This piece arose out of a conversation amongst TMCEC attorneys, Ben Gibbs researched the issue. This is what he found.
“If I stay back 201 feet, are you responsible for my broken windshield?”
There are signs on the backs of almost every truck that say something very much like “Stay back 200 feet! Not responsible for broken windshields!” What is the legal effect of those signs? This is actually two questions, although the answers can be boiled down to a pretty imprecise, “Not much.”
Criminally, a person (or the person’s agent or employee) may not transport loose material in a vehicle, without first securing the loose material to prevent it escaping by blowing or spilling. Tex. Transp. Code §§ 725.003, 725.021. A violation of this requirement is a misdemeanor punishable by a fine of $25-$500. There is no defense provided if the operator of the vehicle warns the vehicles behind or otherwise disclaims liability.
There is a related provision in the transportation code requiring a red flag or cloth not less than 12 inches square or a strobe light be displayed on a vehicle transporting poles, piling, or timber from the point of origin of the timber to the processing mill. Tex. Transp. Code §§ 622.041, 622.042. However, the strictures of this statute are not met by a sign, and display of the flag does not waive criminal liability if loose materials are not properly secured.
Criminally, then, a sign as described is without legal effect if a person operates a vehicle on a highway, and debris is improperly secured, such that it blows or spills. But, what about civil liability?
There is no statute that waives liability for motor vehicles which transport material, against damage caused by the material escaping. Generally, posting a sign waiving liability does not absolve the poster from the duty of ordinary care. See, e.g., Langford v. Nevin, 117 Tex. 130, 133, 298 S.W. 536, 537 (1927); McAshan v. Cavitt, 149 Tex. 147, 149, 229 S.W.2d 1016, 1017 (1950).
Section 725.021 imposes a duty, which, when breached, may be alleged as a cause of harm in a negligence action. See, Noblin v. EE Ranches, Inc., 296 S.W.3d 773, 777 (Tex. App.—El Paso 2009, no pet.). It is not, however, conclusive of a breach of duty, nor that any such breach was the proximate cause of harm. Block v. Mora, 314 S.W.3d 440, 446 (Tex. App.—Amarillo 2009). Those elements must be pled and proved separately.
Without delving too deeply into the civil aspect (there are additional arguments, beyond the scope of this article), the brief answer is likely the same as the criminal one.
One thought on “Not Responsible for Broken Windshields!”
Dang. So wearing a t-shirts that says âWarning, I bite when annoyedâ is not an affirmative defense?
The time is always right to do what is right. âMLK
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