Articles Posted in Truck driver fatigue

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On Scene Doug Stephens DOT (39)Imagine that a commercial airliner crashed every other week in the United States, month after month, year after year. That is the level of carnage we have today in large truck crashes on America’s highways. In 2013, there were 3,964 people killed and an estimated 95,000 people injured in crashes involving large trucks, according to the National Highway Traffic Safety Administration. That year an estimated 342,000 large trucks were involved in police-reported traffic crashes during 2013. Of the fatalities in 2013, 71 percent were occupants of other vehicles, 17 percent were occupants of large trucks, and 11 percent were nonoccupants.

In our law practice, we see a portion of this carnage all the time. After years of seeing the aftermath of immeasurable damage to human bodies, and tucking into sealed files the photos I can never show to family members of the deceased, I still cringe at those sights.

Why does this mayhem continue on our highways, year after year? Here are some of the major cause:

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Cherokee county mapLast week in Cherokee County, a Comcast truck failed to stop behind a car that had stopped to turn, went into the opposite lane, and struck head-on an oncoming car, killing the driver.

According to media reports, at the intersection of Ga. 140 and Avery Road, a Ford Fiesta  stopped to turn left onto Avery Road just before 12:30 p.m. on September 28, 2015.  For unknown reasons, a Comcast truck steered to the left to avoid hitting the Ford and traveled into the westbound lanes striking a Chevy pickup head-on.

The driver of the pickup — who I understand was a really good guy with whom I have several friend in common —   died at the scene of the crash. The driver of the Comcast truck and an occupant of the Fiesta were also injured.

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NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer, see Truckers Justice Center. 

 

As a trucking accident personal injury and wrongful death lawyer based in Atlanta, I get a chance to see the trucking safety issues from the point of view of both innocent folks who are run over by tractor trailers and truck drivers who are themselves put at risk by companies that care too little about safety.

A blogging truck driver at Go By Truck News wrote this week that “A rogue motor carrier is a truck driver’s worst nightmare.”

He wrote that last year, D.A. Landis Trucking, Inc. was charged with conspiracy for ordering drivers to falsify their daily logbooks, maintain two sets of logs, falsely certify accuracy of the lying logs, had dispatchers also knowingly dispatched drivers on trips that were truck accidentto exceed hours-of-service requirements.

That is old news to those of us who have been digging through truck drivers’ logs and trip documents and both deposing and interviewing truck drivers.

He also gathered these tweets from tired truck drivers:

– “My dispatcher goes retarded when I tried to tell them I have only 1 hr left to drive.”

– “I have heard this from many dispatchers before. Come on we need you for one more.”

– “When it comes to driving we have 65mph trks n 100mph dispatchers with 26 hrs in a day!”

– “Dispatch was kind enough to plan my first load for 4am central time. My paperwork is invalid and dispatch won’t be in for another 3 hrs.”

Go By Truck News urges truck drivers to check the safety records of any company they consider working for, and to make sure they know the rules, including these:

FMCSR 392.6 Schedules to conform with speed limits. “No motor carrier shall require a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial vehicle being operated at speed greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.”

FMCSR 390.13 Aiding or abetting violations. “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”

FMCSR 392.3 Ill or fatigued operator. “No driver shall operate a commercial motor vehicle, and a 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, 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.” (This regulation was mentioned in my prior article and worth repeating again here).

He is spot on in stating that, “A good safety director will educate a driver about these regulations, rewarding and not penalizing a driver for declining to take a load if they are too fatigued. A good company with a pattern of safe behavior will give a trucker an opportunity to develop a disciplined sleep routine.”

He urges that, “it’s often the employer / load planner / dispatcher pushing the trucker beyond their limits. However, all truckers should take a stand with the Trucker Mike’s ‘Mantra’ – ‘I will NEVER let anyone ‘push’ me, instead I’ll be fired for being SAFE if need be!'”

This afternoon, my friend Steve Gursten in Michigan forwarded this plea he received from a truck driver who wants to drive safely but works for a rogue trucking company that won’t allow him to follow the law:

The company that I drive for has me doing illegal runs. I feel if I don’t do them my miles will be cut or they will find a way to get rid of me. I need to care for my family. I have been too many companies and they are all the same. The one I’m with now is the worst. I’m looking for other employment and coping the best I can. Is there anyone I can talk to like a whistle blower organization? Or maybe a letter too the sec of transportation? Companies, dispatchers, shippers and receivers need to be held accountable. Until we have better legislation in place to address this, us truckers will always be at the bottom of the hill. And of course we know which direction s##t rolls.

Wow!

That is right in line with my impression over the years that most truck drivers are just ordinary good guys working hard to make a living, but are too often pushed by employers, motor carriers, shippers, brokers, etc., to make illegal runs on impossible schedules, so that they are often pushed beyond the limits of human endurance.

That is why I generally try to handle these cases by digging for a root cause analysis in the corporate safety management system — or lack thereof.

I suggested referring this guy to Truckers Justice Center in Minnesota, operated by a lawyer who represents whistle blowing truck drivers nationwide
If your or a family member were run over by a tractor trailer, or if you are a truck driver badly injured in the line of duty, I would be glad to talk with you with no obligation.
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NOTE TO TRUCK DRIVERS:
Our law practice focuses on representation of people who are seriously injured, and families of those killed, in crashes with large commercial vehicles. While those are often truck drivers, we do not handle truckers’ employment law matters. For legal advice on issues with your employer, see Truckers Justice Center. 

 

Despite the political gridlock and recent shutdown of the federal government, Congress has managed to pass legislation to address the danger of sleep apnea in the trucking industry. At this writing, it awaits the President’s signature.

House Resolution 3095 is a simple, two-page bill sponsored by two members of Congress sped through Congress. It requires the Federal Motor Carrier Safety Administration to commit to formal rule making on sleep apnea testing and treatment for truckers and other professional drivers.

The trucking industry, predictably enough, estimates that “the impact of screening, diagnosis, and treatment for obstructive sleep apnea could exceed $1 billion annually.” But that is a bargain compared to the carnage on the highways due to drivers of 80,000 pound tractor trailers falling asleep at the wheel.

The downside of this, warns my friend Michael Leizerman in Ohio, is that by requiring the FMCSA to go through full rulemaking and cost-benefit analysis when addressing screening, testing or treatment of sleep apnea, it may delay rather than speed up efforts to address the very real problem of sleep apnea. As Michael pointed out in a recent blog post, the FMCSA has already published the online Fatigue Management Training program and has many simple and inexpensive ideas to make fatigue awareness part of a motor carrier’s safety culture.

Untreated sleep apnea can lead to fatigued driving and is thus a medically disqualifying condition for truck drivers. FMCSR 391.41(b)(5). We have seen too many cases in which our clients were run over by truck drivers who were often good folks but were dangerous behind the wheel due to fatigue, drowsiness and untreated sleep apnea.

As Michael Leizerman has pointed out, this legislation requires the FMCSA to go through a full rule making process which will add years of delay to the implementation of much needed efforts to forcefully address the problem of sleep apnea among truck drivers.
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The battle to combat driver fatigue among tractor trailer drivers has been a long one. How many hours a trucker can drive, how long he needs to rest and when, and how the hours of service are documented has been a constant point of contention between the industry and safety advocates for a long time while I have been handling truck wreck cases as a trucking safety, personal injury and wrongful death lawyer in Georgia.

The latest round in that fight was won by the Federal Motor Carriers Safety Administration, though neither the trucking industry nor safety advocates are satisfied. On August 2, 2013, the U. S. Circuit Court of Appeals in Washington, DC, upheld most provisions of new hours of service regulations that went into effect on July 1. The new rule revisions now require: ( 1) 34 hour restart must include two 1am to 5am periods and can only be used once in 7 days, (2) 30 minute break period after 8 hours, and (3) retention of the rule that a trucker can drive only 11 hours within a 14 hour period before going off duty.

As always happened, the new regulations were challenged both by the American Trucking Association and various truck safety groups. The court denied petitions from all the groups with one small exception-the 30 minute break requirement does not apply to short-haul drivers who operate within 100 miles of their reporting location. The court rejected most of the arguments made by the American Trucking Association, Inc. as “highly technical points best left to the agency.”

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Driver fatigue is a major cause of truck crashes among drivers of commercial tractor trailers, semis and big rigs. Federal Motor Carrier Safety Regulations mandate that truck drivers can drive only 11 hours out of a 14 hour work day, followed by a 10 hour rest break. There are also restrictions on weekly totals. Handling injury and death cases arising from truck accidents in Georgia, I often seen cases where drivers were too fatigued to drive safely.

But most of us have personal experience to know that a driver can be dangerously sleepy in far less than 11 hours of driving.

Australian researchers have confirmed what we intuitively know. Caffeine can help maintain driver alertness. But caffeine alone is not enough, and naps can help too. In “Use of caffeinated substances and risk of crashes in long distance drivers of commercial vehicles: case-control study,” published at BMJ 2013; 346 doi: http://dx.doi.org/10.1136/bmj.f1140 ( 19 March 2013), Lisa N Sharwood and her collaborators reported on their study.

Their bottom line:

– Caffeine helps, but that alone is not enough.

– Breaks help, whether used for naps, exercise or drinking coffee.

All this seems like common sense, but it bears repeating. One problem in the trucking industry is that trucking companies and shippers sometimes insist on driving the maximum hours allowed (or longer), so that no credit is given for drivers who take breaks to help maintain alertness within those hours.

However, the Federal Motor Carrier Safety Regulations include not just the hours of service rules but also a more general restriction against operating a commercial vehicle when too fatigued or ill to safely do so.
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ABCO Transportation, Inc., a refrigerated freight haulder based in Dade City, Florida, has a chronically unsatisfactory record with the Federal Motor Carrier Safety Administration with regard to unsafe driving violations. In my experience as a trucking trial attorney, when a trucking company has a record as bad as ABCO, often there are issues of management turning a blind eye to safety.

In ABCO’s case, this bad safety record culminated in a tragic crash on Wednesday on Thornton Road in Douglas County, Georgia, when an ABCO truck driver ran a red light, taking the lives of two co-workers at AutoTrader.com (a Cox Enterprises subsidiary) and injuring four others.

I was in Chattanooga, at the office of another trucking trial attorney, when I got a message to return a call from the family of two of the injury victims who had been referred by their family’s attorney in another state.

ABCO’s record with the Federal Motor Carrier Safety Administration shows unsafe driving violations with a 74.3 percentile score. Anything over 60th percentile is unsatisfactory. In the past two years, ABCO had 81 reported unsafe driving violations, and has rated unsatisfactory for unsafe driving violations for every reporting period since December 2010. That is probably the tip of the iceberg, as it only indicates the times they got caught.

Specific reported violations include:

– Failure to obey traffic control device, 8 violations – Following too close, 11 violations – Improper lane change, 3 violations – Lane Restriction violation, 5 violations – Improper passing , 1 violation – Reckless driving, 1 violation – Speeding, 14 violations – Speeding 15 or more miles per hour over the speed limit, 4 violations – Speeding work/construction zone, 4 violations
In 2011 and 2012, ABCO has had 18 reported crashes, 8 of which involved injuries, with a total of 17 people injured. These include:

– 6/22/12, Pennsylvania, 2 injured – 12/9/11, New York – 12/2/11, Ohio – 11/29/11, Colorado – 11/2/11, New York, 1 injured – 10/11/11, Virginia – 9/9/11, Missouri – 4/27/11, Kentucky – 4/7/11, Florida, 1 injured – 3/5/11, Alabama – 2/10/11, Virginia, 7 injured – 1/20/11, Ohio – 11/23/10, Florida, 1 injured – 11/3/10, Indiana, 1 injured – 10/25/10, Ohio – 8/29/10, Texas, 1 injured – 7/31/10, Virginia, 3 injured – 7/9/10, Connecticut
Regarding fatigued driving, one of the most common underlying causes of truck crashes, ABCO is right at the threshold for an unsatisfactory rating — 59.8 percentile when anything over 60 percentile is considered unsatisfactory. ABCO was over the 60 percentile threshold for unsatisfactory driver fatigue rating for 4 of the past 6 reporting periods. Reported violations only indicate when they got caught, so they are normally the tip of the iceberg. Violations include:

– False report of driver’s record of duty status, 8 (lying about driver logs)
– Requiring or permitting driver to drive more than 11 hours, 8 violations – Requiring or permitting driver to drive after 14 hours on duty, 20 violations
It was with that background that an ABCO Transportation tractor-trailer operated by 64-year-old Robert John Sansom, of Colorado ran a red light on Thornton Road in Douglas County, Georgia, on Wednesday, July 11th. Two women on their lunch break were killed — Tracy Downer and Michelle Chinnis, both of whom in sales for AutoTrader.com, a website owned by Cox Enterprises. Four other people were injured in the crash . According to an article by Alexis Stevens in the AJC, Downer previously worked in advertising at the AJC from 1993 to 2010, was married with a son and a daughter, and Chinnis is survived by a 16-year-old daughter.

Victims and their families may choose separate attorneys or joint representation in such instances of serious personal injury or wrongful death, as this is a potential conflict that may be waived in writing after informed consent pursuant to Georgia Rule of Professional Conduct 1.7.

Whenever there are multiple victims of a crash such as this one, it is important to coordinate representation. Most recently, we were involved in the joint prosecution group coordinating representation of member of the Bluffton University baseball team arising from a bus crash in Atlanta in 2007. Where there are no substantial indications of fault on the part of any of the victims, the only potential conflict among them is generally concern about adequacy of insurance coverage and assets to cover all claims.

The Federal Motor Carrier Safety Administration website only shows for ABCO a $1,000,000 liability policy with Protective Insurance Company. However, an interstate motor carrier with 174 trucks is likely to carry an excess liability insurance policy with considerably higher limits, perhaps an additional $5,000,000 to $20,000,000. That information is not public and generally is reliably documented only in litigation.
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Truck driver fatigue is a chronic issue in the causation of commercial truck accidents. Now the Federal Motor Carrier Safety Administration has tweaked the rule yet again, but only at the outer margins of the hours of service rules.

Effective February 27, 2012, the FMCSA revises the hours of service (HOS) regulations so as to cut maximum work week from 82 to 70 hours on average. To combat the effects of chronic fatigue, the provision allows drivers to work intensely for one week, but will require them to compensate by taking more time off in the following week. This is being done

. . . to limit the use of the 34-hour restart provision to once every 168 hours and to require that anyone using the 34-hour restart provision have as part of the restart two periods that include 1 a.m. to 5 a.m. It also includes a provision that allows truckers to drive if they have had a break of at least 30 minutes, at a time of their choosing, sometime within the previous 8 hours. This rule does not include a change to the daily driving limit because the Agency is unable to definitively demonstrate that a 10-hour limit-which it favored in the notice of proposed rulemaking (NPRM)-would have higher net benefits than an 11-hour limit. The current 11-hour limit is therefore unchanged at this time. The 60- and 70-hour limits are also unchanged. The purpose of the rule is to limit the ability of drivers to work the maximum number of hours currently allowed, or close to the maximum, on a continuing basis to reduce the possibility of driver fatigue. Long daily and weekly hours are associated with an increased risk of crashes and with the chronic health conditions associated with lack of sleep. These changes will affect only the small minority of drivers who regularly work the longer hours.

The FMCSA explains that:

The goal of this rulemaking is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers. A rule cannot ensure that drivers will be rested, but it can ensure that they have enough time off to obtain adequate rest on a daily and weekly basis. The objective of the rule, therefore, is to reduce both acute and chronic fatigue by limiting the maximum number of hours per day and week that the drivers can work.

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Truck driver fatigue is one of the more common causes of tractor trailer collisions. Too often the trucking industry pushes drivers to complete deliveries on impossible schedules, falsifying their logs if necessary to look legal if they are stopped. Over the years as a trial lawyer specializing in interstate trucking accident cases, I have heard truck drivers’ stories of economic pressure to break the hours of service laws. This is one of the factors that makes truck driving a dangerous occupation.

I don’t know if that is what led to a fatal crash this week just across the state line on I-85 in Anderson County, SC. However, authorities in Anderson County have already concluded that a truck driver fell asleep at the wheel causing a wreck that killed three people. According to the coroner, an autopsy ruled out a stroke or heart problem.

South Carolina state troopers report that a big rig driven by Eddie Wyatt, 69,of Rockmart, Ga., was southbound on I-85, when it careened across the median into the northbound lanes, crashing head on into another tractor trailer head on. The second 18 wheeler jack-knifed and struck an SUV and a pick-up truck.

Both tractor trailer drivers, Wyatt and , Clay Johnson, 38 of Charlotte, N.C., were killed.

The third fatality was Jeremy Wilson, 33, a lawyer in Lincolnton, N.C., who was driving a Toyota Tundra towing a fishing boat on a trailer.

Curtis and Beverly Schulze, were airlifted to Greenville Memorial Hospital. They were released on Sunday.
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While Georgia is a long way from the Mexican border, as a tractor trailer and big rig accident trial lawyer based in Atlanta, I have for several years followed the controversy over allowing Mexican trucking companies to operate in the United States. Concerns about safety rules and practices in Mexican trucking have simmered since 1995.

Today the U.S. and Mexico signed an agreement to allow Mexican tractor trailers and big rigs to operate in the U.S. and suspend retaliatory Mexican tariffs that added 5 to 25 percent to the cost of U.S. exports sold in Mexico.

This is the latest development in the long-running controversy to concerns about the safety standards of Mexican trucking, which long blocked North American Free Trade Agreement (NAFTA) rules permitting Mexican trucks to cross beyond a 25- mile border zone.

The USDOT justifies today’s action by saying that Mexican trucks must comply with all Federal Motor Vehicle Safety Standards, and will have electronic monitoring systems to track hours on the road, and that Mexican tractor trailer truck drivers must take drug tests that are analyzed in the U.S., hand over complete driving records and prove their English-language skills.

A previous cross-border pilot program for trucking certification program in 2009 included only 157 Mexican trucks.

Reactions from interest groups has varied widely:

• The US Chamber of Commerce supports the agreement as “a vital step toward a more efficient U.S.-Mexico border,” according to a statement from COC president Thomas Donohue. Truckers drop trailers at the border before crossing. Older rigs, often called transfers, pick them up to cross and leave them for a long-haul truck waiting on the other side.

Regarding safety concerns, the Conservative Daily News blog points out that while USDOT will pay for electronic on-board recorder (EOBR) to monitor hours of service of Mexican tractor trailers, an “EOBR cannot determine if the driver of the commercial vehicle is working other than driving, or if this driver is asleep or awake. It will not ‘automatically’ do anything as the driver still must manually enter whether a change of duty status has occurred or not.” It quotes a report issued from the Congressional Research Service in February of 2010 which stated:

“The rationale of eliminating the truck drayage segment at the border, and of NAFTA in general, is to reduce the cost of trade between the two countries, thus raising each nation’s economic welfare. However the cost to federal taxpayers of ensuring Mexican truck safety, estimated by the U.S. DOT to be over $500 million as of March 2008, appears to be disproportionate to the amount of dollars saved thus far by U.S. importers or exporters that have been able to utilize long-haul trucking authority. . . . Any accumulated savings in trucking costs enjoyed by shippers therefore should be weighed against the public cost of funding the safety inspection regime for Mexican long-haul carriers.”

• The American Association for Justice Interstate Trucking Litigation Group, of which I am a board member, urged USDOT to bring up to date liability insurance coverage requirements, which have been unchanged since 1980, prior to implementing the cross-border program. The $750,000 minimum liability coverage for interstate motor carriers adopted in 1980 would be nearly $2,000,000 today if simply adjusted for inflation. USDOT responded:

“Mexico-domiciled motor carriers must establish financial responsibility, as required by 49 CFR part 387, through an insurance carrier licensed in a State in the United States. Based on the terms provided in the required endorsement, FMCSA Form MCS-90, if there is a final judgment against the motor carrier for loss and damages associated with a crash in the United States, the insurer must pay the claim. The financial responsibility claims would involve legal proceedings in the United States and an insurer based here. There is no reason that a Mexico-domiciled motor carrier, insured by a U.S.-based company, should be required to have a greater level of insurance coverage than a U.S.-based motor carrier. Increasing the minimum levels of financial responsibility for all motor carriers is beyond the scope of this notice and would require a rulemaking. In accordance with section 350(a)(1)(B)(iv), FMCSA must verify participating motor carriers’ proof of insurance through a U.S., State-licensed insurer. As a result, participating motor carriers may not self-insure.”

The Owner-Operator Independent Drivers Association (OOIDA) is bitterly critical of the action, and is challenging it in court in Washington. OOIDA asserts that Mexico has failed to institute regulations and enforcement programs that are even remotely similar to those in the United States, and there would be no relevant corresponding reciprocity for U.S. truckers. According to OOIDA, “This program will jeopardize the livelihoods of tens of thousands of U.S.-based small business truckers and professional truck drivers and undermine the standard of living for the rest of the driver community.”

Teamsters Union president Jim Hoffa also questioned legality of the program because it grants permanent operating authority to Mexican trucks after 18 months in the “pilot program” without Congressional authorization, and because DOT would use money from the Highway Trust Fund to pay for electronic on-board recorders for Mexican trucks. He said, “opening the border to dangerous trucks at a time of high unemployment and rampant drug violence is a shameful abandonment of the DOT’s duty to protect American citizens from harm and to spend American tax dollars responsibly.”

Industry groups that export to Mexico, and are impacted by retaliatory Mexican tariffs, support the decision. They include the National Cattlemen’s Beef Association (NCBA) , California grape growers , and Washington State apple growers.

This Georgia truck wreck lawyer may run down to the mall to buy a Rosetta Stone home study course on Spanish.
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