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.


An approaching driver’s view of a tractor trailer pulling from breakdown lane into traffic in the dark

A tractor-trailer pulled from the highway shoulder in front of an approaching SUV on I-95 in Jasper County, SC, just north of Savannah, about 9:30 PM Wednesday night, August 8, 2018. The impact killed Raymond Jackson, Jr., driver of the approaching vehicle, a 1999 Ford Expedition. This happened about 3 miles north of the Georgia-South Carolina line, between the Savannah River and Hardeeville.

Initial news reports  of this crash involving vehicles emerging from Georgia do not identify

A chain reaction crash involving four big rig tractor trailers on I-285 near Camp Creek Parkway in south Fulton County, GA, killed a woman in a passenger car on June 19, 2018.

According to the Georgia State Patrol, A tractor-trailer was traveling northbound when it struck three other big rigs and the rear of a car, pushing the car underneath another tractor-trailer.

News photos showed that at least one truck’s cab was badly crushed and the roof of the passenger car was caved in.

In addition to the one fatality, five others were taken to Grady Memorial Hospital. It

ABCO Transportation, Inc., a refrigerated freight haulder based in Dade City, Florida, has had for several years an unsatisfactory record of unsafe driving violations with the Federal Motor Carrier Safety Administration. When a trucking company has a record as bad as ABCO, often there are issues of management turning a blind eye to safety, in my experience as a trucking trial attorney.

ABCO’s poor safety record culminated July 2012 when an ABCO truck driver ran a red light on Thornton Road in Douglas County, Georgia, causing a tragic crash that took the lives of two AutoTrader.com employees and injured

As a trial attorney handling catastrophic injury and wrongful death cases in Atlanta, I continue to see how jurors are able to separate the wheat from the chaff and do substantial justice in serious cases.  Frivolous and trivial cases, by contrast, don’t carry much weight with jurors.

This week in the State Court of Fulton County, a jury returned a wrongful death verdict against a drunk driver who killed a young mother, in the amount of $5,830,000 ($5,115,000 for the value of life and $715,000 for her  suffering before death).

Since the nineteenth century, under Georgia law the measure of damages for wrongful death has been the full value of the life of the deceased. This is consistent with our prevailing respect for the sanctity of human life. 

The economic component of the value of the life includes a projection of lifetime income and benefits, with no deduction for living expenses or income taxes, value of services, etc.).   This figure is be reduced to present value under Georgia wrongful death law, often based on the testimony of an economist or accountant.

The intangible aspect of value of the life includes factors such as the enjoyment of the experience of living and relationships with loved ones. In the case of the death of a young parent, the jury may consider the value to the mother of being around to raise and nurture her children and to grow old with her husband.

The full value of the life is determined only by the enlightened conscience of an impartial jury based on the evidence presented. Under Georgia law, there is no arbitrary formula or cap on the value of a human life. 

The decedent’s husband, parents, siblings, etc., testified about various aspects of the value of her wonderful life. My colleagues Charles McAleer and Nelson Tyrone did a fine job of putting it all together.

As a trucking safety attorney in Georgia, I sometimes find trucking companies trying to disown their driver’s safety violations.

The Federal Motor Carrier Safety Regulations, which are designed to protect safety of members of the public, clearly require trucking companies to require their employees to obey the driver regulations.

49 C.F.R. § 390.11 requires: “Whenever . . . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.”

In order to use Federal Motor Carrier Safety Regulation violations to support liability or punitive damages, it is essential to establish that the violation was a proximate cause of the crash.

Some judges don’t easily grasp the obvious connection between extreme driver fatigue and driver error. For example, in one Georgia case the court failed to recognize driver fatigue and extreme
hours of service violations as proximate causes of a crash, limiting proximate cause to a stop
sign violation only.

Therefore, one must consider the most effective methods to explain the connection between violation of safety rules and the predictable results.

With adequate support to educate the judge and build the record for appeal, Georgia law on causation is favorable.

A legal or proximate cause of injury, damage, loss or harm is any act or omission that is a contributing factor in bringing about the injury, damage, loss or harm.

What amounts to proximate cause is undeniably a jury question and is always to be determined on the facts of each case upon mixed considerations of logic, common sense,justice, policy, and precedent.

It is axiomatic that questions regarding proximate cause are `undeniably a jury question’ and may only be determined by the courts `in plain and undisputed cases.

The framers of the U. S. Constitution recognized in 1787 that no individual state could adequate deal with regulation of interstate commerce, so that was made one of the core functions of the federal government along with national defense and a few others.

The Supremacy Clause of the Constitution provides that any state law that conflicts with a federal law is "without effect."

Federal law displaces state law where (1) Congress expressly preempts state law; (2) congressional intent to preempt is inferred from the existence of a pervasive regulatory scheme; or (3) state law conflicts with federal law or interferes with the achievement of federal objectives.

The Supremacy Clause invalidates state laws that "interfere with or are contrary to" federal law. “Federal regulations have no less pre-emptive effect than federal statutes.”

In passing the Motor Carrier Act, Congress expressed its clear intent to establish a floor rather than a ceiling – minimum safety standards, 49 U.S.C. § 31136, and minimum financial responsibility requirements, 49 U.S.C. § 31139. The express purpose of the Federal Regulations is to protect the traveling public by imposing financial responsibility on motor carriers.

The Federal Motor Carrier Safety Regulations implement the act, providing in 59 C.F.R. § 392.2 that: "[e]very commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Highway Administration imposes a higher standard of care than that law, ordinance or regulation, theFederal Highway Administration regulation must be complied with.

In addition, 49 C.F.R. 392.14 provides, “if a regulation of a Federal Highway Administration imposes a higher standard of care than that law, ordinance, or regulation, the Federal Highway Administration must be complied with.” Thus, the Regulations are intended to preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier’s employee while operating an interstate carrier vehicle.

Safersys.org is a web site maintained by the Federal Motor Carrier Safety Administration. Through this site, one may obtain extensive basic information about motor carriers within moments after learning of the potential case. A “Carrier Snapshot” search includes the company’s legal name, address, phone number, USDOT number, numbers of power units and drivers, inspection and crash data, “Safestat” safety rating, and a link to a report on the first layer of insurance coverage and a blanket agent for service of process.

One may also request through this site, for a $20 fee, a more detailed Company Safety Profile. One may also send a Freedom of Information Act (FOIA) request to the Federal Motor Carrier Safety Administration for all documentation regarding the trucking company.

When a significant motor carrier collision happens, the pattern response is for the truck driver to immediately call the dispatcher, who calls the risk manager even at home in the middle of the night, who in turn calls in a “rapid response team” – a defense lawyer in the state where the crash occurred in order to claim work product privilege for anything that is done, and an investigator. The investigator, and sometimes the defense lawyer, may arrive
at the accident scene before the debris is cleared.

However, just because there is a defense lawyer on the scene, do not assume that the defense investigation is cloaked by work product privilege.

In this environment, critical evidence may be “lost” and the course of police investigation may be affected. They may then make sure that any harmful electronic evidence is deleted within a matter of days, and that documents are not retained a moment longer than required by law, if that long.

Driver logs may go missing, or may be reconstructed. Geopositional data downloads may be modified. In addition, police reports are often prepared without the benefit of input from people in the smaller vehicles, who were killed or seriously injured, while the truck driver and the company’s investigator are able to tell their story to the investigating officer. Without supportive independent eyewitnesses or unequivocal physical evidence, many cases may be lost at the starting line.

As lawyers for individuals and families harmed in trucking crashes, we too often get our first call about the case after much of the evidence has been destroyed. However, when we are called soon after the event, we seek to launch our own  rapid investigation.