Review of Logbooks
Because accidents caused by driver fatigue have become so prevalent, you should always consider retaining an expert to review the driver’s logbooks. Drivers must record their duty status in a daily log for each twenty-four-hour period, and the daily log must be forwarded to the trucking company within thirteen days following completion of the form. 49 C.F.R. § 395.8(a)(1), (i).
The trucking company must maintain these logbooks for a period of only six months. 49 C.F.R. § 395.8(k). Therefore, if you receive a call from the victim of a truck accident, be certain to send out a spoliation letter well before the expiration of this six-month period so that the logbooks are not destroyed in the ordinary course of business. The spoliation letter should also request the “supporting documents” referred to in the regulations so that the logbook expert can verify the truth and accuracy of the logbook. Although the term “supporting documents” is not defined in the regulations, the Department of Transportation has issued various policy memorandums defining these documents. The most recent such memorandum was issued on July 10, 2010. Supporting documents are defined as
[b]ills of lading, carrier pros, freight bills, dispatch records, electronic mobile communication/tracking records, gate record receipts, weight/scale tickets, fuel receipts, fuel billing statements, toll receipts, toll billing statements, port of entry receipts, delivery receipts, lumper receipts, interchange and inspection reports, lessor settlement sheets, over/short and damage reports, agricultural inspection reports, driver and vehicle examination reports, telephone billing statements, credit card receipts, border crossing reports, customs declarations, traffic citations and overweight/ oversize reports and citations.
See Docket No. FMCSA-2010-0168.
Any records that are maintained in the ordinary course of business that are used by a carrier to verify the accuracy of the driver’s hours-of-service records are supporting documents that must be preserved for the required six-month period.
The 2010 FMCSA policy memorandum did eliminate certain retention requirements for carriers using approved “electronic mobile communication/tracking technology.” For each vehicle for which the motor carrier can produce acceptable electronic mobile communication/tracking records, the motor carrier is no longer required to maintain or produce the following driver documentation pursuant to 49 C.F.R. § 395.8(k)(1): gate record receipts, weight/scale tickets, port of entry receipts, delivery receipts, toll receipts, agricultural inspection reports, over/short and damage reports, driver and vehicle examination reports, traffic citations, overweight/oversize reports and citations, carrier pros, credit card receipts, border crossing reports, customs declarations, and telephone billing statements. Motor carriers that take advantage of these less burdensome document retention requirements are precluded in hours-of-service enforcement proceedings from challenging the accuracy of their own electronic mobile communication/tracking records.
Although the regulations specify a six-month retention period, it has been suggested that “[r]eliance on a policy of destroying logs after the mandatory six month retention period may not withstand judicial scrutiny and likely will result in a claim of spoliation of evidence.” Motor Carrier Liability § 961 (Post Accident Document Retention) (CCH, Inc. 2010). A carrier’s destruction of driver’s logs or related documents may give rise to a presumption that the evidence was not preserved because it was unfavorable to the carrier and, therefore, that the driver must have violated the federal regulations.Driver Fatigue
Some experts believe that driver fatigue is the number one safety problem in the trucking industry. Until proven otherwise, an attorney investigating a serious truck accident should assume that the case involves a fatigued trucker. See Jeffrey A. Burns, “The Plaintiff’s Perspective: Handling a Plaintiff’s Truck Crash Case—What You Don’t Know Can Hurt You. . . and Your Client,” in Truck Accident Litigation 345–46 (Laura Ruhl Genson & Anita M. Kerezman eds., 2d ed. 2006).
Driver fatigue and the violation of the FMCSA’s hours-of-service (HOS) regulations provide powerful ammunition for your trucking case. If you can prove that a driver violated the HOS regulations and that the driver’s fatigue was a factor in causing the crash, you should be well on your way to a successful result against the driver and the trucking company. If a trucking company fails to monitor its drivers’ hours of service, this is a violation of the regulations. See Department of Transportation Interpretations § 395.3, Question 7, published in J.J. Keller & Assocs., Inc., Federal Motor Carrier Safety Regulations Handbook, Apr. 6, 2009, at 516. “Neither intent to commit, nor actual knowledge of, a violation is a necessary element of [this] liability. Carriers ‘permit’ violations of the hours of service regulations by their employees if they fail to have in place management systems that effectively prevent such violations.” Department of Transportation Interpretations § 395.3, Question 8, published in J.J. Keller & Assocs., Inc., Federal Motor Carrier Safety Regulations Handbook, Apr. 6, 2009, at 516.
However, even if the driver’s logbook shows strict compliance with the HOS regulations, you should still investigate the very real possibility that fatigue played a critical role in the crash. Mere compliance with the HOS regulations does not mean that the driver was not fatigued or otherwise impaired. The FMCSR specify that a trucking company must not allow a driver to operate a truck while the driver’s alertness is impaired by fatigue or illness. 49 C.F.R. § 392.3. Therefore, in every case you should request a driver’s medical records to see if there is evidence of any illnesses at or about the time of the accident or any evidence of a history of sleep apnea.
As a general principle, it is usually held that mere compliance with governmental regulations is not a bar to an action of negligence, but in most cases compliance with federal regulations is at least strong evidence of due care. In contrast, mere compliance with the federal hours-of-service regulations is nearly meaningless in a case based on driver fatigue, because the rules are not adequate to prevent fatigue. And, it must be said, all authorities agree that a high percentage of logbooks are falsified, so claims of compliance with the regulations are not necessarily to be accepted.
David Polin, Cause of Action Against Trucker or Truck Driver for Injuries Caused by Driver Fatigue § 16, 17 Causes of Action 2d 105 (2008).
Obviously, the strongest cases of driver fatigue involve clear violations of the HOS regulations and falsified logbooks. If your case involves a violation of the regulations and there is evidence that fatigue was a substantial contributing factor, the specific violation of the HOS regulations will provide solid evidence that the violation exposed the plaintiff to an unnecessary danger. In Massachusetts, the violation of a federal safety statute can be used as “some evidence of negligence.” Thurston v. Ballou, 23 Mass. App. Ct. 737, 739–40 (1987). In some states, the violation of a safety statute constitutes “negligence per se.”
Plaintiff’s attorneys are not alone in identifying driver fatigue as a national crisis. The National Association of Independent Insurers has made the following statement:
We know that tired commercial motor vehicle (CMV) drivers are a menace on the highways. They inadvertently kill or severely injure innocent victims, they contribute to their own death or injury, they damage or destroy vehicles and other property, and hazardous material haulers release pollutants into the environment when material containment is compromised. The ideal solution therefore is an HOS rulemaking that mitigates these life, safety, environmental, and infrastructure damage threats. There is a wealth of information that has been published about the consequences of driver fatigue. Researchers, safety advocates, and government agencies, relying upon studies and a body of data generally oppose any “solution” that allows tired drivers more road time or that further disrupts a natural circadian rhythm. Trucking interests however, seem to dispute reputable findings and recommendations in order to advance self-serving economic agendas. NAII advocates caution. Driver fatigue is a killer. Safety issues must not be compromised in any way in order to earn the support of various motor carrier voices regarding a proposed “solution” to the hours-of-service issue.
A driver does not need to fall asleep to have his or her driving impaired by fatigue. Fatigue impairs drivers in the same way alcohol intoxication does; a driver’s ability to perceive and react becomes increasingly diminished as the level of fatigue increases. “Indeed, even ‘relatively moderate levels of fatigue impair performance to an extent equivalent to or greater than is currently acceptable for alcohol intoxication.’” Jeffrey A. Burns, “Truck Driver Fatigue—A Primer,” in Truck Accident Litigation 120 (Laura Ruhl Genson & Anita M. Kerezman eds., 2d ed. 2006).