Florida Truck Accident Article from Smith, Ivey & Fronrath

Tractor-Trailer Underride Accident Analysis:  Steering the Case to a Positive Result
By: Scott Smith, Esq.

It is inherent in tractor-trailer rear and side underride accident cases that the motor vehicle operated or occupied by the injured victim is the vehicle that made contact with the rear or side of the involved tractor-trailer.  Typically, the much smaller car is driven into the rear or side portion of the attached trailer (18 wheeler) and often at highway speeds.  As a result, underride accidents routinely do not get pursued by the attorney representing the injured driver or passenger of the car that crashed into the large truck.  The injured person or survivor is then usually left with only a bodily injury and/or underinsured motorist recovery, if such coverage is available and can be secured.  Or, the attorney representing the injured victim (or his/her survivors) who was situated in the car will attempt to pursue an underride case against the truck driver and motor carrier, but ultimately abandon any potential claim because of the challenging liability aspects of such a case.

Conventional wisdom would probably even beg the question:  Who could blame a lawyer for not wanting to get bogged down in such a case?  In Clampitt v. D.J. Spencer Sales, 786 So.2d 570 (Fla. 2001), the Florida Supreme Court engraved into Florida jurisprudence the common sense holding that the rear ending motor vehicle in a rear end accident is presumed to be negligent in causing the crash because he/she had the best opportunity to avoid the accident in the first place.  Thus, there is little attraction for an attorney to spend large amounts of time and money in a case in which summary judgment or directed verdict seems not only a possibility, but perhaps even likely.

The problem with making such a concession though is the fact that underride accidents involving smaller passenger motor vehicles and large tractor-trailers almost always produce very serious, often fatal, injuries to the occupants of such vehicle.  It is almost axiomatic that very serious injuries always occur in such accidents because the motor vehicle continues to move forward underneath the side of the trailer or beyond the trailer's rear impact guard until the trailer crushes the hood area of the car, shatters its windshield, smashes the dashboard area and ultimately enters into the front, and possibly rear, occupant area of the car causing horrible injuries, sometimes even decapitation.

Although it is true that tractor-trailer underride accident cases are sometimes tough to pursue, it is also true that recoveries have been made, and continue to be made, against motor carriers in such cases on various theories of liability.  As stated immediately within this article, underride accidents are the result of a car driving into and ultimately underneath the side or rear of a tractor-trailer, however, analysis of the accident should not stop there.  Careful consideration should be given to many other factors that may have directly caused or significantly contributed to the underride accident and/or the enhanced injuries caused by trailer intrusion into the occupant area of the car.  All circumstances and facts surrounding the accident should be thoroughly analyzed before formulating any opinion about the merits of a potential underride case.

First, a detailed inspection of the Florida truck accident's location and the tractor-trailer should be conducted.  Even though law enforcement (investigating agency and Florida D.O.T.) photographs of the scene and of the involved vehicles are typically available following such accidents because of the likelihood of serious injury, the attorney should not rely upon the photos alone in determining important aspects of the accident, ie. where exactly was the truck stopped at time of impact and was the tractor-trailer in compliance with federal, state and local law.  The attorney or a retained expert of the attorney should inspect the accident site and visualize the truck in person.  (Author's note: In addition to obtaining the crash report or traffic homicide report, counsel should also obtain the tractor-trailer inspection report completed by a Florida D.O.T. Compliance Officer following commercial motor vehicle accidents involving serious injury or death).

Through the inspection it can be determined if the truck has complied with various federal, state and local regulations.  49 C.F.R. §§ 393.9-393.33 of the Federal Motor Carrier Safety Regulations require markers, identification lamps, clearance lamps facing the front, sides and rear of the vehicle, head lamps, tail lamps and turn signal lamps.  Further, the regulations require reflex reflectors or retroreflective material be placed on the back of trailers manufactured after December 1, 1993 and on the back of tractors manufactured after July 1, 1997.  The rear of the trailer is required to have an alternating red and white stripe extending from one side of the trailer to the other and be 4 feet from the roadway or as close as possible.  Moreover, the entire portion of the rear impact guard must have the reflective material.  49 C.F.R. § 392.33 also states:  "No commercial motor vehicle shall be driven when any of the required lamps or reflectors are obscured by the tailboard, by any part of the load, by dirt or otherwise."  These rules arose out of conspicuity (ability to perceive/visualize) concerns surrounding the use of tractor-trailers.  In 1991, NHTSA published proposed rulemaking that emphasized the need to reduce the incidence and severity of collisions with large trailers during conditions of darkness or reduced visibility.  No matter what causes the tractor-trailer to be inadequately illuminated, it is essentially impossible for any motor carrier to take the position that additional lighting equipment or clean reflective materials would not enhance the conspicuity of the large truck.

Likewise, the weather and other conditions at the time of the accident should also be carefully considered.  Inclimental weather and hazardous conditions can greatly reduce the ability of a driver to see the side or rear of the tractor or trailer.  If the truck is not properly illuminated as discussed herein, it will be even more difficult to see in poor weather conditions.  Conversely, even if the tractor-trailer is outfitted in compliance with all applicable regulations, it may still be extremely difficult to see in bad weather.  49 C.F.R. § 392.14 mandates the following of truck drivers and owners:

"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."
As a result, if hazardous conditions were present at the time of the accident, it can be legitimately argued that the truck driver should have been using extreme caution when operating the truck and maybe should not have been on the road at all.

Notwithstanding that the tractor and trailer may have both been properly illuminated and marked at the time of the crash, and also notwithstanding that there may have been no hazardous conditions present, the location and/or position of the stopped rig should still be considered.  Further, the reason for why a tractor-traler is parked or stopped must be addressed, and the amount of time that such truck had been positioned at the spot of the accident is relevant.  49 C.F.R. § 392.22 requires the truck driver to activate the hazard warning signal flashers whenever the truck is stopped upon the traveled portion of a highway or the shoulder of the highway for any cause other than necessary  traffic stops.  Also, the rule states that whenever a truck is stopped upon the highway or the shoulder for something other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place emergency warning devices out (ie. reflective triangles, flares).  Therefore, analysis should be made as to why the truck was stopped, where it was stopped, for how long had it been stopped and what safety measures were being utilized while it was stopped.

In addition to all the of the above considerations, counsel should always, as with any other case involving a commercial motor vehicle, determine the background, experience and competency of the truck driver.  The driver qualification file of the truck operator should be obtained.  Further, the driver's hours of service logs should be requested and examined to determine if the driver had obtained sufficient rest before operating the truck.  When examining the file and the logs, consideration should be given to the veracity of such materials.  For example, if the log book indicates the driver was resting the required amount of time, but the same log also states the driver had covered 1,200 miles in an 11 hour period, something is clearly not correct.  Also, it should never be assumed the driver is qualified and competent.  A determination should be made about whether the driver was medically qualified, had satisfactorily completed a road test and had a valid commercial driver's license.

Finally, consideration should sometimes be given to pursuing a claim that alleges the rear impact guard (a/k/a ICC bumper and trailer underride guard) is defective in design and/or manufacture, or that such rear impact guard is not in compliance with the regulations.  For instance, trailers manufactured on or after January 26, 1998 must comply with the following:

1. Outermost surfaces of the guard must extend to within 4 inches of the side of the trailer and should not extend beyond either side of the trailer;
2. The bottom surface of the guard should not be more than 22 inches off the ground;
3. The rearmost portion of the guard must be within 12 inches of the rear extremity of the trailer.

Additionally, in Rivers v. Great Dane Trailers, Inc., 816 F.Supp. 1525 (M.D. Ala. 1993), a federal district court  ruled that Florida courts would recognize a products liability action based on a claim that the rear impact guard was defectively designed.  The challenge associated with the defective or non-compliant rear impact guard theories of liability is that not only must it be proved the guard was defective, but also that such defect was a legal cause of the injuries complained of.  Again, underride cases typically involve cars hitting a trailer at highway speeds because the driver never saw the trailer before impact.  Thus, the main defense of such a case is that very serious injuries would have ensued no matter what kind of guard was attached to the rear of the trailer.  Nevertheless, such a claim is permitted and can have merit because it is now generally accepted that stronger, wider and lower rear impact guards could prevent the rear portion of the trailer from penetrating the occupant compartment of the motor vehicle.  (Author's note: The requirements for size, width, length and strength of rear impact guards in the European Union are much more stringent than in the United States.  Impact guards along both sides of the trailer are even required in the EU.)

In conclusion, the tractor-trailer underride case should always be considered following any accident that involves a motor vehicle going up underneath the rear or side portion of a trailer.  As noted previously, careful consideration should be given to other factors that may have caused or contributed to the accident other than driver error of the motor vehicle operator.  Detailed examination of the accident scene and subject truck should always be completed.  Also, before any attorney considers concluding a case that involves a car hitting a trailer, such attorney should consider the potential of pursuing an underride case.  In addition, the attorney should also ensure that any release executed by any occupant of the motor vehicle does not contain language that could prejudice a claim against the driver of the tractor-trailer, the motor carrier and the manufacturer of the rear impact guard, among others who could be held liable for contributing to the underride event and/or the enhanced injuries of the plaintiff.  As discussed herein, truck underride cases can be challenging, time-consuming and costly.  Therefore, it is critical that the potential truck underride accident cause of action be initially recognized by counsel and properly pursued from the outset of representation.