Tip No. 11 for truck attorneys
Here’s my latest blog in my series of tips for truck accident attorneys. This is taken from trucking litigation seminars I spoke at in 2012 in Miami, Las Vegas and New Orleans.
When a truck or commercial vehicle driver violates a statute, ordinance or regulation relating to public safety and that is intended to protect a class of people, the plaintiff attorney should always seek an instruction that the violation by the company and/or truck driver is guilty of be considered as negligence per se at trial by a jury.
In fact, courts in the vast majority of states have held that a violation of a statute, ordinance or regulation, such as the Federal Motor Carrier Safety Administration Regulations (FMCSR), constitutes or would likely constitute negligence per se.
States in this category include:
- District of Colombia
- New Mexico
Courts in a very few states have split, and held that violation of a statute, but not an administrative regulation, constitutes negligence per se. These states, including Indiana, New York and Montana, are problematic when it comes to a negligence per se analysis of the FMCSR.
Why? Logically, the Federal Motor Carrier Safety Regulations should be given greater weight than any state statute, because the FMCSR preempts all state statutes seeking to set forth a lower standard. In addition, remember that almost all states have passed specific legislation adopting the FMCSR in its entirety.
Thus, in ascending order of importance in a trucking case, you would have:
- A. State regulations
- B. State statutes
- C. FMCSR
- D. Federal statutes.
At the very least, any attorney litigating a truck accident injury or wrongful death case should file a motion before the trial court that a violation of the FMCSR constitutes negligence per se.
However, because of the word “regulation” in the FMCSR’s title, some judges not familiar with personal injury cases occasionally do not give the FMCSR the legal weight they deserve.
Tip and trap on negligence per se
TIP – Proximate cause: The violation must be a proximate cause of the resulting damages, or there will be no finding of negligence per se. It doesn’t matter if the week before the truck driver had log book violations if you can’t show truck driver fatigue was also a cause of the crash.
TRAP – Failing by lawyers unfamiliar with truck accident cases to allege specific violations of the FMCSR before the time to amend the complaint expires.
- Steven Gursten is past president of the American Association for Justice Truck Accident Litigation Group, and speaks nationally on trucking cases. As part of the Truck Accident Attorneys Roundtable, he handles serious truck accident cases nationally.