Smoke on the Highways

Smoke obscuring visibility on Florida roads has been a life-threatening problem for decades. This has become all the more dangerous on I-10, I-75 and I-95 and other high speed limited access highways and becomes worse at night and in the cooler Florida months when low-lying fog is so common.
Multiple Causes. Although forest and brush fires do occur through natural causes, especially in a state like Florida with the most lightning strikes, they have other causes. At times, intentional wrongdoing, arson, causes fires and, at other times, it is carelessness, for example, by negligence in burning trash or other fire-related activities by campers or homeowners. Faulty equipment or carelessness with equipment in construction, logging, railroad and other work situations can cause these fires, as can traffic accidents themselves. Then, there are prescribed or “controlled” burns that relate to the management of Florida’s forests and other acreage. Just this week Florida’s Commissioner of Agriculture noted that there has been a significant reduction in prescribed burns this year due to drought conditions. The Florida Forest Service previously announced a plan for addressing continued use of prescribed burns while balancing against Florida’s growth and urbanization. Those who use such fires must take great care to do it right.
Accountability. For victims of crashes that result from smoke that causes reduced or near zero visibility, those who suffer personal injury and the families of those who suffer death in such tragic accidents, the rules naturally vary with the facts and circumstances. The desire to determine fault and impose accountability on wrongdoers is natural, so much so that it is enshrined in the Florida Constitution as a basic right: “SECTION 21. Access to courts — the courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.”
Drivers’ Actions. Regardless of who, or whether anyone, can be faulted for the existence of smoke on a highway, the conduct of the drivers involved in these wrecks will become the subject of inquiry. This will bring into play the obligation of vehicle operators, whether passenger vehicles or tractor-trailer rigs, buses or heavy equipment, to drive with reasonable care under the circumstances. That is, of course, complicated by these questions: What is the safe thing to do in a cloud of smoke? Was there a safe way to pull off the highway? How could the drivers even know where such a safe place was? Then there is an obligation to drive at a speed commensurate with the conditions, but a driver may well be reasonably concerned about slowing and being hit from behind by vehicles that fail to slow down, or slow down sufficiently to reduce the impact in any collision. These are all considerations that investigators must evaluate, and, unfortunately, in the worst of these accidents those who were driving and those who were passengers may have died or been hurt too badly to help reconstruct the accident.
Drivers’ Pre-Accident Condition. Another factor always investigated is the pre-accident condition of the drivers themselves. This will involve whether any drivers involved were impaired as a result of alcohol or drugs, or were distracted by cell phones or other devices. Especially with professional drivers, pre-accident condition will involve the question of the operator’s previous driving record, and, if that record is poor, whether the trucking company was or should have been aware of that driving record, and whether the company took reasonable precautions to protect the public from such drivers. Training and supervision and licensing are investigated. Also, questions of the number of hours worked by truck drivers and the accuracy of driving logs will be subject to inquiry. There are strict rules that govern both trucking companies and their drivers: rules that have safety and saving lives as goals and the need for drivers to be alert and capable of exercising good judgment when operating such massive vehicles.
Smoke on the Highway. Who has responsibility for the presence of smoke on a highway? Lightning provides its own answer when it is the initial cause. However, there are times and circumstances when carelessness in working with fire, or failure to take precautions as to when and under what weather and wind conditions to set “controlled” burns, can add up to negligence and bring liability. After all, without the smoke, the accident likely would not have occurred. In a case of a controlled burn alleged to have caused a tractor-trailer to crash into a small car killing people, the appeals court for the North Florida area held the company responsible for the fire that put smoke on the highway at 9:30 at night was held potentially liable for losses even by the truck driver who himself was uninjured but lost his job after the accident. Waters v. ITT-Rayonier, Inc., 493 So.2d 67 (Fla. 1st DCA 1986). Negligence in fire fighting, especially when that work is done by government, raises questions of whether sovereign immunity has been waived by statute and whether there are any exceptions to that waiver that might defeat the ability to assess liability against the government. That issue has been addressed elsewhere. Myers v. McGrady, 628 S.E.2d 761 (N.C. 2006) (multi-vehicle collision at night in smoke and fog on I-95).
Vehicles on a Smoky Highway. Another issue arises and is addressed in part by a just released Florida Department of Law Enforcement report that analyzes the role of the Florida Highway Patrol in the closing of I-75 due to smoke from a fire on Paynes Prairie near Gainesville in January 2012 and then reopening I-75 with subsequent major collisions with many deaths and injuries. Document–FDLE-I-75-Incident-Review While much investigation is yet to be done, the report points to factual issues that open the question of potential liability by the State of Florida. The State has, by statute, waived its sovereign immunity for liability for its negligence, but that waiver is subject to rules that give leeway to state entities in taking actions in dealing with a variety of issues including public safety. There will be questions, naturally, about whether there was negligence in deciding to reopen the interstate highway to traffic on the night of the tragic accident, but there will also be questions about whether there were warnings about the potential for the smoke resettling on the highway and blinding drivers, and, if so, whether the warnings were sufficient, and whether FHP patrol cars should, for example, have been posted at, in or near the potential danger zone to better give warning to and control the vehicles traveling on the reopened interstate. The FHP, Florida Forest Service and the Florida Department of Transportation have adopted a uniform set of warning signs to be used for smoke on the roadways including signs to be used in connection with prescribed burns. The State’s waiver of sovereign immunity also contains limitations on the amount that can be recovered for wrongful death and serious injuries, although recoveries above the caps can be made through the process of legislative claims bills. Section 768.28, Florida Statutes.
Conclusion. The issue of smoke on the highways of Florida will remain with us. The dangers are all too real and the accidents are tragic. The first line of defense is taking careful steps to prevent fires from starting in the first place or, if prescribed or controlled burns are used in the management of forests and underbrush, taking all reasonable steps to protect the public from the danger of smoke on the highways. This is not a subject for shortcuts. Lives are at stake, so planning, training and dedication by those responsible is essential.
Wayne Hogan is a Florida and National board certified trial lawyer and president of the TERRELL • HOGAN personal injury and wrongful death law firm.


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About The Author

Wayne Hogan

Wayne Hogan

Wayne Hogan, a Jacksonville native, has been with the firm since 1977. He graduated from Florida State University, where he received both his bachelor’s and J.D. degrees. He specializes in all areas of personal injury law. In addition to participating in many professional associations, he and his wife, Pat, are also actively involved in the community.