A tractor trailer driver going too fast to see his way through dense fog Monday morning in Fresno, California killed a young woman on her way to work.
According to a report by Jim Steinberg and Vanessa Colón of The Fresno Bee, a big-rig drive Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog. He struck a Ford Explorer, killing the woman inside.
At least two critically important provisions of the Federal Motor Carrier Safety Regulations appear to have been violated here.
First, 49 C.F.R.§ 392.14 requires:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.
Two California court cases have held that a trial court must instruct a jury on the federal “extreme caution” standard of care rather than the regular negligence standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).
Second, 49 C.F.R. § 392.1 requires:
Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.
This case involves a 22-year-old truck driver. My hunch, based on experience in trucking cases, is that his employer checked to see that he had a CDL (Commercial Driver’s License, checked to see if he had any moving violatons in the past three years, and tossed him the keys. I seriously doubt that the employer made any efforts at all to assure that he understood and appreciated the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.
As a result, an innocent motorist is dead and her family grieves.
The challenge facing an attorney handling such a case is often to educate judges who don’t even know that they are ignorant of motor carrier safety law. That is a continuing challenge as it requires getting a busy judge to focus on a body of federal law with which he or she may have great familiarity. Too many lawyers and judges think a tractor trailer crash is “just a big car wreck” and fail to recognize the legal and technical issues that must be considered.
Ken Shigley is a Georgia trial lawyer focused on representation of plaintiffs in interstate and intrastate motor carrier (truck and bus) crashes. He is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice. He is a former chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. Practicing statewide in Georgia, he also selectively participates in major cases in other states where he can be admitted pro hac vice. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, a Master of the Lamar Inn of Court at Emory Law School, and was a faculty member for ten years at the Emory University Law School Trial Techniques Program. A member of the Million Dollar Advocates Forum, he has successfully tried trucking accident cases to multimillion dollar verdict. He frequently lectures on trucking litigation topics at national continuing legal education programs. Ken now serves as Secretary of the 40,000 member State Bar of Georgia, is a member of the Georgia Courts Automation Commission, chair of the Georgia Bar’s Electronic Court Filing Committee, and is a trustee of the Institute for Continuing Legal Education in Georgia, the Georgia Bar Foundation, and the Lawyers Foundation of Georgia.