Liability and overweight towing (split from Towing 13' Scamp...)

[Bob Miller]

Admin note: This thread created from Towing 13' Scamp with 4-Cyl RAV4.

Quote Rogerdat: "On the legal question I would also think that having the dealer install "proper" equipment for towing your trailer should all but eliminate legal concerns. If the dealer installs it knowing what it's going to tow how would you be towing beyond rated capacity?"
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Toyota (and all other vehicle manufacturers) specifically prohibit it's dealers from modifying printed specifications for it's products. In short, if they do, they are on their own.

That said, in order to transfer legal obligations to the dealer for such modifications, a customer would have to get a written statement from the modifying dealer stating the scope of the modifications and the exact use for which they were made. Otherwise, it's still on the owner..... and no U.S. dealer would be fool enough to do that.

[Francesca Knowles]

Ya know...I think it's time to lay the "you're legally doomed if your trailer's overweight" thing to rest.

I've seen/heard that said at least eleventy bazillion times, both here and at other sites. I probably even said so myself a time or two, given that I, too, once believed it to be true.

But guess what?

Search high and low though I have, I've been unable to turn up even one instance where some poor doofus towing way over the "manufacturer's limit" has EVER suffered any legal consequences directly related to that fact. It just doesn't happen. One can be found at fault in an accident for a whole lot of reasons, but I guarantee all that no such finding will be made based solely (or even partly) on the fact that one vehicle involved was towing "over the weight limit allowed by the mfr.".

The only direct financial consequence of exceeding mfr.'s recommendations is of course the potential effect on vehicle warranty coverage. Now, that is a real threat worthy of consideration, and for owners of vehicles still within warranty periods, very important to consider.

[Bob Miller]

Sorry Francesca, I can't agree and here's several reasons why:

1. Laws prohibiting "Operation of a vehicle outside of it's manufacturers designed limits on a public highway" is usually listed in most states vehicle code.

2. Doing same, in tort law, has implied liabilities.

3. In a recent case in Pasadena, CA, a truck driver was tried and sent to jail for operation of a truck where an overloaded condition (for the road in this case) was cited as the cause of an accident that led to a fatality.

In any case of a situation where a vehicle couldn't "quite" stop in time to avoid an accident, even a 2nd year law student would seize that precedent as cause for action.

4. In most cases the point is raised when a newbie is asking about towing. Perhaps it's not the best advise to tell them to ignore manufacturers limits without some reference to possible repercussions.

5. If you did a search in Lexis/Nexis (the lawyers case research resource) I am sure you will find a number of cites. In any numbers of lawyers opinion; "If you didn't search Lexis/Nexis, you haven't done a search"

6. And beyond that, while few out of spec caused accidents may rise to the level of a court case, it's useful to know that it is a possibility, and that may give second thoughts to what is a bad idea.

[Francesca Knowles]

Name me one case where anyone was found legally negligent/liable for damages for "exceeding mfr. recommended tow limit", and I'll eat not only my words, but also my hat, your hat, and the hat of the horse you rode in on, Bob.

It just doesn't happen.

That's not to say it's wise to ignore mfr. numbers/limits. There are plenty of valid reasons to take those most seriously. But fears of such dire "legal consequences" as those you refer to so darkly are not among those reasons.

[Glenn Baglo]

And, outside of Prince George, BC, a few years ago, RCMP were cracking down on overweight campers ( mostly truck campers on inadequate trucks ).
Stopped them, inspected, weighed and then impounded them and issued tickets. Police anywhere any time may decide to run an enforcement program. Your risk.

[Francesca Knowles]

Originally Posted by Glenn Baglo

And, outside of Prince George, BC, a few years ago, RCMP were cracking down on overweight campers ( mostly truck campers on inadequate trucks ).
Stopped them, inspected, weighed and then impounded them and issued tickets. Police anywhere any time may decide to run an enforcement program. Your risk.

I'm talking about the Bob's Litigious U.S.A., but since you bring Canada up too, Glenn:

I've heard/seen the "pickups gettin' busted for overweight in B.C." stories, too. Not the same thing we're talking about here- Canadian "sweeps" as I understand them have to do with exceeding combined axle limits of the pickup truck under the camper.

Nothing to do with anything being towed. Trailers and tugs are each evaluated according to axle (gross weight) individually. See this B.C. Gov. link

[RogerDat]

Originally Posted by Bob Miller

Quote Rogerdat: "On the legal question I would also think that having the dealer install "proper" equipment for towing your trailer should all but eliminate legal concerns. If the dealer installs it knowing what it's going to tow how would you be towing beyond rated capacity?"
--------------------------------------------------------------
Toyota (and all other vehicle manufacturers) specifically prohibit it's dealers from modifying printed specifications for it's products. In short, if they do, they are on their own.

That said, in order to transfer legal obligations to the dealer for such modifications, a customer would have to get a written statement from the modifying dealer stating the scope of the modifications and the exact use for which they were made. Otherwise, it's still on the owner..... and no U.S. dealer would be fool enough to do that.

I would think it is safe bet that the dealer would not make modifications that "exceed the vehicle manufacturers limits" in the first place.

Thus one can safely assume if dealer modifies the vehicle it will conform to manufactures specifications for towing modification.

The dealers service department professional opinion is better than our speculations on what is within limits.

Followed by opinions on how well it works of those with experience directly related to the specific situation.

[Carol H]

Originally Posted by Glenn Baglo

And, outside of Prince George, BC, a few years ago, RCMP were cracking down on overweight campers ( mostly truck campers on inadequate trucks ).
Stopped them, inspected, weighed and then impounded them and issued tickets. Police anywhere any time may decide to run an enforcement program. Your risk.

Yup they do it on Vancouver Island as well as outside of Kelowna BC every summer!

Its important to remember when this discussion comes up that although some one can have an accident and not be charged with anything that was illegal the civil courts are a whole different matter. An actual law does not need to have been broken for someone to find themselves paying out large amounts in a civil case where the majority of injury and death cases caused by accidents end up. Find yourself a lawyer who has access to searching civil cases for you from there pay for service .... pretty sure they will be able to dig up some pretty interesting reading.

[Bob Miller]

What Carols excellent post is further supported by is "Tort Law".

Basically, if you do something wrong, even thought it does not exist in law, you can be held liable for that action.
This link offers a simple explanation, paragraph 2 outlines the three criteria needed to meet the test.

Tort Law legal definition of Tort Law. Tort Law synonyms by the Free Online Law Dictionary.

[Carol H]

Originally Posted by Francesca Knowles

I'm talking about the Bob's Litigious U.S.A., but since you bring Canada up too, Glenn:

I've heard/seen the "pickups gettin' busted for overweight in B.C." stories, too. Not the same thing we're talking about here- Canadian "sweeps" as I understand them have to do with exceeding combined axle limits of the pickup truck under the camper.

Nothing to do with anything being towed. Trailers and tugs are each evaluated according to axle (gross weight) individually. See this B.C. Gov. link

While you are in part correct Francesca they are actually putting a lot of focus on people pulling trailers or boats in combo with a camper on the rear of the truck. There are also targeting smallish SUV's loaded down with family and gear and pulling trailers or boats as many of the those although pulling something within their towing capacity are also over their Gross Vehicle Weight Rating.

Having said that I have been in such stops and so have other family members and for what it is worth they have been known to ask to see the vehicles manual for its towing spec rating.

Also in BC we have one insurance company called ICBC that we all have to buy our basic insurance coverage for the vehicle and the trailer and funny enough they have a PDF on towing that you can read located at ICBC.com ICBC Trailer-full PDF. pay particular attention to page 7 on the left you will see a FAST FACT box with reads "Exceeding the load capacity, GVWR or towing capacity is unsafe and may void any warranty on the vehicle. Motor Vehicle Act Regulations prohibit the operation of vehicles that are unsafely or improperly loaded, or that exceed weight ratings."

On the same page it also reads:

"Towing and weight capacity
You need to know the truck’s: • towing capacity rating,
• GVWR, and
• load capacity.
These are usually listed in the owner’s manual and on a plate or decal on the vehicle.
Make sure that the truck’s towing capacity, GVWR and load capacity are rated for the load to be carried and the trailer you want to tow."

As ICBC is ultimately the folks who will pay for any damages done as a result of an accident found to be caused by towing over a vehicles capacity after reading the above do you honestly think you might not have a problem with them paying out if your towing something over the vehicles tow rating .... lots of folks will tell you that ICBC isn't known for it generosity when it comes to paying claims on behalf of its customers.

[RogerDat]

Dealing specifically with the question that started this discussion towing a scamp 13 with a Rav4 using dealer installed equipment that dealer service manager states is suitable to allow that Rav4 to tow that 13 foot scamp.

Reading through the definition of Tort law provided by Bob some things jump out at me. Not one of which would be satisfied by going to the dealer and having them install towing equipment they sell as suitable to the trailer and vehicle they also sell.

...these objectives are served when tort liability is imposed on tortfeasors for intentional wrongdoing, Negligence, and ultrahazardous activities.

Towing with equipment supplied by manufacturer is certainly not negligence, nor could a reasonable person consider it ultrahazardous.

Courts analyze this issue by determining whether the plaintiff's injury would have occurred "but for" the defendant's conduct. If an injury would have occurred independent of the defendant's conduct, cause in fact has not been established, and no tort has been committed. When multiple factors have led to a particular injury, the plaintiff must demonstrate that the tortfeasor's action played a substantial role in causing the injury.

Again if we are talking about the tow capacity, if the dealer installed it for you "your action" of using said equipment would fail to play a substantial role. If you had not run into them might be considered germane but the tow set up would not.

If a given risk could not have been reasonably anticipated, proximate cause has not been established, and liability will not be imposed.

This is the icing on the cake. How could a person reasonably anticipate that the dealer installed equipment to tow a trailer of a weight and size known to the dealer would be a "risk" that should have been anticipated.

One can be sued or sue others for anything. However winning in court is unlikely given an informed professional installation by the dealer of the tow vehicle.

Let us just suppose the defense puts on the stand the professional service manager with training and experience for his opinion of how safe the tow set up was. The plaintiff put one of us on the stand to refute them. See the difference? Pretty sure the judge or jury would.

Actually if the tow hitch and normally loaded trailer was in any way the cause of an accident the plaintiff would more likely be the Rav4 owner the dealership would be the defendant.

[RogerDat]

Bob was that truck driver you referenced earlier Marcos Barbosa Costa? Having trouble locating story of overloaded truck fatality you were referring to.

[Carol H]

Originally Posted by RogerDat

This is the icing on the cake. How could a person reasonably anticipate that the dealer installed equipment to tow a trailer of a weight and size known to the dealer would be a "risk" that should have been anticipated.

One can be sued or sue others for anything. However winning in court is unlikely given an informed professional installation by the dealer of the tow vehicle.

Let us just suppose the defense puts on the stand the professional service manager with training and experience for his opinion of how safe the tow set up was. The plaintiff put one of us on the stand to refute them. See the difference? Pretty sure the judge or jury would.

Actually if the tow hitch and normally loaded trailer was in any way the cause of an accident the plaintiff would more likely be the Rav4 owner the dealership would be the defendant.

I suspect your correct but then again perhaps not. A great deal depends on what the dealer was told the weight of the trailer the owner was planning to tow actually was and what their actual response as to what the tow vehicles towing capacity was with the equipment they installed .... thats the part of the story that I am not sure we have totally heard in regards to the original post.

[Steve L.]

If I have a fender-bender with someone that I suspect is towing over the limit I will point it out to the police as to why I believe they were not able to control their rig and avoid the accident. Even if they had the right of way, they are not entitled to hit me. For example, I can't just mow over a jaywalker just because they didn't cross where indicated. I have to make a good faith effort to avoid them. Towing outside of published maximums would likely cause the liability to be assigned to them. But as always I assume that it depends on the jury/judge.

I'll look again but I've searched before and found law firms specializing in suing dealerships or modders who promote overloaded vehicles. I found one RV dealership held accountable for assuring the plaintiffs that their tow vehicle could handle some monstrosity of a trailer that he was selling.

My recollection is that the dealer settled out of court. In the out-of-court settlement there were 3rd party deaths from the out of control overloaded rig striking them and the defendant was the RV dealership. If an RV dealership weren’t involved, say the owner was towing with some newer, lower rated tow vehicle, I would expect the lawyers to come after the driver of the rig in question.

I can't find results of actual lawsuits (I'm not clear that trial results are to be found on publically accessable sites) but I wonder if they aren't successful often enough because there are lawyers who specialize in it.

[Bob Miller]

Originally Posted by RogerDat

Bob was that truck driver you referenced earlier Marcos Barbosa Costa? Having trouble locating story of overloaded truck fatality you were referring to.

yes, that is the case.

While some reports lead with "Brake Failure" as being the cause, had it been a case of mechanical failure the driver would, most likely, not have been tried for the death of the child and gotten sent to jail.

More correct reports indicated the cause to be "Failure of the brakes to stop the vehicle", this being due to it being overweight for the road on which it was being operated.

It seems reasonable to extend civil and/or criminal liability for operating a vehicle overweight on a particular road, to that of operating an overweight vehicle on any road, when that condition leads to an accident.

Again, even if criminal law did not transfer, tort law would in place.

[Bob Miller]

Originally Posted by Bob Miller

Admin note: This thread created from Towing 13' Scamp with 4-Cyl RAV4.

Quote Rogerdat: "On the legal question I would also think that having the dealer install "proper" equipment for towing your trailer should all but eliminate legal concerns. If the dealer installs it knowing what it's going to tow how would you be towing beyond rated capacity?"
--------------------------------------------------------------
Toyota (and all other vehicle manufacturers) specifically prohibit it's dealers from modifying printed specifications for it's products. In short, if they do, they are on their own.

That said, in order to transfer legal obligations to the dealer for such modifications, a customer would have to get a written statement from the modifying dealer stating the scope of the modifications and the exact use for which they were made. Otherwise, it's still on the owner..... and no U.S. dealer would be fool enough to do that.

My comment about the dealerships liability was based on a suggestion in an earlier post that the dealer service manager had given the OP an Okey-Dokey to towing without knowing the exact weight of what was being towed etc.

Certainly if a dealer installed factory approved/provided parts there would be no question about liability... as long as the information about the capacity of those modifications was correctly given to the customer.

Last year, I took my new-to-me 2003 Blazer into a long established Chevy dealer to have the 5 sp oil changed. When I asked, they told me that they would be putting in standard transmission 90w oil. That particular transmission requires a special GM lube and 90w is well known to lead to early synchronizer ring failure. He then, incorrectly again, guessed that it took ATF. So much for the experts at the dealership.

[steve dunham]

Many things in life are "LEGAL" but that does not make them ethical , correct or meeting the test of common sense .

[RogerDat]

While I am skeptical of getting the full story in news reports what I gleaned from reading on the 2009 fatal truck crash on Angels Crest highway and court case against Marcos Costa did not seem relevant to the questions about using a WD hitch, or being at 8% tongue weight vs. 10%. Or being at or over the tow capacity in general.

There are differences of opinion in towing on how much is too much, or how much can be compensated for by additional equipment. This incident has been cited to support the idea of criminal liability if "you do it wrong".

Truck Driver Sentenced to Prison for Deadly Runaway Big-Rig Crash | Fox News


What I think this driver did wrong that landed him in jail are the following.

1. A post-crash inspection revealed that five of the 10 truck brakes either weren't working or not adjusted correctly. The five working brakes showed signs of overheating or cracking on the pads
2. He continued to make the 1 1/2-mile descent even though his brakes began to smoke. Prosecutors say Costa poured water on them instead of waiting for them to cool.
3. Prosecutors said Costa ignored a warning by an off-duty firefighter that Angeles Crest Highway was too dangerous for the big-rig and he should turn around.
4. Costa testified during the trial that after losing the brakes: "I was desperate. I was in a panic. I didn't know what to do."

Half of your brakes being non-functional is negligence, having half your brakes smoking and half not (clue those not smoking are not working), stopping, pouring water on the smoking ones and continuing down the steep grade is reckless disregard for the safety of others.

A professional truck driver has a legal and moral responsibility to "know what to do" if brakes fail and how to avoid that situation by using low gear. Having been warned elevates these factors but even without the warning they rose to the level required for a manslaughter conviction.

I also note that the truck was not "overweight" and road was not posted for banning trucks of that size. The ban on 5 axle trucks was implemented after the accident. Possibly because the defense raised the point that the truck was legal on that road yet the road lacked runaway truck ramps.

For those who don't know - runaway truck ramp is an off ramp that angles up hill and has the road bed filled with pea gravel that dead ends in a pea gravel berm. Vehicle that loses brakes takes the ramp, loses speed on the uphill, then gets stuck in the pea gravel or hits the loose gravel berm and stops. Or tips over which also stops it.

Others on reading up on the incident may reach a different conclusion on it's relevance to towing FGRV questions where it has come up than I did. Fair enough, read and decide how you weigh the information for the decisions you are trying to make.

[Francesca Knowles]

Good points there, Roger...otherwise, this thread seems full of lots of same ol'-same ol' "Looming Litigation" stuff.

Still nothing whatever to support the notion that mfr. tow "weight limits" are anything but performance-related. Next some will be telling us that since there's a specific tire size/type on a vehicle placard, one will get one's pants sued off if using anything but an exact duplicate of that tire. And Heaven forbid one should get caught using-gasp- a different fuel octane than the mfr. dictates!

I really can't think of any way to improve on what I said earlier so I guess I'll just repeat it. This especially since the request-for-proofs contained therein remains unmet:

QUOTE=Francesca Knowles

Name me one case where anyone was found legally negligent/liable for damages for "exceeding mfr. recommended tow limit", and I'll eat not only my words, but also my hat, your hat, and the hat of the horse you rode in on, Bob.

It just doesn't happen.

That's not to say it's wise to ignore mfr. numbers/limits. There are plenty of valid reasons to take those most seriously. But fears of such dire "legal consequences" as those you refer to so darkly are not among those reasons.

[David Tilston]

My final analysis of the data presented. Those fear mongers out there that tell you that, "If you over load your trailer, then for sure you are going to jail" are wrong.

The expectation of some stupidity is built into our system. Perfection is not required. We punish reckless disregard for the safety of others, not exceeding the published specs by a small percentage.

Not that this will change the fear mongers.