Lethal Litter: Road Debris Accidents
Posted: Thursday, August 26, 2010
by Solomon Neuhardt
Neuhardt Law
A case of a fertilizer spill brings up negligence and driving safety issues.
Earlier this month, a commercial truck hauling a load of fertilizer up Interstate15 into Montana brought up some interesting issues about fault in road debris cases. The type of truck is called a ‘belly dump’. These are container type semi-trucks that funnel down on the bottom so that opening a slide will release the contents. In this case, the driver claimed he stopped suddenly at a construction zone and this jarred the door on the bottom of the truck, resulting in a steady leak of the contents. The green fertilizer leaked for more than a mile along I-15 until the driver pulled over and resealed the opening.
For the fertilizer, these translated into whether the material was inherently hazardous – it was, after all, a commercial chemical fertilizer – and did the material alter driving conditions enough to make the road unsafe. Pelletized fertilizer can act like little ball bearings, much like a gravel spill would. Stopping on what amounts to little rolling balls can be nearly impossible. In this case, the fertilizer was deemed not to be hazardous and it was in a powdered form, both would tend to help the trucking company avoid a lawsuit.
The general principles
If your vehicle is damaged by road debris, whether or not it leads to an accident, you may have a valid negligence claim. This will depend on several factors, and your lawyer will examine all of these.
- Could you have avoided striking the object? This usually translates into whether the object was moving or stationary and how visible it was. Because drivers are responsible for keeping their vehicle at a safe speed, they are assumed to have enough distance to either stop or go around any debris in the roadway. In practice, this isn’t always the case. A black piece of tire on a dark road surface at night can be very hard to see – however, drivers do have a responsibility whenever an object is stationary on the road.
Objects that are moving – wither because they just fell off a truck or because they were kicked up by another vehicle – can be impossible to dodge, and in this circumstance, the fault is clearly not with the driver of the damaged car.
- How long was the item on the road before you struck it? While it can be difficult to determine this, cameras, accident reports, and other data might be available to show that the debris was in the roadway an inordinate amount of time. Municipalities have a duty to keep road hazards cleared off of public highways. If they are not performing this function, they have some share in the negligence when an accident happens.
In many cases, it is difficult to prosecute a claim in court against a government entity. They will argue immunity and you would have to demonstrate they were lax in their duty to an excessive degree. These cases are more likely to be won when the actual condition of the road is the problem – a pot hole or road marker that is flawed. Even in these cases, you would have to show the municipality both knew about it and that they had time to fix it but didn’t.
- Can you reliably identify the vehicle that the object fell off of? Without this critical piece of information, the case may not be able to go forward. In the best situation, there will be witnesses who can verify the incident or the item will be so unique that it must have come from the truck you claim it did. Seeing the item fall is the strongest connection.
When there is a commercial carrier involved, your attorney may be able to subpoena trip logs and manifests to show that the truck was where you said it was, when you said it was, and was carrying the type of item that struck your vehicle.
- Do the damages and injuries suffered rise to the level of legal action? In negligence suits, there is a rule of, “No harm, no case." In practice, this means that if the damages were slight, there is probably not much point in pursuing the case beyond a request to the carrier’s insurance company. Such a request, when it appears on an accident attorney’s stationery is likely to get a quick response. However, some commercial carriers feel victimized by the public – they suspect that many claims are inflated or fabricated to take advantage of their deep pockets.
Another reason why a commercial trucking company might wish to fight even a legitimate claim is that these are recorded and can lead to increased premiums from their insurance carrier. The best course is to be truthful and have all the relevant facts available. With the facts in hand, your attorney will help you decide how to proceed.
Was the load properly secured? The assumption is that if something fell off, it wasn’t.
If other vehicles and drivers were involved, this strengthens the case tremendously. Each is a potential witness and combined, the testimony makes a very good case.
Did you file a police report? Again, this helps establish credibility and confirms the date and time of the incident. On-scene photographs of the debris and any damage will also help.
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