Liability in Shifted Load Accidents

Experienced Attorneys in Milwaukee Helping Truck Drivers and Accident Victims

While truck drivers, including those in Wisconsin, can sometimes defy state traffic laws, there’s one law that they cannot ignore—the law of gravity. If the truck’s cargo has not been properly loaded and secured, any sudden sharp turn or other change in the truck’s trajectory can result in a rollover or other serious accident. Is the trucking company responsible for the damages that result from such an accident? The answer depends upon the interplay between two provisions with the Federal Motor Carrier Safety Regulations (FMCSRs) and may turn on whether or not the cargo was a “sealed load.”

First Rule: Duty to Inspect

Generally speaking, a driver is required to inspect the cargo and make sure that it is compliant with federal regulations both before and during any trip. The federal rules require multiple driver inspections, not only of his or her truck, but also of the cargo.

Pre-Trip Inspections

Rule § 392.7 of the FMCSRs require that the driver complete an inspection of his or her semi-truck before operating on the highway. The inspection must include an examination of a number of truck parts and accessories, including:

  •  Service brakes, including trailer brake connections
  •  Parking (hand) brake
  •  Steering mechanism
  •  Lighting devices and reflectors
  •  Tires
  •  Horn
  •  Windshield wipers
  •  Rear-vision mirror or mirrors; and
  •  Coupling devices

If the trucker is hauling intermodal equipment (i.e., a shipping container), he or she must also determine that the container’s chassis is locked securely.

Post-Departure Inspections

Rule 392.9 imposes additional inspection duties after the beginning of the trip. Generally, a driver must inspect his or her vehicle and cargo within the first 50 miles after beginning a trip. Additional inspections are required whenever the driver changes duty status, and when the driver has driven more than 3 hours or 150 miles.

If the load shifts during transit because of improper packing or because it was not secure, there is strong evidence that the driver negligently performed the inspection.

Second Rule: No Duty to Inspect When Hauling a “Sealed Load”

Sometimes, however, the driver can’t actually perform an inspection of the cargo. Frequently, the shipper will load the trailer, secure the freight, and apply a seal to the trailer doors before the driver ever arrives. Even if the driver or another representative of the trucking company is present at the time of loading, more often than not, he or she is not permitted on the loading dock. In such instances it is impractical, even impossible, to inspect the cargo at all. Under Rule 392.9(b)(4), the driver is, therefore, exempt from inspecting or otherwise being liable for a semi-truck’s cargo if it is a “sealed load.”

Blame the Trucker

Because many rollover truck accidents involve only one vehicle—the semi-truck itself—there is often a rush to judgment as to whose fault it is. “It had to be the driver’s fault; who else was around?” Law enforcement officers, who aren’t always familiar with trucking regulations, may quickly cite the driver when in spite of the fact that the driver had no knowledge of the load at all, due to its sealed status.

Transportation Industry Defense: It is a Technical, Specialized Area of Law

Transportation litigation is not for the faint of heart. It involves complex issues, specific and technical defenses, and can entail significant damage awards. It is important to retain experienced legal counsel who is comfortable and confident in that important specter of the commercial world. The Kerkman Wagner & Dunn, a Milwaukee business litigation firm with more than 50 years of combined legal experience representing business owners in Wisconsin, is ready to assist you. Our firm has big firm talent and provides small firm attention. Call us at 414–278–7000 or complete our online contact form.

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