Does A Truck Driver Have a Duty to Warn Other Motorists of the Cow He Just Hit That’s Lying in the Middle of the Road?

While driving a dump truck owned by his employer, a driver hit a cow in the middle of the road. Shortly thereafter, another motorist struck the cow, resulting in an accident that left her with severe and permanent injuries. She sued the driver and his employer and, as well as the cow’s owner. The plaintiff appealed from a trial court order granting summary judgment in favor of the employer and the driver, arguing that the court erred in concluding as a matter of law that neither the employer nor the defendant driver had breached any duty owed to the plaintiff.

Background

About 6AM on October 19, 2019, two dump trucks left the employer’s facility in Jackson County, traveling to pick up gravel in Cornelia. Both trucks were owned by the employer and were driven by the defendant truck driver and another employee driver. The drivers agreed they would stop at the Dairy Queen in Baldwin for breakfast. The other truck driver, who was driving the lead truck, testified that it was dark outside, and that the trucks were traveling about 65mph. While traveling on an unlit stretch of highway, the defendant driver glimpsed “a flash” of what appeared to be an eye, and his truck lights then illuminated what appeared to be the nose and face of a cow in the road. He thought he was less than five feet from the cow when he first saw it. Also, he thought that perhaps “a second” elapsed between him seeing the cow and his truck hitting it. The cow was black, which made it more difficult to see. The driver said he was driving on the right side of the divided highway and that the cow was to the left of his truck, meaning that it was in the middle of the road.

The other semi was roughly two truck lengths behind the defendant driver. That driver saw the defendant driver hitting the cow and explained that it looked to him as though he’d tried to avoid the animal but was unable to do so. He also noted that the defendant driver’s brake lights came on after he hit the cow. When he passed the cow, the animal was down in the middle of the road, near the centerline, and the cow’s leg struck the truck’s hubcap as the other driver drove by. After the incident, both the two drivers went to the Baldwin Dairy Queen, which the other driver estimated was eight or nine miles from the area where they encountered the cow.

The plaintiff was driving her Volkswagen Passat behind the second truck. Traveling behind her was the employer crew truck. That driver had an employee as a passenger. The men hadn’t left the employer with the dump trucks that morning but were traveling to a different job site. While sitting at a traffic light in Commerce, they saw the two dump trucks pass, followed by the plaintiff’s car. When the light changed, they turned and began driving behind the plaintiff’s car, which he estimated was between 300 and 400 feet ahead of him.

After driving for approximately 15 miles, the two men saw sparks coming off the highway, and the crew truck driver’s passenger said there was a cow on the side of the road. The crew truck driver slowed the truck and saw that the sparks were coming from a car that was “flipping over” on the highway. The plaintiff’s car came to rest upside down in a turn lane, so the crew truck driver pulled his truck into the median, hit his strobe lights and shone his headlights on the accident scene. The two men approached the car where they saw the plaintiff, who’d suffered multiple injuries, including a severed arm.

The accident caused the Passat to dial Volkswagen’s emergency service provider, CarNet, which received that call at approximately 6:11:30am The crew truck driver and his coworker spoke with the CarNet operator, who asked them to wait with the plaintiff for emergency personnel. Both the CarNet operator and the crew truck driver called 911, and an ambulance arrived 10 minutes later.

The crew truck driver testified that he was going about 55mph and at times during the drive, he had been able to see the tail lights of the two dump trucks. But he didn’t see those lights at or around the time he and the co-worker saw the cow, even though the road was flat and the area was otherwise unlit or as he testified, “pitch black dark.”  Despite this, and although that driver didn’t see the plaintiff’s collision with the cow, he first estimated that the second the employer truck was approximately 10 to 15 seconds in front of him. The crew truck driver subsequently admitted, however, that he didn’t know how far ahead of him either the plaintiff or the dump trucks were, in either time or distance. Nor did he know how fast the defendant driver was traveling. The crew truck driver also acknowledged that the defendant driver “probably” had enough room at the accident scene to pull onto the shoulder and activate his strobe lights.

As to whether the defendant driver knew he’d hit the cow or when he suspected he might have hit the animal, the evidence was inconsistent. He said he didn’t pull over or stop at the scene because when he saw the cow, he didn’t see or hear anything indicating he’d struck the animal. He also noted that the area was very dark. He then stated that after processing the situation, he realized he might have “clipped the cow.” According to the crew truck driver, however, he spoke with the defendant driver the afternoon of the accident, and the defendant driver stated he knew he hit something, but didn’t know what it was.

At his deposition, the defendant driver acknowledged that both the employer safe driving policy and the rules applicable to commercial truck drivers in Georgia require drivers to stop at the scene of an accident and where possible, take steps to ensure the safety of other motorists. He also acknowledged that when a driver of a commercial vehicle hits an object in the roadway, they should stop as close to the scene as possible. When asked why, given his knowledge, he didn’t stop at and/or return to the place where he struck the cow, he gave conflicting answers. First, he said he’d never considered stopping at or returning to the scene because he didn’t “know for sure” that there was a cow — or anything else — in the roadway. But he also stated that once he realized he “clipped” the cow, he started to look for a safe place to pull off and that the Dairy Queen was the first lighted area he saw. He further acknowledged, however, that there were places near the scene where he could’ve stopped or turned around, but he deemed the Dairy Queen the “safest possible” place to stop.

After realizing he might have hit the cow, the driver contacted his dispatcher at 6:11am. He told the dispatcher the situation and asked her to contact Banks County 911 and tell them a cow might be in the road. He also told the dispatcher that he was proceeding to the Dairy Queen. According to the driver, he called the dispatcher “immediately” after he hit the cow, explaining that he didn’t wait until he reached the Dairy Queen.

The dispatcher testified that when the driver called, he told her that he’d hit something that he thought was a cow. The driver and the dispatcher spoke for two or three minutes and agreed that the dispatcher would call 911. The driver then told the dispatcher that he’d proceed to an area where it was safe to exit the roadway and look for damage to the truck. About three minutes after speaking with the driver, the dispatcher talked with Banks County 911, and the operator told her that someone had already called to report that a cow had been hit.

The Plaintiff Sues for Negligence

After the accident, the plaintiff sued the driver and his employer, asserting claims against the driver for negligence and negligence per se, and asserting claims against the employer for respondeat superior and negligent hiring and retention. In support of her negligence claims against the driver, she alleged that the driver acted negligently when he failed to stop after striking the cow and to take steps to warn other motorists of the hazard created by hitting the cow. After discovery, the employer and the driver moved for summary judgment, arguing that the plaintiff’s accident happened just 30 seconds after the driver struck the cow. As a result, he had no opportunity to pull over and warn other motorists of the hazard. The plaintiff opposed the motion, arguing that the timeline evidence relied on by the employer and the driver showed only the time that the driver called dispatch and the time of the plaintiff’s accident. That evidence, however, didn’t show when the driver’s truck hit the cow. Additionally, the plaintiff submitted the report of an expert in accident reconstruction, who stated that based on 911 recordings made by other drivers who avoided colliding with the cow, one minute and 42 seconds elapsed between the defendant driver’s striking the cow and the plaintiff’s accident. The expert also opined that there were at least four scenarios where the driver could’ve safely returned to the scene before the plaintiff’s accident. He created an animated video demonstrating each scenario.

The trial court granted the summary judgment motion finding, as a matter of law, that the defendant driver couldn’t have returned to the scene of the accident “without creating still more dangers to himself or other motorists on the highway.” Thus, the court concluded that the defendant driver — and therefore the employer — had “exercised the level of care that the law can reasonably expect under the circumstances.” The plaintiff appealed.

The Court of Appeals Reverses

Presiding Judge Anne Elizabeth Barnes of the Georgia Court of Appeals wrote that to prevail on her negligence claims against the employer and the defendant driver at trial, the plaintiff must come forward with evidence showing that the defendant driver had a legal duty to conform to a standard of conduct; that he breached that duty; and that the plaintiff suffered damages caused by that breach. For over 60 years, Georgia law has held that where

one by his own act, although without negligence on his part, creates a dangerous situation in or along a public highway and it reasonably appears that other users of the highway in the exercise of ordinary care for their own safety may be injured by the dangerous situation so created, the one creating the same is under a duty to eliminate the danger or give warning to others of its presence.

Relying on this law, the plaintiff asserted that after hitting and either killing or disabling the cow, the driver:

1. Had a legal duty to take steps to warn other motorists of the cow’s presence in the road;
2. He breached this duty; and
3. His conduct was a proximate cause of her injuries.

However, the trial court found that the driver couldn’t take any remedial action without increasing the danger to himself or others. As a consequence, he was under no duty to take such action. On appeal, the plaintiff argued that whether the defendant driver could have safely taken remedial action was a factual question for the jury.

Judge Barnes explained that, as a general rule, negligence isn’t susceptible to summary adjudication except where the evidence is plain, palpable, and indisputable that the respondent can’t present any slight evidence on each essential element of the action in rebuttal to create a jury issue.

Here, the plaintiff presented expert testimony opining that there were several steps the driver could’ve taken to warn oncoming motorists safely and effectively of the hazard in the roadway in the time available to him. Other evidence also supported the conclusion that he could’ve taken some kind of remedial action. Plus, the driver himself testified that there was an area near the accident scene where he could’ve turned around, while the crew truck driver testified that traffic was “very light” and that the driver “probably” could’ve pulled safely onto the side of the road. Moreover, the evidence showed that the crew truck was able to pull into the grassy median and activate its strobe lights and that the driver’s truck was also equipped with these lights. As a result, the evidence here as to whether it was possible for the driver to take action to alert other motorists to the hazard at issue wasn’t plain, palpable, and undisputed.

Accordingly, it was for the jury to determine whether, given all the circumstances, the defendant driver breached a legal duty to protect or warn other motorists of the hazard he created when he struck the cow.

Despite the flaws in the trial court’s analysis, the employer and the driver argued that the Court of Appeals should affirm the grant of summary judgment because the undisputed evidence showed that no more than 30 seconds elapsed between the driver striking the cow and the plaintiff’s accident. They asserted that given that fact, and because the plaintiff’s own expert opined that it would’ve taken the driver at least a minute to take remedial action, there was nothing the driver could’ve done to warn the plaintiff. Therefore, he breached no legal duty. But Judge Barnes and the appellate panel found this argument to be without merit.

In support of their 30-second timeline, the employer and the defendant driver relied on:

• The defendant driver’s deposition testimony stating that he called dispatch “immediately” after hitting the cow;
• The defendant driver’s cell phone records, showing he called dispatch at 6:11am;
• The Carnet and 911 records indicating that the plaintiff’s car alerted that service at 6:11:30am; and
• The crew truck driver’s testimony that he thought the two trucks were only 15 to 30 seconds ahead of him.

Judge Barnes also found that the driver’s statement that he called dispatch immediately after hitting the cow was undermined by his testimony that he first had to process the situation and come to the conclusion that he might have hit the animal. Moreover, when read in context, his testimony that he called dispatch immediately could have referred to the fact that he didn’t wait until he reached the Dairy Queen to contact his employer’s office. Finally, although the crew truck driver initially testified that he believed the dump trucks were traveling approximately 10 to 15 seconds ahead of him, he eventually admitted that he had no idea how far ahead of him the employer dump trucks were, in either time or distance. His testimony also established that he was driving approximately 10 miles per hour slower than the driver and that although the road was flat and the area was dark, the crew truck driver could no longer see the taillights of the dump trucks in front of him at the time he saw the plaintiff’s car sliding across the highway. As such, the Court agreed with the plaintiff that the evidence in question only undisputedly establishes at what time the driver contacted dispatch and at what time the plaintiff’s accident caused her car to contact CarNet.

The Court of Appeals found that the trial court erred in granting summary judgment in favor of the employer and the driver. The trial court’s order was reversed. Wilson v. Allied Paving Contractors, Inc., 2024 Ga. App. LEXIS 249, 2024 WL 3081614 (Ga. App. June 21, 2024).

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