When All Else Fails, Trucking Companies Bluff Their Way to Victory

By Michael GrossmanMay 03, 2017Reading Time: 9 minutes

People often see a truck accident where it appears that the truck driver was obviously at fault. This leads them to believe that the victims are certain to get justice for the damages they've sustained. However, truck accidents are never open-and-shut cases. Our legal system affords everyone the opportunity to defend themselves, even if the evidence in the case clearly weighs against the defendant. Further, the costly injuries and deaths that result from truck accidents mean that companies have a very large financial incentive to make use of every legal lever at their disposal.

Even when trucking companies do not have a strong legal defense, they will still put up roadblocks to prevent victims of their negligence from getting the help that they need. So how does a trucking company defend an indefensible truck accident? One need look no further than an 18-wheeler accident from Michigan and to the game of poker for answers.

April 23, 2017 - Green Oak Township, MI

Green Oak Township Police officials report that Robin David Brown, 51, and Roby James Steele, 52, were killed in a large pile-up on April 23, 2017. In addition, Sarah Miller, 25, sustained severe injuries in the incident.

According to early reports, a 2015 Freightliner semi-truck, driven by a 62-year-old man, failed to stop for other vehicles that were stopped on the roadway in a construction area on Highway 23 in Green Oak Township.

The semi-truck struck several vehicles and finally came to rest on a top of a 1997 Ford Escort. Police have yet to identify the driver of the semi-truck or the company for which he was driving. Some reports indicate that driver of the semi-truck is in police custody and that criminal charges may be forthcoming.

To make a long story short, folks were stopped on the highway due to construction, when, for reasons still unknown, an 18-wheeler came barreling down the highway and collided with the stopped traffic. As a result, 2 people who were just minding their own business died, and a third is in critical condition.

Commercial Trucking Companies Always Have a Defense

So you're saying that after a semi-truck driver plows into the back of several vehicles, in a construction zone, the trucking company can still mount a winning defense? Absolutely. Looking at only the legal strategy side of things, the aftermath of a fatal truck accident bears a striking resemblance to a poker game. Just as the person with the best cards doesn't automatically win every hand in a poker game, the person with the most compelling facts isn't assured of coming out on top in a truck accident.

For instance, my girlfriend might be the world's worst poker player. It doesn't matter how good her cards are, without enough pressure, intimidation, and guile on my end, I can get her to lay down almost any hand. Should she win far more than she does, based upon the cards she gets? Certainly. Why doesn't she? With all due respect to her, she gets overwhelmed by the moment and time and time again, she throws away the winning hand.

Trucking companies use a similar strategy with their victims that I use when playing poker with my girlfriend, apply a lot of pressure, make things as difficult as possible, and hope that the victim sabotages their own winning hand. How do they accomplish this? The answer to that question lies in what the law requires victims to prove in order to prevail in order to get justice for what they have lost.

One key is that in order to prove that a trucking company is responsible for an accident, a victim has certain elements that they must be able to prove in court. If the facts of the case are similar to the cards that are dealt in a poker game, then proving the elements of the case are akin to how well one plays that hand. That is to say, when you read about an accident in the news and assume that one side is "definitely going to win," you're making an assumption that they have the facts of the case on their side. Even if that assumption is correct, there's no way to know if they will prevail until you see how well they make use of those facts.

As a quick refresher, there are 4 things that the victim must prove in every personal injury case. They are:

  • Duty - That the defendant owed you a legal duty to keep from harming you
  • Breach - That the defendant indeed breached that legal duty
  • Causation - That the breach of duty was the proximate cause of your injuries
  • Damages - That you suffered injuries or incurred damages as a direct result of the negligence of the defendant

If an injured person cannot prove every single once of these elements, they will lose their personal injury case, regardless of how damning the facts of the case appear in a news report.

Let's track back to the accident we came across in Michigan. Did the truck driver owe the other drivers a duty not to rear-end their vehicles? Certainly. Did they breach that duty when they collided with the other vehicles? Yes. Was being hit by the 18-wheeler what caused the injuries and fatalities? It appears that way. Finally, did this collision result in damages to the injured or deceased? Without a doubt. Of course, this is just an outsiders back of the envelope assessment of the accident.

In order to understand how a trucking company can defend this seemingly indefensible accident, it helps to try and put yourself in the shoes of the trucking company. When we try to think like a trucking company the central question becomes, how do I attack that fact pattern in the case, in order to defend my driver?

An obvious place to start would be to attack causation, since it is one of the trickier elements to prove. This may sound absurd to people who are unfamiliar with the law, after all it's "obvious" that the truck crashing into the back of the other vehicles is what caused the injuries, but causation in a legal sense can be far trickier.

I'm going to descend into some logical absurdity for just a moment, but it will help to make sense of how a trucking company can argue that the cause of an accident is something other than the "obvious" cause we can discern from news report.

When we're looking for a cause, any event in the logical chain of events that leads up to the accident is fair game for scrutiny. In this light, everything from what every one involved in the accident had for breakfast, to weather conditions, unexpected glare, and the layout of the road construction site could all have been considered a cause of the accident. Just to show the most absurd possible cause of an accident, suppose the people in the vehicles that were struck would have had a large country style breakfast with eggs, bacon, and pancakes, instead of whatever the ended up grabbing, then isn't it likely that they would have been running behind and not been there when the accident happened? Is this a cause of the accident? In a strictly logical sense, yes it is. Is it the cause of the accident, but for which the accident wouldn't have occurred, also know as the proximate cause? I think most reasonable people would say, no.

I don't mean to suggest that a defense attorney would defend a truck driver with a "breakfast defense." There are much more plausible avenues of attack. For instance, when cars stop suddenly and without warning, the vehicle that rear-ends them isn't necessarily at fault. So one option for the defense is to suggest that traffic came to a sudden stop, leaving the driver with no time to react.

Another possibility would be to say that the cause of the accident wasn't the truck driver failing to control his speed, but the lack of warning that roadwork was taking place up ahead. This tactic would shift blame from the truck driver to the construction company. It may sound unreasonable, but part of the reason that our highways are dotted with signs warning of construction, miles in advance of the actual work area is because road crews know that sudden, unexpected back-ups caused by work zones pose a danger not only to road workers, but to the vehicles on the road.

In the absence of more "reasonable" defenses, trucking companies will even resort to some more outlandish tactics, such as claiming temporary brake failure, or sun glare. Both of these defenses attack the causation element by pointing the finger at a cause that isn't the trucking company's driver.

Let me back up for just a second and discuss how the law holds people accountable. In order to hold somebody liable, an event or the harm that it could cause has to be foreseeable to a reasonable person. What I mean by this is if someone is driving down the road and has a heart attack or other severe medical emergency, we don't generally hold them accountable for the resulting damages. The reason is the medical emergencies usually aren't foreseeable, so it isn't exactly just to hold someone responsible for something they couldn't reasonably exercise any control over.

To go back to my poker metaphors from earlier, sudden, unforeseeable emergencies are akin to when someone forgets to take the jokers out of a deck of cards. The jokers are cards that exist outside of the normal rules of the game and their presence is unforeseeable by the players. When this happens in a poker game, that particular hand doesn't count. In a similar way, an unforeseeable medical emergency or mechanical failure usually removes the normal expectations for how we expect a reasonable person to behave. It would be absurd to expect someone who suddenly lost their brakes to brake like a driver who had them, just as it would be unreasonable to expect someone having a heart attack to behave like someone in perfect health. Just as the poker hand with jokers gets set aside because it is outside the normal bounds of the game, accidents caused by unforeseeable events are not necessarily held against the driver who caused the accident.

Does this mean that trucking companies are free to hire an attorney to concoct whatever defense they can dream up? Not exactly. Just like victim's attorneys, defense attorneys can't just make something up out of thin air, however, it's not unethical to take their client's word at face value. So if the client says they were feeling chest pains at the time of the accident or that their brakes didn't work, the defense attorney is free to run with that information.

Beating Ridiculous Trucking Company Defenses

One of the risks of illuminating trucking company defense tactics is that it may make it sound like trucking companies are magically conjuring up unbeatable defenses. They're not. This is where the poker metaphor is most apt, in that trucking companies aren't mind readers, or strategic geniuses, instead they're faced with the same choice that everyone else is who is dealt a bad hand; they can either cut their losses and fold or they can try and make the other side throw away the winning hand by bluffing.

Of course, here's where the poker metaphor gets a bit confusing, because most people assume that they're up against the trucking company, when in fact, the trucking company hires an attorney to do their bluffing. That's like thinking you're playing against a buddy at a friendly house poker game, only to find out that your buddy went out and hired a professional poker player. Just as no one can walk into a casino and go toe to toe with professional players from day one, attorneys spend just as much time honing their craft as any poker pro. While that may be an obvious point to most of us, the same folks who would never dream of throwing away thousands of dollars at the World Series of Poker, mistakenly believe that they can go up against an experienced attorney and hold their own.

Some people figure that they've got the truth on their side and feel that it's enough to prevail. It's an understandable position, just like thinking that having good cards is all one needs to win at poker. In the end, the only way to compel anyone to pay for an accident is to be able to prove those facts to a jury. This requires getting evidence admitted into court, arranging witness testimony, as well as countering any defenses that may spring up. All of these require the assistance of an experienced professional, which is like bringing in a poker pro of your own to play your winning hand.

I realize that for some people that mentioning fatal truck accidents and a dumb card game in the same breath may come off as sounding a bit insensitive. If my intent were to actually state that a truck accident and a poker game were remotely comparable in importance, I would agree. While they are quite far apart in importance, the strategies in everyday games like poker are useful teaching tools.

Over the years, we've received countless phone calls from people who thought that they had the facts on their side and that they were going to make the trucking company pay for their injuries. They call us because they realized, often too late, that facts alone weren't enough to get justice. The most harrowing part of these conversations is that you can hear in their voices how these people, already victimized by trucking company negligence, can sense that they're being victimized again, only this time by trucking company legal tactics.

When you're confronted with the human cost of these accidents, day in and day out, like we are at Grossman Law Offices, it's difficult not to get angry at these tactics. We can tell ourselves that trucking companies are doing what they can to avoid accountability to look out for the people who depend on their company for their livelihood and well-being. Being forced to pay for these types of accidents may cost someone a job, which is certainly lamentable. However, the way to save those jobs isn't to cheat innocent people whose lives were turned upside down out of the blue, but to avoid these accidents in the first place. That's why these tactics, although legal, are still unconscionable. However, unconscionable isn't illegal and to no come to terms how trucking companies defend themselves is a bit like being shocked when poker players bluff.

When people ask, "Why do trucking companies play games when they were obviously in the wrong? Why do they try to bluff injury victims out of getting justice?" We can only tell them that just like in poker, trucking companies engage in this behavior time and time again for the same reason that any of us do the same thing over and over, it can work.