Just before sunrise, January 9, 2017, Alex A. Ortega was killed in a collision with an 18-wheeler, which was reportedly blocking the intersection of County Road 1160 and Business 20 near Midland, Texas. According to news accounts, the truck stalled, while crossing through the intersection, before being struck by Mr. Ortega's vehicle.
Without knowing more about the details of the crash, it would be inappropriate to speculate about who is at fault in the accident, if anyone. However, our firm has seen the same general fact pattern in this case in numerous other crashes.
In almost all accidents like this, what turns a dangerous situation into a deadly one is when there is nothing to alert other drivers about the hazard in the roadway. Granted, if a truck breaks down suddenly, the driver isn't going to get out and put out flares. However, in many situations where a truck is stopped in a dangerous location, the drive fails to properly alert other drivers that his or her truck is stopped in the roadway.
We often speak about how drivers have a duty to notify oncoming traffic of their presence, however, it occurred to us that we've never actually gone over what the requirements are for a driver to fulfill their duty, let alone examined whether or not these rules are appropriate for present day highway conditions. We seek to remedy that defect now.
What Are the Rules for Stopped Commercial Vehicles?
One of the pitfalls of writing and working in the area of truck accident law day in and day out is that the office jargon becomes so familiar that it's easy to gloss over the fact that not everyone is fully up to speed with what we're talking about. We often talk about the duties that commercial truck drivers whose vehicles are stopped owe to other motorists, but we never discuss where these duties come from.
While the state of Texas has passed several laws that govern what duties stopped truck drivers owe to other motorists, many of the particulars of these laws are superseded by similar federal regulations. Those rules are found in Title 49 of the Code of Federal Regulations, Section 392.22.
The first duty that a truck driver owes it to signal other motorists with hazard lights.
49 CFR 392.22(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.
In simplest terms, drivers have a duty to display hazard lights when stopped. This is merely the first step in a more comprehensive duty to put out appropriate signalling devices. Hazard lights are akin to when people get out of a shower and throw on a bathrobe. The bathrobe isn't what anyone wears out into public, but a stop-gap measure until someone is in a position to fully dress. Just as we aren't fully dressed when we're in our bathrobes, a truck driver hasn't fulfilled his or her duty just by turning on hazard lights.
To fulfill the duty required by law, a truck driver must lawfully place signal flares or warning triangles at appropriate internals, behind the vehicle, or in the case of a disabled truck, on any side that may pose a hazard.
49 CFR 392.22 (b) Placement of warning devices -
- (1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by § 393.95 of this subchapter, in the following manner:
- (i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;
- (ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
- (iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.
This portion of the law is taught in every truck driving school. When properly deployed, signals are at 10 feet, 110 feet, and 210 feet. If we assume that these warning devices can been seen from a couple hundred feet away, then other vehicles should be able to avoid a stopped 18-wheeler.
The odd thing about the execution of this particular duty is that most of the complaints that drivers don't perform it properly don't come from truck accident injury attorneys, but from truckers themselves. The internet is littered with message boards where truckers complain that other drivers will place all three flares within 30 feet of a vehicle. I've also read several dozen complaints that when placing flares, some drivers direct traffic towards the back of their trailer instead of into unblocked lanes.
While in theory a car should be able to see the flares several hundred feet down the road, even a vehicle traveling 20 mph needs 44 feet to come to a stop when reaction time is factored into the equation. It's easy to see how putting all three flares within 30 feet of a tractor trailer is dangerous and doesn't fulfill a truck driver's legal duty.
The final set of duties for commercial drivers can be found in the next section of the law.
49 CFR 392.22 (b) Placement of warning devices -
- (i) Fusees and liquid-burning flares. The driver of a commercial motor vehicle equipped with only fusees or liquid-burning flares shall place a lighted fusee or liquid-burning flare at each of the locations specified in paragraph (b)(1) of this section. There shall be at least one lighted fusee or liquid-burning flare at each of the prescribed locations, as long as the commercial motor vehicle is stopped. Before the stopped commercial motor vehicle is moved, the driver shall extinguish and remove each fusee or liquid-burning flare.
- (ii) Daylight hours. Except as provided in paragraph (b)(2)(iii) of this section, during the period lighted lamps are not required, three bidirectional reflective triangles, or three lighted fusees or liquid-burning flares shall be placed as specified in paragraph (b)(1) of this section within a time of 10 minutes. In the event the driver elects to use only fusees or liquid-burning flares in lieu of bidirectional reflective triangles or red flags, the driver must ensure that at least one fusee or liquid-burning flare remains lighted at each of the prescribed locations as long as the commercial motor vehicle is stopped or parked.
- (iii) Business or residential districts. The placement of warning devices is not required within the business or residential district of a municipality, except during the time lighted lamps are required and when street or highway lighting is insufficient to make a commercial motor vehicle clearly discernable at a distance of 500 feet to persons on the highway.
- (iv) Hills, curves, and obstructions. If a commercial motor vehicle is stopped within 500 feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the warning signal required by paragraph (b)(1) of this section in the direction of the obstruction to view a distance of 100 feet to 500 feet from the stopped commercial motor vehicle so as to afford ample warning to other users of the highway.
- (v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device at a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle.
- (vi) Leaking, flammable material. If gasoline or any other flammable liquid, or combustible liquid or gas seeps or leaks from a fuel container or a commercial motor vehicle stopped upon a highway, no emergency warning signal producing a flame shall be lighted or placed except at such a distance from any such liquid or gas as will assure the prevention of a fire or explosion.
Just a couple of quick notes after perusing these regulations. The first is that it seems relatively clear that if a truck is stopped at night, then only flares are acceptable markers of a stopped vehicle. I point this out, because it's not uncommon to drive past stopped trucks at night, where there is either nothing to indicate the presence of the vehicle, or the driver has put out reflective triangles. I'm not picking on the drivers, just pointing out dangerous behavior.
Similarly, the regulations concerning business districts can be confusing. If one only reads the first part of the regulation, it would be easy to conclude that truck drivers don't have an obligation to put out flares when they are stopped in a business district. This makes sense, after all, it would be asking a bit much for every single delivery truck to put out flares as they were making their delivery rounds down main street.
However, a full reading of the rule notes that this exception only exists during daylight hours, and not "during the time when lighted lamps are required..." This means that drivers who are making after hours deliveries owe a greater duty to properly indicate that their vehicles are stopped in the roadway.
Are Current Regulations for Stopped Commercial Vehicles Sufficient?
While tracking down these regulations, one thing stuck out. It appears that regulations for emergency signals and stopped commercial vehicles were last modified June 18, 1998. Regulations that are two decades old aren't necessarily a bad thing. However, a lot has changed on the highways since these rules were adopted.
Perhaps the biggest change is that speed limits have increased in much of the country since these regulations were last modified. In parts of Texas and other states, the speed limit on many roads is as high as 75 miles per hour. At such speeds, the average vehicle needs over 400 feet to stop, when reaction time is factored in. One of the common threads in emergency signal regulations is that they are meant to give oncoming motorists 500 feet to avoid an accident. With highway speeds being what they are now, the regulations are woefully inadequate.
One of the hallmarks of a bad regulation is that everyone can follow the rules, but the tragedy the regulation was designed to avert happens anyway. Let's take a not uncommon scenario of a disabled tractor trailer in the road. Let's also assume that the driver has fulfilled the duty they owed by placing flares at appropriate intervals. Now suppose a car comes along and is doing the speed limit, if the driver is even a half second late when they apply the brakes, they're going to collide with the truck. These collisions generally result in catastrophic injury to the driver or death.
When the rules that govern stopped commercial vehicles were written, most jurisdictions top speed limit was 65 mph. At that speed vehicles stop in a little over 200 feet and drivers have roughly 2.5 seconds to decide to stop before a collision becomes unavoidable. This may sound like a marginal improvement, but when driving, the difference between 0.5 seconds and 2.5 seconds is an eternity. In many instance, it is a life-saving eternity.
For drivers to have the same time to react that was possible when the commercial vehicle stopping regulations were put into place, it would be necessary for drivers to ensure that their vehicle is visible at a distance of 750 feet.
Another difference between the present day and 1998 is the vast improvement in a LED lighting technology. While flares may have made the most sense from a visibility standpoint in 1998, modern LED lights are both reusable and in many instances provide superior visibility. Why haven't drivers switched over to these superior lighting options? Part of the reason is that such lights, even though they would probably save lives by alerting motorists from further away, may not actually satisfy the regulations.
One of the purposes of the law is that it shields people who obey it from liability. A defense for anyone who is sued after an accident is that they followed all of the relevant laws and fulfilled their duties, but tragedy struck anyway. When there is a better way to meet that obligation, but it wouldn't satisfy a driver's legal duty, it may be time to revisit the regulations that lay out that duty.
While it may be that no regulatory changes could have prevented a fatal accident like that one that took the life of Alex Ortega, his death is part of a fact pattern that we see all the time and in many of those instances, the difference between life and death was weather or not the truck and its trailer were visible to oncoming motorists.