Spotting products issues in trucking cases

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Transportation

February 2014, Volume 50, No. 2

Spotting products issues in trucking cases 

J. Kent Emison and Brett Emison

Attorneys investigating truck crashes often concentrate on driver and trucking company negligence. But these cases might involve products liability issues as well if the accident was partially caused by a defect in one of the truck’s many component parts.

A lawyer handling a trucking case typically focuses the preliminary investigation on the driver’s negligence or trucking company’s bad conduct in maintaining the truck, training the driver, and hiring the driver, among other things. All of the attention on the driver and the truck company is absolutely warranted. However, other theories of liability often are overlooked completely or ignored until the evidence is gone. Because tractor-trailers are mammoth-sized vehicles with many moving parts that could be defective or malfunction, attorneys should also investigate whether a products liability claim exists.

Appropriate defendants to sue in products cases involving trucks may include the tractor-trailer manufacturer, the manufacturers of the truck’s or trailer’s component parts, the trucking company, and the trailer’s owner. If you think the accident might have been caused by a defective part, you should consider several products liability theories.

One of the first products to investigate is the tires: Tire failures caused by manufacturing or design defects account for many horrific accidents. Failure of a steering axle tire can result in total loss of vehicle control, especially with older trucks that do not have power steering. If one of the tires on a dual tire drive axle or trailer axle fails, the other tires will have to do more work and support more weight, creating an untenable situation for the truck and driver.

Because trucks are almost as wide as traffic lanes, there is a much greater chance of a lane violation with a big rig than with a light vehicle. This thinner margin for error makes front-end alignment and design of the truck’s axles even more important for trucks than it is for smaller vehicles. Unfortunately, much of the information about relevant components inside the truck can be lost if the vehicle’s front end is damaged in the accident.

Preservation of critical evidence is key, and attorneys should immediately send a preservation letter to the motor carrier. Lawyers investigating any trucking crash involving loss of control or lane violation should engage an expert to carefully examine the truck tires for possible defect. With a lane violation, attorneys should also check service records and driver reports for signs of directional control problems.

Fuel and brake systems

Fuel system defects are also a danger in tractor-trailers. All major manufacturers place diesel fuel tanks outboard of the tractor’s frame rails—commonly referred to as “side-saddle” tanks. Side-saddle tanks have been phased out of passenger vehicles because of a recognized danger in hauling up to 40 gallons of highly flammable fuel in tanks that are not protected by frame rails. But semitruck manufacturers still put the diesel fuel tanks in this dangerous location.

Diesel fuel is less volatile than gasoline, but when it is vaporized—by piercing the fuel tanks in a side-swipe collision, for example—diesel fuel can easily ignite and cause catastrophic burn injuries or death. In addition to the dangerous location, the tanks often have components, such as battery boxes, steps, and storage compartments, that can puncture the tank in a collision. Most side-saddle tanks are constructed of aluminum and are susceptible to rupturing in a collision. Additional fuel system defects may include fuel line failure, fuel filler pipe failures, and the failure to have a safety valve in the tank to prevent fuel from escaping.

You should retain a fire cause and origin expert anytime there is a fire in a semitruck collision that injures or kills someone. The expert can identify the source of the fire and flammable substance. Also, a fuel system design expert can identify any defects leading to the failure and breach of the fuel system.

Another common cause of truck crashes is defective brake systems. Heavy trucks use air brake systems, which are complicated, hard to maintain, and less effective than the hydraulic brake systems used in light vehicles. The system includes an engine-mounted air compressor, several tanks, numerous lines and valves, and actuating units at each wheel. Most important, the “S” cam drum brakes, used almost universally, have adjustment requirements that are critical for optimal brake operation.

Late-model trucks have mandated automatic slack adjusters. These are designed to prevent out-of-adjustment brakes. This doesn’t help cases against manufacturers of older trucks, though, which still might have adjustment problems. The two problems we have seen most are brakes that are not adjusted properly and brake fade.

Brakes that are out of adjustment do not stop the truck quickly enough. Because of a truck’s size, reduced stopping power can have serious implications in emergency situations. Brake fade is caused by a buildup of heat in the braking surfaces and the subsequent changes and reactions in the brake system components. This condition can be lessened by appropriate equipment and materials design and selection, as well as good cooling. Brake fade in trucks usually occurs when going down a long, steep hill.

While the focus of most brake failure cases will be related to maintenance issues, manufacturing or design defects should also be evaluated. You’ll need truck-driving and engineering experts to explain the braking system to the jury and to identify defects within the system. The experts may need to identify alternative designs or test various systems to determine the effectiveness of alternative designs.

Rear underride guards

One potentially fatal design flaw is weak or missing rear underride guards that are supposed to prevent cars from going under the truck. For many years, federal law has required that semitruck trailers be fitted with these guards. However, studies analyzing both real-world collisions and crash tests indicate that federal minimum requirements for underride guards are not sufficient to protect motorists. Guards that comply with the minimum standards often fail, even at low speeds.1 If the underride guard fails to meet the minimum standard, there is a strong case, with potential for punitive damages. However, even if the underride guard meets the standard, there is still a potential defect claim.

Trucking accidents often are catastrophic to occupants of other vehicles because of the semitrucks’ tremendous size and speed, but underride crashes are particularly lethal. As a car collides with the rear of the trailer, it can submarine underneath. The force of the impact combined with the weight of the trailer can crush or shear off the car’s roof. Occupants often suffer severe or fatal head and upper torso injuries, and sometimes decapitation. More than 400 drivers and passengers are killed each year due to underride crashes, and about 5,000 people are injured.2

Although car safety features have vastly improved since the 1990s, standards for semitruck underride guards have not changed, and guards often fail at low speeds. The Insurance Institute for Highway Safety (IIHS) recently examined real-world underride crashes and conducted its own crash tests to see at what speeds these guards fail. Of about 1,000 real-world crashes examined, 115 involved a vehicle that collided into the rear of a heavy truck or semi-trailer.3 Seventy-eight percent of the vehicles submarined under. Half the crashes resulted in severe or catastrophic damage. Twenty-three car occupants were killed. The IIHS concluded guards often fail due to lack of strength and inadequate ability to absorb energy.

Attorneys must investigate both design and manufacturing defects in the underride guard itself. Many underride guards are constructed of inferior metal or have poor welds, making them unable to withstand the crash forces, so you should have testing performed to determine the strength and effectiveness of the underride guard as designed and hire a metallurgist to test the metal quality.

Underride crashes carry with them a substantial risk of the other driver’s comparative fault. You must fully investigate and analyze the circumstances, and engage an accident reconstructionist to advise as to the speeds and conditions of the crash. The expert also should address semitruck conspicuity and other human factors issues, including perception and reaction time.

Conspicuity defects

Though perhaps not a straightforward product defect, conspicuity is inter­related and should be examined closely. Conspicuity refers to a ­motorist’s ability to perceive, identify, and appreciate a truck’s position and speed in the roadway, particularly at night. The motoring public cannot avoid lurking dangers in the dark that they cannot perceive. When a tractor-trailer is not designed to be properly illuminated, even vigilant drivers do not realize they are coming on a tractor-trailer until it is too late.

Studies over the past several decades have repeatedly shown that inexpensive retro-reflective tape prevents ­conspicuity-related collisions.4 However, these collisions continue to occur frequently.

In the early 1990s, the Federal Motor Carrier Safety Regulations (FMCSR) adopted conspicuity requirements for commercial vehicles and trailers manufactured after Dec. 1, 1993, to reduce side and rear collisions that occur due to limited visibility in dark conditions.5 In 1999, the FMCSRs extended this requirement to trailers manufactured before that date if they meet certain height and weight requirements.6 The requirements allow tractor-trailers to use either reflex reflectors or red and white reflective tape.7 Manufacturers of the reflectors and reflective tape must comply with Federal Motor Vehicle Safety Standard 108.8

The regulations codify requirements for the placement and size of lamps and reflectors.9 Reflective tape must cover the length of the rear of trailers and be included on all sides of the trailer, as close to the front and rear as practicable. Tape on the sides does not have to be continuous along the entire length of the trailer, but in total, reflective material must span half of the trailer. The upper corners of the trailer must also have reflective tape. The tape on the lower edge of the rear and sides must be no higher than 60 inches above the roadway. If the tape is higher than 60 inches, there is a risk that motorists’ headlight beams will not be high enough to reach the reflective materials, leaving motorists unable to perceive the tractor-trailer’s location.

Some trucking companies simply do not follow regulations by failing to apply reflective tape on their trailers.10 For example, in one case, the truck driver blocked both lanes of a roadway as he backed his trailer perpendicular to oncoming traffic.11 The trailer did not have reflective tape, and a car collided into the side of the trailer and became trapped underneath. The plaintiff survived and stated that she did not see the trailer prior to crashing into it.

Reflective materials should be kept clean. Dirt and grime significantly diminish conspicuity materials’ effectiveness.12 In a study by the National Highway Traffic Safety Administration, about 30 percent of the 12,000 trailers evaluated were “somewhat dirty.”13 While clean tape reduces rear-impact collisions by up to 53 percent, dirty tape reduces collisions by only 27 percent.14

However, many motor carriers use harmful materials that are counter­productive. Corrosive chemicals in cleaning supplies can diminish the ­conspicuity materials’ reflectivity. Reputable reflective tape manufacturers instruct that the tape be flushed with water, then washed with a mild detergent solution and soft-bristle brush or sponge. The manufacturers warn users not to use solvents to clean the surface, but many trucking companies and commercial operators do not follow these warnings. As a result, the tractor-trailers­ become hidden dangers to motorists driving in the dark.

Tractor and trailer manufacturers are responsible for designing vehicles that are not unreasonably dangerous. They are required to design these vehicles in a way that makes them easy to be seen and identified by other motorists. Options available include functioning lights and durable reflective tape. If such materials are missing or inadequate, attorneys should consider a conspicuity claim.

Collisions also occur because trailers do not have functioning lights. After a plaintiff collided into a tractor-trailer when the trailer’s rear lights did not illuminate, a Mississippi appellate court held that the issue of the defendant’s negligence was for the jury to decide.15

Lawyers have many sources of data regarding conspicuity, but such evidence must be effectively presented to the jury. A human factors expert can properly explain these concepts to the jury.

Cab defects

A defective semitruck is dangerous not only to occupants of cars but also to the truck driver. Unlike cars, tractor cabs typically are constructed from lightweight aluminum and are prone to crush and deformation in an accident. They usually do not have air bags (Volvo tractors are one exception). No federal safety standards for tractor cabs pertain to occupant protection in a collision.

Emergency exits are typically located in the sleeper cab area, which can be difficult to reach after a crash. Some tractors do not have an emergency exit to allow a truck driver to escape if the tractor is deformed and the driver cannot use the doors. Fires are common in truck crashes, and the driver must have an emergency exit available if the doors are jammed.

Many truck drivers have been severely injured or killed as a result of roof crush, lack of an air bag, or failure to have an emergency exit. Attorneys representing truck drivers injured or killed in a trucking crash should investigate the potential failure or absence of critical in-cab safety devices.

Loaded semitrucks commonly weigh up to 80,000 pounds. When these ­enormous vehicles are traveling at ­highway speeds, any defect in a tire, brake, or other component can cause loss of control, leading to deadly crashes. Attorneys should always investigate and evaluate truck crashes for potential products liability claims.

J. Kent Emison and Brett Emison are partners at Langdon & Emison in Lexington, Mo. They can be reached at Kent@lelaw.com and Brett@lelaw.com.

Notes:

  1. See Ins. Inst. for Hwy. Safety, Underride Guards on Big Rigs Often Fail in Crashes; Institute Petitions Government for New Standard (Mar. 1, 2011), www.iihs.org/news/rss/pr030111.html.
  2. Brendan McLaughlin, I:Team: Feds Take Their Time Addressing Safety Concerns About the Rear of Tractor Trailers, ABC News (May 4, 2012).
  3. Ins. Inst. for Hwy. Safety, Underride Crashes, 46 Status Rep. 1, 2 (Mar. 1, 2011), www.iihs.org/externaldata/srdata/docs/sr4602.pdf.
  4. See e.g. Daniel J. Minahan & James O’Day, Car-Truck Fatal Accidents in Michigan and Texas (U. of Mich. Hwy. Safety Research Inst., Rpt. No. UM-HSRI-77-49, 1977); see also Paul Green et al., Accidents and the Nighttime Conspicuity of Trucks (U. of Mich. Hwy. Safety Research Inst., Rpt. No. UM-HSRI-79-92, 1979).
  5. Fed. Motor Carrier Safety Admin., FMCSA’s Conspicuity Requirements for Commercial Motor Vehicles, No. DOT-MC-01-129, www.fmcsa.dot.gov/documents/consp.pdf.
  6. 49 C.F.R. §393.13 (2011).
  7. See Fed. Motor Carrier Safety Admin., supra n. 5, at 3.
  8. 49 C.F.R. §571.108 (2013).
  9. 49 C.F.R. §§393, subpt. B; 49 C.F.R. §393.11 (2011).
  10. See e.g. Marines v. UPS Ground Freight, Inc., 2010 WL 8401132 at *4 (W.D. Tex. Mar. 3, 2010).
  11. Baldwin v. Golden Hawk Transp. Co., 827 N.E.2d 780–81, 787 (Ohio App. 5 Dist. 2005).
  12. Christina Morgan, Natl. Hwy. Traffic Safety Admin., The Effectiveness of Retroreflective Tape on Heavy Trailers, No. DOT HS 809 222 (Mar. 2001), www.nhtsa.gov/cars/rules/regrev/evaluate/809222.html.
  13. Id at 13, tbl. 2–5.
  14. Id at vii.
  15. Quay v. Archie L. Crawford & Shippers Express, Inc., 788 So. 2d 76, 84 (Miss. App. 2001) (en banc).


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