A tractor-trailer pulled from the highway shoulder in front of an approaching SUV on I-95 in Jasper County, SC, just north of Savannah, about 9:30 PM Wednesday night, August 8, 2018. The impact killed Raymond Jackson, Jr., driver of the approaching vehicle, a 1999 Ford Expedition. This happened about 3 miles north of the Georgia-South Carolina line, between the Savannah River and Hardeeville.
Initial news reports of this crash involving vehicles emerging from Georgia do not identify the trucker, the trucking company or the person killed. If all had Georgia residence at the time, then potentially a Georgia court might apply some points of Georgia law different from South Carolina law, such as the measure of damages and procedures regarding wrongful death claims.
Visibility of tractor trailers at night is a huge problem nationally. All large commercial motor vehicles are required to have red and white reflective tape and/or conspicuity sheeting to help make them visible to oncoming traffic. The tape often becomes dirty and worn, making it less effective. In addition, it loses effectiveness when viewed at an angle, such as when a truck is merging from the shoulder into traffic. The regulations are a bare minimum and prudent trucking companies exceed the minimum.
Recently I participated in a national truck driving and safety program for lawyers at a truck driving school’s proving ground in Montana. We went through night time exercises to check the distance and time for recognition of hazards on a dark road. Without getting into stopwatch and distance measurement numbers, it would be nearly impossible for a motorist approaching at the speed limit in the dark to perceive that a poorly illuminated tractor trailer is slowly merging from the shoulder into the roadway in time to react and avoid the hazard. In such situations, the driver of an oncoming vehicle may be a “sitting duck” unable to avoid a tragic crash.
In addition, merging a tractor trailer from the emergency or breakdown lane of the highway into oncoming traffic is highly dangerous even in daylight. The truck driver was charged with failure to yield right of way. South Carolina Code Section 56-5-2350, vehicle entering roadway, provides,
“The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed.”
If a wrongful death claim were made in South Carolina for the surviving spouse, children or other heirs of the person killed, it would be under the South Carolina wrongful death statute.
Any vehicle that stops on the shoulder of a highway must eventually merge back onto the highway from the shoulder emergency lane. For trucks, because of their great size and weight, this is very dangerous. It takes a lot more time for a tractor trailer to accelerate to highway speed than it does for a passenger car. That is why truck drivers are trained not to use the shoulder emergency lane unless they absolutely must. Because of their great weight, large trucks also take much longer to accelerate and safely match the speed of traffic so they can merge.
Experts such as my Ohio friend Michael Leizerman say that once a truck is ready to move from the shoulder emergency lane and reenter the flow of traffic, the truck driver should first deactivate the emergency hazard flashers. Then the truck driver should activate the left turn signal and and begin to accelerate the truck while still in the shoulder lane. Using the emergency lane as an acceleration lane the truck driver should reach a speed close to that of traffic and watch for an safe space to merge into. The duty is on the truck driver to make sure that he can safely merge into traffic without causing an accident.
Turning the left turn signal on notifies other motorists that the semi-truck is going from a stopped condition to a mobile condition. The left turn signal should not be activated until the truck is ready to move — while the truck is immobile the emergency lights should be on at all times.
The Commercial Drivers License (CDL) Manual is essentially identical in all states though each state issues it with different cover and introductory material. In handling truck crash cases, we refer to the CDL manual of the state in which the truck accident occurs, the state in which the truck driver is licensed and the state in which the company is based. The South Carolina version of the CDL manual includes the following instructions:
2.4 – Seeing. To be a safe driver you need to know what’s going
on all around your vehicle. Not looking properly is a
major cause of accidents.
. . .
2.4.2 – Seeing to the Sides and Rear
It’s important to know what’s going on behind and to
the sides. Check your mirrors regularly. Check more
often in special situations.
Mirror Adjustment. Mirror adjustment should be
checked prior to the start of any trip and can only be
checked accurately when the trailer(s) are straight.
You should check and adjust each mirror to show
some part of the vehicle. This will give you a
reference point for judging the position of the other
Regular Checks. You need to make regular checks
of your mirrors to be aware of traffic and to check
Traffic. Check your mirrors for vehicles on either
side and in back of you. In an emergency, you may
need to know whether you can make a quick lane
change. Use your mirrors to spot overtaking
vehicles. There are “blind spots” that your mirrors
cannot show you. Check your mirrors regularly to
know where other vehicles are around you, and to
see if they move into your blind spots.
. . .
Special Situations. Special situations require more
than regular mirror checks. These are lane
changes, turns, merges, and tight maneuvers.
Lane Changes. You need to check your mirrors to
make sure no one is alongside you or about to pass
you. Check your mirrors:
Before you change lanes to make sure
there is enough room.
After you have signaled, to check that no
one has moved into your blind spot.
Right after you start the lane change, to
double-check that your path is clear.
After you complete the lane change.
. . .
Merges. When merging, use your mirrors to make
sure the gap in traffic is large enough for you to
. . .
2.5 – Communicating
2.5.1 – Signal Your Intentions
Other drivers can’t know what you are going to do
until you tell them.
Signaling what you intend to do is important for
safety. . . .
An 80,000 pound semi truck does not take off with great speed from a standing stop when entering the highway from a parked position on the shoulder of a highway. The handling is simply not the same as a sports car. Thus, a professional truck driver must allow plenty of time and space to enter traffic lanes from the highway shoulder.
We have handled truck accident cases in which truck drivers decided it was a great idea to pull into a traffic lane within a few car length of a car approaching at highway speed, with predictable results. In one such incident, the truck driver was medically impaired by chronic obstructive pulmonary disorder (COPD), a disqualifying condition. It would have barred him from driving if disclosed to the DOT medical examiner. When I took the deposition of the truck driver’s personal physician, he testified that the trucker’s COPD was so severe he was not supposed to go anywhere without an oxygen tank and the lack of oxygen to the brain could have cognitive effects.
News reports of the crash on I-95 this week do not indicate why the truck driver chose to park on the shoulder at night. Nothing short of unforeseeable mechanical breakdown would justify that dangerous choice. Media reports also do not indicate why the trucker pulled into the path of an approaching vehicle without yielding the right of way. Was it due to fatigue, physical or cognitive impairment, distraction, or some other cause?
For an experienced trucking attorney, this appears to be a case of clear liability even though the insurance company’s lawyers would undoubtedly try to blame the victim who happened upon a truck executing a highly dangerous maneuver in the dark.
Ken Shigley is a past president of the State Bar of Georgia, past chair of the State Bar’s Tort & Insurance Practice Section, past chair of the Georgia Insurance Law Institute, past chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, and a member of the board of governors of the Academy of Truck Accident Attorneys. He is lead author of Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters West, 2010-2018). His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. He is licensed to practice law in Georgia. Representation of clients in others states, which possible, can be undertaken only in strict compliance with the multijurisdictional practice and pro hac vice rules of the other state.