Moving Words – Risks

Timothy Brady

“Take calculated risks. That is quite different from being rash.” – George S. Patton

Imagine this scenario:
It’s late December, just after the Christmas holidays. One of your van operators is hauling a shipment he loaded in southern California and Arizona with deliveries in Dallas, Little Rock and Memphis. The van operator’s logs are up to date along with his CDL medical card and shipment documents. Just outside Odessa, Texas on I-20, he’s suddenly in a massive ice storm where the highway goes from wet to a sheet of black ice in a flash. He slows down and starts looking for a place to exit and park the truck until the road is again safe to drive on. Suddenly he sees an SUV careening across the median from the westbound lanes headed directly towards the nose of his semi. The resulting crash kills one child and injures several other people in the SUV, including a seven-year-old who will be a life-long quadriplegic. Very tragic for everyone involved.

Now while this is a fictitious rendition of an event which occurred in December of 2014 to a Werner Enterprises truck and driver, it’s not a far stretch to picture a tragedy that could happen to any trucker on any highway in America. There isn’t a trucker or carrier who’s immune to the possibility regardless of their safety record. And we all know this: van operators, safety departments, dispatch, management and owners.

There are good reasons why this Werner accident needs to be on all of our radars. Attorneys for the people in the SUV sued in the Texas courts and received a $100 million judgment for an accident over which neither Werner nor their driver had any control. Werner’s truck, equipment and driver were found to be 100% in compliance with both FMCSA and Texas DOT safety regulations, yet a jury found Werner responsible for the injuries and death that were the result of the accident. Nearly nine years after this tragic accident, the case has reached the Texas Supreme Court. The eventual ruling by the Court could have a devastating impact on future accidents with similar circumstances.

Facts of the case:
Late December, on a day I-20 was covered in black ice near Odessa, Texas, a car driven by Trey Salinas carrying several members of the Blake family crossed a center median and collided head-on with a Werner truck driven by Shiraz Ali. Seven-year-old Zachery Blake was killed, and three other Blake family members suffered serious injuries, one left a quadriplegic. Salinas was not seriously injured and is not a party to the lawsuit.

The original lower court verdict came down against Werner in 2018 for about $90 million, with added interest pushing the then-current judgment over the $100 million mark.

The jury assigned 70% of the blame to Werner, and 14% to Ali. Salinas received the other 16%.

Werner’s appeal has several issues regarding multiple points of law, including the distribution of liability and the judge’s charge to jurors in the original case. Werner’s attorneys said in their appeal, “This case presents a textbook example of the nature and limits of duty and proximate cause. The findings by the lower court and the subsequent upholding of the lower court’s action by the court of appeals shift the question of legal duty significantly in Texas.”

In the original ruling and the 5-4 appellate decision, the Warner driver was found at fault for continuing to proceed down the highway at a rate of speed that could have been considered excessive given the conditions. Testimony suggested his speed was at least 43 mph and maybe as much as 50 mph, while a tow truck operator on the same highway said conditions had forced him to cut his speed to 15 mph. The speed limit on that stretch of Interstate-20 was 75 mph.

Here’s the biggest concern for every van operator, moving company, and van line if the current appellate court ruling stands:

The results of the Werner case to this point mean – there is “a legal duty on Texas motorists in the State of Texas to anticipate that vehicles on the other side of a divided highway will lose control and cross directly into their path,” according to the appeal document. “A failure to foresee this remote possibility and do everything possible to avoid it, including getting off the road entirely, can make a driver 100% responsible for almost any accident.”

Yet, Werner’s appellate brief said the accident’s investigating officer testified that “this was truly an accident” … Ali (the Werner driver), “didn’t do anything wrong,” and there was “nothing he could have done to avoid the collision.”

From that perspective it’s important that we in the moving industry keep this case on our radar. The ruling by the Texas Supreme Court will determine how we move forward.

“The sole proximate cause of this traffic accident was Salinas’ sudden loss of control of his vehicle,” Werner’s attorneys wrote in their conclusion. “None of [Werner’s] conduct, whether negligent or not, was any more than a cause of Ali’s being at the site of the accident. That is not enough to ‘impose liability in Texas’,” Werner’s attorneys concluded.

This case will bear watching.

“I prefer to be alive, so I’m cautious about taking risks.” – Werner Herzog