A big rig driver unable to see his way through dense fog Monday morning in Fresno, California, was going too fast to see stopped traffic through the fog when he struck and killed a young woman .
Tractor trailer driver Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog when he struck a Ford Explorer, killing the woman inside, according to a news report by Jim Steinberg and Vanessa Colón of The Fresno Bee.
Two sections of the Federal Motor Carrier Safety Regulations appear to have been violated here.
First, 49 C.F.R.§ 392.14 sets a standard of "extreme caution" in hazardous conditions, as follows:
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . 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.
The only appellate court decisions directly addressing the issue in the United States have held that a trial court must instruct a jury on this "extreme caution" standard of care rather than the "ordinary care" standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).
Second, 49 C.F.R. § 392.1 requires motor carriers to take responsibility for hiring, training and supervising drivers who are instructed to comply with the rules, as follows:
Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.
In this fatal crash, a 22-year-old truck driver who I figure, based on my experience, had little or no such training and supervision. In all likelihood, the trucking company confirmed that he had a Commercial Driver’s License, and no moving violations in the past three years,then handed him the keys. Probably his employer did nothing to emphasize the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.
Unfortunately, too few judges know or care what the Federal Motor Carrier Safety Regulations require. It always requires a concerted effort to educate a judge on this area of law. When judge does not know that he does not know, and does not care that he does not know, there is a huge mountain to climb in order to get the court to simply apply the law.
Ken Shigley is a Georgia trial lawyer practicing primarily in the area of interstate and intrastate motor carrier (truck and bus) litigation. Located in Atlanta, Ken served as chair of the Southeastern Motor Carrier Litigation Institute, co-sponsored by the Georgia, Alabama, Tennessee and North Carolina Trial Lawyers Associations. He is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America, and is actively involved in the Interstate Trucking Litigation Group of the American Association for Justice. Shigley has won multi-million dollar jury verdicts in trucking cases and lectures on trucking and insurance topics at national continuing legal education programs. 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.