United States: Trucking Accidents - Why The Mere Happening Of An Accident Is Not Enough!

"We must not take the case from the jury," the plaintiff declares. "There are disputed questions of fact and credibility," says opposing counsel. While these arguments are often raised by opponents to resist a dispositive motion, they will not inflict defeat on the defense or grant success to the plaintiff. Most importantly, they should not prevent defense counsel from challenging the fundamentals of any claim.
Summary judgments and dismissals do happen. Careful study and research for such motions can force a disciplined analysis of the basic assumptions underlying the case—issues that might otherwise remain buried in the rhetoric that always accompanies litigation.

Serious accidents often cry for explanation and the placement of blame. In so doing, they invite speculation and may inspire a reluctance in the court to dismiss the case. "Someone must be at fault, so the jury must decide," they argue. Is this really true?

In the search for closure following a loss, does it make sense to compound the tragedy by imposing fault upon others without the evidence to justify it? Established case law says no.

Whether we recognize them or not, passions and assumptions and speculations threaten to drive any case to legally unsupportable conclusions. Identify them early. Be prepared to control them.

Although motor vehicle collisions are tragic and infinitely more complex, the task of reconstructing the sequence of events can become analogous to explaining a billiard shot. Even when we see where all the objects finally came to rest, we may never know the intervening bumps, slides, spins and caroms that created the final result. It is often impossible to determine this kind of detail, but the law requires it. In order to recover for damages, the plaintiff must reasonably explain how the accident happened and what specific acts of negligence by each defendant contributed to the resulting injuries.

Which vehicles came into contact, in what sequence and why? If no one can reliably say, there is no right of recovery.

Even with no more than two adversaries in the case, it may still be impossible to reconstruct the events or prove the cause of an accident. Presumptions are seldom sufficient to fill this gap. For example, in Kelly v. Lahn Transportation, 376 F.2d 588 (1st Cir. 1967), the driver of the tractor trailer did not see this knock-down incident and the plaintiff-pedestrian could not remember her movements. The parties only knew their points of impact and their respective points of rest after the accident occurred. In reviewing the trial court's judgment of dismissal, the U. S. Court of Appeals concluded: "Although plaintiff is not required to point out the exact way in which this accident happened, she does have the burden of proving that it was caused by the negligence of defendant. This is an affirmative burden which cannot be left to surmise, conjecture or imagination." The Kelly opinion then went on to observe: "The mere happening of an accident between a motor vehicle and a pedestrian, where, as here, the circumstances immediately preceding it are left to speculation and conjecture, is not in and of itself sufficient to prove negligence on the part of the motor vehicle operator." (citations omitted).

The phrase "act of God" is associated with the unpredictable hazards imposed by nature. These are events that humankind did not create and cannot foresee or avoid. By definition, an act of God is therefore not an act of negligence and, by itself, does not give rise to liability for resulting injuries. A sudden change in weather, for example, can qualify as an act of God and be recognized as the sole cause of an accident.

The central issue in evaluating a defendant's conduct in emergency situations is the foresee ability of the hazard. Whether caused by an act of God (like fog or rain or snow), or by a man-made condition of similar type (like steam or a chemical fog), a dangerous condition of visibility on a highway raises the "sudden emergency" defense if the driver cannot reasonably be expected to anticipate it.

"The purpose behind the [sudden emergency] rule is clear: a person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence." Lockhart v. List, 542 Pa. 141, 665 A.2d 1176 (1995). While many sudden emergencies involve a vehicle thrust into one's path from another direction, that element is not required. Travelers going the same direction can be the victims of the same event, which can involve sliding and swerving of other vehicles along their way. See, for example, Levey v. DeNardo, 555 Pa. 514, 725 A.2d 733 (1999).

In addition to acts of God, a variety of innocent human-caused phenomena have been recognized as the cause of an accident. Dust clouds, blinding lights, fog, other impairments of vision, and sudden swerves—all of these conditions have been recognized as sudden emergencies. Each is considered on an individual basis. The Pennsylvania Superior Court so held in Cunningham v. Byers, 1999 Pa. Super. 146, 732 A.2d 655 (Pa. Super. 1999), and Leahy v. McClain, 1999 Pa. Super. 145, 732 A.2d 619 (Pa. Super. 1999), citing the Lockhart decision among others.

Combinations of events, such as human­made smoke and natural fog, have also been recognized as legal causes of an accident. A phenomenon such as natural fog can become so suddenly and unexpectedly dense that an unsuspecting driver may not be held responsible for the result. One who remains in harm's way after such an encounter, however, may be subject to a charge of assumption of the risk. See, for example, Mann v. Anderson, 206 Ga. App. 760, 426 S.E.2d 583 (1992).

An ice condition on the roadway, in and of itself, can be so unexpected that it gives rise to an "inevitable accident." See, e.g., Welch v. State, DOTD, 640 So.2d 596 (La. App. 1994), where a tractor trailer suddenly encountered ice on the downward incline of a bridge. The truck jackknifed and slid left of center into a car approaching from the opposite direction. There was no prior warning of ice on the roadway, and there was testimony that the truck's speed was well below the legal limit for the bridge. The trial court accepted the principle that reasonable drivers can have accidents for which they are not at fault. The Louisiana Court of Appeals—with an interesting discussion of unavoidable accidents—upheld the decision.

Driver reactions to an accident can spawn more accidents, and liability for them does not always attach to the responder. In Walker v. King County Metro, 126 Wn. App. 904, 109 P.2d 836 (2005), for example, the Washington Court of Appeals considered the actions of a bus driver who stopped suddenly to avoid an accident. The plaintiff, who was a passenger on the bus, fell and was injured. She could not blame the bus driver for the first accident that caused the sudden stop, so she contended at trial that safety procedures were to blame. She argued that it was negligent for the driver to move the bus before all passengers were safely seated. The defense noted that there were rails and grips in the bus, which suggested that passengers sometimes can — and will —be standing while it is motion. Hence there was no expectation that the driver would order all able-bodied passengers to be seated. The trial court agreed with the defense and granted summary judgment, holding that a driver who reacts suddenly to an emergency "is not guilty of negligence so long as the emergency itself is not the result of the driver's negligence."

Texas jury instructions seem to address such emergency and causation issues in a wider variety of ways than we see in most jurisdictions. See, e.g., Dillard v. Texas Electric Cooperative, 157 S.W.3d 429 (Tex. 2005), where wandering cattle presented a first night time emergency, and then a second, and the jury was called to determine whether either incident was the result of negligence on the part of a truck driver. In that case, the Supreme Court of Texas considered its pattern instructions but also left discretion in the trial court to fashion instructions of its own.

From these cases we see that the origin of the "sudden emergency"—whether natural, human or animal—is not the controlling issue. The definition is drawn instead from the responder's perspective. Was the emergency sudden and unexpected? Was it caused by factors outside the individual defendant's control? If so, the defendant's reaction need not be perfect. To the contrary, if the responder acted reasonably under the conditions presented, then no liability attaches. It was truly an accident.

In this scenario, it would be easy to assume that the accident caused the death, but more is needed. Can we rule out the driver's own health as a cause of the crash? This becomes an especially critical issue if a prompt and thorough post-mortem examination was not performed. (Particularly in single-vehicle accident cases, or where no criminal charges are considered because potential defendants are deceased, a post-mortem examination is not always ordered.) The resulting lack of direct evidence about the plaintiff's injury or death may eliminate much of the claim.

In case after case, we see that causation is not presumed. This element of proof, like all others, must be supported by the evidence.

In Drewry v. N.C. Department of Transportation, 607 S.E.2d 342 (N.C. App. 2005), it was claimed that state authorities failed to install a proper drainage system to control storm water runoff, and that the resulting flooding of the highway caused a driver to lose control of his car and sustain fatal injuries. The North Carolina Industrial Commission and the Court of Appeals found two major flaws in the claim. First, the plaintiff failed to establish that the installation of a larger drainage pipe would have prevented the accident. Second, the estate representative could not show that the plaintiff would have survived the accident if a larger drainage pipe were installed. Stating again that the "mere happening of an accident" creates no presumptions, the dismissal of plaintiff's negligence action was upheld.

In Spencer v. McClure, 618 S.E.2d 451 (W.Va. 2005), the plaintiffs' vehicle came to a successful stop in traffic on a rainy day. Other vehicles did not stop so safely, however. Plaintiffs testified that they were caught in the middle of the line of traffic and experienced three distinct impacts—to the rear, front and rear—from the ensuing collisions. Doctors could not identify the discrete injuries caused by each impact, but they ventured that it was possible for each collision to have caused or added to the plaintiffs' injuries on that day. The trial court found the evidence insufficient and granted judgment as a matter of law against the plaintiffs. Quoting earlier precedents, the West Virginia Supreme Court upheld the decision with these words: "[T]he law is clear that a mere possibility of causation is not sufficient to allow a reasonable jury to find causation."

In Kelly, above, the severity of the plaintiff's loss did not warrant speculation about the facts and activities she could not remember. While there was no dispute about where the truck and the pedestrian were positioned immediately after the accident, those facts did not establish how they arrived there. The driver did not see the plaintiff, and no one could say whether she was ever in his view.

In Drewry, above, arguments about what might have happened if the drain pipe were larger were not proof that the existing system was flawed. Nor did it prove what actually caused the vehicle to lose control.

In Spencer, above, it was possible that the plaintiff's injuries were caused or increased by each subsequent impact, but "possible" was not good enough. It was insufficient as a matter of law.

It is often argued by plaintiffs that "the defendant has done nothing to refute the plaintiff's testimony," but contrary to the howls of some historic sports teams, the jury doesn't "gotta believe."

First, the "you gotta believe" argument can be a serious tactical error. It is a fact of human nature that the jury, when told by counsel what it MUST believe, may take the challenge and stampede in the opposite direction.

Most importantly, "you gotta believe" is legally wrong. Any such argument should be well balanced by the court's instruction that the jury is the sole judge of the facts.

In Capshaw v. Gulf Ins. Co., 107 P.3d 595 (Okla. 2005), the plaintiff had stopped his pickup truck at an intersection, waiting for a green traffic signal. He then proceeded forward and stopped again to make a left turn. The defendant's tractor trailer rear ended the pickup. The jury nevertheless found no negligence against any party. When the trial court granted a mistrial, the Oklahoma Supreme Court upheld the defense verdict despite an argument over the form of the verdict sheet. In so doing, the appellate court observed once again: "The mere happening of an accident is not indicative of negligence. The jury is the trier of fact. In any negligence case the jury is free to find that none of the parties was negligent. Its freedom to make this choice does not depend on the plead defense of unavoidable accident."

In Griffis v. Lazarovich and Leach, 161 N.C. App. 434, 588 S.E.2d 918 (2003), the North Carolina Court of Appeals considered the claims of a passenger against both drivers who were involved in the accident. The plaintiff lost at trial but argued on ap­peal that surely one or both of the defendants must be called to answer for her injuries. The holding, in part, reaffirmed that a "defendant's negligence will not be presumed from the mere happening of an accident, but on the contrary, freedom from negligence will be presumed." (citing Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477 (1943).) The fact of this accident and the plaintiff's injuries, and their causal relation to the actions of either defendant, were accorded no presumptions by the jury or the court.

An opponent whose evidence is lacking on critical elements will strive to fill the gaps with something. Most often it is either "assumption" or "declaration." Neither amounts to evidence and neither will sustain the burden of proof.

It is important to periodically step back from the daily working of each case and identify the assumptions and declarations of the opponent. The real defenses maybe hidden in what a party assumes, what the opponents choose not to say, or in what they hope you will simply accept as fact. To "assume" is to invite speculation—a vapor improperly offered as a substitute for evidence.

This analysis leads us to two critical questions:

1. While it is easy enough to see what the opponents are arguing, what is the opposition assuming? This may be where they hope no one will probe. Extract the assumptions from the opponent's case, and it may collapse.
2. What must the jury assume in order to render its verdict? Any "assumption" not specifically authorized by law may be grounds for a dismissal or defense verdict.

Finally, just as opponents will argue the inherent "exposure" created by the magnitude of a loss, it is important to remember that the first risk—and therefore the primary exposure—belongs to the party who carries the burden of proof. Basic elements are easily overlooked. By revisiting each underlying assumption in the plaintiff's case—even the most fundamental of them—it becomes possible to balance the discussion of "exposure" on both sides.

• Do not rely solely on "memory" of the facts or of the applicable law, however basic. Precedents and statutes change. Return to the specific elements of proof in each case, regardless of how similar it may be to the many cases that have gone before. Then return to the pleadings and compare each allegation to each required element of proof. Disciplined review will often surprise you with discrepancies in the opponents’ case.
• Be focused in the selection of discovery tools. While checklists can be important for thorough discovery, be cautious about serving "form" interrogatories that will only school an opponent to testify in a later deposition or at trial.
• Be wary of the assumptions made by witnesses and explore all the possibilities. Consider, for example:

• Be focused in the selection of experts. Consider carefully what each will be able to offer— no more and no less. Experts who stretch their conclusions or fall into speculation will lose credibility and may not qualify for presentation at trial.
• Review the potential for dispositive motions early and often. Early reviews will test the assumptions and guide you through discovery. Later reviews will develop a successful motion or focus your preparation for trial.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.