Who Controls the Driver?

In 2022, on a cul-de-sac in the back of a Fayette County subdivision, an 8-year-old boy was riding an electric bike in front of his home when he was run over by an Amazon delivery van and dragged 21 feet. The boy, Gabriel, suffered a broken pelvis and severe degloving to his leg—meaning the skin and tissue beneath was ripped away, requiring multiple surgeries and skin grafts.

His family was referred to Fried Goldberg, an Atlanta firm specializing in truck accident cases.

When Michael Goldberg drove out to the family’s home for the first time, he took note of the kids playing everywhere in a neighborhood that felt safe. He met Gabriel, who had a wound vac on his leg, a machine that sucks all the moisture out of skin grafts so infection doesn’t set in. Goldberg could tell he was in a lot of discomfort.

“It’s every parent’s nightmare that you have a child playing outside, like you want them to play outside, and he gets run over,” he says. “I knew they were great parents, that they would make a great impression in front of a jury.”

The trial team—led by Goldberg, with firm founder Joseph Fried cross-examining and giving closing rebuttal, and Nathan Gaffney providing legal research into dual employment—had already handled a number of cases against Amazon. They knew the company would claim it was not responsible for the driver because the delivery service provider (DSP) was technically an independent contractor, even though, as Goldberg states, “his place of business registered with the secretary of state is inside Amazon’s facility.” The DSP would have a limited amount of insurance coverage, making a lawsuit untenable. Unless Amazon itself was sued and forced to be held responsible.

That background allowed the trial team to act so fast that Bradfield v. Amazon Logistics reached its $16.2 million jury verdict in less than two years from the day of the accident—before the statute of limitations to file had even passed. It was the first verdict in Georgia to find Amazon liable for its delivery contractors—and one of the first in the nation.

“Historically, around the country, Amazon has not allowed cases to go to trial,” says Fried. “They’ve resolved them, and they’ve insisted on confidentiality from every litigant, including us. Everything was locked down with very strict protective and confidentiality orders. We thought it was going to settle very close to trial. We’re still not sure why they chose this one to try to make a stand on.”

During discovery, Goldberg looked at the standard documents Amazon produced, along with deposition testimony from the DSP owner and driver, and knew he had everything he needed.

In many cases, Fried says, “lawyers will end up filing motions to get into the actual computer systems of Amazon to look for the inner workings of how the sausage is made. And while I understand the desire to know that for a lawyer, I think it’s a very mature place to say this isn’t the case that needs that. I have what I need to establish control. Why go through fights and delays and a lot of expense?”

Goldberg applied the same attitude to witness depositions, agreeing with Amazon that the driver—the only adult present at the time—would be the only eyewitness called, rather than putting Gabriel and several toddlers through the potentially traumatic process.

Goldberg also opted not to hire medical and psychological experts to try to counter the social media videos Amazon had of a healed Gabriel returning to trampoline backflips and jumping from trees into rivers. Instead, he focused on the scars on the child’s leg—how they cracked and bled and were never going away—and imagined it was his own child. “You spend all this time praying your kids don’t have any issues where they’ll get made fun of when they’re teenagers and in high school and everything else, and this kid’s always going to have that,” he says.

All of which could be why Amazon’s lawyers underestimated the value of the case, Fried speculates. They saw $200,000 in past medical expenses, no futures, and likely didn’t imagine Goldberg could get the point across without an expert to back it up.

“Many lawyers say, ‘I’m going to hire a bunch of people to prove this,’” Fried explains. “What Michael said was, ‘I’m going to trust regular people to get it. People know that kids are cruel. I don’t need some doctor with a Ph.D. to say kids are cruel.’”

They knew Amazon’s lawyers were going to blame a neighbor—a mom who was supposed to be watching the kids but had run inside to go to the bathroom—so during voir dire Goldberg identified potential jurors who believed that any time a child has an accident without a parent present, it’s the parent’s fault. “There were some who thought along those lines,” he says. “They didn’t make the jury.”

In opening statements, Goldberg put a number on the injuries: $25 million.

“The decision to make the ask in the opening instead of waiting until closing is something we’ve been doing a while now, and it sort of has the effect of popping the bubble,” Fried says. “It’s this subject that is not easy to talk about—money—and what we’ve learned is the earlier you burst that bubble, even if the jurors think it’s a lot of money, they have time to absorb it all the way from opening to closing. It’s not like this shock punch in the face: You’re asking for how much?”

The most dramatic moments of trial revolved around the accident reconstruction video of a child slowly riding a bike back and forth across a quiet street, shot from behind the windshield of a van.

“We always get the accident reconstructionist involved pretty early,” Goldberg says. “In this situation, he went out there, and there was a 21-foot scrape mark across the cement where the child was under the van and had been dragged. We also had body cam footage from the police officers, so he was able to show exactly where the van was at the point of impact and where it ended up.”

To make the reconstruction video, they put the same kind of van in the same location with a videographer at eye level of the Amazon driver, while enlisting the son of another lawyer at the firm, who happened to be within an inch of Gabriel’s height, to ride the same motorized bike.

Having the child riding back and forth was a strategic compromise because the defense expert disagreed about which direction the child had been coming from. “Be careful what you undertake to prove,” Fried says. “If we had accepted Amazon’s efforts to make this case about which direction Gabriel was coming from, and we had fought that fight with them, that’s the way you can lose a case like this.”

During cross-examination of the defense reconstructionist, Goldberg played the video of the child riding slowly in front of the van, from the right—the direction the defense said he would have been coming from—and had the expert pick the spot where he would have been hit.

“It shows you what is there for the Amazon driver to see if he just looks. He was visible the whole time,” Goldberg says. “The jury was left with the conclusion that either he doesn’t look at all, doesn’t look properly, or he looks but his vision is blocked by the packages [on the dashboard] that weren’t supposed to be there. Either way, we win the case.”

During deposition, the defense expert said he thought the accident happened because the driver, after waiting for other kids to cross, didn’t look back again before moving. “I knew he was going to try to soften it at trial,” he said. “And then I pulled out the transcript and I impeached him by reading his exact testimony.”

The other key trial moment came during cross-examination of the driver. He admitted he’d never been trained by Amazon about the safety rule that you are supposed to know where every child is before moving the van. “The driver was such a nice young man,” Fried says. “He needs to make 187 deliveries in a single day, which is kind of inhumane. Let that sink in. One hundred and eighty-seven. Not packages. One hundred and eighty-seven deliveries.”

To make that kind of volume possible, Amazon has a system for staging packages on shelves in the vans, but this driver was using a temporary van that didn’t have such shelves.

“He testified he was using the front seat, the dash, the floor, because he didn’t have any place else,” Fried says. “Amazon had this system they had trained on but then they didn’t train this guy on what to do in a temporary van.”

In closing arguments, Goldberg sought to bring that point home. For Nathan Gaffney, it was the most important moment of the trial.

“In Michael’s closing, he used the imagery that we have all seen—when you wake up in the morning and get your gas at QuikTrip, and you often see people with service jobs rushing around and getting their lunch for the day,” Gaffney says. “Michael did a really good job of bringing everyone’s mind to that place, describing this young man and how he was basically put by Amazon in an impossible situation. He did a really good job of tapping into the jury and making them understand that the driver was not the problem; it was Amazon.”

The entire trial lasted less than a week. Closing arguments came on a Thursday morning, deliberations started at 1:15, and a verdict came back at 4:08. Throughout, Goldberg couldn’t stop stressing about the fact that he hadn’t seen a single juror write down a single number from his closing. No medical expenses. No past or future pain and suffering. “Nothing,” he says. “And the jurors in closing would not look at us at all. They were looking away from us.”

He needn’t have stressed. The jury divvied up responsibility: 85% to Amazon for negligent training; 10% to the driver and his employers, including Amazon; 5% to the neighbor. The total award of $16.2 million included $16 million for the boy’s pain and suffering.

“There was a time when we thought we’d drop the training claim and just stay with the control claim alone,” Fried says. “It’s a good thing we didn’t.”

The driver was such a nice young man. He needs to make 187 deliveries in a single day, which is kind of inhumane. Let that sink in. one hundred and eighty-seven.

Right away, Fried started getting calls that the verdict was being talked about in boardrooms around the country. At the recent annual symposium of the Academy of Truck Accident Attorneys, an organization Fried co-founded, half a day was devoted to the “Amazonization” of the transportation industry since Amazon become the largest global transportation company in the world, dwarfing UPS and FedEx.

“Amazon is going to have to make a decision now,” he says. “Do they want to continue this facade of no control, or do they want to own the control and change their internal business and insurance practices to adjust for this? Because they cannot win a control case. This case not only affects Amazon, but it affects all the copycat enterprises moving toward the same model of ‘Let’s just continue to deny we control the driver.’”

It’s also significant for a gig economy in which tech is often more in control of how people do their jobs than a human supervisor or manager.

“Amazon tried to say we had no control over [drivers] because it’s really the tech telling them what to do,” Goldberg says. “It all comes through an app on a phone. Companies are trying to say we’re not telling him what to do, he’s on his own, but ignoring the fact that the tech they set up is controlling every aspect of time, method and manner of the work. You see the same kind of thing with Uber and everything else. That is really a takeaway all companies will have to realize at some point: If you control the tech, you are going to be responsible for the people that are using it.”