Brad Pistotnik Law
Abogado El Toro

Liability Issues in Truck Accidents

Trucking accidents would large commercial motor vehicles, tractor-trailers, semi’s and other large commercial motor vehicles account for a substantial proportion of many traffic related accidents which take place on a daily basis. These accidents can be substantially more dangerous due to the fact that the sheer size, mass and force of the tractor-trailers and larger commercial vehicles makes them more dangerous when they come into contact the smaller passenger vehicle. Vehicles, pedestrians and motorcycles. When the commercial motor vehicles are carrying hazardous materials, there is an increased likelihood of more danger due to the fact that some of the materials are transported are deadly human beings. Smaller passenger cars have to be aware of the danger related to these massive instruments of destruction. A research study conducted in 2010 from the National Highway Traffic Safety Administration reported that there were approximately 3,675 deaths and approximately 80,000 injuries as a result of large truck crashes. These statistics represented a sizable increase of nine percent (9%) from the previous statistics published in 2009. Driver error is the leading cause of motor vehicle accidents with trucks. Factors such as fatigue and sleep deprivation are the cause of driver error in many of these cases. Some of the accidents relate to simple failure to maintain and repair the vehicle where tires blowout and brakes fail. Many of these accidents are preventable. Tractor-trailers that are traveling after dark are sometimes parked in areas where they should not be stopped or parked. If they have defective lighting and illumination, it is difficult for motorist to see the vehicle until the last moment. This is one of the reasons why truck drivers are required to place triangles, cones, and other warning devices at a certain number of feet behind a stop tractor-trailer to give the motorist warning of the impending hazards. The issue of liability or who is at fault in a truck related accident becomes much more complex than a normal motor vehicle accident. Many of these tractor-trailers operate through independent contractor leasing. There may be many different potential defendants for each and every case. A lawyer who is evaluating a case will look at the driver of the tractor-trailer, the owner of the tractor-trailer, and where leased, the motor carrier who is leasing the tractor-trailer and driver are evaluated for further potential liability.

In cases where there is a problem with loading and unloading and cargo falls off onto a highway, the typical truck accident lawyer will research the individuals or companies responsible for the loading and shipping of the cargo due to the critical nature of a motor carrier understanding how to do appropriate loading and securement. The FMCSA modified its cargo securement rules on or about September 27, 2002. The newly published rules commenced in operation on January 1, 2004 They were based on the North American cargo standard model regulations reflecting the results of a multi-year research firm to evaluate a valuate US and Canadian cargo regulations as well as the motor carrier industry’s best practices and recommendations presented during a series of public meetings involving US and Canadian industry experts, Federal, State and provincial enforcement officials, and other interested parties. Generally, these rules require the motor carriers to purchase new cargo equipment to comply with rule changes. The purpose of the rule change was to reduce the number of accidents caused by cargo shifting on or within, or falling from, commercial motor vehicles operating in interstate commerce, as well as to harmonize the movement of cargo between the U.S., Canadian and Mexican cargo regulations. The new rules required that cargo systems be capable of withstanding the forces associated with the following three requirements of deceleration and acceleration’s applied separately.

  • 0.8 g deceleration in the for direction;
  • 0.5 g, acceleration in the rear were direction; and
  • 0.5 g, acceleration and a lateral direction.

These new rules generally addressed the proper use of tied downs, the use of unmarked tiedowns, unrated and unmarked anchor points as well as the structures of CMV’s. The general rule is stated that cargo must be firmly immobilized or secured on or within a vehicle by structures of adequate strength, dunnage (loose materials used to support and protect cargo) or dunnage bags (inflatable bags intended to fill space between articles of cargo between cargo and the wall of the vehicle) shoring bars, tie-downs or a combination of these. When analyzing target defendants for cases the keen lawyer will look at the owners of the tractor and trailer, truck driver, the manufacturer of the truck, the company it is leasing the truck and trailer. As well as the manufacturers for certain components of parts that have become defective. The loader or shipper of the cargo may independently be held responsible for accidents where cargo falls during transport. Maintenance companies doing oversight and repair of the tractors and trailers can likewise be held accountable for negligence. Both state and federal governments have agencies that are set up and created specifically to monitor trucks, truck drivers and motor carriers for compliance with the regulations created by the Department of Transportation and the Federal Motor Carrier Safety Administration. State agencies help the Federal DOT with compliance.The federal agency is called the FMCSA. The FMCSA helps to create, implement and monitor motor carrier compliance with the FMCSR. These regulations provide the minimum standard of care for the trucking industry to follow. The minimum is not always enough. These regulations simply set that minimum standard and the trucking company or motor carrier is allowed to have a higher standard of care. Unfortunately, many trucking companies and drivers do not meet the minimum standard of care, and certainly do not attempt to create a higher standard of care due to the fact that it would lead to more lawsuits. Defense lawyers that specialize in motor carrier and trucking civil defense, learn how to shift the liability and responsibility to other potential target defendants who may not have been named in a lawsuit. This makes the job of the plaintiff’s’ attorney extremely difficult. Simplification of cases is not always possible. In many of these cases, if the plaintiff’s attorney does not name all of the appropriate defendants then at time of trial, there may be a an empty seat for a defendant who was never named in a pulp portion of the fall becomes assigned to the defendant who had not been named as a party defendant. These types of defense tactics are similar to those used in medical malpractice litigation where an injured plaintiff may only sue a few of the potential defendants and health care providers in order to minimize the number of defense lawyers. In trucking litigation. It is essential that the lawyer identify the potential defendants and rule them in or out for filing the lawsuit. The general rule for the lawyer to observe is to make sure that they have all the necessary parties. Adding too many parties to a lawsuit will simply create strife for the lawyer and gives the remaining defendants great latitude to point the finger at the other parties attempting to avoid liability. Only those defendants with real responsibility should be named in the lawsuits. An injured victim of a truck accident needs to make sure that they find a lawyer who is knowledgeable in all of the concepts of safety that fall under the FMCSR. Furthermore, the leasing company can argue that it was the fault of the shipping company as they failed to tighten the load on the flatbed and did not secure it properly. These arguments that run around in circles are common in truck related accidents because every party tries to blame the other and deflects blame by holding the insurance company of other party’s responsible and state that they should provide compensation to the victim. For many decades now trucking companies have attempted to avoid liability by utilization of contract drivers and leases. The Federal Safety Rules had to be modified in order to make all parties responsible when a commercial motor vehicle is involved. Part 380.113 on employer responsibilities, states specifically that no motor carrier shall allow, require, permit or authorize an individual to operate and LCV unless he/she meets the requirements in Parts 380.203 and 380.205 of the FMCSR. The motor carrier employer must have evidence that all drivers have an LCV driver training certificate that is described in Part 380.401. Motor carriers have routinely attempted to defend themselves based upon an argument that they are not really supervising or monitoring the truck drivers in a leased unit. Contracts between the motor carriers and their leased tractor-trailers and drivers all require that they follow the minimum requirements of the FMCSR. When motor carriers ship cargo they have to use dispatch services through their company. Once the motor carrier, who has the larger role, provides dispatch instructions to the leased driver, the supervising motor carrier is in a position of control. Liability comes with control. This will allow the normal injured victim to bring a claim against both companies. The driver may likewise be responsible as well as the Company that he is working for and its own supervising company. These rules are known as the doctrines of vicarious liability and Respondeat Superior. Truck accident victims no longer have to be concerned with the nefarious attempts of motor carriers to shift responsibility. The FMCSR creates a rule shared responsibility. Truck accident. Lawyers will utilize interrogatories and discovery requests in order to determine what rules. Each truck driver and motor carrier are following. The normal trucking injury case will require numerous depositions of dispatch officers, supervision, officers, training, officers, safety officers, and other employees in different positions at the motor carrier. The current regulations almost always require the law-enforcement and administration professionals to make detailed observations and inspections of the tractor-trailer or other large truck immediately after an accident to determine whether that the truck was safe to operate at the time of the accident. Many of these post-accident findings will lead to out-of-service findings and citations for violations of the FMCSR. These citations are then tracked by the DOT and placed on the safersystem website, where they are utilized in evaluating the safety record of the motor carrier. These post-accident findings can lead to a clear determination of liability. This is why the normal motor carrier will have an independent adjuster on the scene in the first hour after an accident. Likewise, the plaintiff’s attorney that has been retained close enough in time to the date of the accident should immediately document the scene of the accident and inspect the tractor-trailer and all parts of the combination of the tractor-trailer to determine whether there are defects which went unnoticed. Almost all tractors and large trucks now have a module that is similar to a black box on an airplane. This recording device looks at certain events which usually are from sudden braking and deceleration. The computer module can be downloaded after the accident. In the event that the tractor is still drive-able and the driver drives away from the scene the evidence from the last event can be erased and the evidence is lost. Both the highway patrol and the FMCSA, as well as plaintiffs’ lawyers want copies of the information on the module that is prior to the event of the crash, so that they can determine the velocity and speed of the tractor prior to impact. The normal lawyer helping a trucking accident victim will immediately send out a spoliation letter which will give notice to the trucking company and its insurance carrier that the evidence must be preserved. When an accident occurs which results in significant injury or death, the attorney for the plaintiff will seek corporate information from the motor carrier as well as personal information from the driver. Claims under the Freedom of Information Act will be made to the DOT to get copies of the entire safety history of the motor carrier. The attorney will then issue discovery to find all of the typical trip documents that a truck driver will you have for the 14 day period prior to the date of the accident, including up to the date of the accident. A study is then conducted to determine root causes of the various potential negligent actions and omissions of the motor carrier and its driver. The trained lawyer will likely higher accident reconstruction experts, trucking, safety experts, and other experts to assist in the evaluation and investigation of the case.

Trucking Industry blames the victim to reduce liability

With rising trucking accidents, the trucking industry continues to develop different alternative methods of blaming the drivers of the motor vehicles, motorcycles, and the pedestrians that are hit by these large trucks. Trucking companies pay substantial amounts per hour to highly trained expert defense lawyers. These lawyers look for methods to blame the driver of the smaller passenger car or cycle for comparative fault reasons. Adjusters will attempt to take statements of the injury victims while still in the hospital. In one particular case and adjuster actually snuck into the hospital at 2:00 AM in the morning pretending to be a health care provider in order to try and take a statement from the driver, who was in a highly medicated state from pain medication. These sneaky and fraudulent practices are common. Many people who become injured attorneys accidents are in a state of shock. They are then hospitalized and placed on morphine, the lauded and other strong pain medications of alter, their conscious ability to recall the accident appropriately. This is why injury victims need a lawyer to defend the injured person at the start. Comparative fault is the defense of choice. Many defense lawyers will claim that the driver of the smaller vehicle was in a blind spot and knowingly should have avoided that spot. Hundreds of accidents occur each year were the tractor-trailer is making a pass into a side lane directly adjacent to the tractor-trailer without giving adequate warning with a turn signal and without appropriate truck driver monitoring in their mirrors to determine whether or not a vehicle is in the lane immediately beside them on either side. The trucking company will always blame the driver of the smaller vehicle for traveling in the blind spot. One recent case in Kansas had the driver of the large tractor-trailer, make an abrupt movement to the left without warning, which caused the driver who was in a passing zone to have to make an abrupt movement into oncoming traffic. The driver was then faced with hitting a semi traveling in the opposite direction. The driver did the only thing she could do, which was to veer in the oncoming lane and then further to the left off of the traveled highway towards a ditch in order to avoid the head-on impact with the other semi. The driver was killed. Her younger daughter was killed. Another daughter was paralyzed from the neck down. These are common accidents which occur way too often. The driver in this case momentarily stopped and then drove off, only to be chased down by a following witness who called 911. The negligent truck driver ultimately was stopped by the Kansas Highway Patrol and made to return to the scene of the. It is likely that if a Good Samaritan had not followed this reckless driver that the driver would never have been caught. If no witnesses had been present the likelihood is that the trucking company would have blamed the lady who was killed by stating that she was driving erratically. Some states have laws called contributory negligence, while others have moved to a more modern version of the law which is known as comparative fault. Some states will have a 50% rule on comparative fault, which means that if the person who had the accident with the large truck is 50% rule they cannot recover anything for their damages. In the event that they are found to be less than 50% fault, they can still recover for the portion of their case that is not as a direct result of their fault. In other words, the same person who is found to be 49% at fault would only be able to collect 51% of a hypothetical $100,000 verdict. The person could not collect for the $49,000 or the 49% portion of the verdict, which was due to their own fault. Almost all states require that all persons traveling on a roadway give due and reasonable care to the responsibilities as a driver. These contributory negligence and/or comparative fault rules can make a very simple case complex. The drivers of the larger vehicles are rarely hurt. The drivers of the smaller vehicles are almost always hurt. Because many of the accidents utilize comparative fault as a defense to blame the victim it is necessary to retain an experienced trucking lawyer immediately after an accident. There are many different examples where the victim is called the plaintiff can be considered negligent. If the negligence rises to too high a level that that person is unlikely to recover any compensation for their injuries, even when the truck driver is 50% of blame. A few examples of negligence for the operators of the smaller passenger cars and motorcycles are set forth below:

  1. Driving too close to a tractor-trailer in a blind spot where the truck driver cannot see the past or see the smaller car.
  2. Failing to keep the proper distance away from the tractor-trailer;
  3. Passing a tractor-trailer too slowly while in the blind spot. Blind spots are a dangerous area were cars should not hover. Many drivers will slowly past tractor-trailer. Rather than making a quick pass around it.
  4. Not being attentive while driving when utilizing cellular phone devices and texting while driving.
  5. Operation of a car at a speed which is too fast for the heavy traffic conditions where trucks are on a traveled route.
  6. Traveling too close to the back of the tractor-trailer which places the driver into the blind spot behind the truck. When a driver stays in this area for too long a period, the tractor-trailer driver does not know the car is present and may brake or stop abruptly. Most states require all drivers to keep a safe distance between the front of their vehicle and the vehicle that is in front of them.
  7. For pedestrians, walking in front of a tractor-trailer or behind a large truck creates a very dangerous situation for both the truck driver and the pedestrian because the truck driver cannot see pedestrians and certain areas both at the front and back of the tractor-trailer as well as on some side areas.

For purposes of illustration another real story about a tractor-trailer accident that happened in Kansas shows just how dangerous it can be to be near a tractor-trailer or vehicles and too close to the tractor-trailer. A young man was adjacent to the side of the front of the trailer being pulled by the tractor. He was safely passing in a passing zone. Unfortunately, the tractor-trailer was a newer driver with very little training. The tractor-trailer driver did not observe the vehicle in the passing lane to the driver’s left. As the tractor-trailer started to make an abrupt passing movement, the tractor-trailer forced the vehicle on the side of the tractor-trailer into oncoming traffic. The young man that was driving had to veer to the left into head-on traffic which was coming in the opposite lane of travel. The young lady who was traveling in her own lane of travel from the opposite direction was then faced with a head-on collision. Both vehicles attempted to avoid each other and headed for the ditch where they left the highway flying head-on in midair ultimately having a horrific collision. The tractor trailer driver did not stop. Several witnesses were present and called 911 chasing the tractor trailer. The tractor-trailer was finally pulled over by the Kansas Highway Patrol at the city of Fredonia on highway U.S. 400. The Kansas Highway Patrol made the truck driver return to the scene of the crime. Even after a deposition, the truck driver denied being aware of the accident and that was the basis for why he drove off. Several of the key witnesses coming from behind the tractor-trailer and young man as well as vehicles following the young lady from behind were forced off of the road due to the reckless driving of the tractor-trailer driver. One of the witnesses described the entire scene as something like carnage out of a movie. That same witness drove almost off of the road in order to save his wife and himself from a head-on collision with the reckless tractor-trailer driver. The tractor-trailer driver never admitted to having caused the accident, even though more than 7 independent witnesses saw him drive into the wrong lane of travel and then into oncoming traffic. He never stopped. He never felt bad about what he did. Even when the Kansas Highway Patrol officer stopped him and took his driver’s license and yelled at him for leaving the scene of an accident, he pretended not to know that an accident had happened. These types of accidents are every day frequent occurrences that result in death. The young lady that was in this accident died within 2 hours of the accident. The defense attorneys for the trucking company and driver, as well as their insurance company defended the case blaming everyone but their driver. The case was litigated for a lengthy period of time trying to blame both the driver who was to the left of the tractor-trailer in an appropriate passing zone, as well as attempting to blame the young lady who was in her own proper lane of travel from the opposite direction. The driver lied about his logs and it took hours of deposition in order to break the witness down long enough to get him to admit that he had falsified his logs earlier that day, just before the place of the accident. The driver had, in fact, driven multiple days and was over legal hours and was fatigued. The entire accident could been prevented by simply training the driver and letting him have time off when he was over his maximum hours to get more rest so that he would not continue to drive in a fatigued manner. Following is an example of a trucking accident case that goes to show the extent to which trucking companies are willing to go to blame the victim for an accident in order to avoid paying compensation for damages and injuries caused. This real-life example took place when a commercial truck went across the middle of a major interstate and crashed directly into another track on the road. This crash resulted in the second driver being seriously injured. The truck that crossed the interstate and caused the crash was sued by the second driver to obtain compensation for the damages caused by the accident. Once the case went to court the defendant or the first truck’s company’s attorney used the defense that the injured driver was to blame since he didn’t slow down to avoid the accident when he saw the other truck approach him and that his condition as a diabetic resulted in an impaired vision which caused the accident. This evidence seems rather weak compared with the fact that the defending trucking company’s driver fell asleep at the wheel at the time the accident took place and that he lied to the jury by falsifying his log books to make sure no one found that he had been driving in excess of the hours that have been permitted by the federal safety regulations. This goes to show the extent to which trucking companies can go to reduce their liability by blaming the victim. The case ended with the jury seeing through the defense finalizing a verdict of $3 million. The injured driver could never have imagined that the trucking company that caused the accident would even want to go to court considering how they were clearly at fault. Blaming the victim of an accident has become a common approach to deal with such situations, especially in cases where the injuries suffered by the victim are serious and the insurance companies want to avoid their liabilities to as much extent as possible. There are several tactics that are employed by trucking companies to ensure that the victim gets blamed for an accident. For example, many trucking companies employ private investigators that are sent to the scene of a trucking accident as soon as it takes place. The main task of the investigator is to find evidence that proves that the victim or the injured driver performed some action that caused the accident. This might include the injured driver, making some sudden movements of the vehicle causing the truck driver to swerve the car, etc. In such a situation the victim needs to employ a lawyer who is capable of establishing all the facts of the accident and has a reasonable defense against the trucking company’s strategy of blaming the victim. In order to avoid taking responsibility for an accident and blaming it on the victim, another strategy that is employed by trucking companies is to obtain and hide the black box data which might contain relevant information regarding the cause of the accident. This information includes the drivers’ hours on the job, details about the truck and daily driving schedule, etc. Trucking companies will ensure that the data in the black box is destroyed if it proves that they are responsible for the accident. This way they can alter the facts and blame the victim instead. Additionally, trucking companies employ another tactic to reduce their liability by approaching the victim with a settlement offer as quickly as possible in order to reduce their liability as much as possible. Trucking companies always have self-insurance. In case if a serious accident or an injury the trucking company offers the victim a low settlement in the hopes that they will take it. This is generally not a good option since sometimes the injury more serious than the victim realizes and this is exactly why they want to offer a settlement. In such cases, it's always better to consult an attorney first. Following are certain steps that can be taken by the victims of a trucking accident to ensure that they cannot be tricked or cheated into taking the responsibility of an accident they did not cause:

  1. Call 911 as soon as the accident takes place so that the authorities and the ambulance reach in time to avoid any casualties. If there is more than one injured individual, keep them together. The details of the accident should not be discussed with anyone at the scene. If there are any eye witnesses that can help prove that the victim is innocent, then they must be kept at the scene to ensure that they give a testimony.
  2. Getting the truck driver’s information is the next crucial step. Get as much information about both the driver and the trucking company as possible to keep a record.
  3. The victim should report their accident to their insurance company. It is advisable not to contact the trucking company.
  4. It is better to consult with an experienced lawyer before accepting a settlement offer that is being given by the trucking company in order to make sure that the offer isn't too low to settle for.

This chapter shows how the trucking company can blame the victim to avoid paying compensation for the accident, the strategies they might use to blame an innocent victim and what steps should be taken by the victim himself to ensure that they are not tricked into being blamed for an accident they did not cause or into taking a settlement offer that is not sufficient to cover all the losses.

Truck Accidents Cause Wrongful Deaths

In the past several years, the amount of cargo and freight that is being transported has risen substantially. Approximately 50% of all commercial freight is transported using a truck, large truck, semi, 18 Wheeler, or other type of big rig. The increased number of large trucks on the road has had a correlating increase in the number of accidents and wrongful deaths resulting from truck accidents. The National Traffic Safety Administration research has found that a person is killed or injured approximately every sixteen minutes of the day. More than 81,000 wrong deaths occur each year due to large trucks and semis. There are multiple reasons that large trucks cause wrongful deaths. Some of the factors are discussed below. Cargo that is overloaded in order to make a higher profit is another issue that leads to a large number of injuries and deaths on the nation’s highways. Other factors include road conditions, mechanical problems from the negligence of the trucking company and truck driver, as well as truck drivers being under the influence of drugs. Additionally, truck drivers are often inattentive. There are other reasons the truck accidents occur. Maintenance and repair issues lead to brake failure due to improperly inspected brakes.

Overweight Cargo

When truck drivers and motor carriers overload the cargo in order to ship a higher tonnage of cargo to make a better and bigger profit they foreseeable lead to causing accidents across the roads of this country. When they exceed their weight limits or are overweight in any manner it creates a hazardous situation which creates an obvious danger due to the increased weight and force of the truck and its accompanying cargo. It is the additional weight which causes the truck driver to maneuver in a different manner. The truck, when overloaded, may not brake as easily. The overloaded truck will not be able to maneuver and steer in the same manner. The overloading of cargo and heavier weight in the trailer bed and walls produces characteristics for driving which are more strenuous than an unloaded or safely loaded trailer with no more than the maximum amount allowed by law. Sudden stops are often necessary due to heavy traffic conditions. The heavier the load is, the slower the tractor driver’s ability to brake and stop. Overloading of the tractor-trailer can lead to the inability of the truck driver to stop in time to avoid hitting a slower moving or stopped vehicle to the front of the tractor-trailer. Overloaded tractor-trailers leaves significant evidence of their inability to brake rapidly. In the most severe accidents you will see skid marks with large strips of tire rubber that have been laid down on the highway as the truck driver is attempting to skid to a stop. A wrongful death case occurred in Oklahoma where the driver had overloaded the tractor-trailer which was moving loads of rock. The truck driver was paid by the weight of the load, as opposed to by the mile. The heavier the load the driver carried, the more profit the driver received from each trip. During testimony at deposition, this particular truck driver admitted to having bypassed the weigh station while knowingly being overweight. The driver was making multiple trips between Oklahoma and Kansas with multiple tractor-trailers traveling in convoys in order to move a substantial amount of rock that was needed for construction on a particular job site. Ultimately, he came around a corner and was unable to stop for vehicle in the roadway due to the fact that he was traveling too fast for the extra weight of the load that was being carried. He skidded into a passenger car with a couple that had four kids. Luckily, the children were not in car since the mother and father died in an abrupt horrific crash. Large trucks on the road can always prove to be a source of danger for other drivers on the roads, but in the case when a truck exceeds a certain weight limit or is over-weight due to excessive cargo the likelihood of a truck accident taking place increases significantly. A truck with excessive cargo can be hazardous since the extra weight can make the truck unable to maneuver itself in an effective manner to be able to stop quickly. The extra weight can damage the tires and brakes of the truck which are extremely important parts of any vehicle. In some cases, the overloading of the tractor-trailer will cause the trailer to start into a sideways shift and slide. In a worst-case scenario the truck well start to go into a skid and then turn over and flip off of a highway. Vehicles which are nearby are in an extremely hazardous position where it may be impossible to get out of the path of the sliding tractor-trailer. Truck drivers understand and realize that they have more difficulty driving while going uphill because the additional weight makes them travel much slower. They understand that when going downhill, the extra weight makes it much more dangerous because the tractor-trailer is pushed forward faster. In certain circumstances, the truck cannot be stopped at all and the truck driver will have to leave the highway to take a safety off ramp specifically designed to stop run-a-way tractor trailers. The tractor-trailer is analogous to a train that is out of control going down the track with heavy weight where it causes the train to jump the tracks. Overloading is dangerous in all circumstances. This is why the FMCSR has limitations on the amount of weight that a tractor-trailer can carry while operating on the interstate and intrastate highways. Weight limitations are required in order to reduce the risk of truck accidents causing wrongful death. This weighing of the truck is known as the Gross Vehicle Weight Rating and it involves weighing multiple components of the truck, including the brakes, suspension, frame, axles and power trains. These rules have been enforced at the state and federal level. The rules prescribe a certain amount of weight a truck is allowed to carry when it is on the road. If a trucking accident takes place due to the negligence of the truck driver in carelessly overloading the trailer, then both the motor carrier and the driver are at fault. The driver’s inability to follow these rules can result in a serious injury or wrongful death. The rules were created for the purpose of safety. When the truck is overweight, danger is imminent. Overloading will often result in catastrophe, injury and death. The Federal government has set up a system of weight stations where tractor-trailers are to be weighed as they travel across interstate roads. Many truckers try to drive on routes that do not have weigh stations or on roads with only a limited amount of weight stations. This is why truck drivers will often avoid turnpikes and interstate highways and travel on more dangerous down routes like US Highway 50. This gives the truck driver the ability to avoid detection of being overweight. Unfortunately, some weight stations have employees who may not cite the driver. Others may give a warning. Many of these stations allow the truck driver to continue driving without unloading the overweight cargo. This allows the driver to continue to travel in an overweight and dangerous condition where injury and death are likely to occur and often happen. The State agencies and the FMCSA along with law enforcement agencies must strictly enforce the rules in order to save innocent lives.

Distracted Driving

The average truck driver spends at least 60 to 70 hours per week on the road traveling across the country. Truck drivers who do not pay attention can become disoriented, where they weave back and forth across lanes of travel improperly moving across lines that are placed there for safety. Truck drivers may become bored after certain periods of time. This is the reason for the fatigue rules on the maximum hours-of-service. Some truck drivers will multitask and perform other activities, such as talking on the phone, texting, eating while driving and using computers and operating message Board’s regarding the place for each delivery. When a truck driver is fully loaded and at maximum weight it is more important that he pay full attention to the road. A number of studies have been done on the ability of truck drivers to stay focused and attentive to the traveled roadway. In one study, they tracked a truck driver over 6 second period of attentiveness while driving. It was found that some drivers can divert their eyes for as long as 4.6 seconds out of a six second period. Utilizing a speed of sixty M.P.H. would result in the driver traveling eighty-eight feet per second. If the driver took his eyes off of the traveled roadway for 4.6 seconds at sixty M.P.H. he would travel 404.80 feet which is longer than a football field. Using this type of thought process, you can see how even a one or two second variation away from the roadway could cause an accident. Another study of truck drivers and distracted driving found that when a truck driver takes the time to dial a cell phone number while traveling on the road the chances of having an accident increased by approximate 5.9 times. When the truck driver attempts to reach for his phone while driving, the likelihood of a trucking accident increases by 6.7 times. When the truck driver looks at a map or a message device through dispatch, it increases the likelihood of an accident by 7 to 8.9 times more than without such activity, respectively. The driver looking at message boards and on-board computers is much more likely to cause an accident. In other words, the truck driver must keep his eyes on the road. Even brief inattention can cause disaster. The Federal Motor Carrier Safety Regulations prescribe that it is unlawful to text while driving. This regulation is extremely important for safety. The FMCSR has published on the Internet an article entitled, Limiting the Use of Wireless Communication Devices. The final rule published under 75 F.R. 59118 prohibits texts by commercial motor vehicle drivers while operating in interstate commerce, and imposes sanctions, including civil penalties and disqualification from operating CMV’s in interstate commerce for drivers who fail to comply with this rule. Motor carriers are prohibited from allowing their drivers to engage in texting while driving. There are a list of disqualifying offenses. Recent research commission by the FMCSR shows that the odds of being involved in a safety-critical event which is a near-crash or unintentional lane deviation event is 23.2 times greater for CMV drivers who engage in texting while driving than for those who do not. The rulemaking under this particular rule is for the purpose of increasing safety on the nation’s highways by reducing the prevalence of or preventing certain truck and bus related crashes, fatalities and injuries associated with distracted driving. These rules are very strict and apply to both the truck driver and their employer and motor carrier who is supervising them in their job duties. The known risk of danger with texting is not acceptable for the driver of a large tractor-trailer. It is a rule that must always be followed. Brake failure Brake failure is a widely known cause of trucking accidents. Some studies place brake failure causal rates at approximately 30% for all trucking accidents. The driver of the tractor-trailer can prevent brake problems by doing pretrip inspections and by inspecting all brake pads and lining at least one time per week. As the brake pads are diminishing the best practices rule would require the motor carrier and truck driver to replace the brake pad and other materials prior to or by the time prescribed by the manufacturers. Drivers are required to do daily pre-trip inspections as well as interval checks after so many miles to assure the safety of the tractor-trailer. When the driver is too lazy to look at the brakes, accidents happen. Semis that are fully loaded are unable to stop abruptly and end up slamming into stopped and slowing traffic in front of them. Brake failure is widely recognized by the trucking industry to be a systemic issue. All mechanics are aware that brakes that have thin brake pads can become overheated. Brakes that have oil and grease may not stop as quickly as brakes that are clean. Brakes are used and wear out rapidly due to excessive weight of the loads of the trucks carry. When the truck driver fails to notify the trucking company that there is a need for maintenance due to his inspection, that truck driver is negligent. Unfortunately, many trucking companies may not allow the truck driver to repair and replace brake pads until the very last moment. This contributes to accidents. Self-employed truck drivers may not replace brake pads and necessary parts due to the fact that the replacement will create an offset of income or a loss to them. In other words, the more often they repair them, the less money they make so it is more profitable to put off the brake replacement until absolutely necessary. The key to safe operation of the tractor-trailer is to use preventative maintenance where parts are replaced before they have a complete breakdown. When drivers do appropriate pretrip inspections and do adequate inspections at certain intervals of miles, there is a much greater chance of minimizing the event of an accident due to maintenance issues.

Independent truck owner as a liability party

The trucking industry has attempted to shift liability and responsibility for decades by hiring independent contractors. As noted in other chapters, the FMC SR makes both the driver and motor carrier responsible simultaneously. The reason that they in the tenant contractors are still used is because of the fact that when an accident occurs, the motor carriers who leases. The independent contractor will attempt to shift responsibility back towards the independent motor carrier contractor. This creates an area for defense attorneys to blame the other company. Independent contractors are somewhat different from an employee. The independent contractor will pay for their own vehicle, maintenance and drivers. They have an independent duty to perform inspections to comply with the FMC SR. Regardless, many motor carriers well have a safety director watch over the independent contractors. This is because the independent contractor is being dispatched, supervised and overseen by the safety compliance officer of the motor carrier that they lease their company to. When evaluating an accident claim. The astute lawyer well study whether the driver and tractor are part of the main motor carrier or from a lease contract arrangement. There are several arrangements that the lease or a leasee and or into when an independent contractor relationship exists. Some of the different arrangements are shown by the following:

  • The subcontractor or the owner-operator pays for the truck and also the majority of the equipment or other related property.
  • The choice of selection of the vehicle and its operation lies in the hands of the owner-operator or the subcontractor and they also have the mobility for marketing in the sense that it is up to their discretion to sign contracts of whatever duration for the transportation of goods and the maximization of profits.
  • A written contract is usually entered into between the independent contractor and the motor carrier providing the cargo for transportation.
  • Rules are created so that the independent contractor will comply with the FMCSR and other regulations and laws.
  • The independent contractor will usually take out separate liability insurance.
  • The independent contractor will perform their own maintenance and repair separate from the normal motor carrier.

Part 376 and the subchapters following part 376 help define the lease arrangement. Part 376.2 states that a person or persons authorized to engage in the transportation of property as a motor carrier under the provisions of 49 U.S.C. 13901 and 13902 are the authorized carrier. Part 376.1 requires that a written lease granting the use of the equipment and meeting the requirements contained in part 376.112 be utilized for all lease arrangements. Moe importantly, the same regulation requires that the independent contractor have receipts for the equipment. It allows the authorized representatives of the carrier may take possession of leased equipment and allows the carrier to give and save all receipts for transportation. Part 376.112 is on written lease requirements. This requires the lease be specified in time and date for the duration of the contract stating when the contract begins and when it ends. The times and circumstances have to coincide with the times for the giving of receipts. Part 376.1(c) requires the lease shall provide that the authorized carrier shall assume complete responsibility for the operation of the equipment during the duration of the lease. Generally, the lease must require the leasing entity to follow the FMCSR with strict compliance for the safety of the general motoring public.

Comparative Fault of Trucking Maintenance Facilities

Truck accidents can be caused by a large number of reasons. A substantial factor in trucking accidents is inadequate truck maintenance. The regulations are written specifically to make the motor carrier and its employees and agents responsible for safety. When motor carriers and truck drivers use independent maintenance shops that do not perform the required safety inspection properly then the maintenance company and personnel may be liable for a portion of the fault when a part causes an accident. The maintenance records of the particular tractor must be examined for a certain period of time in order to study whether or not there was faulty maintenance and repair for the particular the particular tractor that caused the accident. The general scope of maintenance and repair is under part 396 of the FMCSR. This regulation requires that every motor carrier, its officers, drivers, agents, representatives and employees directly concerned with the inspection or maintenance of commercial motor vehicles must be knowledgeable of and comply with the rules of this part. Under part 396.3 it requires that the motor carrier and Intermodal equipment provider must systematically inspect, repair and maintain, or cause to be systematically inspected, repaired, and maintain, all motor vehicles, and Intermodal equipment subject to its control. It further requires that the parts and accessories shall be in safe and proper operating condition at all times. The motor carrier is required to maintain records for every motor vehicle which is under the control of the motor carrier for period of 30 days or more. Part 396.7 is on unsafe operations and forbids a motor vehicle and motor carrier to be operated in such condition as to be likely to cause an accident or a breakdown of the vehicle. Part 396.7 requires that the motor carriers authorized personnel shall declare and mark a vehicle “out-of-service” for any motor vehicle or Intermodal equipment which, by reason of its mechanical condition or loading would likely cause an accident or a breakdown. This particular regulation requires that the motor carrier who receives a citation or inspection with a finding that the motor carrier is in violation of this section, then the than the motor vehicle shall be taken out-of-service. It requires the motor carrier and driver who receive violations found from defects existing during an inspection to immediately repair and correct the defect before continuing on with driving and transportation. The driver and motor carrier must take the motor vehicle or tractor-trailer out-of-service until the repair has been performed. Part 396.11 requires the driver to prepare and write vehicle inspection reports which must be maintained. They are required to prepare a report in writing at the completion of each day’s work on each vehicle operated. The report must cover issues such as brakes, steering mechanisms, lighting devices and reflectors, tires, warns, windshield wipers, mirrors, coupling devices, wheels and rims an emergency at equipment. The regulation is so strong that it requires immediate corrective action. The corrective action must be performed before the driver is allowed the place the tractor back on the road. Part 396.3 requires the driver to perform inspections and become satisfied that the motor vehicle is in safe operating condition. The driver is required to review the last driver vehicle inspection reports. This is because motor carrier often keep a particular tractor operating twenty-four hours a day, seven days of the week. The motor carrier changes drivers when the current driver runs out of time to operate safely. The truck is then stopped at a station. A new driver takes over. That new driver is required to review the past inspection records before driving. This is supposed to help prevent accidents from improper maintenance and repair. The driver is required to sign a report about his or her inspection for deficiencies. Part 396.17 requires the periodic inspections of the tractor and trailer as well as the parts of the equipment. The motor carrier and truck driver are required to keep maintenance records for certain period of time in order to satisfy the government that they have performed the required inspections and completed the required repairs. The regulations even go so far as to require qualifications for brake inspectors. They define brake inspector to mean any employee of a motor carrier or Intermodal equipment provider who is responsible for ensuring that all brake inspection, maintenance, service, or repairs to any commercial motor vehicle meet the applicable Federal standards. The inspecting person must be knowledgeable of and mastered methods, procedures, tools and equipment used when performing an assigned brake service or inspection task. This is so that the brake inspection can be performed safely and adequately by someone with sufficient knowledge to repair the broken part or break. In trucking cases where the tractor-trailer has had a catastrophic accident caused by inappropriate faulty equipment, the maintenance company or personnel may become additional defendants in the case. The study of the maintenance records for a past period of time will tell if that particular tractor has a history of faulty repair and maintenance, which caused the tractor to improperly operate. Remember that the driver who is operating these massive vehicles has a difficult enough time driving without adding bad brakes or tires to the scenario. The faulty equipment enhances the chance that the driver will have a bad accident. It can all be prevented through compliance with the FMCSR and safely inspecting all equipment at periodic intervals so replacement can be made before an accident occurs.

Comparative Fault of Truck and Trailer Manufacturers

Manufacturing defects play a large role in cases against motor carriers where a secondary problem has arisen from the improperly produced or designed part. There are been many lawsuits by plaintiffs across the country where brakes have been an issue. Brake recalls come into effect at a point in time when it is too late to prevent the accident. The notice of the recall may not have been set out soon enough. The accident happened before anyone realizes that they should not be driving at all due to the defective parts. Manufacturers can prevent the accidents by recalling parts that are known to be defective early rather than waiting for government mandated recalls. The motor carriers can likewise prevent the accidents by staying in contract with all manufactures for their trucks so that recalls can be properly received on a timely basis. In recent times, Toyota has been forced to recall thousands of vehicles. This was only after the government found product defects and fined the company. Manufacturing defects occur with all sorts of manufacturers. The truck manufacturers may find that one of their parts suppliers has a defective part. Overall, it takes a keen eye to look for the final part which may have been the sole cause of the accident. Trucking manufacturing companies have a great amount of lobbying efforts going on. Those lobbyists spend time in Washington DC trying to secure favorable laws which allow a lesser safety standard. Lobbying to protect manufacturers has gone on as long as government has existed. When the legislators create weaker laws that protect the manufacturer instead of the general public, lives are lost. Accidents may occur due to defective parts that have not been replaced in a timely manner. Sometimes the trucking case may be complicated due to the manufacturing defect. When the manufacturing defect is a very small part of the overall equation for causation, it may be better to look to the motor carrier and its driver for failing to properly inspect and repair broken equipment. Ultimately, it is the duty of the motor carrier and its driver to inspect the vehicle and make sure that the tractor-trailer is safe to operate without defective equipment or bad brakes. The motor carrier and its maintenance departments are in the best place to inspection the vehicle and search for production recalls. The motor carrier is aware that taking the tractor out-of-service will cost hundreds or thousands of dollars of lost revenue and profit. This is why the motor carrier should ultimately be responsible to the injured victim. Lawyers and experts investigating an accident must make a thorough inspection of maintenance records as well as potential parts recalls for defective parts of the tractor-trailer. With the internet, this can be done through a search looking for key parts and manufacturers. The decision on whether to bring a manufacturing claim should only be made after studying the basic root causes of how the accident came to happen. When the root cause is a defective part, the manufacturer should be added to the lawsuit.

© Bradley A. Pistotnik, 2014