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WHAT TO KNOW ABOUT PERSONAL INJURY CASES

WHAT TO KNOW ABOUT PERSONAL INJURY CASES




In order to have any understanding of the developing
theories in trucking litigation, you need a basic understanding of common terms
used in the trucking industry. BASICs: CSA monitors seven safety improvement
categories, called BASICs – Behavior Analysis Safety Improvement Categories.
Carriers are assigned a score based on the criteria. Scores range from zero to
100. Zero is the best possible while 100 is the worst. The criteria that is
used to assign scores includes Unsafe Driving, Hours of Service Compliance,
Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Hazardous
Materials Compliance, and Crash Indicator.36 There is more information about
BASICs in Chapter Two, under the section about Carriers. Broker: A federally
regulated freight “broker” is defined as “a person, other than a motor carrier
or an employee or agent of a motor carrier, that as a principal or agent,
sells, offers for sale, negotiates for, or holds itself out by solicitation,
advertisement, or otherwise as selling, providing, or assigning for,
transportation by motor carrier for compensation.
Or: a person who, for compensation, arranges, or offers
to arrange, the transportation of property by an authorized motor carrier.”38
Brokers are also called “freight brokers” or “third party logistics” companies
(3PL).
CSA: Compliance, Safety, Accountability is a Federal
Motor Carrier Safety Administration initiative to improve large truck and bus safety
and ultimately reduce crashes, injuries and fatalities that are related to
commercial motor vehicles. It began in December 2010 to establish a new
nationwide system for making the roads safer for motor carriers and the public
alike.39 FMCSA: The Federal Motor Carrier Safety Administration was established
within the Department of Transportation on January 1, 2000. The FMCSA’s primary
mission is to prevent commercial motor vehicle-related fatalities and
injuries.40 Motor Carrier: A person providing motor vehicle transportation for
compensation.



SafeStat: An outdated system that was used to measure a
carrier’s safety performance. This is no longer used since the creation of CSA
SMS: The Safety Measurement System evaluates roadside
performance data. This data is used to calculate the BASICs scores and crash
involvement.
USDOT/DOT: The United States Department of
Transportation
Key “Whos” of Regs & Reqs Who are key actors in the
trucking industry? The list includes motor carriers, brokers, government agencies,
truckers, mechanics, manufacturers, truck/trailer owners, etc. In Chapter Two,
we examine drivers, carriers, and brokers — who they are and what
responsibilities they have. In Chapter Three, we take a few of those critical
and most often shirked responsibilities by drivers, carriers, and manufacturers
and analyze them in detail to assist you as a practitioner in using those
details to craft your claims of action. Key “Whats” What are the top ten key
causes of action in trucking litigation? Here we give you a short list of the
top ten causes of action in trucking litigation. (Subsequent chapters provide
additional detail.) 1. Fatigue – While the federal government has established
strict Hours-of-Service (HOS) regulations, drivers often disregard these or
even falsify their records. Drivers are often generally uneducated about the
dangers of fatigue. Carriers are responsible for ensuring drivers are aware of
the dangers and for reviewing driver logs and watching driver behavior and
performance.
2. Maintenance problems – Both carriers and drivers
share the responsibility of ensuring the trucks are carefully maintained. 3.
Distractions – Drivers must avoid distractions. This is thoroughly discussed in
the Commercial Driver’s License (CDL) manual, which drivers have to study to
receive their licenses. Texting is a growing, common distraction, but anything
(including smoking, eating, etc.) can be a distraction. Drivers are responsible
for avoiding these. In New York, one truck driver was caught on camera talking
on two different phones (presumably having two different conversations).44
“Drivers that did use their cell phones while driving did not look at the
roadway an average of 4.6 seconds while the devices were in use. If the driver
was traveling at 55 mph, this would equate to driving ‘blind’ the approximate
length of an entire football field, including the end zones.”45 4. Traffic flow
interruption – This is related to distractions. A distracted or fatigued driver
can fail to notice a stall in traffic ahead, but a responsible driver will
maintain proper attention at all times. 5. Prescription drug use – (see below)
6. Over-the-counter drug use – It is not just illegal drugs that can cause a
driver’s downfall. Drivers cannot use any drugs without a physician’s assurance
that their use will not adversely affect their driving abilities. (There is
more indepth information regarding substance abuse in Chapter Three.) 7. Drunk
driving – The federal regulations strictly prescribe drivers’ use of alcohol
and carriers’ responsibilities in testing drivers.
8. Traveling too fast for conditions – A rushed driver
might be driving within the legal speed limit but may be “speeding” given the
current road or weather conditions. Rain or fog or construction zones can
require slower speeds than the limit prescribes. We describe industry and CDL
manual expectations in Chapter Two. 9. Unfamiliarity with roadway – A
responsible driver needs to do all he can to familiarize himself with his
route. If he has never or rarely driven the route, he needs to remain
particularly alert and cautious — especially when taking curves, etc. In one
accident, the police said the driver’s unfamiliarity with the road may have
caused him to go off the road on a curve, hit a road sign, snap a tree, and
roll only a few feet away from a residence.46 10. Awareness – A responsible
driver follows the instructions in the CDL manual regarding awareness of her
surroundings. We explain these concepts in Chapter Two’s section regarding
drivers.
Left Turns and U-Turns Patience and caution are critical
when a trucker has to turn left across incoming traffic, so incoming traffic
does not have to stop suddenly as the truck slowly completes the maneuver.47
Rushed drivers are known to make such turns while knowing there is not enough
time for them to do so unless the incoming traffic slows down to prevent a
collision.48 The fact that the driver is executing a maneuver indicates a lack
of fatigue, though it may indicate a driver’s distraction or inattentiveness.49
Your approach should be to focus on the driver’s disregard of safe maneuvers as
described in detail in the CDL manual (discussed further in Chapter Two
regarding the driver). You can also focus on the carrier’s negligent hiring or
retention – if you can prove the carrier knew this driver had previously acted
in the same or a similarly dangerous manner (see Chapter Three regarding this
theory of liability). U-turns are extremely dangerous for large trucks. Most
safety-conscious trucking companies strictly prohibit them for their drivers.
Many make a U-turn occurrence an automatic firing offense. Underride A car
driver may not be able to stop in time if a truck blocks the road, such as
while making a turn. In such a situation, the car will continue to move forward
under the trailer, often resulting in decapitation and death of the car driver.
If you have such a case, a key to winning is to prove with photos and an
inspection the truck was not properly visible – such as because of dirty or
damaged reflectors, retroreflective taping, etc.
Stopped Trucks If he must stop his truck in or on the
side of the road, a truck driver is required by federal regulations to warn
oncoming traffic by placing markers at specified intervals behind the truck
within specified times. (See Chapter Two on drivers for details regarding the
placement of emergency markers.) To prove the driver waited too long to place
the markers, you should to examine 911 call reports, cell phone records, etc.
(Drivers will of course claim the accident happened before there was time to
set out the markers). Rear-End Collisions When a truck driver rear-ends another
vehicle (the most common type of truck collision), you need to consider whether
the trucker fell asleep or was fatigued (see Chapter Three regarding fatigue);
whether the cargo was too heavy or not heavy enough; whether the brakes were
malfunctioning (see Chapter Three regarding maintenance); and whether the
driver was speeding. To do so, you will likely need the driver’s logs, weight
tickets, history of citations, maintenance and inspection records, and an
accident reconstructionist. A truck driver and his carrier can also be liable
if they rear-end the tractor trailer. These cases can be difficult, but are
fairly common. Truck drivers parked on the side of the road or re-entering
traffic create a hazard. Slow moving or backing vehicles also are very
dangerous, especially at night, to traffic approaching the truck from the rear.
These case many times involve issues of conspicuity and as well as the question
of whether your client responded appropriately. This question usually needs to
be addressed by human factors an expert familiar with human reaction and
responses to unfamiliar occurrences. Backing Accidents Backing is particularly
dangerous for tractor trailer trucks. A truck driver doesn’t have the ability
to see behind him the way a passenger car can. That makes it all the more
necessary to take additional precautions. Many trucking companies advocate
truck drivers follow the steps outlined in the G.O.A.L. acronym. G.O.A.L.
stands for Get Out And Look. This is obviously done to assure nothing is behind
the truck prior to movement.
Improper Maneuvers If the driver in your case swerved,
changed lanes recklessly, etc., you will want to look at a driver’s history
(his past traffic citations, performance history, etc.) in consideration of
pursuing a theory of negligent retention and hiring (see Chapter Three
regarding carriers). Of course, fatigue and hours of service violations may be
an issue as well (again, see Chapter Three regarding fatigue). Again, you
should hire a reconstructionist who can prove the cause of the accident by
preserving and interpreting the evidence. Shifting Cargo or Unsecured Cargo If
the cargo was not properly loaded, the truck may jackknife or overturn from a
shift in the cargo. Many times the truck driver will blame that movement of the
load caused the vehicle to lose control
leading to the accident. The carrier and shipper should
be your targets in a case like this, and – as always – photographs and other
forms of evidence preservation are critical. What were the driver and carrier
doing (or not doing)? Below we have a list of what the driver and carrier may
have been doing (or not doing) that are violations and common causes of action.
(We further analyze many of these in the subsequent chapters.) DRIVERS:
ü
Distractions o Texting o Eating o Phone calls o Smoking o Unauthorized
passengers
ü Inspection Failures o
Failure to Inspect at all o Failure to Inspect properly
ü
Fatigue o Violations of HOS regs o Undiagnosed sleep apnea o Falsified records
o Economic pressures
ü Substance Abuse o
Alcohol o Over-the-counter drugs o Illegal drugs
ü
Aggressive driving
ü Disregard of road
conditions
ü Traffic violations o
Speeding o Running red lights
ü
Obesity
ü Cargo o Proper Securement o Shifting from
Careless Driving o Oversized load
CARRIERS: ü
Hiring and retention o Background checks o Properly qualified or experienced
ü
Training
ü Maintenance of Vehicles o
Qualified inspectors o Manufacturers’ prescribed schedules for parts o Tires,
wheels, brakes, rearguards, windshield wipers, etc. o Truck visibility
ü
Substance abuse tests
ü Compliance with HOS
regs One Last Key This list was meant to help you identify common keys that
will “turn on” your claim and get it going down the road. But keep in mind
there are many other regulations and considerations — including ones you may
find reading the subsequent chapters — that could bolster your claim.

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