Operating in Hazardous Conditions: Overview
The hazardous conditions regulation creates a significant issue in any case where an accident involving a CMV occurs in bad weather. Failing to address the regulation in deposition and discovery and failing to argue it and seek its charge, is inexcusable in a bad weather case. The higher duty created under the regulation is the stuff of motor carrier insurer nightmares, and a potential bombshell against the defense.
Regulation imposes a duty of “extreme caution.” This duty arises “when hazardous conditions such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect vision or traction.” In those situations, speed shall be reduced, and if the conditions become sufficiently dangerous, operation of the CMV “shall be discontinued” and only resumed when the CMV can be “safely operated.” Moreover, if passengers are onboard, the CMV is to be operated “to the nearest point at which the safety of the passengers is assured.”
First, forget about the usual standard of “ordinary care.” If a case involved bad weather, counsel should push for charge based on this statute. Bear in mind that it is not just vision difficulties that may trigger the statute. Traction is an equal reason to exercise “extreme care.” If the driver admits that the rain caused any degree of loss of traction, counsel arguably has a “hazardous condition,” whether or not his vision was obscured. The events giving rise to a hazardous condition do not seem to be limited to those enumerated, since the phrasing (i.e., “such as”) indicates the use of examples, and not the establishment of a finite list. For example, if the driver testifies that he felt his trailer being swayed by high winds, might that not represent a traction issue?
Note that operation when passengers are on board is permitted to a point of safety for the passengers. Arguably this means if no passengers are on board, operation should be discontinued immediately, at least where the vehicle does not create a traffic hazard.
Look at the motor carrier’s weather information/operation shut-down system. Many motor carriers have sophisticated systems, using Qualcomm messaging, to broadcast weather alerts and shutdown notices. Even if the local jurisdiction has not issued a shut-down notice (make sure to check that, too) the motor carrier may have done so. Seek to determine whether the local jurisdiction used weather alert signs, and if so, what they said. Were there other accidents in the area that, by timing, the driver must have passed on the way to his wreck?
If counsel can find police reports that document four incidents where cars slid off the road in the ten miles before the incident in question, and the defendant driver says he had no idea there was ice, his credibility will be in question. However, be mindful that the plaintiff likely traversed that same stretch of road. If so, it is important to head off the inevitable comparative negligence defense by making sure the jury knows the “extreme caution” rule, and why it applies to 80,000 pound vehicles.
The 911 call logs and transcripts for whatever time preceding a wreck should also be ordered and reviewed. Were there numerous calls about other incidents? Icy conditions in general? What did the state patrol officers have to say about conditions? If they recall working wrecks since daylight because of fog, and your wreck happened at ten in the morning, a hazardous condition may have been ignored by the driver and his employing motor carrier.
In this regard, remember to get a clear statement of the motor carrier’s policy about weather conditions. If the motor carrier prohibits driving on ice, and had issued ice warnings before the subject wreck (which possibly recited the company policy prohibiting operation on icy roads), counsel may be able to use this ice to create heat.
In taking his deposition, do not forget to craft questions for the driver that are calculated to make him think he is absolving himself by blaming the weather. If the driver thinks he is getting off the hook because he operated in bad weather, a harvest of incriminating testimony may ensue. Also, be sure to ask basic question like: Was he using his wipers on high? Had he activated his flashers? Did he have trouble getting to the terminal that day because of the weather? Did he hear reports on the radio? Was there CB chatter about conditions?
Another deposition strategy with potential is the tried and true questioning of a driver that results in him blaming his employer for the fact that he was driving in hazardous conditions (or, as the case may be, former employer). If the driver expresses that he had some concerns about the conditions, but his driver manager told him he really needed to get that load to the consignee, a direct liability claim against the motor carrier has just become stronger. If the case warrants it, counsel should also try to find out who provides the motor carrier’s drivers with training and instruction about weather issues, shut-downs, and the like. That person may need to be deposed. Counsel may be pleasantly surprised to find that the company’s understanding, and the routine basis that it claims to instruct its drivers, is radically different from what the driver understands, especially if he was terminated for the underlying wreck. Do not avoid giving the driver a chance to blame someone other than himself for being on the road when the accident happened. Finally, if the wreck involved team drivers, do not overlook what the co-driver might have to say about the hazardous conditions.