Many of us have experienced a version of “white knuckles” while driving on the interstate. It goes like this:
You are cruising along with your family. Conditions are good and you are making good time to your vacation destination.
You look in the rear-view mirror and check your kids. All is good. Your infant daughter is quietly sucking her sippy cup and content, safely buckled in her child seat.
Suddenly, traffic slows ahead. Brake lights appear red as far as you can see. Signs on the right warn that the two highway lanes merge into one. A giant arrow flashes. You check the mirror and merge over. Slowing to a stop for the traffic ahead, you quickly check the mirror hoping that traffic behind also sees the signs and safely merges and stops.
Off in the distance, the large chrome grill of a huge eighteen-wheeler appears, the sun bouncing off the grill.
The truck is going too fast. You wonder if it doesn’t see the signs or the stopped traffic. Bracing the steering wheel, you hold on tight with white knuckles and must decide whether you will need to veer back to the right and try to avoid the oncoming path of the trucker, who doesn’t look like he’s going to stop in time.
According to the U.S. Department of Transportation, Federal Highway Administration, thirty percent of all work zone crashes involve large trucks with 1,000 fatalities and over 18,000 injuries over the past five years. Of those crashes, 65 % occur during the day with 90% occurring on straight roadways.
A typical work zone area has four distinct sections: 1) the Advance Warning Area which tells traffic what to expect ahead; 2) the Transition Area where traffic moves out of the normal path; 3) the Activity Area where work takes place; and 4) the Termination Area where traffic resumes normal operations:
Unfortunately, there have been multiple times when the truck driver did not slow or stop and slammed the big rig into stopped traffic, taking many lives. In these cases, we always want to answer not only why the truck driver did not stop, but also why he was put in the situation that lead to the crash. In my talks, I contrast the “primary why” and the “secondary why.” The secondary why answers the immediate question of why the truck slammed into stopped traffic, e.g., the driver was tired and not paying attention. The primary why answers the more important question of the corporate conduct that caused the driver not to pay attention that created the condition of him driving while tired.
Always keep in mind how construction zone crashes fit into the overall theme of system failures when framing your case. Construction zone crashes present two different frameworks that we should examine when contemplating litigation strategies: 1) that the construction zone created a heightened degree of risk to the motoring public that warrants greater caution of the truck driver; and 2) that the failures of the construction zone entities to properly warn or improperly direct the flow of traffic directly contributed to cause the injuries and damages to your client.
INCREASED RISK OF HARM TO THE MOTORING PUBLIC
It is so well-established in trucking that construction zones present an increased risk of harm that mandates extreme caution that there are no fewer than five distinct mentions in the Tennessee [Model] CDL Manual. This language is critical in establishing the notice of what is expected of a reasonably safe and well-trained truck driver.
Craft discovery to determine if the defendant motor carrier had adequate systems in place to
2.6.7 – Roadway Work Zones
Speeding traffic is the number one cause of injury and death in roadway work zones. Observe the posted speed limits at all times when approaching and driving through a work zone. Watch your speedometer, and don’t allow your speed to creep up as you drive through long sections of road construction. Decrease your speed for adverse weather or road conditions. Decrease your speed even further when a worker is close to the roadway.
2.8.2 – Hazardous Roads
Work Zones. When people are working on the road, it is a hazard. There may be narrower lanes, sharp turns, or uneven surfaces. Other drivers are often distracted and drive unsafely. Workers and construction vehicles may get in the way. Drive slowly and carefully near work zones. Use your four-way flashers or brake lights to warn drivers behind you.
2.9.2 – Use In-vehicle Communication Equipment Cautiously
Do not use equipment when approaching locations with heavy traffic, road construction…
2.10.2 – Don’t Be an Aggressive Driver
Reduce your stress before and while you drive. Listen to “easy listening” music.
Be realistic about your travel time. Expect delays because of traffic, construction, or bad weather and make allowances.
If you’re going to be later than you expected – deal with it. Take a deep breath and accept the delay.
SHARING THE ROAD WITH HIGHWAY WORK ZONES
Work Zone Safety: It’s Everybody’s Business
Work zones on U.S. Highways have become increasingly dangerous places for both workers and travelers, with the death rate approaching two per day. Approximately 40,000 people per year are injured as a result of crashes in work zones. With more than 70,000 work zones in place across America on a given day, highway agencies are realizing that it is not enough to focus on improving the devices used in the work zone areas, but that they must also reach out to the public in order to change the behavior of drivers so that crashes can be prevented.
What is a work zone? A work zone is any type of road that may impede traffic conditions. Many work zones involve lane closures. They may be on the shoulder or in the median. Moving zones such as sweepers, line painting trucks, or mowing equipment and workers are also quite common.
Highway work zones are set up according to the type of road and the work to be done on the road. There are a number of events that make up a work zone. They can be long-term projects or short-term actions. A work zone can also exist at any time of the year. The common theme among work zones is the color orange. Work zone materials such as cones, barrels, signs, large vehicles, or orange vests on workers give you an indication that you are either approaching a work zone or are already in a work zone. In these work zones, workers will normally be wearing bright yellow-green apparel such as shirts, vests or hardhats to ensure they are highly visible.
What do you do when approaching a Work Zone? Watch for the color orange – it always means: “road work – slow down”. All temporary signs in work zones have an orange background and black letters or symbols. These signs will be found on the right side of the road, or on both left and right sides when the roadway is a divided highway, and they will tell you what (one lane traffic, uneven lanes etc.) and how soon (miles or feet ahead) you will encounter in the work zone. Most work zones also have signs alerting you to reductions in the speed limit through the work zone.
These speed reductions are necessary for the safety of workers and motorists. The reduced limits are clearly posted within the work zone and if there are no reduced speed limit postings, drivers should obey the normal posted speed limit. Under Tennessee law, speed violations that occur in the work zones where the speed has been reduced and where employees of the Department of Transportation as well as other construction workers are present, will result in a fine up to a maximum of $500 dollars. What should you do when driving through Work Zones? Signing, traffic control devices, roadway markings, flaggers, and law enforcement officers are used to protect highway workers and to direct drivers safely through work zones or along carefully marked detours. As a driver you should learn and abide by the following safety tips for driving in work zones:
Slow down and pay full attention to the driving situation! Drive within the speed limits, which are usually reduced in work zones. If you don’t, you’ll pay the price.
Obey the posted speed limits which are usually reduced in work zones. Workers could be present just a few feet away. If you don’t, you’ll pay the price.
Merge as soon as possible. Motorists can help maintain traffic flow and posted speeds by moving to the appropriate lane at first notice of an approaching work zone. You can be ticketed and be the cause of accident for being a last chance merger.
Use total concentration when driving through work zones. Pay attention to your surroundings. This is not the time to use the cellular phone, look for a new CD, change the radio station, read the paper, apply make-up, shave, eat or drink or fill out the expense report.
Keep your ears open! Do not wear earphones while driving.
Tun your lights on before you enter the zone! Turn on your vehicle’s headlights to become more visible to workers and other motorists.
Follow the instructions on the road work zone warning signs and those given by flaggers. Follow their signals, and don’t change lanes within work zones unless instructed to do so.
Expect the unexpected! Avoid complacency. Work zones change constantly. Don’t become oblivious to work zone signs when the work is long term or widespread.
Use extreme caution when driving through a work zone at night whether workers are present or not.
Calm down. Work zones aren’t there to personally inconvenience you. They’re there to improve the roads for everyone and improve your future ride.
Watch the traffic around you, and be prepared to react to what the traffic is doing. Check the taillights/brake lights of vehicles ahead of you for indications of what is happening on the road ahead. Be ready to respond quickly.
Adjust your lane position away from the side workers and equipment when possible.
Keep a safe distance between your vehicle and traffic barriers, trucks, construction equipment and workers. Don’t tailgate! Most work zone accidents are caused by rear-end collisions.
Some work zones – like line painting, road patching and mowing are mobile. Just because you don’t see the workers immediately after you see the warning signs doesn’t mean they’re not out there. Observe the posted signs until you see the one that says, “End Road Work”.
Expect delays: plan for them and leave early to reach your destination on time.
Avoid road work zones altogether by using alternate routes, when you can.
DIRECT LIABILITY OF ROAD CONSTRUCTION ZONE ENTITIES
Interstate road construction zone projects are usually overseen by the State Department of Transportation. These entities are usually required to have in place an adequate temporary traffic control plan based on standards set forth in the Manual on Uniform Traffic Control Devices.
Contracts and regulations usually specify that a road construction contractor “shall comply with Section 712 regarding “temporary traffic control” of the standard specifications for road and bridge construction in the implementation of the traffic control plan and in accordance with the current edition of the “Manual on Uniform Traffic Control Devices. (MUTCD)””
Some highlights of those standards from the MUTCD (2009) include an express statement of the safety purpose of the Temporary Traffic Control Zones:
Section 5G.01 Introduction
The safety of road users, including pedestrians and bicyclists, as well as personnel in work zones, should be an integral and high priority element of every project in the planning, design, maintenance, and construction phases…The following principles should be applied to temporary traffic control zones:
- Traffic movement should be disrupted as little as possible.
- Road users should be guided in a clear and positive manner while approaching and within construction, maintenance, and utility work areas.
- Routine inspection and maintenance of traffic control elements should be performed both day and night.
- Both the contracting agency and the contractor should assign at least one person on each project to have day-to-day responsibility for assuring that the traffic control elements are operating effectively and any needed operational changes are brought to the attention of their supervisor.
Traffic control in temporary traffic control areas should be designed on the assumption that road users will only reduce their speeds if they clearly perceive a need to do so, and then only in small increments of speed. Temporary traffic control zones should not present a surprise to the road user. Frequent and/or abrupt changes in geometrics and other features should be avoided. Transitions should be well delineated and long enough to accommodate driving conditions at the speeds vehicles are realistically expected to travel.
In the accompanying slide presentation, we consider different temporary traffic control scenarios, many of which are outlined in the MUTCD. The common elements of most temporary traffic control are:
- Temporary Traffic Control Plans, which vary based on the nature and complexity of the situation;
- Temporary Traffic Control Zones,
which is an area of a highway where road user conditions are changed because of
a work zone, or planned special event and is comprised of:
- The Advanced Warning Area;
- The Transition Area;
- The Activity Area;
- The Termination Area;
And may also include:
- Detours and Diversions;
- One-Lane, Two-Way Traffic Control;
- Flagger Method of One-Lane, Two-Way Traffic Control
- Flag Transfer Method of One-Lane, Two-Way Traffic Control
- Pilot Car Method of One-Lane, Two-Way Traffic Control
- Temporary Traffic Control Signal Method of One-Lane, Two-Way Traffic Control
- Stop or Yield Control Method of One-Lane, Two-Way Traffic Control.
An example of a One-Lane, Two-Way Traffic Taper appears below:
In addition to the heightened increase of risk of harm
created by roadway construction zones and the corresponding obligation of motor
carriers to train drivers to foresee and react to those risks, plaintiffs’
counsel should also consider direct liability or the comparative fault of
construction zone entities that fail to create and implement safe and adequate
temporary traffic control plans and zones to control the flow of traffic.