Atlanta Injury Law Blog

On Monday, 7/6/05, on I-85 in NC, a spool of cable fell off a flatbed tractor trailer. A motorcycle rider hit the spool, and was thrown into the path of an oncoming tractor trailer. Ashley Raymer of Asheville died at the scene. The driver who lost the spool of cable, Larry Allen Smith, 59, of Concord, may face charges.

The Charlotte Observer report of the incident does not clarify whether the truck was operating interstate or intrastate. However, all states have adopted the bulk of Federal Motor Carrier Safety Regulations as intrastate trucking safety rules.

Federal Motor Carrier Safety Regulation, 49 CFR 392.9 , in pertinent part, states:

(a) General. A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless- (a)(1) The commercial motor vehicle's cargo is properly distributed and adequately secured as specified in 393.100 through 393.114 of this subchapter. (a)(2) The commercial motor vehicle's tailgate, tailboard, doors, tarpaulins, spare tire and other equipment used in its operation, and the means of fastening the commercial motor vehicle's cargo, are secured; and . . . (b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must-

(b)(1) Assure himself/herself that the provisions of paragraph (a) of this section have been complied with before he/she drives that commercial motor vehicle;

(b)(2) Inspect the cargo and the devices used to secure the cargo within the first 50 miles after beginning a trip and cause any adjustments to be made to the cargo or load securement devices as necessary, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from the commercial motor vehicle; and

(b)(3) Reexamine the commercial motor vehicle's cargo and its load securement devices during the course of transportation and make any necessary adjustment to the cargo or load securement devices, including adding more securement devices, to ensure that cargo cannot shift on or within, or fall from, the commercial motor vehicle. Reexamination and any necessary adjustments must be made whenever -

(b)(3)(i) The driver makes a change of his/her duty status; or

(b)(3)(ii) The commercial motor vehicle has been driven for 3 hours; or

(b)(3)(iii) The commercial motor vehicle has been driven for 150 miles, whichever occurs first.

(b)(4) The rules in this paragraph (b) do not apply to the driver of a sealed commercial motor vehicle who has been ordered not to open it to inspect its cargo or to the driver of a commercial motor vehicle that has been loaded in a manner that makes inspection of its cargo impracticable.

It appears that the driver of this flatbed tractor trailer failed to comply with this regulation. I haven't checked North Carolina law on this point, but there is case law around the country holding that violations of Federal Motor Carrier Safety Regulations may be considered negligence per se, or negligence as a matter of law.

The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).

North Carolina:

In Hart v. Ivey, 420 S.E.2d 174 (N.C. 1992) the court stated:

"When a statute imposes a duty on a person for the protection of others we have held that it is a public safety statute and a violation of such a statute is negligence per se unless the statute says otherwise. Funeral Service v. Coach Lines, 102 S.E.2d 816 (1958); Lutz Industries, Inc. v. Dixie Home Stores, 88 S.E.2d 333 (1955). A member of a class protected by a public safety statute has a claim against anyone who violates such a statute when the violation is a proximate cause of injury to the claimant. Aldridge v. Hasty, 82 S.E.2d 331 (1954)."

Georgia:

In J.R. Mabbett & Son, Inc. v. Ripley, 365 S.E.2d 155 (Ga. App.1988) the court held:

"Mabbett [the defendant trucking firm] also had a duty under both state and federal statutes to maintain its vehicles in safe condition at all times. OCGA § 46-7-68(1). "Every motor carrier shall systematically inspect, repair and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its control." Federal Motor Carrier Safety Regulations, 49 CFR, Ch. III, § 396.3 (10-1-86 ed.). Under OCGA § 46- 7-78, failure to comply with the provisions governing motor common carriers constitutes a misdemeanor. "It is well settled that violation of a statute . . . is negligence per se." White v. Cline, 449, 330 S.E.2d 386 (Ga. App. 1985); Cox v. Cantrell, 353 S.E.2d 582 (Ga. App. 1987). Clearly Mabbett owed a duty to Ripley, who was required by his job to use the walkway on top of trailer # 208, to use reasonable care in inspecting the trailer and to keep it in such condition as to be used with reasonable safety. See Atlanta & West Point R. Co. v. Creel, 47 S.E.2d 762 (Ga. App. 1948)."

Wallace v. Ener, 521 F.2d 215 (5th Cir.1975) (violations of 49 C.F.R. sections 392.22 and 939.95 are negligence per se under Georgia law).

But see, Houston v. Bedgood, 588 S.E.2d 437 (Ga. App. 2003) (Federal motor carrier safety statute and regulation did not impose duty of care for motorist killed in collision with truck on physician who issued Department of Transportation medical examiner's certificate certifying truck driver as physically fit to drive commercial tractor-trailer and free of current heart problems; motorist was not a patient).

Similarly, proximate causation is always an issue and the existence of a federal regulation does not necessarily give rise to negligence per se. Parker v. R & L Carriers, Inc., 560 S.E.2d 114 (Ga. App. 2002). In Parker, the employee, a truck driver, violated the Federal Motor Carrier Safety Regulations by driving beyond the number of hours permitted. The court found that irrelevant to the employee's running a red light. Id. at 115. "The proximate cause of the accident was the failure to yield the right of way, not the failure to follow federal regulations. [The employee's] inattention or fatigue may have explained his failure to yield the right of way . . . but whether his fatigue violated a federal regulation is irrelevant."

Colorado: Hageman v. TSI, Inc., 786 P.2d 452 (Colo. App.1989) (violation of federal regulations requiring disabled vehicle to place warning devices for approaching traffic and to pull onto shoulder of road constitutes negligence per se under Colorado law).

Delaware: Taylor v. Pennsylvania R.R. Co., 246 F.Supp. 604 (D.Del.1965) (violation of federal motor carrier regulation requiring stop before railroad crossing is negligence per se under Delaware law).

Florida: Florida Freight Terminals, Inc. v. Cabanas, 354 So.2d 1222 (Fla. 3d DCA 1978) (trial court erred in refusing to instruct the jury that violation of applicable Federal Aviation Administration regulations regarding loading of airplanes was negligence per se).

Indiana: Indian Trucking v. Harber, 752 N.E.2d 168 (Ind. App. 2001); Town of Montezuma v. Downs, 685 N.E.2d 108, 112 (Ind. App. 1997) (under Indiana law, an unexcused or unjustified violation of a duty dictated by statute is negligence per se).

Mississippi: Strong v. Freeman Truck Lines, Inc., 456 So.2d 698 (Miss.1984) (violations of 49 C.F.R. sections 392.21 and -.22 are negligence per se under Mississippi law).

Texas: The unexcused violation of a legislative enactment or an administrative regulation which is adopted by the court as defining the standard of conduct of a reasonable man, is negligence in itself. Restatement (Second) of Torts § 288B (1) (1965); see also Saenz v. J.D. Rodriguez Produce & Trucking Co., No. 04-99-00867-CV, 2000 WL 33225303, at *3 (Tex. App. 2000) (unexcused violation of a statute constitutes negligence as a matter of law if such statute was designed to prevent injury to the class of persons to which the injured person belongs). In order to be liable, however, the defendant's conduct must still be a legal cause of the harm to the plaintiff. Restatement (Second) of Torts § 288B (1) cmt. b.; Missouri Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977) (finding of negligence per se only subjects one to possible liability, and a showing of proximate cause is still required); Saenz, 2000 WL 33225303, at *3 (the factfinder must decide if the tortfeasor committed the act proscribed by the statute and if the act proximately caused the injury); see also, Yap v. ANR Freight Sys., Inc., 789 S.W.2d 424, 427 (Tex. App. 1990) (federal motor carrier safety regulations merely establish the standard of care required by law).