judicial invitations elicit a response from the General Assembly.

There are many potential ramifications for venue determination in tort claims against state government. One illustration is that if a crash involving a state vehicle causes injury in County #1, the victim is transported to a hospital emergency department in County #2, then is transferred to a tertiary care hospital in County #3, and later dies in County #4, there may be venue under the statute in any of the four counties.

With 159 counties in Georgia, ranging from rural and conservative to liberal and urban, venue options are crucial.

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