Often times one of the first defense strategies we see in trucking litigation involves a claim of contributory negligence. That means that regardless of the facts of the collision, Defendant trucking company is claiming that the injured driver did something wrong. Often times these claims of contributory negligence boggle the rational mind but the defense strategy is to claim them and hope one of them sticks in order to devalue the case. An experienced trucking attorney is important to have to combat frivolous claims of contributory negligence.
One manner in which to combat contributory negligence claims in a trucking accident is to have an immediate team of investigators ready to review the collision. For example, we have experts in accident reconstruction, human factors and fatigue ready to assist when a client is hit by a semi. Further, once the case heads into the discovery phase, its important to have an experienced attorney prepared to review the internal documents of the trucking company.
One of the major areas we initially look at when confronted with the claim is the internal findings of the trucking company regarding the actions of the driver. These findings are called “preventability determination” and are required as a matter of law.
A DOT recordable accident, within the meaning of 49 C.F.R. § 390.5, is the kind of accident that the federal regulations require to be listed in the employer’s own records, and that a Trucking Company should report to the DOT. According to 49 CFR 390.5, a DOT recordable accident means:
an accident involving a commercial motor vehicle operating on a public road in interstate or intrastate commerce which results in a fatality; a bodily injury to a person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or one or more motor vehicles incurring disabling damage as a result of the accident requiring the motor vehicle to be transported away from the scene by a tow truck or other…vehicle.
Once an accident is deemed reportable, the motor carrier must make a finding of preventability, ergo whether the “recordable accident” was “preventable’ or “non preventable.”
FMCR § 385 defines “preventability” to be determined by a motor carrier according to the following standard:
“if a driver, who exercises normal judgment and foresight, could have foreseen the possibility of the accident that in fact occurred, and avoided it by taking steps within his/her control which would not have risked causing another kind of mishap, the accident was preventable.”
If you or a loved one is involved in a semi accident, it’s important to have an experienced attorney familiar with the above law and able to confront the vigorous defense that will be mounted by the trucking company.