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The Basics of Handling Trucking Injury Cases

Preparation and investigation are crucial for properly handling trucking cases. It is important for the lawyer of a person injured by a negligent trucker to subpoena records from former and subsequent employers, driver medical records, cell phone records, credit card statements, safety consultants, DOT records, and tax returns. It is critical to discover records relevant to the driver’s training, abilities and past driving history, including applications for employment, incident and training reports, log violations or falsifications, disciplinary actions and termination. If the driver was terminated from a prior job and deemed unsuitable to drive for that company, documents evidencing that decision can be used to demonstrate that the defendant trucking company was negligent in hiring the driver. It is beneficial to move forward from the date of the accident and subpoena the records of all subsequent employers of the driver as well. The driver’s DOT records, medical records and cell phone records must also be subpoenaed.

Any and all records generated or maintained by the DOT on the defendant trucking company should be subpoenaed, as such records contain noted safety violations committed by the trucking company and/or it’s drivers. Many trucking companies hire independent consulting firms to handle DOT compliance issues, log reviews and general safety matters. These records should be subpoenaed. Fueling and maintenance records should be compared with driving logs to demonstrate log falsifications and violations on behalf of the driver as well as negligent supervision on behalf of the trucking company.

In heavy trucks, a black box recording device is usually incorporated into the driver’s electronic control module. The data recorder (ECM), which is activated whenever a hard braking event occurs, can provide information concerning vehicle speed, throttle position, brake application, clutch status, changes in the vehicles velocity due to acceleration or deceleration (“delta-v”), mileage, average driving speed and maximum recorded speed. A number of trucking companies also use global positioning satellite technology, which can yield detailed information concerning the position and movement of the truck.

A lawyer, experienced in trucking accidents, will hire an accident reconstructionist or engineer early before the scene is altered or the vehicles are repaired or scrapped. The reconstructionist/engineer should be sent to inspect the scene and the vehicles and have the contents of any of the vehicles electronic “black boxes” downloaded and preserved.

The experienced trucking lawyer should send formal discovery requests and Freedom of Information Act requests to government agencies such as DOT, ICC, OSHA and the Georgia Department of Motor Vehicles. A “spoliation” letter (example spoliation letter) should be sent early to the trucking company defendant to require preservation of evidence.

All motorists are required to know the rules of the road. Truck drivers, however, are in a special situation. They are professionals. They are paid to drive and the vehicles they drive are complex pieces of machinery. Trucks are much heavier than automobile and passenger vans. They are more difficult to maneuver and require a much greater distance to stop. When trucks are involved in motor vehicle collisions, serious bodily injury or death often results. The purpose of the Federal Motor Carrier Safety Regulations is to create uniform standards of travel and thereby promote public safety by helping to prevent truck collisions.

The FMCSR has been adopted by the State of Georgia. Part 390.3(e), requires that all motor carriers, their employees and drivers, shall be knowledgeable of and comply with the FMCSR. This section requires that carriers instruct each of their drivers regarding all applicable rules and regulations of the FMCSR. Courts throughout the United States have consistently held that the violations of provisions of the FMCSR by a driver and/or his carriers can form the basis for a negligence per se jury instruction or negligence as a matter of law.

Additionally, courts have recognized that punitive damages may be warranted against both the driver and the company when the company blatantly ignores safety provisions of the FMCSR and this conduct leads to a tragic collision. Trucking companies are required to have safety programs in place to ensure compliance with various safety requirement contained in the regulations. The FMCSR requires diligence on the part of the trucking company, not only when it hires the driver, but also during the time when it employs the driver to operate a vehicle. The trucking company must obtain each drivers report of accidents and violations. The trucking company supervision obligations under the FMCSR also include closely monitoring the hours that a driver actually drives a motor vehicle to ensure that the driver files correct logs and does not cheat and work in excess of the maximum number of hours permitted. The FMCSR requires that all trucking companies shall systematically repair and maintain, or cause to be systematically inspected, repaired and maintained all motor vehicles subject to it’s control. This general duty of a trucking company to maintain it’s vehicles in good working order includes a duty to maintain repair records and inspection reports, the duty to maintain driver reports, which are to be filed by a driver each day on each vehicle driven and a duty to make periodic inspections of each vehicle. The failure to maintain a vehicle in proper working order and in a safe condition can be the basis for a compensatory damage claim against the trucking company. A trucking company that breaches this duty to maintain its vehicles in a safe condition can also be subject to a claim for punitive damages for putting a defective vehicle on the roadway.

The Federal Motorist Carrier Safety Regulations codify specific trucking safety rules. FMCSR 392.3 prohibits any driver from operating a truck when his ability or alertness is so impaired through fatigue illness or any other cause, making it unsafe for him to drive. FMCSR 392.4 prohibits the use of any amphetamines or “pep pills” while driving and 392.5 prohibits any use of alcohol by a driver within four hours before going on duty. FMCSR 392.7 requires a driver to make pre-trip inspection of his vehicle to determine that the specified parts and accessories are in good working order. Records of these inspections must be kept. 392.8 requires that a driver inspect the emergency equipment on his vehicle to make sure it is in good working order for driving. 392.9 makes the driver responsible for making sure that his vehicle has been properly loaded and also provides that a driver is to examine his load and the load securing devices within the first 25 miles after beginning a trip and thereafter every 3 hours or 150 miles of driving, whichever occurs first. Section 392.14 requires using extreme caution in the operations of the truck during hazardous conditions such as those caused by the snow, rain, etc., which adversely affect disability or traction. This section states that speed shall be reduced when such conditions exist. The commercial driver’s license manual indicates that wet roads can double stopping distance and speed should be reduced by 1/3 e.g. slow from 55 to about 35 miles per hour on a wet road. Truckers routinely do not follow these instructions, as is obvious whenever you drive on an interstate.

Once a decision was made by our government to allow the extremely dangerous vehicles commonly referred to as “semi’s” or tractor trailers on our nations highways, the FMCSR was written to promote safety and reduce the risk of truck collisions. It is common for trucking companies and their drivers to routinely ignore or violate the safety provisions of the FMCSR in order to maximize profit. When that occurs, and a member of the general public is maimed or killed as a result, a skilled plaintiff’s counsel, who is well-versed in the FMCSR, can ensure that justice will prevail. Thus, a citizen injured by a negligent trucker should hire a lawyer who has demonstrated knowledge, training and experience in truck litigation.

Trucking Licenses

According to government investigators, fraudulent licensing schemes have been revealed in 24 States per the Department of Transportation. Consequently, unskilled drivers are sometimes operating dangerous commercial vehicles on the nation’s highways causing death, injury and property damage.

NAFTA

Mexican trucks operating under NAFTA frequently are far less safe than U.S. trucks. 57 Mexican truck companies have been given full access to U.S. highways under the North American Free Trade Agreement.

Cell Phone Usage

Cell phones are frequently the cause of tractor trailer wrecks. One study by the national institute for health has shown that talking on the cell phone causes drivers to be less safe equivalent to having two or three alcohol drinks before driving. Trucking accident lawyers know to subpoena cell phone records which can show whether a cell phone was in use at the time of a wreck and also can show the speed of the truck over time by comparing the location of cell phone calls and cell phone towers along the route of the trucks call from origin to destination. Some trucking companies have safety rules forbidding the use of cell phones while driving a company truck. Cell phone with hand free technology is safer. However, even using these phones causes much less safe driving because drivers are distracted by the content of the phone call.

Many good companies, such as Waste Management, have in-house safety videos and manuals for drivers. These companies require driver orientation and that drivers pass safety tests, before drivers are allowed to drive company vehicles. Experienced trucking accident lawyers know to subpoena these video tapes and manuals to document when drivers are violating the companies own appropriate safety rules and safety standards.

Tractor Trailer Wrecks/Safety Statistics:

  • 5,000 people died in 2006 in accidents involving large trucks. 106, 000 people were injured.

  • Of the deaths 85% of them were not located in the truck but instead in vehicles crushed by large tractor trailers.

  • Large trucks are nearly twice as likely to be involved in a fatal accident as passenger cars.

  • The high fatal involvement rate is caused by the huge disparity in size and weight between large transfer trucks and passenger cars, vans and SUV’s.

  • The National Highway Transportation Safety Administration, NHTSA, estimates that almost half of accidents involving large trucks may be the result of driver fatigue resulting in driver error.

  • Research by the Insurance Institute for Highway Safety has found that truck drivers behind the wheel for more than 8 hours have twice the risk of being involved in a wreck.

  • In a survey taken in 2005, 20% of truckers reported falling asleep at the wheel at least once during the previous month.

  • Transportation experts estimate up to a third of all commercial trucks on the highways exceed allowable weight limits.

  • The Department of Transportation believes that 15% of fatal truck wrecks involve overweight rigs.

There are 700,000 registered motor carriers. The Federal Motor Carrier Safety Regulations create a higher standard of care than State law: 49 CFR 392.2. Inexperienced lawyers handling trucking cases may not know of this higher standard of care which is designed to protect the motoring public. With commercial motor vehicles weighing over 26,000 pounds, the safety duties of the driver and the owner of company are the same. Laws state that if you own a rig as an independent owner/operator and lease it to a large company, you are an employee of the enterprise you lease the vehicle to. Thus, the driver and the company are liable to injured parties. Federal motor carriers are required to hire qualified drivers. Sometimes, companies don’t do their homework and hire drivers who don’t have correct commercial driver’s licenses or a record of negligent driving. Some lawyers are not aware that the CDL manuals require a speed reduction of one-third in bad weather. More commonly than not, truckers do not reduce their speed at all in bad weather, even though their time to react and stopping distances are markedly increased.

Trucking companies have experienced law firms, which represent them on retainer. Frequently, a “rapid response team” of lawyers and engineers will go to the scene of a truck wreck and amass all of the evidence, including taking measurements, photographs and interviewing witnesses, etc. To level the playing field, an injured person needs an experienced plaintiff’s lawyer who will conduct a rapid investigation of the truck and accident scene before the evidence is destroyed or dissipated by time and weather.

Lawyers representing persons injured by trucks must know about the Federal Motor Carrier Safety Regulations, especially the rules concerning drugs and alcohol, safety and fitness, minimum levels of financial responsibility, qualifications of drivers, hours of service, inspection repair and maintenance.

Plaintiff’s lawyers need to adequately develop needed expert testimony. Inexperienced lawyers may choose the wrong expert or miss a critical expert such as in conspicuity and human factors. Experienced plaintiff lawyers must also be able to define simple math terms and engineering terms and engineering concepts related to air brakes.

Some trucks now have advanced state of the art technology in use. Electronic Control Modules, ECM, store engine data. There is an affirmative duty to disclose the data during litigation as it is electronically stored information under “E” discovery rules in federal courts and some state courts. Some trucks have endcap cameras. Most trucking companies have dispatch and maintenance departments which store records and a qualified plaintiff’s lawyers should know to obtain these records. These departments are the hub of information for trucking companies.

Some plaintiff’s lawyers do not know that there is separate insurance for the tractor and the trailer as well as excess insurance coverage.

A passenger vehicle doesn’t stand a chance against an 18 wheeler weighing more than 80,000 pounds. More than 2 million tractor trailers are registered to drivers in America. The Federal Motor Carrier Safety Regulations Title 49, part 353-399 govern all vehicles engaged in interstate traffic. Most states have adopted FMCSR as State Law.

Drivers and their employers must keep log books, fuel receipts and other trip documentation for six months and vehicle maintenance records for a year. Some dishonest trucking companies or drivers alter or forge records, especially after a wreck with respect to the number of hours driven. Some truckers ignore Federal Regulations limiting the number of hours they may drive. This can result in a wreck.

Truck drivers can be held liable for personal injuries or wrongful death caused by their negligence and their failure to use due care in the operation of their trucks. Employers are liable for the negligence of their employee truck drivers.

Employers may be directly liable if they hire untrained or incompetent drivers or if they had reason to know the driver was no longer qualified.

Sometimes a truck can be loaded by a third party who may be liable for negligent loading, if their actions cause a load to shift or fall from the truck causing injury.

If the truck was defectively or not properly designed, the manufacturer of the truck or trailer or the manufacturer of the component parts may be liable for the negligence and for product liability.

Trucks involved in interstate commerce will have a minimum of $750,000 in liability insurance and sometimes even more. In certain situations, if hazardous materials are being transported, larger limits of liability insurance coverage is required by federal law.

Some common factors resulting in truck accidents include:

  • Rushed deliveries

  • Driver fatigue, exhaustion, lack of sleep

  • Improperly trained or inexperienced driver

  • Driver under the influence of drugs or alcohol

  • Aggressive driving

  • Driver with a history of dangerous or reckless driving

  • Driving or speeding to too fast for road conditions

  • Oversized or overloaded vehicles

  • Unsafe reflector lights or other safety equipment on vehicle poorly maintained

  • Poorly maintained or adjusted brakes

  • Poorly maintained vehicles

  • Disabled ABS brakes

  • Driver error

  • Blind spots

  • Missing mirrors

  • Driver stress

  • Inattention

  • Backing carelessly

  • Shifting loads

  • Spilled loads

  • Sudden stops

  • Overturning trucks

  • Failure to inspect

  • Driver distracted by cell phones or on board computers

  • In the case of trucking wreck, defendants are liable for economic losses including:

  • Medical expenses

  • Lost earnings

  • Burial costs

  • Damage and loss of property

  • Cost of repair or replacement

  • Cost of obtaining substitute domestic services

  • Loss of employment

  • Loss of business or employment opportunities

  • Non-economic losses include:

  • Pain

  • Suffering

  • Emotional distress

  • Loss of society and companionship

  • Loss of consortium

  • Loss of enjoyment of life

  • Loss of sexual relations

  • Loss of enjoyment

  • Disfigurement

Also, plaintiffs are entitled to recover for aggravation of pre-existing conditions.

Punitive damages can be awarded if the jury finds clear and convincing evidence that defendant’s conduct was done with willful and conscious disregard for the safety of the plaintiff or others. In cases where these damages are available, they provide the plaintiff’s attorney with a powerful weapon if the attorney gathers the appropriate evidence. Key factors around punitive damages include: how bad the defendant’s conduct is, the wealth of the defendant as well as statutory or constitutional limits on the amount of punitive damages. Intentional driver log violations, overhours, rushed delivery cases and intentional disabling of safety devices such as ABS brakes are examples of where punitive damages may be sought.

Damages can be awarded for brain injuries including skull fractures, diffuse axonal injuries, concussions and contusions, coma, coup- contra-coup and hematomas and seizures. Traumatic brain injures create inattention, forgetfulness, and memory problems. In addition, some mild brain injuries can cause irritability, depression, fainting spells, seizures, loss of eyesight and hearing loss.

Trucking accidents can result in several types of spinal injuries including quadriplegia, also known as tetraplegia. This injury can result in loss of feeling and function of the arms and legs, severe pain, loss of bowel and bladder control, muscle spasm, sexual dysfunction, loss of fertility as well as shortened life span. Quadriplegia occurs when the spinal cord is severed from the shoulder and neck area. The result stops mobility and dulls sensation and motor function of the lower body. This often results in respiratory conditions requiring the patient being mechanically ventilated on a machine, as well as digestion and excretion problems.

Herniated Disc/Back Injuries

Trucking wrecks also can cause herniated disc and bulging discs. If a disc is forced out of place in a trucking wreck, it places great pressure on the human spinal canal. Often the herniated disc victim, will experience severe pain in their extremities including leg pain and arm pain. Common complaints of bulging disc injuries include back pain, neck and shoulder pain. Many people who are involved in tractor trailer crashes are immediately not aware of their injury because they are in shock and their body has produced adrenaline. Adrenaline can cause a feeling of euphoria that covers up serious injuries. Sometimes, traffic trailer wrecks can cause facet-joint syndrome and chronic pain. If the facet joints get inflamed due to a tractor trailer wreck, arthritis can develop into chronic pain syndrome. One of the most common symptoms of facet joint syndrome is lower back pain.

Burns

Some trucking wrecks cause burns because fuel tanks are damaged and fuel is leaked and ignited. This is a major cause of explosion. The average medical expense for a burn victim is around $200,000.00. Burn injuries are a major cause of disfigurement and physical defects. Burn injuries are a major problem because of their life long emotional effects. Many tractor trailer or trucking wrecks result in wrongful death. If a driver of a tractor trailer causes the death of the other vehicles driver, then the driver and his employer are responsible for damages, both economic and non-economic.

Damages under wrongful death include:

  • Loss of income

  • Loss of financial support

  • Pain and suffering

  • Medical expenses

  • Loss of guidance, moral support, society, consortium, companionship

  • Loss of affection

  • Loss of love

  • Loss of training and counsel

  • Funeral bills

Georgia Trucking Rules

The Georgia Legislature in the 1930’s created the public service division. In the 1970’s the Public Service Commission adopted the Federal Motor Carrier Safety Rules, which are enforced by the Georgia State Patrol. In 2005, enforcement was moved to the Motor Carrier Compliance Division of the Department of Public Safety. Since 1972, Georgia has adopted Federal Motor Carrier Safety Regulations. The safety rules apply to both interstate and intrastate commerce. The CMV safety rules apply to vehicles over 10,001 pounds or 8 or more passengers for compensation. Trucking documents under Georgia law and the Federal Motor carriers safety regulations require that records be kept for three months for driver post inspection reports, six months for log books, three years for the accident register and three years for medical examined driver record and violation reviews.

An 80,000 pound tractor trailer striking a 2,000 pound passenger car can have devastating effects and cause devastating personal injuries or death. Collisions of this sort require the injured party and their family to obtain the best possible experienced counsel. E. Marcus Davis has a successful track record in handling trucking litigation. Call us for a free consultation and we will be happy to explore whether our firm is the right fit for you and your family to ensure that you obtain complete compensation for your injuries or loss of life. We work on a contingency fee basis and fees are charged only if we win your case.

 

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