President Harry Truman famously had a placard on his desk that read "The Buck Stops Here." The phrase ultimately means that one must take responsibility for his decisions and actions, and can't "pass the buck" to dodge any consequences. That idealism is laudable, of course, but ducking blame has been practiced for millennia and shows no signs of abatement. I don't say that from some ivory tower, either; I'm just as guilty as anyone else of occasionally trying to wriggle out from under the weight of my choices. There's just something about human nature that compels us to do questionable things, followed by strenuously trying to avoid their consequences.
The easiest way to dodge fault is to blame someone else. If you squint and turn your head just so, anybody can be a scapegoat when you need one. It's a shameful but undeniable practice at all levels of life, from blaming your young sibling for a broken lamp to throwing a coworker under the bus when the TPS reports aren't finished on time. Self-awareness and accountability are marks of an honorable person, sure, but damn it, we don't always have the time to own up to our mistakes!
Defendants in tort law are no strangers to attempted reallocation of liability, either. This concept came to mind after we at the office learned about a recent collision in Rose City, Texas.
The Wrongful Death of the Blevinses
According to authorities in the Texas Department of Public Safety, two people were killed and two more injured when an eighteen-wheeler sequentially collided with two trucks on Interstate 10 in Rose City, near Vidor, on Tuesday, January 10.
Investigators report that a westbound flatbed truck in the highway's inside lane slowed for approaching traffic, and was subsequently rear-ended by a Kenworth tractor-trailer. After the initial collision, the Kenworth driver "lost control, traveled over the concrete divider into the eastbound traffic lanes and collided head-on with a Ford pickup truck."
The pickup truck's driver and passenger, Laura (68) and Donald Gene (61) Blevins, were pronounced dead at the scene; our sincere condolences to their loved ones. The big rig driver, 33-year-old Michael Burlison Jr., was briefly hospitalized with "serious injuries," but was released the following morning. The flatbed driver was treated for minor injuries at the scene.
Those are the known factors so far. I'm basing my analysis off what is available in public reports. If what they say is correct, it is difficult to envision a scenario where the Kenworth tractor-trailer didn't cause this accident. Regardless, liability will be determined by a court of law, not by a blogger. However, hundreds of similar cases that we have seen at the firm do have some elements in common with this situation (though significantly fewer involve airborne 18-wheelers specifically), so I will borrow from their precedent to talk about what might happen next in a similar situation.
How Defense Attorneys Employ Finger Pointing as a Defense
In personal injury matters, a judge or jury parses liability into a matter of numerical "fault" percentages. Plaintiffs and defendants are then assigned a percentage of responsibility, which determines the amount of potential awards that may be owed to the injured party. It is in the best interest of defendants to introduce doubt and divest themselves of as much blame as they can in order to mitigate or eliminate their duties to a plaintiff.
If a driver is on the road in an official capacity (making a delivery in the employ of a trucking firm) at the time of a crash, he and by extension the firm employing him could be held responsible for any injuries or deaths sustained. To successfully build a claim, it would likely be necessary to establish all the concrete details of the collision: The driver's physical and mental state, the presence of intoxicants in any of the participants' system, the speeds of the involved vehicles, and numerous other important-but-often-overlooked pieces of information that are used by both plaintiffs and defendants in such a case. Any instance where these facts might be in doubt is an opportunity for an insurance company's hired attorneys to dispute the validity of the claim.
Pretty much any case, no matter how obvious the fault appears at first glance, has a chance to be "spun" by a defendant. "Maybe it looks on the surface like the 18-wheeler was the cause of the crash, but surely we can't say it was the only cause." From such a position, defense counsel (whose job it would essentially be to dismantle the case against the trucker and firm by poking as many holes in it as possible) would proceed to pass the buck, just like he might have done decades before when he blamed his sister for the broken lamp. That's not meant as an indictment of his character, either; it's his job to zealously defend his client. An effective attorney will seek to do his utmost to perform the duties for which he was hired.
In Texas, damages are determined using the modified comparative fault model, meaning that if a judge or jury can be convinced that the plaintiff was 50% or more responsible for the collision that led to injury or death, they are then barred from collecting any damages from the defendant. So defense looks for unanswered questions and attempts to leverage those to lessen its client's perceived responsibility: How fast was the oncoming traffic? Were all parties wearing safety belts? Did any- or everyone's airbags engage? Were all vehicles obeying laws about speed, passing, braking distance? It's tricky because if any of these answers are unknown, that plays more to the defense's advantage than it does the plaintiff's.
Texas tort law also places the burden of proof on the plaintiff; that is, he or she must show with the preponderance of evidence that they are in the right, and the defendant in the wrong. In tort law, the defense is not obligated to prove its innocence, only to deny its fault. The preponderance of evidence standard requires only that one side present more convincing evidence than the other; it is naturally more lax than its criminal-law counterpart, which requires the prosecution to prove "beyond a reasonable doubt" that a defendant is guilty.
It's Important to Be Prepared.
To avoid the pitfalls I've outlined with respect to defense's attempts to evade their clients' culpability, one of the most effective measures is to conduct an independent investigation. Police investigators will conduct as thorough an investigation as they need to establish the most likely sequence of events. This usually requires a few hours at the scene, after which they will more or less wrap up their investigation unless foul play is suspected. Much of the time, though, a lot of "what happened" is based on the testimony of the crash survivors; in a vehicular contest between almost any passenger vehicle and a big rig, the survivor is fair easy to predict, and his story may be told in a way that downplays or avoids his role in the crash. He often has a lot at stake, after all; commercial insurance covers individual truckers for at least a million dollars' worth of damages in Texas.
If they wreck, truck drivers are often encouraged (sometimes gently, sometimes not) by their employers to embellish certain points of their narrative to dodge a measure of responsibility. Operating on these instructions--and sometimes on their own basic drive not be in trouble--drivers blame distractions from road crews, emergency vehicles, or other motorists "darting in front of them" for the subsequent loss of vehicle control and wreck. The sooner they can step out of the limelight as a potential cause of the accident, the better off they are.
I'm not saying directly or indirectly that police investigators' work is insufficient. In many cases, the situation they assemble is the right one. However, if any evidence is missing or liability is contested, it's not always so simple to just trust the police report as de facto truth.
By digging a little deeper into the circumstances of the crash, a skilled private investigator can often learn answers to some of the questions I suggested might be floating around:
- How fast was the oncoming traffic? Forensic investigation at the scene of the wreck could reveal skids from hastily-applied brakes; the length of those skid marks on the road could provide vital clues about how quickly a vehicle was going, and how far back from the collision site they applied their brakes.
- Did any- or everyone's airbags engage? Police reports often answer this, since visual confirmation is generally available if airbags activated in a collision. However, if the bags were torn out to better access people in the car, it could be necessary to consult a vehicle's Engine Control Module (ECM), functionally a "black box" that records events that are electronically triggered, like airbag release.
- Were all vehicles obeying laws about speed, passing, braking distance? These metrics can often be confirmed through a combination of the answers to the previous questions--scene investigation and analysis of ECM data.
- Was the driver in a sound physical and mental state? A health evaluation of the driver combined with an extended examination of his driving record may provide key insights into whether his condition played a part in the collision.
The results of these investigations can tilt the preponderance of evidence strongly in favor of the plaintiff, which is critical in the face of any denials and attempts to reallocate blame by the defendant.
We see the same finger pointing that trucking companies and their insurers do in other walks of life. Children seem to think that if they point the finger at each other, no one gets punished. Parents quickly disabuse them of this notion. Criminals sometimes think that if everyone blames someone else for a crime, no one gets punished. That's why we have criminal conspiracy laws to hold everyone accountable. The only area of our lives where this behavior is both commonplace and rewarded is in the civil court system. Absent strong evidence, finger pointing can often be an effective defense strategy.
Holding companies and defense attorneys accountable for the actions is a way that we as a community say, "Let the buck stop where is should."