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Bad weather is never an excuse for a trucker who causes a wreck

Written by Steve Gursten Posted November 5th, 2013

FMCSRs mandate that truckers must reduce speed or stop – and why there’s no such thing as a sudden emergency legal defense in a truck accident case

I recently lectured to the Michigan Association for Justice and my topic was “Litigating Truck Accident Cases.”  Michigan, which is my home state, certainly has its share of terrible weather – especially with winter coming.  But one of the main points of my speech to the lawyers in the audience that day is that there’s  no such thing as a valid sudden emergency defense in a truck accident case.

This should be a mantra for every plaintiff attorney who gets involved in a serious truck accident in any state that has terrible weather.

Michigan, like many states, has a sudden emergency legal defense. This defense is typically a complete bar to recovery for most personal injury claims. In an ordinary car accident, a skilled defense attorney can raise this legal defense and sometimes get a negligent client off the hook for causing a serious crash. But a truck accident is very different from an ordinary car wreck.

The two cannot be treated the same. If a truck accident lawyer handles a truck crash the same way she would handle a car wreck, the lawyer is doing her client a terrible disservice; a disservice that I’ve characterized in the past as bordering on legal malpractice.

One of the most important traps to be wary of is the sudden emergency defense regarding bad weather in any wreck caused by a tractor trailer.

Trucking Law 101: Extreme caution must be used in inclement weather

If your case involves any truck wreck that occurs in inclement weather conditions, § 392.14 of the Federal Motor Carrier Safety Regulations (FMCSRs) should be the first place you turn. Under the reg, it states that  “[e]xtreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions” exist.

Note that the rule calls for extreme caution. Note also that the rule says extreme caution shall be exercised. The rule commands extreme caution in situations where “snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction.”

The law: Slow down your truck in inclement weather

Beyond the extreme caution requirement, § 392.14 also requires the truck driver to slow down while driving his or her semi-truck in bad weather. The rule mandates that “speed shall be reduced when such conditions exist.”

Operating the truck within the law

But the rule doesn’t even stop there. In fact, the rule also maintains that “[i]f the conditions become sufficiently dangerous, the operation of the commercial vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.”

Also keep in mind that many states have a CDL Manual like Michigan’s, which requires that the truck driver drop his speed to 2/3 of the posted speed limit in inclement weather conditions.  When a truck driver testifies under oath he was going at or near the speed limit, he is violating the CDL requirement to drop his or her speed.

There is another FMCSR which is also relevant in the context of defeating a sudden emergency defense in truck accident litigation. Under §392.2, the truck driver must operate the semi-truck “in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated.”

The only exception to this rule is where the standard imposed by the FMCSR is higher than that imposed by the individual state. In that case, §392.14 takes precedence over the state law. Often times, the laws of the jurisdiction are more stringent than the FMCSR standards. Every truck accident lawyer will do their clients well by looking at applicable state law and seeing what kind of hazardous weather regulations are imposed on drivers and/or commercial vehicles.

How truck lawyers can put these rules regarding bad weather to use

Most truck drivers on the roads today are good. Most of them act like the professionals they are. These good truckers value safety and will slow down, or exit the road entirely, when weather conditions are dangerous.

But sadly, as our truck lawyers know all too well, there are some bad truck drivers out there who do not care about safety, like this drunk truck driver who led police on a highway chase. These bad truckers are the ones who hurt or kill people in dangerous driving conditions. Many of these truck drivers are even pushed by their employers to break the rules, so the trucking company can make more money.

That said, these rules are invaluable arrows in any truck accident lawyer’s quiver. Truck drivers must slow down, or stop their semi-truck entirely, when weather conditions deem such actions necessary.

FMCSA guidance regarding the rule is also very helpful. The FMCSA maintains that “[u]nder this section, the driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.”

This places the onus entirely on the trucker to use his or her good driving judgment in determining what reasonable action should be exercised. This creates an  opportunity for an experienced truck accident lawyer to explore with the truck driver in  his or her deposition.

You should ask lines of questioning to develop and establish the truck driver’s subjective beliefs regarding when weather conditions are “hazardous” or “sufficiently dangerous” to warrant reducing speed or pulling off to the shoulder.  And make sure you have a good meteorologist on your witness list because it is not uncommon to have truck drivers testify that the weather conditions on the day of the wreck were far worse, or far better, than the actual weather conditions that day where the truck accident took place.

Between the standards imposed by § 392.14 of the FMCSRs and the applicability of state law through § 392.2 and the CDL, bad weather should never excuse a semi-truck accident.

Professional truck drivers are professional drivers.  They should be rightly held to a higher standard than that for other drivers, whether it be what drugs they ingest, or their health to drive, or the hours they drive on the road.

And it also applies to their responsibility to drive carefully in terrible weather.  If a bad truck driver, or a bad trucking company, ever tries to blame a truck accident on the weather, use it as a gift.  Bad weather is never an excuse for causing a truck accident.

Related information:

5 ways to depose a truck company safety manager

Steven Gursten Photo

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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