John D. Winer, San Francisco

A. Truck Accidents Generally.

The law involving truck accidents, for the most part, follows the law of motor vehicle accidents; that is, plaintiff must establish negligence, causation and damages.

However, there are several unique aspects of truck accident litigation including:

  • special Vehicle Code sections that apply only to commercial trucks and other trucks.
  • the special licensing and training of commercial truck drivers.
  • the seriousness of injuries or death that can result from truck accidents because of the size and weight of commercial trucks.
  • in some cases, the need to retain expert witnesses with truck expertise.

B. Who Can Sue in a Truck Accident Case.

Anybody who is injured by the negligent maintenance, instruction or operating of a truck company or its representatives, i.e., drivers, can sue for damages. This includes minors and adults, passengers in the truck (however, passengers who are employees of the same company as the driver will only be able to sue if someone other than the driver caused the accident because of the worker's compensation exclusive remedy), drivers of other motor vehicles, motorcyclists, bicyclists, pedestrian and anyone else injured by the negligent maintenance or operation of a truck.

Further, truck drivers themselves can bring a lawsuit in circumstances when other persons or entities are responsible or even partly responsible for the accident.

The spouse of the injured plaintiff can also bring a lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.

C. Responsibilities of the Trucking Company.

i. Direct negligence.

A truck company can be found directly negligent in an accident if it negligently hired the driver of its truck, failed to ensure that the truck driver was properly licensed, negligently entrusted the truck driver with the truck, failed to instruct properly the truck driver on the safe use of the truck in terms of loading, unloading and driving, and for negligent maintenance of the truck as well as for failing to have truck properly equipped.

The trucking company has a "non-delegable duty," i.e., a duty it cannot pass on to anyone else, to use reasonable care to equip and maintain the truck in compliance with the law. The truck must be equipped as required by statute and as is necessary for safe operation and must be maintained in a reasonably safe running condition. Failure to equip or maintain a truck as required by law gives rise to a presumption of negligence.

ii. Truck company's responsibility for the negligence of its driver.

Further, a trucking company is responsible for the negligence of its truck driver, as long a the truck driver was in the course and scope of their duty at the time of the accident.

iii. Liability for negligence of truck drivers who are independent contractors.

Generally speaking, truckers hired to haul loads are ordinarily independent contractors and not considered to be employees of the company that hires them on an occasional basis to haul a load. However, a truck driver is considered to be the employee of the company for whom he or she works and that company will be responsible for the truck driver's negligence.

iv. Special regulations of trucking industry should be reviewed by plaintiff's attorney.

There are many State and Federal statutes regulating the trucking industry, and those statutes should be carefully reviewed by a plaintiff's attorney pursuing a truck accident case. Some of the important California Vehicle Code Regulations will be discussed in section D below.

D. Special California Vehicle Code Sections Regulating Truck Drivers and the Trucking Industry.

i. Licensing.

No person can operate a commercial motor vehicle without a special driver's license and without passing a special examination.

A commercial truck driver who is convicted of any offense involving the safe operation of a truck or has his or her license or privileges suspended, revoked or canceled, must notify the employer within 30 days.

Under California law, no person may be issued a commercial driver's license until passing a written and driving test for the operation of a commercial motor vehicle which complies with the minimum Federal standards.

Further, until a truck driver passes the airbrake component of the knowledge test, they must have a license which restricts them from operating trucks with air brakes.

Drivers that operate a double trailer, tank vehicle, carry hazardous materials, or transport certain kinds of loads require a special DMV endorsement to be able to drive.

ii. Special rules when applying for employment.

Every person who applies for employment as a driver of a commercial truck has an obligation to provide the employer, at the time of the application, with the following information for the ten years preceding the date of the application:

  • a list of names and addresses of the applicant's previous employers for which the applicant was a driver of a commercial motor vehicle.
  • the dates the applicant was employed by each employer.
  • the reason for leaving that employment.

iii. Conditions under which a trucking company is prohibited from allowing a driver to drive.

It is against the law for any trucking company to knowingly allow, permit or authorize a driver to drive a commercial truck if:

  • the driver has a driver's license which is suspended, revoked or canceled by any state or has been disqualified from operating a commercial motor vehicle.
  • the driver has more than one driver's license.

Note that even a self-employed commercial truck driver must follow the above rules.

iv. Restrictions on truck drivers based on Vehicle Code violations.

a. One- or three-year suspension for intoxication, leaving the scene of an accident or fleeing a police officer while driving a commercial vehicle.

A commercial truck driver is not allowed to operate a commercial truck for a period of one year if the driver is convicted of a first violation of any of the following:

  • driving a commercial motor vehicle while under the influence of alcohol or controlled substances.
  • leaving the scene of an accident involving a commercial motor vehicle operated by the driver.
  • fleeing from a police officer while driving a commercial vehicle.

In the case of a driver carrying hazardous materials, any of the above violations will result in a three-year suspension.

b. Lifetime suspension under exceptional circumstances.

No driver of a commercial truck may operate a commercial truck for the rest of his or her life if convicted of any of the above violations more than once.

Further, no driver may operate a commercial truck for the rest of his or her life who uses a commercial motor vehicle in the commission of a felony involving manufacturing, distributing or dispensing of controlled substances or possession with intent to manufacture, distribute or dispense a controlled substance.

c. 60-day suspension for two serious traffic violations.

No commercial driver may operate a commercial vehicle for a period of 60 days if convicted of a serious traffic violation and there has been a previous conviction within three years of a separate traffic violation.

d. 120-day suspension for multiple serious traffic violations.

No commercial truck driver may operate a motor vehicle for a period of 120 days if convicted of a serious traffic violation involving a commercial motor vehicle and the offense occurred within three years of two or more separate offenses of serious traffic violations which resulted in convictions.

e. What is a serious violation under the vehicle code?

A serious traffic violation includes either of the following:

  • excessive speeding.
  • reckless driving.
  • a violation of any State or local law involving the safe operation of a motor vehicle arising in connection with a fatal traffic accident.
  • any other similar violation of a State or local law involving the safe operation of a motor vehicle.

v. Maximum speed laws as they apply to commercial truck drivers.

No person shall drive a motor truck or truck tractor having three or more axles, or any motor truck or truck tractor drawing any other vehicle transporting explosives faster than 55 miles per hour.

If a truck driver drives one of the above vehicles more than 15 miles over any speed limit imposed under the Vehicle Code, it is considered a misdemeanor and a "serious traffic violation." (See section D(iv)(e) above.)

vi. Distance between vehicles.

Unless passing or overtaking another vehicle, a commercial truck driver driving a vehicle that fits the description in the section D(v) above must keep a distance of not less than 300 feet to the rear of any other motor vehicle while driving outside of a business or residential district, unless they are driving upon a highway with two or more lanes for traffic in each direction of travel.

vii. Dumping, spilling or releasing hazardous materials or waste on highways.

Any person, including commercial truck drivers, who dumps, spills or causes the release of hazardous material or hazardous waste must immediately notify the California Highway Patrol and must immediately remove the material or cause the material to be removed.

Further, it is illegal for a truck to be operated unless it is constructed, covered or loaded as to prevent any of its content or load from dropping, sifting, leaking, blowing, spilling or otherwise escaping from the truck.

In the case of trucks transporting aggregate materials, there are special regulations regarding sealing and securing loads.

viii. Brake requirements.

Any motor vehicle, including commercial trucks, must be equipped with power brakes if the gross weight exceeds 14,000 pounds, except if it weighs less than 18,000 pounds it can, instead of power brakes, be equipped with two-stage hydraulic actuators of a type designed to increase braking effect of its brakes.

Trailers and semi-trailers require brakes which will automatically engage upon a breakaway from the towing vehicle.

ix. Restriction of commercial trucks on certain highways.

There are various local ordinances and State laws prohibiting commercial trucks of a certain size to utilize specific roadways and highways. The truck companies and their operators have a duty to know and follow these regulations.

x. Load and tire requirements.

A commercial truck must comply with Vehicle Code regulations requiring certain types of tire and tire strengths depending upon the size of the load.

xi. Violation of Vehicle Code Sections creates a presumption of negligence.

If plaintiff can establish that a truck involved in an accident with plaintiff violated one or more Vehicle Code sections (with the exception of possibly driver's license violations), and that they were within the class of people intended to be protected by that Code section, and the violation contributed to the accident, there will be a presumption that the defendant was negligent.

E. Proving Negligence of a Truck Driver When No Vehicle Code Section Was Violated.

i. Plaintiff should try to elevate the standard of care of a truck driver above that of other drivers.

Any person that drives a motor vehicle is required to utilize reasonable care in the operation of that vehicle to prevent injury to others. When evaluating the conduct of a commercial truck operator, plaintiff can argue that the reasonableness required is that of a professional driver.

Whether or not plaintiff can elevate the standard of care of the truck driver, plaintiff attorney through the testimony of the driver and experts, should inform the jury of the special training that truck drivers receive when they first learn how to drive a truck and at every new job.

ii. A truck driver needs to utilize more caution than other vehicle drivers.

Further, because of the size and weight of trucks, there are special rules which regulate their operation and reasonable care under the circumstances will require truck drivers to utilize more caution and care than the driver of a smaller vehicle.

iii. Examples of situations in which a truck driver must use a higher degree of caution because of the size and weight of trucks.

For instance, it takes longer to stop a heavy truck than it takes to stop a smaller vehicle; therefore, by even an ordinary negligence standard, a truck driver has to keep more distance behind other vehicles to avoid accidents.

Another example of this principle would be that, since it takes longer to stop a truck, a truck driver should be more alert to dangers in front of them than other vehicle operators. Yet another example would be the fact that since trucks generally have more blind spots than most vehicles, a truck driver must use extra caution when switching lanes.

F. Use of Experts in Truck Accident Cases.

i. Situations where plaintiff may not need a liability expert.

In some truck accident cases, there will be no need for use of any experts at all. This will be true in any case in which fault will clearly be established from the testimony of witnesses and/or the physical evidence and obvious to lay jurors.

ii. Accident reconstruction expert.

However, in most other situations, and almost any case involving serious injury or death, the plaintiff's attorney will want to retain at least an accident reconstruction expert to evaluate the physical evidence and the testimony and draw conclusions which will help the jury make the decision of who is or is not negligent in a truck accident case. An accident reconstruction expert is normally a mechanical engineer or a physicist with expertise on determining speed, visibility, degree of impact, point of impact and other accident-related factors.

iii. Human factors expert.

In addition, the plaintiff's attorney may want to retain a human factors expert who is an expert on the interrelationship between human beings and machines to speak to various behavioral factors involved in the accident such as perception and reaction time of the drivers and expected behavior of drivers in certain emergency situations.

Human factors experts will usually testify that truck drivers, because of the training and experience and knowledge of risk, should use more caution and react more quickly to dangerous situations than other drivers.

iv. Truck accident specialists.

Further, in a truck case specifically, a plaintiff's attorney may want to retain a trucking expert who will either:

  • have special expertise in reconstructing accidents involving trucks, e.g., he or she will be able to look at a truck and from the damage, movement of the truck parts, skid marks and other physical evidence, determine the speed of impact when the truck driver first reacted to a perceived risk and the nature of the movement of the truck after defensive action began.
  • will be able to testify on the many rules and regulations and industry standards applicable to truck maintenance and operation.
  • will be able to testify to expected standards of a truck operator in specialized situations such as construction areas, loading and unloading and transportation of different kinds of loads.

G. What If the Plaintiff Is Partially at Fault?

A plaintiff can recover even if he or she is also at fault. California is a comparative negligence State in which a negligent plaintiff can recover damages; however, their monetary recovery is reduced by the amount of their fault. For instance, if a court or jury finds that a plaintiff's damages should be valued at a $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.

H. Compensatory Damages in Truck Accident Cases.

In a truck accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.

The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.

Pain and suffering is typically the most significant element of a plaintiff's damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.

I. Punitive Damages.

Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant's misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.

J. Claim for Loss of Consortium.

A plaintiff's spouse can also sue and recover damages for 'loss of consortium." A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse's unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

K. How Soon Must a Truck Injury Case Be Brought After an Accident?

Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within two years of the date of the accident/incident. In rare cases, that time period is extended to two years from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.

L. Considerations in Evaluating Cases for Settlement.

i. Many different factors are taken into consideration when evaluating settlements.

There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:

ii. Liability.

The clarity of liability (i.e., fault) in the case is a critical settlement factor.

In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff's chances of losing.

Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company's $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.

iii. Comparative fault of the plaintiff.

If a plaintiff is found to be partially at fault for causing their own injury, then the their potential jury award is reduced on the basis of plaintiff's percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff's verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.

iv. Likely jury verdict value of the case.

In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.

Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in "jury sheets" that lawyers read and utilize when attempting to assess the value of any particular case.

v. Aggravated liability.

In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to "spike" their verdict and award more money for a plaintiff's injury than they would if a defendant's misconduct was merely negligent.

Aggravated liability situations, such as a defendant who was found to be driving drunk, will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.

vi. Punitive damage exposure.

If the defendant's misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.

vii. The character and credibility of the parties.

A plaintiff's case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don't believe.

To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.

viii. The extent of the injury.

Theoretically, the more serious an injury, the greater should be the value of the plaintiff's case.

ix. Objective evidence of injury.

Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.

There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.

However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.

x. Past and future medical bills of the plaintiff.

As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.

However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.

xi. Past wage loss and future wage loss.

Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was reasonably off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.

Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.

xii. Is the injury permanent.

In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.

xiii. Venue (where the claim will be tried).

It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.

xiv. Policy limits and defendant's assets.

No matter how severe the injury, the plaintiff's ability to recover damages against defendant will be limited by either the defendant's policy limits or the personal assets of the defendant.

However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff's injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.

xv. Target defendants.

Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.

xvi. Reputation and ability of attorneys.

The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff's attorney and the likelihood that the attorney will try a case and try it well.

In situations in which the defense believes that the plaintiff's attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.

On the other hand, if the defense believes that a plaintiff's attorney will not only go to trial, but will receive an optimum verdict, the defense's risk is increased and thus the settlement value of the case is increased.

By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.

xvii. Expense of litigation.

The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.

Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.

However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.

Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.

This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP

specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.