Atlanta Injury Law Blog

A tractor trailer making an illegal u-turn on a bridge in pre-dawn darkness caused a Laurens County, Georgia, crash yesterday, as a car became wedged under the trailer, according to a report by Bernie O'Donnell of WMAZ-TV in Macon.  Problems with side conspicuity andtrailer underride are common. When we see motor carrier accidents in the very early morning, we naturally look into questions of hours of service violations and driver fatigue affecting attentiveness and judgment.

As a Georgia trial attorney handling trucking accident cases, I see too many instances of truck driver fatigue and drug usage leading to tragedy.  The pattern is exemplified in a Missouri case.  It has resulted in an $18 million settlement for the deaths of four family members (ages 55, 57, 81 and 94) on the way to a 50th wedding anniversary celebration. 

The truck driver had less than the required amount of rest the night before, according to subpoenaed cell phone records, and  was on eight prescribed medications that warned of possible drowsiness.   Witnesses said he was falling asleep at the wheel before he sped past warning signs and a flagman, slammed into a long line of cars, crossed the median and jackknifed on the opposite side of the highway.

According to a report by Joe Meyer of the Columbia Tribune, a family member said, "The money wasn’t something that we were after.  It was just a way to give a message in this part of town that the truckers should not be out there like that."

Skyrocketing fuel prices have put truckers into a world of hurt.  Now two U.S. Senators have introduced a bill that would require 100 percent of fuel surcharges levied on shipping customers to be passed through to the person actually paying for the fuel, in most cases the truck driver.  The bill was introduced by Olympia Snowe, R-Maine, and Sherrod Brown, D-Ohio. Called the TRUCC Act, which stands for “Trust in Reliable Understanding of Consumer Costs,” the bill “will go a long way toward helping truckers survive the brutal cost of fuel,” said Todd Spencer, executive vice president of the Owner-Operator Independent Drivers Association.

I certainly sympathize with the owner-operator truckers who are having to pay the higher fuel prices, while the trucking companies pocket the fuel surcharges. That's wrong.

Fuel prices may also impact safety. Over the next year, I expect to see an increase in tragic trucking accidents in which truckers have scrimped on maintenance and stretched driving hours in order to make ends meet, while cutting corners on insurance coverage beyond the barest minimum. 

Friday afternoon about 2 pm, I nearly became a statistic in the kind of trucking accident case that I see too often as a lawyer.

Leaving Atlanta for the weekend with my wife, we were on I-285 approaching I-85 at "Spaghetti Junction" when traffic in our lane designated for I-85 North ground to a halt. I had been sitting there for maybe 15 to 30 seconds, about a car length behind a tractor trailer with my hazard flashers on to alert drivers behind me.  Having seen so many cases of rear end collisions when freeway traffic stalls, I always hit the hazard flasher button in these situations.  I know we were sitting there long enough to wonder why just our late was stopped, read the writing on the back of the trailer in front, and to note that it had the older style of rear underride bar. 

Then I heard tires screeching.  Looking in my rear view mirror I saw a tractor trailer with tires smoking, angling from my lane into the lane to my right.

Conservatively estimating the speed of the flow of traffic before the stoppage at 40 miles per hour and the time I had been stopped at 15 seconds, the trucker behind me would have traveled 879 feet – nearly the length of three football fields -- with a clear view of traffic stopped and my flashing hazard lights, before he stopped inches from my rear bumper.

Fortunately, he was able to stop.  But not before the image of a car pushed through the rear underride bar of a trailer in front flashed through my mind. That's not how I want to die.

Was the truck driver behind me fatigued, inattentive, or both? Was he in the 11th hour or more of driving that day?  Fortunately, no one will have occasion to ask. And fortunately, there will be no occasion for the surviving truck driver to falsely claim that the person he killed had suddenly slammed on brakes without warning, hoping that no accident reconstruction would prove otherwise.

On a curvy road near Falmouth, Kentucky, a dump truck hauling rock from a quarry crashed into a school bus, killing a 16-year-old student. The truck driver had been working for the company two weeks, according to a news article by Roger Alford.

This incident highlights a couple of categories of safety issues I have recently encountered in my law practice. Last year I tried a case in Macon in which our safety expert was able to identify a host of safety violations in a dump truck that rear-ended our client on a bridge. The violations included broken springs and frame elements consistent with long-term wear and tear bouncing in and out of quarries. In another case, we have seen the hazards related to the lack of seat belts in school buses and tour buses.

The handling characteristics of a bobtail tractor (operating without a trailer) are far different from a tractor-trailer combination, especially on wet pavement. Here's a test I happened to find on Youtube. The results of braking a bobtail tractor on wet pavement are pretty predictable.

Saturday morning, at the request of a patient's family  who urgently want to provide for his care needs, I visited an intensive care unit at Grady Memorial Hospital to attempt to interview a man who became a quadriplegic in a recent traffic collision. Laying paralyzed in a bed, breathing through a tube, he was too sedated to respond to a sibling's attempts to wake him. We may have to have a family member appointed by the probate court to handle his affairs.  The previous afternoon, I had met with a father whose beautiful 16-year-old daughter went out on a date, the boy who was driving wrapped his car around a telephone pole, she had a bad head injury, and died a few weeks later in the hospital.  I don't know if the evidence will ultimately be sufficient for me to do any good for these folks, but I will explore all reasonable options.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the "flying fickle finger of fate award." It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome "award."

Sometimes well-meaning people try to say that it was "the Lord's will" or "the Lord took her" when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It's wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

At Bamberg, SC, on 1/7/08, a beer truck, a log truck and two empty Freightliners were involved in a fiery pileup when the log truck lost a tire.  The beer truck burned completely and its driver died. The two empty trucks were driven by brothers  Two men from Rincon, Georgia were driving the empty Freightliners.  One of them, whose truck also burned, was flown to a hospital. See news report from Chantelle Janelle at WIS-TV in Columbia.

A fatal collision on December 19th between two tractor trailers in Pike County, Alabama, may result in criminal charges against the driver of one of the tractor trailers. According to media reports, Dusty Conner failed to stop his tractor trailer at a stop sign and pulled out in front of another tractor trailer operated by Deborah Fields.  According to media reports, she was killed when her truck caught fire.

Ironically, we are preparing for a trial in Alabama of a case in which two tractor trailers collided on a rainy night, and a passenger in a tractor that caught fire was killed.

As a trial lawyer in Atlanta, Georgia, handling catastrophic truck accident cases, I often need to use accident reconstruction experts.  Following are some of the factors that the reconstruction expert may consider in such an analyis, as summarized by my Tennessee co-counsel Morgan Adams:

Center of mass formula. The formula to determine the center of mass location is: the total moments ÷ the total weight = the center of mass.

Datum used for accident reconstruction measurements (a datum is an imaginary plane from which all measurements are taken), arm (the distance that a weight is located from the datum), moment (the product of weight x its lever arm).

Track width - Measured to the center of the tire, or to the center of the dual wheels.

Rollover threshold – a ratio of vehicle center of mass-to-track width. This predicts at what lateral acceleration the vehicle or component will roll over.

Rollover threshold formula – the rollover threshold formula is: rollover threshold = track width ÷ height of the center of mass. RT = 1/2 TW/CM
If the rollover threshold exceeds the coefficient of friction of the road surface, there will be a spin out instead of a rollover.  If the rollover threshold is larger than the coefficient of friction, and the vehicle rolled over, there is a mistake somewhere in your calculations or measurements. Therefore, if the coefficient of friction of the road surface is .40, and the rollover threshold is .46, the vehicle should spin out.

Rollover velocity formula – the rollover velocity formula is: rollover velocity = √ radius of the curve x gravity x rollover threshold. As the combined center of mass displaces laterally, it is no longer perpendicular to the track width. The effective track width (TW1) should be determined by measuring the distance from the center of the dual wheels to a point perpendicular to the shifted location of the combined center of mass. This is done by subtracting x from TW. To see how much this would change the original result, subtract x from the track width and recalculate the velocity formula. By allowing for center of mass displacement, the speed is lowered by 5 miles per hour. Therefore, suspension displacement has to be accounted for in reconstructions.

Truck driver fatigue was the apparent cause of a fiery crash in a construction zone on I-39 in Illinois on January 2nd.  The truck driver admitted that he fell asleep entering the construction zone.  The tractor trailer crashed into multiple vehicles, killing three innocent travelers.

I don't just represent people who are run over by tractor trailers. I also represent truck drivers and their widows, and hear a lot of scary tales of how truckers are required to violate hours of service rules despite crushing fatigue in order to make impossible delivery schedules.  It is mind boggling that the Federal Motor Carrier Safety Administration continues to yield to trucking industry pressure to avoid requiring electronic monitoring of hours of service.  As long as the hours of service rules are enforced only through easily falsified paper logs, we will continue to see fatigue-related carnage on the highways.

While I feed my family largely by handling catastrophic damage suits against trucking companies, I receive a lot of interesting communications from truck drivers critical of practices in the industry in which they are the underpaid pawns.  The following was posted as a comment about a specific company, but I'm putting on the blog as a separate post that may well apply to practices in many companies in the trucking industry.

1.  Does the company slogan involve the word "respect" because other employees do not give their drivers respect, and must be reminded by putting it in the recruiting slogan?

Police in Kings Mountain, NC, say a driver’s lack of understanding of the English language appears to have led to a violent wreck between a train and a tractor-trailer.  Truck driver Ricardo Ercia was crossing several train lines in town at South Battleground Avenue and Oak Street when he didn’t obey a traffic sign calling for drivers to go through a second rail line crossing. Fortunatley, there were no serious injuries. The Federal Motor Carrier Safety Regulations require that truck drivers be able to read and understand the English language.

Truck drivers who deliver virtually everything we purchase account for nearly 15% of all work related deaths, and are more at risk than other Americans for a wide variety of health problems.  With a largely sedentary lifestyle, generally alone on the road, many have poor access to -- and give low priority to --  healthy diet and exercise. 

When I'm on the road I often visit truck stops to get a small taste of the lives of truckers - some of whom I represent, and some of whom I sue.  The food available at truck stops is generally high in fat, sodium, sugar  and/or cholesterol.   Exercise facilities are  generally non-existent.  They are essentially fast food / convenience stores with showers, video games, diesel fuel pumps, and a lot of merchandise specific to trucking.  Truckers who spend nearly all their time on the road, pushed to make deliveries on sometimes impossible schedules, generally have little access to anything better.

Partially as a result,  obesity is rampant. Many do not bother to wear seatbelts because their stomachs get in the way. About one in four have sleep apnea. Half of truckers smoke.

Now the Federal Motor Carrier Safety Administration is considering tightening its rules for conditions including diabetes and high blood pressure.  That's a drop in the bucket.

Some of the larger trucking companies have begun serious wellness programs.  Celcedon stations nurses at terminals to administer blood pressure and cholesterol checks.  Melton promotes a 12-week weight loss program and replaced soft drinks with green tea, water and diet drinks in vending machines at its terminals. Con-way cut workers comp claims 75% after instituting a wellness program.  Schneider screened its drivers for sleep apnea and provided air masks for those who tested positive to help them get quality sleep. 

Of course, all this relates not only to the health of truck drivers but also to the safety of others on the road.  A truck driver with sleep apnea pushing to drive long hours is a distinct hazard on the road.  So is a trucker with medical conditions and/or medications that may affect alertness and judgment.

So what should a truck driver do to establish better health habits, for himself, his family, and the safety of others on the road? Here is a link to truck driver health tips, including diet, exercise, smoking cessation, limiting caffeine and sodium.  Some now carry weights in their trucks and jog every day. (32 laps around an 18 wheeler equals one mile.) It would also make a lot of sense to stock up on healthy food -- fruits, vegetables, whole wheat bread, water, etc. -- every week rather than relying upon the junk food available at truck stops.  See A Survival Guide for Truck Drivers: Tips From the Trenches.

There are approximately 141,000 truck crashes every year in the US, according to a The Federal Motor Carry Safety Administration’s 2006 report.  In about 77,000 of these,  fault was attributed to the truck driver.   According to the FMCA 2006 report, the top 10 causes of truck accidents where the truck driver is a fault:

1. Prescription drug use (26%)

2. Traveling too fast (23%)

3. Unfamiliar with the roadway (22%)

4. Over the counter drug use (18%)

5. Inadequate surveillance 14%)

6. Fatigue (13%)

7. Illegal maneuver (9%)

8. Exterior distraction (9%)

9. Inadequate evasive action (7%)

10. Aggressive driving (7%)

We tend to focus a lot of time and effort on the fatigue issue, but according to the FMCSA report we should focus at least as much effort on uncovering prescription and OTC drug use inconsistent with driving a big rig, speed, unfamiliarity with the road, etc.

Fri., 3/9/07, Calhoun, GA. 

In a scene reminiscent of the 1982 Paul Newman movie, "The Verdict," the jury after three hours of deliberation Thursday afternoon sent a note to the judge asking if they were limited by the amount the plaintiff asked for.   In closing argument I had asked for a verdict of approximately $1.2 million for our client's permanently disabling leg injury.  When we got that question from the jury, my first thought was that I don't drink anywhere near enough to fit the Paul Newman role in the movie.

Today we won a $2,345,940.17 jury verdict against a Pennsylvania trucking company in the Superior Court of Gordon County, Calhoun, Georgia.  The verdict was broken down as follows: compensatory damages:  $1,742,845.70, attorney fees due to bad faith in the transaction, $580,948.57, expenses  of litigation $ 22,145.90.  Medical expenses were $112,228.  The highest offer from defendant's insurance company before trial was $125,000, going up to $400,000 on third day of trial. This was nearly three times the highest previous verdict in the history of Gordon County.

The specificity of the figures, down to the penny, helps to refute any allegation that it was a random verdict by a "runaway jury."  These jurors were all deeply conservative northwest Georgia folks who were determined to follow the law and the facts wherever they led, and to do the right thing.

It was a very good week.

Johnson v. Clarendon National Insurance Company, American Trans-Freight, LLC, ATF Trucking, LLC, ATF Logistics, LLC, and Robert W. Carnley, CIVIL ACTION FILE NO. 04-CV-43532

The Truck Safety Coalition is hosting its 2007 Sorrow to Strength Conference at Arlington, VA, on March 10-13, 2007.

Sorrow to Strength is designed for survivors of truck crashes and families/friends of those who have died or been injured. The conference allows survivors to come together for a weekend of sharing, remembrance, workshops and public policy actions to advance truck safety. This conference is open to all survivors, advocates, and legal/medical professionals interested in advancing truck safety.

The last Sorrow to Strength Conference in 2005 produced an agenda of important truck safety priorities, included visits arranged by TSC staff with key lawmakers in Congress and senior officials with the U.S. Department of Transportation, and release of a report comparing truck safety in each state at a press conference in Washington, DC. This year's conference comes at a critical crossroads in truck safety, as trucking interests seek to roll back truck safety rules and laws.

WHEN: Saturday, March 10th - Tuesday, March 13th, 2007

WHERE: Hilton Garden Inn - Arlington/Courthouse Plaza. For reservations, call the hotel directly at 1.877.STAYHGI (1.877.782.9444) or 703.528.4444.

COST: With the Truck Safety Coalition Group/Convention Code (TSG), Friday, Saturday and Sunday is $99 per room per night (tax not included) and $189 for Monday night. There is no fee for the conference itself. Scholarship funding is available to assist with travel costs.

This conference will be organized to discuss both personal experiences and how to work as a powerful, effective constituency. Throughout Sorrow to Strength, you will have the opportunity to meet with safety experts, elected officials, and safety supporters. You play an important role in the fight to improve truck safety and bring down truck crash deaths and injuries. Please, join us for this important meeting.

For more information or to answer any questions about Sorrow to Strength contact the Truck Safety Coalition at crash@trucksafety.org or 1.888.353.4572. For more information see  www.trucksafety.org.

Allen Smith, a former truck driver who publishes the TruthAboutTrucking.com blog, has listed the "Top 10 Causes of Truck Accidents" as follows:

1. Prescription Drug Use 26%
2. Traveling Too Fast 23%
3. Unfamiliar with Roadway 22%
4. Over-the-counter Drug Use 18%
5. Inadequate Surveillance 14%
6. Fatigue 13%
7. Illegal Maneuver 9%
8. Exterior Distraction 8%
9. Inadequate Evasive Action 7%
10. Aggressive Driving Behavior 7%

Driver fatigue is a major cause of highway accidents, including those involving long-haul truckers.  However, it can be difficult to prove fatigue was the cause of a crash since the crash itself wakes up the driver, despite the occasional confession and the strong inferences that can be drawn from truck driver logs that are not "comic books."  Now, however, there is scientific research pointing toward the possibility of a "fatigue-alyzer." A research group at Washington University in St. Louis recently stumbled upon a connection between the digestive enzyme amylase and drowsiness.  For an effective real-world test, researchers need to find a half-dozen or so markers that correlate with drowsiness.   While we may be years from having a working "fatigue-alyzer," the feasibility of such a test points the way to a deterrent to overly tired drivers, just as blood alcohol tests help to deter people from driving while intoxcated.

 Of 953 truckers faulted in fatal crashes from 2000 through 2005, a  Dallas Morning News investigative report found, at least one in four had been convicted of a criminal offense or received deferred adjudication before the crash.  Over 14 percent had committed drug or alcohol offenses prior to their accidents, and more than one in 10 were felons.  At least 137 truckers had one or more criminal offenses in the 10 years prior to their fatal accident. At least 72 had an offense within five years, and 28 truckers had at least one offense in the two years before their fatal accident.  A shortage of qualified truck drivers  leads trucking companies to hire more drivers with serious criminal records.  In Texas, according to the report, there were 80 truckers faulted in accidents from 2000 through 2005 who received their commercial driver's licenses at the two prisons where the truck-driver training program is offered.

The report notes that while most trucking companies will not hire a driver with a DUI conviction in the past five years, they do not otherwise exclude drivers with criminal records.  Employers have an incentive for hiring felons --  a federal tax credit of $2,400 on the first $6,000 an ex-offender earns under a provision established to encourage employers to hire individuals from groups with a high unemployment rate. The report  tracks the  apparently disproportionate safety problems of truck drivers who earned their CDL in Texas prisons.

While it is important that former offenders have opportunities for legal and gainful employment, felony records may be admissible in evidence. Both Federal Rule of Evidence 609 and Georgia Code Section 24-9-84.1 (enacted in 2005) include similar provisions to the effect that a witness, other than a criminal defendant, can be impeached with evidence of a conviction punishable by death or imprisonment of one year or more, essentially a felony, if the "probative value of admitting the evidence outweighs its prejudicial effect to the witness." A witness can be impeached with evidence of conviction of a crime involving "dishonestly or false statement."  Both Federal and Georgia law prohibits the use of a conviction that is more than ten years old unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect.

In light of the Texas study, lawyers representing plaintiffs in commercial motor vehicle collision cases may find it worthwhile to conduct independent investigations of the criminal histories of truck drivers, at least for the previous ten years.  Such inquiry should go beyond merely asking the question of the defendant.

I have nothing against anyone with an impairment of vision or hearing.  I couldn't live in my house if I did.  But sometimes safety trumps equal opportunity. One of those circumstances is in the operation of 80,000 pound tractor trailers at 70 mph on public highways.  Recently we encountered a situation in which a truck driver who was blind in one eye failed to perceive in time  that a vehicle ahead of him was slowing to turn.  Binocular vision with depth perception might have helped.

The Federal Motor Carrier Safety Regulations, at 49  C.F.R.§ 391.41 (b)(10),  provides:

 “A person is physically qualified to drive a commercial motor vehicle if that person: Has a distant visual acuity of at least 20/40 (Snellen) in each eye with or without corrective lenses, or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses; and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; and field of vision of at least 70 degrees in the horizontal meridian in each eye . . . .”

The importance of binocular (two eyes) vision for depth perception was recognized long ago.  Here is an illustration by Leonardo da Vinci.

My bride for the past 23 years has monocular vision due to nerve damage from a brain tumor years ago. She is a wonderful person and a careful driver, but without normal depth perception it would not be safe for her to drive a tractor trailer on the highway.

I have written several times this year about proposals for toll lanes for trucks on metro Atlanta interstate highways.  An article this week shows another reason why this may become a necessity.

The Georgia Department of Transportation expects to spend $160 billion on road construction projects between 2005 and 2035. But revenues from the motor fuel tax that funds road improvement are projected to bring in only $86 billion during the same period. That leaves a $74 billion funding gap.  In addition, federal funding for highway construction has declined sharply in real terms because the federal motor fuel tax is set at 18.4 cents per gallon and is not indexed to inflation, Studstill told the more than 300-hundred attendees at the event. “This shortfall could result in a complete drawdown of the Federal Highway Trust Fund in 2009,” Studstill said. If this occurred, federal highway funds would be exhausted in three years. That leaves a $74 billion funding gap for Georgia roads.

At the same time, increasing road construction costs, population growth and more truck traffic through the state and from the booming port of Savannah increasing pressure on Georgia’s roads.

Three fiscal solutions have been proposed.  One is project-specific Special Purpose Local Option Sales Tax, or SPLOST, on a statewide or regional basis. Another is a statewide 1% sales tax  to replace the fuel tax.  The official estimate is that this would generate $1.5 billion per year, compared with $850 million from the fuel tax.

The third approach would involve public-private partnerships such as toll roads. Georgia law allows GDOT to partner with private or corporate businesses to help finance, design, construct, operate and/or maintain transportation projects. Four are under now consideration in Georgia.

There is also the possibility of rail or other transit relieving commuter pressure on metro Atlanta expressways, while we add another 2 million or more people in the next 25 years. Transit makes good sense in densely populated areas, and the area inside I-285 is rapidly becoming a much more densely packed urban environment.

As with moth things, there are no easy answers.  The tough choices are seldom if ever between good and bad, but between good and good, and between bad and bad.  My hunch is that the federal, state and local government officials will incrementally cobble together some imperfect combination of all these approaches, but we will stay perpetually behind the growth curve until something -- either good (e.g., fantastic new energy technology, etc. spurring stronger economic growth)  or bad (environmental, demographic and/or economic collapse)  -- causes a dramatic discontinuity in our current patterns.

One of the disturbing things we encounter in trucking litigation is the lack of any regulatory requirement of screening for obstructive sleep apnea, even though so many truck drivers fit the profile to be at high risk for the disorder -- middle aged, overweight, hyptertensive, sedentary, etc. According to a July 2002 study released by the Federal Motor Carrier Safety Administration (FMCSA), 28.1 percent of Commercial Drivers License holders have mild, moderate or severe sleep apnea.

Now Schneider National has published a white paper that reveals its sleep apnea screening and treatment program has generated a return on investment in the form of savings on medical costs, accident reduction, reduced turnover and increased productivity.

Most significant for public safety, the study showed a 73 percent reduction in preventable driving accidents among a group of 225 SDB-diagnosed drivers treated with Continuous Positive Airway Pressure (CPAP) devices, which are essentially breathing masks that use air pressure to ensure airways remain open during sleep.

An article in today's Dallas Morning News explains the obvious: "Trucking companies sometimes go to extraordinary lengths to avoid admitting fault in fatal accidents. They purge onboard computers, falsify records and destroy documents that federal law requires them to keep."

We've seen it too often. 

The trucker who killed 5 students and injured 4 when he crashed into a Taylor University van in Indiana last April was grossly over the legal hours of service.  Federal Motor Carrier Safety Regulations limit interstate commercial truck drivers operators to no more than 11 hours of driving time following 10 hours off duty and prohibit driving after the 14th hour since starting work. At the time of the collision he was found by investigators to be more than 9 hours in excess of the 11-hour rule and 10 hours in excess of the 14-hour rule. 

He was also talking on his cell phone and driving with the windows open and air conditioning on full blast in cool weather, presumably to try to stay awake. He now faces criminal prosecution on five counts of reckless homicide and four counts of criminal recklessness resulting in bodily injury.

Most trucking companies and truck drivers are reasonably conscientious about safety.  However, too many are not.  We are litigating a case right now in which a truck driver had destroyed log pages for previous days, substituted those with pages falsely showing that he was off duty, and back up the times on the log for the trip he was on in order to "accommodate" the return trip, and eventually confessed to me that he had been driving 20  of the previous 24 hours.  We found that the owners of the trucking company had personally decided to dispatch him to drive from northeastern Ohio to Atlanta as soon as he returned from the same trek, and he began the return trip after sleeping only an hour in a shipper's parking lot.  However, the company owners who cared so little about safety that they would dispatch a virtually brain dead truck driver across the country to drive an 80,000 pound tractor trailer through the night also chose to cancel their company's excess liability insurance policy.  There will never be true justice in that case, as we will not be able to reach reach the personal assets of the men who made those deliberate choices.

However, there is a legal theory, which unfortunately the judge in that case did not accept, for personal liability of those who dispatch truckers who cannot possibly make their trips legally. 
I have heard from trucking company safety directors that while their bosses have little concern for safety per se, the possibility of personal liability may inhibit reckless dispatching decisions.

Perhaps if the Indiana prosecutor would also prosecute the trucking company officials who chose to put the truck driver in the position of driving nine hours past the legal limit, it would have a salutory effect on public safety throughout the United States.  That's what they do in Japan.

The latest published study on truck driver fatigue hazards, conducted by researchers at the University of Pennsylvania School of Medicine, was published in todays' issue (8/15/06) of the American Journal of Respiratory and Critical Care Medicine.  Dr. Allan Pack who headed the study said the tired truck drivers had impaired performance similar to that of drivers who are legally drunk.

Penn researchers examined 406 truck drivers and found that those who routinely slept less than five hours a night were likely to fare poorly on tests designed to measure sleepiness, attention and reaction time and steering ability.  Drivers with severe sleep apnea, a medical condition that causes a poor quality of sleep, also were sleepy and had performance impairment.

Occasionally we encounter situations where a corporate defendant claims that the employee who was driving the business's truck was on some personal mission, and therefore not in the course and scope of employment.  It is always important to develop the evidence of business related purposes that are somehow related to the trip, as well as any evidence that the employer knew of the employee's unsafe driving in the past.  In Remediation Resources Inc. v. Balding, decided August 9, 2006, the employee stated that his real purpose in traveling to Statesboro was to eat and that his intent to pick up work supplies was secondary, he also testified that he definitely planned to pick up some work supplies. The Court of Appeals held that there was therefore a jury question whether he was within the scope and purpose of employment at the time of the wreck.  The Court also held that a jury issue remained on Balding’s claim for negligent training and supervision, since Findley received two speeding tickets and was involved in two minor car accidents during the 22 years in which he drove for companies owned by the same people, Remediation had no policy manuals to govern employee conduct while driving a company vehicle and Remediation did not keep driver history or qualification files for any employees.

See the full text below.

Last month there was a news story about the New Jersey Committee on Attorney Advertising, a panel appointed by the Supreme Court of New Jersey ruling that attorney advertisements that tout listings such as the "Super Lawyers" listings violate professional responsibility rules against ads that compare lawyers’ services or create an "unjustified expectation about results."  That gave me pause, as it did the marketing folks at every big law firm in Atlanta, since the profile on my web site includes listings in the "Super Lawyers" issue of Atlanta Magazine, "Legal Elite" issue of Georgia Trend magazine, and the Bar Register of Preeminent Lawyers.

However, the Fulton County Daily Report published an article on August 11th reporting an analysis to the effect that,  while Georgia’s ethics rules contain proscriptions against comparative advertisements and ads that create unwarranted expectations, the language in Georgia is more permissive than that found in New Jersey’s ethics rules. The New Jersey rule prohibits as false and misleading any advertisement that "compares the lawyer’s services with other lawyers’ services." Under Rule 7.1(a)(3) of the Georgia Rules of Professional Conduct, the rule against comparisons does not apply if the comparison "can be factually substantiated."

The "Super Lawyers," "Legal Elite," and "Preeminent Lawyers" lists are all based upon periodic surveys of our peers in the legal profession, and cannot be purchased.  While the methodology is certainly not perfect, neither is it meaningless or factually unsubstantiated.  Therefore, we will continue to include those designations on the web site.

The Large Truck Crash Causation Study announced by U.S. Federal Motor Carrier Safety Administration this past spring is now available to the public. LTCCS is the first-ever national study to attempt to determine the critical events and associated factors that contribute to serious large truck crashes allowing the DOT and others to implement effective countermeasures to reduce the occurrence and severity of these crashes.  A few key points are:

• Severity.  23.1% of large truck collisions involved a fatality, and 28.7% caused an incapacitating injury.
• Tractor-trailers predominant.  62.2% of large truck collsions involved tractor-trailer combinations.
• Types of contact:  23.1% of large truck crashes involved rear end collisions, 17.8% invovled trucks off the road or out of lane, and 10.3% involved sideswipe collisions.
• Types of critical errors attributed to truckers: Of crashes where the trucker was determined at fault, 32.1% were off the road or out of lane, 28.6% lost control (too fast for conditions, etc.), 21.7% involved contact with another motor vehicle in the travel lane, and 10.3% involved turning or crossing an intersection.

A Nashville reporter did an analysis of truck wreck data and found that truck drivers who violated hours of service rules, fell asleep and caused wrecks were seldom ticketed and fined. Out of 64 truckers who were reported as "apparently asleep" and either injured or killed someone, 70% did not even get a ticket. Of 1900 truck drivers ticketed for driving excess hours, the average fine was $231. One trucker who admitted he fell asleep at the wheel slammed into a convenience store, killing a man pumping gas and causing an explosion. The trucker was never prosecuted or ticketed and still has a valid license - which shows no sign of the accident. He could be hired to haul hazardous material tomorrow.

What should a victim -- or more likely family members and friends -- do immediately after a catastrophic truck wreck?

In many types of personal injury or wrongful death cases, it doesn't matter a great deal if one waits several months to even think about talking to a lawyer. So long as evidence is preserved and suit is filed before the statute of limitation expires -- two years in Georgia -- haste in bringing a claim can sometimes seem, well, almost unsavory.

But interstate trucking cases are different. A couple of ways in which they are different were highlighted at a national seminar for trucking defense lawyers that I attended, very quietly, this week in Chicago.

First, you need to understand the speed with which trucking companies and their insurers spring into action after a truck wreck. One speaker, the risk manager of a major national trucking company, talked about how to manage claims from the first report of the accident. As soon as the truck driver reports the wreck to the dispatcher, the risk manager gets a call at home, even it's at 3 AM. The risk manager then places a call to their designated defense lawyer in that state -- at home at 3 AM. The defense lawyer then retains a claims investigator, under the cloak of "attorney work product," to immediately go to the scene. Within an hour or two after a crash occurs, the company thus has a claims investigator at the scene seeking evidence favorable to the defense. They will never talk about it at defense lawyer seminars, but I've been around too long to be surprised at the idea of an insurance claims investigator making unfavorable evidence, such as logs showing extreme violations of hours of service rules, "disappear" in the post-wreck confusion. Moreover, the trucking company's defense lawyer may also be at the scene, sitting in his car just out of range of any investigators' cameras, directing the claims investigator's activity.

The next step is to begin trying to lull the victim and her family into inaction by promising to "do the right thing," and perhaps making an offer of settlement that is large enough to be tempting, but at a bargain price in light of what the company knows. The objective is to deal directly with the victim, telling her that she doesn't need an attorney. Remember that the trucking company and insurance company at that point have a defense lawyer and several claims professionals working on their side, seeking to isolate the victim from professional assistance as long as possible.

Meanwhile, there is a tremendous amount of evidence that may be lost forever if the victim doesn't have a knowledgeable, forceful attorney who can quickly act to preserve it. The larger trucking companies generally use on-board computers and satellite communication systems that generate an enormous amount of data that may be invaluable to the victim's case. The companies that provide those services to truck fleets have record retention policies providing that data on truck operations is transmitted to the trucking companies, then purged from the provider's computer system within 14 to 30 days. The data transmitted to the trucking companies is subject to "modification" and it is extraordinarily difficult and expensive to prove that data was altered.

In addition, trucking companies typically have record retention policies to purge such records in no more than the six months that the Federal Motor Carriers Safety Regulations require for preservation of driver logs, or other retention periods for other records.

There is also "black box" data generated by engine control modules (ECM's) on all late model road tractor engines. Such data is extremely important in proving the performance of the truck and its drive. It must be downloaded according to manufacturers' protocols, and if not promptly downloaded may be lost forever.

Without immediately retaining a lawyer who is prepared to immediately demand that the companies preserve a long list of paper records and electronic data after a wreck, the company may well destroy that information according to internal records management policies that are permissible under the Federal Motor Carrier Safety Regulations. If necessary, one may need to file a suit just to require preservation of evidence prior to filing a personal injury or wrongful death case.

Allowing oneself to be lulled into inaction by representatives of a company that is busy gathering evidence favorable to the defense and avoiding preservation of unfavorable evidence, is a tragic outcome for trusting injury victims.

While a highly competent and ethical lawyer who practices in another specialty may have the resources to quickly identify a trucking lawyer, most lawyers really don't know the ins and outs of trucking cases well enough to take timely and appropriate action. Most of our cases come by referral from lawyers in other specialties with whom we share responsibility and fees. See attorney referrals.

Sometimes I get comments from truck drivers who say the items I post are too one-sided. Sorry about that. I certainly recognize that a majority of truck drivers are hard-working, reasonably safety conscious folks, and not all truck wrecks are the fault of the truckers. That doesn't meen I accept at face value the trucking industry propoganda that blames 80% of truck wrecks on other motorists, however.

Recently I met a truck driver at a roadside diner away from Atlanta to find out what he could tell me related to one of my cases. We had a good visit.

Regarding problems caused by other motorists on the highway, he talked about seeing drivers who have a newspaper propped on the steering wheel, while eating and talking on their cell phones and whipping around in front of his truck. Certainly we all should use common sense, pay attention, avoid such distractions, and drive defensively.

As for the new hours of service rules, he lamented the inflexibility of a system that penalizes the driver who recognizes the need to pull over for a "power nap" in the middle of his authorized hours. He has a point.

He told of times when he was forced to violate hours of service rules, and perhaps to falsify logs, due to the demands of employers and shippers. He told the story of a shipper who did not release a load to him until about seven hours past the scheduled pickup time, but insisted that it had to be at the destination by a deadline with which it was impossible to comply without grossly violating several Federal Motor Carrier Safety Regulations. That made me start thinking about the potential responsibility of shippers and brokers under 49 CFR 390.13, which provides that "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter." It doesn't say "no motor carrier," but "no person."

Finally, on the way out of the cafe, I noted that this good guy who drives trucks for a living has a rebuilt Volvo as his personal vehicle. He knows, as I know, that it's really hard to get killed in a Volvo.

Today's New York Times reports that a growing shortage of qualified over the road truck drivers is leading cokmpanies to offer generous 401(k), stock option and health care packages to new recruits and cash bonuses and prizes to drivers who refer viable candidates. To compete with other companies for experienced drivers, some are outfitting more of their cabs with satellite radio and television and introducing policies to allow drivers to bring pets and spouses on the road. Schneider holds "driver recognition days" every few months at regional repair shops, featuring Elvis impersonators, free barbecue and raffles for motorcycles and iPods. Part of the problem is that trucking competes with construction work for the same labor pool, and construction allows workers to be at home with their families, bearing less stress, rather than being away for a week or more at a time under difficult time pressure. In 2004, according to the U. S. Department of Labor, the average annual pay for a truck driver was $34,920, compared with $37,890 for a construction worker. The driver shortfall is expected to worsen in coming years since about 219,000 of the country's 1.3 million long-haul truckers are over 55 and are likely to retire in the next 10 years. To meet the growing need, some carriers are turning to new sources of labor like women, retirees and especially Hispanics. The number of truck drivers who are not white males increased to 30 percent in 2004, up from 26.6 percent in 2001. Hispanics now account for 15 percent of all truck drivers, up from 12 percent during the same period, federal records show. The article reports on efforts to attract husband-wife driver teams.

The article does not mention the effect of all these factors on public safety. A shortage of qualified drivers leads some companies to scrape the bottom of the barrel, and the pressures of the job tempt drivers to break the safety rules. The result is too often dead and maimed people on the highways.

The Birmingham News reports today that tired truck drivers have killed 104 people on Alabama roads in the past three years. As we have frequently noted here, this is part of a national problem. From 2002 through 2004, the latest year for which statistics are available, there were 10,797 Alabama accidents in which the truck driver was listed on the wreck report as being at fault. In those crashes, 104 people died. That does not include the many instances in which driver fatigue was a dominant factor, but the reporting police officer did not mention it on the accident report. (I see that all the time. Recently an Ohio truck driver admitted to me in deposition that his log was completely falsified and he had been driving 20 of 24 hours before running over a family and killing their son, but the state trooper did not mention driver fatigue on the accident report because he relied on the phony log.) The Federal Motor Carrier Safety Administration says 15 percent of all truck crashes nationwide are caused by fatigue. Based on that percentage, 1,619 of the Alabama crashes during the three-year period were attributable to drowsiness.

A study of truck crashes conducted by the U.S. National Transportation Safety Board found that 31% of fatal-to-the-driver commercial truck crashes were caused by driver fatigue. That problem is worldwide.

New studies in Canada, Australia and South Africa report a significant percentage of long-haul truck drivers average 4 hours sleep our of 24. (13% in Canada, 1/3 in South Africa). It is widely accepted that both fatigue and sleep deprivation are major contributors to truck accidents. A study published in the South African Journal of Science reports that falling asleep at the wheel contributed to a quarter or more road accidents involving heavy vehicles. Truckers reported working well in excess of the lawful hours which were poorly enforced. These restrictions cannot be enforced and drivers are under pressure to supplement their income and to meet company expectations.

For those drivers who do manage to get some sleep in their truck, the South African study reported that their sleep was interrupted mostly by noise as well as light, outside activity and extremes of heat or cold. Nearly 80% of drivers surveyed complained of interrupted sleep; in this case poor sleep is associated with up to 62% of incidents where drivers nodded off at the wheel, increasing the risk of causing a road accident. Sleep apnea and other sleep disorders were associated with two-fold increase in sleep-related road accidents compared with drivers without sleep disorders. Drivers who snore or show signs indicative of sleep apnoea are also more likely to be overweight. Obese drivers who snore or experience excessive daytime sleepiness fall asleep at the wheel more often and are twice as likely to have an accident compared to those who do not snore. Almost all the drivers interviewed stated that they started driving between 1 am and 8 am, a period when melatonin levels are high and the stimulus for sleep is also high.

A Canadian study of truckers' sleep patterns reported that drivers slept an average of only 4.78 hours--2 or more hours less than their reported ideal amount of sleep. Schedules had a "significant effect" on how long drivers slept in a given period. On average, daytime drivers slept for longer periods than night drivers (5.38 hours vs. 3.83 hours). The average 4.78 hours of sleep from the study was "much shorter than most standards." Sleep research shows the chances of falling asleep during normal waking hours increase if a person sleeps less than six hours and has "successive days" of too little sleep. Not enough sleep leads to more errors and inattentiveness and diminished psychomotor skills. Research also shows that "night driving after relatively little sleep is a better predictor of fatigue-related accidents than is night driving alone."

The South African and Canadian studies is consistent with what we see here too often. A couple of weeks I took a deposition of a truck driver in Ohio who wound up admitting that he had gotten only 4 hours sleep in the last 24, that he had grossly violated the hours of service regulations, that his logs were completely falsified, etc. He stopped just short of admitting that he was asleep on cruise control when he ran over a family in Georgia and killed their kid. More often the truck drivers deny everything, even if their logs cannot be found and they "can't remember" if they had stopped for rest.

And it's not just innocent travelers on the road who are hurt. Frequently I see news reports of truck drivers who were killed when they inexplicably ran off the highway and crashed in the early morning hours.

A U.S. District Court judge in Colorado has ruled that violation of the FMCSR driver log rule is negligence of a matter of law, but that the plaintiff must present evidence of a causal relationship between the violation and the wreck. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court ruled:

[T]he requirement that drivers keep an accurate log of their duty status is related to the safety of other travelers on the road. Drivers are required to record their duty status so compliance with the limitations on hours of service contained in Part 395 can be monitored and enforced. FMCSR 395.3 and 305.5 provide specific limitations on the number or hours a commercial vehicle operator can be driving during certain periods of time. Although the regulations do not explicitly declare their purpose, the tie between safety and fatigue is clear. Safety undoubtedly is one of the key purposes of the limitations on hours of service in Part 395, and of the record keeping requirement of FMCSR 395.8. I find that this regulation was intended to promote the safe operation of commercial vehicles, including the safety of people, like the plaintiffs, who share the road with commercial vehicles. Although FMCSR 395.8 also might have been designed to aid the management and organization of commercial vehicles, as the defendants argue, the connection between safety and limitations on driving times is so clear that I cannot disregard that purpose. A tired driver has the same potential to jeopardize the safety of others on the road as does a truck stopped on the highway.

Then, unfortunately, the court found that in the absence of evidence in the record to show a causal connection between the log violation and the wreck, summary judgment was granted on the log book violation portion of the claim.

Hill v. Western Door should be read in conjunction with Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005), in which the plaintiff presented evidence of causation through two expert reports -- one an expert on trucking safety and the other an expert on driver fatigue issues -- to the effect that the violations were the precipitating factors leading to the collision.

Three headline-making fatal truck accidents occurred in a 15-hour period this week, killing 19 people. A truck wreck Jan. 25 killed seven children in Florida. A few hours later in Illinois, a wreck killed two adults and three children, plus the driver of the big rig. The next morning, a wreck killed six people in Texas.

Washington, 12/2/05.

The Federal Motor Carrier Safety Administration's regulations governing minimum standards for entry-level truck driver training are inadequate based on the record developed during the rulemaking process, a federal appeals court ruled today.

The minimum requirements adopted last May by the Federal Motor Carrier Safety Administration involve only classroom education and in only four areas: medical qualification and drug and alcohol testing; hours-of-service regulations; wellness; and whistleblower protection.

The court said: "The (FMCSR staff's) Adequacy Report determined that effective training for CMV drivers required practical, on-the-road instruction on how to operate a heavy vehicle. But FMCSA ignored this evidence and opted for a program that focuses on areas unrelated to the practical demands of operating a commercial motor vehicle."

The appeals court agreed with Advocates that the sharp contrast between FMCSA's earlier conclusions and the terms of the final rule shows the agency's actions to be "arbitrary and capricious" and in violation of the Administrative Procedure Act. "The agency, without coherent explanation, has promulgated a rule that is so at odds with the record assembled by DOT that the action cannot stand. Accordingly, we grant the petitions for review and remand the final rule to the agency for further rulemaking consistent with this opinion."

It does seem incredible that the FMCSA would adopt truck driver minimum training standards that do not include having to actually drive a truck on the highway. But, hey, new lawyers have been admitted to practice law for generations without ever actually trying a case or counseling a client.

On 11/11/05 in Gwinnett County, a Gainesville man was killed when a tractor-trailer ran a red light and struck his pickup truck.

Kevin Tanner, 32, died from his injuries at Gwinnett Medical Center about eleven hours after the tractor-trailer driver, Theodore Banks, 28, reportedly of Jonesboro, allegedly ran the red light and hit him.

Tanner, a native of Hall County, was the sole proprietor of D&D Electric. He is survived by his wife, Amy Cargile Tanner; son, Brandon; and daughter, Hailey.

See Gainesville Times article.

Elgin, IL, 11/30/05.
A truck carrying 42,000 pounds of gravel sped through a red light, stuck a minivan and 8 other vehicles, and killed the driver of the minivan. The driver of the gravel truck was to be tested for drugs and alcohol. See news story.

In many states trucks carrying road construction materials, timber, and products of mines, farms and forests, are minimally regulated and have lax safety practices.

The Administrator of the Federal Motor Carrier Safety Administration (FMCSA), outlined a new effort on the part of the agency to concentrate more on truck driver-related issues.

As part of this shift of emphasis, FMCSA plans to start work on the following in 2006:

Development of a Commercial Driver's License (CDL) learner's permit with a single federal standard.

Inclusion of the driver medical certificate with the CDL.

Tougher medical examiner standards in order to screen out drivers involved in accidents who should never have been put behind the wheel.

Increase research on driver fatigue factors and especially focus on the physical problems associated with sleep apnea and problems exacerbated by a poor diet and lack of exercise.

Wireless roadside inspection technology that would allow federal safety inspectors to "plug into" trucks so they can get a quick read on vehicle issues.

Expansion of FMCSA's TACT [Targeting Aggressive Cars and Trucks] program that puts state troopers in commercial trucks to write citations for aggressive behavior they see on the part of both cars and truckers.

See Fleetowner article.

According to a report from the General Accounting Office, states fail to report one-third of commercial trucking accidents that they are required to report to the Federal Motor Carrier Safety Administration. Large trucks make up 3 percent of the nation's registered vehicles, but they were involved in 11 percent of all fatal crashes in 2003. To reduce the truck and bus accident fatality rate, the FMCSA sets national safety goals and works in partnership with states to reach them. Crash data collected by states and submitted to the FMCSA is key to these efforts, and to be fully useful, this data must be complete, timely, accurate, and collected in a consistent manner. However, with one-third of truck crashes unreported, the crash data does not meet general data quality standards of completeness, timeliness, accuracy, and consistency. See story.