Negligence Per Se and the Standard of Care
The Georgia General Assembly has codified certain minimum standards for the operation of motor vehicles on Georgia public roadways, including CMVs. A violation of a “Rule of the Road” constitutes negligence per se, so long as traditional elements such as proximate cause are also present. Further, the Rules of the Road apply to parking lots, shopping centers, and other similar areas which, although privately owned, are customarily used as a through streets or connector streets. Other provisions of the O.C.G.A. may make the Rules of the Road applicable to other private or common areas; therefore, when it appears a wreck has occurred in such an area, a review of the relevant statute may be necessary. In the context of a motor carrier, it is important to note that the general rule is that a federal safety regulation will not pre-empt a conflicting state or local safety regulation. Therefore, while it is unlikely that the Georgia ROR would create an impossible conflict with the FMCSR, but this possibility must be kept in mind.
CMV Driver: Ordinary Care Or Diligence
Further, it must be kept in mind that in Georgia, the Court of Appeals has held that the driver of a CMV is generally not subject to a standard of care as a “professional truck driver” or the like; rather, the applicable standard is the same as every other user of the road, i.e., ordinary care or diligence. In Rios v. Norsworthy, the Court stated “the relevant standard of care was the duty to exercise ordinary care under the circumstances. Where the duty is that of ordinary care, Norsworthy cannot be found negligent merely because he could have prevented the collision of he had exercised a heightened degree of care.” Whether this ruling would apply in a “hazardous conditions” operation is another question. In adopting this rule, Georgia follows the majority of courts which have addressed this issue. Norsworthy also provides certain parameters for expert testimony in a truck case, and provides valuable guidance in that regard. Because the applicable standard is ordinary care, expert testimony that purports to require a CMV driver to “maintain a constant vigil” or otherwise impose a heightened duty will not be admitted. Moreover, expert opinions that conclude, without proper evidentiary support, that a CMV driver was not qualified or properly supervised by the motor carrier will be excluded. Id. The importance of establishing a causal connection between a violation of a non-moving regulation (such as record-keeping requirements) and the occurrence causing the injury is also of the upmost importance if a corresponding expert opinion on ordinary care is to be introduced. Id. To prevail against a Daubert challenge and avoid exclusion of expert testimony on the standard of care, counsel should ensure that a testifying expert is able to identify the specific state or federal regulation at issue, point to the facts in the record that establish its violation, and carefully articulate how it caused or contributed to the wreck.
Although Norsworthy makes clear that Georgia law only requires that CMV drivers exercise ordinary care, it is axiomatic that the level of care ordinarily required to safely operate a large 18-wheeler is at least somewhat different from that required to drive a Ford Taurus or Honda Civic. Jury argument is the forum for that battle. The caveat is that a heavy-handed argument in favor of a heightened duty is likely to draw a disruptive objection, a potential rebuke from the court, and even the troubling albeit unlikely possibility of a mistrial. However, the highly-regulated nature of the trucking industry, widespread public concerns about its safety, and the horror stories of frequent misconduct by CMV drivers, corner-cutting by motor carriers, and the terrible wrecks that all too often result, have already convinced most jurors that truck drivers should be especially careful. When asked, most drivers themselves will openly testify that they perceive themselves as being more qualified and more trained to drive than members of the general public. Therefore, counsel should elicit such statements during the driver’s deposition and make them a focal point at trial. Jurors will remember it later when they are evaluating whether the driver met the standard of care. Even when a driver has been carefully coached by defense counsel to disclaim any “professional driver” status, there is no denying that the extensive training he has received, the rigid qualification and licensing process he has undergone, and the prevalent regulation of his employment in general will call into question his superficial denials. As a career operator of a CMV, the driver must either acknowledge that he is not an “average” motorist, or face extensive cross-examination that is likely to significantly undermine his credibility in the minds of jurors. Under either scenario, plaintiff’s counsel will have ample ammunition to argue what most jurors have already concluded: it is not unreasonable to expect that someone employed to drive a vehicle many times larger than those around it, and do so for thousands of highway miles a month, should be to some extent more cautious than those that do not.
Before moving on, two things must be noted. First, there is a very important exception to the general rule that a CMV driver is subject only to the duty to exercise ordinary care. By statute, common carriers are required to exercise extraordinary diligence for the protection of their cargo or passengers. Indeed, few legal standards are more ominous and unforgiving than the one Georgia law imposes up common carriers. So great is this duty that, “in cases of loss, the presumption of law is against them, and no excuse avails them unless the loss was occasioned by the act of God or the public enemies of the state.” Id. Finally, as with many of the FMCSRs, compliance with a Georgia Rule of the Road does not mean the driver was exercising ordinary care as a matter of law. The rules are minimum standards, rather than safe harbors.