Thoughts? Lawsuit In Bridge-tunnel Truck Driver’s Death

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Eugene K.'s Comment
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Https://www.google.com/amp/s/www.pilotonline.com/news/transportation/vp-nw-cbbt-trial-walkup-20201130-th5yaoietfghlmstx2wnk5s54u-story.html%3foutputType=amp

I live in Virginia Beach and the entire span of the CBBT is visible from my back porch — it’s a packed route for trucks. I remember this story when the wind blew him over back in 2017.

That said, although this a tragedy, this lawsuit seems without merit. I doubt it was the first gust that blew him over. If he was driving with an empty trailer and was as experienced as the article claims, he should have known to stop at the first sign conditions were unsafe. Let alone pass another truck! Thoughts?

Rick S.'s Comment
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In addition, a CBBT police investigation concluded Chen was at fault. Several witnesses said he was going too fast for conditions and lost control when he tried to pass another semi.

It's going to come down to a couple of issues.

If WITNESSES TESTIFY that he was "going too fast for conditions" - which is very subjective, then a case for "contributory negligence" can be established - either lowering or negating any potential settlement.

They also opted for a "bench trial" (Judge Only) - where a jury can be "emotionally swayed" into being sympathetic in order to avoid a decision based purely on THE FACTS PROVEN AND THE LAW - a bench trial with just a judge is going to be more objective.

There's also a claim of "sovereign immunity", which would negate the suit IF the formation of the bridge authority as a sovereign entity can be established.

Civil Cases have a "lower standard" than criminal (beyond a reasonable doubt - versus - a preponderance of the evidence). The preponderance of evidence standard comes into play when the plaintiff satisfies the burden of proof by offering evidence that demonstrates their claims have a greater than 50% chance to be true. In other words, if a claim can be demonstrated to be more likely to be true than not true, the burden of proof is met.

So the plaintiff only has to convince the judge that it is "more likely than not" - that there was negligence.

As for you point "should have known, being an experienced driver" - WE think it should count. BUT - if there were PUBLISHED RESTRICTIONS, and the bridge operators allowed him on the bridge - there would potentially be a claim for negligence (absent sovereign immunity).

Much would have to do with what the winds were IN THE TIME PERIOD PRECEDING his entry onto the bridge. Example: if there were "a couple of puffs" in excess over the span, before he went on - there would have be AN ESTABLISHED STANDARD OF WHEN A CLOSURE IS ACTUALLY ORDERED. So if it wasn't bad enough to a closure WHEN he got on the bridge - and happened to catch a 50MPH blast WHILE HE WAS ON THE BRIDGE - who is at fault?

Another article on the case from CDLLife

Here's what the restriction reads:

The following types of vehicles will not be allowed to cross the facility during Level 2 wind restrictions: motorcycles; large pick-up campers; camper trailers; house trailers; anything being towed; vehicles with any exterior cargo; empty tractor-trailers, not to include empty tanker trucks*; small six-wheel trucks such as moving vans, rental trucks, school buses, etc. Tractor-trailers must gross 15,000 pounds payload in addition to the weight of the rig and six-wheel trucks must gross 15,000 pounds payload in addition to the weight of the rig in order to be allowed to cross the facility during Level 2 wind restrictions.

So what this comes down to is HOW MUCH WAS IN THE BOX. He was carrying PALLETS. Was he CARRYING 15Klbs in pallets? Did he SCALE? Was he ASKED - or are there POSTED SIGNS (usually lit verbal signs with restriction specs)? Was the bridge UNDER LEVEL TWO RESTRICTIONS at the time he "was allowed to enter"?

They don't SHOOT YOUR TIRES OUT if you try to sneak by - and I doubt they scale you at the entrance.

So - if the WIND RESTRICTION WAS POSTED ON SIGNS - it was the DRIVERS RESPONSIBILITY to know what his gross weights were, and whether they fall under the restriction - NOT THE BRIDGE OPERATORS.

So I got 10K in the box - but the restriction says 15K - do I want to u-turn and take THE LONG WAY AROUND - or TAKE MY CHANCES.

This guy likely didn't bother scaling his load - he wasn't worried about a load a pallets making an axle overweight. Chances are, aside from his BOL, that he didn't have a clue what was in his box.

If CBBT can PROVE by his BOL - that he was OVER 15K in the box - and they were at level 2- his wife HAS NO CASE.

CBBT Weather Restriction Page

From the information in the articles - the wind didn't hit 55 - so they were at a Level II.

It is THE DRIVERS RESPONSIBILITY to know how heavy he is - and if I were on a jury - I would find for the DEFENDANT.

A jury can be made to cry - and would likely give up some $$. A judge cannot.

They will likely LOSE THIS CASE AND NOT GET ANYTHING. Though their lawyer will fight hard - because if they lose - HE GETS NADA.

Rick

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  • Any combination of vehicles with a gross combined weight rating (GCWR) of 26,001 or more pounds, providing the gross vehicle weight rating (GVWR) of the vehicle being towed is in excess of 10,000 pounds.
  • Any single vehicle with a GVWR of 26,001 or more pounds, or any such vehicle towing another not in excess of 10,000 pounds.
  • Any vehicle, regardless of size, designed to transport 16 or more persons, including the driver.
  • Any vehicle required by federal regulations to be placarded while transporting hazardous materials.

SAP:

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The Substance Abuse Professional (SAP) is a person who evaluates employees who have violated a DOT drug and alcohol program regulation and makes recommendations concerning education, treatment, follow-up testing, and aftercare.

OWI:

Operating While Intoxicated

RealDiehl's Comment
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You explained that beautifully, Rick! Thanks for laying everything out for us and for dropping some interesting facts in there.

Eugene K.'s Comment
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Thanks Rick! That was my inkling, but I don’t have the experience or know-how so wanted to know what others thought.

No matter what, this was a completely preventable accident that never should have happened. My heart goes out to his family

Truckin Along With Kearse's Comment
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From what I remember he was already on the 17 mile bridge when the warnings came and there is no place to just stop there. I have shut down way before warnings only to find out that tornadoes hit later and caused serious damage and blew over trucks. I just get a gut feeling and stop. Wind scares me more than anything.

He wouldn't have had a BOL for empty pallets unless they were being sold to someone as a new product. Sometimes customers leave the pallets in the trailer after emptying. Sometimes shippers require you bring them empties before they will load you. pallets usually weigh less than 80 pounds each depending on the material. They even come in different heights, so how tall the stack would be depends on the material. Some even have the weight written on them. If he knew how many pallets, he knew the weight. Regardless, the weight would be extremely light. At least if he was a driver who gave a damn.

Wind can start out of nowhere and as I said, I believe the alerts came after he entered. He may not even have known it because over that water my cellphones.... Both Verizon and T Mobile lose reception. I haven't been there for awhile. But if there are overhead signs on the bridge they are no use once you are there.

As far as him passing someone.... I could see him trying to drive along someone to block the wind. That is risky cause that truck could be pushed into you. It is also possible he got left because the wind was pushing him to the right and he was trying to stay on the bridge.

As is typical with lawsuits, even if rhe widow loses, some good might come from it. They may improve their wind reporting system or devise a plan to build pull offs. But I have seen trucks blown over when parked so it is not always driving too fast for conditions. And any constructed pull offs would have to have walls blocking rhe wind for the parked vehicles.

I think there is one area with a restaurant or something. .. Like a service plaza type in the middle but I don't think trucks are permitted.

He was probably an owner Op with no life insurance and the widow is trying to survive with her kids. Sad

Shipper:

The customer who is shipping the freight. This is where the driver will pick up a load and then deliver it to the receiver or consignee.

Rick S.'s Comment
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Way More Information From An Article In The Virginia Pilot

Based on what I'm reading in this article - which has way more detail - I don't think they have a case.

According to police, he was traveling in the right lane of the southbound span, around the 15-mile marker, which is closer to the Eastern Shore side. A car was in the left lane. Another truck was ahead of Chen, in his lane.

"He went to pass the tractor-trailer," Spencer said. "He cut over in front of passenger car, and once he got over in the left lane, he ran up on curb and through the guard rail."

Assuming they're doing the SPEED LIMIT on the bridge (55) - he would likely have been SPEEDING to make the pass.

At 7:30 a.m. Thursday, as the storm rolled into the region, the bridge-tunnel was operating with Level 4 restrictions, meaning winds of at least 60 mph had been detected. Only passenger-type vehicles with their lower profiles were allowed.

Chen waited it out on the Eastern Shore side. By 12:30 p.m., when he headed across, restrictions had dropped to Level 1 – 40 mph-plus winds, with semis allowed.

So - when he got ON THE BRIDGE (after waiting for awhile) - it was at Level 1 (which would have been safe for a light trailer, though you'd have to have some balls to run empty in those winds). If it went to Level 2 AFTER he had already gotten on the bridge - then it was a judgement call THE DRIVER MADE - and I'm not seeing where CBBT would have ANY NEGLIGENCE. Unless the plaintiff wants to argue that even Level 1 was unsafe for a lightly loaded TT. And even then - there can be testimony that thousands of TT cross without incident at Level 1.

The report also noted NO SKID MARKS - which increases the likelihood that he got a gust while passing (irresponsibly), and just lost it while making the lane change for the pass.

Keep in mind - accidents resulting in DEATHS are investigated incredibly thoroughly. I hit a drunk pedestrian while I was riding a motorcycle (ran right out in front of me - there was no way to avoid it) - they had the road closed for 5 hours - and I got a 150 Page Traffic Homicide Report. The guy WHO WAS WITH THE DECEASED, went on his wifes "uninsured motorist" policy and got $10K from her insurance company - for which they SUED ME (and he wasn't even injured - he was just SCAMMING). I represented myself - and got the case dismissed. They wouldn't show up in court - because they KNEW I was going to beat them (after I sat down with the senior partner of the firm) and wanted to spare themselves the embarrassment of getting their butts handed to them by an amatuer). Summary judgment of dismissal for the defendant. OTOH - I work for lawyers, so I did get a little help.

At any rate - this accident was INVESTIGATED THOROUGHLY. I'm surprised CBBT didn't make an offer (didn't want to set a bad precedent so anyone who had an accident would sue them - most likely). Just as I'm surprised the plaintiff would take this to trial - even more so - a bench trial, where they can't "play on the sympathy" of a jury to get an award.

I'm just not seeing a good case here.

1 - The driver waited until Level 1 conditions allowed him to proceed (versus re-routing). Conditions were Level 1 when he was allowed to enter the bridge. No negligence on the part of CBBT for allowing him to proceed at that moment. 2 - The driver was executing a pass around another TT, which would likely require him to break the speed limit to complete. And if you cannot make a pass without speeding - it is NOT LEGAL to make the pass. You would hope the other guy would slow down and allow you to make the pass - but we all know this isn't always the case. At any rate - he made the lane change FOR the pass - and ended up in the drink. 3 - An extensive investigation came to the conclusion this was DRIVER ERROR, with witness statements of "speed too fast for conditions".

The plaintiff has to prove "based on a preponderance of the evidence", the CBBT was negligent in allowing the driver to proceed. The storm that created the Level 4 condition earlier had passed. CBBT can only go by CURRENT WIND SPEEDS to establish which Level to declare for the bridge.

I've been through that way, a couple of times - on Grateful Dead tour in my trusty VW camper. That bridge scared the crap out of me. Almost as much as the bridge on 275 between St. Pete and Bradenton does (Sunshine Skyway Bridge).

He was going southbound. There's a lot of truck parking on the north side - likely where he hung out until they went down to L-1. Depending on where he was coming from - I can see using 13 to avoid the mess of the I-95/495 parking lot coming through Balto/DC.

Feel bad for the wife for her loss. But he made a bad call on the pass. I'm just not seeing negligence on the part of CBBT here.

There are pull-offs - but they can barely accomodate a truck, and there really isn't a place to build a "wind shield" there. This is a 60 year old bridge - not part of an interstate. I don't see them throwing a bunch of $$'s at it for improvements.

Rick

Interstate:

Commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the Federal Department Of Transportation (DOT).

HOS:

Hours Of Service

HOS refers to the logbook hours of service regulations.

OWI:

Operating While Intoxicated

PackRat's Comment
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We've had people driving trucks blown off that bridge, the Hampton Roads Bridge Tunnel bridge, the James River Bridge, the Jordan Bridge, and the Monitor-Merrimac Bridge Tunnel bridge back as long as I can remember. I think it would average out to one truck every two to three years. That wind can blow more than 100 mph out there. I can remember back to a time when the CBBT was just an idea.

Chris L's Comment
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I'm not a Lawyer nor have I played one on TV lol... Since the CBBT I arguing Sovern Immunity shouldn't that issue have been adjudicated prior to the start of the trial? I'm assuming the since the trial is proceeding a Judge has found the case has merrit and Sovern Immunity doesn't apply?

Rob D.'s Comment
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I'm not a Lawyer nor have I played one on TV lol... Since the CBBT I arguing Sovern Immunity shouldn't that issue have been adjudicated prior to the start of the trial? I'm assuming the since the trial is proceeding a Judge has found the case has merrit and Sovern Immunity doesn't apply?

There are waivers for soverign immunity.

I. Dangerous condition of government's property that was a) caused by a government actor or b) known to the government actors

2. Operating a motor vehicle.

so plaintiff's case most likely alleges the wind was a dangerous condition of CBBT's property and bridge operators knew it.

also generally in a bench tried case unless its really clear issue of law the judge will " take up the motions with case." Because he or she is deciding the entire case they'll just take it all in and decide based on all evidence and law. that way they can pick the best basis for the judgement which is always the facts..

Rick S.'s Comment
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There are waivers for sovereign immunity.

I. Dangerous condition of government's property that was a) caused by a government actor or b) known to the government actors

2. Operating a motor vehicle.

so plaintiff's case most likely alleges the wind was a dangerous condition of CBBT's property and bridge operators knew it.

also generally in a bench tried case unless its really clear issue of law the judge will " take up the motions with case." Because he or she is deciding the entire case they'll just take it all in and decide based on all evidence and law. that way they can pick the best basis for the judgement which is always the facts..

This ^^^^

Not sure what the status of the case is.

But typically at the opening, there will be pre-trial motions made and argued (motion to dismiss based on a claim of sovereign immunity would be a pre-trial motion) and the judge would check the case-law, and render a decision on the motions. Then, the arguments of the case itself would proceed (witnesses, evidence, etc.), assuming motions to dismiss were not granted. The case would also be held up if appeals on motions were made.

An argument for sovereign immunity would be made right at the start, because of the judge determines it applies - the rest of the case is moot. OTOH - either way - the motion could be appealed to a higher court if one of the parties disagrees with the ruling. In the case of CBBT - if they were ruled AGAINST - they would most certainly appeal, as it opens the door to a flood of lawsuits.

Sovereign Immunity also (typically) doesn't remove ALL LIABILITY in some cases. It limits it. For example: here in FL - if you sue a municipality and get a judgement in excess of $200K - the state legislature must decide whether or not to pay the excess judgement out of a liability fund.

In the case of Virginia's "Tort Claims Act" - the plaintiff must prove GROSS NEGLIGENCE - not just "simple negligence". As long as CBBT exercised "reasonable care" in re-opening the bridge at Level 1 (which it appears they did), and have been "historically accurate" in their decisions to do so in the past - it's unlikely there's going to be a finding of "GROSS negligence". If I was sitting on the jury - unless the plaintiff could prove INTENT (they opened without regard to potential dangers) I'd find for the defense.

And actually - #2 - "operating a vehicle" - runs along similar lines. Operating a vehicle would apply if an "agent of the state" was operating the vehicle - and again - GROSS NEGLIGENCE would apply also.

that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another. It is a heedless and palpable violation of legal duty respecting the rights of others. Gross negligence amounts to the absence of slight diligence, or the want of even scant care.” Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987) (citations omitted).

Based on the VA standard case law for "gross negligence" - I cannot see how it would apply in this case.

The fact that CBBT went to Level 1 - and the driver proceeded under Level 1 conditions - was it the responsibility of CBBT to know IN ADVANCE that it would go to Level 2 AFTER the truck was already on the bridge? (playing devil's advocate here). Are they supposed to have a crystal ball? Keeping in mind a Level 4 storm had the bridge closed earlier and had passed already.

IF CBBT LOSES the case (based on losing their sovereign immunity), and I were them - I'd just CLOSE THE BRIDGE TO ALL AT RISK TRAFFIC.

Dear Drivers: Since CBBT is unable to accurately predict weather conditions that may change at a moments notice, in an abundance of caution, we find it necessary to leave the Weather Condition at Level 4 until such time as our ability to predict random weather events improves.

Being that Route 13 (the CBBT) isn't part of the Interstate Highway System - no problem making the route truck restricted.

Again - not that I lack sympathy for the drivers wife. What weighs against him is his "decades of experience", and the fact we push on EVERYONE HERE that - despite ANYTHING ELSE - THE DRIVER IS THE CAPTAIN OF HIS SHIP - IS THE LAST WORD ON DECISIONS TO DRIVE OR NOT - AND IS RESPONSIBLE FOR ANY OUTCOMES OF THAT DECISION.

Truck was nearly empty (reportedly 6Klbs) - not sure how many of us here would run an empty wind-sail, across an open bridge in 40+MPH winds. I get how he sat in the parking lot - waiting for CBBT to come down to Level 1, then made a mad dash across.

I'm not a lawyer - I don't play one on TV - and I NEVER STAY at a Holiday Inn Express.

And what it comes down to is - if they get a $6 mil judgement - it comes out of the TAXPAYERS POCKET. This is an old bridge and that $$ would probably be better spent on maintenance and upgrades to the infrastructure. Not sure if CBBT made an offer to settle. Even though such offers include wording that the offer is not an "admission of guilt" - a jury would see it as one anyway.

COVID and the lack of juries made the take the bench trial - they would have had a much better shot at a sympathetic jury - than a TRIER OF FACT.

Rick

Interstate:

Commercial trade, business, movement of goods or money, or transportation from one state to another, regulated by the Federal Department Of Transportation (DOT).

Dm:

Dispatcher, Fleet Manager, Driver Manager

The primary person a driver communicates with at his/her company. A dispatcher can play many roles, depending on the company's structure. Dispatchers may assign freight, file requests for home time, relay messages between the driver and management, inform customer service of any delays, change appointment times, and report information to the load planners.
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