Fatal truck accidents in bad weather are an all too common — and preventable — tragedy that we see in our law practice. 

Despite the very clear federal standard requiring "extreme caution" in hazardous weather and pull over if necessary, and guidelines in the Commercial Drivers License Manual to slow down by at least one-third, truck drivers under pressure from employers and shippers too often forge ahead.

The latest to hit the news happened yesterday in Virginia’s Shenandoah Valley on I-81, a road I’ve traveled numerous times.

The crash happened around 11:30 a.m. on I-81 near New Market. Snow squalls  made the road slick. In  a chain-reaction crash, a tractor-trailer driven by Jose Alberto Sarmiento, 36, of Edinburg, Texas, struck several vehicles before plowing into the back of a  Ford Escort. Three members of a Virginia family were killed.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. §  392.14 requires:

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. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured. 

Two California cases hold that it is reversible error for a trial court to fail to instruct a jury regarding this "extreme caution" standard.

In Crooks v. Sammons Trucking, Inc.,  2001 WL 1654986 (Cal.App. 3 Dist.,2001),  a tractor trailer driver forged on through heavy blowing snow until he was involved in a collision with another tractor trailer.  The trial court refused a request to charge the jury on the “extreme caution” standard under  49  C.F.R.§ 392.14, charging the jury instead on the state standard of ordinary negligence.  The appellate court held that for the trial court to disregard the regulatory standard and to instruct instead the jury with lower standard provided by state law was reversible error. 

Similarly, in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005), the court held that it was reversible error for the trial court to refuse to instruct the jury on the “extreme caution” standard rather than the ordinary negligence standard under state law. Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

In George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), the Minnesota Supreme Court held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

The Kentucky case of Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49  C.F.R.§ 392.14 rather than jury instructions.  However, the court recognized that the Federal Motor Carrier Safety

regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.

In another case that applied the principle but did not involve jury instructions, the Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty  created by 49  C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident.  The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.





Ken Shigley is on the Association of Interstate Trucking Lawyers of America National Advisory Board, is a frequent national seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice, and served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations.  Shigley has won multi-million dollar jury verdicts and settlements in truck and bus crash cases. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also a Master of the Lamar Inn of Court at Emory Law School, a faculty member for ten years at the Emory University Law School Trial Techniques Program, and serves as  Secretary of the 40,000 member State Bar of Georgia.