November 2008

The Atlanta Regional Commission determined these to be the 10 most crash-prone intersections in the region.  This is old news, but I doubt that the results would be much different now.

–  Austell Road at East-West Connector (Cobb)

– Barrett Parkway at Cobb Place Boulevard (Cobb)
 
– Cobb Parkway at Barrett Parkway  (Cobb)
 
– Tara Boulevard at North Avenue (Clayton)
 
– Sigman Road at Walnut Grove Road (Rockdale)
 
– Buford Highway at Lenox Road (Fulton)
 
– Chastain Road at Busbee Parkway (Cobb)
 
–  Alpharetta Highway at Houze Way (Fulton)
 
– Austell Road at South Cobb Drive (Cobb)

– Roswell Road at Abernathy Road (Fulton)

Worst time of day: 5-6 p.m.

Age group with most accidents: 25-34

County with most accidents: Fulton

Frequency of fatal crashes: One every 15.6 hours

County with most accidents involving pedestrians: Fulton

County with fatal accidents involving pedestrians: Fulton

Source: Atlanta Regional Commission, study period, 2002-2004; scope, 18-county metro area

As a trial lawyer handling traumatic brain injury cases, one of my frustrations is that serious diffuse axonal injuries cannot be visualized with normal CT and MRI scans.  High resolution PET scans combined with functional MRI (fMRI) can show more, but access is extremely limited in this part of the country.

MIT Technology Review has reported on three new imaging techniques that may help physicians diagnose mild brain damage that is now invisible to standard CT and MRI scans.  (Also see summary article at medgadget.com.)

Diffusion tensor imaging (DTI) is a variation of MRI that tracks water molecules in the brain’s white matter, not visible on a standard MRI. The damage appears to correlate with cognitive deficits, including slowed reaction time.

Magnetic resonance spectroscopic imaging (MRSI) can analyze the spectral frequencies of chemicals in the body.  This new technique measures chemical concentrations across the whole brain indicative of damaged axons and traumatic brain injury.

Magnetoencephalography (MEG)  measures magnetic fields produced by the electrical activity of nerve cells, to pinpoint the source of abnormal brain activity.  This often overlaps with the location of damage detected using DTI.

If will probably be a while before these technological advances become clinically available.  However, I look forward to future clients having these advantages, both for improving medical treatment and for enabling me to prove the truth of their often invisible brain injuries.

A former Marine who holds degrees in chemical engineering, business and law was paralyzed  in Los Angeles eight years ago because a  horizontal bar of weights fell due to the fact that no adjustable safety stops were installed on the machine.  Suits against Gold’s Gym, Flex (equipment manufacturer) and an insurance company ultimately resulted in total recoveries of $18.6 million.  For the rest of the story, see article by Joanna Lin  in the L.A. Times.

A lifelong athlete, Harold Leon Bostick described his sudden quadriplegia as "kind of like a mini-death."   In July, Bostick and some friends founded the Disabled Sports and Fitness Foundation, a nonprofit group intended to help people afford and gain access to sports equipment for physical therapy.
 

In today’s  Atlanta Journal-Constitution includes there appears a tragically true story by Steve Owings, whose son was killed by a speeding tractor trailer on cruise control six years ago. In the wake of his son’s death, Steve and his wife founded Road Safe America

Knowing Steve’s motivation to make the roads safer for everyone, I’m taking the liberty of copying his full article here in order to give it wider distribution.

Big rig killed our son; drive safely on busiest traffic day

By Stephen C. Owings

For the Journal-Constitution

Wednesday, November 26, 2008

My rearview mirror has turned into a time

A big rig driver unable to see his way through dense fog Monday morning in Fresno, California, was going too fast to see stopped traffic through the fog when he struck and killed a young woman .

Tractor trailer driver Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog when he struck a Ford Explorer, killing the woman inside, according to a news report by Jim Steinberg and Vanessa Colón of The Fresno Bee.

Two sections of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 sets a standard of "extreme caution" in hazardous conditions, as follows:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

The only appellate court decisions directly addressing the issue in the United States have held that a trial court must instruct a jury on this "extreme caution" standard of care rather than the "ordinary care" standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires motor carriers to take responsibility for hiring, training and supervising drivers who are instructed to comply with the rules, as follows:

Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.

In this fatal crash, a 22-year-old truck driver who I figure, based on my experience, had little or no such training and supervision. In all likelihood, the trucking company confirmed that he had a Commercial Driver’s License, and  no moving violations in the past three years,then handed him the keys. Probably his employer did nothing to emphasize the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

Unfortunately, too few judges know or care what the Federal Motor Carrier Safety Regulations require.  It always requires a concerted effort to educate a judge on this area of law. When  judge does not know that he does not know, and does not care that he does not know, there is a huge mountain to climb in order to get the court to simply apply the law.

Fatal truck accidents in bad weather are an all too common — and preventable — tragedy that we see in our law practice. 

Despite the very clear federal standard requiring "extreme caution" in hazardous weather and pull over if necessary, and guidelines in the Commercial Drivers License Manual to slow down by at least one-third, truck drivers under pressure from employers and shippers too often forge ahead.

The latest to hit the news happened yesterday in Virginia’s Shenandoah Valley on I-81, a road I’ve traveled numerous times.

The crash happened around 11:30 a.m. on I-81 near New Market. Snow squalls  made the road slick. In  a chain-reaction crash, a tractor-trailer driven by Jose Alberto Sarmiento, 36, of Edinburg, Texas, struck several vehicles before plowing into the back of a  Ford Escort. Three members of a Virginia family were killed.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. §  392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured. 

Two California cases hold that it is reversible error for a trial court to fail to instruct a jury regarding this "extreme caution" standard.

In Crooks v. Sammons Trucking, Inc.,  2001 WL 1654986 (Cal.App. 3 Dist.,2001),  a tractor trailer driver forged on through heavy blowing snow until he was involved in a collision with another tractor trailer.  The trial court refused a request to charge the jury on the “extreme caution” standard under  49  C.F.R.§ 392.14, charging the jury instead on the state standard of ordinary negligence.  The appellate court held that for the trial court to disregard the regulatory standard and to instruct instead the jury with lower standard provided by state law was reversible error. 

Similarly, in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005), the court held that it was reversible error for the trial court to refuse to instruct the jury on the “extreme caution” standard rather than the ordinary negligence standard under state law. Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

In George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), the Minnesota Supreme Court held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

The Kentucky case of Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49  C.F.R.§ 392.14 rather than jury instructions.  However, the court recognized that the Federal Motor Carrier Safety

regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.

In another case that applied the principle but did not involve jury instructions, the Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty  created by 49  C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident.  The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.

 

 

 

In truck crash litigation we sometimes find judges who fundamentally don’t understand interstate motor carrier law and refuse to learn. Therefore, it is refreshing to read of judges who do "get it," and who are willing to act forcefully to protect the safety of the traveling public.

The U.S. District Court for South Dakota recently ordered Action Carrier Inc., of Sioux Falls, S.D., to halt operations due to its repeated refused to comply with federal motor carrier safety regulations.

Federal District Judge Lawrence L. Piersol granted  a temporary restraining order preventing Action Carrier from continuing to operate in interstate commerce.  The carrier’s operating authority was revoked by Federal Motor Carrier Safety Administration because it did not have the necessary liability insurance required by federal law. Action Carrier has a history as a scofflaw.   Over the last year, FMCSA initiated three separate civil penalty proceedings for operating without insurance and operating after revocation of authority.

As a trucking accident lawyer in Atlanta, I have been following developments in rule changes on truck driver hours of service for several years. There has been quite a history of the administration proposing longer driving hours, with trucking industry backing, only to have the rules struck down by courts as arbitrary, capricious, etc.  However, the regulators have persevered in repeatedly reissuing controversial temporary rules extending driving time from 10 driving time to 11 hours driving out of 14 hours on duty, after 10 continuous hours off duty.

Yesterday the  Federal Motor Carrier Safety Administration released its final rule on truck drivers’ hours of service. It seeks to make permanent the extension of  hours truckers can drive from 10 hours to 11 hours.

According to a report in the Wall Street Journal, this is part of a broad-ranging last-minute push to enact regulations supported by business and in numerous instances opposed by consumer, safety and environmental groups. Also included are new rules that open the way for commercial development of oil shale on federal land and add restrictions on employee time off under the Family and Medical Leave Act.

The Federal Motor Carrier Safety Administration (FMCSA) first isued the hours-of-service rule in 2003, increasing the number of hours truckers can legally drive. The Court of Appeals for the D.C. Circuit struck down the rule in 2004, but Congress reinstated it as part of the Surface Transportation Extension Act of 2004.

FMCSA issued a new Notice of Proposed Rulemaking in January 2005, proposing a rule that was essentially the same as  the 2003 rule that had been struck down.  On July 24, the U.S. District Court of Appeals for the D.C. Circuit for the second time threw out the rule that increased driving time to 11 hours from 10 hours and allowed drivers to go back to work after being off duty for only 34 hours. In a 39-page opinion, Judge Merrick Garland called the rule "arbitrary and capricious."

The Teamsters Union called yesterday’s action "a dangerous midnight move" and vowed to fight it. 

Joan Claybrook, president of Public Citizen was quoted saying, “This rule will continue to force truck drivers to continue enduring sweatshop-like working conditions. This puts the health and safety of drivers at risk, along with the public who must share the road with tired truckers.”