Brad Pistotnik Law
Abogado El Toro

Truck Accident Factors Brad Pistotnik Law

Vehicular accidents are the most crucial causes of lifetime injuries, and in many cases fatalities, in the United States. Hundreds of accidents occur every day. A majority of these accidents cause injuries ranging from minor to devastatingly serious, and thousands of families are affected every year. The consequences of these accidents are bound to multiply in magnitude when the vehicle involved is a truck—especially big-rigs, also known as tractor-trailers or eighteen-wheelers. Accidents that occur with commercial trucks are generally far more catastrophic than those involving other vehicles. The trucking industry in the United States is massive. In 2011, it generated $603.9 billion in gross weight, which represented 80.9 percent of the total freight bill in the United States. According to the American Trucking Association, trucks are responsible for moving 67 percent of the country’s freight requirements. A huge number of companies are involved in the US trucking industry. It is estimated that as of December 2010, the total number of for-hire carriers was 408,782, with private carriers totaling an astounding 662,544, and various others totaling 168,680. In 2013, the trucking industry used a massive 523 billion gallons of diesel fuel. A commercial truck at full load is an incredible eighty thousand pounds. In comparison, the average weight of a passenger vehicle is 2,500 to 3,000 pounds. Commercial trucks are massive in terms of capacity, and you can only imagine the amount of damage they cause. The large weight and bulkiness of these commercial trucks restrict the process of turning and moving the truck. This makes them difficult to drive. Even the slightest error on the driver’s part can cause the truck to lose balance and control and can result in a devastating accident. One type of accident that occurs with trucks is an under-ride accident, where a vehicle slides beneath a large tractor-trailer. The consequences of these accidents are far more damaging and dreadful than are depicted in fast-paced Hollywood action movies. There is no doubt that truck drivers are trained to be far more cautious while driving than the average passenger car driver, but the massive loads and size of the trucks cause accidents every day on the roads. Sadly, it would be almost impossible to eliminate truck accidents, so one must always drive with the utmost caution. A major contributing factor of truck accidents is the condition of the roads in the United States. If you have had the opportunity to drive across America or even if you have traveled beyond a few state lines, you must have noticed the worsening conditions of the roads. In 1919, a convoy was commissioned by the War Department to travel from the East Coast to the West Coast to build roads. As of today, the Interstate Highway System has laid 42,795 miles of roads all over the country. These roads were not built to last forever. The roads today in the United States have cracks, potholes, and are in rough condition. Initially, the road network was excellent for cars because trains transported most freight. The railroads performed this job to the best of its ability but the time consumed by it proved unaffordable. This is where the trucks came in, as many companies quickly acknowledged that the interstate was a faster option. With the introduction of trucks on roads, companies had more control over the timing of the deliveries, and they could provide prompt deliveries. However, the road planners failed to predict the importance of trucking as a mode of shipping and thus the damage perpetrated by trucks on American roads was quick. The creation of potholes is a slow and gradual process. Water finds a place underneath the asphalt when the roads are not adequately sealed and settles into the small spaces between the pavement and the material that is used for the base of roads. The compact water pocket gets pushed down as trucks drive over the roads and, since the water has no other place to go, due to the gravity exerted on it, the water goes deep down and the dirt is forced out in this manner. This process creates a large space beneath the pavement and with the passage of time, the air/water pocket gradually depletes the top layers of the roads and they begin to crack, eventually causing bigger and bigger holes. Building roads is a complex process as the balance between the initial construction cost and the continued maintenance of the roads has to be considered. For this particular reason, roads should be constructed with a concrete foundation. This would help reduce highway accidents by reducing maintenance costs and eliminating cracks, holes, and defects in the roadway surfaces. Only then would roads not require hefty maintenance. If roads were given a solid foundation, the cracking of the surface would occur less frequently. However, in order to construct such durable roads, a large amount of money would have to be invested initially. Engineers who plan for the construction of roads have the responsibility of predicting exactly how much the roads will be used and for what purpose. This prediction is difficult, especially for areas where the population and manufacturing facilities are growing. In those areas, the amount of vehicles increases and the load being carried on the roads rises, which increases the cost of maintenance and decreases the life of the roads. It is important to keep the growing needs of people and vehicles in mind when constructing roads and to consider the types of vehicles, especially heavyweight vehicles, that may be using the roadways. Other contributing factors of truck accidents are driver issues. Those may include drug and alcohol use while driving, carelessness, and fatigue and exhaustion caused by long hours of driving. The general public that shares the roads with commercial trucks is largely not aware of the needs of such large trucks, such as no-zones, off-tracks, and the stopping distances required by such large vehicles. This lack of information can contribute to collisions between trucks and other vehicles. Many large trucks carry hazardous materials. When these trucks are involved in accidents, the danger to the traveling public is increased because of the dangers of volatile and hazardous materials being expelled. The US federal laws and regulations known as the Federal Motor Carrier Safety Regulations (FMCSR), which are administered by the Department of Transportation (DOT), along with its adjunct administrative agency, the Federal Motor Carrier Safety Administration (FMCSA), were developed to prevent truck drivers from operating over interstate and intrastate highways for more than a certain number of hours per day and per week. The regulations issued under 49 C.F.R. §§ 380 through 399, which are enforceable pursuant to the Motor Carrier Act, PL 96–296, 1980 S 2245, and PL 96–296, July 1, 1980, 94 Stat 793.49 C.F.R. § 390.3(e)(1) & (2), provide that every driver and employee shall be instructed with regard to and shall comply with all applicable regulations contained in the FMCSR. Regulation 49 C.F.R. § 390.5 provides that “motor carrier” means a for-hire motor carrier or a private motor carrier. That term includes a motor carrier's agents, officers, and representatives, as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers. Regulation 49 U.S.C. § 14704(a)(2) provides that, “A carrier…is liable for damages sustained by a person as a result of an action or omission of that carrier…in violation of this part.” Regulation 49 U.S.C. § 14101(a) provides that, “A motor carrier shall provide safe and adequate service, equipment and facilities.” The FMSCRs are located at 49 C.F.R. § 380 et seq. The FMCSRs and the MCA, specifically under the section 49 C.F.R. § 391.1(a) and (b) state, “(a) The rules in this part establish minimum qualifications for persons who drive commercial motor vehicles, as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualifications of drivers. (b) A motor carrier who employs himself/herself as a driver must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers.” Regulation 49 C.F.R. § 390.11 imposes duties on the motor carrier to follow the minimum duties and industry minimum standard of care required by the FMCSR and states, “Whenever in part 325 of subchapter A or in this subchapter 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.” Many motor carriers violate the minimum duties and standards of care set forth under 49 CFR § 395.8 by failing to adequately document the driver’s record of duty status. They violate the minimum duties and standards of care set forth under 49 CFR §§ 395.1–395.3 by requiring drivers to work in excess of the maximum hours and days allowed by federal laws and regulations. They violate the regulations under 49 C.F.R. § 392.3 by requiring drivers to operate a commercial motor vehicle while the driver’s ability or alertness is so impaired, or so likely to become impaired through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. Motor carriers sometimes fail to set up adequate safety systems, which then causes their drivers to operate on time deadlines that do not adhere to the hours-of-service regulations. They violate the minimum duties and standards of care set forth under 49 CFR § 383.113 by failing to have adequate safety management controls in place that would require and provide that drivers have the skills required under this regulation. More importantly, they violate these minimum duties and industry standards of care as set forth under 49 CFR § 391.11 and 391.23 by failing to properly qualify the driver, failing to obtain the federally required information on the application for employment of the driver, which requires an investigation of the driver’s safety performance history with the DOT-regulated employers during the preceding three years and that further requires the prospective motor carrier to investigate, at a minimum, the information listed in this paragraph from all previous employers of the applicant. Another significant problem with the motor carrier exists where they violate the minimum duties and industry standards of care set forth under 49 CFR § 391.31 by failing to properly road test their drivers. This regulation requires that a person shall not drive a commercial motor vehicle unless he/she has first successfully completed a road test and has been issued a certificate of driver’s road test in accordance with this regulation. It further requires that the road test be of sufficient duration to enable the person who administers it to evaluate the skill of the test taker at handling the commercial motor vehicle, and, at a minimum, the driver who takes the test must be tested while operating the type of commercial vehicle the motor carrier intends to assign to the driver, including the evaluation of pretrip inspections required by § 392.7, which include coupling and uncoupling, use of controls and emergency equipment, passing, turning, braking, backing up, and completion of the road test form to rate the performance of the driver, which is also signed by the tested driver. Failure by the motor carrier to implement these duties and standards is an intentional and reckless failure to follow federally required safety systems. The failure to comply with the safety standards leads to death and injury of the motoring public. A number of government and private studies of motor carriers and drivers has led to the conclusion that many motor carriers and their drivers fail to comply with hours-of-service regulations and cause the drivers to work longer than permitted. Working longer than permitted causes fatigue, which leads to accidents. The USDOT and the FMCSA conducted a safety study entitled the Comprehensive Safety Analysis (CSA), which was concluded in 2009 and then published in 2010. This study analyzed the FMCSA’s Safety Challenge. The basic thesis of the study was that, “A growing carrier population and stable/unchanging FMCSA resources call for a more efficient and effective program.” The study ultimately developed, “The Response CSA 2010.” This included the development of a proactive safety program based on a scientific model that would do the following:

  • Promote accountability and strong enforcement as to priorities;
  • Extend FMCSA’s reach to more carriers and drivers with safety problems;
  • Improve FMCSA’s ability to identify safety problems earlier through better use of data.
This study was based in six states, including the state of Missouri, where 50 percent of the motor carrier population is covered. A system known as BASICS was developed. This acronym stands for the following: Behavior Analysis and Safety Improvement Categories or BASICs Unsafe Driving; Fatigued Driving; Driver Fitness; Controlled Substances/Alcohol; Vehicle Maintenance; Improper Loading/Cargo; Crash Indicator. The CSA 2010 Comprehensive Intervention Process provides more tools to reach motor carriers and compel safety compliance before crashes occur. This is done through a system of warning letters and investigations (including on-site comprehensive investigations) to get enhanced compliance review. It includes taking corrective actions requiring motor carriers and drivers to be taken Out-of-Service (OOS) with orders by the FMCSA. It further includes notices of violations to the motor carrier, notice of claims to the motor carrier, and provides for a Cooperative Safety Plan. In essence, the FMCSA and this program attempt to predict crash indicators through violation of safety systems and then study the what, why, and how of the violation history of motor carriers to determine why the system is breaking down. It then provides a procedural system for the motor carrier to address their breakdowns and improve their safety record to prevent further accidents from occurring. One method of promoting safety and making drivers comply with hours-of-service regulations is by the installation of electronic recorders onboard all commercial trucks so that drivers comply with the FMCSR. The recorders erase the need for handwritten logbooks, which can be easily fabricated. Many truck drivers carry two sets of books—one for actual time and one to show law enforcement officers when they are stopped for roadside safety checks.

Commercial Driver’s License

Truck drivers in the past would employ the use of multiple driver’s licenses from various states to avoid license suspension and other penalties. However, this changed with the enactment of the Commercial Motor Vehicle Safety Act of 1986. That law generally required that no person who operates a commercial motor vehicle shall at any time have more than one driver's license, except during the ten-day period beginning on the date such person is issued a driver's license and except where a state law enacted on or before June 1, 1986, requires such person to have more than one driver's license. This act greatly improved safety with motor carriers and truck drivers by implementing a safety-related rule that a commercial motor vehicle operator may not have more than one license, which allows government and state agencies to prevent bad truck drivers from operating on our nation’s highways with multiple licenses. It has helped greatly in increasing uniformity among state licensing programs. With this act, the driving record of a driver can be checked promptly.