Study after study after study shows that football coaches should go for it on fourth down. The studies tell us that the statistical probability of success favor going for it rather than punting in most situations. However, coaches rarely make that call. Instead, coaches play it safe and punt.

Most coaches likely could provide justification for each decision to punt based on field position, score, time on the clock, etc. However, the real reason is likely more closely related to the fear of failure outweighing the probability of success. If the coach makes the call to go for it on fourth down with seven yards and fails, he will be lambasted by the media for the next week. Instead, the risk-adverse coach that makes the safe call will avoid scrutiny and ensure job security.

Litigation is not much different. Many lawyers settle (punt) rather than go to trial (go for it). Settlements have their time and place, but not every case is one to settle. Settlements provide control and certainty.  But, by their very nature, settlements demand compromise. The value in taking a case to trial is that it allows for an uncompromised presentation of our clients’ cases to a jury of their peers so that the jurors can award damages as defined by their sense of justice.  

The Cheeley Law Group prides itself in being ready, willing, and able to take your case to trial. We do not compromise or recommend settlement unless it is in our clients’ best interests. If you want an attorney who won’t punt and is willing to go for it with your case, give us a call.

Distracted truck drivers are a hazard on the highways.  Truck drivers are fatigued because their companies are overbooking drivers, not following appropriate sleep guidelines, or not following driver shift scheduling regulations.

Even worse, many drivers are not properly trained.  They are texting or watching videos on their mobile devices while driving.

TECHNOLOGY CAN HELP

There is hope that technology is providing solutions to distracted truck drivers.

The Lytx DriveCam provides cameras running inside the cab of the tractor and cameras watching the road ahead of the driver. Lytx claims that by videotaping truck drivers, this technology can reduce property damage and collisions.  Click here to view.

Also, autonomous breaking systems are the future of trucking.   Many manufacturers, such as Volvo, are utilizing autonomous breaking systems to sense vehicles in front of the truck and automatically stop the truck, avoiding a collision.  This video demonstrates the potential of this innovative technology. Click here to view.

THE 2015 GEORGIA SOUTHERN NURSING STUDENTS WRECK

Distracted truck driving is an issue that Cheeley Law Group addressed in the Georgia Southern Nursing Students cases.  Bryan County Superior Court jurors awarded Megan Richards $15 million for the traumatic brain injury she says she suffered in an early-morning crash on I-16 near Savannah. The wreck, which made headlines nationwide, occurred when a tractor-trailer driven at highway speed … rolled over the top of a Toyota Corolla carrying three students. The rig then struck the Ford Escape carrying Richards and three other classmates. The two cars, en route to a nursing clinical program, had been sitting in traffic stopped because of an earlier wreck.

No explanation was ever given for why the USXpress/Total Transportation tractor-trailer–operated by a company driver who had fallen asleep before and rolled a big rig–violently collided with a near-mile long line of stopped cars.

During Friday’s closing arguments, Cheeley reminded jurors of the driver’s prior crash and said evidence he was fatigued or using his cell phone just before the collision warranted a potential punitive award. “If he was looking at his cell phone, or if he was fatigued, and driving at 68 miles per hour, that is unconscionable in my book.…”

Say there’s an expert witness in your case who can’t attend trial. Should you pay extra to record his deposition by video to play to the jury? Absolutely. Jurors form opinions about witnesses based on how they look and talk, not just what’s written in a transcript. Small details matter, including how a person dresses, if he makes eye contact, and whether he fidgets in his chair. Facial expressions, squints, long pauses, and periods of silence simply can’t be written down in a transcript, but are essential to determine witness’ credibility.

Since 1996, the Georgia code permits recording of depositions by video without a court order. Georgia Code Sect. 9-11-30(b)(4). There are a few qualifications to the rule:

• The deposition must also be stenographically recorded (by a court reporter).
• The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.
• The deposing party must notify the deponent that the testimony will be recorded on video in the notice of deposition.
• The party taking the deposition bears the cost of reporting.

Hiring a videographer is an expense, but if you do plan to record the deposition by video, don’t scrimp. Find a videographer who is experienced with depositions. A professional background, excellent lighting, and a clear voice recording are essential. A poor quality video recording can potentially do more harm than good, as jurors are used to television-quality production.

You’re not alone if you’ve ever gotten behind the wheel while feeling drowsy, according to the National Sleep Foundation.  Of the 60 percent of adults in the US who say they’ve done it, around one third have actually fallen asleep at the wheel.  Driving while exhausted can have serious consequences, including injury to yourself and to others.

Sleep deprivation can have similar effects on your body as drinking alcohol.  Both drowsy driving and drunk driving make it hard to pay attention to the road and reduce your ability to make quick decisions. A drunk driver often drives slowly while trying to react, while a drowsy driver can nod off while still going fast, not braking or swerving if something happens in front of them.

Pull over, take a nap, or buy a cup of caffeinated coffee or a soft drink if you are driving while tired and you experience:

• Heavy eyelids
• Inability to remember the last stretch of road you just drove
• Constant yawning
• Bobbing your head
• Drifting from your lane

If you have another driver with you, switch drivers.  Driving during your most alert period of the day is a good idea.  These simple precautions will reduce risks to yourself and others.

Drivers as young as 15 can obtain a learner’s permit in Georgia. Now is a great time to talk to your teenager about the dangers affecting teenage drivers.  Did you know that 37,461 people died in motor vehicle crashes in 2016 alone?  Awareness and communication is essential to keeping your teenager safe behind the wheel.  Explain and enforce the rules of driving. Start by discussing these six major dangers affecting teen drivers:

DRIVE SOBER
In 2016, nearly one out of five teen drivers involved in fatal crashes had been drinking alcohol.  

BUCKLE UP
Roughly half of those 16 to 20 years old who died in motor vehicle crashes in 2016 weren’t wearing seat belts.

NO DISTRACTIONS
About 10 percent of all teen drivers involved in fatal crashes were distracted at the time of the crash.

NO SPEEDING
Speeding was a factor in about one-third of all fatal teen driver crashes.

PASSENGERS
Passengers can serve as another distraction for inexperienced teen drivers. Georgia restricts teenagers under the age of 18 from having passengers other than family members for the first six months of having a driver’s license.   In the second six months, the teenager may have no more than one passenger under the age of 21.  Thereafter, he may have no more than three passengers until he is at the age of full privilege, which is 18.

DROWSY DRIVING
People are most likely to feel drowsy between the hours of 2 and 6 p.m., which is generally when teens are driving home from school.

Click here to review the state laws surrounding teen drivers in Georgia. (https://www.ghsa.org/state-laws/states/georgia).

The Hands-Free Georgia Act was signed by Governor Nathan Deal on May 2, 2018 and took effect on July 1, 2018.

Here’s a brief overview of the new law, which can be found at Georgia Code Section 40-6-241:

• Drivers cannot “physically hold or support” a cell phone “with any part of his or her body”  while driving.  
• Drivers can only use their phones to make or answer calls by using speakerphone, an earpiece, a headphone device, or a smartphone watch.
• But even with hands-free technology, drivers cannot write or read any text-based communication while on the road. (Voice to text is allowed.)
• Drivers cannot watch videos when they are on the road.  (Navigational/GPS videos are allowed.)
• Drivers cannot record a video when they are on the road. (Continuously running dash cams are allowed.)
• Drivers may listen to streaming music that does not include videos, but the driver must activate the program while he is parked.
• Drivers cannot touch their phones to do anything to their music apps while on the road.
• The fine for a first conviction is $50.00 and 1 point assessed against the driver’s license.  The fine is $100.00 and 2 points for a second conviction and $150.00 and 3 points for three or more conviction.  The fines for a 2nd or 3rd offense only apply when date of a 2nd or 3rd conviction takes place within 24 months of the date of the first conviction.  First time offenders can have the charge dropped by showing the court they have obtained a device that allows them to talk on a phone with hands-free technology or devices.  
• EXCEPTIONS TO THE LAW: Reporting a traffic crash, medical emergency, fire, criminal activity, or hazardous road condition. 

A link to the complete law can be found at www.gahighwaysafety.org.  

Contact us if you have been hurt by a driver who was violating the Hands-Free Georgia Act.

In May, Gov. Deal signed SB407 into law. The legislation requires every Superior and State Court in Georgia to transition to mandatory eFiling in civil cases no later than January 1, 2019.  For cases filed on and after January 1, 2019 (or the court’s earlier adoption date), both attorneys and pro-se litigants (those not represented by an attorney) are required to electronically file new cases in all Superior and State Court in Georgia.

The fee structure for electronic filing will also change for cases filed on or after January 1, 2019.  Instead of paying a fee each time a party electronically files a document, there will be a one-time $30.00 fee for the first filing per party.  The fee structure for cases filed before January 1, 2019 will remain the same.

The new law allows any Superior or State Court to transition to mandatory eFiling at any time between July 1, 2018 and January 1, 2019.

When we at Cheeley Law Group meet with new clients, one of the first conversations we have with our clients relates to their obligation to preserve evidence that may be potentially relevant to their claims.  We have this conversation because Georgia law imposes a duty on parties to preserve evidence which may become necessary to a pending—or even contemplated—lawsuit. “Spoliation” is the legal term that refers to a party’s failure to preserve this evidence.  

Until recently, Georgia law was somewhat ambiguous as to a plaintiff’s obligation to preserve evidence as compared to a defendant’s obligation.  However, the Supreme Court of Georgia recently addressed this ambiguity in Cooper Tire & Rubber Company v. Koch, 303 Ga. 336, 336 (March 18, 2018) and held that plaintiffs and defendants have the same duty with regard to preserving evidence and that the duty to preserve evidence for either party “arises when that party actually anticipates or reasonably should anticipate litigation.”

In Cooper Tire, the plaintiff was the wife of a motorist involved in a single vehicle accident following a tire blowout on I-16. Id. at 336.  The motorist suffered serious injuries and lived for several weeks after the accident; however, he ultimately died having never left the hospital’s intensive care unit.  Id.  Immediately after the accident, the relevant vehicle was placed in a storage yard.  Id. at 337.  At some point after the accident, but before her husband died, the storage yard owner told the plaintiff that she was being charged a daily storage fee.  Id.  When the plaintiff told the storage yard owner that she could not afford the daily storage fee, he offered to waive the storage costs if the plaintiff would transfer the title of the vehicle to him so that he could sell the vehicle to a salvage yard.  Id.  The plaintiff discussed the issue with her husband, who advised her either to “save the tires” or “save the tire.”  Id.  The plaintiff instructed the storage yard to preserve the blown-out tire (which was done), but she relinquished control of the vehicle and the other three tires.  Id.  The storage yard owner then scrapped the vehicle and remaining tires.  Id.

Several weeks or months after the vehicle and tires had been destroyed, the plaintiff sued the tire manufacturer, Cooper Tire & Rubber Co.  Id.  Cooper Tire filed a motion to dismiss the complaint or impose other sanctions for spoliation.  Id. at 338.  The trial court denied Cooper Tire’s motion, holding that “[v]iewing the evidence from the perspective of the party having control over the subject vehicle, this Court does not find that the facts and circumstances give rise to litigation being reasonably foreseeable or that it should have been reasonably contemplated by the Plaintiff so as to trigger the duty to preserve the subject vehicle.”  Id.

The defendant appealed the trial court’s order, and the Georgia Court of Appeals affirmed.  The defendant then petitioned the Supreme Court of Georgia for a writ of certiorari. The court took the case in order to clarify Georgia law on spoliation.  Prior to Cooper Tire, the seminal spoliation case in Georgia was Phillips v. Harmon, 297 Ga. 386 (2015).  The Cooper Tire court acknowledged that, following Phillips, “there [was] uncertainty in the bench and bar about whether the same duty to preserve relevant evidence applies to plaintiffs as well as defendants[.]”  Cooper Tire, 303 Ga. at 340.  The Georgia Supreme Court seized the opportunity in Cooper Tire to resolve the uncertainty, noting:  “so let us now eliminate any doubt: the duty [to preserve evidence] is defined the same for plaintiffs and defendants, regardless of whether the party is an individual, corporation, government, or other entity.”  Id.

The court acknowledged, however, that “the practical application of that duty in particular cases may depend on whether the party is the plaintiff or the defendant as well as the circumstances of the party and the case; consequently, the duty often will not arise at the same moment for the plaintiff and the defendant, because of their differing circumstances.”  Id.  In Phillips, the court held that the defendant’s duty to preserve evidence arose when the accused spoliator had actual or constructive knowledge that litigation was being contemplated.  Phillips, 297 Ga. at 396-398.  In determining that the defendant in Phillips (a hospital) “actually or reasonably should have anticipated litigation,” the court set forth a non-exclusive list of factors for consideration:

. . . the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.

Phillips, 297 Ga. at 397.

The Cooper Tire court acknowledged that while those same subjective Phillips factors could be used in evaluating whether a plaintiff actually or reasonably should anticipate litigation, the practical reality is that, “because the plaintiff generally controls whether and when litigation will be pursued, spoliation claims involving a plaintiff’s duty to preserve will more frequently and easily be resolved based on actual knowledge of litigation than will claims aimed at defendants.”  Cooper Tire, 303 Ga. at 341.

Even though the Cooper Tire court noted that plaintiffs and defendants are obligated “to act reasonably” with regard to the preservation of evidence, the reasonableness evaluation is largely affected by the party’s “experience and sophistication in matters of litigation.”  Id. at 342.  “For example, as compared to an individual who never before has been seriously injured or involved in litigation, a corporate defendant that routinely faces litigation over the same type of incident that resulted in the same type of injury that the plaintiff suffered might well be found to reasonably have greater understanding of certain circumstances that would put the party on notice that litigation should be anticipated[.]”  Id.  

The Cooper Tire court concluded that given the facts and circumstances of that particular case, it was “easy to determine that Plaintiff did not actually contemplated litigation at the time the evidence at issue was destroyed[.]”  Id. at 344 (emphasis in the original).  However, the question of whether the plaintiff “reasonably should have anticipated litigation” was “closer.”  Id.  The court acknowledged that her husband’s statements that the accident occurred because “the tire blew” and that she should “save the tire” or “tires” could “heighten the reasonableness of anticipating litigation if made by or to a tire manufacturer accustomed to product liability litigation . . . .” Id. (emphasis supplied).  However, those statements would not necessarily result in heightening the reasonableness by which a party should anticipate litigation when that party has “no apparent previous experience with litigation.”  Id.

The Cooper Tire court also acknowledged that the plaintiff “had legitimate reasons not to preserve the vehicle and the other tires[.]”  Id. at 345.  The reasons included:  the vehicle was totaled; the plaintiff had no collision insurance on the vehicle; the plaintiff could not afford the storage costs; and the plaintiff’s focus at the time was her husband’s well-being in the hospital.  Id.

In addition to its holding clarifying a plaintiff’s duty to preserve evidence, the Cooper Tire court also made several significant statements in dictum.  First, the court emphasized that “the most severe sanctions for spoliation are reserved for ‘exceptional cases,’ generally only those in which the party lost or destroyed material evidence intentionally in bad faith and thereby prejudiced the opposing party in an uncurable way.”  Id. at 343 citing Phillips, 297 Ga. at 398-99.  According to the Cooper Tire court, “[t]he loss of relevant evidence due to mere negligence—including negligence in determining when the duty to preserve evidence arose—normally should result in lesser sanctions, if any at all.”  Cooper Tire, 303 Ga. at 343 (internal citations omitted; emphasis supplied).

Second, the Cooper Tire court reiterated that in evaluating whether the party moving for a spoliation sanction has been prejudiced, a court should also consider whether the loss of evidence would also prejudice the party bearing the responsibility to preserve the evidence.  Id. at 346.  “Indeed, the fact that lost evidence is often equally or even more important to the case of the party that controlled it is why fact-finders should not readily presume that lost evidence was favorable to the opposing party absent a showing that the evidence was lost intentionally to deprive the other party of its use in litigation.”  Id. at 346-47.  In further cautioning against perfunctory imposition of spoliation sanctions, the court endorsed the concept that the absence of a spoliation sanction does not prevent a party from presenting as part of its case the circumstances under which certain evidence was saved while other evidence was destroyed.  Id. at 347.

If you believe you may have a potential claim and have questions about your obligations to preserve evidence relevant to that claim, contact us at 770-814-7001.

Bob Cheeley and the Cheeley Law Group obtained a $15 million verdict for Megan Richards for her injuries sustained when two cars occupied by Ms. Richards and her friends, all Georgia Southern University nursing students, were struck from the rear by a tractor-trailer. Georgia’s leading legal periodical, the Fulton County Daily Report, has recognized that January 2017 verdict against Defendant U.S. Xpress, Inc. and others as the Number 1 Motor Vehicle Verdict in the state of Georgia for 2017.

The Richards lawsuit arose from an April 22, 2015 wreck along I-16 near Savannah, Georgia. Prior to the collision involving the GSU nursing students’ vehicles, a Greywolf Logistics tractor-trailer had struck a motor home, and those vehicles partially blocked eastbound lanes of I-16. The nursing students’ cars were stopped at the end of a long line of traffic resulting from that earlier wreck. Megan Richards, Morgan Bass and Brittney McDaniel were passengers in a Ford Escape driven by Abbie DeLoach. Immediately behind the Escape was a Toyota Corolla in which Emily Clark, Catherine Pittman and Caitlyn Baggett were riding. Just before 6:00 a.m. that fateful morning, a tractor-trailer owned by Defendant U.S. Xpress Leasing and operated by Defendant Total Transportation of Mississippi (both U.S. Xpress, Inc. subsidiaries) violently collided with the two cars full of GSU nursing students.

I-16 TRUCK WRECK SCENE AERIAL PHOTOGRAPH TAKEN APRIL 22, 2015

At trial, the U.S. Xpress Defendants had no explanation for why their company driver (Defendant John Wayne Johnson) did not observe the long line of red tail lights, nor why Johnson did not attempt to slow or stop the truck being driven at 68 miles per hour or otherwise try to avoid striking the stopped traffic.

Along with his representation of Megan Richards, one of the survivors of the collision that claimed the lives of five of her friends, Bob Cheeley was lead counsel for claims brought by the parents of Abbie DeLoach, Emily Clark and Caitlyn Baggett. Bob, assisted by his former law partner, was instrumental in settling the five wrongful death claims barely a year after the wreck. Bob’s other clients collectively recovered $45 Million for the deaths of their three daughters.

The U.S. Xpress/Total Transportation tractor-trailer first struck the rear of the Corolla, shearing the roof off the car and setting it ablaze. The tractor-trailer then struck the rear of the Ford Escape, causing that vehicle to be driven into the rear of a tanker truck before then overturning twice onto the shoulder of the roadway.

I-16 TRUCK WRECK SCENE PHOTOGRAPH TAKEN APRIL 22, 2015

The lawsuit included common enterprise claims by which Ms. Richards sought to hold U.S. Xpress, Inc. – a company which generated $1.5 billion of revenues in 2017 and declared itself to be the “second-largest privately owned truckload carrier in the nation” before it went public earlier this week – and its related companies responsible for Total Transportation’s and Johnson’s liability to Ms. Richards.

At the Richards trial, Total Transportation stipulated that Johnson negligently operated the tractor-trailer on April 22, 2015; that Johnson’s negligence caused the collision between the tractor-trailer and the nursing students’ vehicles as well as Ms. Richards’ injuries suffered in the wreck; and that Total Transportation was liable to Ms. Richards for Johnson’s negligence as he was acting within the course and scope of his employment with Total Transportation at the time of the truck wreck.

The U.S. Xpress Defendants contended, however, that Megan Richards suffered only a concussion (her initial diagnosis on April 22, 2015) and a few other physical injuries as a result of the wreck; and that the U.S. Xpress Defendants other than Total Transportation and Defendant Johnson were not a common enterprise and should not be liable for Johnson’s negligence. Prior to trial the U.S. Xpress Defendants only offered $1 Million to settle Ms. Richards’ claims.

The Richards trial team – Bob Cheeley and Keith Pittman of the Cheeley Law Group, with Billy Jones and Carl Varnedoe of Jones & Osteen – prevailed in what was essentially two trials. First, they showed that the other U.S Xpress Defendants were a common enterprise and thus also responsible for the injuries caused by Johnson for which Total Transportation was liable. Second, they demonstrated the extent of Megan Richards’ injuries suffered in the truck wreck.

As to the latter, the jury learned that, besides fractures to her lower spine and left shoulder, Megan Richards sustained a mild traumatic brain injury (TBI), which was indicated on a susceptibility weighted imaging MRI (SWI-MRI). She also suffered from Post-Traumatic Stress Disorder (PTSD), depression and acute anxiety disorder. Her treating neuro-psychologists, Dr. Rachel Lacy and Dr. John Sass, testified that Ms. Richards’ brain experienced physical changes from the PTSD alone, not to mention the shearing to her brain (left frontal lobe) that resulted from the collision. Bob proved through the testimony of Plaintiff’s expert re-constructionist (Bryant Buchner) that the deceleration and acceleration forces experienced in the collision were so dramatic that it was equivalent to Ms. Richards and her friends falling from a 7-story building and then again from a 4-story building, all within two seconds.

After Bob’s stirring closing argument, the jury found all of the U.S. Xpress Defendants and their driver John Wayne Johnson 100% liable for the $15 Million compensatory damages award and also answered “yes” to a punitive damages award. As Bob had negotiated a confidential high/low settlement during jury deliberations, the second phase of the trial for the amount of punitive damages did not go forward.