I. DISTINCTIONS FROM AUTO COLLISIONS
The factors generally distinguishing a trucking collision case from a routine auto accident are:
- the impact of legislation applicable to the trucking industry
- the composition of the operator of the commercial vehicle
- the application of industry standards
- the trucking company as a defendant
- the damages most likely encountered in a truck collision.
A. IMPACT OF LEGISLATION
There are more federal and state agencies, federal and state laws and compliance standards applicable to the trucking industry than any other commercial transportation industry. The bulk of the federal regulations with which a litigant should be familiar are found within Title 49, Code of Federal Regulations, which generally apply to any commercial motor vehicle operated in the commerce of the United States. A Commercial Motor Vehicle is defined to be Aa vehicle used in commerce having a gross combination weight of 26,001 pounds or more, or designed to transport 16 or more passengers, or used in the transportation of hazardous materials.@ The Federal Motor Carrier Safety Regulations (FMCSR) Handbook may be ordered from J.J. Keller and Asso. Inc. at (800) 558-5011.
The regulations applying to the trucking industry, whether viewed from the defense or the plaintiff perspective, are the most distinguishing characteristics from a normal auto collision case. A simple listing of the index of topics found within the Federal Motor Carrier Safety Regulation Pocket Handbook, displays the scope of regulatory activity involving the trucking.
Unlike a standard auto collision case, the trucking defendant is to adhere to federal and state regulations encompassing every aspect of its operations, both pre and post-accident.
The importance of these regulations mandates that each driver have a copy of the Federal Motor Carrier Safety Regulations in his/her possession and become familiar with those regulations. In essence, it becomes the ATrucker's Bible@.
B. COMPOSITION OF OPERATOR
A commercial motor vehicle will almost always be operated by an individual possessing specialized training, education and formalized instruction. He/she should possess a special license for operation of the vehicle and generally will have attended an independent trucking school or form of apprentice training within a trucking company. A driver is required to have certain knowledge, experience and training not required of a standard operator. Driver qualifications are found within 49 C.F. R. Part 391.11, in addition to those qualifications required for the securing of a commercial driver's license by each respective State.
In a truck collision case, the qualifications of the driver, his/her training, education, experience, traffic violations, physical attributes and mental status should always be carefully scrutinized by Plaintiff's counsel.
The increased demand for drivers of commercial vehicles burdens human resources departments of trucking companies to keep qualified operators behind the wheel of their commercial vehicles. All driver applications must be complete, accurate and in compliance with the Federal Motor Carrier Regulations (FMCSR). Federal investigative agencies are increasingly reviewing the hiring processes of operators to determine the diligence employed by trucking companies through their screening processes. It is no longer sufficient for a company to take an employee's application at face value. Deficiencies in the hiring procedures employed by a trucking company can be noted by a thorough comparison of the onerous investigative burdens placed by regulations. With the accessibility of information available on a variety of websites, it is imperative that the trucking company adequately investigate each driver's accident and traffic violation history.
C. APPLICATION OF INDUSTRY STANDARDS
In a commercial truck accident, the actions of the truck driver, and the company which employed him/her, are often subjected to a comparison to industry standards, i.e., negligent hiring, retention, retraining, and negligent entrustment.
Plaintiff's counsel should be mindful of the actions between the driver and the company, and in doing so, the interaction between the Human Resources Director, Safety Director, Maintenance Supervisor and driver should all come under close scrutiny.
The accessibility of data from which a party can compare one trucking company to another, such as the Federal Highway Administrations SAFER System (Safety and Fitness Electronic Records System) permits a party to investigate a motor carrier's safety record, safety rating, out-of service inspection data and similar information by the Internet. This information should be obtained in every case.
D. VOLUME AND COMPLEXITY OF DAMAGES
Statistics indicate that of the 42,000 people who died on American roads in 1997, 87% of those died in cases in which only automobiles were involved. Therefore, 13% of fatalities are attributable to truck and other commercial vehicle collisions. Since the percentage of trucks on the highways are much less than automobiles, the likelihood of a fatality in a truck collision is greater. There are logical reasons for the statistic. The average automobile traveling the highways weighs 3,500 pounds while a commercial truck, by its very definition, carries loads in excess of 26,000 and the total gross weight of the vehicle is often in the range of 50-60,000 pounds. Additionally, commercial trucks often transport two trailers which may have a propensity to jackknife. Further, the lack of disc brakes or existence of defective brakes on many commercial vehicles can create greater velocity impacts between a truck and an automobile.
An equally understandable statistic confirms that less than half of the auto to auto collisions result in personal injuries to the occupants; while more than 75% of the truck to car collisions results in personal injuries.
E. POTENTIAL DEFENDANTS AND CLAIMANTS
Trucking litigation involves the normal presence of a corporate defendant, a driver defendant and defendants who may be culpable through conduct associated with equipment or employees. The Corporate defendant is often brought into litigation under the concept of respondeat superior, based upon the normal master/servant relationship. There is an increasing proclivity toward plaintiffs adding the corporation as a party defendant alleging:
- negligent entrustment
- improper vehicle maintenance
- illegal routing
- improper monitoring or control of drivers
- negligent hiring and retention
- negligent or inadequate training and retraining
Trucking companies engage a variety of third party providers for the effective and efficient operation of the business. Many companies lease equipment, tractors and trailers from other vendors. These leases often provide for maintenance, repair and inspections to be performed by the vendor or a designated contractor. Such arrangements set forth specific duties, responsibilities, indemnification and ensuring agreements. This information should always be requested in trucking or commercial vehicle litigation.
Due to the increasing demands placed upon personnel departments, trucking companies further retain independent employment leasing contractors to furnish qualified drivers. Those employee leasing agreements also contain specific language relating to training, supervision, control and duties to be performed by the leased employee. Leasing services may be directly responsible for the actions of the driver in a collision as well. This information should likewise be obtained.
F. LIKELIHOOD OF PUNITIVE DAMAGES
The availability of exemplary damages for a tort cause of action in Texas is governed by Chapter 41 of the Civil Practice and Remedies Code. Other States have similar statutes; whereas, some States are governed by case law of that State.
Specifically, '41.003 mandates that exemplary damages may only be awarded if a claimant proves by Aclear and convincing evidence@ that the harm with respect to which the claimant seeks recovery of exemplary damages resulted from fraud, malice, or willful act or omission, or gross neglect in a wrongful death action.
Accordingly, plaintiff's counsel should carefully analyze company policies and procedures in evaluating and pursuing a punitive damage claim.
II. APPLICABLE TRUCKING LEGISLATION
A. EXISTING LEGISLATION
The following provisions of 49 U.S.C. as found at title 49 Code of Federal Regulations (FMCSR) are summarized as follows:
a. Driver Qualifications '391.11
- At least 21 years old
- read and speak English sufficiently
- can safely operate the type of commercial motor vehicle he drives by reason of experience, training or both
- is knowledgeable concerning the cargo he carries and how to safely transport it
- familiar with methods and procedures for securing cargo
- physically qualified according to the regulations
- has a valid commercial driver's license issued only by one State or jurisdiction
- has furnished the company with a list of violations
- not disqualified to drive under the regulations
- has completed a driver's road test
- has furnished an application for employment under the Regs
A driver is disqualified if he has been convicted of driving a commercial vehicle while the person's alcohol concentration is .04% or more or has committed a felony involving the use of a commercial motor vehicle, or operated a commercial motor vehicle while under influence of a prohibited drug, leaving the scene of an accident while operating a commercial motor vehicle, or refusing to undergo certain testing regarding alcohol.
b. Application for Employment '391.21 The application for employment includes specifics concerning the individuals background, their experience in operation of motor vehicles, a listing of all motor vehicle accidents and violations during the preceding three years, as well as reflecting any suspensions or revocations of licenses. A motor carrier is obligated to investigate and make inquiry concerning their potential employees pursuant to '391.23.
c. Driver's Road Test '391.31 In addition to the commercial driver's license, a motor carrier itself must conduct or have conducted by an independent party a road test of their operator and certify that he has the skills to operate the vehicle, as well as to perform pre-trip inspections. This requirement is subject to waiver in the event the individual presents a certificate from a state indicating that he has passed a road test within the last three years.
d. Physical Qualifications '391.41 There are specific requirements concerning the ability of a driver to be physically able to perform his/her, tasks notably physical limitations which would impair his/her ability to operate the vehicle, or to perceive sound or sign data.
e. Driver Qualification Files '391.51 The company must maintain a complete file of the driver's qualifications within the corporate records of the company. All counsel should obtain a copy of this file in connection with discovery requests for the personnel file of the individual.
f. Controlled Substance and Alcohol Use Testing '382.601 et seq. The employer must conduct a pre-employment testing for alcohol and drug use and conduct post-accident testing within two hours following the accident. Records of these tests are submitted tot he Federal Highway Administration. In the event the company was not able to conduct the testing, the reasons for its absence of testing must also be noted. Records must be maintained for a period of five years. The employer must provide education materials to explain the requirements and the employer's policies regarding alcohol and substance abuse. Section 382.601 provides that the employer shall provide referral, evaluation and treatment for drivers. Section 382.605.
g. Commercial Driver's License Requirements '383.1 This section provides for the requirement for the issuance of a commercial driver's license by the respective states and minimum criteria for such licensing. It additionally requires the driver to notify State officials concerning any convictions for traffic violations. Section 383.110 details the specific knowledge a driver must have in order to obtain a license.
h. Financial Responsibility for Motor Carriers '387.1 Generally, this section requires that motor carriers with a gross vehicle weight of 10,000 or mor pounds have at least $750,000 worth of financial responsibility, composed of insurance, surety bonds and endorsements. This financial responsibility is increased to a level of $5 million for certain commercial carriers conveying hazardous materials. Commercial carriers conveying 16 or mor passengers have minimum responsibility requirements of $5 million.
i. General Requirements '390.1 These provisions mandate that companies cooperate with other Federal agencies and State agencies investigating accidents and require the maintenance of certain records.
j. General Driving Regulations '392 The regulations encompass the practices of commercial motor vehicles on the highways to include minimum equipment requirements, parking, fueling, lighting, and prohibited practices.
k. Mechanical Equipment Requirements '393.1-393.209 A detailed explanation of the parts and components and their operative characteristics for a commercial motor vehicle are contained in these sections.
l. Inspection, Repair and Maintenance '396.3-25 The requirements of a company and operator concerning the inspection, repair and maintenance of the commercial motor vehicle and the qualifications of the inspectors conducting the inspections as well as the maintenance for inspections are included in these regulations.
m. Hazardous Materials '397.1-225 Specific requirements concerning the conveyance of hazardous materials, and the vehicles which transport such materials are controlled by these sections.
n. Employees Safety and Health Standards '399.201-211 These provisions outline the requirements for the commercial cab equipment and internal composition to accommodate safe operator usage.
o. Transportation Workplace Drug and Alcohol Testing Programs '40.1-111 The DOT drug testing programs required by employers and the maintenance of specimens collected with reporting requirements are contained in these sections.
p. Hours of Service of Drivers '395.3, 395.8 and 395.15 The maximum permissible hours of service for commercial motor operators and the maintenance of records reflecting such hours of service are governed by these sections.
q. Other Federal Rules of Regulations The Department of Transportation and Interstate Commerce Commission, as well as the Office of Motor Carriers and Federal Highway Administration offer regulatory guidance and interpretation on numerous facets of the trucking industry. Many of these may bear on any particular case and each have web sites on the Internet available to collect this information. There are several websites listed at the end of this article.
r. Recently Enacted Trucking Legislation The major trucking legislation of any significance which has reached the legislation stage is the Transportation Equity Act for the 21st Century, which passed the House and Senate in May of 1998 and has been signed into the law by the President. This Bill has numerous provisions dealing with safety and requires increased company awareness of their drivers, both from a pre-employment and post-employment status. It includes a network of information data systems to be utilized by carriers which will make it easier to identify unsafe drivers.
2. State of Texas
The Texas Department of Public Safety, who has primary responsibility for trucking safety, adopted the FMCSR (Parts 382, 385, 386, 390-393 and 395-397) and amendments thereto effective April 22, 1998. The application of these adopted rules relate to vehicles with an AGW , a registered gross weight, or a GWR of more than 26,000 pounds. Exempted are vehicles operated intrastate with a GRW of 26,000 pounds or less, unless the vehicle is hauling hazardous material requiring placarding. The following provisions of the Transportation Code of the State of Texas are regularly utilized by litigants in the investigation, discovery and evaluation of a claim:
- Requirements for Commercial Driver's License. '522.
- Necessity for Reinspection Following Repairs After an Accident '548.053.
- Safety Standards. '644.152 and '644.052.
- Disqualifications for driving. '522.088.
- Braking Requirements. '547.401-408.
- Warning Devices. '547.504.
- Alcohol and Drug Use. '522.101-106.
- Lights and Lighting. '547.351 et seq.
- Speed. '545.351 et seq.
- Size and Weight. '621.001 et seq.
- Right of Way. '545.151 et seq.
- Parking. '550.001 et seq.
- Loads. '550.001 et seq.
- Rules for the Road. '541-600.
- Motor Vehicle Safety Responsibility. '601.
- Municipal Testing of Motor Vehicles. '726.
- Maximum Weight. '621.101.
3. County and Municipal
A complete review of Municipal Codes should be undertaken when a truck collision occurs within an incorporated city for the application of any code violations or special restrictions which may be applicable for commercial motor vehicles operating within the city streets and causeways.
The Federal Motor Carrier Safety Regulations, Texas Driver's Handbook issued by the Texas Department of Public Safety, and the Texas Commercial Motor Vehicle Drivers Handbook issued by the Texas Department of Public Safety should be carefully analyzed by litigators for use in discovery.
B. PROPOSED LEGISLATION
Organizations such as the Citizens for Reliable and Safe Highways (CRASH) have been promoting the transfer of the Office of Motor Carriers (OMC) from the Federal Highway Administration to the National Highway Traffic Safety Administration. They have been recently supported in this endeavor by U.S. Representative Frank Wolfe of Washington, D.C. who introduced H.R. 507 to accomplish that purpose. Representative Wolfe refers to a recent Department of Transportation IG report which concluded that of the 3.7 million trucks crossing from Mexico into the United States in 1998, only 17,000 were inspected and of this number 44%were found to be in a state of disrepair and were immediately taken out of service. Representative Wolfe believes that moving the office of Motor Carriers to the National Highway Traffic Safety Administration will serve to enhance the safety aspects of the OMC.
III. ANATOMY OF A TRUCK COLLISION INVESTIGATION
The sooner plaintiff's counsel can organize and effect a thorough accident investigation the better off he/she will be during the trial of the case. A competent accident investigation should be performed:
a. as soon as possible after the accident; b. by competent, qualified team of professionals; and c. acting under the supervision and control of skilled counsel.
Most trucking companies or their insurers have skilled counsel which they regularly utilize in truck collision cases. The trucking companies normally have in place a Truck Collision Team or Aswat team@, consisting of attorneys, legal assistants, investigators and certain independent professional persons or organizations whom they regularly call upon as experts for utilization in connection with these types of cases. Such independent parties may consist of engineers, accident reconstructionists, computer graphics technicians, forensics specialists, metallurgist, certified safety specialists and others. Thus, the trucking companies will begin their investigation and preparation for their defense immediately after notification of the accident in order to shape up their defenses and avoid responsibility.
A. INITIAL NOTIFICATION
The trucking company will likely be first notified of the trucking collision by its driver, or the State Highway Patrol if its driver is unable to communicate. If the trucking company utilizes a GPS tracking system or other on-board monitoring, they may receive almost instantaneous notification of the accident. At this point, they will normally have a policy in effect through their insurer, to provide immediate notification to the insurance carrier and to defense counsel and begin preparing its defense.
As soon as the trucking company defense team receives verbal notification of the accident, individual responsibilities will be immediately assigned. An on-site investigation is usually accomplished as soon as possible. Generally, communication will be made with individuals or organizations located at or near the scene of the accident to record all actions taking place by authorities and third-parties at the scene of the accident until the trucking company defense team can arrive to conduct their investigation. Often, debris will be removed which could be critical to a later determination as to the cause of the accident. If the companies or organizations responsible for the cleaning of debris can be identified early, then a re-enactment of the debris and its location at the scene can be accomplished by the reconstructionist.
Since the trucking company defense team is engaging in its investigation and defense preparation immediately following notification of the accident, it is extremely important that the injured parties likewise seek counsel to begin their own prompt investigation.
B. ACTIONS AT THE SCENE OF THE ACCIDENT
The purpose of rapid arrival at the scene is to preserve evidence which may be available at the scene, to communicate with witnesses and prevent the destruction or alteration of any of the vehicles involved.
Prior to arriving at the scene, identify all organizations and persons who have been at the scene prior to your arrival. This will typically include Highway Patrol, Sheriff's Department, Police Department, Department of Transportation personnel, towing companies, EMS, ambulance service, fire departments, highway courtesy patrol, special traffic investigators from municipalities, adjacent businesses and landowners, news media (newspaper, radio, television), companion truckers, eyewitnesses and anyone else who can be readily identified.
Since the trucking company defense team is most likely already at the scene, the prompt arrival by the injured party's attorney and his/her own team members will allow them to preserve evidence themselves rather than simply relying upon information obtained from the trucking company defense team or other investigating personnel.
The attorney for the injured party and his team members should be observant for other persons who appear to be investigating accident scene or who are contacting persons knowledgeable of the accident. The identification of these persons, including description of vehicles and license plates, as well as their obvious activities and interests should be observed and recorded for subsequent discovery requests and information gathering.
Immediately go to the scene of the accident and record those aspects of the accident scene which are susceptible of alteration over time. Notably, these include:
- presence and location of debris
- skid marks and track marks
- damage to road way and adjacent property
- highway marking and post it signs
- lighting conditions
- obstructions on or near the roadway
- presence of foreign objects on the roadway
- location and condition of vehicles
- oil or other liquid substances on the roadway
- depressions and composition of roadway
- turns, rises or depressions in the roadway
The above should be photographed and/or videotaped, depending upon visibility and other factors.
C. PRESERVATION OF EVIDENCE
Trucking companies are required to maintain specific records and documents for required periods of time, depending upon the triggering of the event. The following documents should be secured and preserved, if possible; either before or at least after litigation:
- driver's logs for the day of the incident and 30 days prior
- magnetic discs of any on-board computer systems
- telephone and communication logs between the company and the driver
- cellular phone logs
- maintenance records for the tractor and any trailers attached for the year preceding to the accident
- alcohol and drug testing for the five years prior to the accident in the event there were any negative reports on the driver, and for the last two years prior to the accident if there were no negative reports
- post-accident alcohol and drug testing
- the driver's personnel file
- all investigative reports, files, records, photos and other data
- copies of all news media coverage of the accident or the scene post-accident
- the truck and vehicle involved in the incident should be collected and placed in a location free of any damage or further deterioration
- debris which has been collected from the scene should be collected, and cataloged for future analysis, if necessary
- Weather Bureau reports and data
- Highway Department maps, drawings or diagrams of any scene
- all police, fire, special traffic team and other related investigations
- all NTSB, DOT or ICC investigative reports
- all OSHA 200 forms
IV. UNIQUE LEGAL ISSUES TO TRUCKING LITIGATION
There are a variety of legal issues unique to truck driving litigation which distinguish this area of practice. Counsel for plaintiff should be award of these issues and how they can affect each case.
A. THEORIES OF DEFENDANT LIABILITY
Truck driving litigation is unique in that it provides for multiple theories of defendant liability. A plaintiff can pursue several causes of action such as negligent hiring/retention/entrustment, negligent training/re-training/supervision, and vicarious liability/Respondeat Superior.
1. Negligent Hiring/Retention/Entrustment
These claims are barred in a majority of jurisdictions when a defendant trucking company accepts vicarious liability for the actions of a driver. These jurisdictions hold that information depicting negligent hiring, retention, and entrustment is immaterial when a defendant has assumed responsibility for its agent.
Texas law coincides with the majority of jurisdictions. Failure to conduct thorough background checks constitutes a breach of reasonable care. However, if a defendant assumes vicarious liability, information regarding negligent hiring, retention, and entrustment, may be limited to the issue of punitive damages.
2. Negligent Training/Re-training/Supervision
Another factor that distinguishes truck driving litigation is the availability of negligent training, re-retraining and supervision claims. For example, liability is most easily established when a company:
- knowingly permits its drivers to violate state and federal regulations
- allows drivers on the road with minimal operating experience
- allows drivers to continue driving despite internal violations
In Texas, companies are required to take an active role in monitoring truck driver's driving hours to help reduce the number of fatigue and stress-related accidents. Plaintiffs counsel can increase their chance of success by establishing substandard training, re-training, and supervision policies addressing these issues.
3. Vicarious Liability
In the majority of jurisdictions, including Texas, trucking companies are liable in tort for the actions of their drivers.
B. EVIDENTIARY MEDIUMS
1. Driver Monitoring
Federal law requires drivers to record their driving information in structured driver's logs. Recent federal legislation authorizes the government to record driver registration, licensing, and safety performance. The Federal Highway Administration has an entire computer network dedicated to monitoring interstate motor carrier safety. On-Board communications and tracking systems (GPS) are federally permitted and frequently utilized by trucking companies. For example, QUALCOMM's and OMNITRACS system can provide data on driving time, location, speed, and fuel consumption. Drug testing is mandated both during a truck drivers employment and immediately after accidents. Truckers are limited in the amount of hours they can driver over any given period of time. On-board surveillance cameras, trip recorders, and collision warning systems (black boxes) are in operation in numerous trucks across the nation.
Plaintiff's counsel should inquire into logs, communication systems, and any other form of evidence relating to the litigation in question.
Federal law requires all interstate truck drivers to keep daily logs that truck their activities for every 24-hour period that they are actively employed as a truck driver. 49C.F.R. '395.8. Trucking companies must maintain copies of the logs for six months. 49C.F.R. '395.8(k). Thus, it is important to file suit promptly to ensure all logs are preserved; alternatively, a formal written demand should be made upon the trucking company, driver and their insurance company to preserve all logs and supporting documents as well as all evidence which is relevant to the accident. We regularly notify each of these players and send a detailed request specifying certain evidence to be maintained and, if not, we will allege spoliation of evidence.
A request should be made for all daily logs from the date of accident as far back as possible to obtain a picture of the driver's activities in the days, weeks and even months before the crash.
Three analyses should be made with respect to the logs:
- A determination of whether the logs reveal violations of Federal hours-of-service regulations, other conduct indicating intentional impropriety, or negligent conduct by the driver or trucking company
- A comparison of the logs to other available information (e.g. fuel tickets, meal ticks, cellular records, etc.)
- An analysis of the DOT reviews and investigations of the company to determine whether the trucking company has promoted or acquiesced to hours-of-service violations.
The hours-of-service regulations are found at 49 C.F.R. '395.3 and may be summarized as 10, 15 and 60/70 hour rules.
The 10 and 15 hour rules mandate that after 10 hours of driving time or after 15 hours of on duty time, a driver must have 8 consecutive hours off duty.
The 60/70 hour rule states that a driver cannot driver after being on duty 60 hours in any consecutive 7-day period, unless the vehicle is operated 7 days a week and then the maximum hours are extended to 70 hours in any 8-day period.
The driver's daily logs contain information which must be scrutinized. There must be one log for each 24-hour period. The log must reflect total miles driven in the 24-hour period. The total miles driven when compared to the 10-hour day may raise red flags. If a driver records 600 miles in a 10-hour day which equates to a 60 mph average speed, a detailed investigation should be made to determine if the driver has passed through urban areas, 55 mph zones, stopped for a lunch break, to get fuel, or go to the restroom. This information may indicate falsification of log records. Any consistent driving of 500 miles per 10-hour day should alert the plaintiff's attorney to the necessity of a detailed investigation. The trucking company, if properly monitoring the driver, should have been alerted to a potential problem.
The driver must sign the driver's log which signifies the Aentries are true and correct@ 49 C.F.R. 395.8(f)(7). Thus, any items left blank, entries which are inconsistent with other evidence, especially if a pattern is shown, is valuable impeachment evidence.
The grid on the driver's log is designed to record the driver's status at all times during the 24-hour day. The driver must record whether he/she is Aoff duty@, in the Asleeper berth@, Adriving@, Aon duty (not driving)@, and where the duty status changes which is noted on the space below the grid.
An effort should be made to obtain other documentation for comparison to the driver's daily logs. For example, many drivers use credit cards issued by a company such as Comdata which maintains computerized records of all charges which include driver's name, date, time, location and amount of charge. This information is helpful for cross-referencing information recorded by the driver. Additionally, some trucking companies require their drivers to complete daily trip report, pay records, toll records and pay submissions which require information about the truck's odometer readings, routes and miles driven as well as the times State's borders are crossed. Another example of comparing records may result in a driver's daily logs reflecting 10 hours but another form or log used for calculating pay may reveal 12 hours because the driver wants to be paid for actual hours driven.
2. Driver Fatigue
One study by the National Transportation Safety Board (NTSB) indicated that of 107 truck drivers who had survived single truck accidents, 62 (58%) were suffering from fatigue. Thus, an attorney should thoroughly investigate all documents or information which may reveal that driver fatigue was a cause of the accident. Trucking companies may be responsible for failing to properly monitor its drivers so as to require a fatigued driver to stop driving, for ordering a driver to continue driving notwithstanding complaints made to company dispatchers that the driver felt that he was too tired to continue driving, for placing demands on a truck driver that he meet a time schedule which requires him to drive beyond the reasonable limits of human endurance or instituting a system which fails to take into account driver fatigue.
Methods for determining driver fatigue include investigating admissions to or observations by the police or witnesses or to the driver's dispatcher. Evidence of maximum hours of service may also indicate fatigue.
There are several other methods of identifying driver fatigue. Systems Technology, Inc. of Hawthorne, California has built two TOPS (truck operator proficiency systems) systems which is a fatigue-testing driving simulator device using a psychomotor test to measure a driver's ability to perceive and respond to visual stimuli. Another computer based fatigue monitoring system is known as SMART TRUK which is a continuous monitoring device mounted in a truck's cab that gauges the driver's performance through a computerized lane-scanning device. This system was developed by Evaluation Systems, Inc. of Lakeside, California. If the driver exhibits tired behavior, the system immediately notifies the trucker's home base through the OMNI TRACS two-way satellite communications system developed by QUALLCOM OF SAN DIEGO. The driver will be directed to pull off the road to be evaluated by a 5-minute computer test known as READY SHAFT II. Based on the findings, the driver will be instructed either to avoid driving, head back on the road or retake the test.
3. Third Party Investigators
Various governmental agencies, both at the state and federal level, investigate commercial trucking accidents. They include the Department of Transportation (DOT), the Interstate Commerce Commission, the National Traffic Safety Board, State Departments of Public Safety, and local Special Traffic Investigation units.
The DOT does periodic reviews of trucking company practices either randomly or because of complaints. All DOT reviews and the trucking company's written responses should be obtained. This information can be obtained from the trucking company or through the Freedom of Information Act by sending a request to Freedom of Information Act Compliance Offices, Federal Highway Administration, 400 Seventh Street, S.W., Washington, D.C. 20590.
A request should be made of the trucking company for all internal reviews, especially if the DOT investigation has revealed noncompliance. An investigation should be made to determine if any steps or procedures were taken to assure compliance with regulations or company policy.
Another source of information is a trucking company's liability insurance carrier. Some carriers review a trucking company to assist in its safety program and to reduce the risk and claims. Such a review by the carrier may reveal persistent hours-of-service problems. It may also reflect that the carrier's review revealed deficiencies or violations but that the trucking company failed to implement policies and procedures to correct the deficiencies or violations.
Spoliation issues frequently arise during the discovery process of a truck driving claim. Federal law requires that a trucking company retain different records for varying durations. For example, driver logs must be retained for a minimum of six months. Accident registers must be kept for at least one year. Alcohol and drug test results must be maintained for various lengths of time. After this period, most companies destroy records routinely. Plaintiff's counsel should write the truck driver, trucking company and any other responsible parties including the liability insurance carrier, and demand that they maintain all relevant records and information related to the accident even if they have a company policy to destroy records after a certain period of time. Counsel should also be cautious about allowing the vehicle in which the plaintiff was occupant to be repaired and/or sold for salvage without notifying the truck driver, trucking company, other potential defendants and their respective carriers that their opportunity to inspect the vehicle may be for a limited period of time. It may also be necessary to notify the insurance carrier of your client's vehicle that it is not to repair and/or destroy the evidence without all parties having an opportunity to inspect.
The general rule mandates that destroyed evidence be presumed against the spoliator. Thus, destruction of records after being requested not to do so may entitle an instruction on spoilation of evidence.
Plaintiff's counsel should look first for spoliation in violation of federal statutes such as the Federal Motor Carrier Safety Legislation. Destruction of records before the federally-mandated period can be construed as an attempt to conceal adverse evidence. If the plaintiff cannot establish that evidence was spoliated in violation of federal statute, it could be demonstrated that the evidence was spoliated earlier than is company policy or in defiance to a written request by plaintiff's counsel that the evidence not be destroyed.
In Texas, there is no independent cause of action for spoliation of evidence. However, trial courts have broad discretion to take measures ranging from jury instructions inferring that the destroyed or missing evidence would have been harmful to the trucking company to the more serious sanctions of pleadings be stricken.
C. ACCESSABILITY OF INFORMATION
The Internet is by far the most important technological tool in discovering background information. Various web-sites provide a trucker's driving record and personal profile. Trucking companies often establish these sites for commercial and marketing purposes.
The Internet also offers information from non-affiliated, independent websites. These sites are usually created by the drivers themselves, and often contain reports of hours of service, training, and past driving violations. Recent legislation requires the federal government to maintain a network with driver registration, licensing, and safety information. Still other sites are set-up by plaintiff's groups, victim's groups, and various non-profit organizations.
Another source of information is a CD Rom disc which may be purchased from J.J. Keller and Associates, Inc., Neenah, Wisconsin which includes valuable information addressing the trucking industry. See www.jjkeller.com. The National Highway Traffic Safety Administration (NHTSA) requires manufacturers to advise all purchasers, owners and dealers when vehicles are found to have safety defects or not to be in compliance with federal safety standards. NHTSA has a hotline (888-327-4236) allowing safety-related problems to be reported. NHTSA will release recall information regarding defective component parts of motor vehicles and motor vehicle parts. An attorney should always check the source.
1. Topical Websites
The following topical websites may be useful to the trucking litigant:
Truck Company Websites:
Victim's Group Websites:
Legislation Information Websties:
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