Strategy is essential in litigation. Among the most important strategic considerations is determining in which court a case may be litigated and tried. Most trucking crash cases involve an analysis of jurisdiction and venue questions.

In Georgia state courts, cases must be filed in a county where a defendant is a resident. Federal courts are options if there is complete diversity of citizenship, meaning that all plaintiffs reside in a state different from all defendants, or if there is “federal question” jurisdiction. In tractor trailer crash cases, we usually but not always file in state courts in Georgia because of the relatively more user-friendly procedures in the state court system. Occasionally, we choose to file in a federal court when available rather than a small, rural county where the trucking company and its driver are located. Most often, plaintiff attorneys file cases in state courts against out of state trucking companies and drivers based on the Nonresident Motorist jurisdiction provisions which provide for venue where the crash happened or where the injured Georgia resident resides, Then the defense usually files a notice of removal to federal court under “diversity of citizenship” jurisdiction.

Rarely does a defendant in a trucking case claim “federal question” jurisdiction in federal court. However, that happened in a case recently in which we are co-counsel in five of six cases arising from a tragic crash at the intersection of I-16 and I-96 in Pooler just outside Savannah, and preparing the briefs in all six companion cases. As the plaintiffs and two defendants are Georgians, there was no diversity jurisdiction. The last defendant served filed notices to remove all six cases from the State Court of Chatham County to the U.S. District Court for the Southern District of Georgia, claiming that the Shipping Act of 1984 created federal question jurisdiction. We immediately filed motions to remand all the cases back to the State Court of Chatham County.

One of the six cases was assigned to the Hon. Lisa Godby Wood in Brunswick and five were assigned to the Hon. William Moore in Savannah. Within two weeks after completion of briefing on the motions to remand, Judge Wood on January 9, 2017, granted the motion to remand in an order that has been published online in the Westlaw database. Moody, et al v. Great West, et al, 2017 WL 77417 (Wood., J.)(S.D. Ga. Jan. 9, 2017).

Under federal case law cited by Judge Wood, removal statutes are construed narrowly and uncertainties are resolved in favor of remand. This is due to respect for state sovereignty and the independence of state courts, as state courts are generally presumed competent to interpret and apply federal law. Removal is also construed narrowly because the plaintiff is the master of the claim and may avoid federal jurisdiction by exclusive reliance on state law.

Shortly thereafter, Judge Moore announced he was taking his well-earned senior status as he approached his 77th birthday.  U.S. Magistrate Judge Stan Baker of Brunswick has been nominated as his successor. A U.S. Senate confirmation hearing for Judge Baker may come around the end of the year, though apparently no one really knows. We have no idea whether there will be an order on the motions for remand in the other five cases before Judge Baker takes office.

The defendants removed these case to the Southern District Court of Georgia claiming that there were federal questions a under the Shipping Act and Federal Motor Carrier Safety Regulations. Defense attorneys often attempt to remove their client’s case to a federal court in an effort to afford a higher level of protection for their out of state client who may fear a plaintiff’s “home court” advantage, or simply to bog down a case in federal court procedures that some lawyers believe are more likely to favor the defense.

However, the statutes concerning removal are construed narrowly out of respect for a state’s sovereignty and the state courts independence. To that end the Court looked to see if we had raised a federal claim or if perhaps there may have been a substantial federal question embedded somewhere in our claim.

Judge Wood’s order in January thoroughly eviscerated the claim of “federal question” jurisdiction in an intermodal trucking cases based on the Shipping Act of 1984. Judge Wood ruled that we had not raised a federal claim as our sole cause of action, wrongful death, was a state claim. While the legal theory makes reference to the Shipping Act and Federal Motor Carrier Safety Regulations, which are both federal law, the Court agreed that “the mere presence of a federal issue in a state cause of action” does not make it into a federal one.

The Court then looked at whether our claim contained a substantial federal question somewhere within it. When determining if there is the possibility of an embedded federal question in a claim there are a few factors a court will look at. First it’s important to understand what might be considered substantial. Substantiality depends on how important or impactful the issue at hand is going to be when weighed against the federal system as a whole. There are no “bright line” rules on this. In fact, the Supreme Court went so far as to compare a relevant precedent to that of a Jackson Pollock painting. What the Court will do is ask questions such as “Will this case control many other cases?”, or, “Does the federal government have an interest in litigating this case in a federal forum?”

Our team was successful in showing the Court that our claim was not going to have a substantial impact on the federal justice system or far reaching implications into federal law that may change the outcomes of future cases, but rather that our claim would have meaningful and substantial impact to the family members who were affected by the wrongful death of their loved one and the Court remanded to Georgia state court where this case belonged.

Despite the delay surrounding nomination of a new judge, we are optimistic that ultimately there will be a ruling in the other five cases consistent with Judge Wood’s order, and that all six cases will find their way back to the State Court of Chatham County for trial.

 Ken Shigley is a past president of the State Bar of Georgia, former chair of the board of the Institute for Continuing Legal Education in Georgia, lead author of Georgia Law of Torts: Trial Preparation and Practice now in its eighth annual edition, a Certified Civil Trial Attorney of the National Board of Trial Advocacy, past chair of the Motor Vehicle Collision, Highway & Premises Liability Section of the American Association for Justice, past chair of the Georgia Insurance Law Institute, and a Diplomate of the National College of Advocacy. He has handled many catastrophic truck crash cases involving wrongful death, serious personal injury, neck and back injury, brain injury, spinal cord injury and burns. 

Once again, a tractor trailer making a u-turn in dark or fog on a rural Georgia road has proven fatal. Once again, a turning tractor trailer forms a deadly and virtually invisible fence across a highway.

On September 30th at Lenox, Georgia, a man was killed when he collided with a Scruggs Concrete semi-truck attempting to make a u-turn in the roadway in foggy conditions. He was killed when the collision sheared off the top of his pickup truck.

This is an all too common form of truck crash across the United States, largely due to poor training and management at companies that operate the trucks.

A poorly trained, poorly manged and poorly supervised truck driver might not know better than to make a u-turn in the road at night or in the fog. But the intelligent, trained action is to avoid this. The fundamental duty of any driver is to exercise reasonable care. A lot of things can go into that. For a professional driver of tractor trailers, safety regulations, vehicle size, professional training and industry standards must be considered.

Because of its size — 80,000 pounds (or more for some types) and 48 to 60  feet in combined length — a tractor trailer cannot move quickly from a starting position.   A widely quoted estimate is that it takes 15-30 seconds for an 18-wheeler to execute a u-turn.  During that time, the trailer will have the highway blocked in both directions for roughly 12 seconds.  If the truck driver has difficulty executing the turn in the space available, the truck will block the road even longer.

An approaching motorist, especially at night or in fog, may not have time to perceive, react to, and avoid the tractor-trailer during the time that the highway is blocked. The result, as in this tragic incident, is often that the approaching motorist cannot stop in time to avoid going under the trailer that blocks the road.

The Federal Motor Carrier Safety Regulations include rules on conspicuity (visibility) commercial motor vehicles such as tractor trailers. In general, trailers must meet the conspicuity standards found at FMVSS 108 (49 C.F.R. § 571.108). In a u-turn case, rules about visibility from the side are most significant. These vary slightly between federal and state rules for intrastate operations in some instances, but generally the rules require lights and reflective tape or sheeting to make the trucks visible to other motorists. The reflective material must have alternating red and white colors and be positioned horizontally, beginning and ending and the front and rear ends of the trailer.

Often in cases where a tractor trailer is attempting a u-turn in low light conditions, all an approaching driver sees is headlights in the opposite lane. By the time the driver perceives that a tractor trailer is straddling both sides of the highway, there is too little time to react and avoid a crash.

Conspicuity tape and reflectors are cheap. Going another half mile down the road to a place where a turn can be made safely off the highway is cheap. Lives are precious. Too often companies operating big trucks on the highway fail to weigh those values.

We often see tractor trailers that do not comply with conspicuity standards. In one recent case involving a log truck making a u-turn on a rural Georgia highway in the dark, side lights and reflectors were missing and what little reflective tape was on the trailer was worn and dirty. In sum, it had less than one-third of the conspicuity devices required by even the relatively slack rules governing log trucks in Georgia. With logs extending 20 feet off the rear of the trailer and lights not working properly, it formed a black fence across the highway in the dark.

Georgia Code Section 40-6-121 says, “No vehicle shall be turned so as to proceed in the opposite direction: (1) Upon any curve; (2) Upon the approach to or near the crest of a grade where such vehicle cannot be seen by the driver of another vehicle approaching from either direction; (3) Where such turn cannot be made in safety and without interfering with other traffic; or (4) Where a prohibition is posted.” Trucking industry standards go beyond that, taking into account vehicle size and visibility.

Drivers of tractor trailers are professionals who require special training and licensing. Operating vastly larger vehicles than a passenger car or pickup truck, their standard of reasonableness in driving takes into account the type of vehicle they are operating. The basics of that are outlined in the Commercial Drivers License (CDL) manual, which is essentially the same in all states.

Driver manuals from major trucking companies with good safety programs include industry standards higher than the minimum requirements of statutes. Some flatly state that truck driver should never make u-turns in roads under any circumstances. Some command that their drivers never make a left turn on a highway. They should go to the next place they can turn around off the road without blocking the road by making a u-turn.

The concrete industry has a wealth of driver training videos through the National Ready Mixed Concrete Association, covering most any situation that can arise in operation of those specialized vehicles. Every time I have handled a case involving a concrete truck, I have found that there were great training materials that if used would have educated the driver to avoid the hazard. And every time, I have found that the company did not bother to use those training materials. Once a concrete driver, upon seeing the training video for the first time in his deposition, exclaimed, “them [expletive deleted] never showed me that; if I had known, this wouldn’t have happened!”

Root cause analysis of these totally preventable and unnecessary crashes usually goes back to corporate management, training and supervision.  If a driver was lost, it is likely because dispatch failed to provide good directions and GPS systems. If the driver was tired, we need to consider whether the company adequately monitored fatigue and hours of service compliance, including the auditing driver logs against available documents to catch log falsification.

The bottom line is that an 18-wheeler driver simply cannot safely make a u-turn on a public road, especially in conditions of reduced visibility. Every time a tractor-trailer driver makes a u-turn in a highway, he creates a clear and present risk of injury or death just to save the time it would take  to go a little way down the road to a place he
could safely change directions. Every company that fails to train its drivers to avoid u-turns has an unspoken policy of endangering the public.

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