Truck Driver Fatigue: Who is Liable?

Trucking Attorney Says Employers Push Drivers Too Hard

Video Transcript:

Daniel Sherry:

If you're running a transportation company without adhering to regulations standards, CDL manuals, it's only a matter of time before that results in something catastrophic.

Rob Rosenthal:

So why is it important that truckers have limits on the hours they're allowed to be behind the wheel? Well, that's what we're going to find out today, because that's what we're going to ask the lawyer.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com, and my guest is Philadelphia attorney Daniel Sherry. Dan, thank you for making some time to answer our questions today.

Daniel Sherry:

Thank you so much for having me on.

Rob Rosenthal:

So let's just talk about trucking company regulations; I'm guessing there's a lot of them. Who regulates the trucking companies, and why is that important in this field?

Daniel Sherry:

What we talk about is not really regulations, but what we talk about is standard of care. The different types of regulations, laws, best practices, and recommendations, appear in a variety of different publications, most of which the public itself can download and acquire. That includes the Federal Motor Carrier Safety regulations, but also includes state laws pertaining to commercial vehicles, as well as Commercial Driver's License manuals. Every single state has a CDL manual, and there's quite a lot of overlap state-to-state in terms of how drivers are trained to properly operate commercial vehicles, as well as perform all of the relevant operations that a driver needs to perform, including pre-trip inspections and abiding by various standards applicable to how many hours you can work in a given time period, and how you should conduct operations when driving including in problematic weather and driving at night.

Rob Rosenthal:

Let's talk about hours. When people take a road trip in their family vehicle, they jump in, maybe they drive 10, 11, 12 hours, get out and walk around a little bit, then get back in the car and drive. Why is it important to have regulations on the hours behind the wheel for big rig drivers?

Daniel Sherry:

Well, first and foremost, if somebody, even a lay person driving the family station wagon drove for 10 hours and only took a minor break and then plowed into a plaintiff, there would be a good claim against that lay person for driving when fatigued. Now, let's take that same scenario, but apply to somebody driving 80,000 pounds of commercial vehicle going at highway speeds, 65 miles an hour or maybe even an access thereof. You want to make sure that if you're doing that, if you've chosen that to be your profession, you're going to do that, you're going to earn a living doing that, the government federally as well as at the state level, wants to ensure that you are alert, reasonably alert. And that's why those time restrictions are there, to ensure that to the extent we can prevent accidents due to fatigue, we're going to ensure that the drivers do not exceed a certain amount of hours in a given time frame. This is to ensure that other individuals on the roadway or near the roadway are protected to the greatest extent possible from the dangers associated with driver fatigue.

Rob Rosenthal:

I would think most drivers don’t want to risk their lives, and they don't want to risk the lives of other people. In your experience, are you finding that there's external pressure put on them, maybe by the trucking companies, to push up to those limits or even beyond those limits to when it's not safe?

Daniel Sherry:

Certainly. Appropriate supervision and appropriate training will take care of an individual's natural instinct to maybe push it a little bit, but what we find often is that it is a company culture. We often find that supervisors of drivers don't have CDL licenses themselves, they're not required to. As a result, they may be looking at a pre-trip inspection and have absolutely no idea what they're supervising, no idea at all. That's actually a common occurrence. It's absolutely unfathomable that you would have a supervisor supervising something that he doesn't know what it actually involves, and as a result cannot intervene if something is being done wrong, but that's what you see. Companies that are built like that, it’s absolutely foreseeable that they're going to try to push the envelope, and unfortunately, it's not nearly at risk to their own company or the drivers; it's the person who's two lanes over in a passenger vehicle; it's the individual who's working at a highway construction zone that has reduced speed. Those are the types of individuals that oftentimes bear quite catastrophically the results of the commercial driver fatigue.

Rob Rosenthal:

Why would companies take those risks? Is it all just about the dollar?

Daniel Sherry:

Well, go into business for purposes of making money, so while it seems indelicate to state that these are all financially driven decisions, there's really no other motivation. The only other alternative is to believe that the companies are sadistic, which I don't believe. Instead, it's merely to make as much money as possible delivering loads. In order to deliver loads safely, you need to have a sufficient number of drivers and they need to be abiding by all of the relevant federal regulations, all of the state laws, and all of the practices laid out in the CDL manual; that costs money. Alternatively, you can try to push the envelope; have less drivers, don't spend adequate time doing pre-trip inspections, don't spend adequate time planning effective safe routes where you're not necessarily driving in bad weather or making left-hand turns in large eighteen-wheelers. Instead, try to make do with what you have and try to maximize the dollars. With that, unfortunately, you will oftentimes have breaches of a reasonable degree of safety.

Rob Rosenthal:

Have you seen, in your experience, that sometimes the attitude is “as long as we don't get caught, it's okay”?

Daniel Sherry:

Absolutely. I've seen that precise testimony from fleet managers. I took a deposition of a fleet manager involving a tractor-trailer that was coming from New Jersey into Pennsylvania, and had that vehicle actually gotten onto Pennsylvania soil, it would have been illegal because its weight was too much in order to be driving in Pennsylvania without a special permit which it did not have. The fleet manager testified that it's illegal but only if you're pulled over by a police officer, and then immediately after testifying to that effect, on videotape no less, he rethought what he said and said, “I would like to rephrase that. Yes, it's illegal no matter what.” But that is the attitude. If you get caught, there's a fine that you have to pay, and in the course of doing business we can absorb that. The problem is not the fines from a personal injury lawyer perspective, it's your fatigue, your lack of adherence to standards that is going to cause catastrophic injury or death. I've yet to meet somebody with a traumatic brain injury or paralysis or someone who's lost a family member who thinks that a fine is appropriate or an appropriate substitute. They would do anything to get their family member back, get the use of their legs back, or restore full cognition; those are the types of injuries that occur in a commercial vehicle case. Rarely are those injuries the minimus. Usually the results are catastrophic simply because of the enormous relative size of these vehicles and the speed at which they're traveling.

Rob Rosenthal:

What's your advice to drivers who are being pushed by the trucking companies to exceed the limits, to drive when it's not safe, to go past when they may be fatigued?

Daniel Sherry:

Ultimately, the driver is responsible for his or her load, and it's like any other industry. If you're being told by your supervisor or your boss to do something that you know is dangerous, it is no excuse to say, “I knew. I did it anyway.” You have every right to refuse to do something that you know is illegal or unreasonably dangerous. It may imperil your job security at that company, but what I would say to a truck driver if they were revealing that to me is that company sooner rather than later is going to become embroiled in scandal. If you're running a transportation company without adhering to regulations, standards, CDL manuals, it's only a matter of time before that results in something catastrophic. This is not a situation where it may not happen; it's going to happen. It's just a matter of when. When you're driving a commercial vehicle for any prolonged period of time, two, three hours, there are thousands of driver inputs that you're putting into that vehicle; shifting, changing lanes, using the steering wheel, using the brakes, using the signals. All of those present an opportunity for catastrophe, and for every moment that you are experiencing fatigue, the likelihood of a catastrophe goes up considerably. It only takes one errant pull of the wheel or one hard application of braking when unwarranted to jackknife a tractor-trailer or to have it drift into another lane. And again, to the extent somebody else is there or somebody else is up ahead, the results are just devastating.

Rob Rosenthal:

Fascinating information, Dan. Thank you so much for taking some time to answer our questions today. I do appreciate it.

Daniel Sherry:

My pleasure.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been Philadelphia attorney, Daniel Sherry. Remember, if you want the best information or you want to be able to choose a lawyer that lawyers choose, head over to askthelawyers.com. Thanks for watching, everybody. I'm Rob Rosenthal AskTheLawyers™.

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