Snow Accumulation as an 'Act of God'

This week in the trucking industry, the Internet exploded over the issue of truckers being forced by New Hampshire State Police to remove snow from their roofs under the NH state "Jessica's Law."

The SBTC filed this complaint with the USDOJ in response to NHSP's tweet boasting about their efforts to make drivers climb on top of their trucks. SBTC took the positions that (1) the police had acted "reckless(ly)," by making truckers climb their trailers; (2) the police had unlawfully detained truckers in doing so; and (3) that snow is an "act of God."

There is a big difference between what the police can and cannot do, and what truck owners must do to avoid losing a personal injury lawsuit. SBTC now wishes to clarify a few points regarding what owner-operators' and motor carriers' general liability is when it comes to these matters.

According to one law firm, the legal standard in this area generally revolves around these three points: (note this is referenced in the context of snow accumulation on a sidewalk): "1) that the accumulated ice or snow was on the property and as a result the property was not reasonably safe; 2) that the owner or possessor knew or should have known about the condition; and 3) the owner or possessor failed to use ordinary care to remove or warn of the condition."

The firm goes on to state:

"In many failure to remove ice and snow cases, the potential liability of the property owner or possessor depends upon how much time the property owner had to remove the ice or snow. The property owner is not held responsible for weather conditions that exist universally in the community. That is, if ice and snow are everywhere, the owner possessor is not responsible. If the ice or snow accumulation stopped just prior to the injured person falling, the property owner probably would not beheld responsible. The longer however that the ice or snow is left unremoved, the more likely the property owner or possessor is to be held responsible for any later fall. There is no statute or law that states how long the property owner has to remove the ice or snow. Common sense and reasonableness dictate how much time the property owner has."

So how does this translate to the snow accumulation on the roof of a truck? We suggest there is an issue about when it is practical and safe to remove the snow that must be inserted into the equation. Shoveling a sidewalk is generally not risky. While some people suffer heart attacks, most people are not at high risk for heart attacks when shoveling snow and it is not reasonable to suggest that shoveling snow will likely cause a heart attack. However, climbing on top of a truck trailer is a different story.

Depending on the exact weather conditions, the driver on top of his trailer may find slick, wet surfaces, patches of ice, and high winds that could cause a driver to slip and fall and sustain serious personal injury. Depending on the location of the truck, if on the shoulder of an interstate, a fall could result in death either because of the manner in which the driver lands, or because he lands into an active lane of traffic.

We would not suggest that the owner or occupant of a high rise apartment has an obligation to remove snow and ice on the ledge outside their window if there is serious risk of harm to do so. This is where the "warning" comes into play. A sign to beware of falling ice puts the liability on the pedestrian walking near the building to beware of falling ice. So too, should a sign be placed on the back of truck trailers to keep a safe distance and beware flying snow and ice. This should be done until the driver can secure safe removal at a weigh station or truck stop.

We maintain that the snow and ice on the roof of a trailer is not in and of itself an unsafe condition and that snow is an act of God. No one should be walking on the top of a trailer, including a driver. We believe a carrier would actually have liability if it made its employee do so without safety equipment and that could result in OSHA violations. The problem lies in trying to argue that the wind created by the movement of the vehicle is an act of God. A gust of wind is surely an Act of God but wind created by speed the driver knowingly and willingly engages in, probably is not. Lawyers for the injured will undoubtedly point to causation of the wind by the driver's decision to move.

So, as a matter of civil liability for death or personal injury, generally, the snow should be removed as quickly as possible once it is reasonably safe for a driver to do so. The state should also maintain public scraper mechanisms to do so and drivers should make an effort to get to one of these or privately operated facilities. In the meantime, placards should be used to warn motorists of risks of falling snow and ice, advising to keep a safe distance. Carriers should expect that laws like New Hampshire's "Jessica's Law" will continue to be enforced in terms of issuance of fines, even after our DOJ complaint objecting to unreasonable commands to climb atop trailers and unlawful detainment until and unless challenged on 14th Amendment Equal Protection grounds because it is easy to safely remove snow from a car before moving it, but from a truck, not so much.