Over decades of representing victims of catastrophic truck crashes and their families, we often have seen fly-by-night truckers hired by larger entities that knew or should have known of the dubious safety records of the truckers they hired. Sometimes we have been able to assert claims against the larger companies for negligent hiring of unsafe truckers.

For several years, insurers for trucking freight brokers have tried relentlessly to use the Federal Aviation Administration Authorization Act (FAAAA) to preempt claims for negligent selection of unsafe motor carriers. The defense position has been that the FAAAA, 49 U.S.C. § 14501(c)(1)) trumps all other state and federal rules authorizing liability of motor carriers, brokers, and freight forwarders. That code section says:

“General rule.—Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.”

However, the same section states includes a “safety exception”:

(2)Matters not covered.—
Paragraph (1) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle, or the authority of a State to regulate carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization.

This statute out of the Airline Deregulation Act of 1978, which was codified in 1994 and recodified in 1995.  Though it was focused on contract and frieght claims, clever defense lawyers sought to expand it to block personal injury claims.

However, preemption of persoanl injury and wrongful death claims arising from truck crashes is based on an overly restrictive construction of what it means to “relate to” a service “with respect to the transportation of property.” The connection between the intended scope of the FAAAA on contractual and freight claims and claims for personal injury and wrongful death is too “tenuous, remote, or peripheral” for such preemption to pass the “smell test” of common sense.

In the case of C.H. Robinson v. Miller, a tractor trailer crossed the median on I-80, flipped over, blocked all lanes of travel, and caused a crash that rendered a 30-year-old man quadriplegic for life. C.H. Robinson was a freight broker that placed a load with a “chameleon” motor carrier—a truck company that changes names and applies for a new USDOT number to avoid government fines and insurance premiums. The lawsuit also asserted that the chameleon motor carrier has a history of  serious safety violations,  over 40% of its trucks were found illegally on the road when stopped for random inspections, that they had been cited many times for hours of service violations and false log books, and their percentage of out of service violations is twice that of the national average. All that information was accessible to the broker through the Federal Motor Carrier Safety Administration website.

However, the broker argued that all claims for negligent selection of the trucking company were barred by the FAAAA. A federal district judge in Reno went along with that argument. However, the US Ninth Circuit Court of Appeals agreed with the district court that common law negligence claims against brokers are not preempted because they fall within the FAAAA’s “safety exception.”

The freight broker petitioned the U.S. Supreme Court to reverse the Ninth Circuit’s rejection of the FAAAA defense. Several industry groups filed amicus (friend of the court) briefs supporting the broker’s position on FAAAA preemption. This week, the Supreme Court denied that petition. Lawyers for injury victims across the country breathed a sign of relief.

However, this is not a Supreme Court decision on the merits. Lawyers for frieght brokers, trucking companies, insurance companies, and their allies in big business will continue to argue for FAAAA preemption. As we have seen in other, more newsworthy court decisions, eternal vigilance is required to guard against  established rights being taken away by a majority on the U.S. Supreme Court. Eternal vigilance is required to protect future victims of truck crashes.

Kudos to my friend, Rena Leizerman, and Public Citizen for their hard work in beating back the industry claims of preemption. She and her husband, Michael, from Toledo, Ohio, will represent the quadriplegic injury victim at trial in 2023

If you or a loved one has suffered a femur fracture in a truck, car or motorcycle crash in Georgia, contact us online or call us at 404-253-7862.

Johnson & Ward has been a leading personal injury and wrongful death specialty law firm in Atlanta since 1949.

senior counsel at Johnson & Ward, is a former president of the State Bar of Georgia (2011-12). He was the first Georgia lawyer to earn three board certifications from the National Board of Trial Advocacy (Civil Trial Advocacy, Civil Pretrial Advocacy, and Truck Accident Law). In 2019, he received the Traditions of Excellence Award for lifetime achievement. Mr. Shigley was lead author of  eleven editions of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters, 2010-21). He graduated from Furman University and Emory University Law School.

Imagine that a commercial airliner crashed every other week in the United States, month after month, year after year. That is the level of carnage we have today in large truck crashes on America’s highways. In 2013, there were 3,964 people killed and an estimated 95,000 people injured in crashes involving large trucks, according to the National Highway Traffic Safety Administration. That year an estimated 342,000 large trucks were involved in police-reported traffic crashes during 2013. Of the fatalities in 2013, 71 percent were occupants of other vehicles, 17 percent were occupants of large trucks, and 11 percent were nonoccupants.

In our law practice, we see a portion of this carnage all the time. After years of seeing the aftermath of immeasurable damage to human bodies, and tucking into sealed files the photos I can never show to family members of the deceased, I still cringe at those sights.

Why does this mayhem continue on our highways, year after year? Here are some of the major cause:

• Speed too fast for conditions is most common single factor, involved in 58% of crashes and attributable to the large truck in 65% of those. I suspect that is underestimated because the data comes from police reports. While police try to do a good job, they typically do not have access to electronic control module data and are often not trained on trucking rules. If there is a fatal t-bone crash involving a tractor-trailer and a car entering from a side road, police may just blame the deceased driver of the car without digging deeply enough to know that the truck was exceeding the speed limit and could have stopped if it had been traveling at the speed limit. If a large truck is traveling the posted speed limit on a sheet of ice, even though their rules require “extreme caution” in adverse weather and when operating on ice to “reduce speed to a crawl and stop driving as soon as you can safely do so,” an officer ignorant of those rules may still blame the victims. I have seen both factors recently in my trucking litigation practice.
• Straying from lane of travel or driving on edge of the road. This factor is about equally attributable to large trucks and other vehicles. We see cases where this has happened. Without reliable eyewitnesses, it is often difficult to ascertain which vehicle veered out of its lane in the absence of clear physical evidence on the roadway.
• Driver errors, such as failure to keep a proper lookout or following too closely. We often handle cases in which a tired or distracted truck driver failed to observe traffic slowed or stopped ahead and ran over passenger cars that were just sitting ducks in the road. We handled a case in Brunswick in which a trucker was talking on his cell phone with someone in South America and did not see the line of stopped traffic in which he killed three people and injured several others. We have a case in Savannah in which a sleepy, inattentive truck driver failed to observe that traffic had stopped in a construction zone; he killed five people and seriously injured another.

Of course, most of these factors can contribute to crashes of smaller vehicles. Most of us have experienced fatigue when driving on long trips, or have had lapses of attention while driving. But large trucks are different. Basic physics of mass and kinetic force is a big difference. Large commercial trucks weigh up to 80,000 pounds, and some of them are allowed to weigh more. Because of their greater size, it can take twice as much time and distance to stop as a passenger car even if brakes are working perfectly.

They also operate for vastly more miles per year that passenger cars, so that maintenance needs are greater.

• Mechanical violations. A study in 2010 found that 56% of trucks involved in crashes had at least one mechanical violation, and 30% had a condition so serious it should have been taken out of service before the wreck. The most common of those mechanical violations involved brakes.
• Brakes. Various studies have reported that from 36% to 56% of large trucks inspected after crashes are found to have defective brakes, and that trucks with faulty brakes are more than twice as likely to be the vehicle that caused the crash.
• Steering. The same study revealed that 21% of trucks in crashes that were inspected had defects in steering equipment.

Most truck drivers are hardworking, responsible people, but they are fallible. Their long hours, mostly sedentary lifestyle and the difficulty of earing healthily at truck stops

• Driver fatigue. Hard working truckers tend to drive too long and sleep too little, with outcomes that are predictable. They have “hours of service limits” and are required to log their time driving, on duty but not driving, off duty and in the sleeper berth. The current limits are 11 hours driving out of 14 hours on duty, followed by at least 10 hours off duty, up to 60 hours in a week or 70 hours in an 8 day period on the road. But they can under certain circumstances restart the clock and get behind the wheel. That provision can allow a truck driver to drive up to 81 hours per week.  As many as one-third of truck drivers admit to falsifying their hours of service logs, often under pressure from employers and shippers to get the job done quickly, to meet financial incentives, or simply to make more money. While there is no easy scientific test to determine when fatigue contributes to the cause of a crash, but we can often peel away the layers of deception through detailed review of trip records. Once after deconstructing his trip records, a trucker in Ohio admitted to me in deposition that he had been driving 20 of the previous 24 hours, had driven from Ohio to Atlanta, back to Ohio, and after a one hour nap started driving back to Atlanta. He ran over a family and killed their son. In another case, a truck driver actually admitted on police video at the crash scene, “I must have went to sleep.”

• Driver impairment. In addition to fatigue, illness, drugs and alcohol can be factors. Obstructive sleep apnea is an illness that underlies many fatigue-related crashes. This is just one of the long list of disqualifying medical conditions. Prescription and non-prescription drugs may result in drowsiness or misjudgment. Occasionally, alcohol intoxication is involved. A childhood friend of my daughter was killed when an intoxicated trucker rear-ended her family’s vehicle.

In investigation of the causes of catastrophic truck crashes, we explore all these common causes and more.

————

Ken Shigley is chair of the American Association for Justice (AAJ) Motor Vehicle Collision, Highway & Premises Liability Section which includes the Trucking Litigation Group of which he is a former board member. He is a member of the board of governors of the Academy of Truck Accident Attorneys, and a board certified civil trial attorney of the National Board of Trial Advocacy. In addition, he is lead author of Georgia Law of Torts: Trial Preparation and Practice, past president of the 45,000 member State Bar of Georgia, and past chair of the Institute for Continuing Legal Education in Georgia.

Last week in Cherokee County, a Comcast truck failed to stop behind a car that had stopped to turn, went into the opposite lane, and struck head-on an oncoming car, killing the driver.

According to media reports, at the intersection of Ga. 140 and Avery Road, a Ford Fiesta  stopped to turn left onto Avery Road just before 12:30 p.m. on September 28, 2015.  For unknown reasons, a Comcast truck steered to the left to avoid hitting the Ford and traveled into the westbound lanes striking a Chevy pickup head-on.

The driver of the pickup — who I understand was a really good guy with whom I have several friend in common —   died at the scene of the crash. The driver of the Comcast truck and an occupant of the Fiesta were also injured.

One must reserve judgment pending investigation, but the list of possible causes may include driver distraction (e.g., cell phone, texting, GPS manipulation, food or beverage, etc.), driver impairment (medical, fatigue, etc.), speed, following too closely, mechanical failure, etc.

This is similar to the scenario in a case I tried several years ago in Calhoun in Gordon County. A box truck failed to stop behind a retired teacher who was preparing to make a turn at an intersection. The truck driver was not medically qualified to drive a commercial truck, lacked depth perception, and failed to accurately judge time, speed and distance as he approached the stopping car. He crossed into the opposite lane, passed through the intersection on the wrong side, and crashed into an approaching pickup truck. Fortunately, our client was able to avoid headon impact but the driver’s side of his vehicle was shorn away in the impact. He lived but had a shattered femur that caused a permanent impairment. The jury in Gordon County awarded a verdict of $2.3 million for his injury.

Even though the first priority is the need to process grief and celebrate the life of the loved one who was killed, in such cases it is important for family members to act quickly to make sure the case is properly investigated. Commercial vehicles generally have a great deal of data that can be downloaded after a crash. If police fail to do a thorough investigation and reconstruction, and allow a truck to be removed from impound before the family has a chance to send its own investigator, that electronic data evidence may be lost. For example, we had a case involving a fatal collision south of Atlanta. The police impounded the truck, but somehow allowed the trucking company to remove it from impound prematurely. The truck was repaired, put back in service and driven several hundred miles, overwriting data about the crash. We were able to retrieve some data from a Garmin GPS unit that was found on the dash in the truck cab, but that was far less valuable that the data that was erased.

The first step in such an investigation is to immediately serve the company with a notice of the need to preserve evidence, including a list of categories of evidence to preserve inviolate. Then as soon as practicable an inspection should be scheduled with a competent accident reconstruction expert.

Georgia wrongful death law includes two types of potential claims. First is the wrongful death suit for the “full value of the life,” which may include both economic damages such as value of lifetime income and benefits reduced to present value, and intangible value of life for what the experience of living was worth to the person who was killed. This claim must be brought by specific categories of survivors in priority order: spouse, children, parents, and then by the representative of the estate on behalf of other heirs at law. Second is a “survival action” for pain and suffering before death, medical and funeral bills, etc. The “survival action” must be filed by the executor or administrator of the estate. Sometimes we include both claims in a suit, and sometimes for tactical reasons we file one and leave out the other.

——————

Ken Shigley is a trial attorney practicing statewide in Georgia, focused on serious personal injury and wrongful death cases, especially arising from commercial truck accidents. He is currently chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section. Previously he served as president of the State Bar of Georgia and chair of the board of trustees of theInstitute for Continuing Legal Education in Georgia. He is lead author of Georgia Law of Torts: Trial Preparation and Practice and a board certified civil trial attorney of the National Board of Trial Advocacy.

Ten deaths of innocents on I-16 in the past six weeks have prompted a protest by truck drivers at the Port of Savannah against unsafe practices of trucking companies. In a news conference Monday, these truckers said that long hours on the road are to blame from this rash to multiple fatalities

At a Tuesday morning news conference, truck drivers said long hours on the road are the cause of these fatal crashes. These Savannah area truckers are calling for the Federal Motor Carrier Safety Administration to enforce hours of service and fatigue regulations that require trucking companies to limit the number of hours they can require drivers to work.

Consistent with what other truck drivers have either admitted under cross examination or confided to me of coffee at truck stops many times over the years, driver Carol Cauley said trucking companies often pressure them to work when they are too fatigued to drive safely. That, combined with low wages, keeps them from being able to afford food or rest breaks. “I actually have friends I know that have told me that they’ve fallen asleep on the road, and I’m like please slow down and they’re like well, I have to take care of my family.” She said that after truck maintenance costs and fuel, truck drivers often make below minimum wage.

Federal safety rules, which are too often evaded, address driver fatigue:

A federal safety rule on fatigue states that, “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”

A related rule on hours of service requires: (1) a trucker can drive only 11 hours within a 14 hour period before going off duty for 10 hours; (2) 34 hour restart must include two 1am to 5am periods and can only be used once in 7 days, and (3) 30 minute break period after 8 hours.

The primary focus of these rules is safety of travelers on the roads, as illustrated by the rash of multiple fatality crashes on south Georgia. But there is also a bad effect truck drivers’ health. The average life expectancy of a truck driver is 61, or 16 years less than the U.S. average, according to Centers for Disease Control data. Trucking is the eighth-most dangerous job in terms of deaths per worker, according to the Bureau of Labor Statistics.

We are currently involved in several truck crash wrongful death cases representing survivors of four people killed when rear-ended by tired or distracted drivers of intermodal freight tractor trailers on interstate highways on the Georgia coast. That includes two killed on I-95 at Brunswick in December 2013, plus two killed on I-16 near Savannah last month.

——————-

Ken Shigley is past president of the State Bar of Georgia, a certified civil trial attorney of the National Board of Trial Advocacy, lead author of Georgia Law of Torts: Trial Preparation and Practice (Thomson Reuters West, 2010-15), past board member of the Trucking Litigation Group and in July 2015 will become chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section of the .

As a trucking accident personal injury and wrongful death lawyer based in Atlanta, I get a chance to see the trucking safety issues from the point of view of both innocent folks who are run over by tractor trailers and truck drivers who are themselves put at risk by companies that care too little about safety.

A blogging truck driver at Go By Truck News wrote this week that “A rogue motor carrier is a truck driver’s worst nightmare.”

He wrote that last year, D.A. Landis Trucking, Inc. was charged with conspiracy for ordering drivers to falsify their daily logbooks, maintain two sets of logs, falsely certify accuracy of the lying logs, had dispatchers also knowingly dispatched drivers on trips that were truck accidentto exceed hours-of-service requirements.

That is old news to those of us who have been digging through truck drivers’ logs and trip documents and both deposing and interviewing truck drivers.

He also gathered these tweets from tired truck drivers:

– “My dispatcher goes retarded when I tried to tell them I have only 1 hr left to drive.”

– “I have heard this from many dispatchers before. Come on we need you for one more.”

– “When it comes to driving we have 65mph trks n 100mph dispatchers with 26 hrs in a day!”

– “Dispatch was kind enough to plan my first load for 4am central time. My paperwork is invalid and dispatch won’t be in for another 3 hrs.”

Go By Truck News urges truck drivers to check the safety records of any company they consider working for, and to make sure they know the rules, including these:

FMCSR 392.6 Schedules to conform with speed limits. “No motor carrier shall require a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial vehicle being operated at speed greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.”

FMCSR 390.13 Aiding or abetting violations. “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”

FMCSR 392.3 Ill or fatigued operator. “No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.” (This regulation was mentioned in my prior article and worth repeating again here).

He is spot on in stating that, “A good safety director will educate a driver about these regulations, rewarding and not penalizing a driver for declining to take a load if they are too fatigued. A good company with a pattern of safe behavior will give a trucker an opportunity to develop a disciplined sleep routine.”

He urges that, “it’s often the employer / load planner / dispatcher pushing the trucker beyond their limits. However, all truckers should take a stand with the Trucker Mike’s ‘Mantra’ – ‘I will NEVER let anyone ‘push’ me, instead I’ll be fired for being SAFE if need be!’”

This afternoon, my friend Steve Gursten in Michigan forwarded this plea he received from a truck driver who wants to drive safely but works for a rogue trucking company that won’t allow him to follow the law:

The company that I drive for has me doing illegal runs. I feel if I don’t do them my miles will be cut or they will find a way to get rid of me. I need to care for my family. I have been too many companies and they are all the same. The one I’m with now is the worst. I’m looking for other employment and coping the best I can. Is there anyone I can talk to like a whistle blower organization? Or maybe a letter too the sec of transportation? Companies, dispatchers, shippers and receivers need to be held accountable. Until we have better legislation in place to address this, us truckers will always be at the bottom of the hill. And of course we know which direction s##t rolls.

Wow!

That is right in line with my impression over the years that most truck drivers are just ordinary good guys working hard to make a living, but are too often pushed by employers, motor carriers, shippers, brokers, etc., to make illegal runs on impossible schedules, so that they are often pushed beyond the limits of human endurance.

That is why I generally try to handle these cases by digging for a root cause analysis in the corporate safety management system — or lack thereof.

I suggested referring this guy to Truckers Justice Center in Minnesota, operated by a lawyer who represents whistle blowing truck drivers nationwide
If your or a family member were run over by a tractor trailer, or if you are a truck driver badly injured in the line of duty, I would be glad to talk with you with no obligation.

Ken Shigley is an Atlanta-based trial attorney who served as president of the State Bar of Georgia in 2011-12, is listed in Georgia “Super Lawyers” and “Legal Elite,” is double board certified by the National Board of Legal Specialty Certification, and focuses his practice on serious personal injury and wrongful death cases arising for truck, car and defective product accidents.

Despite the political gridlock and recent shutdown of the federal government, Congress has managed to pass legislation to address the danger of sleep apnea in the trucking industry. At this writing, it awaits the President’s signature.

House Resolution 3095 is a simple, two-page bill sponsored by two members of Congress sped through Congress. It requires the Federal Motor Carrier Safety Administration to commit to formal rule making on sleep apnea testing and treatment for truckers and other professional drivers.

The trucking industry, predictably enough, estimates that “the impact of screening, diagnosis, and treatment for obstructive sleep apnea could exceed $1 billion annually.” But that is a bargain compared to the carnage on the highways due to drivers of 80,000 pound tractor trailers falling asleep at the wheel.

The downside of this, warns my friend Michael Leizerman in Ohio, is that by requiring the FMCSA to go through full rulemaking and cost-benefit analysis when addressing screening, testing or treatment of sleep apnea, it may delay rather than speed up efforts to address the very real problem of sleep apnea. As Michael pointed out in a recent blog post, the FMCSA has already published the online Fatigue Management Training program and has many simple and inexpensive ideas to make fatigue awareness part of a motor carrier’s safety culture.

Untreated sleep apnea can lead to fatigued driving and is thus a medically disqualifying condition for truck drivers. FMCSR 391.41(b)(5). We have seen too many cases in which our clients were run over by truck drivers who were often good folks but were dangerous behind the wheel due to fatigue, drowsiness and untreated sleep apnea.

As Michael Leizerman has pointed out, this legislation requires the FMCSA to go through a full rule making process which will add years of delay to the implementation of much needed efforts to forcefully address the problem of sleep apnea among truck drivers.

Ken Shigley is an Atlanta trial attorney whose practice focuses on trucking accident litigation. He is a past president of the State Bar of Georgia, board certified trial attorney and lead author of Georgia Law of Torts: Trial Preparation & Practice.

The latest round in that fight was won by the Federal Motor Carriers Safety Administration, though neither the trucking industry nor safety advocates are satisfied. On August 2, 2013, the U. S. Circuit Court of Appeals in Washington, DC, upheld most provisions of new hours of service regulations that went into effect on July 1. The new rule revisions now require: ( 1) 34 hour restart must include two 1am to 5am periods and can only be used once in 7 days, (2) 30 minute break period after 8 hours, and (3) retention of the rule that a trucker can drive only 11 hours within a 14 hour period before going off duty.

As always happened, the new regulations were challenged both by the American Trucking Association and various truck safety groups. The court denied petitions from all the groups with one small exception-the 30 minute break requirement does not apply to short-haul drivers who operate within 100 miles of their reporting location. The court rejected most of the arguments made by the American Trucking Association, Inc. as “highly technical points best left to the agency.”

As I have learned over the years, there are no final victories and no final defeats for either side in these endless lobbying battles.

The new rule is a revision to 49 CFR § 395.3 in the Federal Motor Carrier Safety Regulations administered by the Federal Motor Carrier Safety Administration (FMCSA), the regulator for trucking and bus companies.

“With one small exception, our decision today brings an end to much of the permanent warfare surrounding the fatigue rule,” U.S. Circuit Judge Janice Rogers Brown said about the decision.

We shall see whether this is really an end to fighting over fatigue rules, but for now there may be at least a pause in the fighting between the industry and regulators over drive-time restrictions that led to two previous challenges before the appellate court. Regulators said they weighed industry costs against billions of dollars in health-care savings and reduced crashes in a profession that has more on-the-job deaths than any other in the U.S.

This is not just about road safety. It is also about truck drivers’ health. The average life expectancy of a truck driver is 61, or 16 years less than the U.S. average, according to Centers for Disease Control data. Trucking is the eighth-most dangerous job in terms of deaths per worker, according to the Bureau of Labor Statistics.

Longer rest breaks and updated freight networks could reduce productivity by 3 percent according to Federal Travel Regulations Associates. Experts say that could mean about $18 billion in additional costs for the trucking companies and that could mean consumers are going to feel the cost of the new regulations as well.

This is just the most recent of court decisions in the battle between the trucking industry and the FMCSA since 1999. A 2003 rule allowing longer driving shifts – 11 hours rather than the previous limit of 10 hours — was challenged by consumer groups, which persuaded the court to send it back to the Federal Motor Carrier Safety Administration (FMCSA) to be reworked. A 2005 rule was also challenged in court and sent back. The agency began another rulemaking in 2008, only to hold back and negotiate with safety groups when they threatened litigation. That led to three years of deliberation before the latest regulation was published in December 2011, continuing the rule that truckers may drive 11 hours out of 14 hours on duty.

Safety advocates continue to lobby for less fatiguing truck driving shifts. Retaining the longer work shifts will make the American public less safe, said Henry Jasny, vice president and general counsel of Advocates for Highway and Auto Safety. The FMCSA has put profits of the trucking industry ahead of the public’s safety, Jasny said.

“Upholding this rule will continue to make our trucks rolling sweatshops,” said Joan Claybrook, chairman of the board of Citizens for Reliable and Safe Highways. “Truck drivers will continue to be pushed beyond their limits and will imperil not just their own lives but the safety of all of us sharing the roads.”

As a lawyer representing individuals and families hut by fatigued truck drivers, I will work with whatever the rules are at any given time.

Ken Shigley is past president of the State Bar of Georgia (2011-12), double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification, and lead author of Georgia Law of Torts: Trial Preparation and Practice. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

But most of us have personal experience to know that a driver can be dangerously sleepy in far less than 11 hours of driving.

Australian researchers have confirmed what we intuitively know. Caffeine can help maintain driver alertness. But caffeine alone is not enough, and naps can help too. In “Use of caffeinated substances and risk of crashes in long distance drivers of commercial vehicles: case-control study,” published at BMJ 2013; 346 doi: http://dx.doi.org/10.1136/bmj.f1140 ( 19 March 2013), Lisa N Sharwood and her collaborators reported on their study.

Their bottom line:

– Caffeine helps, but that alone is not enough.

– Breaks help, whether used for naps, exercise or drinking coffee.

All this seems like common sense, but it bears repeating. One problem in the trucking industry is that trucking companies and shippers sometimes insist on driving the maximum hours allowed (or longer), so that no credit is given for drivers who take breaks to help maintain alertness within those hours.

However, the Federal Motor Carrier Safety Regulations include not just the hours of service rules but also a more general restriction against operating a commercial vehicle when too fatigued or ill to safely do so.

Ken Shigley is former president of the State Bar of Georgia, which includes all lawyers licensed to practice in Georgia. His practice is focused on representation of individuals and families in serious injury and death cases arising from truck and bus crashes in Georgia.

In ABCO’s case, this bad safety record culminated in a tragic crash on Wednesday on Thornton Road in Douglas County, Georgia, when an ABCO truck driver ran a red light, taking the lives of two co-workers at AutoTrader.com (a Cox Enterprises subsidiary) and injuring four others.

I was in Chattanooga, at the office of another trucking trial attorney, when I got a message to return a call from the family of two of the injury victims who had been referred by their family’s attorney in another state.

ABCO’s record with the Federal Motor Carrier Safety Administration shows unsafe driving violations with a 74.3 percentile score. Anything over 60th percentile is unsatisfactory. In the past two years, ABCO had 81 reported unsafe driving violations, and has rated unsatisfactory for unsafe driving violations for every reporting period since December 2010. That is probably the tip of the iceberg, as it only indicates the times they got caught.

Specific reported violations include:

– Failure to obey traffic control device, 8 violations – Following too close, 11 violations – Improper lane change, 3 violations – Lane Restriction violation, 5 violations – Improper passing , 1 violation – Reckless driving, 1 violation – Speeding, 14 violations – Speeding 15 or more miles per hour over the speed limit, 4 violations – Speeding work/construction zone, 4 violations
In 2011 and 2012, ABCO has had 18 reported crashes, 8 of which involved injuries, with a total of 17 people injured. These include:

– 6/22/12, Pennsylvania, 2 injured – 12/9/11, New York – 12/2/11, Ohio – 11/29/11, Colorado – 11/2/11, New York, 1 injured – 10/11/11, Virginia – 9/9/11, Missouri – 4/27/11, Kentucky – 4/7/11, Florida, 1 injured – 3/5/11, Alabama – 2/10/11, Virginia, 7 injured – 1/20/11, Ohio – 11/23/10, Florida, 1 injured – 11/3/10, Indiana, 1 injured – 10/25/10, Ohio – 8/29/10, Texas, 1 injured – 7/31/10, Virginia, 3 injured – 7/9/10, Connecticut
Regarding fatigued driving, one of the most common underlying causes of truck crashes, ABCO is right at the threshold for an unsatisfactory rating — 59.8 percentile when anything over 60 percentile is considered unsatisfactory. ABCO was over the 60 percentile threshold for unsatisfactory driver fatigue rating for 4 of the past 6 reporting periods. Reported violations only indicate when they got caught, so they are normally the tip of the iceberg. Violations include:

– False report of driver’s record of duty status, 8 (lying about driver logs)
– Requiring or permitting driver to drive more than 11 hours, 8 violations – Requiring or permitting driver to drive after 14 hours on duty, 20 violations
It was with that background that an ABCO Transportation tractor-trailer operated by 64-year-old Robert John Sansom, of Colorado ran a red light on Thornton Road in Douglas County, Georgia, on Wednesday, July 11th. Two women on their lunch break were killed — Tracy Downer and Michelle Chinnis, both of whom in sales for AutoTrader.com, a website owned by Cox Enterprises. Four other people were injured in the crash . According to an article by Alexis Stevens in the AJC, Downer previously worked in advertising at the AJC from 1993 to 2010, was married with a son and a daughter, and Chinnis is survived by a 16-year-old daughter.

Victims and their families may choose separate attorneys or joint representation in such instances of serious personal injury or wrongful death, as this is a potential conflict that may be waived in writing after informed consent pursuant to Georgia Rule of Professional Conduct 1.7.

Whenever there are multiple victims of a crash such as this one, it is important to coordinate representation. Most recently, we were involved in the joint prosecution group coordinating representation of member of the Bluffton University baseball team arising from a bus crash in Atlanta in 2007. Where there are no substantial indications of fault on the part of any of the victims, the only potential conflict among them is generally concern about adequacy of insurance coverage and assets to cover all claims.

The Federal Motor Carrier Safety Administration website only shows for ABCO a $1,000,000 liability policy with Protective Insurance Company. However, an interstate motor carrier with 174 trucks is likely to carry an excess liability insurance policy with considerably higher limits, perhaps an additional $5,000,000 to $20,000,000. That information is not public and generally is reliably documented only in litigation.

Ken Shigley is immediate past president of the State Bar of Georgia, chair of the board of the Institute for Continuing Legal Education in Georgia and incoming secretary of the American Association for Justice Motor Vehicle, Highway and Premises Liability Section. He is a board member of the American Association for Justice Trucking Litigation Group and has been on the faculty of trucking litigation seminars from coast to coast. Mr. Shigley is double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the American Board of Legal Specialty Certification (formerly National Board of Trial Advocacy), has an AV Preeminent rating in Martindale-Hubbell Law Directory, is listed as a “Super Lawyer” by Atlanta Magazine and “Legal Elite” by Georgia Trend, and is the lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12). He grew up in Douglas County, Georgia, and began his career there as an Assistant District Attorney.

Effective February 27, 2012, the FMCSA revises the hours of service (HOS) regulations so as to cut maximum work week from 82 to 70 hours on average. To combat the effects of chronic fatigue, the provision allows drivers to work intensely for one week, but will require them to compensate by taking more time off in the following week. This is being done

. . . to limit the use of the 34-hour restart provision to once every 168 hours and to require that anyone using the 34-hour restart provision have as part of the restart two periods that include 1 a.m. to 5 a.m. It also includes a provision that allows truckers to drive if they have had a break of at least 30 minutes, at a time of their choosing, sometime within the previous 8 hours. This rule does not include a change to the daily driving limit because the Agency is unable to definitively demonstrate that a 10-hour limit-which it favored in the notice of proposed rulemaking (NPRM)-would have higher net benefits than an 11-hour limit. The current 11-hour limit is therefore unchanged at this time. The 60- and 70-hour limits are also unchanged. The purpose of the rule is to limit the ability of drivers to work the maximum number of hours currently allowed, or close to the maximum, on a continuing basis to reduce the possibility of driver fatigue. Long daily and weekly hours are associated with an increased risk of crashes and with the chronic health conditions associated with lack of sleep. These changes will affect only the small minority of drivers who regularly work the longer hours.

The FMCSA explains that:

The goal of this rulemaking is to reduce excessively long work hours that increase both the risk of fatigue-related crashes and long-term health problems for drivers. A rule cannot ensure that drivers will be rested, but it can ensure that they have enough time off to obtain adequate rest on a daily and weekly basis. The objective of the rule, therefore, is to reduce both acute and chronic fatigue by limiting the maximum number of hours per day and week that the drivers can work.

Ken Shigley is president of the State Bar of Georgia, a Certified Civil Trial Attorney of the National Board of Trial Advocacy and has an Atlanta-based law practice focused on representation of people seriously injured in commercial trucking accidents.

I don’t know if that is what led to a fatal crash this week just across the state line on I-85 in Anderson County, SC. However, authorities in Anderson County have already concluded that a truck driver fell asleep at the wheel causing a wreck that killed three people. According to the coroner, an autopsy ruled out a stroke or heart problem.

South Carolina state troopers report that a big rig driven by Eddie Wyatt, 69,of Rockmart, Ga., was southbound on I-85, when it careened across the median into the northbound lanes, crashing head on into another tractor trailer head on. The second 18 wheeler jack-knifed and struck an SUV and a pick-up truck.

Both tractor trailer drivers, Wyatt and , Clay Johnson, 38 of Charlotte, N.C., were killed.

The third fatality was Jeremy Wilson, 33, a lawyer in Lincolnton, N.C., who was driving a Toyota Tundra towing a fishing boat on a trailer.

Curtis and Beverly Schulze, were airlifted to Greenville Memorial Hospital. They were released on Sunday.

Ken Shigley is an Atlanta-based trucking accident trial attorney, handling interstate trucking accident cases throughout the southeast under the multijurisdictional practice and pro hac vice rules of each state. A graduate of Furman University in Greenville, SC, and Emory University Law School in Atlanta, Shigley is a board certified civil trial lawyer of the National Board of Trial Advocacy, a national board member of the Commercial Trucking Litigation Group of the American Association for Justice, and president of the State Bar of Georgia.

Today the U.S. and Mexico signed an agreement to allow Mexican tractor trailers and big rigs to operate in the U.S. and suspend retaliatory Mexican tariffs that added 5 to 25 percent to the cost of U.S. exports sold in Mexico.

This is the latest development in the long-running controversy to concerns about the safety standards of Mexican trucking, which long blocked North American Free Trade Agreement (NAFTA) rules permitting Mexican trucks to cross beyond a 25- mile border zone.

The USDOT justifies today’s action by saying that Mexican trucks must comply with all Federal Motor Vehicle Safety Standards, and will have electronic monitoring systems to track hours on the road, and that Mexican tractor trailer truck drivers must take drug tests that are analyzed in the U.S., hand over complete driving records and prove their English-language skills.

A previous cross-border pilot program for trucking certification program in 2009 included only 157 Mexican trucks.

Reactions from interest groups has varied widely:

• The US Chamber of Commerce supports the agreement as “a vital step toward a more efficient U.S.-Mexico border,” according to a statement from COC president Thomas Donohue. Truckers drop trailers at the border before crossing. Older rigs, often called transfers, pick them up to cross and leave them for a long-haul truck waiting on the other side.

• Regarding safety concerns, the Conservative Daily News blog points out that while USDOT will pay for electronic on-board recorder (EOBR) to monitor hours of service of Mexican tractor trailers, an “EOBR cannot determine if the driver of the commercial vehicle is working other than driving, or if this driver is asleep or awake. It will not ‘automatically’ do anything as the driver still must manually enter whether a change of duty status has occurred or not.” It quotes a report issued from the Congressional Research Service in February of 2010 which stated:

“The rationale of eliminating the truck drayage segment at the border, and of NAFTA in general, is to reduce the cost of trade between the two countries, thus raising each nation’s economic welfare. However the cost to federal taxpayers of ensuring Mexican truck safety, estimated by the U.S. DOT to be over $500 million as of March 2008, appears to be disproportionate to the amount of dollars saved thus far by U.S. importers or exporters that have been able to utilize long-haul trucking authority. . . . Any accumulated savings in trucking costs enjoyed by shippers therefore should be weighed against the public cost of funding the safety inspection regime for Mexican long-haul carriers.”

• The American Association for Justice Interstate Trucking Litigation Group, of which I am a board member, urged USDOT to bring up to date liability insurance coverage requirements, which have been unchanged since 1980, prior to implementing the cross-border program. The $750,000 minimum liability coverage for interstate motor carriers adopted in 1980 would be nearly $2,000,000 today if simply adjusted for inflation. USDOT responded:

“Mexico-domiciled motor carriers must establish financial responsibility, as required by 49 CFR part 387, through an insurance carrier licensed in a State in the United States. Based on the terms provided in the required endorsement, FMCSA Form MCS-90, if there is a final judgment against the motor carrier for loss and damages associated with a crash in the United States, the insurer must pay the claim. The financial responsibility claims would involve legal proceedings in the United States and an insurer based here. There is no reason that a Mexico-domiciled motor carrier, insured by a U.S.-based company, should be required to have a greater level of insurance coverage than a U.S.-based motor carrier. Increasing the minimum levels of financial responsibility for all motor carriers is beyond the scope of this notice and would require a rulemaking. In accordance with section 350(a)(1)(B)(iv), FMCSA must verify participating motor carriers’ proof of insurance through a U.S., State-licensed insurer. As a result, participating motor carriers may not self-insure.”

• The Owner-Operator Independent Drivers Association (OOIDA) is bitterly critical of the action, and is challenging it in court in Washington. OOIDA asserts that Mexico has failed to institute regulations and enforcement programs that are even remotely similar to those in the United States, and there would be no relevant corresponding reciprocity for U.S. truckers. According to OOIDA, “This program will jeopardize the livelihoods of tens of thousands of U.S.-based small business truckers and professional truck drivers and undermine the standard of living for the rest of the driver community.”

• Teamsters Union president Jim Hoffa also questioned legality of the program because it grants permanent operating authority to Mexican trucks after 18 months in the “pilot program” without Congressional authorization, and because DOT would use money from the Highway Trust Fund to pay for electronic on-board recorders for Mexican trucks. He said, “opening the border to dangerous trucks at a time of high unemployment and rampant drug violence is a shameful abandonment of the DOT’s duty to protect American citizens from harm and to spend American tax dollars responsibly.”

• Industry groups that export to Mexico, and are impacted by retaliatory Mexican tariffs, support the decision. They include the National Cattlemen’s Beef Association (NCBA) , California grape growers , and Washington State apple growers.

This Georgia truck wreck lawyer may run down to the mall to buy a Rosetta Stone home study course on Spanish.

Ken Shigley is president of the State Bar of Georgia, author of Georgia Law of Torts: Trial Preparation and Practice, a Certified Civil Trial Attorney of the National Board of Trial Advocacy (one of 20 in Georgia), a board member of the Interstate Trucking Litigation Group, and designated as a “Super Lawyer” by Atlanta Magazine.

The truck driver, Henry Lipps, 59, from Indiana, has been charged with following too closely and second degree homicide by vehicle.

Police investigators said Lipps did not brake when he approached stalled traffic on a southbound lane of I-75 north of the Windy Hill Road exit. His 18-wheeler crashed into the back of a car in which the child and two adults, Donald Morgan, 25, and Candice Morgan, 24, were riding.

The child was taken to Scottish Rite with critical injuries while the parents were taken to Atlanta Medical Center. Two other adults riding in another car, Ramon Mcelrathbey, 24, and Cornelius Mcelrathbey, 21, were taken to Grady Memorial Hospital.

The tragedy of what happened is obvious. The unanswered question is “why?”

In my trucking accident trial practice in Georgia, I have seen this scenario too often.

In one case, a truck driver from Ohio ran over a family on I-75 a night, and showed Georgia state troopers a driver log that made it appear he was well within his legal hours of operation. But when, in the wrongful death lawsuit, we got all the documents and took his deposition in Ohio, his story slowly unraveled.

In the end, he admitted that his driver log was a complete fabrication. He actually had been driving 20 of the 24 hours immediately before running over a family and killing their child.

When we dug into the company’s records, the evidence was such that a federal judge wrote that the company “turned a blind eye” to habitual safety violations.

When such evidence is uncovered, the potential damages can be increased well beyond a “normal car wreck” tragedy.

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 agency will also webcast the session live with a forum on its website for comments and questions in order to maximize public participation.

The proposed rule change, which I discussed in this blog about six weeks ago, defines a fault line between the trucking industry, which generally claims asserts the proposed changes would excessively restrict the trucking business in already economically difficult time, and safety advocates who say the changes don’t go far enough in reducing driver fatigue.

According to Transportation Department records, driver fatigue accounts for up to 40 percent of all commercial vehicle crashes.

The hearing will be held at the Crowne Plaza Washington National Airport hotel at 1480 Crystal Drive, Arlington, Virginia 22202. The live webcast may be viewed by going to www.fmcsa.dot.gov. The session will last from 12 noon until 12 midnight EST.

If you or a loved one have been injured by negligence in operation of a large commercial truck in or from Georgia, contact us today to determine whether you have a claim.

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 Truck Safety Coalition is dedicated to reducing the number of deaths and injuries caused by truck-related crashes, providing compassionate support to truck crash survivors and families of truck crash victims, and educating the public, policy-makers and media about truck safety issues.

If you or a loved one have been injured by negligence in operation of a large commercial truck in or from Georgia, contact us today to determine whether you have a claim.

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.

Now, after years of controversy, the Federal Motor Carrier Safety Administration is proposing a new rule requiring Electronic On-Board Recorders (EOBR).

A proposed rule published published Feb. 1 that would require motor carriers that are required to maintain Records of Duty Status for Hours of Service (HOS) recordkeeping would have to use EOBRs to monitor their drivers’ compliance.

FMCSA’s proposal includes supporting documents these carriers would still be required to obtain and keep, as required by section 113(a) of the Hazardous Materials Transportation Authorization Act, but it would remove requirements to retain supporting documents to verify driving time. It would require all carriers to systematically monitor their drivers’ compliance with HOS requirements, with three years from the effective date of the final rule to comply.

The agency is accepting comments until April 4, 2011. FMCSA had issued a rule on April 5, 2010, that mandated EOBR use by June 4, 2012, by motor carriers found during a compliance review to have a 10 percent violation rate for any HOS regulation. This new rule expands that requirement, with three possible options:

Option 1 would require EOBRs for all drivers required to use paper logs.

Option 2 expands Option 1 to include all passenger-carrying commercial motor vehicles subject to the s and Federal Motor Carrier Safety Regulations shipments of bulk hazardous material, regardless whether the drivers use paper logs or are exempted from doing so.

Option 3 would include all commercial motor vehicle operations subject to the hours of service requirements.

While this is generally a step in the right direction, I’m cynical enough to note that even electronic systems are potentially subject to manipulation and cheating, though the human overrides required to cheat will require more sophistication than merely lying on a paper log, often referred to as a “comic book.” If maintenance of supporting documentation is no longer required, it will become vastly more difficult to check the accuracy of electronic records that may be subject to sophisticated cheating.

Those of us who inquire into the truth underlying hours of service reports will also have to become more sophisticated about discovery of electronically stored information in the trucking industry. That will likely require more experts and more expense.

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.

In recent years we have seen halting progress toward use of Electronic On-Board Recorders in the trucking industry. While still subject to manipulation, EOBR records are at least harder to fake.

Now, however, two Senators backed by giant trucking companies have proposed legislation that would allow use of EOBR information only if it’s good for the trucking company defendant, and keep it hidden if it helps the folks who are injured or killed by the trucking company.

Senators Mark Pryor (D-Ar) and Lamar Alexander (R-Tn) recently introduced the Commercial Driver Compliance Improvement Act (S. 3884), which is an attempt by the trucking industry to hide evidence of fatigue in any truck driver involved in a wreck.

Of course, campaign contributions — and now the unregulated flow of anonymous corporate cash — count for more in Washington that the interests of members of the public who don’t yet know that they will be maimed or killed on the roads.

The bill, if passed, would allow the information contained in Electric On Board Recorders (EOBRS) to be used only by the owner. If the information helped the trucking company, they could use it. If it showed that the truck driver was fatigued, the company would be allowed to conceal its existence. Thus, people injured due to the trucking company’s practice of allowing fatigued drivers on the road would be denied access to the information needed to prove that aspect of the case.

Five giants of the trucking industry — JB Hunt Transportation, Knight Transportation, Maverick Transportation, US Express, and Schneider National — have formed a coalition they’re calling “The Alliance for Driver Safety & Security” to back the bill. They benefit financially from EOBR as a management tool, will benefit financially by revealig the data if it helps them in a case, and will benefit financially by burying the truth if it shows that their fatigued drivers injured or killed another person on the road.

Kudos to my friend, Morgan Adams in Chattanooga, for calling this to my attention.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is a board member of the Interstate Trucking Litigation Group, 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 . He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, wrongful death, products liability, spinal cord injury, brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.

Prior to 2003, interstate truckers could drive 10 hours out of a 15 hour work day.

Since 2003, truckers have been allowed to drive 11 consecutive hours a day and work up to 14 hours, followed by a 10-hour off-duty period.

Now the safety advocacy group Public Citizen is pushing for a rule limiting truckers to driving 8 hours in a 12 hour work day.

This week, Federal Motor Carrier Safety Administration submitted its proposed truck driver hours of service rule to the Office of Management and Budget. Details were not released, but most expect some shortening of driving and work hours.

While fatigue from long hours on the road contributes to serious accidents, trucking industry representatives say that shortening the work day will drive up shipping costs and that increasing the number of trucks on the road will increase safety risks.

Two things we can count on are that the controversy will continue in some form far into the future and that those who want to cheat will find ways to cheat.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is 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 . He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, wrongful death, products liability, spinal cord injury, brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.

Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice , is president-elect of the State Bar of Georgia. 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 . He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, wrongful death, products liability, spinal cord injury, brain injury and burn injury cases. This post is subject to our ethical disclaimer.

I’ve seen tragic cases where truckers tried to make it from Milwaukee to Tampa without required rest breaks, cases where truck drivers crashed when they fell asleep in their 18th or 20th hour behind the wheel. Paper logbooks are nearly useless in detecting such violations but we have been able to ferret them out with a variety of forensic methods.

But I don’t see truckers as bad guys. I’ve represented a lot of them, and have spent many pleasant hours drinking coffee and swapping stories with them in truck stops. They have hard, dangerous jobs. Most are hard-working, honest people who don’t fit any negative stereotypes. But there are still many who don’t fully appreciate how a macho desire to push themselves beyond the legal work hours endangers the lives of other people. The hazard of driver fatigue is complex and multidimensional.

Since 2004, the number of large truck crash injuries per 100 million miles has dropped 25 percent and the truck-involved fatality rate has dropped 22 percent. The fatality rate has dropped 66 percent since the DOT began keeping those records in 1975. The most recent figures from the U.S. Department of Transportation (DOT) indicate that the truck-involved fatality rate declined 12.3 percent in 2008 to 1.86 per 100 million miles, from 2.12 per 100 million miles in 2007. Persons injured in large truck crashes went from 44.4 per 100 million miles to 39.6, an 11 percent reduction.

There is room for debate, however, as to what factors had most to do with the change. Some attribute it to a change in hours of service rules. Others may point out the decline in truck traffic due to the recession, improved safety features in vehicles, variations in data reporting, etc.

While there is some improvement in accident data, the American Trucking Association has made five suggestions to the Federal Motor Carrier Safety Administration to further combat hazards associated with driver fatigue. They are:

(1) Sleep disorder awareness, training and screening. (Raising consciousness of the problem among truck drivers is an extremely important step.)

(2) Promoting the use of fatigue risk management programs. (It has to be in the culture of the trucking companies. I’ve seen too many tragic cases where the trucking company management absolutely turned a blind eye to hours of service violations and driver fatigue.)

(3) Evaluating the use of fatigue detection devices. (When the driver’s eye are drooping and head is nodding, it’s time to pull over!)

(4) Increasing the availability of truck parking on important freight corridors. (It’s one thing to say a trucker can drive only so many hours, but that driver faces a Catch-22 dilemma when there are no legal places to park when he runs out of hours.)

(5) Partnering with the trucking and shipping communities to develop an educational process that identifies for drivers the location of available truck parking. (Of course!)

These all incorporate common sense. If fleshed out with quantifiable, measurable details, they could help a lot.

Ken Shigley is a truck and bus safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia.

Mr. Shigley 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.

Mr. Shigley served as chair of the Southeastern Motor Carrier Litigation Institute and is a national board member of the Interstate Trucking Litigation Group. He is currently Treasurer of the 41,000 member State Bar of Georgia, of which he will become President-Elect on 6/19/10 and President in on 6/4/11. This blog expresses only personal views of Mr. Shigley, and nothing in it should be construed as expressing any opinion on behalf of any organization of which Mr. Shigley is a member or officer.

This post is subject to our ethical disclaimer.