June 2006

One person was killed in a truck-car wreck on Interstate 85 southbound late Friday. As it changed lanes, a tractor-trailer moving from the far left lane to the far right lane at Jimmy Carter Boulevard sideswiped a Mercury.  The Mercury came to a complete stop in one of the highway’s through lanes, and a Toyota Camry came to a complete stop behind it. But a second tractor-trailer struck the Camry, which held three adults and a child.  A passenger in the back seat was killed, and a child in the back seat was injured.

No statistics are available, but I’m beginning to suspect that the new hours of service rules adopted by the Federal Motor Carrier Safety Administration may be helping to reduce the incidence of fatigue related truck crashes.  This is just an impressionistic hunch and extremely preliminary, but there may be a trend.

For nearly a year and a half, I have had news feeds on Google and Yahoo to provide material about tractor trailer crashes for the "Truck Wreck of the Day" feature on this blog.  A year ago there were frequent news stories about dramatic and devastating truck wrecks that appeared to a fit a pattern consistent with driver fatigue.  I still see some, a lot of which involve injury to the truck driver only.  However, the overall impression in seeing the news stories stream through is that there appear to be fewer wrecks fitting that pattern.

And, as I drive the interstates, I see rows of trucks lined up for the drivers to take their mandatory rests breaks.

Could it be that the  new hours of service rules, which have been subjected to much criticism from drivers and safety advocates, are actually doing some good?  The jury is still out.

Washington State Patrol troopers say that a recent rash of intoxicated truck drivers hauling heavy loads down Washington highways has them stepping up efforts to get impaired truckers off the road. One truck driver was hauling a 140,000 pound load (limit is 80,000 pounds) and hisbreath test registered over .08 , which is more than double the legal limit for truckers. Another trucker had a small operational meth lab in the back of his cab.

49 CFR 392.3 provides that: "No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed. "

49 CFR 392.5 requires: "(a) No driver shall–(a)(1) Use alcohol, as defined in 382.107 of this subchapter, or be under the influence of alcohol, within 4 hours before going on duty or operating, or having physical control of, a commercial motor vehicle…."

49 CFR 391.15 provides that, "A truck driver is automatically disqualified if caught driving under the influence of alcohol or drugs, with a blood alcohol score of 0.04 gr/%, and cannot consume any alcohol within four hours before driving."

Topeka, KS.  The driver of a semi truck crossed the median and collided with another tractor trailer about 1:00 a.m. Monday morning.  Both vehicles caught fire and both drivers were killed at the scene.

The most likely hypothesis in this scenario is that the driver who crossed the median fell asleep.  Investigation should include examination of driver logs (which may not be accurate), shipping documents, gas and toll receipts, on-board communications and GPS systems, etc. Another hypothesis is tire or mechanical failure affecting a front wheel, resulting in loss of control.  Both possibilities should be explored in a truck wreck fitting this pattern.

Atlanta, 6/7/06.
Randy Carnes, 47, of Winston, Georgia, was killed in a dramatic crash on the shoulder of I-285 just north of Cascade Road.  Mr. Carnes was a mechanic for UPS working on a UPS truck that was stalled on the shoulder of the highway.  A tractor trailer driver apparently fell asleep and drifted out of the traffic lanes, striking Carnes’ truck that was parked behind the UPS truck under which he was working.  This set off a chain reaction. 
The tractor-trailer that hit the mechanic’s vehicle then jackknifed and hit two other trucks and a car, pinning the car against the median wall.  In addition to Carnes, three other people were injured, and diesel fuel and UPS packages were strewn across the expressway.

Several possible violations of Federal Motor Carrier Safety Regulations may be involved here:

49 CFR 392.3: “No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”

49 CFR 395.3:
Maximum driving time for property-carrying vehicles.
Subject to the exceptions and exemptions in Sec. 395.1:
(a) No motor carrier shall permit or require any driver used by it to drive a property-carrying  commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle:
(1) More than 11 cumulative hours following 10 consecutive hours off duty; or
(2) For any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty, except when a property- carrying driver complies with the provisions of Sec. 395.1(o) or Sec.
395.1(e)(2).
(b) No motor carrier shall permit or require a driver of a property-carrying commercial motor vehicle to drive, nor shall any driver drive a property-carrying commercial motor vehicle, regardless of the number of motor carriers using the driver’s services, for any period after–
(1) Having been on duty 60 hours in any period of 7 consecutive days if the employing motor carrier does not operate commercial motor vehicles every day of the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.
(c)(1) Any period of 7 consecutive days may end with the beginning of any off-duty period of 34 or more consecutive hours; or
(2) Any period of 8 consecutive days may end with the beginning of any off-duty period of 34 or more consecutive hours.

49 C.F.R. § 390.13:  "No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter."

The Georgia DOT is consideirng a proposal for a private consortium to add toll lanes for trucks to portions of I-285 and I-20 in metro Atlanta.   The proposal would have the investment banking firm Goldman Sachs, the engineering firm PBS&J and the law firm McGuire Woods to help develop and finance a possible expansion of I-285 and I-20.   These private truck lanes would be completed by 2014, around the same time as the I-75 project that just went under contract and has truck lanes.  The propsoal would affect I-285’s western quadrant and  I-20 to Thornton Road.

It is a creative, intriguing possibility for separating truck and passenger traffic on the state’s most congested roadways where we have seen numerous catastrophic crashes.

Perry, GA, 6/6/06. 

A Perry man injured when rear-ended by a tractor-trailer on Ga. 247 died Tuesday night at a Macon hospital.  Duane Rothe, 55, of Perry, suffered a serious head trauma and internal injuries in the 9:50 a.m. accident, Houston County sheriff’s Cpl. Sean Alexander said. Rothe was transported to The Medical Center of Central Georgia. James Rountree, 55, of Hagan, the driver of the tractor-trailer, was charged with following too closely, reckless driving and serious injury by a vehicle.  The latter charge will likely be upgraded to vehicular homicide.

While there are no published decisions adopting this position, it is theoretically possible to hold trucking company owners and officers personally liable for their personal participation in dispatching drivers on trips that cannot possibly be lawfully completed.
Violations of Federal Motor Carrier Safety Regulations provide applicable standards of care, breaches of duty, and evidence of negligence, specifically including:
49 C.F.R. § 390.13: “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”
49 CFR 390.5: “Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.”
49 CFR 392.3: “No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”
49 C.F.R. § 395.3 (2003 version): “Except as provided in §§ 395.1(b)(1), 295.1(f), and 395.1(I), no motor carrier shall permit or require any driver used by it to drive not shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.
Violations of Federal Motor Carrier Safety Regulations establish standards of care upon which a jury should be instructed in negligence actions. . See, e.g., Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist., 2005); Donaldson v. J.D. Transportation Co., Inc., 2005 WL 1458230 (Tx. App. 2005); Payne v. Cornhusker Motor Lines, Inc., 2005 WL 1867727 (Mo.App. 2005); Ngueyn v. Arce, 34 Fed.Appx. 879, n. 4 (4th Cir., 2002)(not selected for publication); Green v. Prouty, 2001 WL 1773871 (Ohio App. 5 Dist., 2001); Muehlhauser v. Erickson, 621 N.W.2d 24 (Mn. App., 2000); Hagan v. Gemstate Manufacturing, Inc., 328 Or. 535, 982 P.2d 1108 (1999); Harmon V. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir., 1987); Osborne Truck Lines, Inc., V. Langston, 454 So.2d 1317 (Ala. 1984); Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 39 Fed.R.Serv.2d 1217, 17 Fed. R. Evid. Serv. 97 (1984). In appropriate cases FMCSR violations may also be charged as negligence per se or negligence as a matter of law. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court held that violation of the FMCSR driver log requirement is negligence as a matter of law. If the driver’s violation is negligence per se, there is certainly a good faith argument that the acts of the company owners who aid and abet the violation by dispatching the driver under circumstances that the violation must occur also constitutes negligence per se. See also, North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 123-4 (Tx. App. 2001); Crooks v. Sammons Trucking, Inc, 2001 WL 1654986 (Cal.App. 3 Dist. 2001)(unpublished opinion); cf., J.R. Mabbett & Son, Inc. v. Ripley, 185 Ga.App. 601, 365 S.E.2d 155 (1988). In addition, FMCSR violations may be considered as foundations for award of punitive damages in appropriate cases. See, e.g., Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill., 2006); Came v. Micou, 2005 WL 1500978 (M.D.Pa., 2005).
Georgia cases outside the trucking context support the principle of personal liability of corporate officers for their personal acts and omissions. In Moore v. Barge, 210 Ga. App. 552, 436 S.E.2d 746 (1993), the court wrote:

Although shareholders or officers in a corporation enjoy a limited liability, they may be held liable individually for their own tortious or wrongful acts. Zagoria v. DuBose Enterprises, 163 Ga.App. 880, 886, 296 S.E.2d 353 (1982), rev’d on other grounds, 250 Ga. 844, 302 S.E.2d 674 (1983); Wrigley v. Nottingham, 111 Ga.App. 404, 406, 141 S.E.2d 859, rev’d in part on other grounds, Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749 (1965). “One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.” Wrigley, 111 Ga.App. at 406, 141 S.E.2d 859. (210 Ga. App. at 553)

In Beasley v. A Better Gas. Co., 269 Ga. App. 426, 604 S.E.2d 202 (2004), a fatal gas fire occurred two years after the gas company’s employees made an installation, and the gas line was later damaged, constituting an intervening proximate cause. There was no evidence that the president of the gas company had an individual role. While finding no liability under those facts, the court noted:

The general rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein. . . . Cherry v. Ward, 204 Ga.App. 833, 834(1)(a), 420 S.E.2d 763 (1992). Where “the evidence is insufficient to pierce the corporate veil … the liability of the corporate officers for a tort committed by the corporation is dependent upon separate evidence of direct participation in the tort.” (Citation and emphasis omitted.) Speir v. Krieger, 235 Ga.App. 392, 400(4), 509 S.E.2d 684 (1998).

Of course, discovery of the facts of an owner’s or officer’s personal participation in dispatching drivers to make runs that cannot be completed without violation of FMCSR’s is difficult, and persuading a judge to adopt this line of reasoning may be difficult. But it could happen.