September 2008

As a trucking trial attorney, I see it all too often.  And now again.  Early yesterday morning a tractor trailer loaded with sand ran a stop sign in south central Florida, striking a van on the right side. and killing six men.  According to an Associated Press report by Christine Armario, investigators were still trying to determine while the West Coast Aggregate 18-wheeler failed to stop for the stop sign. Authorities were still seeking to identify the six victims who were thought to be HIspanic.

Cristela Guerra and Janine Zeitlin of the Fort Myers News-Press

reported that the tractor-trailer was  hauling sand out of Ortona Sand Co., five to six miles from where the accident occurred.  The van, registered to a farm labor contractor, was not authorized to transport farm workers and had not passed vehicle safety inspections. 

According to USDOT information, West Coast Aggregate Haulers is based in Venice, Florida, and reports operation of only one power unit, hauling aggregate on interstate trips only. In the past 24 months West Coast Aggregate had two truck inspections, failing one of them. 

Florida requires only $300,000 liability insurance for trucks of intrastate haulers with a gross vehicle weight of 44,000 to 80,000 pounds, compared with the minimum $750,000 required for interstate truckers and the measly $100,000 required for intrastate haulers in Georgia.  However, we often find in Georgia that trucks hauling timber and  building materials such as sand actually carry $1 million liability coverage due to contractual requirements.

The National Highway Traffic Safety Administration reported  the following statistics on school transportation accidents between 1996 and 2006.

* 1,536 people  died in school transportation-related crashes. Compare that with 41,059 traffic fatalities in the United States in 2007 alone.

* An average of 40 people per year died in school bus accidents.

* 72 percent of school bus accident fatalities were occupants of other vehicles.

*  20 percent were non-occupants such as pedestrians or bicyclists.

*  7 percent were school bus occupants.

* About 57 percent of crashes involving a school bus involved another vehicle.

* In 53 percent of all crashes involving fatalities to occupants of a school bus, the principle point of impact was the front of the bus. The least common point of impact was the rear.

* Of 41 fatal school bus crashes between 1996 and 2006, 17 involved the front of the bus, 6 involved the right side, 3 involved the left side, and 3 involved the rear.

* Each year, 23.5 million children ride 450,000 school buses to school.

* Those 450,000 school buses travel about 4.3 billion miles annually.

A Florida truck driver admitted that he was on his cell phone yesterday when he slammed into a school bus, killing a 13-year-old student. According to a report by Austin Miller of the Ocala Star-Banner, the school bus, which had stopped to let children off , had its warning lights on and stop signs out. The truck driver said he never saw the bus. He  failed to stop for it and rammed the school bus forward 294 feet. The bus was fully engulfed in flames. 

See our recent posts on cell phone distractions and the absence of seat belts on busses.

When cell phones and then text messaging came along, a lot of folks just figured they could drive as safely talking on a cell phone as talking to a passenger. I was one of them.   A couple of years ago we began to see reports of studies showing that driving while talking on a cell phone was as dangerous as driving drunk and that text messaging while driving is an even bigger distraction.

The recent train wreck in the LA area that killed 25 and injured 130 occurred when the train engineer missed a signal light while text messaging with teenage train enthusiasts.  This may be the consciousness raising event that leads to changes in laws and enforcement practices comparable to what we saw a quarter century ago about driving while intoxicated.

Current state laws on this emerging topic include:
    * Cell phones:  California, Connecticut, New Jersey, New York and Washington, the District of Columbia and the Virgin Islands have banned driving while talking on handheld cell phones.
    * Text Messaging:  Alaska, Louisiana, Minnesota, New Jersey and Washington have a text messaging ban for all drivers.
    * New Drivers: 17 states and the District of Columbia restrict all cell phone use by novice drivers.
    * School Bus Drivers: In 16 states and DC, school bus drivers are barred from all cell phone use when passengers are present, except for in emergencies.
    * Other rules:  Some cities, such as Phoenix and Detroit, have cell phone laws, but nine  states have preemption laws that prohibit local jurisdictions from enacting restrictions. Utah and New Hampshire treat cell phone use as a larger distracted driving issue.

My guess is that legislators around the country will soon pass more laws requiring use of hands free devices when talking on cell phones while driving and banning text messaging while driving. 

In auto and truck accident litigation, we have become  diligent  about discovery of cell phone and text messaging records. With increased sophistication about electronic discovery, this will be an an even more important factor in accident litigation. 

There are at least three potential uses of cell and text evidence:

1. The defendant’s cell phone and text usage while driving may be considered "conscious indifference to consequences" sufficient to support an award of punitive damages, similar to drunk driving.

2. The plaintiff’s cell phone usage at the time of the incident may be used as comparative negligence evidence to reduce or eliminate a damages award.

3.  If the evidence reveals that a defendant driver was communicating with an employer, or to a customer on the employer’s business, then the employer and its insurance policy may be drawn into the case.