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As usual when there are efforts to combat fatigue-related hazards in the trucking industry, there has been a lot of controversy about a change in the hours of service for trucks issued by the Federal Motor Carrier Safety Administration. As a trucking personal injury attorney in Atlanta, over the years I have watched several rounds of the tug of war between safety and profitability on hours of service rules.

The newest regulation states large trucks will have to stick to a schedule that requires taking a 30 minute break in the first eight hours of driving and cut the maximum work week to 70 hours from 82. There also is a rule that those 70 hours must be “restarted” after a 34-hour break once a week.

Personally, I think a 30 minute break during a driving shift makes sense. Whenever I drive long distances, I have to take pit stops, sometimes take a “power nap” before driving on. I have heard truck drivers complain that they are penalized under the current rule and under their companies’ policies if they take a rest break in order to be able to combat fatigue and drive safely costs them both money and criticism. The new rule requires that the trucking companies, brokers, and shippers make more allowance for human physiology.

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Atlantans woke this morning to the news that at 5:30 AM a hit and run tractor trailer caused a chain reaction accident on I-285 southbound in DeKalb County near Ponce de Leon Avenue. It hit a Ford Focus, knocking it into a Toyota Camry. Those drivers got out of their cars, apparently to inspect damage, and were hit by a fourth vehicle. Both were killed.

The tractor trailer left the scene and and last report had not been identified but law enforcement officers had launched a search. I am confident that the Georgia State Patrol SCRT(Specialized Collision Reconstruction Team) team will give this very high priority and do a superb job. The tractor trailer could well be in South Carolina or Florida by now.

The impact on morning rush hour traffic throughout the east side of metro Atlanta was monumental.
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Stability of semitrailer tanker trucks with high and shifting centers of gravity is a significant issue in tanker truck accident cases.

Now the National Transportation Safety Board has recommended for commercial vehicles over 10,000 gross vehicle weight:

– that the Federal Motor Carrier Safety Administration require retrofitting of stability-control systems on tanker rigs; and
– that the National Highway Traffic Safety Administration develop stability control system performance standards for all commercial motor vehicles and buses, and require installation of stability control systems on all newly manufactured commercial vehicles.

These recommendations arise from the NTSB investigation of a fiery crash nine months ago in Indianapolis, in which a propane tanker trunk rolled over due to oversteering on an exit ramp. The tank ruptured, allowing gas to escape and exploded. Drivers of the truck and a passenger vehicle were seriously injured.

In my trucking accident litigation experience, I have found that tanker truck drivers often operate under extreme stress due to the knowledge that their rigs could easily explode in an accident, causing death or serious injury. In litigating one case, I learned that one tanker truck line that delivers gasoline to service stations in Georgia carries “peasant life insurance” payable to the company in the event that one of its drivers is killed in an explosion. That happens about once a year.

I have also found tanker truck drivers who are inadequately trained about the handling characteristics of tanks with a high and shifting center of gravity. This is particularly common in the concrete industry, where companies may hire drivers who just have a commercial driver’s license (CDL) with no training about the speed at which a tanker or concrete mixer truck will roll over in a turn.
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A fatal truck accident on a Los Angeles area freeway highlights a type of safety hazard we also see in Atlanta, Georgia.

In the predawn darkness last Friday, a passenger vehicle struck the rear of a disabled tractor trailer parked in a traffic lane on I-5 at Burbank, California, killing the driver of the car.

Media report are unclear as to how long the truck had been parked there, and as to whether it had hazard lights activated or reflective triangles deployed to warn oncoming traffic, as required by Federal Motor Carrier Safety Regulations. However, a comment posted on the KABC-TV web site, purportedly by a relative of the decedent, indicates that the man who was killed was commuting to work, and that there were no hazard flashers or reflective warning devices utilized on the tractor trailer.

The Federal Motor Carrier Safety Regulations, at 49 CFR §392.22 requires:

(a) Hazard warning signal flashers. Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

(b) Placement of warning devices-

(b)(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by §393.95 of this subchapter, in the following manner:

(b)(1)(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;

(b)(1)(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(b)(1)(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.

The investigation apparently continues.
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While my law practice in Atlanta is focused on representing people who are seriously injured when they are hit by commercial trucks and buses, I get a lot of calls from truck drivers all over the country who are concerned about employers requiring them to drive unsafe equipment or to drive beyond their legal hours of service.

Partly to save myself some time on the phone, below the break is a copy of 49 US Code, Section 1536.

I don’t personally handle these matters. If you are a truck driver concerned about such issues, I suggest that you read this post, then contact Truckers Justice Center , 900 West 128th Street, Suite 104, Burnsville, MN 55337, Telephone 952.224.9166, Fax 678.791.1728.
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On June 5th, there was another fatal accident involving tractor trailers in Georgia.

The seven vehicle fatal pileup involved an RV, two tractor trailers and four passenger vehicles were involved in the accident near Dry Pond Road in Jackson County.

There was an accident about 3:30 AM which resulted in a traffic backup. A second accident about 5:30 AM under the Dry Pond Road bridge.

In our trucking accident trial practice, we have often seen cases of truck crashes between midnight and 6 AM when truck drivers are fatigued and driving at times contrary to the natural circadian rhythms.

Federal Motor Carrier Safety Regulations often referred to in cases where tired truckers wreck include the following:

49 C.F.R. § 392.3, Driver Impairment.

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, 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.

FMCSR, 49 C.F.R. § 390.11 Motor carrier to require observance of driver regulations.

Whenever … a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.

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

It does not say “no motor carrier.” A company owner who makes irresponsible dispatching decisions may become an individual defendant.

FMCSR, 49 CFR 390.5 defines “person” as follows:

Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.

FMCSR, 49 CFR § 395.3 Maximum driving time for property-carrying vehicles.

Subject to the exceptions and exemptions in § 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 § 395.1(o) or § 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.

FMCSR, 49 CFR § 395.8 Driver’s record of duty status.

(a) Except for a private motor carrier of passengers (nonbusiness), every motor carrier shall require every driver used by the motor carrier to record his/her duty status for each 24 hour period using the methods prescribed [herein]….
* * * *
(e) Failure to complete the record of duty activities of this section or § 395.15, failure to preserve a record of such duty activities, or making of false reports in connection with such duty activities shall make the driver and/or the carrier liable to prosecution.
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Driver fatigue is one of the major causes of large truck crashes, though perhaps less so than prescription and over the counter medications. The battle over truck drivers’ hours of service rules has raged for six years now. I won’t repeat the whole controversy here. While there is much more detail, the short version is that under the old rule truckers could drive 10 hours per day, and now they can drive 11 hours per day. They are now allowed 77 hours in seven days or 88 hours in eight days, 25 percent more than previously.

The current rule became final immediately prior to the inauguration of President Obama. The latest round in the hours of service battle came when the same groups that went to court several times to challenge the current rule during the Bush administration. Now they have written to DOT Secretary Ray LaHood, urging that the newly permanent hours of service be tossed out.

There are bright, competent people of good will on both sides of this debate. I have friends who are vigorous advocates on both sides who cite scientific studies to justify their positions. I can’t say who is right or wrong. It makes sense that circadian rhythms matter, as the proponents of the current rule point out. It also makes sense that the longer you drive, the more weary you become.

I’m not a sleep scientist, so all I have is experience and common sense. As a lawyer handling these case, I will just work with whatever rules are in effect.
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At a trucking litigation seminar in New Orleans last spring, I had the opportunity to pinch hit for Allan J. Kam, who consults on federal motor carrier safety issues around the country.

Mr. Kam is the preeminent authority on how politicians and the trucking industry have blocked safety changes that have led to thousands of semi truck accident wrongful deaths and catastrophic serious injuries from underride accidents over the past 40 years.

The National Highway Traffic Safety Administration (NHTSA) has identified underride truck accidents as a major safety problem and proposed safety standards as far back as 1967. These safety standards, many of which have been in effect in Europe and Asia for years, would have prevented many unnecessary injuries and wrongful deaths. But it wasn’t until 1996 that some significantly weaker safety standards were finally enacted.

The battle over truck underride guards tells the story:

* In 1967, the NHTSA proposed rulemaking for truck underride guards, aiming make truck accidents less catastrophic.

* In 1969, the NHTSA proposed requiring a rear under guard to block vehicles from sliding underneath large tractor-trailers. The proposal was opposed by the trucking industry.

* In 1970, the NHTSA tried again, but with lower standards. Again, the industry opposed any new truck safety rules.

* In 1977, new calls were made for truck underride protection, due in part, to information showing the number of cars rear-ending the back-ends of large trucks was as high as 40,000, resulting in 300 wrongful deaths and nearly 9,000 personal injuries a year.

* In 1996, a much weaker truck underride safety rule was finally implemented.

Watch the video below to see startling truck underride accidents and safety precautions.

Unfortunately, thousands of people have been killed or seriously injured because of this 40-year delay. Those tragedies will continue because the safety standards are still too lenient.

Lawyers representing families of people seriously injured and killed in these underride truck accidents face great challenges in the courtroom proving that existing truck safety standards are actually minimum standards, which are watered down and the result of political compromise.
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