Driver of pickup truck loses control on Texas interstate, crosses median and strikes oncoming semi-trailer truck. Among passengers in pickup truck are two kids, one killed and one horribly injured. Driver of oncoming semi was in own lane, did not lose control, and was driving under speed limit. Plaintiff’s creative theory: there might have been ice on the road, the Werner Enterprises manual tells drivers not to drive during icy conditions; so the driver should not have been on the road at all, and if he hadn’t it would have averted that particular collision. Werner, in its defense: not only was evidence contradictory as to whether conditions were icy or just damp, but driver guidelines do not somehow create legally binding obligations to third parties or prove negligence that could not be shown otherwise. Jury to Werner Enterprises: pay $89.6 million. [Michael O’Connor, Omaha World-Herald]
27 Comments
I guess there’s no Palsgraf doctrine in Texas tort law.
This would make a good final exam question in a torts class. It’s well established that conduct, even if negligent, that relates to an accident only because it put someone in a particular place at a particular time is not a proximate cause of the harm that wouldn’t have occurred if that person had been elsewhere. The classic example is some one who parks in front of a fire hydrant. If a building burns because this prevented the fire department from getting to the plug, the car’s driver would be liable. But if a kid on a skateboard falls and cracks his skull on the car, no liability. Parking in front of a hydrant is negligent because it blocks access to the hydrant, not because it puts a car where someone might bump into it. If the harm that occurred was not the kind of harm the safety rule the defendant violated was meant to prevent, the violation of that rule was not the proximate cause of the harm.
If I was Werner’s lawyer the question that I would have asked is “Mrs. Blake, if the weather was so bad that a trained professional driver shouldn’t have been on the road, why were you on the road?”
But that goes to contributory negligence, which is not a complete defence in Texas. Of course there’s going to be contrib – the car crossed the median. But Werner won’t be happy to have to pay “merely” $20m when their only wrongdoing is to be a deep-pocketed actor in the vicinity of the incident. There is simply no causation.
Besides the ludicrous theory that a victim of the accident is actually liable for it, this part doesn’t make sense:
“Penn said if the Werner driver had followed the manual, the semitrailer would have been off the road and therefore, the pickup containing the Blake family would not have crashed into it.”
OK… but the company manual isn’t the law. So how could this make them liable? If the manual said that drivers shouldn’t drive on odd-numbered days, then would they be legally liable for any accident on an odd-numbered day no matter the circumstances? Their own policies are entirely an internal matter.
It’s hard to understand how the truck is the proximate cause of the injury–yes, but for the fact that the truck was on the road, the injuries would not have happened.
If one really thinks about the plaintiff’s position, it’s that the trucker had no right to be driving his truck (in accordance with traffic rules), and that is nonsense.
The main manual at issue was the state-issued Commercial Driver’s License Manual, not “the Werner Enterprises manual”.
Do you think that liability is supported here?
I think the semi driver probably was driving at an unsafe speed for the conditions. Instrumentation on the semi recorded that it was going 50.5 mph, despite the road having completely iced over (as evidenced by the lack of skid marks). And, had he been driving at a safe speed, it’s likely the damage would have been less.
So I don’t think it’s completely ridiculous to attribute some of the blame to the semi. As a policy question, though, I would say that whenever a plaintiff is more than 50% to blame for his own injuries, he should probably just be told to bear 100% of his damages and make better decisions in the future.
The court’s denial of summary judgment last year was made without any written opinion, but you can read the brief the judge sided with here:
https://drive.google.com/file/d/12AwNn-XgwJqzo-loJtrfZ07GJmSnve_g/
Oops, I was forgetting that the plaintiffs are the passengers in the pickup, not the pickup driver. Of course, it’s a bit muddled in that if the plaintiffs receive a large judgment, their father the pickup driver is likely to see some of it.
In light of that, and assuming the evidence at trial did support a finding that the semi was driving at an unsafe speed for the conditions, I guess I may not have a problem with the plaintiffs recovering a portion of their damages from the semi or its owner. But I still don’t think I would ever conclude, as the jury did, that the pickup driver was only 16% at fault.
“…and assuming the evidence at trial did support a finding that the semi was driving at an unsafe speed for the conditions…”
But that just gets back to the matter that the driver of the truck was not in any way the proximate cause. His presence was incidental, and perfectly lawful.
Indeed, had the driver been going even the slightest bit slower or even faster, even by fractions of a mile per hour during the preceding minute, he would have been at a different place in the road. The presence of the truck at the specific place and time were pure happenstance, and no fault whatsoever can be ascribed.
Yes, it appears to be the state manual at issue.
The state also issues a driver handbook for non-commercial drivers. If their argument is that such manuals are to be strictly followed, then I would say that the plaintiffs should have to show that they were also strictly following the driver handbook.
The driver handbook says “Chains are the most effective and should be used where ice and snow remain on the road “- so did they have chains on their tires? Did they reduce speed to correspond with conditions, and follow the other winter driving safety tips? Did they follow the instructions in the “Running Off the Pavement” and “Steering Out of a Skid” sections once they started to lose control?
Although I know nothing about the details of what happened, it strikes me as extremely unlikely that someone would lose control to the extent of crossing an interstate median into oncoming traffic if they were following everything in the handbook.
Just another reason why nobody wants to drive a semi anymore
With an overwhelming shortage of professional drivers these days this case should have never seen the light of day , prayers to the Blake family but this accident was exactly that an accident and in no way was the fault or responsibility of another motorist on the road. Pretty sad day
Accident? hardly. Blake was driving in a manner that was inappropriate for the road conditions. Coefficient of friction is the unwritten law of the road, and slipped and fallen on their butts knows, physics is highly predictable, but very unforgiving for those who attempt to violate. Darwin.
After reading all of the above statements, the conclusion should be based on a few very simple factors.
1. Was the driver operating his tractor trailer in a safe and law abiding manner?
Answer Yes
2. We’re there any citations issued to the driver of the tractor trailer at the scene of the accident? Unstated
3. What caused the pickup involved to loose control, cross the median, and impact the other vehicle with enough impact to cause such devistation? Unstated
4. Was the “Black Box” from the pickup anylized to determine what information relevant to this case would be discovered? If so, what were the results? speed … ect.
5. Did the Texas DOT or Texas State Police issue any travel advisories, warnings, or closures with regard to road conditions? Unstated.
In conclusion, if there were no citations and the professional driver was not charged with any moving violation how could there be a basis for a civil judgement? Although this is tragic, it was an accidental. It does not appear to be the falt of the driver from Werner.
That’s disputed. According to the plaintiff’s motion Alan linked, he was in the left lane, which he should not have been unless he was passing someone, and the plaintiff says that he should not have been on the road at all if there was ice. (Of course, the pickup was *also* in the left lane. Was *he* passing someone? And it’s OK for the pickup to be on the road when there’s ice?) The posted limit was 75, and the truck was going 50.5 when it started to brake. That complies with the 1/3 reduction in speed that the CDL driver’s manual recommends for wet pavement, but not with the “slow to a crawl and get off the road when safe” recommended for icy pavement.
It doesn’t matter if there weren’t; the plaintiff doesn’t have to limit himself to what the police decided to charge. For one thing, the standard of proof is different, and for another, the police have discretion on whether to cite.
It was stated that a vehicle in front of the pickup started to fishtail, the pickup driver took his foot off the gas, and at the same time the pickup hit some black ice and started to spin out.
I don’t think the motion says what speed the pickup was going or anything about its black box, although it *does* make sure to mention that road conditions coming from their direction were fine until a few minutes before the wreck. That may indicate that it’s not something in their favor. And the fact that they were in the left lane might indicate that they were going faster than some other traffic.
I don’t know if any warnings were issued by the Texas DOT or State Police in particular, but the National Weather Service had issued a winter storm warning. Obviously the road itself was not closed. (Of course, any weather advisories were just as knowable by the pickup driver as the truck driver.)
The party found most at fault was actually not Werner’s driver (who was only found 14% at fault as opposed to the pickup driver’s 16%), but Werner itself (found 70% at fault) – presumably for having a driver in training driving in those conditions (his trainer was apparently sleeping in the back at the time; they were trading off driving), for dispatch not telling them to use another route, for pushing too hard for 100% on-time deliveries, etc. While those may be legitimate concerns, they are *not* the reason for the accident.
So if the guy had collided with a private car…he would have been at fault ? No wonder the cost of everything is jacked…those settlements get passed to the consumer.
I live in Texas, and I see a lot of lawyer ad’s that troll for clients who have been in an accident with a company vehicle, particularly 18 wheelers.
No wonder. I feel for the family’s loss but from the facts presented in the article this was a wildly unjust decision by the jury.
Texas DoT has been stringing cables down the medians of interstates for several years now to catch errant vehicles.
Joseph Maffeo, I don’t think the yes to your first question is that clear cut. The Summary Judgment opposition contains substantial evidence that the driver was not operating the vehicle in a safe and law abiding manner. Given that, if there was evidence at trial that injuries would have been less if he had been operating the vehicle in a safe and law abiding manner (at 15-20 miles per hour or less according to some of the evidence cited), then there could be liability. The MSJ opposition does rely heavily on the idea that the “truck shouldn’t have been there” which they should not have been allowed to argue to the jury. Even if they did properly limit the argument to injuries caused by an unsafe speed by the truck, the apportionment of fault seems ridiculous, and that with the high damages suggests a level of passion against the truck company. I do wonder if the verdict would have been different if the Driver’s name was Smith rather than Ali.
The TX Commercial Driver’s License Manual can be found here:
TX Com Drv Lic
A quick search will find roughly two dozen occurances of the word “ice” or “icy” in the manual, most instruct the driver how to operate the vehicle in such conditions. Were there some affirmitive duty not to drive on Ice, such conflict could be easily avoided “Don’t drive commercial vehicles on Icy Surfaces.” TX, in drafting the manual, chose not to do so.
This decision is a travesty.
To save interested persons the effort of checking my assertion, here are the relevant Paragraphs –
Melting Ice. Slight melting will make ice wet.
Wet ice is much more slippery than ice that is
not wet.
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.
Ice Cream Trucks. Someone selling ice cream is
a hazard clue. Children may be nearby and may
not see you.
Radiator Shutters and Winterfront. Remove ice
from the radiator shutters. Make sure the
winterfront is not closed too tightly. If the shutters
freeze shut or the winterfront is closed too much,
the engine may overheat and stop.
Check for Ice. Check for ice on the road,
especially bridges and overpasses. A lack of spray
from other vehicles indicates ice has formed on the
road. Also, check your mirrors and wiper blades for
ice. If they have ice, the road most likely will be icy
as well.
Adjust Speed to Conditions. Don’t pass slower
vehicles unless necessary. Go slowly and watch
far enough ahead to keep a steady speed. Avoid
having to slow down and speed up. Take curves at
slower speeds and don’t brake while in curves. Be
aware that as the temperature rises to the point
where ice begins to melt, the road becomes even
more slippery. Slow down more.
By far the most common skid is one in which the
rear wheels lose traction through excessive
braking or acceleration. Skids caused by
acceleration usually happen on ice or snow.
Taking your foot off the accelerator can easily stop
them. (If it is very slippery, push the clutch in.
Otherwise, the engine can keep the wheels from
rolling freely and regaining traction.)
Some air brake systems have an alcohol
evaporator to put alcohol into the air system. This
helps to reduce the risk of ice in air brake valves
and other parts during cold weather. Ice inside the
system can make the brakes stop working.
Winter ice and snow mean gearing down on grades to
avoid wheel-spinning and brake lock-up which can
lead to jackknifing. If you find a traffic jam-up and multiple
vehicle accidents, stay back and wait for them to
clear before trying to get your rig through.
The most support I can find for your position is Section 2.6.2:
2.6.2 – Matching Speed to the Road Surface
You can’t steer or brake a vehicle unless you have
traction. Traction is friction between the tires 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.
And for reference, here is what the TX Driver’s Handbook (not commercial) has to say about winter conditions:
Winter Driving
Most drivers realize winter creates additional hazards, but many drivers don’t know what to do about it. Here are a few precautions
you should follow during winter.
Table 25: Winter Driving Safety Tips
Maintain a safe interval
Increase the distance from the vehicle ahead of you according to the conditions of the pavement. Many rear-end collisions occur on icy streets because drivers don’t leave space to stop. Snow tires will slide on ice or packed snow. To keep safe you must keep your distance.
Reduce speed to correspond with conditions
There is no such thing as a “safe” speed range at which you may drive on snow or ice. You must be extremely cautious until you are able to determine how much traction you can expect from your tires. Avoid locking of brakes on ice as it will cause a loss of steering and control. Every city block and every mile of highway may be different, depending upon sun or shade and the surface of the road.
Keep windows clear
Remove snow and ice before you drive, even if you’re just driving a few miles. Make certain the windshield wipers and defroster are working properly.
Watch for danger spots ahead
There may be ice on bridges when the rest of the pavement is clear. Snow melts more slowly in shady areas. Take precautions when approaching turns.
Get a feel for the road
Start out very slowly. It is useless to burn the rubber off your tires by spinning the wheels. Test your brakes gently after the car is in motion to determine how much traction you have. Start slowing down before you come to a turn.
Equip your vehicle with chains or snow tires
Chains are the most effective and should be used where ice and snow remain on the road. One word of caution, neither chains nor snow tires will permit you to drive on slick pavement at normal speeds so don’t get a false feeling of security
As one who has purchased tires many times in TX, I’d be willing to bet the driver of the car had neither chains, nor snow tires, and likely negligible experience driving in either snow or ice (or, judging by the spike in accidents each time someone spits on the roadway, “rain/puddles/damp”)
The jurors just think: “A child died! And Big Corporations have all that money!”
Love to read the article, but I guess not:
http://www.omaha.com/news/courts/werner-enterprises-plans-to-appeal-monster-million-verdict/article_201ffc77-786f-5a38-9bdd-91f312b70f57.html
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It’s amazing how complicated this is–truck driver is driving within posted limits and someone crosses the median, and it’s the trucking company’s fault.
Um no. I get it–jurors have to apportion blame, and there’s no real magic to it. Seems to me that the reality is that the semi-truck driver/company simply weren’t doing anything wrong. And, would any one of us think that this was somehow a just result if he or she were stuck with ruinous damages because someone crossed the median and wound up hitting the car crossing the median?
If there was actually evidence that the truck was going too fast for conditions, and the excessspeed caused an increase in the injuries there could be a basis. If the plaintiffs were able to pound on much of the argument in the msj, basically the truck shouldn’t have been where it would be hit, there’s a pretty good argument for a mistrial.
I don’t think you really address my point–the issue is that the standard applied to the trucker could be applied to any one of us with ruinous damages in a situation that just about everyone would say is just not our fault.
This is rather hard to wrap you head around but as a multi-line adjuster in Texas please follow. When I first read the headline like many others I thought WTH? and got upset with the plaintiff attorneys. Then I remembered, it wasn’t the driver of the pickup with the dead and injured that was suing Werner, the suit was on behalf of the dead and injured passengers. Given that the Werner driver was assessed liability and the driver of the pickup was also assessed liability, then the passengers with 0% liability had less than either.
This is a case where defense counsel screwed up royally by not recognizing this and recommending that Werner open the checkbook early on and get out of town. Had a similar case I handled where a drunk driver crossed the centerline of a highway and ran head on into one of our insured’s semi’s. Killed both the drunk and his passenger. Settled with estate of passenger so as he had zero liability and if it could be shown that our driver was just 1% at fault, we were sunk.
Hmmm, they had liability, they chose to ride with the driver that crossed the median. Why do choices like which lane to be in, which road to be on, or to be on the road at all count but choosing to travel at that time and with that driver do not?