Pertinent Case Law
A considerable body of law has emerged which construes many aspects of regulation, and provides guidance for those who deal with stopped CMV litigation. For example, in the Harmon case, a motor carrier was held to face direct liability for failing to instruct its driver in the requirements of regulation, as required. The evidence there revealed the motor carrier did nothing more than pin some diagrams about warning devices to a bulletin board at the office, which the court held was sufficient to support a finding the motor carrier breached its duty to instruct and comply with the regulations.
Proximate cause was lacking for failure to place triangles on a bright sunny day where the stopped vehicle was apparent for a great distance in the Dmitruk case. The trial court in Dmitruk, in an earlier ruling, held that a tow truck company which is towing a CMV does not have a duty to place triangles should the vehicles be forced to stop. However, the fact the plaintiff saw the defendant truck and its lights, but failed to slow significantly, was held insufficient to entitle the motor carrier to summary judgment, where its driver failed to comply with the regulation and did not place a triangle in front of the disabled CMV.
In that case, the defendant argued the administrative history of regulation shows it was enacted to protect from rear-ender accidents, not ones impacting the truck from the front. Arguing this, defendant convinced the trial court that violation of the regulation could not be a legal cause of the accident because the plaintiff could not be among the class of persons the regulation was intended to protect.The Fifth Circuit rejected this analysis, noting the regulation does require a triangle be placed in front of the CMV, which would be “surplusage” if defendant’s argument was correct. Thus, while proximate cause was missing as a matter of law in the more traditional rear-ender case of Dmitruk, the court got around the causation issue to find a jury question in Estes, despite the fact the administrative history of the regulation did not support an argument it was intended to protect motorists from a “front end” accident. The luck of the draw seems to play a part from time to time.
Reid v. Midwest Transportation
In that regard, the Georgia case of Reid v. Midwest Transportation is worth mention. There, a motor carrier driver pulled off the freeway onto the “emergency lane” or paved shoulder to go to the aid of a motorist he saw spin out of control, down an embankment, in front of him. The evidence showed the side of the road off the paved shoulder was too steep for the CMV to move over any further. The driver testified without contradiction that he activated his 4-way flashers as he pulled over, and immediately went to the aid of the other motorist. He did not pause to place triangles. Shortly thereafter, within three to four minutes, the plaintiff vehicle swerved off the road, striking the CMV, killing the driver, an adult passenger and a child passenger. The decedent driver of the plaintiff vehicle tested positive for marijuana afterwards. Affirming the trial court’s grant of summary judgment, the Georgia court found less than ten minutes had elapsed, no proximate cause was shown, that the CMV driver was protected by the Georgia “good Samaritan” statute, and that use of the emergency lane to go to the aid of another is a proper use of that portion of the road. Sometimes the facts are not a friend.
A judgment notwithstanding the verdict was upheld in a case where a CMV was stopped off the road, in clear weather, broad daylight, but no triangles were placed behind it. The court found proximate cause missing as a matter of law under these facts. Regardless of the event which caused the decedent’s vehicle to “drift” onto the shoulder, the court found “no evidence that the presence of warning triangles would have changed its effect in any way… although putting out triangles would unquestionably have been better than not doing so… there is no evidence the failure … was a cause of the accident.”
Wilson Freight Case
The Eleventh Circuit, construing Georgia law, reversed a grant of summary judgment for a motor carrier whose driver failed to activate his 4-way flashers in the Wilson Freight case. There the evidence was in dispute whether the CMV driver activated his 4-ways, and the court held a jury question existed, finding the illumination of “emergency signals enables approaching motorists not merely to view the stalled truck, but to appreciate the abnormality of its position”. Likewise, the fact that the police had arrived at the stopped CMV was held not to dispense with the motor carrier’s duty to place warning devices.
Buskirk v. Edward Fineman Co.
It is important to establish the position of the stopped CMV at the time of the accident. The regulation requires warning devices be placed for a CMV “stopped upon the travelled portion of a highway or the shoulder of a highway.” What about the driver who is able to pull off the roadway past the shoulder? In Buskirk v. Edward Fineman Co., the court granted summary judgment for the defendant, observing that the “adjacent shoulder” refers to the eight-to-ten foot area commonly paved or graded directly adjacent to the road. The court went on to find that the evidence revealed beyond question that the defendant CMV was off both the roadway and the shoulder. Thus, there was no duty to place warning devices and no proximate cause for the failure to do so.
Likewise, it is important to determine if the accident occurred in a business district or residential district, during daylight (or if at night, whether there was street lighting). The district court for Massachusetts granted summary judgment for a motor carrier whose driver displayed neither 4-way flashers nor triangles, while stopped in daylight in a business district. The court also rejected an 11th hour argument by plaintiff that there was a “common law” duty to activate flashers when stopped in a business district during daylight hours. Note that the court in the Stong case held that a limited access freeway is not a business district, regardless of what businesses may operate along its margins.
What about the imposition of punitive damages? While this is going to be a particularized question, hinging upon the outrageousness of the facts and applicable state law, a jury question was found on somewhat benign facts by a North Carolina district court. The court held, somewhat in the abstract, that the failure to place triangles could constitute gross negligence, and possibly present a jury question on the conscious indifference. The facts which got plaintiff over the hurdle included the driver’s admission he knew that cars did on occasion hit trucks parked on the side of the road and, perhaps more egregiously, that a rest stop was only 1 ½ miles further up the road, and the CMV was not totally disabled. However, the appellate court did question whether the plaintiff would be able to survive directed verdict and instructed the trial court to take a close look once the evidence was in.
Is a violation of regulation considered negligence per se? Again, this will vary by jurisdiction. Some jurisdictions do not recognize negligence per se. However, breach was held to be negligence per se by the Colorado Court of Appeals, in a decision which cites a number of other states which have found the same. An older 5th circuit case, construing Georgia law, agrees with the trial court that breach of regulation is negligence per se.