Watch for Falling Liability

Truck signs say “Get back or else!” Do they really do anything?

Every week in my newsletter, I answer a legal question from readers.

This week’s question comes from Lauren via the form. Lauren asks:

“Landscaping trucks with open tops and just a thin tarp or net over the top always have signs on the back saying it’s not their fault if something falls out of their truck and damages your car. Is that legit? If so, what the heck?! They speed down the highway leaving trails of gravel bouncing off the road and windshields. Are the signs just there to scare people out of coming for them? And why don’t they just use a tarp/net that’s actually the right size to cover the top? That last part might not be a legal question, but it seems like a super easy solution.”

Excellent question, Lauren!

The short answer is — those signs are bullshit. They’re basically there to scare you out of coming after them. But they also have a purpose.

Car accidents in general are governed by the laws of negligence. Laws vary based on jurisdiction, and since I’m based in Texas, I’ll use its laws in this answer. But overall the rules of negligence are fairly similar across states.

NEGLIGENCE

There’s a whole law school class called Torts that covers, in part, the idea of negligence. Not to be confused with delicious tortes or tortillas, torts are wrongful acts that cause somebody to suffer loss or harm, resulting in legal liability to the wrongful actor. Negligence is one of these “torts,” and it is the basis for most car accident law.

To succeed in claiming somebody like the driver of a truck full of flying objects is responsible for damages, you have to prove the elements of negligence. These are:

• Duty — (lol duty) — This is the standard of behavior we are all supposed to adhere to. For instance, when you’re driving, you shouldn’t be breaking laws like speeding or distracted by a cell phone. You also have a duty to secure objects on your truck, possibly by using a tarp/net that is appropriately sized.
• Breach of Duty — This means that the wrongdoer/truck driver failed to adhere to that standard of behavior. For instance, he was speeding and swerving or failed to secure his objects in the way a reasonable truck driver should.
• Causation — Lots of times this is called “cause in fact” because you’d have to prove that the injury you suffered — hopefully just something like a smashed windshield, but even something as serious as injury or death — was “ in fact” caused by the trucker’s failure.
• Proximate Causation — You also have to prove that the trucker (or a reasonable person) would have known that leaving things loose in the truck bed, combined with swerving and speeding, would have caused something like your smashed windshield. The key here is whether the resulting damage was foreseeable.
• Damages — You have to prove there was actual harm done to you — like your windshield was damaged or you were physically injured.

You need to prove all these things to win your case against a truck driver whose errant objects flew out and smashed your windshield.

IS THE SIGN LEGIT?

Like I said, the sign is partially to scare people off, but it also has another important use. When hearing claims of negligence, courts use a concept called “comparative negligence.” Because you’re out on the road driving, you also have a standard of behavior you should adhere to. Basically, you should also be driving safely, legally, and free from distractions. If a truck in front of you is losing gravel or leaves, and you were following closer than the law allows, you could be breaching your duty of care.

When two parties both act in a way that contributes to the accident, the court has to allocate responsibility in order to figure out who is going to pick up the tab for the damages. Some states do this with a rule called “contributory negligence.” This rule is harsh because if a defendant (accused wrong actor) can prove that the plaintiff (injured party) was in ANY WAY also at fault, then that plaintiff cannot recover ANY money at all for the damages caused by the defendant. Pretty rough, right?

Texas is one of a majority of states that use another standard called “comparative negligence.” Rather than being completely screwed if you contributed to the accident in some way — perhaps, for instance, by following too close despite being warned by a sign — you could still recover damages.

What a judge or jury would have to decide is how much at fault you were for the accident. How close were you? Did you see/read the sign? Were you given enough warning to back up? Were you following closer than the Texas Transportation Code allows? Texas law says a driver has to maintain an “assured clear distance” between themselves and the car in front of them so that the driver can stop without hitting the other vehicle.

The “fact finder” — either a judge or a jury, depending on the type of trial — would then decide what percent liable each driver was.

Perhaps they determine that you were following a safe distance, so far back that you couldn’t even see the sign. In that case, you may be 0% comparatively negligent. What if, instead, you were close enough to see the sign and see the loose rocks before they flew your way? The fact finder may say you were 25% liable. In that case, if your replacement windshield cost $1,000, you would only be entitled to ask the truck driver for $750.

If, however, you were tailgating the truck to the point that your front plate nearly touched his bumper, your dash cam shows the sign clearly in your view, and the tarp is seen clearly whipping in the wind, then a fact finder may say you both were at fault — maybe 50%/50%. In that case, you can ask for $500 of the $1,000 cost for your replacement windshield.

The only hiccup really happens when you’re found to be over 51% responsible. In that case, you can’t get any compensation for your damages. This is known as the 51% Bar Rule. Texas is one of 21 states that follows this rule.

WHY DON’T THEY JUST USE A TARP/NET THAT’S ACTUALLY THE RIGHT SIZE TO COVER THE TOP?

You’re totally right. They should! If they did, and something unforeseeable happened, like a normally reliable tarp randomly ripped, then the driver probably wouldn’t be liable. The driver could argue they behaved as a “reasonably prudent person would under the same or similar circumstances,” which is the degree of care we should be operating under.

Some professions have a bit higher duty. In this case, the driver would need to be acting the same as another reasonably prudent truck driver — for instance, by securing the cargo and ensuring no loose debris is flying off their truck.

So if the driver was acting right — securing the cargo and driving safely — and something still happened, then that’s what we call a good ol’ fashioned accident, and it’s what insurance is made for.

As we always say, you can try to sue anybody for anything, it’s just a matter of whether you will win. Likewise, you can always try making a complaint to a company or its insurance for the actions of its drivers, signs or not. You may face roadblocks (see what I did there?), but you sure can try. When trying to make a complaint, it is always good to have evidence like the company name, the truck’s license plate, truck number, description, etc. It also may rise to the level of criminal action if the negligence is egregious and damaging enough. Stay safe out there!

I hope that answers your question, Lauren! Thanks for sending.

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.

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