Why it is important to immediately hire a real trucking trial attorney after a catastrophic truck crash

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Ken Shigley is  a board member of the Academy of Truck Accident Attorneys, former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group, and a Certified Civil Trial Advocate of the National Board of Trial Advocacy.

Mr. Shigley is 2019 recipient of the Tradition of Excellence from the State Bar of Georgia General Practice and Trial Section. 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 brainneckbackspinal cordamputation 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 has served as chair of the Institute for Legal Education in Georgia (2012-13),  State Bar 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 and father of two adult children who are happily married.

Why it is important to immediately associate a trucking litigation specialist when you are called about a catastrophic truck crash

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 board member of the Academy of Truck Accident Attorneys, former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group, and a Certified Civil Trial Advocate of the National Board of Trial Advocacy.

Mr. Shigley is 2019 recipient of the Tradition of Excellence from the State Bar of Georgia General Practice and Trial Section. 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 brainneckbackspinal cordamputation 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 has served as chair of the Institute for Continuing Legal Education in Georgia (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. Ken is a widower. His two children are married and own their own.

Death by decapitation when big trucks park on the roadside

Rear underride crash test

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 and Trial Section. He is a past president of the State Bar of Georgia (2011-12), past chair of the State Bar’s Tort & Insurance Practice Section 1994-95), past chair of the Georgia Insurance Law Institute (1994), past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section (2015-16), 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, 2010-2019). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation 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.

May a law firm hijack a competitor’s name in Google Ad Words?

Recently it came come to my attention that whenever anyone Googled my name in the mobile version of Google, the first thing that up was ads for competitors who had purchased my name in Google Ad Words®.  After I asked several law firms that had used my name in their Ad Words® advertising to immediately stop, their ads disappeared from searches in my name.

The only remaining company that appears to target my name in Google Ad Words® is Fasthelp.com, a website of uncertain provenance but with an Atlanta phone number, which advertises for unidentified lawyers. I will find out who is behind it, and I will file a Bar grievance against any lawyer who is behind that anonymous website for violation of Georgia Rules of Professional Conduct 7.1(a) and 8.4(a)(4).

This conduct is both unethical and a violation of federal laws.

In the case of Pensacola Motor Sales v. Eastern Shore Toyota, LLC, 2010 WL 3781552 (N.D. Fla., Pensacola Div, decided Sept. 23, 2010), the court strongly disapproved unauthorized use of a competitor’s name in domain names and “ad words” to divert internet traffic. The court held that a complaint of an auto dealer’s misappropriation of the name of a competitor presented genuine issues of fact for jury determination regarding:

  • False advertising in violation of he Lanham Act, as codified in 15 U.S.C. § 1125(a). To establish a false advertising claim under § 1125(a), a Plaintiff must demonstrate:

    “(1) the ads of the opposing party were false or misleading, (2) the ads deceived, or had the capacity to deceive, consumers, (3) the deception had a material effect on purchasing decisions, (4) the misrepresented product or service affects interstate commerce, and (5) the movant has been-or is likely to be-injured as a result of the false advertising.” North American Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1224 (11th Cir.2008).

The court held that actual confusion and damages are not required under § 1125(a). Capacity to deceive and likelihood of injury are sufficient. North American Medical Corp. at 1224.

  • Unfair competition, also under the Lanham Act. A showing of actual confusion is not essential to recovery in a claim for unfair competition. Bauer Lamp Co., Inc. v. Shaffer, 941 F.2d 1165, 1171 (11th Cir.1991). All that is required is proof of the likelihood of confusion. Id. at 1172. To determine if there is a likelihood of confusion in a trademark infringement action, the Eleventh Circuit considers seven factors: “(1) type of mark, (2) similarity of mark, (3) similarity of the products the marks represent, (4) similarity of the parties’ retail outlets and customers, (5) similarity of advertising media used, (6) defendant’s intent and (7) actual confusion.” Dieter v. B & H Industries of Southwest Florida, Inc., 880 F.2d 322, 326 (11th Cir.1989).  The court rejected the contention that use of a competitor’s identity in ad words did not constitute misrepresentation or cause confusion.

For lawyers to employ such misleading advertising tactics is also a violation of the Rules of Professional Conduct.  Rule 7.1(a) of the Georgia Rules of Professional Conduct states, “A lawyer may advertise through all forms of public media and through written communication not involving personal contact so long as the communication is not false, fraudulent, deceptive or misleading.” Rule 8.4(a)(4) provides, “It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to:. . . engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation.”

There does not yet appear to be a reported case or formal advisory opinion in Georgia on unethical hijacking of other lawyers’ names for Google Ad Words®. However, the North Carolina Bar has  determined that bidding on a competing lawyer’s name is unethical. A 2010 Formal Ethics Opinion #14 states:

It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer’s website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising.

It is probable that some lawyers and law firms have hired internet advertising agencies to manage their Ad Words® campaigns, unaware that their agents were leading them into ethical violations. Those who do employ such agencies should promptly take action to assure that they are not paying for Ad Words® that hijack the names and reputations of competitors. Those who persist in such unethical conduct should be prepared to face the consequences.


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.

 

When may a jury award damages for a decedent’s pain and suffering before death?

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 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 brainneckbackspinal cordamputation 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.

 

What is the law in Georgia on negligent entrustment of a commercial motor vehicle?

In catastrophic truck crashes that kill or catastrophically injury innocent people, the root cause of the tragedy is often not the momentary carelessness of a truck driver. Rather, the root cause is very often the systemic mismanagement by a company that puts behind the wheel of an 80,000 bomb a person who never should have been driving it. The driver may be a good guy who because inadequate training or experience, bad driving record, or physical incapacity was not well-fitted for the job. That can result in a claim for negligent entrustment.

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 (10th 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 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 brainneckbackspinal cordamputation 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.

 

 

What is the law in Georgia on negligent hiring and retention of a truck driver?

negligent hiring warning signOften in a catastrophic truck crash, the trucking company admits that the truck driver was negligent and was in the course and scope of employment. That is a smart tactic to attempt to focus all blame on two seconds of driver negligence rather than months or years of corporate conduct including negligent hiring of the driver. They may get by with it because of a Court of Appeals decision that bars claims for the company’s corporate negligence that are “merely duplicative” of respondeat superior agency liability for negligence of an employee. Hospital Authority of Valdosta/Lowndes County v. Fender, 342 Ga. App. 13, 802 S.E.2d 346 (2017), et cit.

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

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

Restatement of Torts 2d, § 213 states:

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

. . .

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

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

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

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

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

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

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

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


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 brainneckbackspinal cordamputation 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.

 

What is PTSD (Post Traumatic Stress Disorder) and why does in matter in highway crash cases?

When my father’s generation came home from World War II, many of them carried psychological scars about which they kept quiet. My parents married young, at 21 and 18, the week he returned from combat in 1945. My mother said that dad fought the air war over Europe every night in his sleep for at least a decade. The longer-term ramifications of that played out in many ways throughout his life. As he lay dying over six decades later, he began to tell me for the first time the war experiences that had haunted him most through his life.

Recently, I was with a nurse practitioner and a community mental health counselor during their impromptu discussion of the ramifications of PTSD that they see regularly in dealing with people on the front lines of medicine and mental health. They rattled off numerous examples of what they almost daily among veterans of Vietnam, Iraq and Afghanistan, and survivors of a variety non-combat traumas.

When dad came home from WW2, there was no widely accepted medical name for this condition. The terms “shell shock” and “battle fatigue” were used, but were generally limited to debilitating short term reactions to battle in wartime rather than the chronic reactions that can stretch out over decades.

The term PTSD was not given a standard psychiatric definition until 1980 when the American Psychiatric Association (APA) added PTSD to the third edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-III) classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.

PTSD through history

From cave men attacked by saber tooth tigers to victims of twenty-first century terrorists, humans have always suffered similar psychological outcomes of violence. Over 400 years ago, Shakespeare in “Henry IV” presaged the modern diagnostic criteria for Posttraumatic Stress Disorder (PTSD), describing the post-battle condition of a character:

Tell me, sweet lord, what is ‘t that takes from thee
Thy stomach, pleasure, and thy golden sleep?
Why dost thou bend thine eyes upon the earth,
And start so often when thou sit’st alone?
Why hast thou lost the fresh blood in thy cheeks
And given my treasures and my rights of thee
To thick-eyed musing and curst melancholy?
In thy faint slumbers I by thee have watched,
And heard thee murmur tales of iron wars
,
Speak terms of manage to thy bounding steed,
Cry “Courage! To the field!” And thou hast talk’d
Of sallies and retires, of trenches, tents,
Of palisadoes, frontiers, parapets,
Of basilisks, of cannon, culverin,
Of prisoners’ ransom and of soldiers slain,
And all the currents of a heady fight.
Thy spirit within thee hath been so at war
And thus hath so bestirred thee in thy sleep,
That beads of sweat have stood upon thy brow
Like bubbles in a late-disturbèd stream
;
And in thy face strange motions have appeared,
Such as we see when men restrain their breath

On some great sudden hest. O, what portents are these?
Some heavy business hath my lord in hand,
And I must know it, else he loves me not.”
Henry IV, Part 1 (2.3.39-67)

As a lawyer accustomed to dealing with clients who have been seriously injured or lost a loved one killed in a crash with a car or tractor trailer, the tendency is often to focus on the physical injuries – broken bones, back injuries, neck injuries, chronic pain, etc. It is easy to overlook the silent injury of Posttraumatic Stress Disorder (PTSD), or to confuse it with a traumatic brain injury.

What is PTSD?

PTSD is officially recognized as a mental health condition that some people develop after experiencing or witnessing a life-threatening event.  The diagnostic criteria are outlined in the Diagnostic and Statistical Manual of Mental Disorders, currently in the Fifth Edition, known as the DSM-5©.

In 2013, the American Psychiatric Association revised the PTSD diagnostic criteria and included PTSD in a new category Trauma- and Stressor-Related Conditions.  The diagnostic criterion for all of the conditions included in this new classification require exposure to a traumatic or stressful event.

The DSM-5 criteria for PTSD, ICD-9 309.81 or ICD-10 F43.10, for adults, adolescents and children over 6 years old are as follows (the DSM-5 has separate criteria for children 6 years and younger) 2:

Criterion A (one required) – the person was exposed to death or actual serious injury in the following way(s):

  • Directly experiencing the traumatic event
  • Witnessing the event as it occurred to others
  • Learning the traumatic event occurred to a relative or close friend
  • Indirect exposure to aversive details of the trauma

Criterion B (one required) – the traumatic event is persistently re-experienced in the following way(s):

  • Unwanted upsetting memories
  • Nightmares
  • Flashbacks
  • Emotional distress after exposure to traumatic reminders
  • Physical reactivity after exposure to traumatic reminders

Criterion C (one required) – avoidance of trauma-related stimuli after the trauma in the following way(s):

  • Trauma-related thoughts or feelings
  • Trauma-related reminders

Criterion D (two required) – negative thoughts or feelings that began or worsened after the trauma in the following ways:

  • Inability to recall key features of the trauma
  • Overly negative thoughts and assumptions about oneself or the world
  • Exaggerated blame of self or others for causing the trauma
  • Negative affect
  • Decreased interest in activities
  • Feeling isolated
  • Difficulty experiencing positive affect

Criterion E (two required) – trauma-related arousal and reactivity that began or worsened after the trauma in the following ways:

  • Irritability or aggression
  • Risky or destructive behavior
  • Hypervigilance
  • Heightened startled reaction
  • Difficulty concentrating
  • Difficulty sleeping

Criterion F (required) – symptoms last for more than 1 month

Criterion G (required) – symptoms create distress or functional impairment

Criterion H (required) – symptoms are not due to medication, substance abuse or other illness

When can PTSD appear after trauma?

Symptoms of PTSD usually begin within the first three months after the trauma, although there may be a delay of months, or even years, before criteria for the diagnosis are met. The DSM-5 refers to this as “delayed expression” with the recognition that while some symptoms typically appear immediately, others are often delayed.

Often a person’s reaction to trauma initially meets criteria for Acute Stress Disorder immediately after experiencing a traumatic event, but Acute Stress Disorder is distinguished from PTSD because the symptoms are restricted to a duration of three days to one month. The duration of PTSD symptoms varies with complete recovery within three months occurring in approximately 50% of adults. I had some of this after I was hurt in an explosion. For months, I looked away whenever there was an explosion on TV and was timid about lighting a gas grill. But that reaction passed.

However, some individuals remain symptomatic for more than 12 months and some for more than 50 years. There were times when an elderly neighbor stood in his driveway and openly wept about things he had experienced over sixty years earlier as a Marine on Peleliu and Iwo Jima.

Research indicates that PTSD is more prevalent in females and they experience PTSD for a longer duration on average than do males.   PTSD is associated with high levels of social, occupational and physical disability as well as considerable economic costs and high levels of medical utilization.

What are risk factors for PTSD in some people but not others?

Risk factors may increase a person’s chances of getting post-traumatic stress disorder (PTSD) compared to others who seem mentally unscarred by similar experiences Some of those risk factors include experiences of:

  • Long-lasting, never-ending trauma
  • Intense, severe trauma
  • Situations that put one at greater risk for harm, such as first responders or those in the military
  • History of substance, alcohol, or drug abuse
  • A loss earlier in childhood, such as abuse or neglect.
  • History of other mental health concerns or mental illness
  • Few friends or close family members they can rely on for emotional support
  • A history of mental illness within their family

How is PTSD involved after motor vehicle collisions?

Most people who are hurt in routine car and truck wrecks do not have PTSD. They may have some short term anxiety but nothing that rises to the level of PTSD. We have all had stressful conditions that we endured, sucked it up, and went on. When I was an insurance defense lawyer, I routinely sliced and diced psychologists who testified for exaggerated claims of PTSD that stretched beyond the diagnostic criteria.

However, there are vehicles crashes in which PTSD is a realistic issue. One study found that about 9% of motor vehicle crash survivors have symptoms of PTSD. Examples can include:

  • A crash survivor who witnesses the death and sees the mangled corpse of a parent, spouse or child in the wreckage.
  • A guy who was spun out of the line of impact when a tractor trailer ran over stopped traffic, so that he had minor physical injuries while everyone in the vehicle behind and in front of him was killed.
  • A person trapped wide awake with the lifeless corpse of a family member until they are discovered, and as first responders labored to extract them.
  • People who survived crashes in which they feared the immediate death of themselves or family members.

Any such experience in a car or truck crash is frightening, and it’s very common to experience a number of symptoms associated with PTSD, including:

  • Feelings of anxiety and increased heart rate when you’re faced with reminders of the event.
  • Hearing a horn honk or brakes screeching may automatically activate a fear response.
  • Because of the anxiety that often follows an MVA, it’s natural that you may want to avoid some situations or experience hesitation at times, such as driving on the highway.
  • Nervousness when driving or riding as a passenger, startling easily in traffic.
  • Being more watchful. You’re more likely to scan your environment for potential sources of threats (for example, people driving too fast).

While we are careful to avoid exaggeration of on minor degrees of PTSD symptoms in auto and truck crash cases, we are alert to the need to have clients evaluated when appropriate for more serious and long-term PTSD symptoms. Whether mild or severe, credible PTSD symptoms can be presented as part of mental pain and suffering in car and truck crash cases.

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


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 brainneckbackspinal cordamputation 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.

 

Georgia School Bus Injuries and Sovereign Immunity

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:

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


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 brainneckbackspinal cordamputation 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.

 

 

 

 

 

 

Food poisoning proof is focus of Georgia Supreme Court decision

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.

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.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 brainneckbackspinal cordamputation 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.