Truck Injury Lawyer Blog : Truck Accident Lawyer & Attorney: Morgan Adams : Contingency Fee Truck Accident Lawyer

Tanker rollovers are incredibly dangerous as we have blogged about repeatedly in the past. Currently there are no government mandates requiring anti-rollover technology despite it being readily available and over 725 tanker rollovers a year. A recent amendment to a bill would require the government to report on tanker rollovers and methods and recommendation  to reduce them, such as anti-rollover technology.

Past studies have concluded that 75% of tanker rollover's are due to the tanker driver's error. I conclude from that that well over 50% of tanker drivers are inadequately trained.

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I was speaking to my friend Leigh May in Atlanta, a great products liability lawyer who has handled a number of defective tire cases with major results, and she was kind enough to review my blog on old and defective tires. She made an excellent point that the spare tire is often overlooked when people change their tires. I have always looked at tire issues from the standpoint of a truck accident attorney and how the tire defect contributed to truck rollovers and loss of control by drivers. However, from my own experience, I can tell you I used to change out all my tires - except the spare - as routine practice! The fact is that by the time the spare is actually used, it is often way beyond its safe shelf life.

The lesson to be learned is that, for safety, when you change out your tires make sure you include the spare! The few extra dollars it costs you to replace a spare tire are worth it to prevent some of the horrible tragedies that Leigh and I have seen over the years.

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If you or a family member were involved in a wreck with a tractor trailer chances are the professional truck driver was distracted in some manner. Proving that the driver was distracted, and how he was distracted, will likely require a lawyer. The trucking insurance companies hope you sit on your hands as the more time that passes the harder it will be for your lawyer to prove how the driver was distracted, and the more likely the defense lawyer will be able to claim that some portion of the wreck was your family member's fault.. 

There is no question that distracted driving is a major contributor to serious truck accidents. Congress is aware of this as is the FMCSA. Recently the FMCSA banned texting by drivers, a danger we had blogged about since early 2008. Proving texting may be difficult as truckers may use a co-drivers phones.The driver may also have a throwaway phone so they are not calling on their "official" phone. Early aggressive work by an experienced trucking lawyer will give you the best chance of proving your case.

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I predict within the next three years that Congress will mandate Electric On Board Recorders (EOBR) because EOBR's make the trucking industry safer. While the FMCSA has a final rule to require EOBR's on about 1,000 motor carriers, I would expect that this rule will be significantly expanded. While EOBR's can still be faked, and I have blogged on the subject before, they are much more difficult to fake making it easier to show violations of the FMCSR.

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The banning of texting, and the use of cell phones in a moving vehicle, is something I predicted would happen in an earlier blog. My prediction has come to pass and the article reporting the complete ban on texting for truck drivers is posted below:

The U.S. bans truckers, bus drivers from texting while driving

By Ashley Halsey III, Washington Post Staff Writer  - Tuesday, January 26, 2010; 1:22 PM

The government Tuesday formally barred truckers and bus drivers from sending text messages while behind the wheel, putting the federal imprimatur on a prohibition embraced by many large trucking and transportation companies.

"We want the drivers of big rigs and buses and those who share the roads with them to be safe," said U.S. Transportation Secretary Ray LaHood. "This is an important safety step, and we will be taking more to eliminate the threat of distracted driving."

LaHood has made the effort to curtail driver distractions a centerpiece of his tenure as the nation's top transportation official. Some saw his announcement as a step that might ultimately fuel a push to ban cellphone use by all drivers.

LaHood's announcement followed a study released in July by Virginia Tech's Transportation Institute that found that when truckers text, they are 23 times more likely to be involved in a crash or near miss.

Although both houses of Congress are considering bills restricting texting and 19 states have banned the practice, LaHood said existing rules on truckers and bus drivers give him authority to issue the prohibition. LaHood said drivers of commercial vehicle caught texting could be fined up to $2,750.

"It's an important first step," said Jonathan Adkins, spokesman for the Governors Highway Safety Association, a coalition of state highway safety directors. "It's will start a cultural shift away from texting and cellphone use. We'd like to see a ban on all cellphone use by drivers of commercial vehicles."

Texting and cellphone use have been banned in many major commercial fleets, including FedEx's 43,000 vehicles and the 100,000 used by United Parcel Service.

Enforcement of LaHood's ban is so problematic that it might prove more symbolic than practical. "The enforcement problem here is enormous," said Russ Rader of the Insurance Institute for Highway Safety. "It's not clear this is going to make any difference on the road in terms of crashes."

Rader said the challenge for police officers is daunting. "How does anybody spot a trucker or any driver on the road who is using some device that they're holding below window level?" Rader said. Vernon Betkey, chairman of the GHSA and a retired Maryland State Police trooper, acknowledged the challenge and said he hoped federally funded demonstration projects in Connecticut and New York might develop better enforcement tools.

"Right now, law enforcement has to be somewhat creative," Betkey said. "A driver constantly looking down while they're driving might be a clue, or you might have some lane departures."

Last year, President Obama banned federal employees from texting while driving government vehicles and from texting in their own cars if they use government-issued phones or are on official business.

With LaHood leading the effort, supported by mounting evidence of the danger, Adkins predicted that this year could see an effort to ban cellphone use by all drivers. "At some point we'll have to address that issue," Adkins said. "We think 2010 will be the year when we do something about distracted driving. We can't remember a secretary every taking the issue of highway safety so seriously."

Statistics released two weeks ago by the National Safety Council indicated that 28 percent of traffic accidents occur when drivers are talking on cellphones or sending text messages. The nonprofit council said that texting was to blame for 200,000 of the crashes, while cellphone conversations caused 1.4 million. Those numbers come in the context of federal statistics that show that about 812,000 drivers are using cellphones at any given moment during daylight hours.

In announcing the ban Tuesday, LaHood pointed to data compiled by the Federal Motor Carrier Safety Administration last year, which show that drivers who send and receive text messages take their eyes off the road for an average of 4.6 seconds out of every six seconds while texting. At 55 mph, he said, that means that during that time, the driver travels the length of a football field, including the end zones, without looking at the road.

Click here for the article.

 

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For the last several years my firm has been donating to the Truck Safety Coalition. I would encourage you, and the lawyers that represent you, to donate to this organization. So what is the Truck Safety Coalition and why should you care?

The Truck Safety Coalition is a partnership between The Citizens for Reliable and Safe Highways (CRASH) Foundation, and Parents Against Tired Truckers (P.A.T.T). The Truck Safety Coalition is the only non-profit organization solely dedicated to reducing the number of deaths and injuries caused by truck-related crashes, providing compassionate support to truck crash survivors and families of truck crash victims, and educating the public, policy-makers and media about truck safety issues. They keep everyone safer on the road even when you don't know it is happening.

It may seem funny that a law firm, that makes a living representing those injured in truck crashes, is actively working with a group that is trying to stamp crashes out, but if you met just one of my clients you would understand why these collisions need to be stopped. Lives are forever changed in these collisions and if we can stop just one wreck from claiming another victim it is money well spent. Additionally, this is a passionate organization where money goes a long way to impact safety. In short this is an organization worthy of support.

The Truck Accident Lawyers at the Law Offices of Morgan Adams concentrate in protecting the rights of those who were seriously injured or lost a loved one in an accident with a commercial truck or bus. Our lawyers are based in Tennessee, but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

 

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Tire separation is a huge danger on the roadways, both for personal vehicles and for commercial vehicles.

With personal cars the danger lies in the fact that most people are unaware of how to determine how old their tires are, and that old tires, even with good tread, pose a danger. The service centers that sell old tires to the public are under no such illusion and need to be held accountable for pushing these tires on the unsuspecting public.

With commercial vehicles the danger lies in the fact that some professional drivers will buy old tires because they are cheaper, deliberately ignoring the safety risk.The accidents caused by commercial drivers with bad tires are willful, wanton acts of gross negligence.

When the tire was made. Every tire has a Department of Transportation (DOT) number following the letters on the sidewall. The last four digits determine the week and year the tire was made; for example, the digits 2204 would signify that the tire was made during the 22nd week of 2004. Don't buy tires more than two years old and replace tires if they are six years old (although manufacturers generally recommend 10 years). For the risk posed by old tires see the excellent ABC News Video Special Report 

Tire manufactures don't want you to know the age of their product for some reason. The websites they put out show how to "read a tire" but neglect to inform consumers how old the tire is. See: Goodyear, Perelli, or Michelin to name just a few.

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Truck manufacturers have successfully lobbied to keep roof crash standards, required for passenger cars, from applying to the cabs of tractors. The light weight cabs made by some in the trucking manufacturing industry have long been known to put driver's lives at risk. Trucking companies buy these cabs on the simple math of less weight equaling lower fuel costs, resulting in greater profits for the trucking company. Thus there is a rush to the bottom by cab manufacturers who ignore safety of the driver for greater profits for the trucking company. Simple and common safety improvements such as adding a roll cage, or strengthening the cab roof support structure, would cost only a few dollars and would reduce fuel efficiency by a minuscule amount. Because of this I would have thought that cabs would have soon been made stronger in America. In fact I have previously posted on the need for roof crush standards in the US. I was surprised to see that instead of making cabs safer, Volvo and Daimler were planning on cutting additional steel from the cabs of the tractor trailers they manufactured. In fact the folks at Daimler (who also own Frieghtliner) made no bones about cutting out steel in the cabs they make.

According to Transportation Topics, a trucking industry magazine, Kathrin Fritz (a Daimler spokeswoman at the the corporate headquarters in Germany) stated that Daimler would be offering weight saving features such as more aluminum in the cabs. Aluminum cabs are shunned in Europe for cost and crash worthiness reasons. (See generally: Transportation Topics, Equipment and Maintenance Update, November/December 2009, Page 12)

Crash worthiness is the ability of the cab to help a driver to survive a wreck. Using aluminum, while resulting in a lighter cab, would result in more drivers getting killed in wrecks as the cab would not be as strong as a steel cab and would be unable to protect the driver as well. I urge the NTSB to take a look at this issue and protect truck drivers by mandating a stronger cab. Cab crush is the leading cause of truck driver deaths in the United States according to studies and something needs to be done before the whole cab is replaced with plastic. 

 The Truck Accident Lawyers at the Law Offices of Morgan Adams concentrate in protecting the rights of those who were seriously injured or lost a loved one in an accident with a commercial truck or bus. Our lawyers are based in Tennessee, but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

 

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Requiring Electric On Board Recorders (EOBR's) on every truck would be a significant step forward for safety in the trucking industry. EOBR's keep better track of a drivers hours than the paper log books (frequently referred to as "comic books") that are currently used within the trucking industry. EOBR's are not perfect, but they are much safer and harder to fake than paper logs.

Keeping drivers within the legal hours helps prevent fatigued driving, a dangerous condition which is acknowledged to be a contributing factor in over 1/3 of all crashes involving commercial motor vehicles. Recently the Chairwoman of the NTSB, Debbie Hersman, called for EOBR's on all trucks since NTSB  "investigate accidents on a regular basis where we find two sets of log books [with one being false]."

Chairwoman Hersman's comments came after her speech at the National Press Club in Washington, DC on November 16, 2009.

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My best to you and yours for the holidays!

While I am thankful for the many people that have entrusted their cases to my office across the country, we don't need more clients. We want you and yours to stay safe. Remember, don't text and drive, do use designated drivers, and don't push getting to Grandma's house! Stay safe and ensure that it truly is a blessed holiday season for everyone.

If Grandma gives you any grief for getting to her house late, blame me. Remember you were "acting under advise of counsel" and it is not your fault. I will take the heat and Grandma can scold me on this blog.

Finally, my family's prayers also go out to the men and women of the armed services and the various police and sheriff''s departments that are working this holiday season to keep us safe. God bless you one and all.

 

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I suppose that it goes without saying that companies are required to make sure their employees know and follow the law. Does anyone really want an employer turning a blind eye to safety violations so the company can earn a few more dollars? This is particularly true when the employee is behinds the wheel of an 80,000 (or greater) pound truck.

In the trucking industry there is actually a contract between the government (and the people it represents, i.e. you and me) and the trucking company. The Contract requires the company to follow safety rules before it ever gets to put a single truck on the road.  It also requires the company to ensure all of its personnel are trained in these rules and requires all commercial drivers to follow the rules. This contract is called the Federal Motor Carrier Safety Regulations (FMCSR). 

The company must agree to adhere to the FMCSR before it can put a single truck on the road. The company in turn is required to make sure each of its drivers follows and is trained in the FMCSR. The driver is required to sign a receipt for a copy of the FMCSR to keep in his truck so he can refer to them at need. The receipt looks like this: receipt.  

The importance of these safety laws is so critical that the driver, the lowest level employee, must also become signatory to the contract between the the government and the trucking company,. The trucking company must ensure the driver is familiar with the FMCSR before he takes his first truck on the road. Failure to adhere to the safety contract, the FMCSR, by either the driver or the company, eventually results in needless death on our roads.

My friend, Ken Shigley, posted a blog on companies being required train their drivers on the FMCSR not long ago entitled "Ignorance of Trucking Rules No Excuse." 

Some of the laws that Ken points out as applicable include: 

49 C.F.R. § 390.11 requires: “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.”

49 C.F.R. § 390.3(e) requires that "Every employer shall be knowledgeable of and comply with all
regulations contained in this subchapter which are applicable to that motor carrier’s operations."  It also states that "Every driver and employee shall be instructed regarding, and shall comply with, all applicable regulations contained in this subchapter."

49 C.F.R. § 390.5(e) requires that trucking companies must be familiar with trucking regulations and instruct their drivers, dispatchers and other employees.

49 C.F.R. § 392.1 provides: “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.”

 

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I often get asked by lawyers "where do you find the rules of the road and basic safety standards" for your cases?

There are lots of sources for these rules, which are easy to find if you work in the industry, harder to find if you are on the outside and unfamiliar with the trucking industry. Nonetheless the federal government has done a good job covering the basics in its ACCIDENT PREVENTION MANUAL. The manual covers the basic types of wrecks and the federal motor carrier safety regulations (FMCSR) that were violated in causing the wreck. It is free for download or copies can be ordered for a nominal fee.

The Truck Accident Lawyers at the Law Offices of Morgan Adams concentrate in protecting the rights of those who were seriously injured or lost a loved one in an accident with a commercial truck or bus. Our lawyers are based in Tennessee, but serve clients throughout the nation. If you or someone you love has been seriously hurt by a careless driver, don’t sign anything the trucking company gives you -- contact us as soon as possible at 800-580-4878 or by email to learn more at a free, confidential consultation.

 

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The safety rating system currently in use by the FMCSA, Safestat,  will change shortly to a new program called CSA 2010. Why change safety rating systems in the trucking industry?

In the 1980's there was approximately 300,000 trucking companies. That number has ballooned to over 675,000 carriers currently operating in the US. Additionally the miles driven and the trucks on the road at these carriers has increased. Freight volume shipped by trucks in the US is expected to grow 50% over the next 20 years, and the country's infrastructure will not even come close to keeping up. 

Since the 1980's the primary tool for carrier evaluation by the FMCSA has been a compliance review (CR). The CR takes days to conduct, is paper and manpower intensive, and is the only way that the FMCSA has to assign safety ratings. Under the CR process less than 2% of trucking companies in America were inspected in a given year. Another problem was that once a rating is given it doesn't expire until the carrier is rated again, regardless of how bad the carrier is currently. The rating has improperly become a "seal of approval" even though it was meant to simply take a snapshot of the company at one point in time. The process was the same whether the company had one truck or 1,000. Companies found to violate the safety regulations were assessed small civil penalties. The civil penalties for these violations were modest on the whole, with some carriers simply concluding that they were the cost of doing business.

Currently under the Safestat system carriers were assessed under 4 areas (1. Driver 2. Vehicle 3. Safety Management and 4. Accident). The new CSA 2010 system will measure seven areas (1. Unsafe Driving 2. Fatigued Driving 3. Driver Fitness 4. Vehicle Maintenance 5. Improper Loading/Cargo Securement 6. Crash History 7. Controlled substance/Alcohol) and has been tested in 4 states (Colorado, Georgia, Missouri, and New Jersey). As with any new system there will be implementation problems but, if properly used, the system will result in safer roadways. Already the system has resulted in many more warnings and other contacts from the FMCSA to unsafe carriers.

Other changes involve the fact that CSA 2010 includes two new safety measurement systems (SMS), one for carriers (CSMS) and one for drivers (DSMS). Drivers were never directly measured before for safety under the SafeStat system. The 7 factors, above, will be assessed for each driver and a weighted score will be give to each violation found for the driver or the company. The more likely the violation is to cause a crash, the greater the score. Thus carriers can find out from one source, assuming everything is reported and false identities are not used, what they need to know about a potential driver before hiring them. Bad drivers, in a perfect world, will find it much harder, or even impossible, to find a job.

The safety ratings that we are familiar with under SafeStat are Satisfactory, Conditional, and Unfit. These will be replaced by Continue to Operate, Marginal, or Unfit. Marginal ratings will result in FMCSA intervention while unfit ratings will result in a suspension. Intervention will be as follows, from least to most severe:

1.  Warning Letter
2. Targeted Roadside Inspection
3. Off site Inspection
4. On-Site Investigation - Focused
5. Cooperative Safety Plan 
6. Notice of Violation
7. On-Site Investigation - Comprehensive
8. Notice of Claim
9. Settlement Agreement
10. Unfit Suspension

More on this topic later where I will discuss, in part 2, the CSMS and in part 3, the DSMS.

 

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There is no question that there are far too many preventable fatalities involving the trucking industry. Whether it was a truck driver who was killed in a rollover caused by faulty loading by a shipper, a manufacturer not providing a roll cage, or a design flaw that allowed the cab to catch on fire one preventable death is too many. Even more common are the preventable fatalities caused by a fatigued or inattentive truck driver.

I like to think my firm does its part in lowering fatalities by the focused articles in this blog,  by educating other lawyers, and by the cases we file. The cases we file frequently shine light onto some dark and shady practices in the trucking industry. Often, after suit is filed, the offending safety violations are corrected, generally because the fix was cheap and easily undertaken.

The most frustrating part of my job is dealing with the aftermath of life lost due to a problem so easily avoided.  

Here is 2009 and my prayer that these numbers go down even further.

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One of the devastating issues involved with the bankruptcy of GM and Chrysler is what happens to the corporations liability for negligent manufacture of some cars, trucks, and SUV's? It appears the  the corporations may be immune from suit after the bankruptcy (although that has not been finalized at this time). The immunity provision was asked for by GM and Chrysler and is opposed in the bankruptcy court. If it does become part of the courts ruling it means if your family burns alive, and survives with millions of dollars in medical bills and in the future will require hundreds of thousands more in reconstructive surgeries GM and Chrysler can simply say sorry, we are immune and have your case kicked out of court.

I firmly believe that people, and corporations, need to be held responsible for their actions. I don't think I could own a car knowing that if the manufacture caused a defect, that caused harm to my family, they could simply walk away.

I am lucky as my wife bought a Ford, so we personally don't have to face this decision, and it may be that the government steps in and pays for this as it has for so much else (don't get me started on the wasted money in the stimulus package) or the court rules another way. But if I owned a Chrysler or GM car, SUV or Truck I would sell it before the market was flooded with cars from people moving away from these brands. I wouldn't wait to see what happens, by then it may be too late.

Finally, remember that this won't apply to GM or Chrysler/Fiat cars that were made after the companies filed for bankruptcy. So if you want to upgrade, please show your spouse this blog and tell them you have to upgrade "on my lawyer's advice!" 

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Reddaway, a division of YRC, has stated they will guarantee the time of delivery for the loads it carries. This is a very dangerous practice I have blogged about before. It puts extra stress and pressure on managers, dispatchers, and the drivers to push to make the deadline, even if the deadline cannot be safely met.

Typically there are driver penalties for late delivery in these situations. Any driver from Reddway like to tell us what the penalties are for a missed delivery guarantee?

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In 2007 the GAO found that the FMCSA was not using its enforcement powers to levy the maximum fines against flagrant safety violators. In a welcome turn of events the FMCSA has instituted a new policy that will levy the maximum fines more swiftly on unsafe trucking companies. These penalties include fines for failing to maintain proper records and failing to maintain proper levels of financial responsibility. 

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As President Obama announces Charles Hurley as the head of the NHTSA, I urge everyone to encourage the administration to take a look at current vehicle roof crushing standards, particularly those of commercial motor vehicles. The current standards for cars are extremely outdated having last been updated in 1973 before SUV’s became extremely popular on the roads.  Despite acknowledging the need for CMV roof crush standards, the trucking industry has successfully prevented them from being implemented. There are no roof crush standards for CMV's.

Roof crush standards are extremely important in accidents where a vehicle rolls over. It is estimated by the FMCSA that in excess of 12,000 lives of CMV drivers would be saved by having roof crush standards. The trucking industry fights having stronger roofs on CMV's because of the slight additional weight. The weight, despite being slight, would use more fuel to move and cut into profits. Thus there are no CMV regulations on roof crush and the trucks cabs are built with tissue paper. This is a clear case of profits over people and why many consider trucks to simply be rolling sweat shops. 

Please see my earlier posts on this topic.

 

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Anti-lock brakes (ABS) were first sold commercially in in 1987 when Freightliner offered a system. The systems were so much better than what was previously available that in 1997 the government required ABS in tractor trailers. Today all air-braked tractors manufactured after March 1, 1997 are required to have ABS, and all trailers and single unit trucks were required to have ABS in 1998.

Generally anti-lock braking systems sense a wheel or axle's rate of deceleration. The wheel speed is sent to the ABS computer which knows how fast a wheel should decelerate without spinning or locking. If the unit determines that the wheel is about to lock up, it can pump the brake. This regains the wheels ability to brake.

This same technology serves as the basis for stability, traction control and anti-roll systems.

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One of the areas lawyers, who don't handle a lot of truck wreck cases, have problems with in a trucking case are those cases that involve fire and explosion. Now don't flood me with emails, the lawyers can certainly say "my client burned to death." What I am talking about is the failure to consider a product liability claim against the manufacturer of the tractor. 

First consider that gas tanks in a car have been placed within the frame of the car for decades. Why? Because failure to do so causes fire and explosions in a wreck. Where are fuel tanks located on a truck? Outside of the frame, sitting there like a napalm bombs on a fighter jet. Manufacturers have know for years that this is dangerous situation and have refused to make changes. In fact they lobby congress to make sure rules that apply to make cars safer don't apply them.

These cases need to be brought to convince manufacturers to make safer tractors. Until they start making safer tractors drivers, whether car or truck, will unnecessarily be at risk. These cases should be considered even in single vehicle rollovers.

Morgan Adams is a trial attorney licensed in Tennessee and Georgia. He is listed as a "2008 Mid-South SuperLawyer" (Limited to the top 5% of the lawyers in Tennessee, Mississippi, and Arkansas), is a member of the Million Dollar Advocates Forum (limited to lawyers who have recovered 1 million dollars or more for their clients), and is the Chair-Elect of the American Association of Justice's Interstate Trucking Litigation Group. He has served as chair of the Tennessee Association of Justice's Trucking Litigation seminars since 2004, and is a frequent speaker at national continuing legal education programs on trucking liability cases.

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The Commercial Motor Vehicle Safety Alliance (CMVSA) has set June 2-4 as the time to hold its Roadcheck 2009 event. This event asks for all states to inspect trucks. Less than 1% of trucks are inspected. By announcing the inspections 4 months in advance, the CMVSA gives drivers and trucking companies four months to prepare, or if the problems are serious enough, to simply stay off the road.

Despite huge publicity in the trucking industry, the 3 day inspection in 2008 found 23.9% of inspected drivers failed a Level 1 inspection. While ATA President and CEO Bill Graves said last year that the Federation was pleased “to see that the safety of the truck fleet continues to improve.” The president failed to point out that almost 1 in 4 trucks was in violation of the Federal Motor Carrier Safety Regulations! The fact that drivers are on the road in an unsafe condition, knowing that this special inspection will be run, shows how drivers believe the chances of being inspected is so rare that they believe they won't be caught, or that they are so ill trained that they think they are safe.

The trucking industry, far from crowing about a 23.9% failure rate on an announced inspection, should be ashamed of itself.

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The American Transportation Research Institute (ATRI) has just released a report on ice falling from tractor trailers so I thought I would supplement my earlier post. The report reaches no conclusions about this recognized problem but does provide a "compendium of currently available snow removal devices, which includes utilization levels and advantages and disadvantages of each." I have requested a copy of the report and will have more to add later. In the meantime lawyers handling these cases would be well served to seek out a copy of this report.

see: www.ATRI-Online.org

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The proposal was made to increase the Federal truck weight limits (currently 80,000 pounds [by contrast a car typically weighs 3-4,000 pounds]) by the "Coalition for Transportation Productivity." I have discussed this before. This proposal will kill Americans. The severity of impacts, the number of rollovers, and the impact on our aging infrastructure will all go up dramatically. THIS IS A BAD AND DANGEROUS PROPOSAL! However it would make trucking companies more money, so if that is your goal, then lifting truck weight limits makes perfect sense.

Morgan Adams is a trial attorney licensed in Tennessee and Georgia. He is listed as a "2008 Mid-South SuperLawyer" (Limited to the top 5% of the lawyers in Tennessee, Mississippi, and Arkansas), is a member of the Million Dollar Advocates Forum (limited to lawyers who have recovered 1 million dollars or more for their clients), and is the Chair-Elect of the American Association of Justice's Interstate Trucking Litigation Group. He has served as chair of the Tennessee Association of Justice's Trucking Litigation seminars since 2004, and is a frequent speaker at national continuing legal education programs on trucking liability cases.

 

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The FMCSA gets a partial round of applause for instituting a mandatory audit for new trucking companies after 18 months. They don't get a full round of applause because the public should not be left in danger for a year and 1/2 before the FMCSA gets around to looking at a new company. The program will shut down companies that:

1. Use drivers with invalid licenses
2. Fail to have a drug and alcohol policy
3. Have insufficient insurance
4. Use drivers who are medically disqualified
5. Uses unsafe vehicles
6. Fail to inspect its vehicles
7. Fail to keep track of the HOS of its drivers,

Given the above list I would like to think the FMCSA could act faster than 18 months. Given that we have not had a mandatory program in place before now, 18 months is a lot better than nothing.

The FMCSA estimated that the new rule on inspections will save $3.78 Billion dollars by avoiding nearly 40,000 crashes over a 10 year period. Imagine how many more people would be saved from the tragedy of a crash with an 18 Wheeler if the inspection was held between the first 6 to 12 months!

 

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In a snow storm, slabs of ice are formed on the roofs of parked trailers. Unless the ice is removed by the trucking company or the driver, the slabs of ice fall from the tractor trailers onto the highways and passing cars, creating significant danger on our highways. While falling ice has been a known hazard for decades, trucking companies have paid scant attention to the risk it poses. The slabs of ice and snow falling off tractor trailers are often large, and given extra force by the speed of the truck when the ice comes off the trailer, and the speed of the car the ice hits. In fact several deaths have resulted from ice falling from tractor trailers. Legislation has been proposed and passed as a result of these tragedies, now requiring truck drivers to clean the ice off of the trailers in many northern states with long winters. For example:

In New York legislation was proposed in 2005 after the  tragic death of Jessica Smith, who was killed when a 9-foot piece of ice dislodged and flew from the top of an 18-wheel truck into the windshield of a truck traveling in the opposite direction. The driver of the damaged truck consequently lost control of his vehicle and crashed into Jessica’s car, killing her.

In New Jersey in 2008 similar legislation was proposed www.nj.com/news/index.ssf/2008/01/new_jersey_drivers_could_face.html

blog.nj.com/ledgerarchives/2008/01/windshield_wipeout_ice_still_f.html

Similar legislation exists in Pennsylvania firefightingnews.com/article-us.cfm and in other states.

While there are inventors that have identified the problem, and found a solution (see Patent application No. 925794 for a Net Safety Top for a Trailer, filed on 2001-08-09), the trucking industry has failed to adopt any reliable method of preventing the tragic and needless injuries that result from this type accident.

If you know of someone injured by this type of activity contact a lawyer. The accident was not only foreseeable, it was preventable by the trucking company and the truck driver.

To the truck drivers reading this please tell us the methods you or your company use to solve this problem. I would appreciate your telling us what is done when leaving the terminal as well as while on the road. Do you have a 2x4 you run over the truck? Scrape it off by hand? Use one of the patented systems for sale or do you just ignore it, knowing the danger it poses to other motorists on the highways? I look forward to your response.

 

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Swift will test its drivers for sleep apnea in a new program to detect and treat this chronic problem in the trucking industry. An estimated 25% of drivers have sleep apnea, a subject  I have blogged about before (see July 28, 2008).

With untreated sleep apnea a driver wakes up repeatedly during the night, disrupting his sleep, and causing him to be fatigued and more likely to make a mistake throughout the day. A driver is not allowed to drive a tractor trailer if he has untreated sleep apnea, a reason many drivers fail to seek out diagnosis and treatment, and why so many substandard trucking companies turn a blind eye to the condition.

Swift is following Schneider National in testing for sleep apnea.

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I have discussed the hours of service regulations extensively in prior posts. It is my position, and I believe most non-industry safety professional that drivers are on the road too many hours of the day, resulting in needless and preventable accidents.

The FMCSA has sent the new HOS rule to the White House for review. While it typically uses the 90 days alloted to it to make a decision (which would have the decision out Jan 19th, one day before the next president is sworn in), the White House has promised to expedite matters and have a decision out this year.

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An October 2008 has killed seven in Alabama, a tragedy that appears to have been preventable. The truck driver, who was in charge of the approximately 80,000 pound tractor trailer,  crossed the center line to strike a van of prison guard applicants. Seven were killed. So what can cause a tractor trailer to cross a center line and never break before hitting another vehicle? Fatigue. I have posted on this topic repeatedly. Trucking companies run their driver too hard, for money, and then mouth the words "I am sorry" as if all can be forgiven. The final verdict is not in, and certainly it could have been drugs, improper use of a cell phone, or some other offense that caused this wreck, but if you want my 2 cents it was a fatigued driver.  The evidence form the investigators to date shows the following: 

At the scene, Trooper John A. Reese described the investigation as ongoing. He agreed, however, that investigators probably will focus on the lack of skid marks from the truck, which apparently crossed the center line before striking the van. He identified the truck driver as Andrew David Carter, 31, of Tifton, Ga., who was taken to Baptist Medical Center South where he was treated and released.

For more, to include video, see:www.montgomeryadvertiser.com/apps/pbcs.dll/article

My prayers are with the families during this difficult time.

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The American Trucking Association has named David May the American Trucking Associations 2008 National Truck Driver of the Year. The announcement came this weekend at the ATA Safety and Loss Prevention Management Council's Fall Conference in Nashville, Tenn. I should point out that while Mr. May has driven 1.4 million accident free miles, there are many professional defensive drivers that have driven over 3 million accident free miles. When true truck driving professionals are behind the wheel, accidents simply don't happen.

The announcement from ATA went on to say: 

 

May has driven over 1.4 million accident-free miles in his 27 years on the road. He competed for the national title, considered the highest honor a professional truck driver can receive, against professionals nominated from the 50 state trucking associations.

 

“David May embodies the professional who delivers America’s goods safely and efficiently everyday,” said ATA President and CEO Bill Graves. “In addition, he goes above and beyond, working to educate the public about the necessity of the trucking industry and the importance of safety. We are proud to have David represent us on the road.”

 

Among May’s many accomplishments, he was selected as an America’s Road Team Captain in 2005, where he was asked to share his impressive driving experience with the public and his colleagues to improve highway safety. As an extension of this role, he has talked to groups as diverse as school children and legislators. In 2007, May was requested to serve as the driver representative on the CDL Advisory Committee in Washington, D.C. to help shape the FMCSA’s policy for commercial driver requirements. He was invited to the 2007 National Conference of State Legislatures Legislative Summit to share his first-hand knowledge as a professional truck driver with state representatives. Additionally, May spends a few days each month talking to the motoring public on how to stay safe around tractor-trailers and what they can do to be better drivers on our nation’s highways.

 

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Frieghtliner has announced they will be using the Meritor WABCO OnGuard collision warning system. The system is a forward-looking, mono-pulse radar-based adaptive cruise control system with active braking. Active braking improves vehicle safety by automatically using the vehicle brakes to alert the driver and decelerate the vehicle when the truck gets too close to the vehicle in front of it. The system is officially called the OnGuard Collision Safety System. OnGuard provides visual, as well as audible, warnings to the driver in addition to braking the truck.

For more information see: www.meritorwabco.com/onguard.asp

Hear the president of Meritor WABCO at: rollaudio.libsyn.com/index.php

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As diesel fuel prices continue to rise, trucking companies are seeking dangerous alternatives in an effort to cut costs. In addition to delaying maintenance and using shortcuts which impact safety, the trucking industry has proposed to increase the size of trucks.

Michael Smid, the president of YRC North American Transportation and Tom Carpenter, the director of transportation for International Paper, have suggested increasing the size and weight of tractor trailers from 80,000 pounds to 97,000 pounds. According to Smid and Carpenter, an increase in the size of tractor trailer used would decrease the amount of trips taken by tractor trailers, and therefore, decrease the number of miles driven by a tractor trailer. In his article, Industry Urges Bigger Trucks, But Key Lawmaker has Doubts, Sean McNally writes, “Reducing vehicle miles traveled, Carpenter said, would mean fewer accidents.”

Currently, every sixteen minutes of every day, another person in the United States will be injured or killed in a tractor trailer related accident, resulting in over 5,000 deaths, and over 140,000 injuries each year. While a decrease in the amount of trucks on the road, and the number of miles traveled by tractor trailer drivers on the road is needed, an increase in the size, mass, and weight of the trucks is not a solution to this growing problem. Gerald Donaldson, senior research director for the Advocates for Highway and Auto Safety said, “More lives would be lost in large truck crashes, more highways would be lost in large truck crashes, more highways would be damaged and more bridges would be placed at an increased risk for catastrophic failure.”
Along with numerous advocacy groups, the Association for American Railroads and the American Short Line and Regional Railroad Association also oppose increasing truck sizes, as the risks clearly far outweigh the rewards.

My thanks to Jacquie Bretell for her assistance with this entry.

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The National Transportation Safety Board has been investigating the March 2007 Atlanta bus crash that killed five students from Bluffton University in Ohio. Yesterday they released the report and found that one of the key factors in the deaths was the lack of seatbetls aboard the bus.

I have litigated this issue before, as have other lawyers. The busing industry needs to wake up and install seatbelts so that lives are saved in rollover crashes. It is unbelievable that citizens are still dying and national action has not been taken on this issue.

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Onboard computing technology that tracks operational inefficiencies, such as bad driving habits, that increase overall fuel consumption is now becoming common. Along with reducing fuel consumption these onboard systems are also being used to evaluate driver performance. By tracking driver performance trucking companies will be alerted when their drivers are using unsafe driving methods, such as driving at excessive speeds, or slamming on their breaks.

This same technology will also help companies either retrain its drivers or fire those drivers that refuse to be trained. For those companies that refuse to spend the money to train their drivers, or to fire them, a skilled trucking lawyer will be able to show to a jury the indifference of the trucking company.

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For years, the Commercial Vehicle Safety Alliance has been reporting that fewer violations have been found during annual road checks. This year 23.9% of all inspected trucks were found to have violations. Almost one quarter of all trucks on the road were OUT OF SERVICE! What is more the CVSA failed to extrapolate the number of out of service violations found during the one day annual "Roadcheck"  to all the trucks on the road. The Commercial Vehicle Safety Alliance also fails to point out that the annual roadcheck is announced and well publicized well in advance. In fact the annual road check, because it is so widely announced in trucking publications, hugely UNDERESTIMATES the safety violations common in the commercial vehicle industry.  So what does this mean to you?

In her article, CVSA Finds Fewer Violations During Annual Roadcheck, Amy McMahon describes “…23.9% of the 52,345 vehicles that underwent inspections during Roadcheck last month” being found in violation of the standards set forth for tractor trailers. McMahon goes on to write, “In the highest-ever total number of inspections, brake defects continued to be the most common violation, CVSA said.” The test, used by CVSA, is comprehensive, requiring an inspection of 37 different areas, including different components of the vehicle as well as the logbook and license of the driver.

While brake defects were the highest source of violation, nearly 1%, or 523, of those violations were due to drivers directly disregarding the drug and alcohol safety regulations. With over 9.25 million trucks and buses registered in the United States in 2005, this small 1% soon equates to over 92,500 drivers being found under the influence of drugs or alcohol while operating their Commercial Motor Vehicle.  See: www.fmcsa.dot.gov/facts-research/facts-figures/analysis-statistics/cmvfacts.htm One percent of the registered trucks and buses equals over 92,500 drivers under the influence of drugs and Alcohol on the road every day and 2,210,750 drivers and trucks out of service daily due to safety violations.

Previously, when a driver failed a drug or alcohol test, the trucking company was not required to report the failure to the licensing state. This changed on June 13, 2008, when the Department of Transportation issued an emergency rule which allowed the trucking firms and the testing companies to release this information to the state. However, even with this emergency ruling being passed, the rule set only applies to seven states that currently require the reports. These states do not include Tennessee or Georgia, and the only state in the Southeast that is included is North Carolina.

Stephen Campbell, CVSA’s executive director, is quoted as saying, “It is clear that the safety message is being heard and the increased enforcement presence is making a difference.”
While Campbell may find that a 23.9% violation rate to be a long-awaited sign of improvement, others may find the idea of one in four tractor trailers on the road in violation of safety standards alarming, even more so since the annual roadcheck is announced in advance. 

As if these facts are not scary enough, more and more Commercial Motor Vehicle drivers are having seizures, heart attacks, and other unconscious spells behind the wheel, eventually leading to deadly crashes on interstates and highways. A recent Wall Street Journal article states, “Hundreds of thousands of drivers carry commercial licenses even though they also qualify for full federal disability statements.”

Despite recommendations set forth by numerous U.S. safety regulators since 2001, the Federal Motor Carrier Safety Administration has failed to meet any of these recommendations, continuing to let drivers do things such as specifically choose doctors who avoid their medical conditions, commonly known as “doctor shopping”.

Trucking companies that routinely put these dangerous trucks and drivers on the road, killing innocents, need to be punished to the extent the law allows.

My thanks to Jacquie Bretell for her valuable help in researching this entry.

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Alabama should be commended for requiring seat belts on some school buses. The state has implemented a three year study to determine if children are in fact safer with seat belts on a Bus. Of course the only way the state will be able to figure this out is by having a rollover accident of a bus without seat belts (and seeing how many children die) v. a rollover of a school bus with seat belts (and seeing how many children live). Let's just say I would want my three children to be in the test group with seat belts.

Only six states have laws requiring seat belts on school buses but there are currently no national guidelines. "Transportation Secretary Mary Peters issued a proposal last November that would expand the use of shoulder belts  but stopped short of ordering that all new buses be equipped with seat belts." Alabama Students Buckle Up on the Bus, Chattanooga Times Free Press, Section B5, Col. 1, (8/12/08)

I generally believe that states should have the power to decide issues and the more decentralized the role of government the better off we all are. This is not one of those times. The Federal Government should act to protect our children and require Seat belts. This should include retrofitting existing buses with lap belts.

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In Sherman Texas a bus crash killed 15 people and injured many others. It is clear that seat belts were not available. Seat belts have VERY little cost and can easily be installed on a bus, but buses continue to be ordered without seat belts. In a rollover, such as the case in Texas, seat belts save lives by keeping the passengers inside the bus. Once a bus turns on its side or rolls over, the chances of passenger death and serious bodily harm increase dramatically. How do I know you ask?

My firm successfully litigated this very issue almost ten years ago. We said in part of our complaint:

COUNT IV - FAILURE TO INSTALL SEAT BELTS
26. Plaintiff hereby incorporates by reference Paragraphs 1 - 25 as though set forth verbatim herein.
27. Defendant _______ Lines, Inc. had a duty to its traveling passengers to provide
a safe and comfortable transport to their destination, including your Plaintiff’s decedent, and as such, Defendant _______ breached that duty by not providing seat belts or other restraining devices to the passengers to ensure their safety in case of an accident or a roll over.
28. As a direct result of Defendant _________'s failure to provide seat belts or other
restraining devices to Ms. _____, Ms. _____ was thrown about the bus and ultimately ejected from the bus during the crash at issue in this lawsuit, which resulted in her death.
29. Plaintiffs allege that Defendant _______’s failure to provide seat belts or other restraining devices was an intentional act of Defendant ________ for the purpose of enhancing and preserving corporate profits at the expense of passenger safety.

There were many other violations of federal regulations by the operator of the bus company and the driver in this case. Given the disclosed violations it was not an issue of whether there was going to be a crash, but only an issue of when. Had there been seat belts, the consequences of the crash would not have been as severe.

People must insist that busing companies and manufacturers install seat belts on buses. If they have seat belts installed on an airplane, don't you think they would be needed as much, or more, on a bus? Can anyone think of a good reason why there should not be seat belts on a bus?

The busing industry states seat belts are not necessary because buses rarely roll over. They ignore the consequences of what happens in a rollover as "statistically insignificant." I doubt the busing industry will be willing to tell the families of those killed and injured in this most recent in a string of rollovers that their loved ones are statistically insignificant, or that you are statistically insignificant, but that is exactly what the continued failure to install seat belts by the busing industry means.

You can see an article and video of the bus, and the aftermath of the wreck, as well as hear some of the other violations of the FMCSR, at: www.reuters.com/article/topNews/idUSN0819399020080808

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According to the Associated Press a tractor trailer was driven through blinding fog and smoke on a coastal highway in North Carolina, near Marine Corps Base Camp Lejeune, and struck and killed  Deputy Steven Boehm and a Firefighter Gene Thomas early Saturday, killing them. The deaths were tragic and, worse, easily preventable.

The Federal Motor Carrier Regulations, specifically 392.14 states that "extreme caution in the operation of commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by ....fog....or smoke, adversely effect visibility or traction. Speed shall be reduced if such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued..."  Clearly the driver did not pull over when he should have and drove blindly into the fog and smoke. The driver had no idea what was before the tractor trailer as he traveled down the road and was driving faster than his ability to see a person, recognize that someone was in the road, and then stop. The only other alternative is that the driver did this intentionally. Can anyone else think of another explanation?

It is tragedies like these, where a delivery schedule and a few dollars are given a higher priority than life, that truly make me angry. I am sure the driver and his company are "sorry." I am also sure that insurance adjusters are, as I write this, talking to the families of these men, telling them that it was a "terrible accident" and they will "do the right thing" by the family. In my opinion unless they explain that the FMCSR's were violated for profit, and that they either didn't train the driver because they were too cheap to have a safety program, or had such a culture that the driver felt he had to keep driving to deliver the load even though he couldn't see, justice won't be done. They should also, to be fair, tell the families that while they are grieving, and making funeral arrangements, the tractor trailer insurance company has hired investigators, photographers, and others to protect the insurance company, not the families. This insurance investigation team, called a rapid response team in the industry, starts to work as soon as the collision is reported. Their job is  to make sure the fault of the trucking company is minimized in every possible way. I think not telling the family all of this is what an adjuster means when he says the insurance company will "do the right thing." They mean do the right thing by the insurance company. They sure are not out there protecting the family.

If anyone knows these families and wants to give them my name I will be happy, free of charge and with no obligation, to tell them exactly what needs to happen to protect their rights and find out why this tragedy really happened and what is being hidden from them. If these families don't get in touch with a lawyer with trucking experience they may get some money, but they will never get justice.

This is not how I had planned to write my Father's Day blog. Tonight I will pray for the families and ask that you do so as well.

 The Law Offices of Morgan Adams represents plaintiffs in wrongful death and catastrophic injury cases arising from motor carrier accidents across Tennessee, Georgia, and throughout the country.  Morgan Adams is an Officer of the Interstate Trucking Litigation Group, American Association for Justice and one of only two lawyers in the country honored with the Life Member Award by the Association of Interstate Trucking Lawyers of America. He has served as chairman of the Tennessee Association of Justice’s Trucking Litigation Seminar since 2004. Morgan Adams’ firm focuses on cases arising from truck wrecks and accidents (tractor trailer accidents, truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks, rollovers, cement mixers, tanker truck wrecks, fires and explosions involving trucks, hazardous chemical and materials truck and tanker wrecks.)

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Diesel fuel prices have soared, reaching an all time high recently according to the Department of Energy. What impact will this have on trucking companies? Quite a lot actually.

As prices rise smaller shippers, who cant pass on fuel costs in "fuel surcharges" like the bigger companies, start looking at ways to save money. The first to go is generally safety related training and that is followed by deferring maintenance as long as possible. Parts and tires that would usually be replaced are given a "few more runs" before they are replaced. Frequently this results in the part breaking, having been used past its breaking point. When this happens, and safety is ignored, accidents happen.

Your lawyer should immediately focus on maintenance issues when you have him involved in a case. A collision could well have been prevented if a trucking companies proper maintenance cycle had been followed. Let me add many of my clients are careful truck drivers who have been harmed by drivers who don't care, or are so poorly trained, that they fail to recognize the danger they are in on the road.

Drivers need to pay extra attention to pre and post trip inspections (DVIRs) during these times as some trucking companies are really placing their own drivers, in addition to the motoring public, at great risk.

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New Jersey has passed a law that makes it illegal, beginning March 1, 2008, to  talk on a hand-held cell phone while driving or to text message while driving. My truck driving friends tell me this is long overdue as they frequently see passenger car drivers oblivious to the danger they create when they are talking on the phone.

Washington was the first state to ban texting in a car back in 2007. Connecticut and New York also have bans on the use of cell phones, New York is apparently allowing the use of hands free devices.  The New York hands free approach was followed by California and D.C. Some states only limit the use of cell phones by school bus drivers, Arkansas and Arizona for example.

Expect the ban on cell phone use while driving to spread. Studies equate to driving while on a cell phone to driving while drunk. If you wouldn't drink and drive, don't call and drive. The studies started in 1997 and found someone talking on a cell phone is four (4) times as likely to cause accidents when engaged in cell phone conversation than when not engaged in cell phone conversation. The landmark epidemiological study is Redelmeier and Tibshirani (1997) “Association Between Cellular-Telephone Calls and Motor Vehicle Collisions.” New England Journal of Medicine, 336, 453. The study examined the telephone records of 699 auto drivers who had caused motor vehicle accidents and found that 24 percent were involved in cell phone conversations at the time of the accidents. The established four fold increased incidence of accidents in association with cell phone use is the same incidence associated with DUI drunk driving.

 

 

 

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Staff writer Ben Benton of the Chattanooga Times Free Press reported Thursday, April 12, 2008, on the statistics from the Tennessee Industry Road Block at Monteagle, Tennessee. The Roadblock was run by the Tennessee Highway Patrol's Commercial Vehicle Division. The results?

1. 2310 Trucks went through the inspection site in the time the roadblock was set up.
2. 41 trucks were inspected (my calculation shows that is 1.8 percent of the trucks)
3. 12 trucks were removed from the road (apparently for mechanical/equipment issues)
4. 3 drivers were removed from the road for violations (typically hours of service violations but the article didn't say)

Thus out of 41 trucks inspected 15 were on the road in violation of regulations ranging from being overweight (which means the truck can't stop as fast as a properly loaded truck and other problems associated with exceeding the design capacity of the truck) to an airline problem which could eliminate braking capacity for a tractor trailer (truck brakes are typically air brakes). This is a 36.5% failure rate of inspected trucks.

What does a 36.5% failure rate mean? The article states "more than 9 million trucks" pass through Tennessee. Given that number, and a 36.5% failure rate, that means 3,285,000 trucks IN TENNESSEE ALONE shouldn't be on the road. Perhaps what is worse a trucking company official, who was also present with Mr. Benton and quoted for the article, stated "Everything the Troopers do on inspections is what the driver should do every morning before he leaves." This means the companies either fail to train the drivers in how to do a proper FMCSR pretrip inspection or the company has fostered a safety attitude that allows the driver to believe he can get away with a poor inspection.

The implications for Tennessee, and the rest of the country, are serious. Trucking companies must crack down on safety issues within their fleets before more tragedies occur. It is far cheaper to conduct a proper inspection than it is to deal with litigation after a collision caused by a problem that should have been corrected before the truck left the terminal.

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I just returned from a presentation by DriveCam www.drivecam.com that could really help trucking companies reduce claims AND eliminate risky drivers from their fleet. DriveCam works much like an event data recorder discussed in prior blogs. Essentially it is a camera mounted in the cab of the truck that will retain several seconds of video of both the driver and what is in front of the truck before and after an emergency event like hard braking, swerving, collision, etc... The information is automatically transmitted, wirelessly, to DriveCam headquarters for a safety analysis and then on to the trucking or bus company. Companies can then look at the data, EVEN IF THERE IS NOT A WRECK, to see what if any driver errors there were in creating the emergency situation. Was the driver following too close? Did a car swerve in front of them and cut them off? DriveCam allows company officials to review and to recognize safe drivers for preventing accidents and penalize dangerous drivers for causing accidents.

If DriveCam data exists it will immediately prove, or disprove, the cause of a collision. Juries will no longer have a he said, she said, situation in court. Trucking companies will either have a defense or will be able to admit liability, and accept responsibility,  for what happened without the burden and expense of a trial. It would appear that everyone would benefit.

I realize that some drivers may feel big brother has entered the cab. I would love to hear from drivers who were saved from punishment or a lawsuit because of DriveCam proof as well as from any driver who feels they were punished unfairly by the DriveCam system.

 

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A March 7, 2008 collision in Chattanooga reminds me again of how important it is to hire a lawyer early in collisions involving tractor trailers. In this wreck, according to the Chattanooga Times Free Press article on page B3, "The driver of one of the semi (sic) lost control of his truck... The truck jackknifed and hit another 18-wheeler, and three cars were caught between the trucks..."

The speed of the semi can be determined by downloading the black box computer which records sudden braking events. This data can be deleted if not downloaded promptly by a proper expert.

Driver logs, which might show the driver fell asleep at the wheel after driving more hours than the law allows, may be destroyed after six months.

The roadway marks that will show driver actions, as well as the sequence of events, start to fade and you may have other marks from other vehicles placed on the roadway.

So what would cause a driver of an 18 wheeler to loose control and jackknife?

Wikipedia states: 

Jackknifing means the accidental folding of an articulated vehicle (i.e. one towing a trailer) such that it resembles the acute angle of a folding pocket knife. If a vehicle towing a trailer skids, the trailer can push it from behind until it spins round and faces backwards. This may be caused by equipment failure, improper braking, or adverse road conditions such as an icy road surface.

By far the most common skid is caused when the rear wheels lose traction through excessive braking or acceleration. Skids caused by acceleration can usually be stopped by the driver taking his foot off the accelerator. If the rear drive wheels lock due to excessive braking they will have less traction than freely rolling wheels. The rear wheels then move sideways in an attempt to "catch up" with the front wheels, allowing the trailer to push the towing vehicle sideways, causing the jackknife.

 

 

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Total revenue for truck transportation and warehousing reached $312 Billion in 2006 according to the US Census Bureau’s report December 4, 2007. In 2005 revenue was $293 Billion. This report did not include private trucking which, according to the American Trucking Association, if included, would place 2006 revenues at $645 Billion.

From time to time I am asked why I think the trucking industry should pay for greater safety features on trucks. The answer is because trucks are inherently dangerous, they kill people, and trucking companies can afford to make them safer.

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The U.S. Court of Appeals, for the District of Columbia Circuit, on Wednesday, January 23rd, denied Public Citizen’s motion to vacate the interim regulations adopted by the Federal Motor Carrier Safety Administration (FMCSA), keeping in place the rule increasing the time drivers are allowed behind the wheel from 10 hours to 11. The 10% increase in driver's hours was previously struck down by this very court.

The governments retention of the 11 provision is a major blow for safety in this country given the increased use of trucks and the decline in the number of available drivers. According to the American Trucking Associations own studies the trucking industry was 20,000 drivers short in 2004 and it estimated the industry would be short 111,000 drivers by 2014. This means less qualified drivers will be driving longer hours. Please see my earlier posts on the HOS issue.

YOU SHOULD CALL OR WRITE YOUR CONGRESSMAN AND TELL THEM 11 HOURS IS TOO MANY TO BE BEHIND A WHEEL OF AN 80,000 pound tractor trailer.

A copy of the one page order allowing the FMCSA 11 hour rule to remain in place may be found at:

www.truckinjurylawyerblog.com/Order On HOS Rejection Petition to Enforce Jan 23, 2008.pdf

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Because my firm specializes in litigating collisions involving tractor trailers, frequently I get asked if I believe all truck drivers are dangerous. The answer is a resounding NO.

A fine example of the best in the trucking industry is the Small Trucking Association’s Team 2007. The members of Team 2007 are perfect examples of safe professional tractor trailer drivers. These ten (10) drivers have a combined 269 years of driving experience and with more than 30 MILLION accident free miles driven. My hat is off to the 2007 team consisting of:

1.       George Drewicke

2.       Donnie Sanders

3.       Harry Bolm

4.       Doyle Zorn

5.       Timothy Carroll

6.       Ken Bohman

7.       Jim Ryburn

8.       Richard Swonger

9.       Richard Maschino and

10.    Stan Scott

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Training remains the number one way to prevent truck rollovers according to government and industry officials. A 2007 report by Battelle Memorial Institute for the FMCSA found “75% [of rollovers] are attributed to driver error.” The primary cause was running off the road, caused by driver fatigue or inattentiveness.”

Trucking companies could reduce rollovers by the following: Lowering a trailer 3” would reduce rollovers approximately 12% annually. A wider trailer track, from 96” to 102”, would reduce rollover’s 17%. The study found the average cost of a rollover was $600,000 and that for every dollar spent on stability control devices the company would save $2.20. According to Steve Niswander, vice president of safety and policy regulatory relations for Groendyke Transport, driver training is still the most effective way to present crashes. (See Transportation Topics, December 10, 2007, p11)

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15 STEPS YOU CAN TAKE TO REDUCE YOUR

RISK OF A HOSPITAL INFECTION

The following article is reprinted in its entirity because the subject is so important. While many victims of trucking accidents don't have a choice as to when and how thier first surgeries occur, many require a subsequent, or many subsequent surgeries to attempt to repair the damgae that has been done to thier bodies. A dangerous situation can easily turn deadly with a hospital acquired infection like MRSA amongst others. PLEASE READ THIS IF YOU HAVE A LOVED ONE FACING SURGERY! For a link to the article see: www.hospitalinfection.org/protectyourself.shtml

Most of us will have to go into the hospital some day.  Here are specific steps you can follow to protect yourself from deadly hospital infections:

1. Ask that hospital staff clean their hands before treating you, and ask visitors to clean their hands too. This is the single most important way to protect yourself in the hospital. If you're worried about being too aggressive, just remember your life could be at stake. All caregivers should clean their hands before treating you. Alcohol-based hand cleaners are more effective at removing most bacteria than soap and water. Do not hesitate to say: "Excuse me, but there's an alcohol dispenser right there. Would you mind using that before you touch me, so I can see it?" Don't be falsely assured by gloves. If caregivers have pulled on gloves without cleaning their hands first, the gloves are already contaminated before they touch you. ¹

2. Before your doctor uses a stethoscope, ask that the diaphragm (the flat surface) be wiped with alcohol. Stethoscopes are often contaminated with Staphylococcus aureus and other dangerous bacteria, because caregivers seldom take the time to clean them in between patient use. ²

3. If you need a "central line" catheter, ask your doctor about the benefits of one that is antibiotic-impregnated or silver-chlorhexidine coated to reduce infections. ³

4. If you need surgery, choose a surgeon with a low infection rate. Surgeons know their rate of infection for various procedures. Don’t be afraid to ask for it.   

5. Beginning three to five days before surgery, shower or bathe daily with chlorhexidine soap. Various brands can be bought without a prescription. It will help remove any dangerous bacteria you may be carrying on your own skin. ⁴

6. Ask your surgeon to have you tested for methicillin-resistant Staphylococcus aureus (MRSA) at least one week before you come into the hospital. The test is simple, usually just a nasal swab. If you have it, extra precautions can be taken to protect you from infection. ⁶

7. Stop smoking well in advance of your surgery. Patients who smoke are three times as likely to develop a surgical site infection as nonsmokers, and have significantly slower recoveries and longer hospital stays.⁷

8. On the day of your operation, remind your doctor that you may need an antibiotic one hour before the first incision. For many types of surgery, a pre-surgical antibiotic is the standard of care, but it is often overlooked by busy hospital staff. ⁸

9. Ask your doctor about keeping you warm during surgery. Operating rooms are often kept cold, but for many types of surgery, patients who are kept warm resist infection better. ⁹ This can be done with special blankets, hats and booties, and warmed IV liquids.

10. Do not shave the surgical site. Razors can create small nicks in the skin, through which bacteria can enter. If hair must be removed before surgery, ask that clippers be used instead of a razor. ¹⁰ 

11. Avoid touching your hands to your mouth, and do not set food or utensils on furniture or bed sheets. Germs such as "C. Diff" can live for many days on surfaces and can cause infections if they get into your mouth.

12. Ask your doctor about monitoring your glucose (sugar) levels continuously during and after surgery, especially if you are having cardiac surgery. The stress of surgery often makes glucose levels spike erratically. When blood glucose levels are tightly controlled, heart patients resist infection better. Continue monitoring even when you are discharged from the hospital, because you are not fully healed yet. ¹²

13. Avoid a urinary tract catheter if possible. It is a common cause of infection. The tube allows urine to flow from your bladder out of your body.  Sometimes catheters are used when busy hospital staff don't have time to walk patients to the bathroom. ¹³ If you have a catheter, ask your caregiver to remove it as soon as possible.

14. If you must have an IV, make sure that it’s inserted and removed under clean conditions and changed every 3 to 4 days. Your skin should be cleaned at the site of insertion, and the person treating you should be wearing clean gloves. Alert hospital staff immediately if any redness appears.

15. If you are planning to have your baby by Cesarean section, follow the steps listed above as if you were having any other type of surgery. ¹⁴  

1] Studies show that, nearly three quarters of patients' rooms are contaminated with MRSA and 69% with VRE. In one study, 42% of gloves worn by hospital personnel who had no direct patient contact but who touched contaminated surfaces became contaminated. Boyce JM et al., "Environmental contamination due to methicillin-resistant Staphylococcus aureus: possible infection control implications," Infection Control and Hospital Epidemiology 18.9 (1997): 622-627. A Concensus Statement by a multidisciplinary group of experts asked by the American Medical Association to provide guidelines for infection control cautions that: "In some cases caregivers actually go from patient to patient without changing their gloves, apparently confusing self-protection" with patient protection. Goldmann DA et al., "Strategies to Prevent and Control the Emergence and Spread of Antimicrobial- Resistant Microorganism in Hospitals," JAMA 275.3 (1996): 234-240.

[2] Routine disinfection of stethoscopes between patients is recommended by the American Medical Association. Salgado CD, Farr BM, "MRSA and VRE: Preventing Patient-to-Patient Spread," Infections in Medicine 20 (2003):194-200; Marinella MA et al., "The stethoscope: a potential source of nosocomial infection?" Archives of Internal Medicine,157.7 (1997): 786-90; Zachary KC et al., "Contamination of gowns, gloves, and stethoscopes with vancomycin-resistant Enterococci," Infection Control and Hospital Epidemiology 22.9 (2001): 560-564; Noskin GA et al., "Recovery of vancomycin-resistant Enterococci on fingertips and environmental surfaces," Infection Control and Hospital Epidemiology 17.12 (1996): 770-772.

[3] The Agency for Healthcare Research and Quality recommends use of antibiotic catheters as one of its eleven patient safety practices. Making Healthcare Safer: A Critical Analysis of Patient Safety Practices. AHRQ Publication 01-E058, 2001. Also see: Darouiche RO et al., "A comparison of two antimicrobial-impregnated central venous catheters," New England Journal of Medicine 340.1 (1999): 1-8; Raad I et al., "Central venous catheters coated with Minocycline and Rifampin for the prevention of catheter-related colonization and bloodstream infections," Annals of Internal Medicine 127.4 (1997): 267-274.

[4] The following four studies support this suggestion : (1) Vernon MO et al., "Chlorhexidine gluconate to cleanse patients in a medical intensive care unit," Archives of Internal Medicine 166 (2006): 306-312. (2) Hayek LJ et al., "Preoperative whole body disinfection - a controlled clinical study," Journal of Hospital Infection 11, Suppl. B (1988): 15-19 This study showed that two chlorhexidine showers reduced total infection rate by 30% and Staph aureus infections by 50%. (3) Byrne DJ et al., "Rationalizing whole body disinfection," Journal of Hospital Infection 15.2 (1990): 183-187. This study shows that a single shower does not maximize skin disinfection. The authors conclude that three showers should be recommended. (4) Daryl S. Paulson, "Efficacy Evaluation of a 4% Chlorhexidine Gluconate as a Full-Body Shower Wash," published by the Association for Practitioners in Infection Control (1993). This study found that showering for five days with chlorhexidine yielded maximum results for reducing bacteria on the skin, and keeping it low for 24 hours or more. "A 1 or 2 day presurgical application period is simply too short to establish the necessary levels of residual antimicrobial properties to be of value in reducing post-surgical infection rates."

[6] Worcester S, "Hospital system takes on MRSA," Internal Medicine News 38.19 (2005): 1-2.

[7] Kurz A et al., "Perioperative Normothermia to Reduce the Incidence of Surgical-Wound Infection and Shorten Hospitalization," New England Journal of Medicine 334.19 (1996): 1209-1215.

[8] The Institute for Healthcare Improvement guidelines for improving infection prevention state that: "Administration of prophylactic antibiotics beginning 0 to 1 hour prior to surgical incision decreases the risk of surgical infection. http://www.ini.org/IHI/Topics/PatientSafety/
SurgicalSiteInfections/ImprovementStories (accessed 10-14-02). See also: Burke JP, "Maximizing appropriate antibiotic prophylaxis for surgical patients: an update from LDS Hospital, Salt Lake City," Clinical Infectious Diseases 33, Suppl. 2 (2001): S78-83.

[9] Ibid., the Institute for Healthcare Improvement Guidelines for improving infection state that "surgical patients with core temperatures greater than 36 degrees C./ 98.6 degrees F are less likely to get an infection."

[10] Ibid., the Institute for Healthcare Improvement states that "clipping instead of shaving results in decreased infection rates," and recommends that patients be told "not to shave the surgical site for 72 hours prior to surgery."

[12] Pittsburgh Regional Healthcare Initiative, "PHRI Executive Summary," (June, 2005).

[13] Urinary tract infections are the most common hospital-acquired infections. Limiting the use and duration of urinary tract catheters reduces risk of infection. See: Puri J et al., "Catheter Associated Urinary Tract Infections in Neurology and Neurosurgical Units," Journal of Infection 44.3 (2002): 171-175; Stephan F et al., "Reduction of Urinary tract infection and antibiotic use after surgery: a controlled, prospective, before-after intervention study," Clinical Infectious Diseases 24 (2006): 1544-1551.

[14] Killian CA et al., "Risk Factors for Surgical-Site Infections Following Cesarean Section," Infection Control and Hospital Epidemiology 22.10 (2001): 613-7.

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It is not surprising that the FMCSA was taken back to court as they proposed keeping the 11 hour rule which has been struck down by the courts. This topic has been discussed in my prior blogs extensively. The proposed rule is simply dangerous. The safety studies cited for safer highways fail to take into account introduction of technology that decreases collisions. The selective nature of the studies chosen, and willful turning of a blind eye on the part of officials who expect to be working for the trucking industry at some point, is something I thought I would only see in third world countries.

Sen. Frank Lautenberg (D-N.J.) said during a Dec. 19 hearing. “Despite two unanimous federal court decisions . . . the FMCSA is going forward as if the court said nothing at all.” Lautenberg said he believed “the administration’s proposed rule is a sham, and so do our courts. They’ve said so twice.” He added that since FMCSA has been “giving us reason to question their priorities and their commitment to safety, it is time for Congress to get involved.”

I agree. Please write your Representatives and let them know that this proposed rule is dangerous and they should actively oppose lengthening the hours truck drivers are on the road. Put it to them simply, ask "How is your driving after 11 straight hours on the road? Is it better or worse than when you started?" I think we all know the answer to those questions. Let us hope congress and the courts do as well because it is clear that the FMCSA won't admit the answer.

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The Federal Motor Carrier Safety Administration (FMCSA) has issued an Interim Final Rule (IFR) putting into place the same 11 Hours of Service Regulation (HOS) that was struck down, only a few months ago, by the courts as being unsafe. The press announcement from the FMCSA on this issue can be found  at:   www.fmcsa.dot.gov/about/news/news-releases/2007/121107.htm

Predictably, the American Trucking Association (ATA) welcomed the IFR on the drivers’ Hours of Service. From a company owner's standpoint  the IFR makes since because anything that allows a driver to spend more time on the road puts more dollars in their pockets. From the publics standpoint, having tired truckers on the road only leads to tragedies. My firm has been honored to represent many of these families, whether victims or heirs, and tired truckers are dangerous.

One of the major flaws with the FMCSA and the ATA's position (that the 11 hour HOS regulation is safer than the 10 hour HOS) is that they fail to take into account the other safety equipment that is becoming prevalent in the trucking industry. Please see my prior posts for examples.

Is it any surprise that the FMCSA officials leave government service to join ATA companies and ATA companies provide officials to the FMCSA and the government? Clearly the fox is guarding the hen house in the FMCSA.

 

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This holiday season drive safe and defensively. According the the US government there were 38,588 fatal collision in the US last year. Friday, Saturday and Sunday were the days most likely to be fatal with Saturday leading the pack. There was 1.29 deaths for every 100 million vehicle miles driven.

The federal government breaks the statistics down by state, month, day, and time. If you have interest go to www-fars.nhtsa.dot.gov/Crashes/CrashesTime.aspx and you can see and sort the numbers.

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A Washington State jury awarded $15.5M last week in a case where U-HAUL failed to properly instruct one of its rental drivers in how to properly load one of its rental trucks. The load was improperly secured causing a large piece of furniture to fly out and strike a woman driving a car behind the truck. The furniture went through her windshield causing catastrophic injuries.  

The woman was blinded in the auto accident and continues to undergo surgical procedures to reconstruct her face, as well as suffering brain injuries.

U-Haul International, Inc was found to be 67% at-fault  and the renter of the U-Haul trailer was found to be 33% to blame.  The jury found that the lack of instruction and clear warning to customers on how to properly secure materials they were transporting made U-Haul more at fault for the accident then the driver's failure to ensure the stability of the furniture he was transporting. 

Federal law requires truck operators to secure their loads but these laws are not always enforced.
The "failure to secure the load" cases are far less obvious than a rear end tractor trailer case. It is the truck driver's responsibility and the loader's responsibility to secure the load as prescribed by the U.S. Department of Transportation and Federal Motor Carrier Safety Administration.

Our lawyers have handled a number of these cases and are familiar with the trucking and loading experts around the country who specialize in making sure vehicles are safely loaded. If we can help in any way, or if you have questions about this type of wreck, please fee free to call or email.

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I have multiple posts on the use of illegal, Over-The-Counter, and legal drug use by drivers and with any luck something will be done about this clear danger. In the past I have been told "we have testing for that" even though it was well known the testing was ineffective. The facts which were apparent to anyone who has experience in tractor trailer litigation was brought to Congress' attention recently. The Government Accountability Office told Congress that the Department of Transportation’s drug and alcohol testing program for truck drivers is unreliable and riddled with problems.

“Our testing clearly shows that the drug user could easily beat the DOT drug test, even if the collection sites followed all of the DOT protocols,” said Gregory Kutz, managing director of forensic audits for the Government Accountability Office. “The test can be beat using counterfeit documents, synthetic urine or adulterants.”

Another GAO official, Katherine Siggerud, told the House Transportation Committee’s highways subcommittee on Nov. 1, “There appears to be a significant lack of compliance [with drug and alcohol rules] among motor carriers, particularly small carriers and self-employed drivers.”

Rep. Peter DeFazio (D-Ore.), chairman of the highways subcommittee, called the Nov. 1 testimony “absolutely devastating,” saying the investigations showed that “in the United States, we have no meaningful program of drug testing for commercial truck drivers. None.”

Rep. James Oberstar (D-Minn.), chairman of the full Transportation and Infrastructure Committee, agreed, saying, “To find that [our drug-testing program] falls so grossly short, as you put it, is shocking.”

GAO looked at the way test protocols were handled and, Kutz said, “with respect to protocols, 22 of the 24 sites that we visited failed at least two of the 16 DOT protocols we tested for.”

Siggerud’s report said, “Products designed to ‘beat’ the test are marketed brazenly on the Internet,” making samples unreliable, even when a carrier has a testing program in place.

She said another problem was that job-hopping after a positive drug test “appears to be quite common.”

Oberstar criticized the practice of marketing and selling masking agents or synthetic samples.

“There’s no other beneficial use for those products — they ought to be banned,” he said. “I hope the outcome of this hearing is legislation to do exactly that.”

Oberstar said the current system of relying on drivers to self-report positive drug tests to employers, and past employers to provide information to prospective ones was not good enough because it allowed drivers to “jump from job to job to job and leave their drug history behind.”

Rick Craig, director of regulatory affairs for the Owner-Operator Independent Drivers Association, said the driver group was “unconvinced of the need for a national clearing-house for positive drug and alcohol test results,” citing privacy and other concerns.

   

See: DOT Drug tests Faulty, GAO Tells House Panel, by Sean McNally in Transportation Topics Nov 12, 2007, Page 1 and 43.

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18 Tractor Trailers were involved in a 100 car pileup in a California fog on November 4, 2007, and the tragedy is the Federal Motor Carrier Safety Regulations require drivers to use "extreme caution" if they have poor visibility. This was an avoidable collision for the truck driver's, and the Innocent's hurt by their recklessness,  if the tractor trailer drivers had only followed the law.

Specifically 49 C.F.R. § 392.14  states a driver must exercise "extreme caution" when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust or smoke, adversely affect visibility or traction. Had the driver's exercised "extreme caution" there is no doubt in my mind that there would have not been 18 tractor trailers involved in this collision and the photographs I am pasting below would not have included a tractor trailer.

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AT THE SCENE OF THE ACCIDENT:

1. The first thing is to make sure everyone is safe, call 911, and to get out of the roadway. You shouldn't move your car, unless the damage and injuries are minor, until the police arrive.
2. Take photographs if possible. Consider the trucks tires, skid marks, the damaged area of the vehicles,
3. Get a copy of any identifying information (names and numbers) on the cab and the trailer. Generally the DOT numbers on the cab and the trailer are different.
4. Get a copy of the license plate.
5. Obtain Driver information (name, state and license number of the driver, and any insurance information.
6. Obtain any witness information (Name, work and home address and phone numbers as well as any cell phone and an emergency contact. Witness' are critical to your case and finding them after a wreck can be very difficult. Don't trust the police to write it down.)
7. Get a copy of the police report number and the names of the police officers at the scene.
8. Measure any skid marks at the scene.
9. DO NOT GIVE A STATEMENT UNTIL YOU CAN GIVE A FULL AND COMPLETE STATEMENT WITH YOUR LAWYER. Insurance company employees have learned to ask questions that help the company and leave out significant facts which would help your case. The tape recorded statement will then be used to show you "made up" this information at a later date. DO give the police the facts of the collision but avoid any speculation.
10. Insurance Companies will have investigators on the scene ASAP. They are trained to be friendly in order to elicit information from victims. They create a false sense of security that "everything Will be taken care of" while they methodically work to eliminate any chance you have of a full recovery for your injuries. They are hired to protect the trucking and insurance companies legal and monetary interests, not yours!

ONCE YOU LEAVE THE SCENE OF THE ACCIDENT:

1. CALL AN EXPERIENCED TRUCKING LAWYER ASAP!
2. Go to the Doctor and get examined.
3. Get a copy of the police report.
4. Get photo's of your car and the truck if at all possible and you have not already done so. Generally it is better if you are not in the photographs and you can get someone else to take the photo's.
5. Understand that due to adrenaline and shock it may take several hours or days before the full impact of a collision is felt by you. If you need to see a doctor GO! Many people have been hurt by waiting, "hoping it gets better" or that they can "tough it out."
6. Obtain a copy of your auto insurance and your health insurance policies.
7. Use your health insurance to pay the bills and use any MedPay benefits you may have through your Auto policy to repay any deductibles or co-pays you might have paid out-of-pocket with your medical providers.

 

 

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The Federal Motor Carrier Safety Administration (FMCSA) adopted more stringent standards for cargo securement last year. These standards help ensure the safety of truck drivers, and everyone else on the highways because if a load shifts the tractor trailer can roll over. Additionally, the load can simply fall off the truck with improper cargo securement so strengthening the rules requiring greater cargo securement makes everyone safer.

Unfortunately on September 28, 2007 the FMCSA weakened the rules in regards to hay bales. Instead of straps every 10' the new regulation requires one strap for a 32' trailer and two if the trailer is between 32' and 48'.

Having moved my fair share of hay bales into the second floor of barns, I can tell you there is nothing funny about a 40-50 pound hay bale bouncing towards you on the highway. I think this is a bad decision and someone will die as a result.

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 Last Thursday, Sept. 6, at 9 PM the U.S. Department of Transportation (DOT) announced it was beginning the pilot program to allow trucks from Mexico to travel throughout the United States. This decision was made even though the U.S. DOT Inspector General’s report identified serious safety deficiencies that still exist.

In late July, the House of Representatives passed the annual spending bill for the DOT, HR 3074. A provision was included that prohibits the DOT from spending any funds to conduct a pilot program allowing trucks from Mexico to travel beyond the border zones into the United States. Senator Dorgan has agreed to offer an identical amendment to the Senate version of the DOT appropriations bill (S.1798). There could be a vote on this amendment as early as 5:00 PM today. Please act now.

You need to contact your Senators and urge them to support the Dorgan amendment to the DOT appropriations bill. The amendment will prohibit the DOT from spending any funds to conduct a pilot program allowing trucks from Mexico to travel beyond the border zones throughout the United States. This is the only way you can stop the program from going forward. If you don’t know who your Senators are or if you need contact information, visit www.senate.gov . There is a place you can enter your zip code to locate your Senators and contact information.

TALKING POINTS:
Safety Problems Still Exist – Border Pilot Program Should Be Stopped
U.S. DOT Letter to Congress Misrepresents DOT Inspector General (OIG) Report
and DOT Compliance with Section 6901 of Pub. L. 110-28 (2007)

FICTION: The DOT letter asserts that legal requirements enacted by Congress have been completed.
FACT: DOT has NOT met all legal requirements for pilot programs.
?Safety organizations have shown repeatedly that the Federal Motor Carrier Safety Administration (FMCSA), the DOT agency responsible for motor carrier safety, has evaded compliance with several key pilot program requirements of 49 U.S.C. § 31315(c) mandated by Section 6901.
?FMCSA continues to ignore and evade federal law mandating compliance with additional legal requirements governing the conduct of pilot programs such as adopting a scientific plan for collecting project data and performing scientifically credible safety analysis.

FICTION: The DOT letter asserts that the states are ready for the pilot program.
FACT: The OIG’s Report documents that many states are NOT ready.
? Five States (NE, NV, MT, RI, UT) and perhaps more (MD did not respond to OIG) are not ready to enforce safety rules for the pilot program.
? Six states (FL, GA, LA, NM, WA and DC) cannot enforce cabotage rules concerning point-to-point deliveries.
? Half the States do not have procedures in place to oversee and enforce requirements in several areas of safety and security.
? Data deficiencies on Mexican truck driver convictions and violations are still not resolved.
? FMCSA has only “promised” to correct bus border crossing problems.
? FMCSA has not adequately ensured that the States understand project guidance, and more training is needed.

FICTION: The DOT letter states that FMCSA is ready for the pilot program.
FACT: The OIG Report states that FMCSA is NOT ready in many key areas.
? FMCSA inspectors do not have critically important safety information on vehicle accident reports, driver violations maintained by Mexican authorities, and whether the pilot program applicant actually has U.S. long-haul insurance.
? FMCSA has admitted that key databases about Mexican motor carriers, vehicles and drivers are still under development.
?There is still no adequate method to ensure that Mexican drivers comply with U.S. drug and alcohol testing laws and regulations for specimen collection, only a plan to “cooperate” with Mexican authorities.

FICTION: The DOT letter claims to address all of the OIG Report concerns.
FACT: The OIG Report states that major issues of OIG concern were NOT resolved.
? FMCSA has no means of demonstrating the safety impact of the pilot project.
? FMCSA has not demonstrated that the project participants are a representative sample of Mexican motor carriers.

FICTION: The DOT letter states that FMCSA will check “every truck, every time.”
FACT: DOT is NOT ready to keep this promise.
?The OIG Report states that “FMCSA has not developed and implemented complete, coordinated plans for checking trucks and drivers participating in the demonstration project as they cross the border.”

FICTION: Site-specific plans for each border crossing have now been issued.
FACT: These plans were not prepared until after the OIG Report was completed so the OIG did NOT review or audit the site-specific border crossing plans.
?The “Plans” were just created in the last few weeks. One “plan” with Custom and Border Protection officials was forged a few days ago on September 4, 2007.
?The “Plans” lack essential details and are often only a single page.
?The “Plans” are often the result of one-time meetings with state and Custom and Border Protection officials.

FICTION: FMCSA claims that Mexican motor carriers and drivers are not being granted any exemptions from U.S. regulations.
FACT: In fact, safety organizations have demonstrated repeatedly that substantial differences continue to exist between U.S. and Mexican laws and regulations on commercial driver physical fitness and medical qualifications, commercial driver licensure, drug and alcohol testing, hours of service, truck certification of vehicle safety compliance, and enforcement of driver motor carrier laws and regulations.
?For example, FMCSA will not require Mexican truck drivers in the pilot program to take entry-level driver training that is required for all new commercial truck and bus drivers in the U.S. Thus, Mexican drivers are exempt.
?Mexican drivers in the pilot program are also exempt from complying with U.S. physical fitness qualifications. Even though FMCSA admits that Mexican physical fitness regulations are very different from U.S. requirements, FMCSA simply states that it regards the requirements of the two countries as equivalent.

FICTION: The DOT letter claims that the OIG Report says that it is necessary to start the pilot program.
FACT: The OIG Report does NOT declare that the pilot program should be started.
?The OIG Report is neutral on this point and only states that “if the Secretary elects to initiate the project following her report to Congress, we will be required under Section 6901 to monitor and review the demonstration project and submit an interim and final report to the Secretary and the Congress.”


For more information, contact the Truck Safety Coalition who provided the above information, at 703-294-6404.

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A car was on I-75, north of Atlanta, when it was hit by the Tractor Trailer in the rear. The Tractor Trailer then flipped over and ran off the road as shown below.  

Killed in the wreck were Evodia Perez, 51, one of four occupants in an Oldsmobile Cutlass Ciera, and the car driver, also 51, whose name was not released pending authorities notifying her relatives.  The collision happened at 5:45 AM.

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EOBR's (Electric On Board Recorder's) have been the subject of earlier posts and on the whole are a step forward for safety. EOBR's can be very beneficial in ensuring tired truckers are not allowed on the roads in violation of the law. Unfortunately there are ways to "fix" the EOBR's to allow violations of the FMCSR Hours of Service (HOS) regulations. Knowing how to prove an EOBR was "fixed" in order to allow a driver to stay on the road longer than the HOS regulations allows is an important reason to hire an experienced tractor trailer attorney.

This story appears in the Aug. 20th print edition of Transportation Topics:

HILTON HEAD, S.C. — Four months after the public comment period for the proposed electronic onboard recorder rule closed, a Federal Motor Carrier Safety Administration official said those comments were still being reviewed and no final rule was imminent.

At the same time, a trucking official suggested the uncertainty regarding hours-of-service rules for drivers could delay any final EOBR rule.

“No final decision has been made about the outcome of the rulemaking,” Debbie Freund, senior transportation specialist for FMCSA, said here Aug. 14 during a presentation at the 2007 PeopleNet user conference.

“The [notice of proposed rulemaking] is a proposal based on the best information available at the time it was developed,” Freund said.

Announced in January, the rule would mandate EOBRs for the worst violators of its hours-of-service rules and provide incentives in the form of relaxed record keeping requirements for carriers who adopt them voluntarily (1-15, p. 1).

The public comment period closed April 18.

When the rule was published, officials estimated it would take four years between the time a final rule was published and full implementation.

But Dave Potts, director of safety and operations for American Trucking Associations, said here that last month’s decision by a federal appeals-peals court to overturn the HOS rule (7-30, p. 1) could push that potential timetable back.

He said any change, through a new FMCSA rule or other methods, in on-duty time, driving hours, the 34-hour restart or sleeper-berth time could result in the need for new EOBR performance specifications, updates to vendors’ EOBR software programs and additional time to train drivers, management and law enforcement.

Freund declined to discuss the hours-of-service case, other than to say the “agency was still reviewing the court’s decision,” or the case’s potential effect on the EOBR proposal.

She did say, however, that in response to the comments on the EOBR proposal, the agency may conduct additional technology assessments to ensure that data obtained from EOBRs not integrally synchronized with the engine or vehicle are accurate.

She added that other EOBR subjects drawing the agency’s attention, based on comments it received, included data security and integrity, interoperability and manufacturer self-certification.

Still, Freund said the agency believes its proposed rule provides the greatest safety benefit because the small number of carriers required to use EOBRs have a much higher crash rate than all other carriers.

Increasing the level of compliance with HOS rules would decrease the incidence of fatigue-related crashes, she said.

Potts, meanwhile, reiterated that ATA generally supports FMCSA’s proposed EOBR rule but said the federation believes more definitive performance specifications were needed and a pilot program should be undertaken to obtain and analyze “real-world data” before any final rule is implemented.

He also said a larger number of the worst HOS violators — 10% or more — should be required to use EOBRs.

Gerry Krolikowski, chairman of the Commercial Vehicle Safety Alliance’s driver-traffic enforcement committee, gave a similar assessment of the proposed EOBR rule.

He said that, while the law enforcement community is in favor of electronic onboard recorders, CVSA wants to be sure the devices are tamper-resistant and standardized for easy accessibility.

Krolikowski is a lieutenant with the Nebraska State Patrol.

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Transportation Topics Online reported the following today:

The Transportation Department needs tighter controls on Mexican truck and bus drivers with driving convictions and greater ability to inspect vehicles at the border, DOT’s inspector general’s office said Tuesday, Bloomberg reported.

The IG’s office released its assessment of the U.S. readiness to open its border to Mexican trucks, just as DOT prepares to begin a one-year pilot program to give some Mexican trucking companies and drivers open access to U.S. roads, Bloomberg reported.

The improvements “are needed more urgently than ever because Mexican motor carriers may be granted long-haul authority in the near future,”' Rebecca Anne Batts, acting assistant inspector general for surface and maritime programs, said in the report, Bloomberg reported.

On Friday, DOT said it planned to start the pilot program, involving as many as 100 Mexican trucking companies, as soon as Mexico is ready to reciprocate on access to roads.

The House voted overwhelmingly in July to put restrictions on the program, which was announced in February by Transportation Secretary Mary Peters.

The full report may be downloaded bl clicking the following link: www.truckinjurylawyerblog.com/http___www.oig.dot.gov_StreamFile_file=_data_pdfdocs_NAFTA_Annual_8-20-07_FINAL_508_compliant.pdf

See other articles at:

1. www.ooida.com/at_issue/NAFTA/NAFTAcrossborder.html
2. www.wnd.com/news/article.asp

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The day after I posted my blog on the Minnesota bridge collapse on I-35, Chattanooga Times Free Press ran an article on page A8, col 2, that shows the wear and tear on the bridges and highways by the increased truck tonnage. The article was actually written a few days prior to my post and makes it clear that "in just a decade, from 1995 to 2005, the weight load on urban highways increased by half." Bridge loads are increasing at the same time that weather and fatigue weakens the bridges and reduces resistance. Since 1980 the number of tractor trailer miles has more than doubled and risen to 145 billion miles a year. See the full article at: www.newsvine.com/_news/2007/08/10/890168-heavier-trucks-take-toll-on-aging-roads

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Electronic On Board Recorders (EOBR's) have been touted as the best way to eliminate chronic Hours of Service (HOS) violations which lead to fatigue, a major cause of trucking collisions. For example on Aug 9, 2007 the Chattanooga Times reported that in an Atlanta collision which killed 4, the driver state "he had fallen asleep at the wheel."  Anything that would eliminate these tragedies should be applauded, but EOBR's are not a panacea.

In my business I often represent severely injured truckers that have been hung out to dry by their own trucking company. One of my clients recently told me that when he drove a truck with an EOBR, the company gave him the company code which places the EOBR into a "test" mode. While in the test mode the EOBR is offline and doesn't record his hours. He could therefore drive longer hours, in violation of the HOS regulations.

Without the use of an experienced trucking lawyer critical issues like this are likely to be overlooked. A case involving a tractor trailer is not just a big car wreck case and requires significant expertise to handle properly. Make sure any lawyer you hire has that experience.

 

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The Interstate 35W Bridge that collapsed in Minnesota was built in 1967. Since then there has been significant increases in the size, weight and numbers of trucks on our interstate highway system. There is no question that the additional numbers, and the increasing weight, of tractor trailers on our highways causes additional wear and tear on our roads and bridges. What impact did this have on the Minnesota bridge collapse?

The last change to national policy on truck size and weights was promulgated through the 1982 Surface Transportation Assistance Act (STAA). Since the 1982 STAA, 14 states adopted some type of incremental expansion (state-by-state) which promoted the use of longer combinations vehicles (LCV) though special access highway systems before it was halted by the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). 

Truck size and weight regulation standards can be divided into three types: prescriptive standards, like those currently applied in the U.S.; parametric standards, which include parameters known to be related to performance; and pure performance-based standards. Most size and weight regulation in the U.S. are not based on pure performance tests or on performance-related parameters. They are based on historical compromises between trucking and shipping interests and state and federal highway agencies. These are prescriptive standards, and they are relatively simple to enforce.

Assuming one pass of the 8-tonne axle is equal to 10 passes of light vehicles, as
used in current chipseal design and performance modelling, then one pass of a 12-
tonne axle is equal to 23 passes.

The American Society of Civil Engineers stated it this way in a 2006 report:

Trends continue toward larger trucks and smaller passenger vehicles along with increasing truck volumes. Operational and safety issues and highway pavement and geometric design aspects, of mixing large trucks and smaller passenger vehicles will continue to be a subject of importance to highway administrators and designers...

Increases in truck sizes and weights impact negatively on the structural life and geometric adequacy of the present road network. All highway users will experience reduced service levels, delays, increased vehicle wear and operation costs, and reduced safety. These negative impacts must be balanced against productivity gains and reduced commodity costs.

see: www.asce.org/pressroom/news/policy_details.cfm

Given the above, what is the remedy? Is it enough that we have cheap goods, whatever the cost in lives? I believe Congress will be debating these issues shortly. What should we tell our representatives? Your thoughts greatly appreciated. 

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Lane Departure Warning (LDW) Systems

Trucking companies that are concerned about safety, of their drivers and the public, have ways to assist truck drivers in preventing some of the most common and tragic of collisions, those caused by lane departure. When a tractor trailer leaves its given lane of travel, other motorists on the road frequently pay the price. Frequently, lane change collisions are caused by drowsiness, fatigue and distraction. Trucking companies are aware of how these collisions occur and their frequency (see below link to FHWA fact sheet). They are also aware that technology exists, and is in use, which would significantly reduce this type of collision if they only chose to use it. Trucking companies can empower their drivers to stay safe by using a lane departure warning system or they can gamble with the lives of the drivers and the public. 

Computers and technology now can monitor the position of a vehicle within a roadway lane and warn a driver if it is unsafe to change lanes or merge into a line of traffic. These systems use imaging technology or radar to warn drivers when they are leaving their lane and can also assist drivers who are intentionally changing lanes by detecting vehicles in the driver's blind spot.

One such imaging system is manufactured by Iteris, which states the following on their website about lane change collisions and their product:

Latest Statistics: Highway Fatalities
42,643	Total Fatalities in 2003
23,324	Lane Departure Fatalities in 2003
59%	Lane Departure Fatalities in 2003 (Percent of total fatalities as a direct result of unintended lane departure accidents.)

Source: safety.fhwa.dot.gov/facts/road_factsheet.htm


What is LDW?
LDW uses a technology called Machine Vision to track a vehicles position relative to the lane markings. Using image recognition software, the system can detect when a vehicle drifts towards an unintended lane change. When this occurs, the unit automatically emits a distinctive rumble strip sound from the left or right speaker (depending on which way the vehicle is drifting), alerting the driver to make a correction.

LDW works effectively both day and night and in most weather conditions where lane markings are visible. LDW is capable of detecting both solid and dashed lines even if the lines are heavily faded.

"Virtual" rumble strips
U.S. Government accident statistics, collected for over 20 years, show that highway rumble strips, where installed, have proven to effectively reduce run-off-road accidents by 30 - 70%. LDW warns drivers before they hit the rumble strip.

LDW provides all the functionality of highway rumble strips, electronically, everywhere there are lane markings. LDW works on the shoulder, centerline and between lanes.

Lane Departure Warning Features & Benefits
	Promotes use of turn signals when changing lanes
	Conditions drivers to have a keen sense of "lane position awareness"
	Emits no warning for planned lane departures (with turn signals on)
	Zero maintenance with functioning wipers and clean windshield
	Disabled below 37 mph (design for highway travel)
	Designed for 10-12 year life
	OEM available through Freightliner, Mercedes, and MAN
	Can be installed on most power units
	Many truck drivers report that it is an effective aid in rain, sleet, fog and general low visibility conditions.
	False warnings are near zero
	Can warn drivers of impending fatigue before it becomes a problem

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While a majority of tanker truck rollovers are caused by driver error, if trucking companies increased training and used current safety technology the number would be reduced according to a recent report by the Federal Motor Carrier Safety Administration. The trucking companies appear to be withholding the very tools necessary to protect drivers and the public from these types of wrecks.

The report also noted "drowsiness and inattention together contribute to one in five cargo tank rollovers." Fatigue is a topic covered in my earlier posts at length and continues to be an issue of public safety.

See: www.ttnews.com/articles/basetemplate.aspx

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According to JJ Keller, hours of service violations and brake problems were the top violations found during the  2007 Roadcheck. Between vehicle problems, and driver problems, approximately 49% of the inspections showed either the vehicle or the driver should not be on the road. JJ Keller reported:

A total of 62,370 inspections were conducted during the 72-hour Roadcheck 2007 event from June 5–7, 2007. The following out-of-service (O-O-S) statistics emerged for drivers and vehicles:

Driver O-O-S Violations
Violation	Number	Percentage
HOS	3,027	65.9%
False Logs	522	11.4%
Suspended	177	3.9%
Driver Qualification	166	3.6%
Endorsement	120	2.6%
Expired License	78	1.7%
Drugs/Alcohol	71	1.5%
Age	15	0.3%
Revoked License	12	0.3%
Withdrawn License	11	0.2%
Cancelled License	9	0.2%
Other	607	13.2%
TOTAL	4,815

Vehicle O-O-S Violations
Violation	Number	Percentage
Brake Adjustment	6,954	27.7%
Brake System	6,566	26.2%
Lights	3,521	14.0%
Loading (securement)	2,610	10.4%
Tires and wheels	2,286	9.1%
Suspension	1,159	4.6%
Steering	533	2.1%
Frame	345	1.4%
Hazardous materials	261	1.0%
Coupling device	178	0.7%
Fuel system	166	0.7%
Exhaust	48	0.2%
Other	924	3.7%
TOTAL	25,551

The number of U.S. state inspections totaled 53,451 (85.70%); Canadian inspections totaled 7,274 (11.66%); U.S. FMCSA inspections totaled 1,506 (2.41%); and Mexican inspections totaled 139 (0.22%).

See: www.jjkeller.com/news/newsinfo/T_news2194.htm

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An amendment was recently offered by Reps. Defazio (D-OR), Boyda (D-KS), Hunter (R-CA) and Miller (R-CA), and included unanimously in HR 3074, the fiscal year 2008 DOT appropriations bill, to prohibit the use of any funds to establish or implement the proposed Mexican-domiciled truck pilot program.

While the amendment is not yet law, I have high hopes that the current, poorly executed legislation will be killed, and killed quickly.

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A reporter for the Chattanooga Times Free Press stated that, according to the American Trucking Association, 1/4 of its drivers have problems with sleep apnea. See the front page of  the July 19, 2007, Chattanooga Times Free Press, "Truckers get physical."

Sleep apnea  is a sleep disorder characterized by pauses in breathing during sleep. People with sleep apnea are often sleepy during the day. They find that they are still tired even after a nap. When you stop breathing, your body wakes up. It happens so quickly, you aren’t even aware of it. This disrupts your sleep process. Individuals with sleep apnea can stop breathing hundreds of times in one night. This makes them feel very tired the next day. Generally sleep apnea is most prevalent in overweight middle aged men who snore and have neck sizes greater than 17".

The Federal Motor Carrier Safety Regulations forbid drivers with sleep apnea from driving until the sleep apnea is treated. FMCSR 392.3  specifically states a trucking company shall not allow a sleepy driver to drive.  For a copy of the regulation see:   www.truckinjurylawyerblog.com/49cfr392.3.pdf

The National Sleep Foundation states:

Sleepiness and driving is a dangerous combination. Most people are aware of the dangers of drinking and driving but don’t realize that drowsy driving can be just as fatal. Like alcohol, sleepiness slows reaction time, decreases awareness, impairs judgment and increases your risk of crashing.

It's nearly impossible to determine with certainty the cause of a fatal crash where drowsy driving is suspected. However, there are a number of clues at a crash scene that tell investigators that the person fell asleep at the wheel. For example, drowsy driving accidents usually involve only one vehicle where the driver is alone and the injuries tend to be serious or fatal. Also, skid marks or evidence of other evasive maneuvers are usually absent from the drowsy driving crash scene.

Unlike alcohol-related crashes, no blood, breath, or other objective test for sleepiness behind the wheel currently exists that investigators could give to a driver at the scene of a crash. This makes police training in identifying drowsiness as a crash factor very difficult.

Definitions of drowsy driving or driver fatigue rely on how the concept of "fatigue" is defined. Fatigue is a general term commonly used to describe the experience of being "sleepy," "tired," "drowsy," or "exhausted." While all of these terms have different meanings in research and clinical settings, they tend to be used interchangeably in the traffic safety and transportation fields.

There are many underlying causes of sleepiness, fatigue and drowsy driving. Including sleep loss from restriction or too little sleep, interruption or fragmented sleep; chronic sleep debt; circadian factors associated with driving patterns or work schedules; undiagnosed or untreated sleep disorders; time spent on a task; the use of sedating medications; and the consumption of alcohol when already tired. These factors have cumulative effects and a combination of any of these can greatly increase one's risk for a fatigue-related crash.

Sleepiness or Fatigue Causes the Following:

Impaired reaction time, judgment and vision
Problems with information processing and short-term memory
Decreased performance, vigilance and motivation
Increased moodiness and aggressive behaviors
In addition to the dangers of driving under the influence of fatigue, several states are considering legislation that would allow police to charge drowsy drivers with criminal negligence if they injure or kill someone while driving if they have not had adequate sleep. See: www.sleepfoundation.org/site/c.huIXKjM0IxF/b.2485279/k.A2A4/Drowsy_Driving.htm

Unfortunately truckers who report they have sleep apnea can't drive until it is treated, and the whole time they are under treatment they are not getting paid. Further, if the sleep apnea can't be cured, the drivers will be forbidden from driving. The sad result for the American public is that most trucking companies turn a blind eye to the problem, well known in the trucking industry, to avoid losing drivers for any length of time, placing profits over people. A simple solution would be to find work for the driver, that does not involve driving a tractor trailer, until the illness is treated.

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President Bush, Dec. 4, 2006, signed into law a provision that will in time grant Mexican trucking companies access to roadways throughout the U.S

According to the U.S. Customs Service, 2,383,471 trucks crossed the border from Mexico to the U.S. in 2000 and, as of September 2001, 1,681,526 trucks had entered the U.S. from Mexico.
According to a study published in February 2001 by Public Citizen, about 1 percent (35,000) of every one million Mexican trucks that cross the border undergo safety and licensing inspections. Of that 1 percent, more than one-third, about 12,250, are turned away because of safety deficiencies.
In all, the Transportation Department (DOT) estimates that opening the border will increase traffic from Mexican trucks to about 7 million from its current level, according to the study. At the time the report was published, there were 101 state commercial truck inspectors and 60 federal inspectors at the border. The DOT estimates covering every one of the 7 million Mexican trucks would require about 32,000 inspectors.

A letter from the Owner-Operator Independent Drivers Association, admittedly an interested party,  states it this way:

Dear President Bush:

On behalf of hundreds of thousands of American small business truckers, the Owner?Operator Independent Drivers Association (“OOIDA”) asks you to maintain the current border restrictions on Mexican trucks until there is a system in place to ensure that Mexican trucks comply with U.S. laws related to safety, immigration, and customs.

Our initial concern is with the safety of trucks and motor carriers from Mexico. Our members own the trucks they drive and spend most of their time working on our nation’s highways. They believe that the Mexican trucks that already use our highways are in terrible physical shape and fall well short of compliance with our safety regulations. Indeed, this fact has been backed up by research by the Inspector General of the Department of Transportation.

Additionally, there are no weight limits on trucks in Mexico as we have in the U.S. It is not unusual for one load on a truck from Mexico to be split up onto two American trucks in order to be legally hauled on U.S. highways. If our current border enforcement can only inspect a minute percentage of Mexican trucks that come into the U.S. today, we will surely see a major influx of unsafe, overweight Mexican trucks should we further open our border.

This safety concern also encompasses Mexico’s relatively lax regulation of its truck drivers. Although Mexico does require that a truck driver obtain a Commercial Drivers License (“CDL”) and receive a physical exam, these requirements are much less stringent than those required of U.S. drivers. In addition, U.S. drivers also face periodic, unannounced drug testing, and are subject to hours-of-service limits. Mexican drivers do not face either requirement. There is no way for federal or state enforcement officials to reasonably believe that a Mexican driver is drug-free, or know how many hours that driver has been working behind the wheel. These are two driver issues that our Department of Transportation and state enforcement agencies take very seriously in regard to U.S. drivers.

Whereas U.S. officials can use a computer to check a U.S. drivers identity, the validity of the CDL, a record of the driver’s history of violations, and the validity of a liability insurance certificate, none of this information about Mexican drivers and motor carriers is automated. We understand that U.S. border officials have become experienced in spotting a counterfeit Mexican CDL, but once that trucker is past the border, our non-border state officials have no expertise to do this job.

Similarly, U.S. motor carriers are required to register with the U.S. Department of Transportation where a safety rating is maintained on computer. This information is used to identify unsafe carriers who then receive on-site safety audits. No safety record is now kept on Mexican Carriers in Mexico or the United States, and even if such records were kept, the Mexican carriers would be outside of the jurisdiction of DOT enforcement personnel to perform on-site safety audits.

Our members must share the road with every vehicle, and safety is a high priority. Without a comprehensive system in place to enforce the physical standards for a safe truck, the minimal requirement for a safe driver, or the ability to verify liability insurance, public safety on our highways is greatly compromised. Furthermore, it is simply unfair to U.S. businesses that Mexican drivers and motor carriers will not face the same level of scrutiny as U.S. trucks, drivers, and motor carriers for the privilege of using U.S. roads.

Safety is not the only challenge Mexican trucks and drivers pose to the United States. OOIDA is concerned that neither the Immigration and Naturalization Service nor Customs Service are prepared to oversee the compliance by Mexican drivers and trucks with laws enforced by those agencies. Under NAFTA, a Mexican truck can only deliver a cross-border shipment to a destination in the United States, pick up another shipment for return to Mexico, or drive through the United States on the way to Canada. We have no system in place to ensure they adhere to these restrictions.

When a Mexican truck driver begins to illegally haul between two points within the United States (as they are already doing, virtually unchecked[1]), he or she has begun to perform domestic work within the U.S. and must have proper documentation (such as a green card) to do so. When a Mexican truck begins to haul between two points within the United States, that truck has technically been imported into the U.S. and all applicable duties and tariffs must be paid on it. The INS and Customs Service are unprepared to supervise compliance with these rules by thousands and thousands of Mexican drivers and trucks. If these laws are not enforced and low paid Mexican drivers are allowed to operate freely within our borders, they will quickly depress already inadequate truck driver earnings in the United States and drive many experienced and capable American drivers out of business. This is not the old labor argument against cheap foreign labor in another country. This is about cheap labor being used to undercut our workers and small businesses on our own soil.

Federal agencies have been unsuccessful in enforcing our laws with the limited numbers of Mexican trucks coming into our country today. States and localities, who perform the primary trucking enforcement role in the U.S. are completely unprepared to assist in the enforcement with these federal issues.

In order to mitigate the adverse effects of the NAFTA panel decision, OOIDA requests that you and your administration delay implementation of that decision until the relevant agencies have in place the manpower and procedures necessary to enforce our laws as we have the right to do under NAFTA.

You can also go to the Truck Safety Coalition  www.trucksafety.org and see that consumer advocates agree that allowing trucks from Mexico onto US roads, as the law is currently written, is dangerous.

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It is not uncommon for someone to run into the rear of a tractor trailer on the open highway. In fact there have been reports on critical problems of side and rear under-ride impacts for a long time. One news report shows how horrific these collisions can be, see: www.youtube.com/watch   In court we frequently hear everyone testify that the taillights on the trailer were on, which begs the question: "Why did the driver of the car run into the back, or side, of the tractor trailer?"

Part of the problem is driver expectation. What can a reasonable and prudent person expect when driving at night? Car drivers expect that trucks will obey the minimum speed limit if they are traveling on the interstate. If a tractor trailer is traveling below the minimum posted speed limit,  a motorist may see the taillights and clearance lights but gains on the truck faster than expected. By the time the driver realizes the truck is going much slower than normal, he or she may be too close to avoid it. At 55 miles per hour (80.85 feet per second) the approaching car will cover 485 feet in only six seconds. At night it takes longer for a driver to see and react to unexpected situations in the highway. It takes a driver MUCH longer to realize that the tractor trailer isn't moving, or is moving slowly, which is why almost 100% of these collisions happen at night.

One "decision sight-distance time model" indicates that at 30 MPH it takes 10.5 seconds and 460 feet from the time an "unexpected fixed object" becomes visible for the driver to "see" it, recognize the hazard, decide on action, initiate action, and complete maneuver. At 60 MPH, the distance could be 1275 feet. This of course does not involve hitting the brakes, but in steering around the hazard. It would take longer to brake.

Pre-collision skidmarks are rare. Occasionally investigators will find some, but the marks are usually not very long. This means that the driver identified the problem far enough back to brake, but too close to stop before impact.

Continue Reading...

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 Five teens were on their way to a vacation home when they hit a Tractor Trailer. Everyone in the car died. The tragedy in western New York's Finger Lakes region happened just five days after the teens graduated from Fairport High School.

The police have indicated the cause of the collision is under investigation. An investigation to determine who is at fault takes place anytime there is a motor vehicle collision and someone is seriously injured or killed.

A person who sustains serious injuries from an SUV, truck, car, or motorcycle accident because someone else was at fault may have grounds to file a personal injury claim. If someone was killed in a traffic accident because another person was negligent, the victim’s family members may have grounds to file a wrongful death lawsuit.

A good personal injury lawyer can determine who was at fault for causing the accident. He or she also has the knowledge, tools, and experience to figure out if a defect in the vehicle caused the accident and a manufacturer or distributor is to blame. Common grounds for a motor vehicle product liability claim include defective tires, defective airbag, defective seat belts, and defective breaks.

Recovering from an accident is stressful enough without having to worry about medical or recovery costs.

If you or someone you love was hurt contact The Law Offices of Morgan Adams. We have the experts needed to review your case and are here to help.

For more on the Cheerleader story see: www.cnn.com/2007/US/06/28/teens.crash.ap/index.html

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Trucking Companies have long been aware that tractor trailers have blind spots if drivers fail to use all the mirrors available to them. Typically you will see two types of mirrors on a truck, a flat mirror and a round mirror. By using both of these mirrors a truck driver can see into the "blind spot" of a tractor trailer. Trucking Companies call these alleged blind spots "No Zones." For an example of a "No Zone" see the link at the bottom of this post.

So why have "No Zones?" Defense lawyers use "No-Zones" to shift blame onto drivers who were run over by a tractor trailer! They argue to the jury: 1) Everyone knows about the no-zone, there is even a picture of it on the back of the truck. 2) The dead driver should have paid more attention because he/she knew, or should have known,  they were in a "blind spot" Since you have read this far it now means YOU are responsible if you are passing a truck and the driver changes lanes, running you over!

The truth is the professional tractor trailer driver is 100% RESPONSIBLE for this type of collision. 1. They have specialized training about the blind spots 2. They have mirrors which, if they chose to use them, would eliminate blind spots and 3. They can use electronic systems, in use and available today, to trigger warnings to the tractor trailer driver whenever vehicles are in a blind spot. See: truck.eaton.com/vorad_how_works.htm  For example, Schneider National, a trucking company with 15,500 drivers, would save approximately 6.2 lives EVERY YEAR with this system in place.

Continue Reading...

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The Federal Motor Carrier Safety Administration (FMCSA) has proposed that only the worst trucking companies be required to have electronic onboard recorders (EOBR) to determine if there are hours of service violations by the drivers. Why? The FMCSA knows that fatigue is the leading cause of death in thousands of accidents and collisions on the roadways every year. The EOBR monitors the drivers identity, duty status, date, time, location, and carrier distance traveled. The trucking company instantly knows about violations and if the driver needs time off to avoid becoming fatigued.

The problem from my point of view is that they are not mandating that EOBR's be used in throughout the trucking industry. Given the acknowledge shortage of drivers, the desire to work longer hours by some drivers and  trucking companies in order to make more money, and the fear of getting fired by some drivers if their load isn't delivered on time, it seems as if these devices would prevent drivers from overwork and fatigue, and thus collisions. It comes as no surprise that the trucking industry is in favor of limited use of EOBRs despite the fact that a study done by the American Trucking Association showed 76% of the drivers had their moral improve! Clearly the drivers know they are being forced to overwork!

In a recent case, Trotter v. B & W Cartage Company, Inc., 2006 US Dist LEXIS 19074 (S.D. Ill. 2006) a truck driver was in serious violation of the hours of service regulations, fatigued and had been submitting false logs for weeks to the trucking company. The driver's employer admitted that they couldn't audit the driver's logs because they got "too big too fast." If they had an EOBR, a horrible crash would likely never have happened.

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One of the easiest things to do for a trucking company is to follow the law on how much material you can put into, or onto, a truck. Just because it is easy doesn't mean it is done.

Overloaded trucks are a real problem on our roads. For example on June 5, 2007, in College Park, Maryland, a truck was pulled over weighing 70,300 pounds, far exceeding the 17,000 pounds which the truck was lawfully allowed to carry. The State Trooper in charge of the stop, Trooper Eric White of the Maryland State Police, stated overweight trucks are a major source of highway accidents. "When they hit their brakes, they're so heavy that they can't stop." The overweight violation resulted in a $16,155 fine, but it could have been much worse. See: www.ttnews.com/articles/basetemplate.aspx

So why do trucking companies overload their trucks? Trucking companies generally overload their trucks to save money. The trucks have to make fewer trips and the companies have less expense in fuel and driver salary. The money the company saves comes at the expense of the motoring public. Not only is the impact greater when the accident occurs, the driver's aren't trained on how to drive overloaded trucks. Every driving rule they know is invalid because the training and rules drivers are taught are based on trucks within legal limits. In short, overloaded trucks put drivers in situations they are not trained for and the results are far too often deadly crashes. The least significant cost is damage to the highway as the overloaded trucks put more pressure on the pavement than the highway was designed to handle. This in turn causes deterioration of the highways and greater expense to the taxpayers as the highways have to be replaced sooner than expected and the publics' daily misery of having to live with the pot holes and damaged roads caused by these trucks.

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"Safety Director" is now a firmly entrenched title at all trucking companies. Everyone likes to say they are safe, but are they? First look at what a the responsabilities of a safety director. The certification course for Safety Directors given by the NATMI, an affiliate of the American Trucking Association, shows that safety directors are responsible for: driver hiring, training and supervision; accident investigation and prevention; fleet maintenance; and DOT/OSHA/HazMat regulatory compliance. It is the safety director that is responsible for the trucking companies compliance with the Federal Motor Carrier Safety Regulations.

Questions safety directors should be asked by those involved in a collision include: How many other jobs do you have and how much time is spent on safety? What training have you had? Has the trucking company ever paid for you to have training in safety? Has the trucking company ever adopted a suggestion from the safety director which cost money?  If the trucking company has grown from 50 trucks to 500 trucks has the safety departments budget grown? Is there a safety newsletter or column?

Ironically, safety is frequently only given lip service at trucking companies although studies have shown that safety actually saves money over the long term for the trucking companies. Safety is "JOB ONE" because it saves money, it is also the right thing for a responsible company to do.

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