Features
Behind
many truck crashes is a story of driver fatigue and logbook
fraud encouraged by the trucking industry.
Asleep at the wheel?
Jeffrey A.
Burns
To win
a catastrophic truck crash case, the plaintiff lawyer
representing an injured motorist must understand the competitive
forces at work within the trucking industry. Before the Motor
Carrier Act of 1980 brought about deregulation,1 there were
fewer than 20,000 interstate motor carriers operating in the
United States. Within 20 years, there were more than 500,000.2
The rise in
competition has been dramatic, and well-run, safe companies have
been challenged by companies willing to cut corners to obtain or
keep business. As carriers compete for the shrinking profit
margin, working conditions for many drivers have worsened,
leading to high attrition rates and attracting more poorly
qualified drivers into the industry.
At the same
time, public awareness of truck crash litigation has increased,
and trucking companies have changed their procedures in an
attempt to reduce their liability exposure. The result is that
counsel must frequently look a little closer to find the safety
violations that used to be more blatant. They are definitely
still there.
Many truck
crashes are the result of driver fatigue, and the lawsuits that
arise from them focus on whether the driverand the
carriercomplied with regulations limiting the hours a driver can
work, or otherwise took reasonable steps to minimize this
ever-present danger. The dangers of driver fatigue have been
known for decades.3 Nonetheless, the industry continues to
minimize its role in crashes.
For years,
the industry's position was that driver fatigue is a factor in
only a small percentage of fatal crashes. And there was little
emphasis on training drivers, dispatchers, and managers about
fatigue and how to avoid its associated dangers. That changed
forever in March 1995, when then-Secretary of Transportation
Federico Peña convened the first National Truck and Bus Safety
Summit. The Kansas City, Missouri, meeting included hundreds of
industry representatives and safety experts, whose charge was to
create a list of the principal safety issues facing the trucking
business. By the end, the participants had produced a list of 17
issues. "Driver fatigue" was number one.4
Since then,
driver fatigue has been a principal subject of truck safety
functions, videos, and training aids, and the industry press has
treated the issue extensively.5 There is now no excuse for any
safety director or terminal manager to fail to implement
policies and procedures that encompass the basic principles of
"sleep science."6
Several
studies have shown that most long-haul drivers are frequently
sleep-deprived.7 Researchers know that sleep disorders can
impair alertness as much as or more than being legally drunk.8
Truck drivers are particularly susceptible to these disorders.
The medical examination re quirements of 49 C.F.R. 391.41
(b)(8), which pertain to any "condition likely to cause loss of
consciousness or any loss of ability to control and operate a
commercial motor vehicle," appear to include screening for sleep
disorders such as obstructive sleep apnea. But most trucking
companies have no procedure for doing so.
Even if this
screening is not required, the regulations are clearly minimum
standards, and a state is not precluded from establishing
stricter requirements, so long as they don't interfere with the
federal regulations.9 In other words, federal law should not
preempt a negligence claim for a failure to screen for sleep
disorders.
Wrongful conduct
Line 4
falsification. Inaccurate entries in driver logbooks are
common in tired-trucker cases. In 1999, and again in 2000, 8
percent of truck drivers who were stopped for roadside
inspections were caught with logbooks showing they were over
their allowable driving hours.10
Keep in mind
that this is an average, and that it reflects only those drivers
who were caught. Unfortunately, the economics of the trucking
industry encourage many long-haul drivers to falsify their
logbooks merely to make a living. Most drivers are paid by the
mile, so the time they spend waiting to load and unload their
vehicles is unpaid.
In 1997 and
1998, the Truckload Carriers Association, a national association
for the truckload segment of the motor carrier industry,
surveyed its drivers and found that on average, "reefer" drivers
(those who drive trucks with refrigerated trailers) spend 44
hours a week waiting to load or unload.. "Dry van" drivers
(those who drive trucks with standard trailers that are not
refrigerated and do not hold bulk liquids) spend 33 hours a week
waiting.11
This waiting
timewith some specific, limited exceptionsis "on duty" time and
should be logged as such.12 Since the maximum time a driver can
be "on duty" in an 8-day period is 70 hours,13 those drivers may
legally drive only 26 to 37 hours in 8 days. Accordingly,
many drivers don't record their "on duty, not driving" (or "line
4") time. They spend 33 to 44 hours a week waiting to load and
unload, and then drive 65 to 70 hours on top of that, just to
make a living.
This type of
cheating can be easily hidden, even when satellite location data
for the truck are available. By not recording the hours of "on
duty, not driving" time spent waiting to load or unload, a
driver can accurately log the time the truck is moving (exactly
matching satellite data) and still exceed the allowable hours of
service by as much as 50 percent. If the only times logged
consistently on line 4 are vehicle inspections before trips and
occasional fueling stops, the driver has almost certainly
falsified the log.
Lawyers need
to be alert to the waitingtime issue and obtain dock facilities'
security-gate logs showing truckers' "in" and "out" times. They
should also find out what method of loading was used and whether
the driver was responsible for the "count," or contents, of the
load or whether it was a "drop and hook" operation, in which a
driver simply drops off a trailer and picks up another. If the
load is not drop-and-hook, the driver should usually record
significant line 4 time whenever a trailer is loaded or
unloaded.
The
definition of "on duty" time is critical to this investigation.
Under the regulations, "on duty" time includes "all time from
the time a driver begins to work or is required to be in
readiness to work until the time the driver is relieved from
work and all responsibility for performing work."14 This
includes waiting to load or unloadunless the driver has been
relieved from duty.
To be
considered relieved from duty, the driver must "be at liberty to
pursue activities of his own choosing and to leave the premises
where the vehicle is situated."15 Therefore, whenever a driver
is waiting for a trailer to be loaded or unloaded and is
responsible for the count of the load, or is waiting to move the
vehicle, such time should be logged on line 4.
Instructions in "code." A trucking company knows that its
driver's manual may become an exhibit if one of its drivers is
involved in a catastrophic crash. These manuals are often
peppered with slogans such as "Safety is our number-one
priority" and "Drivers must comply with all applicable
safety regulations." When a driver is caught falsifying logs,
the company can use materials such as these manuals as evidence
that it did its part to instruct the driver not to cheat.
But a careful
reading of the manual may reveal a different message: "Don't get
caught." For example, manuals may include a list of the states
in which the company operates, along with the maximum applicable
speed limits and the admonition that drivers must not log speeds
greater than those indicated. (Sometimes, they require logging
at 5 mph under the speed limit.) Some include a written
requirement not to log over a particular speed, such as 60 or 65
mph.
Such
instructions might seem to indicate a safety-conscious company.
However, the lawyer can make a compelling argument that if
drivers were expected not to speed and to keep accurate logs,
there would be no reason for these instructions.
There are
four lines on a driver's log: off duty; sleeper berth; driving;
and on duty, not driving. Regulations require drivers to "keep
their record of duty status current to the time shown for the
last change of duty status."16 For example, if a driver stops to
fuel the rig, he or she should change the duty status from line
3 (driving) to line 4 (on duty, not driving). Logbooks do not
require drivers to record the speed at which they were driving.
Such calculations are necessary only when the driver is not
keeping a simultaneous log and needs to go back and invent log
entries.
Trucking
company managers know that Department of Transportation (DOT)
compliance auditors often check for falsification by looking at
speeds between two points. In such cases, underreporting shows
up on the log when a driver indicates traveling long distances
in impossibly short lengths of time. For example, if a driver
shows only two hours of driving time between Kansas City and St.
Louis (roughly 250 miles), an auditor should catch that because
it means the driver had traveled at 125 miles per houror
falsified the log. However, if a driver calculates speed in
order to pass such a simple "smell test" and matches documents
kept by the carrier, chances are good he or she will pass an
audit.
Some company
manuals also instruct drivers to log certain minimum amounts of
line 4 time for particular activities, such as vehicle
inspections, fueling, and trailer hookups. DOT auditors often
check the logs for these minimums. If that type of instruction
is given, and if the line 4 times logged are consistently very
close to the minimums required, the attorney should suspect
falsification.
A company may
also include a section in the manual stating that it takes
logging seriously and will check logs against other available
documents. Frequently, however, the manual provides a precise
list of the documents the company will check. The message is
clear: "Make sure your logs match these documents." If drivers
were trained and expected to log their work accurately, such a
list would not be necessary. Accurate logs would match those
documents automatically.
Spoliation. A trucking company is required to retain a
driver's log six months from the date it receives the log from
the driver.17 Other records, including those related to
personal-injury claims, must be kept longer.18 Although
companies are commonly advised not to destroy documents that may
be relevant to a crash-related claim,19 some destroy logs after
six months because the regulations don't require that they be
retained longer.
The
destruction of relevant documents, even when it occurs under an
otherwise reasonable document-retention policy, may give rise to
a spoliation claim. As the Eighth Circuit has noted, "[A]
corporation cannot blindly destroy documents and expect to be
shielded by a seemingly innocuous document-retention policy."20
Also, although the regulations may allow motor carriers to
dispense with logs after six months, trucking companies are
subject to the minimum-wage requirements of the Fair Labor
Standards Act and should be required to keep evidence of
drivers' work for a minimum of two years.21
Uninformed
drivers. Section 405 of the Surface Transportation
Assistance Act22 has provided whistleblower protection for
commercial drivers for almost 20 years, but few drivers are
aware of it. Under this section, a driver who refuses to violate
a federal safety regulation cannot be disciplined or
discriminated against. This means that it is illegal for a
company to penalize drivers who
o are late
for a delivery because they took a nap when they were too tired
to continue driving safely23
o refuse to
take a load when the trip cannot be made within their remaining
legal on-duty hours
o report
violations of DOT regulations to the company or an enforcement
agency
o refuse to
operate a commercial motor vehicle that fails to meet all safety
requirements
o refuse to
drive under conditions they believe might cause serious injury.
The
Occupational Safety and Health Administration, which is charged
with enforcing this provision, provides trucking companies with
free posters that inform drivers of these rights,24 but I have
never heard of a company that displayed them.
Skewing statistics
Many industry
"experts" have a penchant for misquoting statistics and taking
them out of context. The worst, and most prevalent, abuse in the
trucking industry involves a statistic that has been used to
create the false impression that passenger car drivers are to
blame for 71 percent of fatal truck crashes.
This
statistic appeared in a 1998 study25 of data from the DOT's
Fatal Accident Reporting System (FARS). The researchers
essentially counted how often a police officer who filled out an
accident report identified an action of either driver as a
contributing factor in a fatal truck-auto crash.
The study,
however, can be discredited.. First, the FARS data that the
study cites are inherently biased: In most of these crashes, the
occupant of the car was killed and the truck driver survived.26
In only 2 percent did the car driver survive when the truck
driver was killed. So in many instances, the police got only the
truck driver's account.
Second, the
study examined data only from fatal two-vehicle, truck-auto
crashes. By not counting single-vehicle and multiple-vehicle
(and two-truck) fatal crashes, the study excluded most fatal
crashes in which the truck driver is most likely to have been
"at fault." For example, the study excluded all crashes in which
a semi crashed into stopped or slowed traffic (crashes that
almost always involve more than two vehicles). Had these been in
cluded, the percentage of crashes blamed on the car driver would
have been much lower.
A second
misleading statistic often cited by industry experts is that
only 1.9 percent of truck crashes are caused by driver fatigue.
This figure is based on studies that count how often the police
officer filling out the accident report checks "fatigue" as a
"driver-related factor" in the crash.27
This
statistic can also be shown to be unreliable. Officers are often
inadequately trained to recognize evidence of fatigue, and some
jurisdictions do not even list "driver fatigue" on their
accident report forms. To his credit, the author of the latest
study on fatigue risk acknowledged that it clearly
underestimated the percentage of fatigue-related crashesand
projected that as many as 20 to 40 percent of certain types of
crashes, such as those fatal to the truck driver, can be
attributed to fatigue.28
Other
potential defendants
Falsification
and cheating are so pervasive in the trucking business that some
companies serving the industry have created procedures that
appear to accommodate the ongoing fraud. Documents that can
prove what time a truck was at a particular place are anathema.
This attitude
dictates how the industry does business with suppliers. For
example, any time a private individual pays for fuel at a gas
station with a charge card, the receipt shows the date, time,
and place of purchase. The receipt for fuel purchased with a
trucker's fuel card, however, may not include the time of the
purchase. This information is almost certainly available from
the credit company and can be used to prove falsification. In an
appropriate case, counsel could argue that the absence of time
information is evidence that a particular gas station and/or
credit company is willing to cooperate with trucking companies
to keep them as customers.
The fear of
generating verifiable time and location information is so strong
that an industry safety consultant recently advised truckers not
to involve themselves in the Bush administration's "terrorist
tipster" program because "each time a driver contacted the
federal government with a tip, a time and location document
would be created." He went on to admonish drivers to "not allow
patriotism and emotion to overrule our logic."29
Transponder
companies are among the businesses that agree not to provide or
maintain certain information. These companies market devices
that allow trucks to rapidly pass through toll plazas and avoid
certain weigh stations. Because these devices are computerized,
they could be used to prove falsification if times were provided
on billing statements.
Nonetheless,
in their marketing materials and on their Web sites, some
transponder companies make statements such as, "The invoice that
is sent to the carrier does NOT list the times that drivers
bypassed the weigh station" or "Such data is not publicly
disclosed and is not permanently retained after payment of the
relevant transaction fees."30 These statements, presumably made
to assure drivers that their privacy will be protected, might
also indicate that the transponder companies are willing to look
the other way in the face of trucking industry fraud.
Federal
regulations provide that "no person shall aid, abet, encourage,
or re quire a motor carrier or its employees to violate the
rules. . . ."31 Yet the culture of the industry helps to promote
and hide falsification. Although I am not aware of any case that
has made this claim, it is only a matter of time before the
right case comes along to establish aiding-and-abetting
liability under this regulation.
Attorneys
investigating a truck crash case must do more than study the
regulations and driver's logs. They must understand trends in
the trucking industry and look for what isn't in the
logs. A solid understanding of the economic forces at work in
the industry will lead to a more thorough investigation. ?
Notes
1. Motor
Carrier Act of 1980, Pub. L. No. 96-296, 94 Stat. 793 (1980).
2. ECONOMICS
& STATISTICS GROUP, AM. TRUCKING ASS'NS, AMERICAN TRUCKING
TRENDS (2002).
3. See,
e.g., NAT'L SAFETY COUNCIL, INC., TOO LONG AT THE WHEELA
STUDY OF EXHAUSTION AND DROWSINESS AS THEY AFFECT TRAFFIC
ACCIDENTS (1935).
4.
Memorandum, National Truck and Bus Safety Summit, Top Truck and
Bus Safety Issues Identified by Summit Participants (Mar. 12-15,
1995).
5. See
Videotape: The Alert Driver: A Trucker's Guide to Sleep,
Fatigue, and Rest in Our 24-Hour Society (Am. Trucking Ass'ns
Found. & Safety Mgmt. Council, 1996); Jim McNamara, Fatigue:
The New Imperative, TRANSPORT TOPICS, Nov. 13, 1995, at 1;
Jim McNamara, Study Sheds New Light on Driver Fatigue,
TRANSPORT TOPICS, Jan. 13, 1997, at 1.
6. Good
beginning points for obtaining information include
www.sleepfoundation.org;
www.trucksafety.org;
www.patt.org;
www.truckdriverfatigue.com;
www.fmcsa.dot.gov/safetyprogs/fatigue/fatigue.htm.
7. See
OFFICE OF MOTOR CARRIER & HIGHWAY SAFETY, U.S. DEP'T. OF TRANSP.,
COMMERCIAL MOTOR VEHICLE/DRIVER FATIGUE AND ALERTNESS STUDY
(1996) (drivers obtained an average of two hours less sleep than
the daily "ideal" requirements); OFFICE OF MOTOR CARRIER &
HIGHWAY SAFETY, U.S. DEP'T. OF TRANSP., COMMERCIAL TRUCK DRIVER
FATIGUE, ALERTNESS, AND COUNTERMEASURES (1999) (28 percent of
drivers reported that they had fallen asleep at the wheel within
the past month).
8. N. Powell
et al., A Comparative Model: Reaction Time Performance in
Sleep-Disordered Breathing Versus Alcohol-Impaired Controls,
109 LARYNGOSCOPE 1648 (1999).
9. 49 C.F.R.
390.9 (2001); see also Interstate Towing Ass'n, Inc. v.
City of Cincinnati, 6 F.3d 1154, 1162 (6th Cir. 1993) ("Congress
intended . . . no implied preemption of state motor carrier
regulation on a wholesale basis.").
10. Judy L.
Thomas, Dead Tired: Desperate Drivers Defy Limits as Safety
Net Falters, KANSAS CITY STAR, Dec. 16, 2001, at A1,
available at
www.kcstar.com/projects/deadtired/; see also
www.safersys.org.
11. TRUCKLOAD
CARRIERS ASS'N, MARTIN LABBE ASSOCS., NATIONAL REFRIGERATED
DRIVER SURVEY(1998); TRUCKLOAD CARRIERS ASS'N, MARTIN LABBE
ASSOCS., 1999 DRY VAN DRIVERS SURVEY(1999).
12. 49 C.F.R.
395.2.
13. Id.
395.3.
14. Id.
395.2 (emphasis added).
15. See
U.S. DEP'T OF TRANSP., U.S. D.O.T. INTERPRETATIONS (1997).
16. 49 C.F.R.
395.8(f)(1).
17. Id.
395.8(k).
18. Id.
379.13.
19. See,
e.g., DENNIS, CORRY & PORTER, MOTOR CARRIER LIABILITY,381
(2002) (motor carriers should keep materials related to the
eight-day period before the crash). Because fatigue is
cumulative, counsel should request documents concerning at least
the 30 days before.
20. Levy v.
Remington Arms Co., 836 F.2d 1101, 1112 (8th Cir. 1988).
21. 29 C.F.R.
516.6. (Interstate motor carriers are not subject to the
overtime requirements of the act.)
22. 49 U.S.C.
31105 (2002).
23. 49 C.F.R.
392.3.
24. Poster,
Occupational Health & Safety Admin., 3113, Attention Drivers
. . . (1994).
25. DANIEL
BLOWER , TRANSP. RESEARCH INST., UNIV. OF MICH., THE RELATIVE
CONTRIBUTION OF TRUCK AND PASSENGER VEHICLE DRIVERS TO
TRUCK-PASSENGER VEHICLE CRASHES (1998).
26. OFFICE OF
MOTOR CARRIER & HIGHWAY SAFETY, DEP'T. OF TRANSP., DRIVER
RELATED FACTORS IN CRASHES BETWEEN LARGE TRUCKS AND PASSENGERS
VEHICLES (1999).
27. KENNETH
CAMPBELL, TRANSP. RESEARCH INST., UNIV. OF MICH., ESTIMATES OF
THE PREVALENCE AND RISK OF FATIGUE IN FATAL ACCIDENTS INVOLVING
MEDIUM AND HEAVY TRUCKS (2002).
28. Id.
at 82.
29. J.T.
Messenger, Letters and Comments, TRANSPORT TOPICS, Aug.
12, 2002, at 10.
30. See, for
example, answers to frequently asked questions at
www.prepass.com.
31. 49 C.F.R.
390.13.
Jeffrey A.
Burns is a legal adviser for Parents Against Tired Truckers. He
represents plaintiffs in trucking cases for Shook, Hardy & Bacon
in Kansas City, Missouri. 2002, Jeffrey A. Burns.
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