BLACK ICE FRIEND OR FOE

Size: px

Start display at page:

Download "BLACK ICE FRIEND OR FOE"

Derick Charles
5 years ago
Views:

1 BLACK ICE FRIEND OR FOE Most people hear black ice and think stuff happens especially if the police do not cite the driver and blame weather conditions. Many lawyers, without knowing the requirements of the Federal Motor Carrier Safety Regulations (FMCSR) and CDL manual, think black ice cases are impossible to win. This is wrong. Not only can a black ice case be won; punitive damages can be sought against a commercial truck driver and the trucking company for knowingly breaking basic safety rules. A client walks into your office and tells you that he was involved in a multi-car pile up in the winter as result of a tractor-trailer jackknifing on black ice. The client explains that the police didn t cite anyone in the crash and the cause of the crash is listed on the police report as adverse weather. Many lawyers, without knowing the requirements of the Federal Motor Carrier Safety Regulations (FMCSR) and Commercial Driver s Manual (CDL), may think this is a losing case, but they are wrong. In this article I will explain that not only can this case be won, but a case for punitive damages can also be made with the above facts. Let s start at the point where every trucking case must begin. And no, it s not the day of the crash. Every trucking case must start when the truck driver was hired. The obvious question that must be answered from the beginning is whether the trucking company hired a qualified driver? By qualified, I don t meant whether he or she had a CDL, I mean did the trucking company hire a driver that was qualified to drive in the areas and weather conditions where the trucking company does business. As we all know, unqualified drivers pose a risk to everyone on the road. Putting aside the other requirements of the FMCSR for qualifying a driver, let s focus on some basic questions as they relate to ice and snow (i.e. winter driving). Does the trucking company do business in geographic areas where winter conditions, such as snow and ice exist? If so, before hiring, did the company conduct a proper background check to investigate whether or not this driver had any winter driving experience? If the truck driver did have experience in winter conditions, what was the extent of the experience? Just because a driver may have had some experience driving in snow and ice, it doesn t mean he had the adequate experience or the skill necessary to operate an 80,000-pound tractor-trailer in hazardous weather conditions. For a truck driver to be minimally qualified to drive in snow and ice they must understand the provisions of the CDL manual which require drivers to match their speed with road conditions. The CDL manual in very simple terms states the following: Matching Speed to the Road Surface. You can t steer or brake a vehicle unless you have traction. Traction is friction 1

2 between the tries and the road. There are some road conditions that reduce traction and call for lower speeds. Slippery Surfaces. It will take longer to stop, and it will be harder to turn without skidding, when the road is slippery. Wet roads can double stopping distance. You must drive slower to be able to stop in the same distance as on a dry road. Reduce speed by about one-third (e.g., slow from 55 to about 35 mph) on a wet road. On packed snow, reduce speed by a half, or more. If the surface is icy, reduce speed to a crawl and stop driving as soon as you can safely do so. Black Ice. Black ice is a thin layer that is clear enough that you can see the road underneath it. It makes the road look wet. Any time the temperature is below freezing and the road looks wet, watch out for black ice. Vehicle Icing. An easy way to check for ice is to open the window and feel the front of the mirror, mirror support, or antenna. If there s ice on these, the road surface is probably starting to ice up. Did the truck driver know and understand these CDL manual requirements? To be hired, they should have, yet when deposed, many professional drivers have no idea what the CDL manual says with regard to these provisions. If a driver doesn t know, then how could they possibly be qualified to drive in winter conditions? The simple answer is they can t, and you have now revealed that the trucking company chose to disregard safety by hiring an unqualified driver, which will put you one step closer to punitive damages. The next step in handling a successful black ice case is to focus on the training provided by the trucking company. Did the trucking company provide specific training to drivers for the proper operation of a tractor-trailer on ice and in other hazardous winter conditions? Organizations such as JJ Keller not only provide written materials for trucking companies to use in training on winter driving, but they also provide informative training videos. These and other similar training tools will help you to understand the type of training and information a safe and reasonable trucking company should be providing to drivers as it relates to winter driving. These informative videos educate on what a truck driver should do with regard to driving in all types of winter conditions, from checking weather reports and planning routes prior to getting on the road to what should be done when they first encounter winter conditions, as well as driving in all types of winter conditions. These videos go into great detail, 2

3 covering everything from the effect that an engine brake has on traction in winter conditions to how a truck driver can prevent jackknifing or losing control in winter conditions. When a trucking company either 1) doesn t train or 2) provides training, but doesn t make it mandatory for all drivers, there is a systemic breakdown of safety because all safe and reasonable trucking companies 1) train their drivers and 2) know that the materials from organizations such as JJ Keller are readily available. Once again you are now able to show that the trucking company is making conscious choices to disregard safety. These conscious choices to disregard safety should trigger the judge in your case to allow for punitive damages. The best part is that all of this has happened before you even start talking about the day of the crash! If you can show to a jury that the trucking company hired a driver who didn t know the rules of safe driving and that the trucking company was not proactive in providing training, the jury can easily answer when asked what do you think happened on this ice covered road in February in the Northeast? When you finally start talking about the day of the crash, it is important to understand that the professional tractor-trailer driver has an obligation under the FMCSR to drive differently in snow and ice. FMCSR Hazardous conditions; extreme caution states the following: Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, 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. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured. What is the definition of extreme caution? It is not found in the FMCSR, but I would argue and many truck drivers and safety directors agree that a good definition of extreme caution can be found in the CDL. Reducing your speed to half on a snow packed road or to a crawl on ice certainly sounds like extreme caution as well as following the rules of the CDL for identifying black ice and vehicle icing. 3

4 When handling a black ice case, you must show that the driver had knowledge of the weather conditions before he or she set out on the road that day and obviously while he or she was driving. Professional drivers have weather apps, alerts at truck stops, alerts from their company s dispatch, alerts from other truck drivers, and good ole fashioned common sense when it comes to actually looking at the road and the conditions they are experiencing. Once you establish knowledge of the hazardous conditions, you can then proceed to all of the choices made by the truck driver that day that go against what are safe and reasonable as deemed by the rules outlined in the CDL and the FMCSR. Cases involving black ice, as do almost all of our trucking cases, come down to showing the jury that the driver made choices that he or she knew were unsafe. You must show that the driver had a choice to plan the route with the weather in mind, but instead chose to ignore all of the safe and reasonable alternatives that were available. You must also show that the driver had a choice to slow down, come to a crawl or stop in the hazardous conditions, yet made a choice not to, knowing full well that he or she was not exercising extreme caution in doing so. After you compare and contrast the choices that the driver made with the choices that were available and obviously safer, you can effectively argue that the driver was acting with reckless indifference to the safety of everyone on the road that day. It is the rarest of circumstances where black ice will suddenly appear leaving a driver with little or no time to react. The time to react and avoid the crash occurs hours, days and even years before the fateful event. There is a visceral response that jurors may have when they hear the words black ice which is that this crash was just an accident and unavoidable. You must be prepared for this, confront it head on, and show the jury how trucking companies and professional truck drivers who are well-qualified and well-trained, and chose to act reasonably and safely, deal with black ice without jackknifing or crashing. Finally, a few practice tips for anyone so inclined to pursue a case involving hazardous weather. 1. Hire a trucking expert that has specific experience in dealing with winter driving and training. 2. Hire a reconstructionist who has worked with crashes involving snow and ice and can explain how they affect the traction of a tractor-trailer. 3. Hire a weather expert to show that hazardous conditions did not just suddenly appear the driver to drive home the point that the driver should have reacted to the adverse weather conditions long before the crash. 4

5 4. Purchase the winter driving materials from JJ Keller so that you can provide a visual aid to the jury of what a reasonable and safe company does for its drivers. I would wish you all the best of luck in pursing your trucking cases, but remember luck is reserved for those who are not prepared. These intricate and important cases take enormous amounts of patience, research and detailed preparation. When you commit your time, energy and resources to this, not only do our clients win, but the motoring public wins as well. Ed Ciarimboli Fellerman & Ciarimboli ejc@fclawpc.com 5

٠ ATAA (2822) ٠

٠ ATAA (2822) ٠ www.trucklawacademy.org ٠ 1-800-997-ATAA (2822) ٠ info@trucklawacademy.org NOW WHAT? 392.14 Hazardous conditions; extreme caution. Extreme cau+on in the opera+on of a commercial motor vehicle shall be