May 10, 2011

Feds propose ban on handheld cellphone use by Hazmat truck drivers

Federal trucking safety rules continue to expand on commercial truck drivers' texting or calling while they drive As a trial attorney handling tractor trailer and big rig crash cases throughout Georgia, I see how important this can be in trucking accident cases.

The latest Notice of Proposed Rulemaking was published April 29 by the Pipeline and Hazardous Materials Safety Administration, part of DOT, would prohibit use of a handheld cell phone by drivers moving a quantity of hazardous materials that must be placarded under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73 in intrastate commerce.

This would expand upon rules already proposed by the Federal Motor Carrier Safety Administration (also part of DOT). FMCSA barred texting by commercial motor vehicle drivers in a September 2010 final rule. It proposed to restrict the use of hand-held mobile phones in a Dec. 21, 2010,

PHMSA estimates that there are approximately 1,490 intrastate motor carriers that could be affected by this rulemaking.

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May 9, 2011

5% of commercial truck drivers involved in majority of driver distraction events

The SmartDrive Safety study of commercial drivers observed with in-vehicle recorders that capture video, audio and vehicle data during sudden stops, swerves, collisions and other risky driving maneuvers reached a surprising conclusion.

The study showed that the top 5 percent of drivers with the most driving distractions were distracted 67 percent of the time during which a risky driving maneuver was observed - nearly six times more often than the rest of the drivers.

Just 5 percent of the drivers accounted for the majority of events involving those devices - 57 percent of all mobile phone incidents captured and 52 percent of all operating-handheld-device incidents.

The nine most common distractions observed in conjunction with a risky driving maneuver were:

* Object in Hand, 44.5%, which includes mp3 players, PDAs and paperwork
* Talking on a Handheld Mobile Phone, 13.4%
* Beverage, 12.7%
* Food, 10.1%
* Smoking, 9.9%
* Operating a Handheld Device, 9.1%
* Talking/Listening Mobile Phone - Hands Free, 5.2%
* Manifest, Map or Navigation, 1%
* Grooming/Personal Hygiene, 0.6%

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September 15, 2009

Role of punitive damage claims in commercial truck crash cases in Georgia

As an Atlanta, Georgia attorney handling many commercial truck accident cases, I am often asked about how important punitive damage claims are in these cases.

In Georgia, punitive damages are allowed "only in such tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences."

Punitive damages are capped at $250,000 in collision cases in Georgia unless there was an intent to harm, which the evidence would rarely if ever support.

I personally handled a trucking wrongful death and personal injury case where the court allowed a punitive damage claim against a trucking company due to evidence that the company "turned a blind eye" to hours of service violations, and dispatched back to back trips that could not be completed lawfully.

Other trucking cases where punitive damage claims were allowed include:

* a "forced dispatch system" where a truck driver could not refuse a load and keep his job, so that hours of service violations, etc., were inevitable.

* payment for speed of delivery, encouraging drivers to speed

* failure to check driving records, as required by regulations

* rigorous delivery schedule with penalties for late deliveries

* failure to provide maintenance mechanics with necessary tools

* failure to discipline truck driver for violations

* failure to monitor the truck driver's conduct, failure to conduct any investigation into the driver's hours of service, re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers' hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public

* violation of hours of service rules, fatigued driving, falsification of driver logs, and failure of management to adequately monitor drivers' hours

* violation of hours of service rules and falsification of driver logs

* combination of knowledge of safety issues, speed, use of radar detector, driver’s history of violations, and lack of qualifications of safety director

* Ignore smoking brakes, failure to stop until brake drum falls apart

* stopped in the interstate's center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and failure to turn on tractor-trailer lights after it became dark

Some of the evidence that supports a claim for punitive damages is also useful in supporting a claim for "bad faith" attorney fees under OCGA 13-6-11, and for simply convincing a jury that the conduct justifies awarding adequate compensatory damages.

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June 19, 2008

Truck accident facts may support punitive damages claims

For attorneys representing plaintiffs in trucking accident cases in Georgia, the claim for punitive damages is an important but not always crucial part of the case.

Punitive damages under Georgia law are designed to "penalize, punish or deter" conduct that shows "willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences." Proof must be by "clear and convincing evidence." O.C.G.A. § 51-12-5.1.

The Federal Motor Carrier Safety Regulations are a starting point for the use of corporate conduct as a foundation for punitive damages.

49 C.F.R. § 390.13 provides that a motor carrier should not aid, abet, encourage, or require its employees to violate any of the rules of the FMCSR.

49 C.F.R. § 392.6 provides that no trucking company may schedule a delivery in such a way that would require the driver to operate his or her vehicle at speeds greater than those prescribed by the rules of the road in effect at the location in question.

49 C.F.R. § 395.3 provides that no trucking company shall permit or require any driver to exceed the maximum hours of driving time allowed under the FMCSR. All trucking companies “shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its controls.” This general duty of a trucking company to maintain its vehicles in good working order includes a duty to maintain repair records and inspection reports and driver reports, which are to be filed by a driver each day on each vehicle driven, 49 C.F.R. § 396.11, and a duty to make periodic inspections of each vehicle, 49 C.F.R. § 396.11.

Courts may also consider the applicable administrative interpretations included in the official Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16370 (1997). For example, the Regulatory Guidance includes the following official interpretations of the regulations:
Question 7: What is the liability of a motor carrier for hours of service violations?
Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "permit" violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.
In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states:
Question 21: What is the carrier's liability when its drivers falsify records of duty status?
Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents. 62 Fed.Reg. at 16426. In short, "Motor carriers have a duty to require drivers to observe the FMCSRs." Id.

The national body of law supporting punitive damages in trucking case includes:

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