Release date: 8/1/2017
Work Zones And The Move Over Law (Originally published in NAFA FLEETSolutions September/October 2015)
A road crew works on pipes buried in a highway. The cones are positioned around them, and signs are prominently placed in view that read, “Traffic fines are doubled in work zones.” In another town, a police officer has pulled an individual over and stands at the side of their car. In spite of the drastically different visual cues, both of these are work zones, and both can be extremely dangerous.
Move Over laws in the United States were created in honor of Paramedic James D. Garcia, a Lexington, South Carolina first responder who was struck and injured in the line of duty on January 24, 1994. After the accident, Garcia was faulted for causing it by having been beside the road performing his duties. Other first responders took up the cause and worked to create a law that protected them and their ability to do their work.
Eventually, the first such law was passed in 1996. Move Over laws are now in force in all 50 states (except within Washington, D.C. and Puerto Rico) and in Canada, with only the Yukon and Nunavut standing as holdouts. Hawaii, the final state to adopt, instituted a Move Over law in July 2012.
Even so, many would say they have seen cars roll very close and very quickly past either a traditional work zone area or a first responder event. According to the organization the National Safety Commission, 71 percent of Americans have not heard of Move Over laws, and therefore do not know to comply with them.
Donna Setaro is the founder of the Move over AwaReness Campaign in New Jersey, and has given over 450 presentations regarding the Move Over law to over 55,000 people. “Most presentations I give are to an audience of around 300 people. On average, less than 15 percent in that audience are aware of the existence of Move Over laws.”
Many offenders are conscientious and otherwise law-abiding drivers. Setaro uses the case of Marc Castellano, a New Jersey State Trooper, as an example. He was struck and killed by a driver while outside of his vehicle, doing his work. “The young man that hit him was a West Point cadet, and the investigation revealed he was not texting or speaking on his phone, wasn’t drunk or driving under the influence in any way. He simply wasn’t paying
The driver of that vehicle could have been anyone. He could have been a fleet driver.
It is crucial that fleet managers know these laws exist, the potential for injury or death these tragedies could pose, and the financial and liability impacts they will incur when drivers are found to be in the wrong. Having an understanding and a policy regarding work zones is an integral aspect of risk management.
Circumstances and Penalties - Most people know a work zone when they see it. Often orange cones will be arranged around the area to corral oncoming traffic into a safe, isolated channel away from the work. A work zone is defined in the Manual on Uniform Traffic Control Devices (MUTCD) as “…an area of a highway with construction, maintenance, or utility work activities.”
“Work zone issues and penalties have been around considerably longer than the Move Over law,” said New York State Trooper Sergeant Collin Davis.
There will also usually be signs that indicate that fines for violations of traffic laws in these areas will be doubled if the driver is caught, although the sign is actually only a courtesy.
“If you don’t see that particular sign or it’s not out there, that doesn’t mean you don’t have to comply, or that fines won’t be doubled. That’s not considered a defense in the eyes of the law either,” said Retired New Jersey State Trooper David Maruca. He now works as Project Manager with the New Jersey Local Technical Assistance Program, via Rutgers University’s Center for Advanced Infrastructure and Transportation.
“New York’s Move Over law is a little different (from work zone laws), and when it was first passed a couple of years ago it was, quite frankly, poorly written,” said Sgt. Davis. “It only applied to what was considered authorized emergency vehicles: police, fire, and EMS were basically all that were covered.”
Eventually the rewritten version of the law added in “amber light” emergency responders and hazard vehicles including tow trucks, Department of Transportation vehicles, and other vehicles that may not typically fall under the category of law enforcement or public safety.
“New Jersey adopted our Move Over law in 2009; Title 39, Statute 4-92.2,” Maruca said. “Essentially what the law states – and what drivers need to know – is that if you have a police vehicle, ambulance, fire truck, tow truck, or any other safety vehicle on the shoulder of the roadway, you have to slow down and, if possible, move to the opposite, adjacent lane from those vehicles. If you can do that safely, you should change lanes. If you cannot, then slow down below the posted speed limit and be prepared to stop your vehicle if necessary.”
Maruca said that the first indicator to drivers to start making decisions is at the first sight of lights ahead. “When you see flashing, rotating, or alternating lights – the typical police lights, or amber lights which usually indicate service vehicles, ambulances, or tow trucks – that should alert drivers to the fact they should now apply the rules of the law. The lights should be an obvious enough indicator, long before you see the vehicles themselves.”
Davis indicated that the verbiage of the Move Over law is fairly consistent across states, but the penalties can vary. “As of right now, for a Move Over violation, if you’re issued a ticket and you’re subsequently convicted in court or plead guilty to it, it’s a three-point moving violation, and in the neighborhood of $275 in fines, plus the state surcharge.” This references a violation that does not result in an injury or fatality.
In New Jersey, the penalties associated with this violation range in fines between $100 and $500 for just the infraction of driving with risk through such instances. There are no points for this violation at the moment, but Setaro has made its addition a major part of her platform. “If you’re found guilty of not dropping the speed down under the posted limit, usually 20 mph under, and of not moving to the next lane, and these result in you killing someone, you will be charged with manslaughter and possible imprisonment,” she said.
Specifics on state-to-state penalties can be found at the AAA web page “Digest of Motor Laws” (http://drivinglaws.aaa.com/laws/move-over-law). Work zone laws are covered under Title 39: N.J. Statute 39:4-203.5, and fall into the double-fine territory. Maruca said, however, that things are more complicated. “There are 27 enumerated offenses attached to this statute. Fines can range from $100 to $500, but each violation has a different fine structure to it so, depending on your speed, the fine structure will change. The higher the speed, the higher the fine, and because it occurred in a work zone, whatever that is determined to be will be doubled.”
For companies with vehicle fleets, “there is a very real possibility of negligent entrustment liability,” said John E. Cruickshank, Attorney at Law with Alaniz & Schraeder, based in Houston, TX. “Whether there is a risk of liability is dependent upon the policies and training procedures the fleet company had put into place prior to the accident to reduce the likelihood of it occurring.”
If the organization could document that it had in place a driver conduct policy which requires drivers to honor work zone and Move Over laws; if they could document having trained their drivers on this policy; and if they could document having disciplined any drivers who violated the policy; they would have a strong defense to a negligent entrustment claim. “If they could not document that, they would have a hard time defeating negligent
entrustment on a summary judgment motion,” Cruickshank said. “And if it goes to the jury, I wouldn’t like their odds.”
Unlike the relatively unanimous adoption of Move Over laws, Wyoming and the Virgin Islands do not have work zone laws. For the majority of states that do, the penalties are fairly consistent with New Jersey’s. You can find out about the penalty variations at the Governors Highway Safety Association website (www.ghsa.org/html/stateinfo/laws/workzone_laws.html).
The unifying principle between these two types of “work zones” is that there are people engaged in doing their work that requires them to be in a most dangerous position: in or near the road as heavy and fast vehicles attempt to navigate around them. There are still drivers out there who do not have the fullest understanding of their responsibilities in such situations. Sometimes things end in the worst possible way.
Who Gets Harmed - In October 2013, Maryland trooper Jacqueline Kline was nearly killed when she was hit by a car as she was assisting a fellow trooper on the side of the road. In May 2014 in Tennessee, Officer Michael Petrina, 25, was struck and killed while assisting a Tennessee Department of Transportation help truck at another accident.
And with work zones, according to NHTSA’s Fatality Analysis Reporting System, 579 people lost their lives in motor vehicle traffic crashes in 2013, the latest reported year.
While there are differences between work zones and stops where law enforcement and emergency responders are doing their job, there is a similarity when the worst-case scenario comes true: when the loved one at home gets the call. Such was the case when Trooper Marc Castellano’s mother received the call from her daughter-in-law, saying he had been struck. He passed not long after she and her husband got to the hospital.
She has since devoted herself to advocacy, to making people aware that the Move Over law is real, ignorance is not an acceptable defense in the courts, and the only real solution to this problem is education. Castellano’s mother is Donna Setaro, and the Move over AwaReness Campaign is, as the name indicates, dedicated to his memory.
As a substitute teacher by profession, Setaro was able to have a conversation with a driver’s education teacher in one of the high schools she covers. By this time the thought of becoming a crusader for Move Over law awareness was taking shape, and when this teacher said to her, “…there is a law (on the books) but it is not even in the student drivers manual,” Setaro knew what she had to do.
After some shaky first steps, she connected with a state trooper who saw the potential in what she was proposing. “He had been in traffic & safety for many years and realized the danger behind (non-compliance). He took my skeleton PowerPoint and got it approved by New Jersey State police, embedded videos I wouldn’t have had access to otherwise, and toured with me through the first year of giving this presentation.”
Setaro believes that education is the answer. Sadly, there will always be reckless drivers and ignorant drivers alike. By making sure that everyone who gets behind the wheel knows there are laws, considerable penalties, life-altering and life-ending consequences, perhaps drivers will think a moment longer before making a tragic choice. For fleet managers, delivering that understanding to every driver needs to be as common as assigning the vehicle.