Truck’s caution sign not a complete shield from liability

Dear Jim: I live in an area where there’s lots of construction activity and I’m always behind trucks carrying rocks and gravel with signs saying “Stay back — not responsible for broken windshields.” Do these signs really work? If so, can I put a sign on the back of my car saying “Stay back — not responsible for accidents I cause?”

-Puzzled,

Black Forest, Colorado

The real answer to your question: Using the legal system to fight over the cost of a windshield isn’t worth the time or money it would take (although, if it’s the front of your new Porsche Turbo that gets sprayed with rocks, the story might be different). However, here’s a slightly more scholarly analysis of the issues you present.

To begin, when there’s a gravel truck in front of you and a rock slams into your windshield, the owner and driver of the truck could be liable to you if a duty of care has been violated. That duty of care could come from the general law of negligence, which requires reasonable conduct under the circumstances, or it could come from a statute. Under the general law of negligence, you might be able to argue that it’s unreasonable for a truck carrying gravel to speed, since speeding stirs up the gravel and throws it out the back.

On the statutory front, the Colorado Legislature has passed a law requiring trucks carrying gravel or rock 1 inch in diameter or smaller to have a cover. Therefore, if there’s no cover on the truck, or the cover isn’t working properly, you could claim a violation of a duty of care derived from this statute.

But that’s not the end of the matter. You now have to worry about defenses to your claim. One of those defenses is your own negligence. If your negligence is equal to or greater than the negligence of the owner or operator of the truck, you can’t recover. If you’re somewhat negligent but the negligence of the owner or operator of the truck is greater than your negligence, your recovery will be reduced by the percentage of your own fault.

The owner/operator of the truck will argue that you were following too closely and got what you deserved. That’s where the sign on the truck comes into play. “Judge, we told her to stay back and she paid no attention. She’s the one who was negligent, not us.”

A related defense goes by the name “assumption of risk.” Under this legal doctrine, you can’t successfully sue someone if you knowingly and unreasonably expose yourself to a risk of injury of the very kind you suffer. Again, the sign comes into play. “Judge, she knew there was a risk of damage to her windshield if she didn’t stay back, and she didn’t stay back. So, she assumed the risk.”

The sign, therefore, isn’t a complete shield from liability, but it helps to create defenses to a claim. (Driving schools, with their “Caution — student driver” signs, take a similar approach.)

As for your car, you might improve your odds in court if you had a sign saying: “Stay back — horrible, unpredictable driver at the wheel.” But a sign merely denying liability for accidents you cause won’t do you any good.

Jim Flynn is a local attorney. Contact him c/o The Gazette, P.O. Box 1779, Colorado Springs 80901; fax 578-8836 or e-mail jtflynn325@hotmail.com. Not all questions can be answered.