The Lombardi Law Firm Blog

Truck Accident Prevention: Garbage truck backing over woman may be an accident but it is preventable.

Truck backing over pedestrian woman is preventable.

Today I’m going to revisit accidents in which a pedestrian is backed over by a truck or other vehicle while the driver is attempting to back to the rear. A backing up maneuver.

These are tragic accidents. But the tragedy aside we need to learn from them to prevent future accidents from happening. If the rules are followed these types of accident are preventable.  Pedestrians don’t stand a chance when confronted suddenly with an approaching vehicle. That’s not a statement that shouldn’t cause an epiphany its simply reality.

Accidents are about an assessment of fault. Who did what and when did they do it? What should they have done differently and why? Answer those questions and you pave the way to what the civil justice system is all about. Feelings aside they have nothing to do with assessment of fault. The cold hard facts of life include that vehicles are instruments of death. Put a rushed or distracted person behind the wheel and I’ll show you a driver at fault. Just drive down the road and watch the number of people texting or with a cell phone glued to their ear looking around wondering who is watching how important they appear while talking on the phone.

Corporate America is trimmed to the bone. The are squeezing more and more out of less and less. And that means fewer workers have to do more work in less time. In the case of the garbage truck backing over the woman it’s pretty predictable and preventable.

First it’s predictable because it’s not rocket science to expect workers to be downtown on the sidewalks, walkways and alleys of busy Des Moines.  Deliver trucks, garbage trucks and the like know they have to contend with pedestrian traffic.

And backing over pedestrians is preventable. If the driver is intending to back up and can’t see behind they simply need to rely on a spotter. Most vehicles are required to use a rear-audible-warning device that emits a beeping sound as the truck is engaged to back up. If the warning device isn’t working then the truck isn’t suppose to be put into use until it’s fixed. It’s that simple. If the driver is unable to see to the rear then a spotter is used.

This type of accident is far too common than one might think. The first example comes about on October 27, 2004. In that case we researched this issue involving a situation in Oceola, Clarke County, Iowa.  The vehicle was a shag truck with a disconnected rear-warning-device. The driver couldn’t see and simply backed up over a fellow security guard worker. Luckily the woman didn’t die. She is today a living example of a miracle. In spite of my grouchiness we  remain friends.

The second example came up as a news item by the Gazetteonline.com from Cedar Rapids and it caught my attention on June 7, 2008. In that case a Garnavillo woman working at a sand company was backed over by an end loader. She off course died at the scene. You might wonder how this can happen and how to prevent it from happening to you or your loved one. OSHA has rules that apply to certain industries that are designed to reduce the number of fatalities from backing over someone at a work site.  There is no indication of what time the shift began or what the worker was doing at the time she was backed over. Workers on work sites are busy with individual duties and can’t have eyes in the back of their head. Spotters can help avoid these mishaps along with auditory rear warning devices.

In the third example a 4-year-old child was backed over in Gowrie and it was reported in the Des Moines Register on October 7, 2008. In that instance the driver of a Ford pickup truck didn’t see the child as they were backing out of the driveway, continued and the child was killed.

In the latest case a Des Moines woman died of massive head and leg injuries on November 7, 2008 when a garbage truck backed over her while in an alley to the rear of the Aviva USA Insurance Company building. That building is close to the intersection of Fifth Avenue and Park Street, downtown Des Moines.

These are all sad cases and our heart goes out to the survivers and the drivers who live with the pain but according to experts these accidents are preventable.

Rear warning devices have to work, shouldn’t be plugged up or covered or disconnected. They should be appropriately loud and distinct enough for the work zone. If the vehicle was manufactured with a rear warning device it can not be disconnected without a written consent of the manufacturer. If the rear alarm doesn’t work the vehicle shouldn’t be used until it’s repaired. OSHA has specific rules based on the industry and the history of past accidents.

“This is in response to your May 12 letter requesting compliance determinations for your "Radar Backup Alarm System 202" as it relates to the Occupational Safety and Health Administration (OSHA) standard 29 CFR 1926.601(b)(4)(i). That provision addresses reverse signal alarms for motor vehicles.”

From 1990 to Jan. 2003 there were 9 child deaths out of 42 children involved in backing up incidents.

Research has proven that rear warning devices work. There is also research that discusses the overuse of these devices and competing noises and how those noises interfere with a pedestrian’s perception of imminent danger. That simply means drivers can not and company’s should not require drivers to rely solely on rear warning devices when rushed and in a hurry to complete a route. 

One company, The Strattus Group in its Backing Accident Prevention instructions cites numbers of accidents and costs associated with this type of accident and they contend “All backing accidents are preventable!!!!.”

“There are over three million rear-end accidents (backing accidents) each year in the USA, over four billion dollars spent on repairs and over one thousand lost lives! Studies have shown that 60% of collisions in the transportation field involve backing / parking.  While these low speed collisions rarely produce injuries, they do occur frequently, costing you and your insurance company money. Fleet safety and consumer back up accident prevention devices (reverse car parking aid) are a necessary and low cost solution.

Backing accidents can be significantly reduced by warning commercial and consumer drivers of eminent danger saving lives, property and money. 

All backing accidents are preventable!!!! 

Stratus back-up Rear View System (Vehicle Driver Alert System), safety collision avoidance / parking device is unique.  Commercial fleets like Pepsi and Budweiser understand the safety issues associated with vehicular mishaps. Commercial fleets understand that 60 - 80% of the their accidents involve backing. Most backing accidents are not accidental, with the proper equipment and training most can be avoided. The first choice in Backup Warning System is Stratus  by The Stratus Group. Our collision avoidance system (reverse car parking aid) is simply the very best on the market and we understand that making distribution opportunities available is essential to our continuing development and marketing.

Our Backup parking alarm system far out performs other backing radar and safety parking systems on the market. A digital display and audible alert  show distance in feet and inches. Our back-up sensor collision avoidance system is the best on the market. The Stratus reverse warning device is installed on all Hummer vehicles sold in Broward County area, commercial and consumer vehicles ford -mercury -excursion -explorer -Lincoln  Chevy Mercedes etc. Stratus backup alarm warning system is the absolute best on the market. No radar reverse parking assist product even comes close. If you are searching for a backing accident prevention, reversing or echolocation avoidance system for you car, you have found the best product on the market”

Advice for pedestrians

People on brakes to have a smoke need to be especially careful watching, listening and keeping their head on a swivel.

Advice for the landlord

Watch where you place the dumpster keeping it away from places where workers congregate to smoke or wait for rides. If the dumpster area is limited place signs advising pedestrians and drivers alike.

Advice for the truck driver and company

The company should not be asking drivers to do more than they can safety perform. The drivers should use spotters and make sure the rear warning devices are working before taking the truck out of the yard. Use spotters when necessary.

Perhaps these tragedy’s can be avoided or at least reduced.

RESOURCES

Do Motor Vehicle Back-Up Warning Devices Protect Young Children?, by Sapien, et al.

Consumer Vehicle back-up sensors - Accident Prevention Device

OSHA 29 CFR 1926.601(b)(4)(i)

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Interstate Highway Safety: Part I - Ghost drivers continue to be a problem on U.S. Interstate Highways

Whenever a potential client calls with a wrong-way turn collision I ask myself a question. Was it booze or drugs, old age, sign pollution, improper sign wording, a language issue, a lighting issue, being in a hurry, being distracted or just inattentiveness that causes someone to turn the wrong way? I’m not talking about falling asleep or a sudden medical condition or any of the causes that makes someone simply cross the center line on an undivided highway. I’m talking about a divided highway where a person turns left immediately rather than continue across the median strip before turning.

More often than I like to recall there is another accident where two or more cars collide with one driving the wrong way on the Interstate. Our highways here in Iowa are I- 80, I-235 and I-35. In the recent past there have been wrong-way collisions in Richmond, California, Salem, Oregon and Iowa on I-80.

Like running a stop sign this issue has come up a few times in my practice and it has always puzzled me. You would think no one would purposefully turn and drive the wrong way against traffic, but a few do to avoid long traffic lines. There is nothing we can do about the drunks and those who purposefully ignore how risky a practice it is. But what about the others? Lawyers are citizens first and if there is something about the rules of the road that can be changed to avoid accidents we would like to act. That’s really why most of us attended law school; to make the world a better place.

A Persistent Problem

Driving the wrong way on freeways has been a nagging traffic safety problem since the interstate highway system was founded in the late 1950s. Despite four decades of highway striping and sign improvements at freeway interchanges, the problem persists.

Studies, such as those performed by the Washington State Department of Transportation (WSDOT), show the vast majority of wrong-way drivers correct their mistakes before causing a crash by simply turning around and heading in the right direction. But for unknown reasons some drivers, even when sober, head straight into oncoming traffic with devastating consequences.

On average about 350 people are killed each year nationwide in wrong-way freeway crashes, according to an analysis by retired FHWA traffic engineer Dennis Eckhart using the National Highway Traffic Safety Administration's Fatal Accident Reporting System. The 350 figure covers those killed on divided highways, including driving the wrong way on one-way traffic ways such as freeway ramps. From 1996 through 2000, 1,753 people died in wrong-way crashes on the Nation's freeways, according to Eckhart's analysis. Thousands more are injured. In the four-county area where Klotz was killed King, Snohomish, Skagit, and Whatcom counties—136 wrong-way crashes between 1997 and 2000 resulted in 81 injuries and nine fatalities.

"While there are safety programs exclusively for rail crossings and work zones," says Eckhart, "I am not aware of any national-level program to combat the wrong-way problem. However, at the State level, some States such as California do have a wrong-way prevention program that funds safety improvements." State departments of transportation (DOT) across the country have taken additional measures to improve ramp designs, signage, and striping to prevent wrong-way incidents. Other States are experimenting with intelligent transportation system (ITS) technology to address the problem.”

U.S. Department of Transportation, Federal Highway Administration, Sept/Oct. 2002

If the issue is intoxication or simply a refusal to follow the rules-of-the-road then there is little we can do but to punish and punish severely. This is a judge’s sentencing discretionary function; something we should bring back from earlier years. If it’s the sign and the words used then it should be somewhat obvious from what the drivers tell us. And in that instance the DOT needs to correct the problem. If it’s sign pollution, with too many signs causing driver confusion, then the DOT and municipalities need to act by restricting signs. If the issue is the soccer Mom syndrome with rushing around to too many places while talking on the cell phone while the kids watch a movie on the DVD player, then it’s the driver’s fault for doing too many things and being distracted. Same goes for the teenager who is too busy texting to pay attention to the traffic conditions. Old age is just a natural condition of living long enough that human capital wears out. That’s a licensing issue for the DOT.

One possible solution to the ghost drivers…

Germany came up with an interesting solution used on the autobahn. They call the ghost drivers who trigger a radio announcement that interrupts your radio to warn you.

“Perhaps the best solution would be to follow Germany’s model: Wrong-way drivers on the autobahn ("ghost drivers") trigger a radio announcement that interrupts whatever you’re listening to, warning you of the situation and that car’s approximate location. That way, you can pull off onto the shoulder and keep a close eye out for someone coming from the opposite direction at well over 100 mph on your side of the road.”

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Highway Safety - U.S. Highway 65 Collision of two trucks

A collision between two trucks occurred on November 4, 2008 at the intersection of U.S. Highway 65 and 180^th near Rockwell. Life flight helicopter was dispatched and was able to land between the two vehicles. A photograph of the scene shows several ambulances along with firefighters attending to the injured. Rockwell is south of Mason City in Cerro Gordo County.

The Iowa State Patrol report has two of the four vehicle passengers were injured. In this collision the northbound vehicle is stated to have crossed the center line sideswiping the southbound vehicle causing it to flip on its side and coming to rest in the east ditch. The northbound vehicle came to rest in the west ditch. Iowa Falls ambulance and Cerro Gordo County Ambulance crews along with Mercy Air Life removed the injured.

The two trucks were a 1995 Chevrolet K2500 and a 2000 Ford F550. The K2500 is a ¾ ton pickup truck.  The F550 is a unique light frame truck.

“The Ford F550 is a class 5 Ford conventional truck. It is unique in its weight class in that the 2003 model shares fenders, hood and grille as well as the cab with a pickup. This model is used in places as a light-framed armored truck such as the Armet Armoured Vehicles Gurkha.”

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Warren County crash and driving while intoxicated - Call 1-800-Taxi Cab

A Warren County rear-end collision that resulted in two deaths has resulted in two counts of vehicular homicide and OWI, according to the reported stories from the AP and the Chicago Tribune.

In Iowa an accident involving alcohol can result in punitive damages being awarded. You should also know that many auto insurance policies don’t cover punitive damage awards. In other words, that portion of any settlement entered into or judgment awarded would need to be paid out of a person’s own pocket (assets).  The law is intended to not just punish but to deter others from the same action.  

Drinking and driving is taken very seriously in this state. If you’re over the limit do everyone a favor by calling a friend or by taking a cab.  It’s interesting that anyone can get a cab company nationwide by phoning 1-800-Taxi Cab.

“How to Choose and How to Find Taxicabs
Taxicabs are used for transportation whether its for an individual, for corporate business reasons, or a group of people. Depending on the distance and the miles the cab drives, it has a meter that records how much it drives so the taxi fare will be accurate for you to see. Sometimes you may tip the driver depends on the level of the service. Looking for the best taxicab service can take some time to find since there are many different companies that offer this particular service. This article demonstrates how to find the taxicab service that best suits you using some useful search techniques. There are a few things to think about before looking online, think about what type of taxi service are you looking at? Are you needing an express airport shuttle? Maybe you need a cab that could hold more than 6 passengers. The main thing to think about is your needs so when searching online, you can get the best out of your search results. Here is an example of how to search effectively, let's say you are in need of a luxury taxicab service, and need it urgently to take you to the airport. One effective way of typing this would be “luxury taxicab airport service”. Once you come across a listing of companies that suit your specific needs, start researching the company's background. Look into things such as how long they have been in the taxicab industry, licensing, customer satisfactory rate, look at the better business bureau to see their ratings and also check out what services they specialize in. This is very beneficial for you as a customer because it shows you if their business match up to your needs.”

Be safe, be smart – not penny wise and pound foolish.

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Negligent Behavior - If it's an accident will it still be considered negligent? The answer.

If you read yesterday’s post you’re answering a question about accidents still being considered negligence.

Here is the short version of the facts: driver of a van sees a pedestrian walking behind him and while trying to brake mistakenly steps on the gas. The question posed is whether an accident can still be considered negligent conduct for which he can be held liable.

The answer is yes, accidents are still causable negligence. In this instance the driver of the van knows the woman is behind him. She’s clearly visible to him and he’s trying to brake to avoid hurting her. But she is still injured because he makes the simple mistake of stepping on the wrong pedal, the gas pedal. He, as the driver of the car has a duty to step on the brake. He has a duty to stop. He has a duty to maintain control of the vehicle-car-truck-motorcycle-atv or another vehicle he’s operating. And when he fails to do so he’s in violation of that duty to control it. So yes it’s still negligence even though he meant to step on the right pedal.

So if you answered yes you were correct.

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Negligent Behavior - If it's an accident will it still be considered negligent?

There is a recent news item that illustrates the concept of negligence. The driver of a Chrysler van is backing up. At 80 years of age he’s considered elderly. At the same time he’s backing up a 64 year old woman is crossing the street and walks directly behind the van. The van driver has the transmission in reverse and by mistake steps on the gas pedal rather than the brake.

Okay so one is left to ask if this is an accident then is it still negligence. First of all the driver is elderly so we feel bad for him. Also it was simply a mistake in stepping on the gas instead of the brake. Of course the woman he ran over isn’t feeling any compassion for this driver, no matter if he’s 18 or 80 and the fact he stepped in the wrong pedal says nothing for his having knowledge she’s right behind him.

So is it negligence?

And if so why is it negligent?

Clearly if he’s negligent then it’s a proximate cause of her injuries. And we can safely assume she has damages. So answer those questions and tomorrow we can see how well you did.

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Woman gets run over and dragged by van in Des Moines

The Des Moines Register reports that a 47-year old woman was struck as she rode her bicycle on Merle Hay Road in Des Moines. A van owned by the French Way Cleaners ran into the rear of a Grand Caravan causing the Caravan to go sideways and into the bicycle. According the report the bicyclist then lost control and ended up under the wheels or the French Way van and was drug several feet.

"The accident happened when a French Way Cleaners van driven by Kevin McCurn of Des Moines ran into the back of a Grand Caravan driven by Carlyle Melin of Olathe, Kan., Aswegan said. The impact pushed the Grand Caravan sideways and into the bicycle. The cyclist lost control and was thrown under the wheels of the French Way van and was drug several feet."

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Stopping over the crest of a hill can be negligence.

Once again today we visit the issue of negligence or fault under Iowa’s comparative fault statute, Iowa Code Chapter 668. Today’s act is stopping on a highway. A driver could be found to be negligent if they stop over the crest of a hill. That means simply coming up over a hill and then stopping on the downside out of sight of oncoming traffic. Stopping in such a location doesn’t allow oncoming traffic the opportunity to have sufficient time to stop. If the driver in this condition is faced with an emergency a first impression would be to excuse the situation. But that isn’t always the case. If the driver of the stopped vehicle has time to exit the car and then to warn other drivers it could still be considered negligence. If they do try to warn, but fail to do enough to warn other drivers of the stopped vehicle it too can be an act of negligence.

There is a story being reported where an elderly woman for no explained reason stopped just over the crest of a hill on U.S. Highway 34 east of New London in southeastern Iowa. She was sitting in her car when a National Guard bus crested the hill and struck her vehicle. The bus driver stated he could not stop in time to avoid striking the vehicle. The woman died in the ensuing crash. A further investigation is necessary to try and explain the reasons she stopped. If it were a heart event then she would certainly be excused under the doctrine of sudden emergency.

Most of us think of negligent acts in terms of who was the one striking who. But in this instance it’s the person being struck that is the negligent one, or so it appears. Although this is an unfortunate accident it does demonstrate a point about negligence and fault and for no other reason we discuss it.

Of course the other party can always argue about speed, time and distance issues involving the bus driver and whether his acts amounted to negligence, but that is for another day.

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Am I at fault if I crash into someone else while driving in dense fog?

QUESTION: Am I at fault if I crash into someone else while driving in dense fog? After all it isn't my fault, it was the fog!

ANSWER: If we ignore all other facts and entertain only the fog issue, then my opinion is that you are likely to be at fault. There is nothing unusual about the fog. Fog is fog. It's a weather condition that all drivers must contend with and everyone knows that fog is the sort of weather condition that reoccurs and is known to the driver. Fog isn't usually a surprise that suddenly and unexpectedly occurs. If you are driving along in the middle of a bright sunny day, without any weather conditions and some freak of nature fog bank suddenly and without warning moves in overtaking your vehicle, then maybe you have a sudden emergency but otherwise no. A heart attack is a sudden emergency. Fog is not.

To see what can happen when a driver continues driving in fog that interferes with their ability to maintain a proper look consider these two accidents and ask yourself; Were they preventable?

Here is the story as reported by the online Gazette.

Scott Nelson, 42, died when he drove his pickup into a semi-trailer truck that came to rest across Highway 20 after a collision with a stopped vehicle in dense fog about a mile west of Epworth, the Iowa State Patrol said.

Ron Fowler, 56, of Boone, was attempting to turn left from the northbound lanes of Highway 6 onto Skyline Road near Dubuque Regional Airport at about 1:30 p.m. when a southbound vehicle driven by Gene Horn, 57, of LeClaire, struck the rear of his semi-trailer truck, according to the Dubuque County Sheriff's Office.

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Driving while the sun is in your eyes making it "impossible to see" can be driver negligence.

Driving while the sun is in your eyes making it impossible to see what is in front of you, most of the time is a civil wrong. Just because a driver isn't given a ticket (citation for violating the law) doesn't mean they aren't negligent. In other words a driver can still be sued in civil court even though the police officer didn't issue a ticket. On November 19, 2007 I'll post about falling asleep while driving.

So when for instance a young child is struck by a car, like the one that happened at 25th Street and Forest Avenue in Des Moines on Monday night, the driver of the van can still be sued for negligence. The standards for criminal laws being violated and civil rules being breached are different. Criminal violations are tougher to prove. So a child crossing the street and being run down by a car or van where the driver claims the sun was in his eyes, may still be wrong civilly. And that civil breach will probably lead to recoverable damages.

Everyone knows the sun is there and is in the west when it sets. It's not like this is some act of God that today the sun for the first time ever is setting in the West. We all have or should have a pair of sun glasses available when we drive to help out in these situations. And at 6:30 pm which is about the time this child was struck, we know in early October that it will be something drivers need to contend with.

So no ticket issued doesn’t mean not negligent.

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Gravel Road Dust Makes Crash with Vehicle to the Rear Foreseeable

There was a crash in Mitchell County near the town of Osage that occurred on November 2, 2007. This to-the-rear-end near-collision is one that illustrates how the driver in the front can be considered negligent. Iowa being a comparative fault state there is probably fault to be attributed to both drivers but let's examine how this can be so to the front vehicle. Normally we would blame fault on the driver to the rear and that may be the situation in this case, but experience tells me that in this case front positioned driver may share the lion’s share of fault.

Here is what the officer described in the investigative report. This is a two car collision with no contact between vehicles. Both cars are traveling in the same direction on what appears to be a gravel road. The driver to the rear is 16 year old Benjamin Mobley. His 14 year old brother is a passenger. They are traveling east bound on 410th Street, which appears to be a gravel road because they are driving in dust. The car to the front slows to look at a deer in the ditch. And that is where I believe the negligence of the front driver comes into play. Due at least in part to the cloud of dust young Mr. Mobley doesn't realize the front vehicle is slowing. The accident investigation report indicates he doesn't realize the front vehicle has slowed until it is too late and to avoid the collision takes evasive action by turning to the left. The left front wheels drop off the roadway on the north side causing the driver to lose control and the vehicle to roll over, ejecting the passenger.