The latest Notice of Proposed Rulemaking was published April 29 by the Pipeline and Hazardous Materials Safety Administration, part of DOT, would prohibit use of a handheld cell phone by drivers moving a quantity of hazardous materials that must be placarded under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR Part 73 in intrastate commerce.

This would expand upon rules already proposed by the Federal Motor Carrier Safety Administration (also part of DOT). FMCSA barred texting by commercial motor vehicle drivers in a September 2010 final rule. It proposed to restrict the use of hand-held mobile phones in a Dec. 21, 2010,

PHMSA estimates that there are approximately 1,490 intrastate motor carriers that could be affected by this rulemaking.

Ken Shigley is an Atlanta, Georgia, trial attorney. He has been designated a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend), and rated “AV Preeminent” by Martindale-Hubbell Legal Directory. He is author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010), a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and currently president-elect of the 42,000 member State Bar of Georgia. He has extensive experience in litigation and trial of cases involving serious personal injury, wrongful death, trucking accidents, automobile accidents, products liability, premises liability, and insurance. Mr. Shigley is a graduate of Furman University and Emory University Law School. This blog post is subject to our ethical disclaimer.

The study showed that the top 5 percent of drivers with the most driving distractions were distracted 67 percent of the time during which a risky driving maneuver was observed – nearly six times more often than the rest of the drivers.

Just 5 percent of the drivers accounted for the majority of events involving those devices – 57 percent of all mobile phone incidents captured and 52 percent of all operating-handheld-device incidents.

The nine most common distractions observed in conjunction with a risky driving maneuver were:

* Object in Hand, 44.5%, which includes mp3 players, PDAs and paperwork * Talking on a Handheld Mobile Phone, 13.4%
* Beverage, 12.7%
* Food, 10.1%
* Smoking, 9.9%
* Operating a Handheld Device, 9.1%
* Talking/Listening Mobile Phone – Hands Free, 5.2%
* Manifest, Map or Navigation, 1%
* Grooming/Personal Hygiene, 0.6%

Ken Shigley is an Atlanta, Georgia, trial attorney. He has been designated a “Super Lawyer” (Atlanta Magazine), one of the “Legal Elite” (Georgia Trend), and rated “AV Preeminent” by Martindale-Hubbell Legal Directory. In addition, he is author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010), a Certified Civil Trial Attorney of the National Board of Trial Advocacy, and currently president-elect of the 42,000 member State Bar of Georgia. He has extensive experience in litigation and trial of cases involving serious personal injury, wrongful death, trucking accidents, automobile accidents, products liability, premises liability, and insurance. Mr. Shigley is a graduate of Furman University and Emory University Law School. This blog post is subject to our ethical disclaimer.

In Georgia, punitive damages are allowed “only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”

Punitive damages are capped at $250,000 in collision cases in Georgia unless there was an intent to harm, which the evidence would rarely if ever support.

I personally handled a trucking wrongful death and personal injury case where the court allowed a punitive damage claim against a trucking company due to evidence that the company “turned a blind eye” to hours of service violations, and dispatched back to back trips that could not be completed lawfully.

Other trucking cases where punitive damage claims were allowed include:

* a “forced dispatch system” where a truck driver could not refuse a load and keep his job, so that hours of service violations, etc., were inevitable.

* payment for speed of delivery, encouraging drivers to speed
* failure to check driving records, as required by regulations
* rigorous delivery schedule with penalties for late deliveries
* failure to provide maintenance mechanics with necessary tools
* failure to discipline truck driver for violations
* failure to monitor the truck driver’s conduct, failure to conduct any investigation into the driver’s hours of service, re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers’ hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public
* violation of hours of service rules, fatigued driving, falsification of driver logs, and failure of management to adequately monitor drivers’ hours
* violation of hours of service rules and falsification of driver logs

* combination of knowledge of safety issues, speed, use of radar detector, driver’s history of violations, and lack of qualifications of safety director

* Ignore smoking brakes, failure to stop until brake drum falls apart
* stopped in the interstate’s center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and failure to turn on tractor-trailer lights after it became dark

Some of the evidence that supports a claim for punitive damages is also useful in supporting a claim for “bad faith” attorney fees under OCGA 13-6-11, and for simply convincing a jury that the conduct justifies awarding adequate compensatory damages.

Ken Shigley is a trucking safety trial attorney representing seriously injured people in tractor trailer, big rig, intermodal container freight, cement truck, dump truck and bus accidents statewide in Georgia. He served as chair of the Southeastern Motor Carrier Litigation Institute in 2005, is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board for the Association of Interstate Trucking Lawyers of America.

He has extensive experience representing parties in interstate trucking collision cases, and in the past two years has spoken at national interstate trucking litigation seminars in Chicago (trucking insurance), New Orleans (trial tactics and side underride issues), St. Louis (punitive damages), San Francisco (dealing with insolvent trucking companies), Atlanta (trucking insurance, closing argument), Nashville (use of Federal Motor Carrier Safety Regulations), and Amelia Island (overview of trucking litigation).

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases. Currently he is Treasurer and a candidate for President-Elect of the 41,000 member State Bar of Georgia.This post is subject to our ethical disclaimer.

Punitive damages under Georgia law are designed to “penalize, punish or deter” conduct that shows “willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Proof must be by “clear and convincing evidence.” O.C.G.A. § 51-12-5.1.

The Federal Motor Carrier Safety Regulations are a starting point for the use of corporate conduct as a foundation for punitive damages.

49 C.F.R. § 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.

49 C.F.R. § 392.6 provides that no trucking company may schedule a delivery in such a way that would require the driver to operate his or her vehicle at speeds greater than those prescribed by the rules of the road in effect at the location in question.

49 C.F.R. § 395.3 provides that no trucking company shall permit or require any driver to exceed the maximum hours of driving time allowed under the FMCSR. All trucking companies “shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired, and maintained, all motor vehicles subject to its controls.” This general duty of a trucking company to maintain its vehicles in good working order includes a duty to maintain repair records and inspection reports and driver reports, which are to be filed by a driver each day on each vehicle driven, 49 C.F.R. § 396.11, and a duty to make periodic inspections of each vehicle, 49 C.F.R. § 396.11.

Courts may also consider the applicable administrative interpretations included in the official Regulatory Guidance for the Federal Motor Carrier Safety Regulations, 62 Fed.Reg. 16370 (1997). For example, the Regulatory Guidance includes the following official interpretations of the regulations:
Question 7: What is the liability of a motor carrier for hours of service violations?
Guidance: The carrier is liable for violations of the hours of service regulations if it had or should have had the means by which to detect the violations. Liability under the FMCSRs does not depend upon actual knowledge of the violations.
Question 8: Are carriers liable for the actions of their employees even though the carrier contends that it did not require or permit the violations to occur?
Guidance: Yes. Carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that 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.
In interpretation of 49 C.F.R. § 395.8, the regulatory guidance states:
Question 21: What is the carrier’s liability when its drivers falsify records of duty status?
Guidance: A carrier is liable both for the actions of its drivers in submitting false documents and for its own actions in accepting false documents. 62 Fed.Reg. at 16426. In short, “Motor carriers have a duty to require drivers to observe the FMCSRs.” Id.

The national body of law supporting punitive damages in trucking case includes:

Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005). Factors considered as “reckless indifference to the rights of others” were failure to monitor the truck driver’s conduct, failure to conduct any investigation into the driver’s hours of service, re-dispatching the truck driver even though he had exceeded his hour of service limitations; and failure to have effective procedures in place to verify drivers’ hours of service when the company knew that hours of service regulations were in place to protect the safety of the monitoring public. These facts involved violations of numerous FMCSRs.

Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill.,2006). There was evidence in that case of violation of hours of service rules, fatigued driving, falsification of driver logs, and failure of management to adequately monitor drivers’ hours. The conduct of B & W employees like the managers of the company’s terminals was such as to send a message to drivers that hours of service violations were acceptable conduct.

Bridges ex rel Wrongful Death Beneficiaries v. Enterprise Products Co., Inc., 2007 WL 433242 (S.D.Miss.,2007). Violation of hours of service rules and falsification of driver logs supported denial of partial summary judgment on punitive damages.

Esteras v. TRW, Inc., 2006 WL 2474049 (M.D.Pa.,2006). Trucking company delegated maintenance, but facts allowed jury to find “failure to properly inspect and maintain the tractor/truck . . . constitutes reckless indifference to the rights of others.”

Ricker v. Southwind Trucking, Inc., C.A. NO. 4:05-CV-0223-HLM, Northern District of Georgia, decided March 15, 2007. This was our case. The driver had destroyed log pages and replaced them with pages showing himself off duty when in fact he had been driving from Ohio to Georgia and back, began the trip in question after a one hour nap at a shipper’s terminal, “pushed times back” by about five hours on the trip log to make himself look legal the next day, and at the time of the crash had been driving 20 of the previous 24 hours. The trucking company failed to have any management system for effectively monitoring drivers’ hours and relied solely upon drivers to inform management that they could not take a load due to hours. There was no effort to cross-check dispatch records against driver logs. The court concluded a jury could conclude the company “turned a blind eye” to its drivers’ hours of service compliance, and “was consciously indifferent” to compliance.

Garrett v. Albright, 2008 WL 795613 (W.D.Mo.,2008). Driver had had a heart attack and a stroke, took unreported prescription medications when driving, had a history of frequent driver log violations, falsified log entries on the subject trip, and was fatigued. Company provided only the most minimal training, and disregarded a written policy not to pay drivers who had not turned in log books.

J. B. Hunt Transport, Inc., v. Bentley, 427 S.E. 2d 499 (Ga. App., 1993). Forced dispatch system.

Smith v. Tommy Roberts Trucking Co., 209 Ga.App. 826, 828(2), 435 S.E.2d 54 (1993). Driver paid for fast driving, quick deliveries, in hurry to deliver load; employer knew of two moving violations, and failed to check bad driving record.

Shinn v. Greeness, 218 FRD 478 (M.D.N.C., 2003). Rigorous delivery schedule and penalties for late deliveries,

Glenn McClendon Trucking Co., Inc. v. Williams, 359 S.E. 2d 351 (Ga. App. 1987). Company denied mechanics access to tool required for repairs, knowing risk of hazard.Driver ignored smoking brakes, failure to stop until brake drum falls apart.

Cloaninger v. Wheeler, 2006 WL 3782702 (W.D. N.C., 2006). Failure to discipline truck driver after learning of his moving violations.

Stewart v. Mitchell Transport, 241 F. Supp. 1216 (D. Kan., 2002). Combination of knowledge of safety issues, speed, use of radar detector, driver’s history of violations, and lack of qualifications of safety director.

Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala., 1984). Fatigue inferred from circumstances of length of time driven, and knowledge may be inferred from circumstances.

Fowler v. Smith, 237 Ga.App. 841, 516 S.E.2d 845 (1999). Violated 49 CFR § 392.22(b) by being stopped in the interstate’s center lane for approximately 35 minutes before the collision without placing triangular warning devices on the highway, and that he did not turn on his tractor-trailer lights after it became dark.

Ken Shigley, of the Shigley Law Firm, LLC, in Atlanta, Georgia, was chair of the Southeastern Motor Carrier Litigation Institute, is involved as a seminar speaker for the Interstate Trucking Litigation Group of the American Association for Justice, and is on the National Advisory Board and serves as a seminar speaker for the Association of Interstate Trucking Lawyers of America. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he is also Secretary of the 39,000 member State Bar of Georgiaa and a Master of the Lamar Inn of Court at Emory Law School. He handles cases all over Georgia, from Calhoun to Valdosta, and from LaGrange to Hoschton.