A long time ago, I was peripherally involved in a workers' compensation case that was in turn part of a civil case involving product liability and negligence. I was a very young lawyer and found myself in a room full of people whose names were on doors around town. Everyone at the mediation in that case was a named partner in some firm, except me. I was reminded of the case recently as I followed a trailer in traffic and noted the state of its rear bumper.
The case was disturbing for various reasons. First, the worker had passed away; death cases are more difficult than you might think. Second, this particular worker was an attorney. Empathy is driven by identification, but it is more than that. Third, the accident was likely avoidable but at least the injury could have been lessened. In addition to those realizations, I learned that mediation was a powerful tool, largely because there were no rules. And, the whole "stream of commerce" from law school started to make sense.
The roads are full of trucks, we often negotiate our travel around vehicles that are much larger, heavier, ponderous, and therefore dangerous. In our smaller vehicles, we have advantages with speed, maneuverability, and agility. But, we would do well to remember these trucks are a threat to us and us to them. Drivers may struggle to see us, to slow rapidly, and to maneuver. We all share some responsibility in not tailgating, cutting off, or otherwise being aggressive in traffic.
The government mandates that these trucks and trailers have a rear impact guard (49 CFR §393.86). Of course, most vehicles have bumpers, but these vehicles sit high on the road and the need is for a bumper that is closer to the roadway, closer that is to the height of other vehicle bumpers. The law defines how wide it will be, how close to the back of the trailer/truck, how high off the ground, etc. The lawyers back in the day referred to it as an "ICC under-ride bumper." The point of it is to keep a smaller vehicle from getting up under a trailer/truck too far. Any collision can be injurious or fatal, but a collision between a small car and a trailer/truck that lacks such an accessory can be fatal.
The lawyer victim in this litigation had collided with the rear of such a vehicle and his vehicle had penetrated significantly under it. The ICC had been there, but not very effective. The result was the vehicle's rear floor entering the passenger compartment of the lawyer's vehicle itself. The facts of the case reminded me that workplace injuries might be more likely in industry, but they were possible even in professions that more often involved relatively safe desk-sitting. Stated simply, any occupation can present dangers. We would all do well to remember that. Further, driving is a critical part of workers' compensation. A recent NCCI report noted that while workers' compensation frequency has decreased, motor vehicle frequency has increased. A car accident could happen to any of us.
There was significant acrimony in the case. I was sent to mediation for the purpose of asserting the workers' compensation lien, section 440.39, Fla. Stat. The workers' compensation case had been settled, and there was little I could do but listen, watch, and report back to the client. The carrier had significant expenditures in the case but had expressed little expectation that it would recover significantly on the lien due to the various legal issues involved that were likely to suppress "full recovery" in the civil case. The most apparent was comparative negligence in that the lawyer ran into the rear of the other vehicle. There was discussion of inattentive driving, distractions, and more.
The plaintiff's attorney opened mediation with a video. It was not yet the age of cell phones, videos, YouTube, and Vine. Video was not unheard of, but cameras were expensive back then, and a professionally-edited video was more so. The use of video in that mediation was somewhat impressive. The technique demonstrated the verity of a picture being worth a thousand words. The video was powerful and explanatory. I am not sure a judge would have let a jury see it, but for mediation purposes (no rules) it was impressive and engaging.
There was much debate about whether the company that built the vehicle should have installed the ICC bumper, or the distributor, or the dealer that first stocked it, or the local dealer that had traded for it to fulfill a customer order. Memory fades, but I recall at least three or four defendants whose main contention was the duty had not been his/hers/its. There was also some debate as to who had actually installed the bumper, whether its design complied with federal law, and whether it had been appropriately installed and thereafter maintained. The variety of allegations and purported proof was fascinating.
There was a technical defense issue regarding the specifications of the bumper. The details have faded, but the plaintiff's engineer was convinced whoever did install that bumper did not do it appropriately. This was based in large part on the manner in which it had given way in the collision. A second engineer had opinions as to how fast that lawyer must have been driving in order to affect the resulting collision damage. There were pictures, diagrams, and calculations. Was the bumper defective or the vehicle speed excessive? Both? I was surprised at how much less attention all the math and diagrams received compared to the video. The simplicity and emotion of the video was compelling.
I remembered all of this in an instant as I stopped short in traffic last spring behind a vehicle with an ICC bumper that was rusted and damaged. I looked long and hard at the crack and rust and wondered what that second engineer from eons ago might say if s/he were viewing this vehicle. I shot a picture that day and reflected on it since. Of course, no engineer is likely to inspect such a bumper in the day-to-day life of some particular vehicle. The trucks and bumpers are essentially tools, traversing the byways of our country and also intersecting with our lives. Engineers and other experts only become involved when the worst happens.
How many thousands of cars will pull to a stop behind a particular ICC under-ride bumper without striking it? The odds are that no one will ever strike it and put it to the test. No one is out there inspecting these or policing compliance with 49 CFR §393.86. In discussing my observations with a few lawyers since that time, I perceive few even knew what that thing hanging from the back of the truck/trailer is. No, it likely takes an accident to draw such a rusted and cracked piece of steel to the limelight and scrutiny.
This is a patent example, but in the broader context, do we all do enough to maintain our safety and the safety of others? It is likely that lawyer years ago was in a hurry or somehow distracted. To strike a vehicle from the rear is not perceived as diligent; to do so with such speed and force suggests some negligence. It is likely that the person who installed that bumper was interested in completing multiple similar tasks that day, and found this one somewhat mundane. S/he likely never suspected someone would strike it hard enough to break/dislocate it. Those who bought the truck, sold it, and traded it likely never gave that bumper a second thought.
We are surrounded in life with risks and potentials. We may hope that others have done their bit to make the world sufficiently safe. However, in the end, much of our chance of getting through each day safely simply falls to us personally. It is worth remembering that. However, in the occupational world, much is invested by employers and coworkers in the safety of workers. That is largely due to the potential downsides and costs for business. Certainly, the moral pressure, but more so the financial pressure. Accidents attract OSHA and the potential for fines. And, accidents result in workers' compensation and the potential for higher premiums and costs. These costs are seen as both recompense for the injured and a motivation for safety.
We could all provide better focus on the safety of ourselves and others. Perhaps the easiest path would be less attention to smartphones and more attention on the road. The same might be said of any driver distraction (I recently passed a car in traffic, and the driver had a newspaper draped over the wheel). And, we might all pay closer attention to the equipment we operate. Cracked and rusted is no way for a bumper to go through life. Remember, The Life You Save Might be Your Own (June 2019).
