Common Unsafe Conduct

We believe that the American market place depends on the commercial trucking industry. According to the American Trucking Association, there are over 3,000,000 commercial truck drivers and over 500,000 commercial carriers in the United States. We believe that most of these drivers and carriers are safe. However, there are an unfortunate amount of unqualified drivers working for unsafe companies that put the motoring public at risk. The American public should not have to suffer because of the these unsafe companies and drivers. We provide experienced services to victims of the trucking industry. We have handled hundreds of cases involving virtually every type of unsafe conduct, including:

Poor Safety Management Controls. We have seen too often where commercial carriers failed in their fundamental duty to operate their company safely. A commercial carrier has a responsibility to have proper safety management controls, i.e., systems, policy programs, practices, and procedures, to ensure compliance with the FMCSR in order to advance the safety of the transportation system, and to reduce accidents resulting in fatalities, injuries, and property damage. FMSCR § 385.3. When a commercial carrier does not have the proper safety management controls in place, the motoring public is put at risk.

Poor Safety Ratings. The Federal Motor Carrier Safety Administration conducts inspections of commercial carriers to determine the safety fitness of motor carriers, assign safety ratings, and direct commercial carriers to take remedial action when required. FMCSR § 385.1 There are four safety ratings that a commercial carrier can have: (1) Satisfactory; (2) Conditional; (3) Unsatisfactory; and (4) Unrated. A conditional safety rating means a motor carrier does not have adequate safety management controls in place which could lead to violations of the FMCSR. An unsatisfactory safety rating means a motor carrier does not have adequate safety management controls in place which has resulted in violations of the FMCSR. Conditional and unsatisfactory safety ratings are substandard. A substandard rating is clear evidence that the commercial carrier is not meeting its responsibility to operate safely. We are seeing an increase in the number of carriers with substandard safety ratings. Operating with such a derelict fashion is a tragedy waiting to happen and shows a disregard for the safety of the motoring public.

Improper Hiring - Failed Background Investigation. Before a carrier allows an individual to drive, it has an affirmative duty to determine if the individual is "qualified." FMCSR § 391.11 provides that to be initially qualified to operate a commercial motor vehicle, the driver must by reason of experience and/or training, be able to safely operate the vehicle. Additionally, all drivers of commercial motor vehicles shall have knowledge and skills necessary to operate a commercial motor vehicle safely. FMCSR § 383.110. The law requires that a commercial carrier must investigate the applicant's background to ensure that he is not dangerous. FMCSR 391.23. The investigation helps a commercial carrier ensure that the drivers that they employ have the experience and/or training, as well as knowledge and skills necessary to operate a commercial motor vehicle safely. The investigation includes the requirement that the trucking company inquire into the applicant's driving record during the preceding three years to the appropriate agency of every state in which the driver held a license. The investigation must include inquiring into the driver's employment history as a driver. The investigation of the driver's employment record may consist of personal interviews, telephone interviews, letters, or any other method of obtaining information that the carrier deems appropriate. A failed application process and inadequate investigation can lead to a commercial carrier hiring an unqualified driver. Unfortunately, more and more commercial carriers that we look into do not properly investigate driver applicants.

Improper Hiring - Overlooking Dangerous Conduct. We have seen carriers that hired drivers even when their investigation found evidence of dangerous driving habits. The reasons given for such conduct range from the fact that the driver was a friend to the lack of qualified candidates for employment. The trucking industry suffers from a high employment turn-over rate for drivers. Often, commercial carriers in need of drivers experience a shortage of qualified candidates for employment. This leads to a bad hire. A bad hire, in turn, leads to dangerous roads.

Physical Qualifications. We have seen cases where a safe driver is turned into a dangerous one because of a physical condition from which the driver suffers. FMCSR §§ 391.41 through 391.49 contain the physical qualifications necessary to drive most commercial vehicles. These provisions in general require a driver to have adequate vision in both eyes, adequate hearing, be free from a psychiatric disorder, epilepsy, high blood pressure, insulin dependent diabetes, certain heart conditions, have adequate use of his or her extremities, and have no current clinical diagnosis of alcoholism. In addition to meeting the original physical requirements and physical examination section of the regulations, each driver is required to have a physical examination and obtain a new medical examiner certificate at least every 24 months. Unfortunately, doctors working for the commercial carrier are too quick to hand out medical cards to commercial drivers with serious medical conditions.

Disqualified Driver. We have seen an increase in the number of drivers that are operating while they are disqualified from driving a commercial vehicle. A commercial driver who is disqualified shall not drive a commercial motor vehicle and a commercial carrier shall not require or permit a driver who is disqualified to drive a commercial motor vehicle. FMCSR §§ 391.15, 383.5 and 383.51 govern the disqualification of a driver. A conviction for a disqualifying offense automatically disqualifies a driver from driving for the period specified in the FMCSR. Disqualifying offenses include driving under the influence, leaving the scene of an accident, a felony, some serious traffic violations, violations of out-of-service orders, and certain violations of railroad-highway grade crossings. Most safety directors that we depose can not enforce the disqualification because they do not understand the applicable FMCSR.

Speeding. Some commercial carriers consistently allowed their drivers to operate dangerously by turning a blind eye to the fact that their drivers are speeding. In meeting their obligation to operate their company safely, commercial carriers must give tremendous consideration to speeding violations by their drivers. As part of the review of a driver, FMCSR § 391.27 requires each carrier to obtain a report from each of its drivers with a list of all violations of motor vehicle traffic laws and ordinances during the preceding 12 months. They must also order a driving abstract on each of their drivers. In reviewing each driver's record the FMCSA mandates that: "The motor carrier must consider . . . any evidence that the driver violated laws governing the operation of motor vehicles, and must give great weight to violations such as speeding , that indicate that the driver has indicated a disregard for the safety of the public." FMCSR § 391.27. We have seen too many carriers fail in this duty by consistently allowing its drivers to speed. While investigating some carriers, we discovered that approximately 75%, 85%, and even 90% percent of all moving violations received by their drivers are speeding tickets. This is a clear indication of a company-wide failure to enforce safe driving.

Driving in Adverse Weather. Sometimes drivers operate in a dangerous manner by refusing to slow and/or stop their vehicle after encountering adverse weather conditions. Virtually every state has laws requiring drivers to reduce their speed when special hazards exist with respect to weather. Further, FMCSR § 392.14 requires using extreme caution in the operation of a truck in hazardous conditions, "such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, which adversely affect visibility or traction. A commercial driver's speed shall be reduced in such conditions. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated." FMCSR § 392.14. Too many tragedies have occurred by commercial drivers ignoring these dangerous weather conditions.

Extended driving. Drivers often drive in excess of the limitation set by law. Often times this is the fault of the commercial carrier because they do not properly monitor their driver's hours. A commercial carrier's responsibilities include closely monitoring the hours that a driver actually drives to ensure that the driver files correct logs and does not work in excess of the maximum number of hours. The FMCSR restricts the number of hours that a truck driver can drive. A driver is disqualified from operating outside of the specific limitations. Additionally, evidence that a driver does not understand proper logging procedures can be proof that a driver does not have the training and experience necessary to operate a commercial vehicle safely. The failure of a commercial carrier to have sufficient log auditing policies and procedures necessary to discover improper and falsification of logs is a clear indication that the carrier failed its duty to oversee the safe operations by its drivers. It is unfortunate that some commercial carriers view the task of monitoring logs as a nuisance, as opposed to a means of protecting the motoring public.

Improper Routing and Dispatching. FMCSR § 392.6 mandates that no commercial carrier shall schedule a run or permit the use of a commercial vehicle between points in such period of time as would necessitate the driving of speeds greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated. FMCSR § 390.13 provides that a motor carrier should not aid, abet, encourage, or require its employees to violate any of the rules of the FMCSR. In order to maximize profits, some commercial carriers impose inappropriate delivery deadlines that require dangerous driving.

Fatigue - Driving Hours. Fatigue is a horrid problem in the commercial trucking industry. Too many people are dying and being injured as a result of fatigued commercial drivers. Research conducted by the National Transportation Safety Board found that fatigued truck drivers are the most cited cause of wrecks. The following are fatigue facts that will shock most caring individuals:

  1. Large trucks accounted for 13% of all passenger vehicle deaths in 1999 yet represented only 3% of all registered vehicles. (National Highway Transportation Safety Administration or NHTSA, 2000).
  2. Truck driver fatigue is a contributing factor in as many as 30-40% of all heavy truck crashes. (NHTSA, 1994).
  3. A 1995 National Transportation Safety Board (NTSB) study found that of 107 heavy truck crashes, fatigue was a prominent factor in 75% of the run-off-the-road crashes, with 68% of long-haul drivers and 49% of short haul drivers suffering fatigue-related crashes.
  4. Working long shifts not only radically increases the risk of performance errors due to lost alertness and drowsiness, but it also impairs a trucker's ability to gain proper restorative sleep even when they have sufficient off-duty time for sleep. (Federal Highway Administration or FHWA, 1997).
  5. Australian research and on-site investigations over the last several years have determined that, overall, one crash in every five among truck drivers is due to falling asleep at the wheel and that up to 30% of truck crash fatalities on rural roads are due to sleep deprivation.
  6. The risk of a crash effectively doubles from the eighth to the tenth hour of driving, and doubles again from the tenth to the eleventh hour of driving alone. (FMCSA, 2000).
  7. In a 1997 FHWA survey, 28% of surveyed drivers admitted falling asleep at the wheel during the previous month and one-third of those same drivers admitted falling asleep at the wheel as many as three to six times during the previous month.
  8. An Insurance Institute for Highway Safety (IIHS) survey in 1992 showed that almost 75% of the 1249 truck drivers polled violated hours of service regulations.
  9. A University of Michigan Transportation Research Institute (UMTRI) survey of tractor-trailer drivers revealed that truck drivers frequently drive longer than the 10 hour maximum permitted under current law. (UMTRI, 2000).
  10. An Insurance Institute for Highway Safety (IIHS) survey that was featured in last month's edition of "The Trucker" revealed some alarming facts about the fatigue problem in the trucking industry:
    1. 1/4 of drivers admit that they drive more than the daily limit.
    2. 13 % of drivers in 2003 and 15 % of drivers in 2004 admitted they have dozed at the wheel at least once in the month preceding the surveys.
    3. Log books are easily falsified.
    4. 1/3 of drivers surveyed admit that they omit hours worked from their logbooks.
  11. An article featured in "The Insurance Journal" in 2003 quoted a sleep expert named Dr. Martin Moore-Ede regarding the seriousness of fatigue: "We are seeing a steep increase in driver fatigue accident litigation. In fact, the US Department of Transportation identifies fatigue as the number one safety problem in transportation operations, with a cost in excess of $12 billion a year."

Public opinion polls show that Americans have serious concerns about truck safety and truck driver fatigue:

  1. According to a 2000 Insurance Research Council (IRC) study, 68% of Americans surveyed would pay more for goods and shipping to have truckers work no more than 12 hours in one day.
  2. Almost 70% of Americans surveyed strongly feel that data recorders on large trucks should be required. (IRC, 2000). Shockingly, the Owner Operators/Independent Drivers Association and the American Trucking Association oppose the use of such data recorders.
  3. A 1998 Lou Harris Poll indicated that 81% believe that sleep-deprived, sleepy truckers pose a serious safety problem.
  4. A 1997 Parade Magazine poll showed a groundswell of American opposition to any increase in truck driver hours - more than 86% said "No" to more truck driving time.

A commercial carrier must closely monitor the hours that a driver actually drives to ensure that the driver is obtaining the required rest in order to avoid operating in a fatigued condition. It is the commercial carrier's responsibility to protect the innocent motorist from fatigued company drivers. Some carriers simply do not take this duty seriously.

Fatigue - Training. Commercial carriers must operate their company safely by ensuring that their drivers receive proper fatigue training. Unfortunately, most commercial carriers do not offer its driving force fatigue training of any kind. A driver is not permitted to drive when his "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." FMCSR § 392.3. Commercial carriers must prevent its drivers from operating under such circumstances. FMCSR § 392.3. We understand that a commercial carrier can not spy on its driving force while they are at the wheel in order to ensure that the drivers are not fatigued. One way that a commercial carrier can comply with their responsibility is to have a fatigue training program for its employees. It is the carriers responsibility to ensure that a driver is able to identify what causes fatigue, when fatigue is dangerous and how to avoid driving while fatigued. Most carriers that we have seen fail in this duty because they offered absolutely no fatigue training of any kind. Such conduct is a disaster waiting to happen.

Drug and Alcohol Use. Drug and alcohol use is a serious problem in the trucking industry. In order to meet the obligation of ensuring that their drivers are operating safely, commercial carriers are required to conduct drug and alcohol tests. FMCSR § 383 governs drug and alcohol testing of drivers. The purpose of the regulations "is to establish programs designed to help prevent accidents and injuries resulting from the misuse of alcohol or use of controlled substances by drivers of commercial motor vehicles." § 382.101. There are six types of test that may be performed on drivers: (1) pre-employment testing; (2) post-accident testing; (3) random testing; (4) reasonable suspicion testing; (5) return-to-duty testing; and (6) follow-up testing. We have found too many carriers that do not take this responsibility serious. As a result, we are finding more and more drivers that test positive in post accident drug and alcohol tests. We are also finding more and more carriers that are violating the law by not administering the appropriate post-accident testing. The consequences of this conduct are tragic.

Use of "Pep Pills." FMCSR § 392.4 mandates that commercial drivers shall not use certain drugs and "other substances". These include "pep pills" and "bennies." These substances potentially render the driver incapable of safely operating a motor vehicle. A commercial carrier is prohibited from requiring or permitting a driver to violate this regulation. Stop in any major truck stop in America and you will find a vast supply of stimulants used to keep drivers awake. We have been told that the most popular brand of stimulant is called "Truckers Love It", which comes in pill form, liquid form, or if those are not quick enough, the inhaler version. We believe that a driver is incapable of safely operating a commercial vehicle after ingesting these substances. The more appropriate behavior would be to get some sleep.

Improper Inspection. A commercial driver must conduct a pre-trip inspection of the commercial vehicle in order to "satisfy himself" that basic parts and accessories are "in good working condition." § 392.7. FMCSR § 392.7 requires that the driver conduct a pre-trip inspection of the following parts and accessories: (1) service brakes, including trailer brake connections; (2) parking (hand) brakes; (3) steering mechanism; (4) lighting devices and reflectors; (5) tires; (6) horn; (7) windshield wiper or wipers; (8) rear vision mirror or mirrors; and (9) coupling devices. The driver must also ensure that the following required emergency equipment is in place and ready for use: (1) fire extinguishers; (2) spare fuses; and (3) warning devices. §§ 392.8 and 393.95. Substantially the same requirements are set forth in § 396.11 of the Federal Motor Carrier Safety Regulations governing post-trip inspections. Drivers simply do not take this responsibility seriously. Defects are allowed to exist because drivers do not want to waste driving time by conducting a proper inspection. Unfortunately, many inexperienced drivers do not even understand how to properly conduct a vehicle inspection.

Improper Maintenance. Commercial carriers must systematically inspect, repair, and maintain their vehicles. § 396.3. All vehicle parts and accessories shall be in safe and proper operating condition at all times. § 396.3. Further, a commercial vehicle shall not be operated in such a condition as to likely cause an accident or a breakdown. § 396.7. When a commercial vehicle is discovered to be in an unsafe condition while being operated on the highway, it may be continued in operation only to the nearest place where repairs can safely be effected and only if it is less hazardous to the public than to permit the vehicle to remain on the highway. § 396.7. We find defective brakes and other serious mechanical issues on virtually every vehicle that we inspect. Too many people are being injured and dying because bad commercial carriers are not maintaining their equipment.

Improper loading. FMCSR §§ 392.9 and Subpart I of Part 393 govern the conduct of commercial carriers and drivers pertaining to the safe loading of cargo onto commercial vehicles. Both the carrier and the driver may not operate the vehicle unless the cargo is properly distributed and adequately secured. FMCSR §§ 393.100 and 393.106. An improperly distributed load can cause a loss in braking efficiency or a rollover. Inadequately secured cargo can lead to a load shift or loss of cargo onto the roadway. A load shift can significantly affect a driver's ability to control the vehicle.

Improper Parking and Stopping of Disabled Vehicles. FMCSR § 392.22 governs a driver's duties when stopped for any reason other than necessary traffic stops or when the vehicle is disabled. When stopped upon the traveled portion or the shoulder of the roadway, the commercial driver shall immediately activate the vehicular hazard warning signal flashers until the hazard warning devices are placed. A driver has 10 minutes to place the hazard warning devices at specified locations in both the front and rear of the vehicle. This ensures that an innocent motorist does not blindly approach the hazard created by the commercial vehicle. We have handled cases where the commercial carrier failed to provide the driver with the required hazard warning devices.

We have experience gained through representing hundreds of victims of catastrophic commercial vehicle wrecks. Because of our experience, our clients receive an invaluable understanding of the commercial trucking industry practices, the laws governing the operation of commercial vehicles, proper hiring procedures, proper drug/alcohol screening methods, correct training techniques, appropriate supervision and monitoring of employee driving, appropriate inspection and maintenance policies, proper loading, and suitable driving techniques. We understand how some in the commercial trucking industry attempt to get around safety regulations. We understand how to stop such conduct. Our firm believes that we prosecute cases, not just to compensate our client's losses, but also to expose the errors of commercial carriers so that corrections can be made in order that another tragedy can be avoided.