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Clearance Cases

By Mary Louise Kandyba

This article was originally published in the American Bar Association's Fall 2012 Commercial Transportation Litigation Committee Newsletter.

Whether you are representing a trucking company whose driver has peeled off the top of a trailer while traversing a viaduct, or its insurance carrier, or the railroad entity which owns the overhead structure which may itself have been damaged as a result of having been struck by the vehicle, the question of who can be liable for injuries and damages in this not uncommon factual scenario is one we are all likely to face as commercial transportation litigators. While the answer may be peculiar to the law of the state where the incident occurred, there are some general principles which apply. As a rule, when faced with this factual scenario, you should ask the following questions.

1. Is there a statute that is relevant?

Many states have statutes that are relevant to an assessment of liability. For example, Ohio Revised Code § 5577.05 limits the size of vehicles that may be operated upon public highways in the state. Is the vehicle involved in your occurrence in compliance? If not, this could impact the liability of the trucking company. The same statutory provision specifically provides that neither a governmental entity nor a railroad is required to provide sufficient vertical clearance to accommodate vehicles of a size authorized by the Code, or to make any changes in existing structures to accommodate such vehicles. This statutory provision would seem to limit any action against the railroad or the highway authority, and focus attention on the responsibility of the driver of the commercial vehicle to ascertain that the viaduct is of sufficient height for the vehicle to clear before attempting to drive through it.

As another example, Illinois Administrative Code § 1535.606 provides that where the viaduct exists in order to permit a railroad to cross a highway overhead, clearance signs for all structures less than 14”6’ must be posted and maintained by the public authority having responsibility for maintaining signs on the highway. Under this provision, the truck driver is entitled to assume that the viaduct is at least 14”6’ high unless otherwise posted. Moreover, it is the public highway authority rather than the railroad which specifically has the duty to determine the clearance. This is true regardless of who actually owns the viaduct in question. The justification for this provision, as established in several cases interpreting this rule, is that clearances often change when roads are paved over. Therefore, the duty to post the clearance of the structure is appropriately placed on the highway authority having responsibility for the roadway underneath the structure. The only duty of the railroad under Illinois law is to notify the public authority if there are changes in the overhead structure itself that affect the clearance for vehicles.

In Michigan, there is a statute which states that the owner of a vehicle that collides with a lawfully established viaduct is liable for all damages and injuries resulting from the collision if the collision is caused by the vehicle being higher than permitted by state law. The statute provides for owner liability regardless of whether or not the clearance of the viaduct is posted. M.C.L.A. § 257.719. This statute has been held to create strict liability for the vehicle driver. Transportation Dept. v. Christensen, 581 N.W.2d 807(1998).

Additionally, many states have sovereign immunity statutes which protect municipalities and other governmental entities from liability for failure to post warning signs. These statutes should always be investigated to determine whether or not they have relevance to the facts of your case. They may also provide protection to railroads where the structure is constructed and funded by a governmental authority, and the construction specifications are approved and authorized by that governmental authority. Because as a general rule modern railroad bridges are considered to be of no benefit to the railroad under Federal Highway Administration regulations, most structures today are constructed as a result of federal and state funding. Although ownership and future maintenance of the structure may be transferred to the railroad upon completion of the bridge, the railroad generally has no responsibility for the roadway design or clearance requirements of the structure at the time it is built, other than with respect to the necessary structural requirements to insure that the bridge is adequate to safely carry railroad traffic.

2. With or without a state statute, what does the state’s common law provide?

Prior to the adoption of comparative negligence, most cases involving collisions between commercial vehicles and highway structures, including railroad overpasses, were decided by applying the rules of contributory negligence to defeat the plaintiff’s claim whenever his or her negligence contributed to cause the incident. Thus, for example, in Kutsenkow v. Chicago & N.W.Ry.Co., 99 Ill.App.2d 265, 240 N.E.2d 805 (1968) an Illinois court held that a truck driver was guilty of contributory negligence where he failed to stop his vehicle prior to traversing a railroad viaduct to verify whether there was adequate clearance for his vehicle. The court rejected the existence of any duty on the part of the railroad to post a clearance sign, and held that absent evidence that the low clearance was somehow caused by the railroad’s failure to maintain the viaduct, the plaintiff could not recover.

In Homan v. Chicago and Northwestern Transp. Co., 314 N.W.2d 861 (1982), a South Dakota court held in favor of dismissal of an action by a truck driver against a railroad and a township for damage caused when the truck struck the underside of a bridge due to the accumulation of snow and ice on the roadway which reduced the clearance under the viaduct. The court held that the failure to remove snow and ice from a roadway did not constitute creation of a condition of disrepair by the township. The court further held that the duty to establish and maintain a minimum clearance under the viaduct belonged to the Department of Transportation rather than the railroad, and that therefore, the railroad could not be liable for damages either.

However, in Southern Ry.Co. v. Turner, 81 S.E.2d 291(1954), a Georgia wrongful death action against a railroad and a city was held to state a cause of action that could appropriately be submitted to a jury for determination. There, the decedent was standing on an open truck bed when a portion of the load that was higher than the truck itself struck a railroad viaduct, throwing the decedent from the truck and causing his death. Because the clearance was higher at one end of the viaduct than the other, the court held that there was a jury question as to whether or not the railroad and the city negligently constructed and maintained the viaduct and thereby caused the decedent’s death.

3. What facts can be developed to show that some entity violated a duty to the motor vehicle with respect to the clearance?

Because liability often turns on the facts, the liability in a clearance case will always focus on what facts can be developed to show that the clearance was less that what it should have been, or less than what it was posted at. Was the viaduct constructed at a height less than what was contemplated or authorized? Did the low clearance develop over time as a result of the paving and repaving of the roadway? Did the low clearance develop as a result of some failure to maintain the viaduct, for example, causing a beam to sag? Did the low clearance arise because of a natural accumulation of snow and ice, or perhaps, as a result of an unnatural accumulation of snow and ice as the roadway was plowed and snow was allowed to build up underneath the viaduct? Did some entity fail to post a clearance sign that it was legally obligated to post? Was the clearance sign incorrect? Did the truck driver disregard a correct clearance sign? Was the truck legally oversized for the roadway on which it was traveling?
Any and all of the above situations can exist, and will be critical to establishing a duty to protect the motorist or warn of the low clearance.

In many cases, railroads contend that the governmental entities that maintain the highway should have the duty to post clearance signs and to notify highway motorists that clearances under a viaduct have changed. This is because the original clearance of the structure changes when the road is resurfaced or otherwise modified. Railroads have successfully urged courts that the duty to recalculate the clearance should not be placed on the railroad as owner of the viaduct when the railroad has no control over changing the clearance in the first instance. Absent a showing that the railroad has the power to effect the clearance for a vehicle traveling under the structure, courts have held that it would be unduly burdensome for a railroad to have to measure the clearance for every overhead structure it owned when the bridges were put there in the first place for the convenience of the motoring public.

This argument has not, however, been without its detractors. In Illinois Cent. R. Co. v. Farris, 259 F.2d 445 (5th Cir. 1958), the federal court applied Mississippi law to hold a railroad liable for injuries sustained by a truck driver who collided with a viaduct. In so holding, the court relied on the railroad’s affirmative duty to maintain highway crossings. The court reasoned that since Mississippi allowed trucks to be 12”6’ high, the railroad should at least have the duty to warn motorists when the clearance underneath the structure the railroad itself erected was less than that amount.

On the other hand, in Allen Freight Lines v. Consolidated Rail, 595 N.E.2d 855 (1992), the Supreme Court of Ohio held that there was no duty under Ohio law on either the railroad or the municipality to expand vertical clearance under viaducts to accommodate large vehicles which were authorized to be operated on the highways by Ohio law. The court reasoned that as long as the structure met the clearance requirements in effect at the time the bridge was constructed, there was no duty to enlarge the clearance to allow for travel by vehicles that were larger than those that were operating at the time the structure was originally built.

Yet the opposite result occurred in a strikingly similar case decided by the Superior Court of Pennsylvania. In Marinelli v. Montour R. Co., 420 A.2d 603 (1980), the parents of a dump truck passenger who was killed when he struck his head on a viaduct while riding on the cab cover of the truck were permitted to pursue a wrongful death action against the railroad that owned the structure. Although the bridge had originally been constructed with an appropriate clearance, the railroad was held liable for its failure to maintain that clearance. The successful liability theory revolved around the general duty of the railroad to maintain “highway crossings” whether at grade or otherwise. In this case, the bridge was built in 1914, and the accident occurred in 1973. Unlike the Ohio case cited above, there was no statute exonerating the railroad from liability in this situation. This ruling came down despite the fact that the evidence showed that the reduced clearance was caused by the highway authority repaving the roadway underneath the viaduct rather than by any action of the railroad.

The railroad was also exposed to liability in Southern Pacific Co. v. Raish, 205 F.2d 389 (9th Cir. 1953). In this case, the plaintiff was seated in a parked car when a truck struck a metal angle brace on the overhead structure which reduced the clearance and then lost control and struck the plaintiff’s vehicle. The brace was located over the shoulder of the road, rather than the roadway, and was only encountered by the truck because of an evasive maneuver made to avoid a collision with another vehicle. Yet, the court held that the question of whether the railroad constructed the bridge with sufficient clearance for vehicle traffic was one for the jury.

4. What is the proximate cause of the collision?

Because proximate cause is an essential element of any negligence action, the commercial transportation practitioner should always ask what the proximate cause of the collision was. In many cases, the answer will be found in the negligence of the truck driver, who failed to heed a clearance sign, or failed to inspect an unmarked viaduct to insure that the vehicle could safely pass under the structure. If the truck driver’s own conduct was the sole proximate cause of the collision, there can be no liability on any other entity for damage to the vehicle or injury to the driver.

In Kutsenkow v. Chicago & N.W.Ry.Co., 240 N.E.2d 805(1968), the truck driver testified that he was “kind of doubtful” about whether his vehicle would fit underneath the structure, but proceeded to attempt it in any event. The court held that under those facts, the railroad could not be liable, because it had no duty under Illinois law to post clearance signs and was not responsible for the maintenance of the roadway underneath the structure itself.

The proximate cause argument in a viaduct clearance case was also addressed in Hicks v. Home Centers, Inc., 1992 WL 31998 (Ohio App.9 Dist. 1992). There, a truck occupied by an entire family was being driven under a railroad viaduct when it struck the underside of the bridge and the windshield popped out. Two family members, both minors, were thrown from the truck. One died and another was severely injured. Another passenger, not ejected, was also injured. In holding that the placement and design of the clearance signs was not the proximate cause of the accident, the court relied on the “but for” requirement. Because the driver of the truck did not know the height of the truck, the court found that even if clearance warning signs had been posted, the accident would have occurred, and therefore the absence of signs could not, as a matter of law, have been the proximate cause of the collision.

Conclusion

State law governs clearance cases. While no hard and fast rules apply throughout all the states, it is clearly difficult to show that some entity other than the truck driver was at fault for a viaduct collision. Unless there is a defect in the viaduct that reduces the clearance below what it was posted to be, either because the viaduct is in a state of disrepair or because it was constructed with a clearance less than what was authorized in the first instance, most of these fact situations have been held to create no duty on the part of the owner of the viaduct or the entity maintaining the roadway. As a result, neither the railroad owning the viaduct nor the governmental body responsible for maintaining the roadway underneath the viaduct are likely to be found liable in the absence of a state statute creating a duty to protect the motor vehicle driver.

For further information about clearance cases, contact Mary Louise Kandyba at mlkandyba@daleymohan.com.

This article was originally published in the American Bar Association's Fall 2012 Commercial Transportation Litigation Committee Newsletter.

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