A Semi Driver Sues a Trucking Company, But Will He Succeed When He Was Potentially Also at Fault?
A lot of personal injury lawyers in Georgia hold themselves out as “trucking lawyers”. But what separates the trucking lawyers from the self-proclaimed ones is their depth of knowledge and experience in helping truck accident victims.
A recent Georgia case arose from a big rig collision that injured a man working as a jockey truck driver. A jockey truck driver or a “yard jockey” or “yard dog” operates a terminal tractor to help move semi-trailers within a cargo yard or warehouse. These drivers inspect containers, manage equipment, and ensure the safe and smooth maneuvering of all trailers.
John Brown, Jr. sued SSA Atlantic, LLC in Savannah (the Defendant), asserting that negligent conduct by one of its employees caused his injuries and that the company was liable under the doctrine of respondeat superior. Plaintiffs sought partial summary judgment to dismiss the issue of liability for all of his claims.
The Comparative Negligence Doctrine
The question arose of whether the Plaintiff’s own actions defeated a dismissal under the defense of contributory or comparative negligence. Georgia follows the comparative-negligence doctrine, which merely limits the amount of recovery. This rule is codified in O.C.G.A § 51-12-33. Subsection (c) of the statute provides in part:
In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
In August 2019, Brown reported to the truck yard and got into the cab of one of the trucks. However, he saw a seat cushion inside, which he took to mean that someone else was already using the truck. He then “backed out of the cab” and stood on the truck, between the bed and the cab on the grate. He didn’t check to see if the truck’s parking brake was engaged or attempt to engage the brake himself. While standing on the grate, he spoke with another employee who was near the truck. Brown says he was facing the cab of the truck and looking left of center towards the man.
At the same time, a truck driver for the Defendant started his shift driving one truck but later switched to another because he noticed problems with the first truck’s brakes. After switching, he realized he’d left his seat cushion in the first truck and drove back to get it. The truck driver saw Brown standing on the first truck’s grate holding a cooler. He said he tried “to park next to” Brown but “misjudged” the amount of space needed. The truck driver realized he was too close and hit the other 18-wheeler while Brown was standing on it. Brown then fell on his back.
During his deposition, the Defendant’s driver stated that if he had a chance to go back and do it again, he’d make certain he gave the semi enough clearance when he was driving to avoid hitting Brown’s tractor-trailer or anything else. Brown wasn’t sure how fast the other rig was going at the time of the collision, but the other driver said that he was only travelling five miles an hour. Also, Brown said that the semi on which he was standing traveled about 20 to 30 feet after it was struck; in contrast, the Defendant’s driver thought the truck only moved about five feet at the most after he hit it.
Plaintiffs’ Negligence Claim
Brown claimed that the evidence showed that the Defendant’s driver negligently operated his jockey truck and struck him, causing him to immediately fall on the back of a steel trailer. He also asserted that partial summary judgment was warranted because there were no material facts in dispute concerning liability, which encompasses all the elements of negligence except for damages.
U.S. District Judge R. Stan Baker explained that under Georgia law, to prove a claim of negligence, a plaintiff must show four elements:
- The existence of a legal duty;
- The breach of that duty;
- A causal connection between the defendant’s conduct and the plaintiff’s injury; and
As such, the judge said that to grant partial summary judgment in this case, there must be no genuine dispute of material facts as to the elements of duty, breach, and causation. The judge wrote in his opinion that in any negligence case, the threshold issue is whether, and to what extent, the defendant owes the plaintiff a duty of care. The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the caselaw. Although the Plaintiff didn’t state what legal duty they believe that the Defendant’s truck driver violated, the judge said that Georgia imposes on all drivers the duty to exercise ordinary care under the circumstances.
Next, the judge looked at the issue of whether the Defendant’s truck driver negligently breached his duty to exercise ordinary care. Judge Baker explained that Georgia law strongly disfavors removing the issue of negligence from a jury. Plaintiffs argued that this case is one of those plain and indisputable cases because the truck driver’s deposition demonstrated that he acted negligently. Specifically, Brown emphasized that the Defendant’s driver acknowledged that, if he could redo the events of August 13, 2019, he would have given Brown’s “tractor-trailer enough clearance . . . so [he] could avoid hitting [Brown’s] trailer or hitting anything.”
The Defendant argued that partial summary judgment wasn’t appropriate because even if its driver acted negligently, Brown’s own actions “constituted contributory or comparative negligence and defeated summary judgment.” In interpreting the comparative negligence statute, the Georgia Supreme Court stated in 2015:
In subsection (c), “fault” is used with reference to the “fault of all persons or entities who contributed to the alleged injury or damages,” and so, it includes not only the “fault” of nonparties, but also the sort of “fault” attributable to plaintiffs under subsection (a), as well as the “fault” attributable to defendants with liability under subsection (b).
Thus, Judge Baker explained that to determine whether partial summary judgment was appropriate on the issue of liability, he must also examine whether genuine disputes of material fact exist as to Brown’s potential comparative negligence.
Did Brown Act Negligently?
The Defendant claimed that Brown acted negligently as to his own safety in three ways. First, they said that he spent an extended period talking to a fellow employee in the most dangerous place he possibly could—exposed on the back of a jockey truck platform, positioned in a high-traffic area at the start of a shift. In fact, the record showed that Brown was standing on the truck’s grate while talking to the man at the time of the accident. Under Georgia law, all individuals are bound at all times to exercise ordinary care for [their] own safety, even before the negligence of another is or should be apparent. In addition, state law also provides that questions of a plaintiff’s comparative negligence should normally be decided by a jury even when there’s only minimal evidence of a plaintiff’s negligence. Accordingly, the Defendant argued that a jury could find that Brown acted negligently by standing on the truck’s grate and talking to another employee instead of immediately getting off the truck.
The Defendant also contended a fact issue existed as to whether Brown was adequately watching his surroundings (“keeping a lookout”) and that his failure to pay attention could also constitute comparative negligence. Brown said in his deposition that he was facing towards the semi cab and looking to the left of center towards the other employee when talking to him. He also stated that he didn’t see the Defendant’s driver before the collision.
Judge Baker noted that the Supreme Court of Georgia has held that for individuals to exercise “ordinary care for [their] own safety, looking continuously in all directions is not required in all circumstances,” quoting a 1976 decision. However, Georgia law also make clear that what constitutes a reasonable lookout depends on all the circumstances at the time and place. Here, based on the facts in the record, the judge found that a jury could find that Brown failed to exercise ordinary care because he didn’t keep a reasonable lookout while standing on the truck’s grate in an area with other trucks moving nearby.
Last, the Defendant asserted that there was a fact issue as to whether the parking brake was engaged on Brown’s semi which also goes to his negligence. Brown admitted during his deposition that he didn’t make sure the parking brake was engaged when he first got in the semi. There was also a related dispute of fact concerning how far the truck moved after the collision. Thus, the Defendant argued again that, a jury could find that Brown acted negligently by failing to engage the parking brake and that this contributed to how far the truck moved and the severity of the accident.
However, Brown claimed that these factual disputes about his potential comparative negligence didn’t render summary judgment inappropriate. But Judge Baker noted that while there was evidence that the Defendant’s driver acted negligently, the Defendant hadn’t conceded this issue in any pretrial conference or in any briefing.
As a result, the judge found that the several material factual disputes concerning Brown’s potential negligence were valid, and the Plaintiff hadn’t cited any case where a Georgia court granted summary judgment on the issue of liability as to a negligence claim where questions of fact existed as to a plaintiff’s contributory negligence. Moreover, denying summary judgment on Plaintiffs’ negligence claims was in line with Georgia law’s preference for having juries decide liability issues, Judge Baker opined.
Therefore, the court denied summary judgment on this claim.
Plaintiffs’ Negligence Per Se Claim
As far as the Plaintiffs’ negligence per se claim, Judge Baker wrote that it’s well-settled that Georgia law allows the adoption of a statute as a standard of conduct so that its violation becomes negligence per se. Brown didn’t specifically address a negligence per se argument in his brief, but his Amended Complaint alleged that the Defendant’s truck driver was negligent per se for violating O.C.G.A. § 40-6-180. This statute states that:
No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistently with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching and traversing a hill crest, when traveling upon any narrow or winding roadway, and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.
The judge said that the record showed that Brown didn’t see the Defendant’s truck driver at the time of the collision and didn’t know how fast he was traveling. In turn, the Defendant’s truck driver testified in his deposition that he was “[n]ot [driving] very fast,” estimating that his speed was “maybe 5 miles an hour.”
Judge Baker noted that a Georgia court in 1995 examined an older version of the Georgia statute that regulated driving and stated that the statutes “merely furnish a general rule of conduct; and it is for the jury to determine in the light of all the attendant circumstances of the case, whether these statutory provisions have been violated.” Moreover, Judge Baker found nothing in Georgia caselaw indicating that this general principle (that it is the jurors’ province to determine a violation of a statutory provision regulating reasonable speed) has changed, even though the legislature has updated the language of the statutory text. Furthermore, Plaintiffs provided no argument for how the Defendant’s truck driver violated O.C.G.A. § 40-6-180 and, thus, failed to show why partial summary judgment on that count is warranted. As a result, the judge denied Plaintiffs’ Motion for Partial Summary Judgment. Brown v. SSA Atl., LLC, 2021 U.S. Dist. LEXIS 145195 (S.D. Ga. August 3, 2021).
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