There are an estimated 15 million trucks in the U.S., and approximately 2 million of those are tractor-trailers, hauling material goods coast-to-coast. An accident involving one of these large vehicles can be especially dangerous. But another thing to consider is that when these trucks crash, they may cause additional roadway hazard as a result of cargo spillage.

roadway2-300x225In these cases, the onus is on government authorities to ensure the mess is cleaned up and the roadway is indeed safe once it’s cleared for traffic.

In the recent case of Kimminau v. City of Hastings, it is alleged this did not happen, following a Nebraska truck crash resulting in a major spill of corn mash that made the road surface extremely slippery. Although liability for the presence of that substance on the road would have initially fallen on the shoulders of the driver and/or the trucking company or owner of the trailer, authorities too owed a duty to the public.

As the Nebraska Supreme Court ruled, once local police and fire officials cleared the site of the truck crash as safe for more traffic, the duty was no longer on the shoulders of the truck company or truck driver. However, the local government could not escape liability on the basis of sovereign immunity, which is what the three local subdivisions that employed the police and firefighters tried to do.

According to court records, a truck crashed on a two-lane paved road, spilling “corn mash” all over it. The substance is the consistency of tapioca pudding, and is sometimes referred to as “wet cake.” It’s a byproduct of what is fed to cattle.

It is a very wet substance and made the road extremely slippery.

Two local fire departments – one from the city and a rural volunteer force – responded and moved the spill from the traveled portion of the road to the unpaved shoulder and into a ditch using fire hoses, shovels and brooms. Neither the truck driver nor trucking company was asked to help with the clean up, and neither did so.

After the cleanup, the truck driver was issued a traffic citation. The officer then reinspected the roadway, deemed it safe for travel and reopened it to through traffic.

Later that evening, a captain for the volunteer fire squad drove by and observed the road was free of debris.

The following day, around 1:30 p.m., a woman was driving on that road and as she encountered the site of the earlier spill, she lost control of her vehicle, swerved and struck a utility pole. A photo of the accident scene reveals there was corn mash in the southbound lane. Driver had not been aware of the spill until her vehicle came in contact with it.

Another motorist traveling behind her would later say he saw her vehicle drop a tire off the roadway and onto the unpaved shoulder, which caused it to come in contact with the corn mash and lose control of her vehicle.

Driver later sued the county, the city and rural subdivision for failure to take or direct others to take corrective action in ensuring the roadway was fully cleared and secondly for failing to warn motorists of the danger created by the spill. She also named the truck driver and trucking company as defendants.

Trial court granted summary judgment motions to all defendants, finding truck company and driver were cleared of liability once government authorities gave the scene the Ok. The government entities, trial court ruled, were shielded by sovereign immunity, which protects government from civil litigation except in instances where that agency waives protection.

The Nebraska Supreme Court affirmed in part (as to the truck company and driver) and reversed in part (as to the issue of sovereign immunity). The court further noted that just because the corn mash was moved off the traveled portion of the roadway did not necessarily mean the road was safe, as previous case law has indicated the shoulder is part of the highway, as it is contiguous to the road and designed for the accommodation of stopped vehicles.

Now, the case can proceed to either further settlement negotiations or trial.

If you have been a victim of a traffic accident, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.

Additional Resources:

Kimminau v. City of Hastings, June 19, 2015, Nebraska Supreme Court

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