Trucking regulations

Published on: November 30, 2008

Should there be a mandatory retirement age for truck drivers?

Driver fatigue is a major cause of catastrophic truck crashes. Michigan attorney Terry Coleman suggests that the correlation of fatigue, slow reaction time and aging should lead to imposing a mandatory retirement for truck drivers at age 65, the same age at which airline pilots are required to retire. While I share the concern for trucking safety, I respectfully disagree with the conclusion.

Having known individuals who retained their full strength and faculties to age 80 and beyond, and others who were debilitated at 45, I am increasingly skeptical of mandatory retirement ages in any field. Rather, I would favor annual testing of key functions – vision, hearing, reaction time, etc. – beginning at perhaps age 60 or 65.

If an individual has the physical and mental ability to working productively and safely, he or she should not be restrained by an arbitrary age limit. And if a younger person is not capable, he or she should not be piloting an 80,000 pound vehicle through highway traffic.
Continue reading →

Published on: November 29, 2008

Motor Carrier Safety Advisory Committee agenda

By Ken Shigley

The Federal Motor Carrier Safety Administration’s Motor Carrier Safety Advisory Committee announced a telephone conference meeting for Monday, December 1, 2008 12:00 pm – 1:00 pm EST. Here is the rather opaque agenda that has been announced.

1. Call to Order Larry W. Minor, Designated Federal Official, MCSAC
2. Opening Remarks David R. Parker, Chair, MCSAC
3. New Business Warren Dunham, Facilitator, MCSAC a) Approval of Task Statement 09-01 (National Agenda for Motor Carrier Safety)
b) Review of 2009-2010 Proposed Meeting Dates
4. Adjournment Larry W. Minor, Designated Federal Official, MCSAC
Members of the public may access the meeting by telephone conference.
Bridge Line: 1-877-940-3750, Passcode: 1435220 Web Link: http://fhwa.na3.acrobat.com/mcsac Continue reading →

Published on: November 27, 2008

Obama transition team hears truck safety debate points

By Ken Shigley

While my perspective is that of a trial lawyer handling truck and bus accident injury cases in Atlanta, Georgia, it is necessary to keep up with developments nationally. Therefore, I am following how trucking safety issues are on the agenda for the new administration in Washington.

Last Monday, the transportation transition team met with representatives of major trucking industry interest groups including the American Trucking Association (ATA), the Truckload Carriers Association, Commercial Vehicle Safety Alliance, National Private Truck Council, the Owner-Operator Independent Drivers Association (OOIDA), and the truck manufacturers.

According to a report by Jami Jones of Land Line Magazine, some of the issues on which conflicting opinions were presented included:

– Truck size. The American Truicking Association favors using longer and heavier trucks for “productivity improvements.” The OOIDA and others counter that this would take a toll on the nation’s highway and bridge infrastructure.

– Loading and unloading time. The OOIDA representative pointed out that many drivers spend 30 to 40 or more hours per week waiting at loading docks to get loaded or unloaded. Addressing the waiting time problems at loading docks would improve productivity, as well as enhancing safety by helping encourage compliance with hours of service and reducing driver fatigue.

– Speed limiters. The ATA argues for speed limiters on trucks for reasons of safety and energy conservation. The OOIDA contends that speed limiters would hurt the incomes of truck drivers who are paid by the mile, and would have negative safety effects by ability to change lanes and move with the flow of traffic.

– Pressure from brokers, shippers, receivers and motor carriers. The OOIDA representative pointed out the the FMCSA concentrates too much of its enforcement efforts on drivers, while ignore the relationship between highway safety and the coercive demands of freight brokers, shippers, receivers and motor carriers upon drivers. The OOIDA representative pointed out that pointed out that truckers are under immense pressure from motor carriers, shippers and receivers. And that pressure is far more pervasive than the threat of any inspection scheme by FMCSA. “Unless those economic issues are addressed, drivers who become disqualified from driving … for safety violations will simply be replaced by new drivers facing the same economic pressures,” he told the transition team.

That is consistent with horror stories about economic pressures to violate safety rules I have heard from numerous truck drivers over the years.

– Truck parking and idling. Hours of service regulations require truck drivers to take mandatory rest periods. However, there are often inadequate spaces available for trucks to park and local governments restrict truck parking. Representatives urged a national approach to availability of truck parking for rest.

– Other topics discussed included electronic on-board recorders, parking shortages, idling regulations, highway financing and driver training.
Continue reading →

Published on: November 26, 2008

FMCSA Motor Carrier Safety Advisory Committee meetings on Dec. 1 and 10

By Ken Shigley

The Federal Motor Carrier Safety Administration’s Motor Carrier Safety Advisory Committee (MCSAC) announced on November 26th, the day before the Thanksgiving holiday, that it will hold committee meetings on Dec. 1, the day after the holiday weekend, and Dec. 10. The announcement did not include any indication of what will be on the agenda.

The December 1 meeting, from 12 to 1, will be accessible by conference call, though the announcement did not include direct information on how to access it.

I sent an email on Wednesday, shortly after the announcement came out, asking for the agenda, and did not receive any response. I will try again.

I try not to be too cynical, but the closing days of any administration, when the outgoing officials may be tempted to feather their nests for future jobs in the industry they regulate, is a time to be especially watchful. That’s true no matter which party is going out or coming in.

The December 10th meeting is apparently accessible only to those able to attend in person in Washington, DC.

The announcement stated that for more information, one should contact Jeffrey Miller, Chief, Strategic Planning and Program Evaluation Division, Office of Policy Plans and Regulation, Federal Motor Carrier Safety Administration, Department of Transportation, 1200 New Jersey Avenue SE, Washington, D.C., 20590, (202) 366-1258, or via e-mail to mcsac@dot.gov.
Continue reading →

Published on: November 26, 2008

Trucking hours of service debate continues

By Ken Shigley

A few days ago, the Federal Motor Carrier Safety Administration published a final rule adopting the provisions of its 2007 interim final rule, increasing the maximum driving time from 10 to 11 hours per day, out of 14 hours on duty.

According to a report by Jill Dunn on e-Trucker.com, the FMCSA and American Trucking Association — whom some cynics may charge are joined at the hip — claim that large truck crash, injury and fatality rates have reached the lowest point since the USDOT began recording statistics.

The Teamsters Union, by contrast, claims that the percentage of fatal crashes resulting from driver fatigue rose 20 percent in 2005 from 2004.

Public Citizen President Joan Claybrook says that DOT statistics show that deaths among large trucks occupants increased from 726 to 805 from 2003 to 2006. She also points out that the newest HOS rule does not require electronic on-board recorders which are required in Europe.

A determined advocate can prove anything with statistics. But based on the common sense of humanity, it seems like common sense that any driver is more fatigued and more accident prone in the eleventh hour of driving.
Continue reading →

Published on: November 26, 2008

Road Safe America promotes Drive Safer Sunday

By Ken Shigley

Today’s issue of the Atlanta Journal-Constitution includes an article by Steve Owings, who founded Road Safe America after his son was killed by a speeding tractor trailer on cruise control six years ago.

Having met Steve and learned of his motivation to make the roads safer for everyone, I’m just going to copy his article here in order to give his words wider distribution.

Big rig killed our son; drive safely on busiest traffic day

Continue reading →

Published on: November 26, 2008

Big rig crash in morning fog kills woman

By Ken Shigley

A tractor trailer driver going too fast to see his way through dense fog Monday morning in Fresno, California killed a young woman on her way to work.

According to a report by Jim Steinberg and Vanessa Colón of The Fresno Bee, a big-rig drive Martin Nelson, 22, of Fresno, failed to see stopped traffic in heavy fog. He struck a Ford Explorer, killing the woman inside.

At least two critically important provisions of the Federal Motor Carrier Safety Regulations appear to have been violated here.

First, 49 C.F.R.§ 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by . . . rain, dust, . . . adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.

Two California court cases have held that a trial court must instruct a jury on the federal “extreme caution” standard of care rather than the regular negligence standard under state law. Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001); Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). See also, George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006).

Second, 49 C.F.R. § 392.1 requires:

Every motor carrier, its officers, agents, representatives, and employees responsible for the management, maintenance, operation, or driving of commercial motor vehicles, or the hiring, supervising, training, assigning, or dispatching of drivers, shall be instructed in and comply with the rules in this part.

This case involves a 22-year-old truck driver. My hunch, based on experience in trucking cases, is that his employer checked to see that he had a CDL (Commercial Driver’s License, checked to see if he had any moving violatons in the past three years, and tossed him the keys. I seriously doubt that the employer made any efforts at all to assure that he understood and appreciated the need to slow down or pull over when hazardous driving conditions made operation of the tractor trailer unsafe.

As a result, an innocent motorist is dead and her family grieves.

The challenge facing an attorney handling such a case is often to educate judges who don’t even know that they are ignorant of motor carrier safety law. That is a continuing challenge as it requires getting a busy judge to focus on a body of federal law with which he or she may have great familiarity. Too many lawyers and judges think a tractor trailer crash is “just a big car wreck” and fail to recognize the legal and technical issues that must be considered.
Continue reading →

Published on: November 25, 2008

Truck wreck kills three in hazardous weather

By Ken Shigley

In my trucking litigation law practice, I all too often see fatal truck accidents that happen in bad weather Despite a federal safety regulation requiring “extreme caution” in hazardous weather, and instructions in the Commercial Drivers License Manual to slow down by at least one-third, truckers under economic pressure from employers, shippers, and sometimes their own creditors, too often speed ahead through rain and snow.

The most recent such crash in the news was yesterday on I-81in Virginia’s Shenandoah Valley, a road I know well.

It happened about 11:30 a.m. near New Market, Virginia. The road was slickened by snow. A big rig operated by Jose Alberto Sarmiento of Texas, hit several vehicles before rear-ending of a Ford Escort, killing three members of a Virginia family.

According to a report by Pete DeLea in the Daily News Record of Harrisonburg, VA, Sarmiento has been charged with reckless driving and three counts of felony involuntary manslaughter.

The Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.14 requires:

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

Every reported case that addresses the issue agrees that it is reversible error for a trial court not to instruct a jury on this “extreme caution” standard.

In Crooks v. Sammons Trucking, Inc., 2001 WL 1654986 (Cal.App. 3 Dist.,2001), a tractor trailer sped through blowing snow until striking another tractor trailer. The trial court denied a request to charge on the “extreme caution” standard under 49 C.F.R.§ 392.14, instructing the jury instead on the state standard of ordinary negligence. The appellate court reversed, holding that the trial court should have charged on the higher federal regulatory standard rather than the lower standard provided by state law. The same decision was reached in Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist.,2005). Clearly, if the federal “extreme caution” standard preempts a state rule of “ordinary care,” the reasons are even stronger for it to preempt a state standard of “willful or wanton misconduct.”

The Minnesota Supreme Court in George v. Estate of Baker, 724 N.W.2d 1 (Minn.,2006), held that it was reversible error to give a “curative” instruction contradicting an attorney’s argument that a “reasonable care” standard did not apply, even though the full instructions included reference to standards of “utmost care” and “extreme caution.”

In Kentucky, Jurek v. Hubbs, 2004 WL 1487116 (Ky.App.,2004), involved denial of the plaintiff’s motion for directed verdict based on 49 C.F.R.§ 392.14 rather than jury instructions. However, the court recognized that the Federal Motor Carrier Safety “regulations govern the operation of commercial motor vehicles in the United States. To the extent that they establish a standard of care higher than the law, ordinances, or regulations of a particular state jurisdiction, a commercial driver must comply with the FMSCR.”

The Virginia Supreme Court held, in Kimberlin v. PM Transport, Inc., 264 Va. 261, 563 S.E.2d 665 (Va.,2002), that it was reversible error to direct a verdict for the defendant where there was a question of fact whether truck driver violated the duty created by 49 C.F.R.§ 392.14 to exercise extreme caution under hazardous conditions and whether violation of such duty was a proximate cause of the accident. The court noted that while violation of the regulation does “not constitute negligence per se [It] simply creates an expanded duty of care for the operation of commercial motor vehicles under the conditions stated therein.”563 S.E.2d at 668-69.
Continue reading →

Published on: July 19, 2008

Senate committee blasts Federal Motor Carrier Safety Administration for failure to protect public on driving hours and drug testing

By Ken Shigley

As an Atlanta trial lawyer handling trucking accident cases throughout Georgia, and occasionally in neighboring states, I watch doings at the Federal Motor Carrier Safety Administration (FMCSA) with considerable interest. The news about FMCSA coming out of Washington this week was pretty scathing.

The Senate Appropriations Committee’s Transportation, Housing and Urban Development report on the FMCSA blasted the agency for its failure to put the top priority on safety, expressing “immense frustration.” See reports by Barb Kampbell on TheTrucker.com and by Justin Carretta of Fleetowner.com.

A few key points are:

* “FMCSA has shown a pattern of undermining its safety mission by proposing weak regulations and failing to provide adequate oversight and enforcement of existing regulations.”

* Regarding the Hours of Service rule, “the rules that FMCSA has proposed fail to achieve maximum safety benefits, and in some instances may undermine safety … clear and consistent regulations are critical to the industry, so that they can manage operations in a compliant way; FMCSA has not provided that consistency.”

* In the area of drug testing, investigators from the Government Accountability Office found that 22 of 24 drug testing centers failed to follow sample collection protocols. In some instances, drivers fail drug tests at one location and are simply transferred to another area to continue driving.

* A 2001 National Transportation Safety Board recommendation to FMCSA that it take action to prevent medically unqualified drivers from operating commercial vehicles has not been satisfied.
Continue reading →

Published on: June 20, 2008

Trucking companies responsible for their drivers even if they evade regulations

By Ken Shigley

As a trucking accident trial lawyer, I occasionally see trucking companies try to evade responsibility for their driver. Generally, that is covered adequately by 49 C.F.R. § 390.5 which in the interstate trucking context defines “employee” to include “an independent contractor while in the course of operating a commercial motor vehicle.”

But when a really devious trucking company comes up with a scheme to try to evade that responsibility, we can fall back on what courts used before enactment of that “statutory employee” rule.

Before 1956, courts could rely upon the Restatement rule that, “An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Restatement (Second) of Torts § 428.
Continue reading →