Rear underride crash test

Death by decapitation due to trailer underride  can  result when tractor trailers park on the roadside.

The kneejerk response of most people seeing pictures of these incidents is to simply blame the dead person. But it’s not that simple. When an innocent passenger is killed or maimed, some portion of fault is normally apportioned to the driver who departed from the traffic lane for whatever reason. But it is necessary to also examine a trucking company’s decision to violate safety standards by parking a big rig on the side of the road.

A lot of people who see these collisions and are uninformed on the safety standards involved assume that it is always 100% the fault of the driver of the car that struck the parked tractor trailer. Thus, it is necessary to thoroughly investigate and, if possible, refute potential defenses. If the driver of the car had a cell phone, it is worth the cost to do a forensic download and rule out driver distraction from a cell phone at the time of the crash. A reliably conducted medical examination or autopsy is needed to rule out alcohol or drug use that may have contributed to cause of the crash.

In over 40 years of law practice, including 28 years representing individuals and families devastated by highway crashes with big commercial trucks, one of the least understood hazards is that of tractor trailers parked on the side of the road.

Just about every time I drive through Georgia late at night, I see unlit tractor trailers parked in the dark inches from the right traffic lane . Too many people even in the trucking industry do not understand how hazardous this can be.

It is foreseeable that cars will occasionally leave the traffic lane. That can happen for any of a number of innocuous reasons that should not be punished by decapitation. A driver may swerve to avoid another vehicle, a deer or a dog, or when distracted by a child or pet inside the vehicle. One may hydroplane and spin off the road when water pools in a low spot in pavement on a highway during heavy rain. (That happened to my wife at a spot on I-20 that was well known to state troopers for frequent hydroplaning.) Because innocuous departure from the traffic lane is common, highways include rumble strips at the end of the road.

The foreseeability of vehicles departing from the traffic lane is why highways built in the United States in recent decades have incorporated road design features to make roadsides forgiving for drivers who makes such mistakes.

The American Association of State Highway and Transportation Officials (AASHTO) recommends construction standards for shoulder and right of way design. This includes clearance of obstructions such as, trees, steep slopes, or abutments which may hinder a motorist from being able to recover from an unintended departure from the roadway. They also recommend guardrails whenever feasible to redirect drifting vehicles back onto the paved portion of the roadway.

The Roadside Design Guide defines a clear zone as the total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

According to the Roadside Design Guide by the American Association of Highway Transportation Officials, highway shoulders, a clear zone is

The total roadside border area, starting at the edge of the traveled way, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope, and/or a clear run-out area. The desired minimum width is dependent upon traffic volumes and speeds and on the roadside geometry. Simply stated, it is an unobstructed, relatively flat area beyond the edge of the traveled way that allows a driver to stop safely or regain control of a vehicle that leaves the traveled way.

The Clear Zone, is further defined as

An unobstructed, traversable roadside area that allows a driver to stop safely, or regain control of a vehicle that has left the roadway. The width of the clear zone should be based on risk [of immediate danger]. Key factors in assessing risk include traffic volumes, speeds, and slopes. Clear roadsides consider both fixed objects and terrain that may cause vehicles to rollover.

The highway shoulder is not  designed for parking. It is a “clear zone” or “recovery zone,” not a parking area. But every day we see 18-wheelers parked in that “recovery zone” or shoulder, parked overnight and not illuminated.

Personal cars and trucks are doing the same thing, but the hazard they present is less severe. When a trucker parks a large Commercial Motor Vehicle (CMV) in on the shoulder of a highway in what is designed as a “Clear Zone,” that truck is a large, immovable, rigid barrier blocking the “clear zone.” That creates an eminent hazard to occupants of any vehicle which may depart, for whatever reason, from the travel portion of the roadway.

Tractor trailers parked in the “clear zone” or “recovery zone” create the equivalent of an unforgiving solid wall. This presents a vastly greater danger to people in approaching cars that would another car parked in the same position. When a car veers out of its lane and collides with a stopped car of the same size, there may or may not be injuries, either minor or serious. But when the same car collides with an 80,000 pound tractor trailer, the physics is vastly different.   Semi-trucks are not only larger and heavier than regular vehicles, but their trailers also stand high off the ground. If a car traveling at highway speeds comes into contact with the trailer of an 18-wheeler, the big rig is the perfect height to sheer off the top of the car and kill or perhaps decapitate anyone inside.

Conspicuity of big rigs parked on the roadside, especially in lighting and weather conditions affecting visibilty is a hazard well known in trucking. That is why the Federal Motor Carrier Safety Regulations have strict rules on this. At § 392.22 on Emergency Stops, the regulations require, “whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices” As soon as possible, and in all cases within 10 minutes, the driver must places three reflective triangles or flares.

Trucking company corporate management can reduce this risk of a deadly crash through management practices that include good trip planning so that drivers can reach safe places for planned stops before they run out of safe driving hours. Companies should manage their fleets to make frequent vehicle inspections and perform appropriate equipment maintenance.

Trucking company management should require drivers not to stop along the roadside in non-emergency situations, and instruct drivers to exit the highway and find a safe place to park when necessary. Truckers multiply this risk when they park large trucks park on the roadside at night without using hazard flashers and warning devices.

If due to mechanical breakdown a truck driver has no choice but to stop on the side of the road, trucking companies should train drivers and dispatchers on things they can do to  reduce the risk of a loss in the event of a breakdown or other roadside emergency. Such actions include:

  • Immediately turn on hazard flashers when slowing and leave them on while stopped.
  • Immediately set out warning devices (reflective triangles or flares) in accordance with the Federal Motor Carrier Safety Regulations at 49 CFR § 392.22.
  • Keep marker lights on after dark.
  • Avoid parking on curves or on the downside of undulated roads that obscure the approach of oncoming traffic.
  • Park as far off the traveled roadway as safely possible. Remember shoulders can be soft and have a steep drop-off or ditch.
  • When stopped, set parking brakes.
  • Notify employer as soon as possible to arrange roadside assistance.
  • Avoid falling into traffic by using three points of contact exiting /entering the cab or climbing onto the catwalk or trailer.
  • Walk along the side of the vehicle opposite traffic.
  • Watch out for debris or uneven surfaces when outside the vehicle.
  • Use a visible flashlight after dark.
  • Wear reflective clothing (such as a high visibility safety vest) when exiting the vehicle.

Even if a parked semi-truck is illuminated at night, there is a recognized condition known as the “Moth Effect” which may contribute to an unwary driver running into a truck parked on the shoulder. The “Moth Effect” occurs when drivers are attracted to flashing lights or other things along the roadway, especially when fatigued.  The “Moth Effect” is most likely when visibility conditions are reduced at night or in fog or heavy rain which is common in Georgia. When required to stop due to extreme weather conditions, truckers should attempt to get to the next exit in order to avoid blocking the “clear area” on the roadside.

When presented with catastrophic crashes that involve a commercial motor vehicle parked by the side of the road, we investigate deeply and retain appropriate experts. We have to determine why the driver chose that particular spot to pull off and stop.  We normally download electronic control module data and other electronic records from both vehicles. How long had the truck been parked? Was there a dash cam video on either vehicle that could be evidence? Was it an actual emergency or mechanical failure? Was the driver failing to follow safety rules and simply stopped for a “break” on the roadside rather than in a safe place off the road? Did the truck driver have the ability to stop in a safer location?

If a family member is badly injured or killed in a collision with a tractor trailer parked on the roadside, call us at (404) 253-7962 for a consultation to see whether or not there is a viable case.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident LawHe is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brainneckbackspinal cordamputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.