Georgia Truck Accident Attorney Blog

Published on: November 26, 2008

Truck speeding on rain slick freeway with bad brakes caused fiery pileup in tunnel

A trucker speeding on a rain-slick expressway caused the fiery chain reaction in a tunnel on I-5 just north of Los Angeles last year. The location on I-5 is near my son’s college apartment, so I have been by it many times. However, the case also has a local angle in metro Atlanta.

According to a report from California Highway Patrol investigators, Jose Reyes, 29, was driving at least 65 mph in the rain when his truck veered left and crashed into a concrete median wall after driving through the tunnel. The posted speed limit for that stretch of road is 55 mph, according to a report by Jack Leonard of the Los Angeles Times.

The resulting chain-reaction behind him killed a 6-year-old boy and two adults, and injured 10 others.

The report concluded that Saia Motor Freight Line Inc. was responsible for maintenance of the truck, and that the right front brake of the truck was not in working condition.

Saia Motor Freight Line Inc. is based right here in Fulton County, Georgia, in an office park in the suburb of Johns Creek, Georgia. According to USDOT information, it has 4,339 drivers and 3,552 motor units. While it has a “satisfactory” safety rating, in the past two years it has had 9 fatal crashes and 96 crashes with injuries.

On the face of the LA Times article, there appear to be at least three violations of the Federal Motor Carrier Safety Regulations. I would bet there are more.
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Published on: November 26, 2008

Road Safe America promotes Drive Safer Sunday

By Ken Shigley

Today’s issue of the Atlanta Journal-Constitution includes an article by Steve Owings, who founded Road Safe America after his son was killed by a speeding tractor trailer on cruise control six years ago.

Having met Steve and learned of his motivation to make the roads safer for everyone, I’m just going to copy his article here in order to give his words wider distribution.

Big rig killed our son; drive safely on busiest traffic day

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Published on: November 26, 2008

Ohio trucker who was volunteer fireman killed in collision with Georgia fire truck

By Ken Shigley

A collision between a tractor trailer and a fire truck in Crisp County, Georgia, killed the Ohio trucker and sent a local volunteer fireman to a hospital last Saturday.

The Ohio trucker, 33-year-old Shane Alan Waters of New Madison, Ohio, was killed. Ironically, he was also a volunteer fireman back in Ohio.

The cause of the wreck was not immediately apparent in a report by Gabe Jordan in the Cordele Dispatch.

The fire truck was traveling from Arabi to Cordele for a training session. Since it apparently was not on an emergency call, the state law that requires yielding to an emergency vehicle using lights and sirens would not apply.

County governments in Georgia waive sovereign immunity to the extent of motor vehicle liability insurance. A local government may also indemnify employees for negligent torts committed in the line of duty.
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Published on: November 26, 2008

Big rig crash in morning fog kills woman

By Ken Shigley

A tractor trailer driver going too fast to see his way through dense fog Monday morning in Fresno, California killed a young woman on her way to work.

According to a report by Jim Steinberg and Vanessa Colón of The Fresno Bee, a big-rig drive Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog. He struck a Ford Explorer, killing the woman inside.

At least two critically important provisions of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

Two California court cases have held that a trial court must instruct a jury on the federal “extreme caution” standard of care rather than the regular negligence standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires:

Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.

This case involves a 22-year-old truck driver. My hunch, based on experience in trucking cases, is that his employer checked to see that he had a CDL (Commercial Driver’s License, checked to see if he had any moving violatons in the past three years, and tossed him the keys. I seriously doubt that the employer made any efforts at all to assure that he understood and appreciated the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

As a result, an innocent motorist is dead and her family grieves.

The challenge facing an attorney handling such a case is often to educate judges who don’t even know that they are ignorant of motor carrier safety law. That is a continuing challenge as it requires getting a busy judge to focus on a body of federal law with which he or she may have great familiarity. Too many lawyers and judges think a tractor trailer crash is “just a big car wreck” and fail to recognize the legal and technical issues that must be considered.
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Published on: November 25, 2008

Truck wreck kills three in hazardous weather

By Ken Shigley

In my trucking litigation law practice, I all too often see fatal truck accidents that happen in bad weather Despite a federal safety regulation requiring “extreme caution” in hazardous weather, and instructions in the Commercial Drivers License Manual to slow down by at least one-third, truckers under economic pressure from employers, shippers, and sometimes their own creditors, too often speed ahead through rain and snow.

The most recent such crash in the news was yesterday on I-81in Virginia’s Shenandoah Valley, a road I know well.

It happened about 11:30 a.m. near New Market, Virginia. The road was slickened by snow. A big rig operated by Jose Alberto Sarmiento of Texas, hit several vehicles before rear-ending of a Ford Escort, killing three members of a Virginia family.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

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

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

Every reported case that addresses the issue agrees that it is reversible error for a trial court not to instruct a jury on this “extreme caution” standard.

In Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001), a tractor trailer sped through blowing snow until striking another tractor trailer. The trial court denied a request to charge on the “extreme caution” standard under 49 C.F.R.§ 392.14, instructing the jury instead on the state standard of ordinary negligence. The appellate court reversed, holding that the trial court should have charged on the higher federal regulatory standard rather than the lower standard provided by state law. The same decision was reached in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

The Minnesota Supreme Court in George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

In Kentucky, Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49 C.F.R.§ 392.14 rather than jury instructions. However, the court recognized that the Federal Motor Carrier Safety “regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.”

The Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty created by 49 C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident. The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.
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Published on: September 24, 2008

Florida truck driver on cell phone hits school bus, kills child

By Ken Shigley

A Florida truck driver admitted that he was on his cell phone yesterday when he slammed into a school bus, killing a 13-year-old student. According to reports, the school bus, which had stopped to let children off , had its warning lights on and stop signs out. The truck failed to stop for it and rammed the school bus forward 294 feet.

See our recent posts on cell phone distractions and the absence of seat belts on busses.
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Published on: September 23, 2008

Trucking companies recruiting displaced auto workers. Are investment bankers next?

By Ken Shigley

Over the road truck driving is a tough job that a lot of folks find less desirable than construction jobs and other work that allows them to be home every night. A couple of years ago, when the economy was better, I wrote about the shortage of truck drivers that led trucking companies to improve benefits and recruit nontraditional sources of truck driving labor such as women, retirees and especially Hispanics.

Now, however, with the economy in the tank, the trucking industry is systematically recruiting displaced auto workers.

Maybe next trucking companies will start recruiting displaced investment bankers on Wall Street who will be hard pressed to find corporate jobs in finance. Anybody who can handle a trading desk should be able to handle the cab of a tractor trailer.
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Published on: September 21, 2008

Recent trucking accident jury verdicts

By Ken Shigley

Here’s a roundup of recent news stories about truck accident jury verdicts around the United States:

– $87 million in Dallas, Texas, for a man paralyzed in a wreck in a U-Haul truck had faulty emergency break and worn down gears.

– $36.3 million ($23.1 million compensatory damages, $13.5 million in punitive damages) in Phoenix, Arizona, for death of father of 8 who was killed when a tractor trailer drove 65 mph across three sets of rumble strips designed to warn of an approaching stop sign, ran the stop sign, and crashed into his SUV. The truck driver’s logs, which are required by federal regulations to document compliance with hours of service rules, were “lost.” The truck driver had no explanation why he failed to slow down. The jury apparently figured out that the trucking company “lost” the driver logs to conceal a pattern of violating fatigue prevention regulations, as it awarded $13.5 million in punitive damages on top of the $23.1 million in compensatory damages.

– $29.4 million for wrongful death and personal injury in Orange County, NY. The crash occurred on Jan. 25, 2002, when a freight container on a northbound flatbed trailer smashed into the bottom of the Pleasant Hill Road overpass. A family SUV en route to a ski vacation swerved to avoid the wreckage of the exploding container and was broadsided by another tractor-trailer. The father in the SUV suffered fatal internal injuries and the teenage daughter was also injured.

– $20.1 Million verdict in Clayton County, Georgia, for wrongful death of a 62 year old school teacher who suffered broken ribs when he was rear-ended by an electrical supply truck while stopped at a red light. While hospitalized he developed complications, aspirated and died.

– $11.23 million verdict in Nebraska for man struck by tractor trailer in dense fog on icy interstate highway, reduced by 20% for comparative negligence.

– $5.64 million verdict in El Centro, California in case where farm truck ran stop sign and struck family minivan. A 15 year old girl in the van suffered facial avulsion degloving (that is, the flesh of her face was torn off), and several fractures to her face and skull.
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Published on: September 21, 2008

Accident litigation increasingly focuses on cell phone and text messaging distraction issues

By Ken Shigley

As a “seasoned” Georgia trial lawyer, I’ve seen considerable evolution of thinking about safety issues. When I was a young Assistant District Attorney, we occasionally prosecuted DUI cases but still treated them lightly, still laughing at bad jokes about drunks. Then our consciousness was raised by news stories about carnage caused by drunk drivers. Judges, prosecutors and legislators rightly began to take drunk driving more seriously. The term “designated driver” was not in the vocabulary when I was in college, but it is assumed as a necessity in my kids’ generation.

When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.

Now we learn that the train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts. This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.

Current state laws about cell phone use and text messaging while driving include:
* Handheld cell phones: California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
* Text Messaging: Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
* Novice Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
* School Bus Drivers: In 16 states and the District of Columbia, school bus drivers are prohibited from all cell phone use when passengers are present, except for in emergencies.
* Other rules: Some cities, such as Phoenix and Detroit, have cell phone laws, but nine states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.

In the wake of the LA commuter train tragedy, my hunch is that legislators in states around the country will pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving. Most any call phone user who does not now have a Bluetooth or other hands-free device in the car will do so within the next couple of years.

In auto and truck accident litigation, we have already become even more diligent and aggressive about discovery of cell phone and text messaging records. With heightened sophistication about electronic discovery, this will be an increasingly significant factor in lawsuits.

There are at least three potential uses of cell and text evidence:

1. The defendant’s cell phone and text usage while driving may be considered “conscious indifference to consequences” sufficient to support an award of punitive damages, similar to drunk driving.

2. The plaintiff’s cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.

3. If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer’s business, then the employer and its insurance policy may be drawn into the case.
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Published on: September 19, 2008

Bus seat belt legislation stalled again, 40 years after NTSB first recommended seat belts on buses

By Ken Shigley

On March 2, 2007, a tour bus carrying the baseball team from Bluffton University in Ohio crashed on an Atlanta freeway. I’ve been one of the team of attorneys in Ohio and Georgia working on representation of the team members.

One of the issues raised has been the lack of seat belts on buses in the United States.Some of the passengers were killed or seriously injured when ejected from the bus. The National Transportation Safety Board determined that contributing to the severity of the accident was “the motorcoach’s lack of an adequate occupant protection system.” Similar tragedies have occurred elsewhere around the country in recent years.

While the same bus purchased almost anywhere else in the world would have belts in all passenger seats, they are not typically found on buses in the U.S. because our federal regulations do not require them.

In 1968 when the National Transportation Safety Board first recommended that seat belts be required on all buses. Decades of deaths – many occur as passengers are tossed about and ejected from buses have led to decades of study and discussion, but no law.

In the wake of this tragedy in Georgia, as well as similar incidents in Texas, legislation was introduced in Congress to require passenger seat belts in tour buses in the United States. Last winter, U.S. Sens. Kay Bailey Hutchison, R-Texas, and Sherrod Brown, D-Ohio, introduced a bill to give safety proponents just what they wanted – a congressional end-run around the long-stalled seat-belt debate. They co-authored a bill calling for seat belts for passengers on new and old charter buses, and safety glass and stronger roofs on new buses. U.S. Rep. John Lewis, D-Georgia introduced similar legislation in the House that would require seat belts, not just more studies.

However, as reported in an excellent article by Michael Lindenberger in the The Dallas Morning News, the chances of passage this year are fading due to strong opposition from the powerful lobby for bus operators. Lindenberger’s article reports:

Ms. Hutchison and Mr. Brown submitted their bill Nov. 8. On Nov. 20, a political action committee for the American Bus Association sent a check for $1,000 to U.S. Rep. Bill Shuster, R-Pa. By early December, Mr. Shuster had his rival Bluffton University Motorcoach Safety Act before a House committee. He received another $1,000 early this year from the same PAC, and $1,000 more in June from the United Motorcoach Association.

“We welcome the Shuster bill because it calls for the most sweeping research and data collection in motor coach industry history,” American Bus Association president and CEO Peter J. Pantuso said in a statement issued shortly after it was introduced.

The article goes on to explain at length the backroom machinations by which the bus industry lobbyists have continued to manipulate the process forty years after the NTSB first recommended requiring passenger seat belts on buses.

As I deal with evidence of the carnage in the Bluffton bus crash case, where bright young college athletes died horrific deaths that would have been prevented by something as simple as a seat belt and safety glass on the side windows to prevent them from being ejected from the bus, I marvel at the determination of the industry to block even the simplest safety measures for four decades.
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