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Archive for the ‘Transportation’ Category

Georgia Employers Face Increased Exposure to Claims of Negligent Hiring, Training, Retention and Entrustment for Negligent Conduct of Their Employees

Posted on: November 5th, 2020

By: Andy Treese and Jake Loken

The Supreme Court of Georgia has held that the state’s apportionment statute abrogates the “respondeat superior rule,” a decisional rule of law that had been in effect since 1967. As a result, employers now face increased exposure to liability on independent theories of negligent hiring, training, entrustment, and retention, even where they have admitted that their employee was in the course and scope of his employment at the time of a collision or other injury.

The old respondeat superior rule. Under the old respondeat superior rule, when an employer defendant in Georgia admitted its employee was in the course and scope of employment at the time of a plaintiff’s injury, and there was no valid claim for punitive damages, direct claims against the employer for negligent hiring/training/retention/supervision were subject to summary judgement. This encouraged employers to make early acknowledgements of vicarious liability, and avoided the need to unnecessarily bifurcate trials to avoid improperly prejudicing a defendant employee by admitting evidence of his prior conduct, while still allowing plaintiffs to put cases of truly egregious employer misconduct to a jury.

Georgia’s Apportionment Statute. In 2005, the Georgia legislature enacted O.C.G.A. § 51-12-33 (“the apportionment statute”), a centerpiece of a larger body of tort reform legislation. The statute requires a finder of fact to determine the plaintiff’s total damages; to determine the percentages of fault of each party or non-party at fault; and to apportion the damages amongst the persons who “are liable” according to their percentage of fault. The rule in Georgia remained, however, that plaintiffs were barred from recovery if they were 50% or more at fault for their injuries.

Quynn v. Hulsey. A plaintiff’s dreaded “50/50” verdict is precisely what happened in Quynn v. Hulseya case arising from an incident where a truck struck and killed a pedestrian who was trying to cross a street. The driver’s employer, TriEst, admitted the driver was in the course and scope of his employment, and the trial court, applying the respondeat superior rule, granted partial summary judgment to TriEst on claims of negligent entrustment, hiring, training, and supervision. At trial, the jury found that the plaintiff and driver were both 50% at fault – a finding which, under Georgia law, resulted in a defense verdict. The estate appealed, arguing the apportionment statute abrogated the respondeat superior rule and, as a result, TriEst should not have received partial summary judgment. The Georgia Court of Appeals affirmed in an unpublished opinion – possibly because it had already rejected the same argument in 2017. Hosp. Auth. v. Fender, 342 Ga. App. 13, 23 (2017).

The Supreme Court of Georgia granted certiorari and reversed, holding that a claim of negligent hiring, entrustment, training, or retention is a claim that the employer is “at fault” within the meaning of the apportionment statute for its own conduct, apart from the negligent conduct of its employee. As a result, the Court held, the respondeat superior rule is inconsistent with the plain language of the apportionment statue and must be abandoned.

If you have questions or would like further information, please contact Andy Treese at [email protected], Jake Loken at [email protected], or any other member of FMG’s Transportation Law Practice Group.

Many Drivers Don’t Appreciate Limitations of Driver Assistance Technologies

Posted on: September 28th, 2018

By: Wes Jackson

Pump the breaks, George Jetson! While car technology is quickly advancing towards autonomous vehicles, we aren’t there yet. Even so, a recent study from the AAA Foundation for Traffic Safety suggests many drivers overestimate the abilities of new driver assistance technologies, which could lead to unsafe driving habits.

The study examined drivers’ attitudes toward and interactions with “advanced driver assistance systems,” or ADAS. Anyone who has recently purchased a new car is likely familiar with many of the latest ADAS technologies such as forward collision warning, automatic emergency breaking, lane departure warning, lane keeping assist, blind spot monitoring, rear cross-traffic alert, and adaptive cruise control.

While the study found that most drivers trusted and used these ADAS features, it also revealed that most drivers do not appreciate their limitations. For example, only 21% of owners of vehicles with blind spot monitoring knew that such systems could not detect vehicles passing at a high rate of speed. Similarly, only a third of owners of vehicles with automatic breaking systems knew the systems relied on cameras and sensors that could be compromised by dirt or other debris.

What’s worse, some drivers with ADAS systems admitted to adopting unsafe driving habits in response to the new technologies. For instance, 29% of respondents to the study reported feeling comfortable engaging in other activities while using adaptive cruise control. Similarly, 30% of respondents admitted to relying exclusively on their blind spot monitoring system without checking their blind spots, and 25% of respondents admitted to backing up without looking over their shoulder when using a rear cross-traffic alert system.

These new ADAS technologies can certainly help motorists driver more safely. However, drivers should not succumb to the illusion that these new technologies made alert driving a thing of the past. Until we’re all flying around in autonomous space-age vehicles, be sure to keep your eyes on the road and always look twice before backing up or changing lanes.

The Transportation Law Team at Freeman Mathis & Gary, LLP is on the cutting edge of autonomous vehicle issues. If you have any questions about the AAA Foundation’s report or issues concerning autonomous vehicles, please contact Wes Jackson at [email protected].

Georgians: Hang Up and Drive

Posted on: May 9th, 2018

By: Wesley C.  Jackson

Beginning July 1, 2018, it will be illegal for Georgians to hold their phones while driving. The new law was signed by Governor Nathan Deal on Wednesday May 2, 2018.

How might this new law effect auto-accident litigation in Georgia? A motorist injured by a distracted driver must establish that the distracted driver acted negligently. Formerly, the injured motorist would have to convince a jury that the distracted driver’s conduct breached his duty to exercise ordinary care. But now, if a distracted driver violates the new hands-free law, he will be presumed to have breached this duty as a matter of law due to the doctrine of “negligence per se.”

When a defendant violates a statute and injures someone the statute was designed to protect, the doctrine of negligence per se shifts the burden of proof at trial from the plaintiff to the defendant. The plaintiff no longer needs to prove that the defendant acted negligently; instead, the defendant is presumed to have acted negligently unless he can show that he unintentionally violated the statute and otherwise exercised ordinary care.

So, if a driver causes an accident while on his phone and is convicted of violating the new hands-free statute, a plaintiff could argue that the defendant was presumptively negligent because the defendant violated a statute that was intended to protect other motorists from auto accidents caused by distracted drivers. The injured driver would still have to prove that the distracted driver’s negligence caused her injuries, but the bar for recovery will be lower if the distracted driver violated the new law.

Hopefully, Georgia’s new law will encourage drivers to keep their hands on the wheel and their eyes on the road. But when accidents (and lawsuits) occur, injured plaintiffs may have a new offensive strategy with the negligence per se doctrine.

If you have any questions or would like more information, please contact Wes Jackson at [email protected]. If you send Mr. Jackson an email, please do not do so while driving.

UPS Orders Tesla Electric Big Rigs – One Step Closer to Driverless Semis

Posted on: December 22nd, 2017

By: Wayne S. Melnick

Last month, Tesla Motors announced that it was taking its electronic vehicle technology one step further with the unveiling of the Electric Semi Truck .  If the numbers are to be believed, the Tesla Semi not only achieves 0-60 in five seconds (unloaded) by also reduces the cost of shipping from $1.51/mile to $1.26/mile.

Earlier this week, United Parcel Service announced it was going all-in on the Tesla Semi ordering 125 of the new units.   At an estimated cost between $150,000-$200,000/unit, that order could be worth as much as $25M.  (Yes, 25 Million Dollars).  If you’ve been following this story, this is not the end of the line, but rather, just the beginning. With that big an investment, it is clear that UPS and Tesla have their eyes on the future.  Electronic Trucks are just the first steps towards what is expected to the ultimate goal: Driverless Semis.

We will continue to keep watch of developments of this technology.  Needless to say, the idea of Driverless Semis raises all sorts of legal and insurance questions.  As such, it is important to stay on top of developments and FMG will continue to keep you informed as they occur.

If you have any questions or would like further information, please contact Wayne Melnick at [email protected].

Debate Over the ELD Mandate Intensifies

Posted on: October 6th, 2017

By: Parker M. Green

The debate over mandatory ELDs continues to intensify as the December 18th compliance deadline approaches. With less than 75 days until the deadline (FMG’s compliance countdown), some truck drivers are now resorting to desperate measures to voice their displeasure over the federal mandate. The best example occurred in Sacramento, CA earlier today. According to news reports, a line of commercial trucks formed a blockade across all lanes of traffic on Highway 99, which prevented other vehicles from getting around. Some of the truck drivers even completely stopped in the middle of Highway 99. The involved truck drivers call their protest “Operation Black and Blue,” which they describe as a nationwide effort by commercial drivers. It remains to be seen whether their form of protest spreads to other metropolitan areas and highways.

For additional information on the ELD mandate, please refer to the law journal article that Parker Green co-authored with fellow FMG attorneys Wayne Melnick and Matt Grattan here.  If you have any questions or would like more information, please contact Parker M. Green at [email protected].