Roadside work crews undoubtedly have a dangerous job. They suffer not only the risk of injury faced by all construction workers (which is high in comparison to other occupations), they also risk working near fast-moving traffic.
In fact, the danger was the basis for North Carolina’s recent expansion of the “Move Over” law to include roadside work crews, in addition to emergency workers, tow trucks and incident management workers.
When a roadside crew member is injured or killed as a result of a motor vehicle collision, there may be more than one remedy available. First and foremost, there is workers’ compensation. That is considered the “exclusive remedy” under state workers’ compensation law, but that is only as it pertains to the employer. There may also be opportunity for civil litigation against other contractors, individuals, the at-fault driver, insurance company and other relevant third parties.
The recent case of Lemley v. Wilson is one example in which a surviving family member pursued third-party litigation for the alleged wrongful death of a road crew worker killed by a passing car. The case made it all the way to the Alabama Supreme Court.
Unfortunately for plaintiff, the state high court affirmed the jury’s verdict in favor of the driver who struck the worker. The trial court had granted plaintiff’s request for a new trial, finding evidence insufficient to support the jury’s verdict, but the state high court disagreed.
What played an important role in this case was contributory negligence. That is the degree to which an individual may be responsible for his or her own injuries. In Alabama, as in North Carolina, there is a pure contributory negligence rule, meaning any negligence found on the part of the plaintiff will serve as a bar to recovery of damages. South Carolina, however, adheres to a 51 percent modified comparative fault model, in which plaintiff’s can still collect damages in spite of contributory negligence, so long as by the court’s calculation, the contributor negligence doesn’t exceed 50 percent.
According to court records in this case, decedent was employed by the city and started his day supervising a prison work crew in mowing lawn on city-owned property. He took a break for lunch, at which time he left his safety gear and other items in the truck. He was then called to help another city worker whose knuckle-boom truck had gotten stuck on a public road. The operator needed immediate assistance in directing traffic away from the potential hazard. Decedent didn’t have time to gather his safety gear.
There was conflicting evidence about whether the crew established adequate warning of the truck impeding the road. Driver says there were no cones. No flashing lights. No signs. The worker wasn’t even wearing his orange safety vest (that much is undisputed).
The driver was fresh off a 16.5-hour shift, on his way home, when he rounded the top of a hill and spotted the truck in the road. He saw the worker, heard him yell “Stop!” but he didn’t have time enough to brake, he said. He struck the worker, who later died of his injuries.
Father of worker filed a wrongful death action against the driver. Plaintiffs argued driver was sleep-deprived, careless, inattentive and speeding.
Ultimately, jurors sided with the driver, finding evidence insufficient to prove negligence, and noting decedent’s own alleged contributory negligence. Trial court granted a new trial, but state supreme court reversed.
Jurors are given a broad range of discretion on such matters, which is why it’s important to hire a legal team with experience.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Lemley v. Wilson, March 6, 2015, Alabama Supreme Court
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Fatal Greenville Crash Blamed on Wrong-Way Driver, Possibly Drunk, March 9, 2015, Spartanburg Car Accident Lawyer Blog