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Truck Driver Fatigue - Accident Investigation

Truck Driver Fatigue – Accident Investigation

Injured by a sleepy, tired or exhausted tractor-trailer driver? If you have suffered in such a collision, or a loved-one has been hurt or killed, you may still be wondering what to do about it and which law firm to hire and investigate your case.

The Millar Law Firm specializes in catastrophic injury and death caused by the negligence of trucking companies and truck drivers. One of the most common causes of trucking accidents is driver fatigue.  Here are answers to some questions we are often asked:

  • Who is responsible if a tired trucker harms me or my family?
  • State and Federal Governments are looking out for my safety, aren’t they?
  • Truck drivers have rules about how long they can drive in a day, don’t they?
  • Why would a trucker be reckless enough to drive when he’s sleepy?
  • How can I prove that the trucker who hit me was asleep at the wheel?
  • Do I need a special lawyer to help me with this case?
  • Legal Resources, Definitions, and FAQ for Tired Truck Driving Cases

 

Who is responsible if a tired trucker harms me or my family?

Obviously, the driver is at-fault when he or she falls asleep at the wheel and injures a motorist.  However, there may be other causes and contributing factors, and in some cases multiple claims involved.  Any time a truck driver falls asleep, it is important to investigate “why” he or she was driving while tired.  For example, did the company require him to drive longer than the Federal Motor Carrier Safety Act (FMCSA) allows?  Did the driver suffer from a medical condition like narcolepsy or sleep apnea, which the company knew or should have known about?

The driver’s hiring and qualification file records should be obtained, along with his or her medical certification.  The log books must be examined, and if they are found to be incomplete or falsified, an investigation should be done to determine if the company knew about the false or sloppy record keeping.  There may be other factors as well.  Did the company have an unreasonable delivery schedule, or did it ignore a history of prior log book violations which could have red-flagged the driver as one who pushed or exceeded the boundaries of safe driving?

Often, the only way you can learn the truth is to obtain the log books, employment records, auditing trail and electronic data from the truck and the company and thoroughly scrutinize this information.  This is where your personal injury lawyer earns his or her fee.  Fortunately, for an expert in these matters, it is often possible to determine how and why a driver fell asleep and to assign fault to the appropriate parties.

State and Federal Governments are looking out for my safety, aren’t they?

Trucks and their drivers are regulated by an agency within the Federal Department of Transportation called the Federal Motor Carrier Safety Administration. The agency was created in 2000 with the primary mission of reducing crashes, injuries and fatalities in which trucks and buses are involved. States also have trucking regulations, some of which are similar to those created by the Federal government. The FMCSA regulations require truckers and their companies to adhere to numerous safety standards to help ensure the safety of you and your family.

One of the critical tasks in the investigation of any commercial truck crash case is to review the facts and circumstances of the crash and the paper and electronic records, including GPS data, kept by the trucker and his company for compliance with the FMCSA rules and requirements, particularly in terms of hours of service.  In theory, all drivers and their companies stay within the safety rules.  Unfortunately, the reality is that many violations do occur.

Under the FMCSA, property-carrying truck drivers may not exceed 11 hours of driving time in a day after ten hours in a row off-duty.  Drivers carrying passengers may not drive more than 10 hours in a day after 10 hours off.  Further, drivers hauling freight may not drive more than 14 hours after coming-on duty, even if they have not used up their 11 hours.   More information about hours of service can be found here at the Federal Motor Carrier Safety Administration website: https://www.fmcsa.dot.gov/regulations/hours-service/summary-hours-service-regulations.

 

False Medical and Driving Logs, Records and Reports

In the past, many drivers were caught carrying two sets of log books in the cab of their tractor-trailer.  One set of books, showing compliance with the Hours of Service requirements would be shown to the police or DOT inspectors to avoid violations, while another set of books would secretly be kept showing the actual time driven.  This practice still exists today, but it is less common to be in the form of written log books.

Today, drivers may attempt to avoid HOS requirements by “unplugging” their GPS data recorder, so that not all of the time driven is recorded, making it appear that the driver was not exceeding the HOS requirements.  Any time a crash happens because a commercial vehicle driver was exhausted or asleep, it is important to obtain and review both written and electronic data to discover the truth.  Both the driver and the company may be at-fault if false records are being kept.

In 2018 it is estimated that the transportation industry lobby spent nearly $6,000,000 attempting to influence the rules and regulations that impact trucking. For example – the Federal Government, under pressure from the trucking lobby including FedEx and UPS, regularly considers softening safety measures in order to help large corporations profit. For example, in 2017, spite of a push to make screening for sleep apnea and other serious sleep disorders mandatory, the measure was taken off the table. To date there is no rule that mandates medical screening to ensure that the driver of the truck next to you is asleep or not.

While there is a requirement that Commercial Driver’s License (CDL) applicants must pass a medical examination, many of these examiners rely upon the applicants to self-report conditions like obstructive sleep apnea that might impact their driving. However, even people who report the condition can obtain a CDL if they say they say they are using a C-Pap machine to treat their condition and, since the rules about that medical exam vary from state to state, your safety may be compromised.

Truck drivers have rules about how long they can drive in a day, don’t they?

Yes. State and Federal regulations require truckers to keep detailed log books that truthfully record their activity and their HOS, Hours of Service.  While accurate log books are mandatory, it’s well known that many – perhaps most – drivers keep two log books or periodically unplug or disable their GPS devices, which are more and more commonly used to track and record hours and miles driven.

In cases where two sets of written logs are kept, the first records the actual hours the driver has worked; the second, called a “comic book” demonstrates a perfectly legal day in the life of a trucker with plenty of sleep time and a drive-time well below the HOS limitations. For unscrupulous drivers and companies, this second book is the one they show at State ports of entry and when they are stopped for an unscheduled inspection.  In other words, the rules and regulations you think are keeping you safe on the road may not be doing the job.

One way to catch such drivers and companies in the act is to obtain the delivery schedule, bills of lading, and log books of the yards and warehouses delivered to, to prove that the driver could not have made the deliveries on the same schedule recorded in the written or electronic logs.

Why would a trucker be reckless enough to drive when he’s dangerously tired?

As with so many other situations in our society that seem to be without logic, the answer to that question requires you to do only one thing – follow the money.

Truck drivers are often paid by the mile. The more miles she covers in any given day mean she’s making more money per hour. He or she makes money by driving more. And, when trucks and their drivers deliver the goods on time – no matter how unreasonable the schedule – everybody gets paid. The shipper is happy, the trucking company is happy, the receiver is happy, and the truck driver doesn’t get fired and also lives to drive another day.

Mostly.

This is not rocket-science. When a driver’s reflexes are slow due to inadequate sleep, his or her reaction time is sluggish. If you are exhausted, you have no business driving a car. Nevertheless, every day sleepy long-haul truckers climb behind the wheel and move those 80,000-pound big-rigs onto public highways where they hurtle down the road at high speeds. Too many of those drivers are far too tired to be driving alongside your family’s vehicle. The word precarious comes immediately to mind, but that word is entirely inadequate to describe the danger you’re in when you’re on the road with drowsy drivers.

How can I prove that the trucker who hit me was asleep at the wheel?

First of all, it’s not necessary that the truck driver be asleep at the wheel. You will need to prove that the driver was not qualified to drive at the time the accident happened.  When he or she is “out of hours” he might as well be driving on a suspended license. He is not legally qualified to drive that big, dangerous rig. Period.

Log books, the truck’s black box recorder, GPS uploads via cellular data to the company or a third-party and other documentation can be subpoenaed and they can eliminate any doubt of the truck driver’s ability to drive safely.  Even if the data is successfully falsified or destroyed by the driver or company, delivery schedules and the dates and times of delivery can be used to show the speed, progress and hours necessary to have kept that schedule.

A case example:  Overly-tired trucker

By way of example: imagine that John Doe, a long-time driver, changes lanes into you, crushing your car to the guard-rail or concrete barrier, leaving you hospitalized with internal and external injuries.

Possibly, Mr. Doe wasn’t fully asleep.  But he may have been excessively fatigued because he had not had the required amount of down-time in the past 11-hours — not asleep, just zoned out. But when the police officer examines the written log books from the cab of the truck, everything looks fine.  However, using the onboard electronics, the delivery schedule and the dispatch record which shows he was hurrying toward a rush delivery, you may be able to prove that he was not legally able to drive at the time of the accident. When you add your medical bills, your lost wages and the cost of the replacement car you had to buy, you may have a substantial settlement – but only if the case is handled correctly.

Do I need a special lawyer to help me with a tired truck driver case?

We think you do.

When you’re dealing with a powerful force like the transportation industry and years of skilled practice at forging driving logs to make tired drivers look innocent, you are fighting an up-hill battle. The more often a trucker and his company are found to be taking unnecessary chances with public safety, the higher insurance for the industry climb. Additionally, the more often accidents happen, the more likely it will be that stricter regulation and enforcement will follow, dipping into profit margins. For these reasons and more, truckers and the trucking industry pulls out all stops when defending themselves.

Add that disadvantage to the fact that insurance company attorneys are notoriously bent on winning their cases at all costs, and you have a challenge that’s far bigger than a garden-variety, all-purpose lawyer.

Call The Millar Law Firm today for your free case evaluation. We’ll review the facts around your claim and help you find the best way to proceed. You deserve justice.

Legal Resources, Definitions, and FAQ for Tired Truck Driving Cases

Definition:  Adverse driving conditions

Truck drivers must take special precautions when driving in adverse conditions, which are defined under the Federal Motor Carrier Safety Regulations as meaning fog, snow, sleet, or unusual traffic or road conditions that were unknown at the time of dispatch.  49 C.F.R. 395.2.

“Driving Time” – defined

Under the FMCSA regulations, driving time is defined as the actoual amount of time spent at the controls of a commercial motor vehicle (CMV) while it is in operation. 49 C.F.R. 395.2.

“On Duty” Time – defined

On-Duty means all of the time from when a driver is required to be ready to work, his time working, and until he is finished working and relieved from responsibility.  Under the Regulations this means all time spent at a terminal or plant, a customer location and time spent waiting to be dispatched for a run.  This also includes time inspecting or servicing a CMV.  It does, however, exclude time spent resting in a parked vehicle or sleeper berth or up to two hours spent riding as a passenger before or after driving.   49 C.F.R. 395.2(1)-(9).

Supporting Documents for Duty Status and Driving Time Compliance

Under 49 C.F.R. 395.11 drivers and their companies must maintain and retain supporting documents that include:  bills of lading, schedules, dispatch records, receipts for expenses, electronic communication logs for fleet management systems, and payroll records, among other things.  395.11(c)(1)-(2).  The failure to maintain and retain these records can be used as evidence against the driver or trucking company of failures to comply with trucking regulations, or in some instances, evidence of tired driving or false record keeping.

Supporting Documents at Roadside Inspections, Stops and Accident Scenes

Truck drivers must be able to produce supporting documents to law enforcement and inspectors if and when they are stopped at the roadside.  The failure to have supporting documentation is a violation of the FMCSA.  49 C.F.R. 395.11(g).  In the event of a trucking accident, it is important to investigate what supporting documentation the driver had at the time of the crash.  The failure to have supporting documentation may be evidence of negligence, or even fraud, as a proximate cause of the incident.

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