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20 February 2019
Serious or fatal accidents involving tractor trailers or other commercial vehicles often arise or result in part from some maintenance defect in the vehicle. When this occurs and the matter goes into litigation, counsel for the plaintiff will shine a very bright spotlight on the pre-trip inspection that was or should have been performed by the driver. How much time was spent and what the driver actually did − and especially what the driver actually knew how to do − will factor into how much liability exposure the operator and owner of that vehicle may face.
The US federal regulations governing this issue provide: "Every motor carrier, its officers, drivers, agents, representatives and employees directly concerned with the inspection or maintenance of commercial motor vehicles must be knowledgeable of and comply with the rules of this part." Those rules, particularly CFR 396.11, provide that "every motor carrier shall require its drivers to report, and every driver shall prepare a report in writing at the completion of each day's work on each vehicle operated" regarding the driver's inspection of the following:
As these inspections are mandated by federal regulations, failure to do them or to do them competently may result in a finding of negligence per se against a driver and their employer. In those states that recognise a negligence per se cause of action, such a finding may be sufficient to allow a plaintiff to demonstrate liability as a matter of law simply based on the violation of the regulation. In such cases, the damages can be quite high. Courthouses around the United States routinely see judgments and settlements in the seven-figure and even eight-figure range when the significant injury or death of a third party flows from the failure to conduct or adequately conduct a pre-trip inspection.
This article addresses three key liability issues that commercial vehicle owners and operators should consider − and hopefully will address − in their practices, policies and procedures pertaining to pre-trip inspections:
Unfortunately, there is no right answer to this question. Case law and expert opinions vary widely regarding how much time is enough. Some plaintiffs' lawyers will argue that the pre-trip inspection should take approximately 30 to 50 minutes. Others in the industry may argue that five to 20 minutes is sufficient.
Before driving any truck, the driver is supposed to be satisfied that the commercial vehicle is in a safe operating condition. If a driver testifies that they conducted a thorough inspection of the 11 vehicle systems required under the regulations in 10 or 15 minutes, they will be cross-examined regarding the thoroughness of that inspection and likely will be challenged regarding the meaningfulness of such an inspection. If the driver is just 'going through the motions' and never finds anything wrong with a vehicle after years of doing these inspections, the driver's pre-trip inspection logs will be called into question when an accident does occur.
The plaintiffs' lawyer's ultimate goal is not to go after the driver regarding the time spent on pre-trip inspections. This is just the first step. If the driver is not performing full and adequate pre-trip inspections, the lawyer will then go after the company for failing to put systems in place to ensure that compliant pre-trip safety inspections are being conducted by the transportation company's drivers.
In the end, these lawyers will argue − including to a jury − that it is the company's responsibility to make certain that its drivers are complying with safety regulations. That means having policies and procedures regarding the completion of adequate pre-trip inspections, adequate training on those policies and procedures and an adequate system to enforce those policies and procedures.
While many truck drivers − employees or independent contractors − are compensated on a mileage basis, there have been a number of recent class-action lawsuits against transportation companies claiming that the failure to compensate drivers for activities that are integral to their trips, such as rest times and inspection times, amounts to a violation of state minimum wage laws. In the context of a claim for property damage or personal injuries resulting from a mechanical defect, a plaintiff's attorney may argue that if the driver were compensated only for mileage, the employer gave the driver no incentive to conduct an adequate pre-trip inspection to detect that defect.
If drivers are not compensated for their time performing pre-trip inspections, the plaintiff's lawyer will argue at trial that the commercial carrier, by setting up a compensation system that omits pre-trip inspections, effectively dis-incentivises a driver from performing an adequate or complete inspection. The lawyer will point out that there is no one to check on the activities of a driver on the road and that the inspection log filled out by the driver is the only contemporaneous record of the compliance. If the driver is compensated only for miles driven and efficient completion of a route, the lawyer will argue that the driver may spend minimal time on the uncompensated inspection and may even lie about it on the log to get a bigger payday by focusing on the activities for which the driver is compensated.
If a driver's compensation includes spending time thoroughly inspecting the commercial vehicle and completing the inspection log, not only will the owner and operator of the vehicle be promoting this important safety activity, but it will eliminate the plaintiffs' counsel's opportunity to attack the company's policies and procedures and potentially shut down one avenue that a plaintiff might have to secure punitive damages at trial.
Every driver who earns a commercial driver's licence must demonstrate that they know how to conduct a thorough pre-trip inspection. However, as technology on commercial vehicles changes, it is important to make certain that each driver in a fleet understands how to conduct a proper pre-trip inspection on the particular vehicle that they are driving.
For example, in New Jersey a wrongful death case was filed against a trucking company because a driver failed to stop at an intersection due to maladjusted rear brakes on the vehicle, killing a pedestrian. The driver, who had a commercial driver's licence, testified that he knew how to check the brakes by pushing them but not how to adjust them. He therefore did not realise that the brakes were maladjusted. The driver testified that he repeatedly had conducted a pre-trip inspection and logged those inspections, but admitted that he really did not understand the braking system on the vehicle he was assigned to drive. Not only was a five-figure award entered against the trucking company under the New Jersey wrongful death statute, but the company also was faced with a seven-figure punitive damages award based on the company's reckless conduct of allowing this driver to drive and conduct inspections of a vehicle he did not understand.
Taking steps to train and periodically review the training of drivers is important. Equally important is ensuring that each driver actually understands how to inspect the vehicle they are operating. The changing technology on commercial vehicles is a significant risk-management challenge for any commercial carrier. One failure can lead to tragedy, which can lead to a substantial, and perhaps uninsurable and crippling, damages award against the company.
For further information on this topic please contact Daniel E Tranen at Wilson Elser by telephone (+1 504 702 1710) or email (firstname.lastname@example.org). The Wilson Elser website can be accessed at www.wilsonelser.com.
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