Preventable or not? Doe flip-flops on windy road

By CCJ Staff on

Preventable0212windgustThanks to intrastate driver Chucky Plimpton and long-hauler Slim Darmstadter, lunch at the truckstop had been mighty entertaining. Quoting from a tattered copy of regulatory interpretations, Darmstadter said Plimpton was subject to Federal Motor Carrier Safety Regulations whenever “the intent of the transportation being performed is interstate in nature, even when the route is within the boundaries of a single state.” Huh?

Gleefully aware of Plimpton’s confusion, Darmstadter then quoted Uncle Sam’s clarification that “interstate commerce is determined by the essential character of the movement, manifested by the shipper’s fixed and persistent intent at the time of shipment, and is ascertained from all the facts and circumstances surrounding the transportation.” Huh? Poor Plimpton.

Now, several hours later, tractor-trailer driver John Doe was northbound on California’s four-lane limited-access Coastview Highway with an empty intermodal container in tow. Noting that the gusty crosswinds – common to that stretch of road – suddenly had increased dramatically, Doe pulled into the right lane and decelerated to 30 mph from the posted speed limit of 55 mph. There was no opportunity to seek shelter. Whoosh! A 70-mph gust broadsided Doe’s container and … Whump! … flipped it violently on its side. Oh no!

Doe received a preventable-accident warning letter from his safety director, which he contested. Asked to resolve the dispute, the National Safety Council’s Accident Review Committee ruled in Doe’s favor, declaring that he’d taken every reasonable precaution. Even a dead stop probably wouldn’t have helped, NSC said.

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4 comments
john3347
john3347

First, why did Doe have to pull into the right lane when the winds picked up?  If he was not passing slower traffic, he should have already been in the right lane.  Negative points to Doe for this manuever, however if there was no place besides the highway shoulder for Doe to stop, he did all he could to prevent the turn over.  Doe wins the big points here, but loses small points for admitting that he was not in his proper lane to begin with.

David McQueen
David McQueen

Doe "wins" again.  However, the debate over what constitutes "interstate" travel is widely misinterpreted by many truckers and trucking companies.  They confuse interstate commerce with interstate travel.  Interstate travel is merely crossing a state line, regardless of the reason.  Interstate commerce, however, has its roots in the US Constitution where it deems Congress has the power to regulate commerce between the states (now called "interstate commerce").  A driver does not have to cross a state line in order to be involved in interstate commerce if the property has moved or will move across state lines or out of the country.  There is a plethora of case law, most notably Wickard v. Filburn in which a farmer (Filburn) sold excess wheat at a local market.  The feds claimed Filburn violated one of FDR's numerous socialist laws (The Agriculture Adjustment Act) by interefering with "interstate commerce".  The US Supreme Court held that even though Filburn's wheat was in itself miniscule, if EVERYBODY did what Filburn did, it actually would affect interstate commerce.  The USSC ruled against Filburn even though he had no intent to, nor did his small crop, actually affect interstate commerce. 

Tom Walter
Tom Walter

Being an ex driver I know how dispatchers, agents, brokers, customers, owners, and time push a driver down the road.  What should a driver do? A driver has to make these decisions everyday and for the most part he/she makes the right and safe decisions.  If the driver stopped along side the road and still was blown over this safety personal possibly would have cited him for not picking a better more safer place to park. They would say to the driver why didn't you research the weather forcast before you left?   Regardless, whether he parked and was blown over or driving slowly and was blown over the companies insurance company is till going to take a hit. Sometimes situations as this become just another cost of operation. I would not charge Doe for this accident.         

ColonelRadar
ColonelRadar

The NSC ruled correctly, unless there was some form of notification of the high winds ... 



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