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QUESTION:Gentlemen: Please pardon me if this is not an appropriate message.
We provide consultants and expert witnesses to attorneys and insurance
companies, and need someone to help on a vry unusual case.
Our client represents the survivors of a woman who was killed in an auto
accident on an unlighted highway at night. She drove into the rear of
an unlighted backhoe being driven by an unauthorized driver at a very
slow speed. The driver had a "universal" key for backhoes in his
pocket, since he operated one in the course of his job. He had been
driving his own auto, and ran out of gas. Coincidentally, this happened
at a place where a backhoe-not the one he operated, andnot owned by his
employer, was parked for the night.
We understand that it is rather common that universal keys are used
rather than individual keys on this typee of equipment. There is no
established standard to the contrary. Our client wants someone who will
help him argue, that backhoes should be individually keyed, standards,
customs and practices of the industry notwithstanding.
ANSWER: I must say that I find this request to be extraordinary. While I
have little doubt that you will find someone who will (for a price)
say what you want them to say, the reality here is that you are
trying to get the industry (which is assumed to have deep pockets)
to assume the responsibility that should be assumed by the
individual driver. Oh, I have no doubt that you will find someone,
or that you will win -- because you will be able to play on the
sympathy of a jury. But from my perspective, your case has
the following holes:
(1) The driver is responsible for maintaining an "assured clear
distance," regardless of the road, regardless of the time of day,
regardless who's out there on the road.
(2) If the driver had clipped the car that was out of gas and
*stopped* on the road, or partially on the road, there is reason
to suspect that the result would be the same, yet there would be
no looking for an industry standard that spare tanks of fuel
be carried in the trunk.
(3) There is no call for liability on the part of the jurisdiction
that failed to maintain any lighting whatsoever on the road.
(4) The current standard has its reasons. I don't mean to be
curt here, but I am not part of the industry and don't know them.
One *guess* would be that parked backhoes represent a
greater longer-term traffic hazard with unique keys (thus
subject to loss, as would be our car keys) than under the present
standard -- for *most* of the population.
If there is reason *more objective* than sympathy with the
bereaved family to have sympathy with your professional
dilemma here, I would be greatly obliged to hear it.
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