The National Weather Service is
predicting higher than average precipitation this winter for the entire northern tier of the continental U.S. If that prediction is correct, there will be more snowplows than usual this winter season on the 115,000 miles of roads in Wisconsin.
Snowplows exist for the sole purpose of making the roads safer for travel. But for several reasons, driving in their vicinity presents a risk of hazards far greater than those inherent in typical everyday driving. Their sheer size, front plow, wing blade that can extend up to 10 feet beyond the width of the truck, and their heavy weight (12 to 25 times more than the average car) present dangers that do not exist in ordinary motor vehicle crashes. Additionally, they are often operating during poor weather conditions and snowplow operators are focused on clearing the road.
This combination of factors contributes to hundreds of crashes every year in Wisconsin. While snowplow accidents can happen in several different ways,
the Wisconsin Department of Transportation (WisDOT) reports that most of them occur when snowplows are rear ended or when another vehicle is passing a snowplow.
Consequently, the Wisconsin statutes specifically address snowplow lighting, following snowplows, and passing snowplows.
Litigating snowplow accident cases requires an understanding of these statutes and how they apply to the particular facts of the case.
Snowplow Lighting
Snowplows are usually equipped with some variation of warning lights. Their effectiveness in alerting other motorists can vary depending on the type used, whether they were activated and whether they were functioning properly.
Wis. Stat. section 347.26 addresses the use of warning lights on snowplows. It states:
347.26 Restrictions on certain optional lighting equipment.
(7) Warning lamps on certain highway vehicles. Any vehicle of the department or a county or municipal highway department that by reason of its use upon a highway creates a vehicular traffic hazard requiring the exercise of unusual care in approaching, overtaking, or passing may be equipped with any of the following configurations of flashing red, amber, or green lamps:
(a) A lamp of the dome-light type.
(b) Two lamps, one showing to the front and one showing to the rear. The lamps shall be mounted approximately midway between the extremities of the width of the vehicle and at the highest practicable point and shall be used only for the purpose of warning operators of other vehicles of the presence of the traffic hazard.
(c) Four lamps, 2 showing to the front and 2 showing to the rear. The lamps showing to the front shall be mounted at the same level and as widely spaced laterally as practicable. The lamps showing to the rear shall be mounted at the same level and as widely spaced laterally as practicable.
The Wisconsin Legislature surely recognized the potential danger associated with snowplows by including the words “vehicular traffic hazard” in the body of the statute. Notwithstanding, it falls short of mandating that snowplows be equipped with warning lights. The title of the statute uses the term “Restrictions” (as opposed to “Requirements”) which seems to suggest a limitation on their use. Indeed, the statute states that snowplows “may” be equipped with any of the listed lighting configurations. This language supports an argument that the use of warning lights in the first instance is optional.
It is highly improbable that any snowplows in operation today are unequipped with warning lights. As such, the discretionary language in the statute is not likely to be a litigated issue in most snowplow accident cases.
Assuming that a snowplow is equipped with any one of lamp configurations described in subsections (a)-(c) of the statute, then they must be mounted in a specific manner. These subsections use the term “shall” in stating where they are to be mounted on the snowplow and in relation to one another, which means these are mandatory specifications. Therefore, after a snowplow accident, the investigation by law enforcement should include an inspection of the lamp configuration. This may not occur, however, and attorneys need to verify by way of photographs and/or physical inspection whether the lights meet the statutory requirements. This is especially true in any case where visibility conditions and/or lookout is a potential issue in the case.
Even if the lamp configuration complies with the statute, it does not necessarily mean that they were operating correctly at the time of the accident. The attorneys’ investigation and discovery must address whether the operator activated the lights and, if so, whether they were functioning properly.
Attorneys should also decide early on whether an expert should be retained for this purpose. The configuration and operation of the snowplows warning lights are not only important in analyzing issues relating to visibility and lookout. The laws pertaining to following and passing snowplows, discussed below, apply only when a snowplow’s lamps are in use.
Following and Passing Snowplows
When a snowplow is in operation and using lamps in accordance with Wis. Stat. section 347.26(7), other motorists may not follow snowplows any closer than the distances outlined in Wis. Stat. section 346.915. The statute also confirms that it is legal to pass a snowplow, but with qualifications. The relevant portions of the statute state are as follows:
(1) In this section, “snowplow” means a vehicle that is operated by a person employed by or on behalf of an authority in charge of the maintenance of the highway to perform highway winter maintenance snow and ice removal, including plowing, salting, and sanding, during either a storm or cleanup following a storm and which is using lamps described in s. 347.26(7)
(2)
(a) The operator of any vehicle that is not a snowplow may not follow a snowplow closer than the following distances, if the snowplow is engaged in highway winter maintenance snow and ice removal, as described in sub. (1), and is using lamps described in s. 347.26(7):
1. Two hundred feet upon any highway having a posted speed limit of more than 35 miles per hour.
2. Seventy-five feet upon any highway having a posted speed limit of 35 miles per hour or less.
(b) Paragraph (a) does not apply when overtaking and passing a snowplow, but the fact that the operator of any vehicle follows the snowplow more closely than permitted by par. (a) for one mile or more or follows more closely than permitted by par. (a) when the snowplow is moving at the maximum speed limit is prima facie evidence that the operator of such following vehicle is violating par. (a).
(c) Paragraph (a) does not apply to a snowplow that is stopped or standing in the highway.
(3) The operator of any vehicle that is not a snowplow and that approaches from the rear any snowplow that is engaged in highway winter maintenance snow and ice removal, as described in sub. (1), and is using lamps described in s. 347.26(7) and that is stopped at an intersection shall stop not less than 20 feet from the snowplow and remain stopped until the snowplow resumes motion.
When a snowplow is rearended by another vehicle, a dispute about liability seems unlikely, irrespective of the statutory distance rules. A liability contest is to be expected, however, when a crash occurs while a snowplow is being passed. Logically, before overtaking and passing a snowplow, a vehicle must first be behind the snowplow and follow it for at least some distance. At some point, the overtaking/passing vehicle is necessarily going to be closer to the snowplow than the distances outlined in the statute.
The statute addresses this situation in stating that the distance restrictions of 75 and 200 feet do “not apply when overtaking and passing a snowplow.” But this exception has two limitations.
The first is when the passing vehicle was following the snowplow for a mile or more before the overtaking/passing event. The second limitation is if the snowplow was traveling at the maximum speed limit at the time of the overtaking/passing event.
Therefore, the minimum distance rules must be followed until the overtaking/passing event ensues, and then the pass must be accomplished within a one-mile distance. If that does not occur, it is prima facia evidence that the distance rules were violated. Additionally, if the snowplow is traveling at the maximum speed limit, the fact that another motorist passed it is prima facia evidence that the statute was violated, not to mention evidence of driving faster than the posted speed limit.
Accordingly, facts relating to distances, timing and speed are extremely important in evaluating whether the statute was violated and whether the statute applies in the first place. The length of the road where the accident occurred must be determined. The point at which each vehicle turned onto that road needs to be established. The speed of each vehicle at various points in time must be evaluated. The moment when the overtaking/passing event started needs to be known.
In some cases, these details can prove that it was not just unlikely but impossible for the passing vehicle to have violated the statute. In other cases, such details can establish a clear violation of the statute.
Attorneys should focus their pre-suit investigation, discovery, and trial preparation around these facts. At trial, jurors will likely be hearing this rule for the first time in their lives. Attorneys need to be mindful of that and tailor their presentation in a way that makes it easy to understand and apply to the facts.
Passing a Stopped Snowplow
Most people are probably aware of the general rule that drivers must slow down or move over when passing a police car, fire truck, or ambulance that is stopped on the side of the road. It may not be well known, however, that the exact same rule applies to passing a stopped snowplow with warning lamps operating.
Under
Wis. Stat. section 346.072, motorists in this situation are required to “proceed with due regard for all other traffic” and either move into “a lane that is not the lane nearest” to where the snowplow is stopped (on roads with more than one lane for that direction of travel); or slow down and travel at a reduced speed until completely past the snowplow (on roads with only one lane for that direction of travel).
If a motorist on a multiple lane road cannot move over without interfering with other traffic, then they are permitted to remain in the nearest lane so long as they drive at a reduced speed.
This statute can have a big impact on the liability evaluation in cases where a snowplow emerges back into the travel lanes after being stopped. Without question, snowplow operators must maintain a proper lookout and use directional signals when doing so. But motorists that are sideswiped by a snowplow in this fashion are going to face contributory negligence arguments if they do not comply with this statute. Furthermore, contributory negligence may not be their only problem, since this statue also states that any violator “shall have his or her operating privileges suspended.”
Passing a Snowplow Operating on the Left Side of the Highway
With various exceptions, the operator of any vehicle must drive on the right half of the highway, pursuant to
Wis. Stat. section 346.05. One of the exceptions applies to snowplows. Section 346.05(2) provides that “the operator of a vehicle actually engaged in constructing or maintaining the highway may operate on the left-hand side of the highway.” Snowplows qualify as vehicles engaged in maintaining the highway under Wisconsin law.
For other motorists, seeing a snowplow driving on what most people deem to be the “wrong side” of the road can be quite confusing. This scenario gives rise to the question of whether the motorist, who is in the right lane, is truly “following” the snowplow for purposes of applying the rules set forth in Wis. Stat. section 346.915. The statute is unclear about this.
Motorists involved in a crash with snowplows cannot expect to win their case with the simple argument that the snowplow was on the wrong side of the road and unexpectedly merged into their lane. They may certainly argue that they were not “following” the snowplow, as that term is used in the statute, if the snowplow was operating in the oncoming traffic lanes. Whether that argument would succeed is questionable though, so attorneys need to be prepared to argue this statute in cases involving these facts.
Stopping Behind a Stopped Snowplow
Sometimes crashes occur when a snowplow backs up and strikes a vehicle stopped behind it. It would be easy to conclude that the liability in such cases falls squarely on the snowplow operator. This is not automatically the case though, given the language of
Wis. Stat. section 346.915(3), which states:
(3) The operator of any vehicle that is not a snowplow and that approaches from the rear any snowplow that is engaged in highway winter maintenance snow and ice removal, as described in sub. (1), and is using lamps described in s. 347.26(7) and that is stopped at an intersection shall stop not less than 20 feet from the snowplow and remain stopped until the snowplow resumes motion.
This statute provides yet another example of how important it is for attorneys to have a firm grasp of the factual details relating to distances and timing. They can turn a seemingly clear negligence case into a case with a significant fight on liability.
A Final Word of Caution
Although WisDOT does not own any snowplows, it contracts with 72 county highway departments to plow all state and US-numbered highways, as well as the interstate system. This means that cases arising from snowplow accidents constitute claims against governmental bodies, requiring strict compliance with the provisions of
Wis. Stat. section 893.80. There will be no arguments about snowplow lighting, passing snowplows, or any other facts if the requirements of section 893.80 have not been met. I will leave it to another author to write about the intricacies of that statute.
Conclusion
A snowplow crash is not your ordinary motor vehicle accident case. In addition to appreciating the typical rules of the road, attorneys must also have a solid understanding of these specific statutes.
Attorneys on both sides of the case should:
- prepare written discovery and conduct depositions with these statutes in mind;
- be prepared to argue about appropriate jury instructions based on these statutes and whether certain instructions should be given at all; and
- have a plan for introducing evidence about the specific timing, speed, and distances involved so that the liability portion of closing argument can be clearly understood by the jury.
This article was originally published on the State Bar of Wisconsin’s
Litigation Section Blog. Visit the State Bar
sections or the
Litigation Section webpages to learn more about the benefits of section membership.