Georgia Injury Lawyers Blog
Pertinent Case Law
First, the USDOT has interpreted regulation to say that it is the driver, not the motor carrier, who makes the call on discontinuing operation. If the driver says he wanted to pull over but was told by the motor carrier that no shut-down had been declared, both parties may be at fault.
Weaver v. Chavez
Second, the question of whether regulation imposes a duty of care higher than reasonable or ordinary care is critical. The regulation was held to create an elevated duty of care in Weaver v. Chavez. Notably, the appellate court in Weaver reversed the trial courts’ refusal to charge the federal statute as creating a higher degree of care than that found under state law. Weaver also includes a detailed analysis of why a higher standard of care is applicable, and serve as helpful persuasive authority in seeking a jury charge.
Tavorn v. Cerelli
However, the court in Tavorn v. Cerelli upheld the refusal to charge the “extreme caution” language of regulation because “the jury might interpret it as establishing a standard of less than ordinary negligence in assessing defendant’s liability.” In reading the Tavorn court’s opinion, the reaction of the trial lawyer should be, “well, of course they might interpret it that way, because that it what is means.” The specific point of the admonition of regulation is to alter the standard of care required of a driver operating an 80,000 pound CMV on ice, during torrential rain, or in heavy fog. Despite the plain language of the regulation, the Tavorn court found the use of the phrase “extreme caution” in regulation simply meant that a driver should slow down. The reasoning is, quite frankly, dubious. However, it does demonstrate that one should never take the seemingly obvious for granted.
Keep in mind that a charge of the regulation may be given as evidence of negligence, or as negligence per se, depending upon the jurisdiction where the matter is heard. Some courts have found the regulation simply sets forth a particular duty of care where certain conditions are encountered. Other courts hold that “where a statutory standard establishes the defendant’s duty, proof of [the] violation of a statutory standard of conduct raises a presumption of negligence that may be rebutted only by evidence establishing a justification or excuse,” and thus find a violation of regulation negligence per se and so charge the jury. Make certain in preparing your charges you are prepared with appropriate law under your jurisdiction to get the strongest charge language proper without creating reversible error.
A number of cases address claims by drivers that they were improperly disciplined for refusing to operate in bad weather. It is possible the driver in your case had been threatened with discipline, or knew of an unwritten policy to penalize drivers who refused to operate in conditions the motor carrier found proper for CMV operations. This needs to be pursued, and if any evidence is found, followed up on.
Dortch v. Fowler
There may be other evidence governing the driver’s operation that should be explored. For example, a “Model Driver’s Manual for Commercial Vehicle Driver Licensing” was at issue in Dortch v. Fowler. The manual suggested a driver encountering a wet road should reduce speed by one-third. The court found the manual to lack the force of law or regulation, and refused to charge it. This was affirmed. The court noted the plaintiff did not request charge of regulation. In this case, the plaintiff might have had more success if an expert had testified the speed reduction set forth in the manual was an industry standard.
Crooks v. Sammons Trucking, Inc.
Expert testimony helped the plaintiff in Crooks v. Sammons Trucking, Inc. There, the expert testified about stopping distance at a given speed, and the fact that visibility conditions present at the time of the accident caused the CMV driver to be unable to stop, given the speed he said he was traveling, once he perceived a problem ahead. The appellate court reversed the trial courts’ refusal to charge regulation. The trial court had refused the charge because it might cause the jury to apply a “different standard than ordinary care” and because the regulation does not include a definition of “extreme care.” Again, the court set out carefully the basis for finding error in the refusal to give the charge, noting the federal regulation’s requirement that state laws not impose a duty less than those found in the regulations, i.e., pre-emption.