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. 

Truck crash on I-16 at I-95 on 5/19/2015 killed 5. Truck driver admitted falling asleep, is charged with 5 counts of vehicular homicide.

In the spring of 2015, there were two separate five-fatality truck crashes on I-16 in Georgia. The first one got most of the publicity because the victims were all beautiful young nursing students, but both were equally lethal and egregious. In both cases, there were at least indications that a truck driver fell asleep before running over a line of stopped traffic.

On April 22, 2015, in Bryan County, John Wayne Johnson, a truck driver from Louisiana driving for Total Trucking, a subsidiary of US Express, ran over vehicles stopped traffic. He killed five Georgia Southern University nursing students and injured two others. It appears he went to sleep as there was clear visibility on a long, straight stretch of road before he ran over the stopped vehicles. Johnson admitted he had been texting and exchanging sexually provocative message with a woman while driving but denied he was on the phone at the time of the crash.

Less than a month later, on May 19, 2015, on I-16  at its intersection with I-95, a line of traffic was stopped due to road work. David Gibbons of Pooler, driving from Georgia Freightways Corporation, while towing an intermodal container chassis trailer that carried a shipping container for CMA CMG (America), LLC, the US subsidiary of a French shipping line. The tractor-trailer was seen weaving for some distance prior to crashing into the line of stopped traffic, killing five people and injuring one. While the driver’s cell phone was allegedly destroyed in the resulting fire, phone bills indicated he was connected to the internet all day. He admitted to police on video at the scene, “I must have went to sleep.” The GBI crime lab found that he had a sleeping medication in his system, the most common trade name for which is Ambien. In deposition, he asserted his 5th Amendment right to remain silent on every question other than his name. (Disclosure: Our firm is involved as co-counsel in several of those cases.)

This spring, the Chatham County District Attorney charged Gibbons for five counts of vehicular homicide for the May 2015 crash.. This week, a Bryan County grand jury indicted Johnson for on nine counts based on the April 2015 crash, including five counts of first-degree vehicular homicide, serious injury by vehicle, reckless driving, following too closely, and failure to exercise due care. In an unusual move, the company that employed him was also indicted.

Several weeks ago, the civil cases arising from the Bryan County case were settled for substantial amounts. That was relatively simple as such things go since the trucking company and its parent company reportedly had $100 million in liability insurance coverage.

The Chatham County civil cases remain pending. It is more complex because a small trucking company with few assets had only had $1 million liability insurance coverage, so it is necessary to involve companies that are responsible for the flow of intermodal freight traffic into and through Georgia. Those cases remain actively in litigation with trial dates scheduled in 2017.

The conditions that led to both of these lethal crashes remain essentially unchanged. Truck traffic, largely to and from the Port of Savannah, may have had some cyclical waning but remains heavy. Tired and impaired truck drivers are still on the road. The Georgia Department of Transportation continues to repair sections of roadway, leading to lane closures and occasional traffic backups.

Moreover, trucking companies still resist use of forward collision avoidance technology and in-cab devices to monitor and alert drowsy drivers.  As Congress is concerned more about protecting trucking companies from implementation of more safety measures than with safety of the public on the roads, these tragedies will continue until being unsafe becomes more expensive than being safe.

Ken Shigley is a  double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is a member of the Board of Governors of the Academy of Truck Accident Attorneys,lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken.shigley@johnsonward.com.

People may enjoy watching “Ice Road Truckers” on television. But there is nothing entertaining about a tractor trailer bearing down upon you at excessive speed, out of control on an icy highway.

A truck driver from Georgia has been charged with three counts of “three charges of grossly negligent driving with death resulting,” the Vermont equivalent of vehicular homicide.

Last December 29, Lashawn Jones, 41, of Alpharetta, Georgia, was driving Roehl Transport Inc. tractor trailer on slush and ice on U.S. 4 near the Killington Ski Resort in Vermont. The truck driver lost control on slush and ice and collided head on with a vehicle occupied by three people – Ryszard and Anita Malarczyk from Hastings-on-Hudson, NY, and their friend, Jaroslaw Karczewski from Poland. All three were killed in the crash.

While we don’t see a lot of ice and snow in Georgia, when it does happen we see how often truck drivers ignore the Federal Motor Carrier Safety Regulations and the industry standards embodied in the Commercial Drivers License Manual regarding driving on ice. In a major ice storm that paralyzed metro Atlanta a couple of years ago, a Georgia Department of Transportation spokesperson said the next day that all the major problems involved tractor trailers.

Federal Motor Carrier Safety Regulations, 49 C.F.R. §  392.14 provides:

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

The Model Commercial Drivers License Manual, adopted with only stylistic differences in all states, and  referred to in 49 C.F.R. § 383.131(a)(1),  states the following in Section 2.6.2:

“Slippery Surfaces. It will take longer to stop, and it will be harder to turn without skidding, when the road is slippery. Wet roads can double stopping distance. You must drive slower to be able to stop in the same distance as on a dry road. Reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road. On packed snow, reduce speed by a half, or more. If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so.”

Trucking companies that have insufficient focus on safety fail to train and supervise their drivers to assure compliance with these safety standards. When the inevitable crashes occur, they send their lawyers and “experts” to disingenuously argue that the rules don’t mean what they say, that the rules do not apply to them, that is the victims’ fault for being on the road in bad weather, and that their drivers did a magnificent job of trying to stop when driving highway speed on ice, etc.

If trucking companies would instruct their drivers to crawl or pull over when road conditions are icy, even if it throws off delivery times, a lot of lives could be saved in America.

Ken Shigley is a  double board certified trial lawyer in Atlanta, Georgia. He has served as president of the State Bar of Georgia, chair of the largest practice area section of the American Association for Justice (Motor Vehicle Collision, Highway & Premises Liability Section), and chair of the Institute for Continuing Legal Education in Georgia board of trustees. He is a member of the Board of Governors of the Academy of Truck Accident Attorneys,lead author of Georgia Law of Torts: Trial Preparation & Practice (2010-2016) and a chapter author of the 2016 edition of Handling Motor Vehicle Accident Cases, both published by Thomson Reuters.  He can be reached at ken.shigley@johnsonward.com.

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.