QuestionA tow truck was extracting a truck from a ditch on a New York State
highway. He was perpendicular to the road blocking one full lane of traffic on a two lane highway and did not have out any warning devices or a flag person directing ,or warning oncoming traffic, of
the potential danger ahead.An accident occurred and I feel that the
tow truck operator was negligent and caused this accident. I cannot
seem to find any regulations, at least in New York, that governs tow
safety procedures. Any advice?
AnswerHi Nicholas,
You caught Dr. Settlement on a Christmas train trip weekend, so I am sorry that I did not have access to see your question until tonight (Sunday) upon our return.
You might be expecting a simple three or four sentence answer, but Dr. Settlement knows insurance auto claims, and this one has a number of aspects to explore. So I am going to give you a lot of my time so that you understand the nuances of this claim.
Unfortunately, you have give no facts whatsoever about any accident. So I am going to just assume that (1) you hit the tow truck, or hit something else on account of the tow truck being in the roadway, or (2) you were one of two other drivers in addition to the tow truck driver and that they got into an accident.
You have asked about fault, and so I do not know if this is just for the property damage aspects or whether you have injuries that exceed the threshold of your own NY policy. In any event, I will answer the fault issues, but you have to promise not to shoot the messenger if you do not like my answer.
Here is why. This case depends upon the negligence of not just the tow truck driver, but the two other drivers. With or without state regulations, the tow truck driver is negligent (in fact there ARE regulations, see below). But the fact that he was negligent in violation of the regulation AND in violation of the general rules of the road (which apply here as well) DOES NOT excuse any other driver from having an accident, UNLESS there was limited visibility. The defense of the tow truck driver's insurance company will start with the question: "WHY were any other drivers in an accident?"
Even with the tow truck driver committing a violation of regulations and a violation of the rules of the road, and even if his insurer admits he is negligent, every other driver is still charged with seeing what is to be seen and reacting in the way a reasonable person would react.
So if there was good visibility on a straight stretch of roadway for a sufficient distance to allow a reasonable person to react and avoid the accident, then any driver who gets in an accident is also partly at fault.
But if the tow truck was blocking the roadway at a point of limited visibility, then a reasonable person would not have a good opportunity to avoid the accident, and so there would be little or no negligence on the part of a driver who did not have adequate time to react.
If this was at night, or even at dusk, or in a fog, then there would reduced visibility and hence no or little negligence on the part of the other two drivers, since they could not be expected to see and react in time.
I will address what happens to the negligence allocations below. But first let's take up the New York Department of Motor Vehicle regulations.
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First, the New York Department of Motor Vehicles does have cognizance over the training and licensing of tow truck operators.
Second, New York DMV has two relevant manuals. First is the general commercial drivers manual, found here:
http://www.nydmv.state.ny.us/broch/cdlmanual.htm
And of more relevance, they have issued a supplement to the drivers manual for tow truck operators. Here it is: http://www.nydmv.state.ny.us/forms/mv14.pdf
Third, notwithstanding having spent some minutes going thru those manuals, they apparently do not have any rules of the road regulations to govern HOW a tow truck operator ought to put up warnings for oncoming traffic. STRANGE, don't you think? As you can see, they have all kinds of info on how to set up and make the tow. But nothing except general statements on exercising safety and caution regarding blocking the roadway, with the exception of the requirement that hazard lights should have been displayed.
There are sections dealing with lights, and in there we can see that the tow truck driver MUST USE THOSE LIGHTS IN YOUR SITUATION—i.e. when on the highway. Here is the section I am talking about.
"H. TOW TRUCK LIGHTS
"1. Hazard light(s): A tow truck is defined as a "hazard vehicle" under the Vehicle and Traffic Law. As such, it must be equipped with hazard light(s), which are defined as, "one or more flashing, rotating, revolving or oscillating amber lights visible to all approaching traffic for a distance of five hundred feet".
These light(s) are to be displayed only when a tow truck or car carrier is engaged in a "hazardous operation", which is defined as "the operation, or parking, of a vehicle on or immediately adjacent to a public highway while such vehicle is actually engaged in an operation which would restrict, impede or interfere with the normal flow of traffic".
"With two exceptions, hazard light(s) should NEVER be displayed while a tow truck is underway. These exceptions are: (1) when a vehicle can only be towed at speeds that impede the normal flow of traffic, and (2) when a towed (or carried) vehicle protrudes into other lanes of traffic.
"2. Auxiliary tow lights:
"3. Work lights: Lastly, tow trucks should also be equipped with work lights that may be used to illuminate the scene of an accident or disablement. Extreme care should be exercised to shield these lights from oncoming traffic, because they can blind passing motorists. For this reason, the headlights on a tow truck should also be turned off after dark while preparing a disabled vehicle for towing. Recent studies have demonstrated that "less is better" when illuminating an accident scene, because too much lighting can confuse, distract and temporarily blind motorists who approach or pass through the scene."
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Now I will leave it to you to guess what kind of fault might be attributed to you or any other driver who got in an accident at this scene. You will want to plead that there was too little time for you to react given the visibility at the scene.
Another excuse, although not as helpful as reduced visibility is that of SUDDEN SURPRISE. YES, you admit that you saw the tow truck, but it was such as surprise that you took an extra second or two just trying to figure out what it was you were seeing, and the extent to which he was blocking the roadway. This is not as strong as the reduced visibility excuse, but it might have some persuasive power.
How do you collect if you are also at fault? In many states, especially "red" states, where the legislature is more likely to be in bed with the insurance industry, anyone who is even 50% at fault can be prohibited from bringing a claim.
Fortunately for you, New York is a "blue" state, which means that the state legislature is more likely to have sided with the state trial attorney organization, which looks out for the rights of injured persons. As a result, you have one of the most progressive fault systems, along with only 12 other states. Here is a description of your fault system, which I have taken as part of the members' side of our insurance claim help website: www.SettlementCentral.Com
"This is known as "Pure Comparative Negligence—13 States. This is the fairest system in that it punishes the victim claimant only in proportion that his negligence is responsible for the entire harm caused by the accident. Hence, the victim claimant can be any percentage at fault and his claim will be reduced only by his degree of fault. So a victim claimant who is 90 percent at fault can recover for his injuries, but the value of his claim will be reduced by 90%, leaving him only 10 % of the normal value of his claim."
What this means is that even if you were to be found over 50% at fault, you still would be able to make a claim. Let's say that the damages you sustained are valued at $30,000. If you were not at all at fault, then you would collect the full $30K. But if you were 30% at fault, then you would only collect 70% of your damages, or $21,000. Only in your state and the twelve other states can you collect if over 50% at fault. Let's say that your are found to be 60% at fault. In that case, you can collect only 40% of your damages, or $12K.
That is how the pure comparative negligence system works. But since I have no idea of which no-fault insurance coverage you selected, I am only assuming that the issue of fault is relevant in your claim.
I trust that my extra time devoted to your question has generated some information that is of value to you. May I respectfully request that you take the time to find the feedback format on this site and leave some feedback for me.
Thank you and Best Wishes,
Dr. Settlement, J.D. (Juris Doctor)
Www.SettlementCentral.Com
