By: John A. Houghton
The mind-numbing monotony of a tractor-trailer driver’s work can be a significant source of fatigue while on the roadway. Frequently, tractor-trailer injury collisions occur as a result of commercial drivers' prolonged periods under dispatch with insufficient rest. Traveling long distances while attempting to make deliveries on time can result in careless lane changes or observational problems identifying traffic in the roadway ahead. A Large Truck Crash Causation Study (LTCCS) commissioned by the Federal Motor Carrier Safety Administration found that the most frequent critical event for large truck drivers involves running out of the travel lane, either into another lane or off the road (32 percent of the large trucks in the LTCCS sample were assigned this critical event). See Publication No. FMCSA-RRA-07-017. Such wrecks are consistent with overworked or tired truck drivers attempting to keep such large vehicles in their lane of travel.
We are seeing an increase of cases where the Defendant motor carrier disputes liability for the cause of the wreck, but then provides an incomplete picture of the driver’s hours of service once litigation begins. This underscores the important role that spoliation letters play early in the process, when a victim’s attorney should immediately notify the motor carrier, the insurer and the driver to preserve all federally required evidence.
The Federal Motor Carrier Safety Regulations (FMCSR) are intended to keep motor carriers and their drivers operating commercial motor vehicles in a safe manner. Many times, drivers for the large motor carriers operate vehicles during time periods that do not violate hours of service restrictions, but nevertheless put the trucker on the roadway extraordinarily late at night. However, there are a number of instances in which drivers are involved in collisions while they are over their maximum hours of service. Evidence of this should be preserved by the motor carrier, but often is not. Hours of service regulations are aimed at combatting fatigue and preserving this evidence for the injury victim.
The same FMCSA-sponsored study found that “Fatigue, drinking alcohol, and speeding are major factors in motor vehicle crashes overall. Although their presence does not always result in a crash, these three factors, as well as other driver, vehicle, and environmental factors, can increase the risk that a crash will occur. In the LTCCS, 'causation' is defined in terms of the factors that are most likely to increase the risk that large trucks will be involved in serious crashes.” (Publication No. FMCSA-RRA-07-017)
Medical studies published by the National Institute of Health have shown that moderate sleep deprivation and fatigue produces cognitive impairment similar to levels of alcohol intoxication. See Occup Environ Med. 2000 Oct; 57(10): 649–655. “After 17-19 hours without sleep, corresponding to 2230 and 0100, performance on some tests was equivalent or worse than that at a BAC of 0.05%. Response speeds were up to 50% slower for some tests and accuracy measures were significantly poorer than at this level of alcohol.” Id.
Given this backdrop, it becomes easier to understand the need to place limitations on driver’s hours of service. 49 C.F.R. § 395.3 provides that a driver may drive only during a period of 14 consecutive hours after coming on duty following 10 consecutive hours off duty. The driver may not drive after the end of the 14-consecutive-hour period without first taking 10 consecutive hours off duty. For motor carriers that operate every day of the week, these drivers may drive a maximum of 70 hours in any consecutive 8 days. 49 C.F.R. § 395.3(b)(2)
Further, 49 C.F.R. § 395.8(a)(1) requires a daily entry of the driver’s duty status on a log grid for each 24 hour period. Commercial drivers are required under the regs to keep or have available for inspection the previous 7 days of driving logs at any given time; motor carriers are required to maintain these records for at least 6 months (or longer if they are properly provided a request for preservation from the victim’s counsel following a collision).
It is important for the Plaintiff’s practitioner to obtain all hours of service evidence once these cases are in suit. Not just 7 days, but at least the prior 30-60 days are required to get a full understanding of whether there were previous instances of hours of service violations. Motor carriers are transitioning to Electronic Logging Devices (ELDs) which in theory, should make preserving this evidence easier than the antiquated paper log system. However, even with technology such as Qualcomm / Omnitracs, we are continuing to run into many motor carrier defendants who fail to provide adequate evidence of the truck driver’s hours of service. Subpoenas and nonparty requests for records to Qualcomm / Omnitracs may be fruitful if the motor carrier is not providing these documents.
While driver’s logs are the primary way to understand a driver’s hours of service, often time-stamped bills of lading, fuel receipts, trip reports, and GPS vehicle positioning reports can help substantiate the driver’s time on the road. Being able to establish to the Court that you have exhaustively done everything to reconstruct the driver’s hours of service will often help bolster your position when filing a motion to compel or a motion for spoliation sanctions.
Developing a theory of liability arising from fatigue is helpful in litigating disputed liability truck wreck cases. If a motor carrier has either consciously ignored the federal regulations regarding hours of service or intentionally destroyed evidence, the Plaintiff has remedies. The Georgia Court of Appeals has weighed evidence of motor carriers destroyed logbooks, and held: Considering its destruction by Hunt, it was a reasonable presumption that the logbook showed that the driver was compelled by Hunt to drive with insufficient rest. OCGA § 24-4-22. This would be a contributing factor, or the cause, of his sustained weaving from lane to lane, failing to slow the fully loaded tractor-trailer from 65 mph despite the warnings of construction ahead and, without braking to avert collision, plowing into a readily visible vehicle parked off the roadway.” J.B. Hunt Transport v. Bentley, 207 Ga. App. 250, 252-253 (1993). Additional sanctions can also be entered against the defendants for this type of conduct, such as struck pleadings or favorable jury charges on presumed fatigue. See Kitchens v. Brusman, 303 Ga. App. 703, 709 (2010)
While these civil remedies are important, the better alternative would be compliance with the federal regulations by these companies. The sheer weight and power of these vehicles provides a constant danger to other motorists on our roadways. At a minimum, these vehicles should be operated by well-rested, skilled drivers under constant monitor by these DOT-regulated motor carriers. The interstate transportation system is certainly important to our nation’s economic health, but so are the federal regulations intended to keep our roadways safe.
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