Inadequate Security Can Lead to Unsafe Premises

hallwayWhen you are traveling away from home, you want to stay somewhere you feel secure. The last thing you expect while traveling is to stay at a hotel or motel that is unsafe because of hazardous conditions or unsavory characters on the premises.

All too often, criminals enter hotel and motel premises due to management’s failure to take reasonable measures to protect their guests. If the owner of the establishment has reason to expect a crime to be committed on its property, generally due to prior incidents on the property or in the immediate vicinity, there is a legal duty to deter and prevent individuals from committing crimes against those on the property.

Anything from poorly lit corridors and parking facilities, to untrained or out-manned security personnel can facilitate dangerous activities. It is also important to have all cameras monitored and exterior fences locked. Some facilities slack on these responsibilities and put their patrons in harm’s way.

It is also important for the company to complete appropriate background screening before hiring any job candidate. Negligent hiring can occur when an employer fails to screen applicants and hires someone with a criminal history. If an assault is committed by a company employee, who has access to potential victims while they work, the company may be legally responsible for injuries and damages caused by that employee.

If an employee is discovered to be dangerous or have a potential to be dangerous after initial hiring and is kept on staff and then commits a crime, a claim for negligent retention could be filed. If the employer fails to monitor and instruct an employee who poses a crime risk, and is allowed to commit an assault, this may establish a claim for negligent supervision.

We help the victims of these crimes to hold motel and hotel operators liable for inadequate security of their guests. If you or a loved one has been the victim of a crime while staying at hotel or motel, please contact our firm.

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Ken Shigley is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, lead author of Georgia Law of Torts: Trial Preparation & Practice, and a double board certified civil trial attorney.

What are the time limits on injury and death claims in Georgia?

If you snooze you lose. It is a harsh reality that people who are unaware of the time limits to file suit for a loss may lose all their rights to compensation forever.

clock1Recently, I met with a highly intelligent, well-educated person who completely misunderstood the limitation period. This person thought that the two year statute of limitation for personal injury in Georgia referred only to submitting a claim to an insurance company rather than actually filing suit in court.  Merely talking and negotiating with a claims adjuster does not stop the clock from running. The claims adjuster never would have informed the injured person that failure to file suit by the second anniversary of the injury would resulted in permanent loss of any right to recover damages.

Briefly summarized, here are the main time limits of which people should be aware regarding personal injury and wrongful death claims in Georgia.

Deadlines to file suit in court:

  • Personal injury. Must be filed in court within two years from date of injury.
  • Wrongful death. Must be filed in court within two years from date of death.
  • Loss of marital consortium. Must file suit in court within four years.
  • Property damage. Four years.
  • Life Insurance Contracts. Although the Georgia statute of limitations for filing suit on written contracts generally is six years, it is very common for insurance policies include a contractual time limit to file suit of as little as one year. This is often trap for the unwary.

Deadlines to give pre-suit notice of claim.

Georgia law requires “ante litem” notice before suit for claims against state and local governments.

  • Claims against state government. Within 12 months the claimant must present a pre-suit notice of claim in writing with specificity as to what happened and the amount claimed, to head of each state agency involved, and to Risk Management Division of Department of Administrative Services,. Suit must be filed within the applicable of limitations, but not less than 90 days after presentation of pre-suit notice of claim.
  • Claims against county government. Must present claim in writing to county commission within 12 months, and prior to filing suit within statute of limitation.
  • Claims against municipal government. Must present claim in writing within 6 months, then wait at least 30 days before filing suit.

When the clock stops running.

There are several Georgia rules that “toll” the limitation period and “ante litem” notice deadlines, essentially stopping the clock and extending the deadline for filing suit. Be extremely careful about relying upon any of these. Even if suit may be filed later, crucial evidence may be lost through delay.

  • Minority. Under C.G.A  § 9-3-90, when a child is injured, the clock does not start running until she becomes an adult on her 18th birthday, so the two years limitation period expires on her 20th birthday. Note this does not apply to medical malpractice claims, in which the limitation is tolled only until the 5th birthday and expires on the 7th birthday or two years from the injury, whichever comes last. However, the claim for a minor’s medical expense belongs to the parents and must be filed in court within two years after the injury. The differing time limits for claims arising from the same injury can be a trap for those unaware of the distinction.
  • Mental incompetence. When a person is too mentally incompetent to manage his own affairs at all, the limitation clock stops running until the disability is removed or a guardian is appointed. Beware unless the person is so mentally addled as to be unable to write a personal check or call a lawyer on the phone, efforts to extend the time limit on this ground are unlikely to succeed. Being a little “off” is not enough.
  • Pending criminal case against defendant. C.G.A § 9-3-99 provides: “The running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.”  This has been applied to mean that when a related criminal case including a traffic citation remains pending against the person who caused an injury or death, the clock stops running. The time limit becomes two years from the date the criminal case is concluded. Beware that potential criminal charges are sometimes quietly dropped without any open action. It is often better to file suit and force the defendant to “take the fifth” in the civil case while the criminal case remains pending.
  • O.C.G.A  § 9-3-96 provides: “If the defendant or those under whom it claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation will run only from the time of the plaintiff’s discovery of the fraud. To toll the applicable limitations period, the fraud, in the absence of a confidential relationship, must be of a character which involves moral turpitude or actual fraud rather than constructive fraud.”  This exception to the statute of limitation is strictly and narrowly construed. To toll a statute of limitation due to fraud, the following must be shown: (1) actual fraud involving moral turpitude on the part of the defendant, (2) the fraud must conceal the cause of action from the plaintiff, thereby debarring or deterring the knowing of the cause of action, and (3) the plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.
  • Continuing tort. Georgia recognizes the theory of continuing tort, which applies where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time. Under the theory of continuing tort, the statute of limitation does not begin to run until such time as the continued tortious act producing injury is eliminated. The continuing tort theory is limited to cases involving only personal injury, it is not applicable to claims for wrongful death or property damage.
  • Unrepresented estate. Under C.G.A  § 9-3-92, “The time between the death of a person and the commencement of representation upon his estate or between the termination of one administration and the commencement of another shall not be counted against his estate in calculating any limitation applicable to the bringing of an action, provided that such time shall not exceed five years. At the expiration of the five years the limitation shall commence, even if the cause of action accrued after the person’s death.” However, a temporary administrator is not considered a representative of the estate for purposes of tolling, even though a temporary administrator may prosecute a cause of action for the collection of debts owed to the decedent.

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Ken Shigley, a former president of the State Bar of Georgia, is a board certified Civil Trial Advocate of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice, and chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section.

Credit Reporting Agencies Agree to Change Reporting of Unpaid Medical Bills

emergency roomClients who have been injured often express concern about their medical bills showing up on credit reports, harming prospects for major purchases, credit cards, employment and even security clearances in their work.

Anyone looking for a job, applying for a mortgage or car loan, renting an apartment, getting a cell phone, or seeking a new or renewed credit card can be affected. Those who work in sensitive roles in the financial services industry and in jobs requiring national security clearances have additional headaches when medical bills that remain unpaid pending a settlement show up on credit reports.

After a significant injury, it can take months or years to get the insurer for the party responsible to settle, and most will not pay anything on medical bills until the entire case is settled. Even if the person injured has health insurance or medical payments coverage under an auto insurance policy, insurers can take months to process payments, looking for any excuse to stall or cut payments.

Such delays can result in medical providers reporting unpaid balances to credit reporting agencies. Until now, those medical bills could linger on a person’s credit report for years, even long after the balances were paid off. We have seen individuals haunted by bad credit reports resulting from balances that the medical providers had never bothered to bill to insurance and had mailed to the wrong address for the patient. Only when trying to buy a car years later did the patient become aware of those balances for which no bills had ever been received.

Now, due to action by the Attorney General of New York, the three major credit reporting agencies — Experian, Equifax and TransUnion — have agreed to a nationwide change in their practices regarding reporting of medical debts. Under this agreement, the three companies will:

  • Establish a six-month waiting period before reporting medical debts on consumers’ credit reports. This will providing more time for consumers to resolve issues that might amount only to a delayed insurance payment or another dispute. That is not enough time to resolve most liability cases, but it does allow some opportunity for dealing with recalcitrant health insurance or auto medical payments coverage.
  • Remove medical debts from an individual’s report after the debt is paid by insurance. While I am not naïve enough to believe this will happen automatically, it will help folks get their lives back to normal after a long ordeal with an injury or illness.

In practice, we often try to avert medical bill balances ever being reported to credit agencies by communicating with the medical providers about the status of clients’ cases. When a particular provider is unwilling to voluntarily defer reporting, this change in practices by credit reporting agencies will help.

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Ken Shigley is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, lead author of Georgia Law of Torts: Trial Preparation & Practice, and a double board certified civil trial attorney.

What to do if your car breaks down on the expressway at night

ambulanceinice

Twice recently pedestrians died in predawn darkness on I-285 on the north side of Atlanta. Tragedy for the victims and their families led to massive morning traffic jams for hundreds of thousands of Atlanta area commuter.

On January 22, 2015, there was no clear explanation why a woman was walking on I-285. Several vehicles ran over her body before anyone apparently realized what had happened. That fatal incident remains a mystery.

Then on February 6, 2015, a collision at 4:30 AM led to one driver to get out of his vehicle, cross the emergency lane, then try to get back to his disabled vehicle. At that point he was struck and killed by another vehicle.

Over the years I have worked on a number of cases with similar scenarios. One of the last criminal jury trials I defended before switching to 100% civil litigation involved defense of a truck driver who struck a pedestrian at 4:30 AM on I-20 in Douglas County, then continued to the next exit before stopping. That pedestrian had run out of gas, was walking back to this car with a can of gas, and was stuck when attempting to cross the road to his car. He jumped back to avoid the oncoming truck just as the truck driver swerved to avoid him, and the fatal impact was in the emergency lane. We won acquittal of the truck driver on the charge of Homicide by Vehicle. He was convicted of only failure to stop and render aid because he did not stop at the scene. He paid a $1,000 fine and went home to his family.

A few years ago, we represented the mother of a young woman who was killed when struck by a tractor trailer after the car in which she was a passenger hydroplaned and was disabled on I-285 on a rainy night. It was a very tough liability case. Because the truck driver had not shown up for a drug test required under federal regulations and later was convicted of drug trafficking in Alabama, we were able to work out a compromise settlement. Without the drug issue, we probably would not have come out well at all.

Recently a lawyer in another state called me about helping with the trial of a case in which their client’s decedent was killed when struck by a truck in a disabled vehicle on an interstate highway in predawn darkness. I helped brainstorm possible approaches but respectfully declined to get involved in the case.

What should you do if your vehicle is disabled on the road at night? Here are a few of the many suggestions from AAA interspersed with my own thoughts:

  1. Immediately activate your hazard flashers. With the bad events I have seen in my law practice, I hit the hazard flasher button as soon as I see traffic is slowing dramatically in the highway.
  2. Get all the way off the road if you possibly can. Disabled vehicles in the roadway tend to get hit, sometimes due to following drivers speeding, failing to keep a lookout, etc. Even if you are innocent and the driver who hits you is grossly negligent in 100 ways, the outcome for you will not be good if you are hit.
  3. Quickly note your vehicle’s locations – landmarks, mile markers, etc. – to give to the 911 operator and roadside assistance.
  4. Call 911 for police or HERO unit help, and if appropriate call your auto club for roadside assistance.
  5. If your car is disabled in a traffic lane, get yourself completely out of the road. If you are on the interstate, it may be safest to wait on the grassy right-of-way completely off the pavement. Getting cold and wet is better than being hit by a tractor trailer at highway speed.
  6. If you must exit the vehicle try to do so from the passenger’s side, away from traffic. If that is not feasible, at least pull as far off the traffic lanes as possible. If you are blocked in by a concrete wall, just don’t get out. Either drive up the emergency lane to the next exit with you hazard lights flashing or sit still with you hazard lights flashing while waiting for assistance. That may be the “least bad” option.
  7. If you wait in your vehicle, put up the hood and lock your doors. Exercise discernment about offers of help from strangers. Generally, ask them to call police for assistance. If you are threatened or harassed while waiting in your car, honk the horn repeatedly and flash the lights to attract attention. Don’t leave the engine on for extended periods to heat or cool the vehicle. You could put yourself and any passengers at risk of carbon monoxide poisoning.
  8. If you have flares, reflective triangles, etc., set them out if you can do so. But be very careful to avoid any oncoming traffic.
  9. Place a “Send Help” sign in a window so it is visible to other motorists. Open the vehicle’s hood and leave it open. Tie a light colored cloth to the antennae or door handle.
  10. If possible, stay with the vehicle until uniformed law enforcement arrives, especially at night or during bad weather.
  11. If you are stuck in an ice storm and slide off the road due to other vehicles stopping in front of you, exercise great caution in attempts to get back on the road. In such situations, calling 911 may be useless as police are already overwhelmed, and staying on the road overnight in the cold carries its own dangers including hypothermia and carbon monoxide poisoning. If you try to push you vehicle back onto the road in the ice, keep a watch out for oncoming hazards, such as speeding truckers who ignore their own safety rules. In our last ice storm, GDOT reported that all major accidents involved tractor trailers.
  12. If you need to change a tire, exercise extreme caution regarding traffic. Too often we see reports of people stuck and killed while trying to change a tire in the emergency lane. It is better to ruin a tire or even a wheel by running on a rim to the next exit than to sacrifice your life for a tire. If you have to change a tire on the roadside, make sure you are way out of the traffic lanes. Don’t just park in the emergency lane of an interstate; park with the right side wheel well onto the grass. Better yet, call for roadside assistance so the flat tire can be addressed by a guy in a tow truck with flashing emergency light who will park behind you and both warn and block oncoming traffic.
  13. Avoid standing directly behind or in front of your vehicle. Other drivers may not be able to see you, with potentially fatal results.
  14. If you decide you must walk, write down: Your name, the date, the time you left, the direction you are going, the plate number of the vehicle you are riding in, description of the vehicle, name and description of the person you are riding with. Notify law enforcement of the location and circumstances in which you left your vehicle.
  15. Read the rest of the AAA suggestions.

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Ken Shigley is a double board certified civil trial attorney in Atlanta, past president of the State Bar of Georgia and chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section.

Coweta County Non-Emergency Ambulance Crash Kills Patient

STRETCHERNon-emergency medical transport crashes are often unnecessary causes of death and severe injury in Georgia. In a recent incident in Newnan, a Coweta EMS ambulance operated by American Medical Response employees, rolled over while transporting a chest pain patient to Piedmont Newnan Hospital. According to witnesses, the ambulance drove off the left side of the road, causing it to roll over. The patient, Tracy Thomas, 45, did not survive.

Failure of non-emergency medical transport personnel to follow safety rules has been the subject of serious claims in Georgia in recent years. Right next door to Coweta County, in 2013 a jury in very conservative Troup County awarded $2.5 million for the death of a profoundly disabled woman who was killed after non-emergency medical transport personnel failed to strap her in as required.

During my lifetime, emergency medical transportation has evolved from the “meat wagon” often operated by a local funeral home and driven by a high school kid who scooped up wreck victims and took them to either the funeral home or the hospital. One of my high school friends had that part-time job which involved a great deal more drama than my job sacking groceries. You can imagine how a minimally trained teenager operating a vehicle with flashing lights and siren would get into situations that made for exciting stories in homeroom on Monday. Fortunately, he survived, married well, and is now mayor of his town.

Starting in 1965 and accelerating after the Vietnam War, we have seen dramatic improvements with trained EMS and EMT personnel equipped with a great deal of life-saving technology.

With greater capacity has come higher expectations. Medical transport, either emergency or non-emergency, involves risks. Part of the risk arises from lack of use of seatbelts by EMS workers; failure to properly restrain patients and equipment; unpadded or intrusive equipment that can cause serious head-impact injuries; an structural deficiencies in ambulance design. Safety concerns have led to development of safety standards  from the National Fire Protection Association and National Highway Traffic Safety Administration.

Georgia law has long provided that ambulance is a common carrier so long as it undertakes to carry sick, injured, or disabled persons indiscriminately, and as such is held to a standard of extraordinary diligence. With regard to personal injuries to passengers, an ambulance operator as a common carrier has absolute liability for even the unauthorized and willful acts of its employees, although the ambulance company may not be liable for an employee’s theft of a patient’s jewelry. See, e.g., Bricks v. Metro Ambulance Service, Inc., 177 Ga.App. 62, 338 S.E.2d 438 (1985).

In Georgia, both emergency and non-emergency medical transport services are governed by the Emergency Medical Services Prehospital Clinical Operating Guidelines.  The primary focus of these guidelines is appropriately on medical triage decisions to save lives. However, there is also coverage of emergency vehicle operations, incorporating the provisions of O.C.G.A  § 40-6-6. The key points are:

  • “The driver of any authorized emergency vehicle must always drive with due regard for the safety of all persons, including the patient being transported, the transport crew, and the public.”
  • In responding to an emergency call, and only when the ambulance is making use of an audible signal and use of a flashing or revolving red light visible under normal atmospheric conditions from a distance of 500 feet to the front of such vehicle, the ambulance driver may:
    • Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation;
    • Exceed the maximum speed limits so long as he or she does not endanger life or property; and
    • Disregard regulations governing direction of movement or turning in specified directions.
    • However, this does “not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.”
    • When operating a vehicle as “an authorized emergency vehicle”, both the warning lights and audible signal must be in use. Operating a vehicle with only one of these warning devices in use, even in a bona fide emergency, does not relieve the ambulance driver from compliance with traffic laws.
    • Certain medical conditions may require the rapid transport of the patient, without use of an audible warning device due to the patient’s condition (e.g. acute MI, preeclampsia). In circumstances where lights only are used for transport, the vehicle cannot proceed as “an authorized emergency vehicle” and must proceed in complete compliance with traffic laws, including red lights, stop signs, speed limits, etc.
    • Pediatric patients must be restrained in accordance with the National Highway and Traffic Safety Administration’s “Best Practice Recommendations for Safe Transport of Children.” A key point is that, “No child or infant should ever be held in the arms or lap of parent, caregiver, or medic during transport.”
    • Guidelines for transport of patients with special health care needs include, “When moving a special needs patient, use slow, careful transfer. . . . Do not use excessive force to straighten or manipulate contracted extremities, as this may cause injury or pain to the patient. . . . Transfer the patient if possible to their medical “home” hospital. This may involve bypassing the closest facility.”

Other publications on ambulance safety state the common sense standards such as:

  •  All patients on the stretcher must be secured at all times when the vehicle is in motion or the stretcher is being carried or moved.
  • Any child transported to the hospital should be in the child’s own protective restraining device – child safety seat – when available. He/she should be placed in the device and the device should be belted to an ambulance seat. If the child actually is the patient, he/she should be secured onto the stretcher and if appropriate, kept in the child safety seat.

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

“Extreme caution” safety rule requires truckers to slow down or crawl on icy roads

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

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

truck on ice Federal Motor Carrier Safety Regulation 392.14 which provides that, “Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice … adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.”

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

2.6.2 – Matching Speed to the Road Surface

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

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

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

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

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

Melting Ice. Slight melting will make ice wet.

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

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

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

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

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

 

What are unintended safety consequences of cutting health insurance benefits for school bus drivers?

There is a new budget proposal pending in the legislature to cut health insurance benefits for school bus drivers in Georgia. I know that state budgets are awfully hard, and that the Governor and his team mean well. No matter what Gov. Deal’s political critics may have said in the campaign, I know the man and know he is a good guy.

The rationale for cutting health insurance for 11,500 school bus drivers and cafeteria workers are part-time employees who work less than 30 hours a week, while other part-time state could not get health insurance benefits. The State Health Benefit Plan currently covers more than 630,000 state employees, teachers, other school personnel, retirees and dependents. The benefits cut could save the state more than $100 million per year. According to the Department of Community Health, the coverage for “non-certificated’’ school workers ran a deficit of $135 million in fiscal 2014, and this cut would cover most of that deficit.

Key legislators have pushed back against this proposal on the ground that these employees are an “essential part of the education delivery system.”

Aside from the issues of budget balancing and equity for other part-time employees, I am concerned about the potential unintended consequences for school bus safety.

School bus drivers work a few hours in the early morning and a few hours in the afternoon. It is difficult to combine that with a second part-time job. While many school bus drivers make as little as $8,000 per year, they drive a bus primarily for the health insurance benefits. According to State Rep. Bill Werkheiser (R-Glennville), “I predict if they pass it, 80 to 90 percent of the drivers in rural Georgia won’t drive.”

So what would happen if these poorly paid bus drivers quit due to loss of the health insurance that is their primary economic justification for driving a bus rather than taking some other minimum wage job? Who would drive school buses to transport Georgia’s children to their schools? What would be the consequences for safety?

Others who are qualified and experienced to drive large vehicles such as school buses might include truck drivers. But very few of them will give up a higher income to drive a bus. Years ago, school systems hired high school students to drive school buses. Hiring inexperienced 16 to 18 year old teenagers to drive school buses was such a great idea that the practice was terminated a long time ago.

In 2010, a trainee bus driver lost control of a bus on a rural road in Carroll County. A student was ejected and killed. In 2013, a collision of two school buses in Newton County resulted in 43 people being transported to a hospital. This month in North Dakota, 2 died and 11 were injured in a crash involving a school bus at a railroad crossing. Today in Texas, 22 kids were on a school bus that crashed at Fort Worth.

We have also seen a number of cases of children injured or killed during loading and unloading of school buses. Even an experienced dump truck or log truck driver would not be experienced in supervising a bus load of children and their boarding and debarking from a bus.

If in a few months we find 2,000 Georgia school buses are driven by inexperienced trainee bus drivers, transporting perhaps 80,000 children to school and back, safety will be affected and bad things will happen.

Politics and public budgets present awfully hard choices. And choices have consequences.

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Ken Shigley is an Atlanta-based, board-certified trial attorney focused on large truck and bus cases. He is a former president of the State Bar of Georgia and currently chair-elect of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section.

Georgia Jury Verdicts on a Roll in 2015

As past president of the State Bar of Georgia and a seasoned trial lawyer, I’m impressed by the recent string of jury verdicts in Georgia, two of which exceed $70 million. Several of these were won by lawyers who, like me, have attended Gerry Spence Trial Lawyers College programs and closed door, members-only seminars of the AAJ Trucking Litigation Group.

Some of these verdicts will be compromised or cut in post-judgment motions and appeals, and some will be simply uncollectable. Prudent lawyers know that there is no appeal from a settlement, and big verdicts usually result from someone guessing wrong about what a jury will do. While I am too experienced to be giddy about any of this, it is true that a rising tide lifts all boats, as a history of good verdicts in a jurisdiction becomes a factor at some level in insurance companies’ valuation of cases. Of course, it no sense to try a case if an insurer promptly tenders policy limits near the value of the case, or if a verdict would be just a piece of paper suitable for framing and not collectible.

Here are just a few recent Georgia jury verdicts in personal injury and wrongful death cases:

  • $73 million verdict, Fulton County, Jan. 15, 2015.  Gas explosion in apartment during move-in caused burns to 50% of new tenant’s body. Gas line was allegedly left uncapped when gas was turned on. The defense alleged that the plaintiff accidentally opened the gas line himself in trying to light the water heater, but the jury apportioned zero fault to the plaintiff. The verdict included $17.9 million compensatory damages for injuries, lost earnings and expenses, $47.9 million in punitive damages and $7 million in attorney fees. I expect the punitive damages award may be reduced from $47.9 million to $250,000 under Georgia law.
  • $72.6 million verdict, DeKalb County, Jan. 12, 2015. Child was mauled by a pit bull. The defendant defaulted and the jury awarded $36.6 million in compensatory and $36 million punitive damages. The punitive award could be reduced from $36 million to $250,000. In light of the default, I have my doubts about collectability of any significant portion of the verdict.
  • $6.25 million verdict, Floyd County, Dec. 12, 2014. Motorcycle rider lost leg when ambulance that was not on an emergency run pulled out from a stop sign and hit him. Floyd County is traditionally considered a very conservative venue.
  • $3.6 million verdict, Gwinnett County, Jan. 16, 2015. This verdict once again disproved Gwinnett County’s old reputation for low verdicts.  Neck, back and shoulder injuries to two Hispanic, non-English speaking workers with immigration and language barrier issues. A Georgia Power pickup truck, driven by an attractive, articulate engineer who was pregnant at trial, struck them in the rear.  Ga Power fought liability saying plaintiffs slammed on brakes with no turn signal on, implying that they staged the wreck. The defense claimed that there were no actual injuries and all medical care was unnecessary and designed to get money in a lawsuit. Overcoming bias against non-English speaking undocumented Hispanic immigrants. The offer before trial was very low.
  • $945,358.99 verdict, Gwinnett County, Dec. 17, 2014.  Hispanic mom was rear ended by tractor trailer in rainy rush hour in construction zone. Trial was just to collect $25,000 underinsured motorist coverage after settlement with trucking company for $985,000. UM carrier offered only $5,000. Since verdict was for less than settlement with trucker’s insurer, nothing is collected from UM carrier.
  • $4.3 million verdict, reduced to $2.58 million for comparative negligence, Clayton County, Nov. 2014. Brain injury to railroad worker was struck by shrapnel fired from a makeshift “potato cannon” rigged by a supervisor. The jury found the plaintiff 39% at fault because he had helped build the potato cannon and was filming the nonsense when the device misfired.
  • $3.7 million dollar verdict, Fulton County, Jan. 14, 2015. 18 year old woman was sexually molested by an anesthetist in an oral surgery practice, who made video recordings of molestations of 19 women on a hidden camera. There will be an appeal.
  • $3.6 million verdict, Clayton County, Dec. 19, 2014. Negligent security claim against hotel by guest who was shot in the stomach while checking in at 2 AM. The verdict was reduced to $1.17 million after the jury apportioned the responsibility for the damages at 58 percent for the shooter, who wasn’t a defendant in the suit; 32 percent on the defendant hotel owner and 10 percent on the plaintiff himself.
  • $700,000 verdict, Fulton County, Dec. 2014. Woman who had lived in Chicago slipped and fractured an ankle on a patch of black ice outside an office park.
  • $140,000 verdict, Bibb County State Court, Dec. 18, 2014. State Farm only offered $3,500 on “minor impact soft tissue” case, but jury awarded $140,000 to plaintiff with significant preexisting conditions.

When is the fine print too fine?

There is an old maxim that, “What big print giveth the fine print taketh away.” In a case involving a used car sale, our Georgia Supreme Court this week said, “not so fast.”

To make out a claim at common law for fraud, a plaintiff must show not only that he relied upon some misrepresentation, but he must show as well that his reliance was reasonable or justifiable.  In the case of Raysoni v. Payless Auto Deals, LLC, 2014 WL 6090438, decided by the Supreme Court of Georgia on November 17, 2014, the question was whether reliance upon a used car salesman’s representations was reasonable despite fine print disclaimers.

Mr. Raysoni went to a used car lot. He asked a salesman whether the vehicle in which he was interested had ever been in a wreck or damaged. The salesman told him it had not, and gave a Carfax report that showed no damage to the vehicle and no indication that it had been involved in any wreck. Relying on these representations, he bought the vehicle. A couple of months later, Raysoni learned that the minivan, in fact, had been in a wreck and had sustained frame damage as a result.

When he attempted to return the vehicle and rescind the purchase, the used car dealer refused. It relied upon fine print in the sales contract, which included, “NO SALESMAN VERBAL REPRESENTATION IS BINDING ON THE COMPANY,” “CUSTOMER SHOULD NOTE THAT THIS VEHICLE WAS ANNOUNCED HAVING UNIBODY DAMAGE AT THE AUCTION,” and “WE STRONGLY RECOMMEND CUSTOMERS SHOULD GET VEHICLE INSPECTED BY A MECHANIC OF THEIR CHOICE BEFORE MAKING THE PURCHASE.”

Finding it was a jury question whether reliance upon the salesman’s representations was reasonable, Justice Keith Blackwell noted for the Court:

No one should make the mistake of thinking, however, that capitalization always and necessarily renders the capitalized language conspicuous and prominent. In this case, the entirety of the fine print appears in capital letters, all in a relatively small font, rendering it difficult for the author of this opinion, among others, to read it. Moreover, the capitalized disclaimers are mixed with a hodgepodge of other seemingly unrelated, boilerplate contractual provisions—provisions about, for instance, a daily storage fee and a restocking charge for returned vehicles—all of which are capitalized and in the same small font.

Plaintiff’s lawyers estimated the font size of that fine print was 5.6.  I dare you to read anything in 5.6 font without a magnifying glass.

Kudos to my friends Mike Flinn of Carrollton and Charles Cork of Macon for their diligence in taking this consumer issue to the Supreme Court. While I generally refer “lemon car” cases to Mike Flinn, the judicial disapproval of obscure fine print to contradict a salesman’s representations to a consumer.

The case vaguely reminds me of a one I tried in my past life as an insurance defense lawyer. In an employee dishonestly insurance claim by a car dealer, I was representing the insurance company in its own name. My chief witness was the bean-counting dweeb of a claims adjuster from central casting. And my task was to try to persuade the jury that a used car salesperson was honest despite overwhelming and incontrovertible evidence to the contrary. I never understood why the insurer I represented didn’t just settle that case.  It was not much fun to stand up and take that beating.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.

Airbag Defect Leads to Massive Recall

At least once a month for years, we have gotten calls from someone complaining about malfunction of an airbag in a motor vehicle collision. Usually it is a matter of an airbag not deploying in a situation in which it was never designed to deploy.

Most front airbags are designed to deploy in a direct frontal impact, and side air bags are generally designed to deploy in direct side impact. There are variations between models as to whether an oblique angle impact would cause an airbag to deploy, but generally a sideswipe collision will not activate an airbag.

Moreover, most people making those calls are upset but no one had a catastrophic injury in the wreck. The expense and difficulty of automotive product liability litigation is such that the cost-benefit analysis seldom justifies filing suit unless there is a death or catastrophic injury.

But now there is a widespread problem with airbags in a wide variety of vehicles deploying when they should not, potentially causing serious injuries to vehicle occupants.

Since 2008, there have been six rounds of recalls- the most recent involves 7.8 million vehicles, more than 100 models and 10 manufacturers, and focuses on vehicles equipped with defective airbags made by a Japanese supplier, Takata.  The National Highway Traffic Safety Administration (NHTSA) urges all owners of cars listed on the recall to get their airbags fixed immediately.

                “The airbags are made by Japenese supplier Takata. The bags have faulty inflators than can rupture and send metal fragments flying out. At least four people have died in accidents related to the defect. A hot climate appears to trigger airbag failures, so the recalls are considered especially urgent for people living in Florida, Hawaii, and U.S. territories.”

Safety advocates say at least four people have died from the problem and there have been multiple injuries. They also say more than 20 million vehicles in the U.S. are equipped with the faulty air bags. Takata knowledge of the defect, reportedly, goes back to at least 2004 when Honda, the first manufacturer to launch a recall, received the first injury claim from an exploding “inflator” and reported it to the supplier.

The NHTSA warned people whose cars have been recalled during the past two years for faulty air bag inflators to take them to dealers right away. The inflators are made by Takata Corp., a Tokyo-based supplier of seat belts, air bags, steering wheels and other auto parts. So far, automakers have recalled about 12 million vehicles worldwide because of the problem.

“This message comes with urgency,” NHTSA said in a statement. The agency has been investigating the problem since June, and has cited reports of six inflators rupturing, causing three injuries.

Passenger or driver air bags or both could be affected depending on the vehicle. Toyota issues the latest recall Monday, covering passenger air bags in 247,000 older model vehicles including the Lexus SC, Corolla, Matrix, Sequoia and Tundra.

Like many of the other recalls, the Toyota recall includes areas that have high absolute humidity – south Florida, Puerto Rico, Guam, and the Virgin Islands to name a few. Toyota in documents posted to the NHTSA website, said the company and Takata are still trying to pinpoint the cause of the rupture and to gauge the influence of high absolute humidity.

Absolute humidity is a measurement of water vapor in the air, while relative humidity, which is commonly in weather reports, measures air moisture content relative to the air temperature.

Toyota has been testing the air bags, and it found an unusually high incidence of inflator failures along the coasts, according to spokesman John Hanson. The investigation continues and the recall could be expanded to more areas, Hanson said.

Toyota says it knows of no crashes or injuries from the cars it has recalled. Neither Toyota nor NHTSA could say exactly how far inland the recall area goes or what states it covers.

Last week, two U.S. senators questioned why the safety agency is allowing the recalls to be done on a regional basis because cars could be driven to, or people could move to the high-humidity states.

They also cited the May 27, 2009, death of 18-year-old Ashley Parham of Oklahoma City. She was driving a 2001 Honda Accord across a high school parking lot in Midwest City, Oklahoma, when it hit another car. The air bag inflated and sent shards of metal into her neck, causing her death.

“Based on NHTSA’s open investigation, the agency will take appropriate action, including expanding the scope of the recall if warranted,” an agency statement said.

Takata has said it recognizes the critical role that government plays in public safety, and it is supporting safety regulators.

“Takata identified two processes that, taken together, could have resulted in elevated moisture levels in the propellant. Elevates propellant moisture levels, when coupled with thermal cycling in automoviles, could cause the propellant density to decline over time and such a decline in density could lead to overly energetic combustion during deployment of the air bag.”

However, Takata’s claims that the problem was confined to problems of one particular propellant machine that compressed a powder mixture into a tablet, during a brief, discrete period of time, have proven to be false.

Takata also claimed that no manufacturer other than Honda would be affected even though the propellant chemistry had been used in over 100 million airbags over the previous decade. Takata claimed Honda’s inflator design was not significantly similar to that of other Original Equipment Manufacturers (OEMs) for which Takata supplied airbags. Takata reported to the NHTSA that a small number of bags, produced for another unidentified manufacturer during that time could not be defective because they had a different production process and better control systems.

In a statement made on February 19, 2010 Takata upheld that the problem had been fixed due to its “continuous improvement policy,” involving “numerous process improvements during this period, many of which improved the quality of the propellant and the inflators and enhanced the consistency of inflator performance.”

Faulty recordkeeping and poor recall notification procedures are other factors advancing the death and injury count. In numerous reports to NHTSA, Honda identified different impediments to identifying the correct recall population, ranging from confusion over which components and processes were confirmed as being within regulation, to a failure to trace defective airbags used as replacement parts.

Ken Shigley is an Atlanta-based personal injury and wrongful death trial lawyer. He is past president of the State Bar of Georgia, chair-elect of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a board certified civil trial attorney of the National Board of Trial Advocacy.