Truck Fire Sparks $50M Verdict

Search for documents is key in Ala. suit over a trucker's death

Margaret Cronin Fisk The National Law Journal April 24, 2000

A jury in rural Alabama has ordered Mack Trucks Inc. to pay $50 million in punitives to the family of a 33-year-oid truck driver who burned to death after a rollover accident.

The Grove Hill, Ala., jury agreed with the plaintiff's contention that Mack was responsible for the death of Tonnie Ray Witherspoon because the company had failed to install an inexpensive device that would have shut off electrical power during the rollover.

Witherspoon was carrying a load of logs in a 1993 Mack RD 600 tractor in Grove Hill in November 1995 when the 18-wheeler "ran slightly off the road" and overturned, said the plaintiff's counsel, Robert T. Cunningham Jr., of Mobile, Ala.'s Cunningham, Bound, Yance, Crowder and Brown. The truck was upside down, with Witherspoon trapped in the cab "as one side was up against an embankment and the logs blocked the other door."


A small fire started in the engine compartment. Despite efforts to put it out, it gradually progressed. For more than 10 minutes, witnesses at the scene attempted to get Witherspoon out of the truck, Cunningham added, but the driver burned to death.

His mother, Mary Witherspoon, filed a products liability and wrongful-death action against Mack Trucks, charging that arcing in the truck's electrical system had started the fire and that Mack Trucks could have prevented it by installing a cutoff device.

Witherspoon v. Mack Trucks Inc., CV-97172C (Cir. Ct., Clarke Co., Ala.).

"Numerous studies have shown that post crash fires are a leading cause of fatalities for operators of large trucks," said Cunningham. "A principal source of these fires is arcing," or an electrically induced ignition of vapors, he said. "Arcing occurs when there is damage to the battery cables," and in the Witherspoon crash, "that arcing ignited the fire."

"An inertia switch is a simple, inexpensive flx" that would cost about $2 to $3 per vehicle, he said.

In 1975, the National Highway Traffic Safety Administration (NHTSA) issued a proposed rulemaking notice asking for comments from truck and car makers about developing an inertia switch for post-crash fires, Cunningham noted. "Mack objected and said if the rule passed, they wanted to be exempt," he said.

In its formal response to NHTSA, he said, "Mack said it wouldn't work, but they never did any studies."

At trial, the plaintiff relied heavily on this and other documents in NHTSA files, he said. "We employed a researcher in Washington who went to

NHTSA to find out who else had responded to the proposal." During this search, a document was found describing an inertia switch that was in use in vehicles in Europe that would cost $3 per truck to be installed.

Mack denied that there were any defects in the truck and contended that an inertia switch was neither necessary nor required, said defense attorney Edward Bowron, of Mobile's Pierce, Ledyard, Latta & Wasden. "It's not standard in the industry," he said. "No manufacturer uses it. It's not mandated by NHTSA."

Mack did not prevent any efforts by NHTSA to require an inertia switch, he said. The initial NHTSA notice "was on proposed rulemaking for automobiles, not for trucks of this type," he said. Mack also disputed the fire source, maintaining that it was ignited when fuel spilled onto hot surfaces in the engine compartment, Bowron said.

The plaintiff rebutted this with a University of Maryland study on heavy truck safety saying that "it is almost impossible for hot surfaces to start fires," Cunningham said.

On April 12, the jury awarded the $50 million verdict. The entire judgment is in punitives because Alabama allows only the recovery of punitive damages in a wrongful-death action.

Mack will file motions to set aside the verdict. If they're denied, the company will appeal, Bowron said.

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