In order to have any understanding of the developing theories in trucking litigation, you need a basic understanding of common terms used in the trucking industry. BASICs: CSA monitors seven safety improvement categories, called BASICs – Behavior Analysis Safety Improvement Categories. Carriers are assigned a score based on the criteria. Scores range from zero to 100. Zero is the best possible while 100 is the worst. The criteria that is used to assign scores includes Unsafe Driving, Hours of Service Compliance, Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Hazardous Materials Compliance, and Crash Indicator.36 There is more information about BASICs in Chapter Two, under the section about Carriers. Broker: A federally regulated freight “broker” is defined as “a person, other than a motor carrier or an employee or agent of a motor carrier, that as a principal or agent, sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement, or otherwise as selling, providing, or assigning for, transportation by motor carrier for compensation.
Or: a person who, for compensation, arranges, or offers to arrange, the transportation of property by an authorized motor carrier.”38 Brokers are also called “freight brokers” or “third party logistics” companies (3PL).
CSA: Compliance, Safety, Accountability is a Federal Motor Carrier Safety Administration initiative to improve large truck and bus safety and ultimately reduce crashes, injuries and fatalities that are related to commercial motor vehicles. It began in December 2010 to establish a new nationwide system for making the roads safer for motor carriers and the public alike.39 FMCSA: The Federal Motor Carrier Safety Administration was established within the Department of Transportation on January 1, 2000. The FMCSA’s primary mission is to prevent commercial motor vehicle-related fatalities and injuries.40 Motor Carrier: A person providing motor vehicle transportation for compensation.
SafeStat: An outdated system that was used to measure a carrier’s safety performance. This is no longer used since the creation of CSA
SMS: The Safety Measurement System evaluates roadside performance data. This data is used to calculate the BASICs scores and crash involvement.
USDOT/DOT: The United States Department of Transportation
Key “Whos” of Regs & Reqs Who are key actors in the trucking industry? The list includes motor carriers, brokers, government agencies, truckers, mechanics, manufacturers, truck/trailer owners, etc. In Chapter Two, we examine drivers, carriers, and brokers — who they are and what responsibilities they have. In Chapter Three, we take a few of those critical and most often shirked responsibilities by drivers, carriers, and manufacturers and analyze them in detail to assist you as a practitioner in using those details to craft your claims of action. Key “Whats” What are the top ten key causes of action in trucking litigation? Here we give you a short list of the top ten causes of action in trucking litigation. (Subsequent chapters provide additional detail.) 1. Fatigue – While the federal government has established strict Hours-of-Service (HOS) regulations, drivers often disregard these or even falsify their records. Drivers are often generally uneducated about the dangers of fatigue. Carriers are responsible for ensuring drivers are aware of the dangers and for reviewing driver logs and watching driver behavior and performance.
2. Maintenance problems – Both carriers and drivers share the responsibility of ensuring the trucks are carefully maintained. 3. Distractions – Drivers must avoid distractions. This is thoroughly discussed in the Commercial Driver’s License (CDL) manual, which drivers have to study to receive their licenses. Texting is a growing, common distraction, but anything (including smoking, eating, etc.) can be a distraction. Drivers are responsible for avoiding these. In New York, one truck driver was caught on camera talking on two different phones (presumably having two different conversations).44 “Drivers that did use their cell phones while driving did not look at the roadway an average of 4.6 seconds while the devices were in use. If the driver was traveling at 55 mph, this would equate to driving ‘blind’ the approximate length of an entire football field, including the end zones.”45 4. Traffic flow interruption – This is related to distractions. A distracted or fatigued driver can fail to notice a stall in traffic ahead, but a responsible driver will maintain proper attention at all times. 5. Prescription drug use – (see below) 6. Over-the-counter drug use – It is not just illegal drugs that can cause a driver’s downfall. Drivers cannot use any drugs without a physician’s assurance that their use will not adversely affect their driving abilities. (There is more indepth information regarding substance abuse in Chapter Three.) 7. Drunk driving – The federal regulations strictly prescribe drivers’ use of alcohol and carriers’ responsibilities in testing drivers.
8. Traveling too fast for conditions – A rushed driver might be driving within the legal speed limit but may be “speeding” given the current road or weather conditions. Rain or fog or construction zones can require slower speeds than the limit prescribes. We describe industry and CDL manual expectations in Chapter Two. 9. Unfamiliarity with roadway – A responsible driver needs to do all he can to familiarize himself with his route. If he has never or rarely driven the route, he needs to remain particularly alert and cautious — especially when taking curves, etc. In one accident, the police said the driver’s unfamiliarity with the road may have caused him to go off the road on a curve, hit a road sign, snap a tree, and roll only a few feet away from a residence.46 10. Awareness – A responsible driver follows the instructions in the CDL manual regarding awareness of her surroundings. We explain these concepts in Chapter Two’s section regarding drivers.
Left Turns and U-Turns Patience and caution are critical when a trucker has to turn left across incoming traffic, so incoming traffic does not have to stop suddenly as the truck slowly completes the maneuver.47 Rushed drivers are known to make such turns while knowing there is not enough time for them to do so unless the incoming traffic slows down to prevent a collision.48 The fact that the driver is executing a maneuver indicates a lack of fatigue, though it may indicate a driver’s distraction or inattentiveness.49 Your approach should be to focus on the driver’s disregard of safe maneuvers as described in detail in the CDL manual (discussed further in Chapter Two regarding the driver). You can also focus on the carrier’s negligent hiring or retention – if you can prove the carrier knew this driver had previously acted in the same or a similarly dangerous manner (see Chapter Three regarding this theory of liability). U-turns are extremely dangerous for large trucks. Most safety-conscious trucking companies strictly prohibit them for their drivers. Many make a U-turn occurrence an automatic firing offense. Underride A car driver may not be able to stop in time if a truck blocks the road, such as while making a turn. In such a situation, the car will continue to move forward under the trailer, often resulting in decapitation and death of the car driver. If you have such a case, a key to winning is to prove with photos and an inspection the truck was not properly visible – such as because of dirty or damaged reflectors, retroreflective taping, etc.
Stopped Trucks If he must stop his truck in or on the side of the road, a truck driver is required by federal regulations to warn oncoming traffic by placing markers at specified intervals behind the truck within specified times. (See Chapter Two on drivers for details regarding the placement of emergency markers.) To prove the driver waited too long to place the markers, you should to examine 911 call reports, cell phone records, etc. (Drivers will of course claim the accident happened before there was time to set out the markers). Rear-End Collisions When a truck driver rear-ends another vehicle (the most common type of truck collision), you need to consider whether the trucker fell asleep or was fatigued (see Chapter Three regarding fatigue); whether the cargo was too heavy or not heavy enough; whether the brakes were malfunctioning (see Chapter Three regarding maintenance); and whether the driver was speeding. To do so, you will likely need the driver’s logs, weight tickets, history of citations, maintenance and inspection records, and an accident reconstructionist. A truck driver and his carrier can also be liable if they rear-end the tractor trailer. These cases can be difficult, but are fairly common. Truck drivers parked on the side of the road or re-entering traffic create a hazard. Slow moving or backing vehicles also are very dangerous, especially at night, to traffic approaching the truck from the rear. These case many times involve issues of conspicuity and as well as the question of whether your client responded appropriately. This question usually needs to be addressed by human factors an expert familiar with human reaction and responses to unfamiliar occurrences. Backing Accidents Backing is particularly dangerous for tractor trailer trucks. A truck driver doesn’t have the ability to see behind him the way a passenger car can. That makes it all the more necessary to take additional precautions. Many trucking companies advocate truck drivers follow the steps outlined in the G.O.A.L. acronym. G.O.A.L. stands for Get Out And Look. This is obviously done to assure nothing is behind the truck prior to movement.
Improper Maneuvers If the driver in your case swerved, changed lanes recklessly, etc., you will want to look at a driver’s history (his past traffic citations, performance history, etc.) in consideration of pursuing a theory of negligent retention and hiring (see Chapter Three regarding carriers). Of course, fatigue and hours of service violations may be an issue as well (again, see Chapter Three regarding fatigue). Again, you should hire a reconstructionist who can prove the cause of the accident by preserving and interpreting the evidence. Shifting Cargo or Unsecured Cargo If the cargo was not properly loaded, the truck may jackknife or overturn from a shift in the cargo. Many times the truck driver will blame that movement of the load caused the vehicle to lose control
leading to the accident. The carrier and shipper should be your targets in a case like this, and – as always – photographs and other forms of evidence preservation are critical. What were the driver and carrier doing (or not doing)? Below we have a list of what the driver and carrier may have been doing (or not doing) that are violations and common causes of action. (We further analyze many of these in the subsequent chapters.) DRIVERS: üDistractions o Texting o Eating o Phone calls o Smoking o Unauthorized passengers ü Inspection Failures o Failure to Inspect at all o Failure to Inspect properly üFatigue o Violations of HOS regs o Undiagnosed sleep apnea o Falsified records o Economic pressures ü Substance Abuse o Alcohol o Over-the-counter drugs o Illegal drugs üAggressive driving ü Disregard of road conditions ü Traffic violations o Speeding o Running red lights üObesity ü Cargo o Proper Securement o Shifting from Careless Driving o Oversized load
CARRIERS: üHiring and retention o Background checks o Properly qualified or experienced üTraining ü Maintenance of Vehicles o Qualified inspectors o Manufacturers’ prescribed schedules for parts o Tires, wheels, brakes, rearguards, windshield wipers, etc. o Truck visibility üSubstance abuse tests ü Compliance with HOS regs One Last Key This list was meant to help you identify common keys that will “turn on” your claim and get it going down the road. But keep in mind there are many other regulations and considerations — including ones you may find reading the subsequent chapters — that could bolster your claim.
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