Trial Magazine

For more than a decade, the trucking industry has known about the extreme danger of a phenomenon referred to as “side underride”: when cars ride underneath a truck-trailer’s side, sheering off the roof of the car and often killing the occupants inside.¹ The Insurance Institute for Highway Safety (IIHS) reported that of the 1,542 passenger vehicle occupants killed in two-vehicle crashes with truck-trailers in 2015, 301 involved side collisions.² Many of these deaths were preventable, and if your client has been injured by severe passenger compartment intrusion or roof crush in a side underride collision, consider a design defect claim against the trailer manufacturer for failure to have a side guard.

Although federal regulations do not mandate side guards, plaintiffs have successfully argued these types of defect claims. A side guard can prevent a car occupant’s death because, in a collision, the car hits the side guard and does not go underneath the side of the trailer, allowing the car’s structure to absorb the crash energy as designed.³ Without a side guard, a car occupant’s head can strike the bottom of the trailer during an underride collision, snapping the spinal cord and causing severe brain damage.

In 2012, the IIHS reported that a sturdy side guard has the potential to reduce injury risk in about 75 percent of large truck side crashes that kill or seriously injure passenger vehicle occupants.⁴ When restricted to crashes with semitrailers, a side guard had the potential to reduce injury in about 90 percent of incidents.⁵

Causes of side collisions include bad weather, truck-trailers turning left or right across traffic, or truck-trailers jackknifing across lanes.

Preventing Underride

Causes of side underride collisions include bad weather,⁶ truck-trailers turning left or right across traffic,⁷ or ­truck-trailers jackknifing across lanes.⁸ Side underride also occurs when car drivers cannot see the silhouette of ­truck-trailers at night because the trucks have inadequate lighting.⁹ In rural areas with sparse street lights, drivers often cannot see large truck-trailers that do not have bright lights and reflectors on the sides of their trailers. Imagine a truck turning around on a dark two-lane highway: A driver in an oncoming lane may not be able to see the trailer and could fail to brake in time to avoid slamming into its side.

The front headlight glare from trucks can also blind car drivers traveling in the oncoming lane and prevent them from seeing the red lights on the side of the trailer bed as the truck makes a wide turn. These red lights can become dirty or smudged, and car drivers may not recognize them as warning signs to slow down.¹⁰

Reflective tape. To help combat these visual problems, retroreflective tape that reflects light from an oncoming car’s headlights should be placed along the sides and rear of trailers to enhance the conspicuity of large trucks.¹¹ The National Highway Traffic Safety Administration (NHTSA) has studied whether having tape-equipped trailers reduced side and rear impacts by other vehicles at night and concluded that it reduced crashes in these conditions by 29 percent.¹² In 1992, NHTSA published a final rule that requires trailers manufactured on or after Dec. 1, 1993, with a width of 80 inches or more and a gross vehicle weight rating (GVWR) of more than 10,000 pounds to equip the sides and rear of the trailer with red or white retroreflective sheeting or reflectors.¹³

Each strip of retroreflective sheeting must be positioned as horizontally as practicable, beginning and ending as close to the front and rear as possible. The conspicuity treatment is not required to be continuous, but the total length of the segments must be at least half of the length of the trailer, and the spaces between the segments must be distributed evenly. The centerline for each strip must be between 15 inches and 60 inches above the road surface when measured with the trailer empty or unladen.¹⁴

Rear impact guards. Aiming to reduce the number of deaths and serious injuries caused by collisions with the rear of ­truck-trailers, the Federal Motor Carrier Safety Regulations set forth minimum requirements for rear-impact guards on trailers and semitrailers with a GVWR of 10,000 pounds or more.¹⁵ These rear guards have proven effective at preventing intrusion into car passenger compartments.

General Motors, for example, ran a series of tests crashing a car into a truck’s rear guard at 40 mph. In these tests, the car’s bumper contacted the underride guard, allowing the vehicle’s crush zones and structure to absorb the energy of the crash without the structure collapsing or crushing into the passenger compartment.¹⁶

Safer alternative designs. Brazil, the European Union, and Japan require certain truck-trailers to carry side guards.¹⁷ Since the 1980s, England and other ­European nations have required side guards to protect motorcyclists, bicyclists, and pedestrians from being trapped in the open spaces along the sides of trucks and trailers.¹⁸

Progress in designing and manufacturing safer side impact guards has reached a point where commercially produced designs are readily ­available. AirFlow Deflector’s AngelWing™ side guard, for example, guarantees no passenger compartment intrusion in the event of a side collision at speeds up to 40 mph. The AngelWing™, which costs only a few thousand dollars to install, is sold to length for specific requirements and weighs about 800 pounds or less.¹⁹ Considering the lives that a side guard could save, this is small weight to add to truck-trailers.

In Brazil, the Plyer Guard was designed so that a car collides with a ­low-mounted cross bar on the side guard and then a net of steel cables, which allows the car’s frontal crush zone to progressively deform the net and absorb the energy in the crash.²⁰ Car passengers receive safety benefits from the car’s own frontal crush zone and from the elimination of unsafe underride penetration into the passenger compartment.

But until Congress and NHTSA enact tighter regulations, the trucking industry likely will be slow to buy side guards, so litigation will still be needed when preventable side underride injuries and deaths occur.

Case Investigation

As when handling any trucking case, you should take prompt action to preserve physical evidence. Obtain all scene data, including records and photographs and vehicle inspection reports generated by the investigating officers, the National Transportation Safety Board, or any other law enforcement agency that responded to the scene. Send preservation letters to the motor carrier and truck driver. Make every effort to obtain control of—or at least prevent any alterations to—the truck until experts can photograph, measure, and test it.

Request and review the truck driver’s log and diaries, and seek preservation of the tractor’s engine control module or other “in-cab” electronics, which may include data on the tractor’s speed governor, lights, emergency equipment and GPS data. Also request preservation of any in-cab video that may depict the truck driver’s actions in the moments leading up to the crash.

Photograph the physical evidence at the scene. If the crash occurred at night, take a series of nighttime photos of the truck from various angles with its running lights on and off. Consider taking the witnesses to the scene; interview them there on videotape so that they can point out significant details of the crash.

You should also secure your client’s vehicle for later inspections. The extent of underride can be assessed based on damage to the passenger vehicle. Ambulance and medical records will help determine the victim’s movements as the crash occurred so that you can confirm that the debilitating injuries resulted from the vehicle underriding the trailer.

Hiring an accident reconstruction expert experienced with side underride collisions is crucial so that you can determine the speed of your client’s vehicle and show that if the truck had a side guard, the occupant compartment intrusion and resulting injuries would have been prevented.

Side Guard Litigation

In a 2000 case involving a driver who suffered fatal head injuries after his car slid under a truck-trailer, a Texas jury found that the absence of a side underride guard was an unreasonably unsafe and defective design.²¹ Six years later, another Texas jury found the same company liable for the death of a 25-year-old woman after her car collided with the side of a trailer that lacked a side underride guard.²²

Lessons can be learned from past side underride guard cases. Expect the trailer manufacturer to challenge the economic and technological feasibility of the side guard you offer as a safer alternative design. In one recent case, a court rejected the plaintiff’s alternative design because “nobody has ever built or tested one in the real world,” so before proceeding with a case, be sure that your proposed design has already been tested or consider conducting case-specific testing to support your claim.²³

Side underride cases are time consuming, technically complex, and vigorously defended. But these challenges make it especially fulfilling to hold trailer manufacturers accountable for the harm they cause.

Rob Ammons is the founding partner of Ammons Law in Houston. He can be reached at r.ammons@ammonslaw.com.

Notes

1. John C. Glennon, Truck Underride Collision Analysis, CrashForensics.com, www.crashforensics.com/truckunderride.cfm.
2. Ins. Inst. Highway Safety, IIHS Tests Show Benefits of Side Underride Guards for Semitrailers (May 10, 2017), www.iihs.org/iihs/news/desktopnews/iihs-tests-show-benefits-of-side-underride-guards-for-semitrailers.
3. Ins. Inst. Highway Safety, Side Guard on Semitrailer Prevents Underride in 40 mph Test (Aug. 29, 2017), www.iihs.org/iihs/news/desktopnews/side-guard-on-semitrailer-prevents-underride-in-40-mph-test.
4. IIHS Tests Show Benefits of Side Underride Guards for Semitrailers, supra note 2.
5. Id.
6. In November 2004, two people driving during a snowstorm in Indiana were hit and one died when their car spun out beneath a truck-trailer and was run over by its rear wheels. Eric Flack, Mothers Fight for Tougher Tractor Trailer Laws After Daughters Die in Underride Crashes, WUSA9 (July 13, 2017), www.wusa9.com/news/investigations/mothers-fight-for-tougher-tractor-trailer-laws-after-daughters-die-in-underride-crashes/454993607.
7. In May 2016, in a highly publicized self-driving Tesla Model S crash, a truck-trailer was making a left turn when a Tesla traveling in the opposite direction drove under the trailer at 74 mph, tearing off the roof and killing the driver. Jordan Golson, Read the Florida Highway Patrol’s Full Investigation Into the Fatal Tesla Crash, The Verge (Feb. 1, 2017), www.theverge.com/2017/2/1/14458662/tesla-autopilot-crash-accident-florida-fatal-highway-patrol-report. The dangers of side underride were not mentioned in much of the news coverage of the crash. See, e.g., Cadie Thompson, New Details About the Fatal Tesla Autopilot Crash Reveal the Driver’s Last Minutes, Business Insider (June 20, 2017), www.businessinsider.com/details-about-the-fatal-tesla-autopilot-accident-released-2017-6.
8. In July 2017, four people died in New York when a milk tanker jackknifed across the roadway. A car with three occupants struck the tanker, going underneath it and killing all three people. Another vehicle also went underneath the tanker, killing the occupant. Kira Maddox, 4 Die When 2 Vehicles Slam Into Milk Truck That Crashed on I-81 in Oswego County, Syracuse.com (July 6, 2017), www.syracuse.com/crime/index.ssf/2017/07/i-81_north_remains_closed_after_oswego_county_car_tractor-trailer_crash.html. After this crash, Sen. Chuck Schumer (D-N.Y.) called on the federal government to require underride guards to prevent these kinds of injuries and deaths. Rick Moriarty, Schumer: I-81 Crash That Killed 4 Shows Need for Truck ‘Underride’ Guards, Syracuse.com (July 21, 2017), www.syracuse.com/news/index.ssf/2017/07/schumer_i-81_crash_that_killed_4_shows_need_for_truck_underride_guards.html.
9. Glennon, supra note 1. 
10. Id.
11. 2 Michael Jay Leizerman, Litigating Truck Accident Cases §15:10 (2016).
12. Id.
13. 49 C.F.R. §571.108 (2006) (also known as Federal Motor Vehicle Safety Standard No. 108); 49 C.F.R. §393.11 (2016).
14. 49 C.F.R. §571.108. 
15. 49 C.F.R. §571.224. 
16. Leizerman, supra note 11; see also Byron Bloch & Louis Schmutzler, Improved Crashworthy Designs for Truck Underride Guards (1998), http://www.autosafetyexpert.com/Assets/Docs/article-underride.pdf.
17. Alexander K. Epstein et al., Cambridge Safer Truck Initiative: Vehicle-Based Strategies to Protect Pedestrians and Bicyclists 19 (Mar. 1, 2016), https://rosap.ntl.bts.gov/view/dot/12299.
18. Leizerman, supra note 11.
19. Air Flow Deflector, Angel Wing™ Truck Side Underride Guards, https://airflowdeflector.com/airflow-2.
20. Bloch, supra note 16, at 9.
21. Maravilla v. Int’l Trucking Co., 2000 WL 35722495 (Tex. Dist. Ct. Oct. 1, 2000).
22. Falcon v. Lufkin Indus., 2006 WL 5516790 (Tex. Dist. Ct. Nov. 1, 2006); KTRE, Woman Wins $36 Million Lawsuit (Nov. 21, 2006), http://ktre.com/story/5713190/woman-wins-36-million-lawsuit?clienttype=printable.
23. Wilden v. Laury Transp., LLC, 901 F.3d 644, 645 (6th Cir. 2018).