February 2008

There was a potentially significant decision on February 19th in the Georgia Court of Appeals. It involves two of the most notriously scandalous avoidances of accountability in metro Atlanta — taxi cabs and the City of Atlanta — as well as the notoriously tough area of DOT liability for road design and maintenance.  I’m confident that my brethren and I will be diagraming the sentences in this decision for some time to come.

The wrongful death case arose when a taxicab in which the decednt was riding spun out of control on a wet overpass and collided with a tree. The Court held that the trial court erred in granting summary judgment to Greg Shepard, a Vehicle for Hire Inspector employed by the city of Atlanta, who inspected the taxicab on the day before the deadly accident. Shepard was not immune from liability, because his position as an inspector required him to enforce all state codes; O.C.G.A. § 40-8-74 (e) (1) mandates a minimum tread depth of 2/32 inch for tires on passenger vehicles; the evidence showed that the taxicab had no tread on its rear tires; Shepard was required to check the minimum tread depth on the taxicab’s tires and he was required to complete an inspection checklist before he could pass the taxicab as safe, which he did not do, since he merely wrote pass on the front of the form without checking any of the boxes indicating whether the taxicab’s exterior and interior parts, including the tires, were functioning properly. Since Shepard’s required tasks were simple, absolute and definite, they were ministerial, not discretionary.

The Court also held that the trial court erred in granting the Georgia DOT’s motion to dismiss, based on sovereign immunity, since the plaintiff alleged claims against the DOT for negligent maintenance or design of the roadway where the collision occurred. The plaintiff asserted that the DOT was repeatedly notified that the slope of the road’s shoulder was too great, trees were too close to the road and water accumulated on the road due to inadequate drainage; expert evidence showed that the DOT failed to follow generally accepted design, construction and maintenance practices, with regard to the roadway and adjacent areas.   DOT moved for dismissal under OCGA § 50-21-24 (8) and (9), which involve inspection and permitting exceptions, not subsection (10), which involves construction plans or design. However, the Court affirmed the grant of summary judgment to the city of Atlanta on Heller’s nuisance claim, since the city had no notice of a dangerous condition within the meaning of a nuisance; i.e., no evidence showed that taxicabs with insufficient tire tread routinely passed city inspections and were involved in injury causing collisions.

As an attorney in Atlanta handling catastrophic injury cases, I often see problems with the "sticker price" on medical and hospital bills significantly exceeding the "reasonable and customary" amounts paid by medical insurers, and occasionally huge gaps between the bills and the available coverage. There are no easy solutions, so we just work it out on a case by case basis for our clients. The following video report from the Wall Street Journal is enlightening.

Wednesday morning, 2/20/08, a tractor trailer on I-285 failed to stop for slowing traffic, struck a car, and pushed it into the rear of another tractor trailer. This happened near the intersection of I-20 where there is often a long line of tractor trailers backed up waiting to transition from I-285 to I-20.  The driver of the car was killed. See the Atlanta Journal Constitution article by Mike Morris.  Proper speed and space management, and maintenance of driver alertness, are essential to safe operation of interstate motor carriers. 

The handling characteristics of a bobtail tractor (operating without a trailer) are far different from a tractor-trailer combination, especially on wet pavement. Here’s a test I happened to find on Youtube. The results of braking a bobtail tractor on wet pavement are pretty predictable.

 

Saturday morning, at the request of a patient’s family  who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling’s attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs.  The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital.  I don’t know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome "award."

Sometimes well-meaning people try to say that it was "the Lord’s will" or "the Lord took her" when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It’s wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

Here’s an intriguing video about the problem of side underride and the lack of side underride guards on trailers in the US. In viewing this, imagine what happens when a driver comes upon a tractor-trailer pulling out of a side road or driveway at night at highway speed. I showed this at a trucking litigation seminar in New Orleans last Saturday, and several people asked where they could get copies.
 

As an attorney in Atlanta, Georgia, with a practice heavily concentrated on trial of large truck and bus crash cases, I represent injured truck drivers (and their widows) almost as much as occupants of  other vehicles.  Posts about truckers violations of Federal Motor Carrier Safety Regulations sometimes give folks the mistaken impression that I am condemning truckers as a group.  However, I recognize that most truck drivers are hard working professionals who are conscientious about quality and safety.  I also recognize that they are often placed in untenable situations by the demands of shippers and carriers.

The trucking collision data consistently show that about 80% of fatal collisions involving large commercial vehicles are caused by the actions of other drivers on the road, such as those tho erratically dart in front of a tractor trailer.  When that happens, and a truck driver is seriously injured or killed, it is important to review all insurance information, including Uninsured / Underinsured Motorist coverage in the trucking company’s insurance policy. If that insurance policy includes UM coverage equal to the liability limits, that may be enough to provide substantial help to the trucker and his or her family.

I’ve spent the last few  days in New Orleans at the American Association for Justice Litigating Truck Collision Cases seminar.  I spoke on Federal Motor Vehicle Safety Standards (FMVSS) in relation to large truck products liability cases, debunking misconceptions about those minimal and largely outmoded standards.

Since I know opposing counsel read my blog, I won’t go into a lot of detail about the new ideas I picked up in New Orleans.  Suffice it to say that an excellent faculty of lawyers, technical experts and trial consultants from across the country made the trip worthwhile. Information exchanged informally over dinner with other lawyers trying these cases from coast to coast was nearly as valuable as the information shared by speakers.