FMCSA Extends HOS Waiver Yet Again

| Sep 11, 2020 | Truck Accidents

For the third time since March 2020, the Federal Motor Carrier Safety Administration said it would not enforce some Hours Of Service limitations, due to the coronavirus outbreak and the increased need for many consumer and industrial goods.

Before the pandemic, the FMCSA had never issued such a safety waiver. But the agency “is continuing the exemption because the presidential declared emergency remains in place, and because the continued exemption is needed to support direct emergency assistance for some supply chains,” according to a spokesperson. Nevertheless, regulators emphasized that the waiver was not a license to drive while fatigued. “Motor carriers shall not require or allow fatigued drivers to operate a commercial motor vehicle,” they stated.

The emergency extension, which is subject to further extension, also added more items to the list of necessary goods.

Drowsy Truck Drivers

Most transportation and shipping companies pay drivers by the load instead of by the mile. So, in order to make money, these drivers must deliver cargo as quickly as possible. Frequently, that means staying behind the wheel for an unsafe amount of time.

The risk is significant. Fatigue clouds judgement ability and slows motor skills. In fact, driving after eighteen hours without sleep, which is the equivalent of a long day on the road, is like driving with a .05 BAC level. That’s above the legal limit for commercial drivers in Kentucky.

As outlined below, if truck drivers violated FMCSA or state regulations regarding mandatory rest periods, even if the feds look the other way, the driver might be liable for damages as a matter of law. However, even if the trucker was HOS compliant, fatigue might be an issue.

Because they sit for long periods, many truck drivers struggle with sleep apnea. People who snore have sleep apnea. In its more severe form, which plagues many truckers, individuals stop breathing when they sleep. As a result, they only doze overnight. Since they do not get the deep, restorative sleep they need, they are fatigued even after a full night’s sleep.

Evidence of Fatigue

As mentioned, both the federal government and the State of Kentucky require truckers to take mandatory breaks. A large truck’s Electronic Logging Device often provides positive proof in this area. ELDs are attached to the drivetrain. So, while the truck is in motion, the HOS clock is ticking.

Trucking industry lawyers fought the ELD mandate all the way to the Supreme Court. They know how powerful this evidence could be in a drowsy truck driver claim.

A Kentucky personal injury attorney must act quickly to preserve this evidence. Unless a lawyer sends a spoliation letter to the insurance company, the insurance company might “accidentally” destroy the EDR, along with any other physical evidence. If that happens, a victim/plaintiff has a much harder time establishing negligence by a preponderance of the evidence.

That’s not the only hurdle. Because of vehicle information privacy laws, attorneys must usually obtain court orders before they can inspect, access, and download ELD information.

Circumstantial evidence of fatigue often includes the time of day or night. Most people are naturally drowsy late at night and early in the morning, no matter how much rest they had the previous night. That’s especially true if the tortfeasor recently switched schedules.

Statements the driver made about being tired or being on the road a long time are also usually admissible.

Your Claim for Damages

If the tortfeasor violated the HOS requirements and caused a crash, the tortfeasor could be liable for damages as a matter of law. Even if the tortfeasor was technically in compliance with these rules, if the driver was dangerously fatigued according to the evidence, liability still attaches.

Contributory negligence is the most common insurance company defense in drowsy driver claims. This legal doctrine shifts blame for the accident from the tortfeasor to the victim. For example, the insurance company might admit its driver was fatigued, but argue that the victim’s excessive speed substantially caused the wreck.

If the facts indicate the presence of contributory negligence, jurors must divide fault between the two parties on a percentage basis.

Kentucky is a pure comparative fault state. Even if the victim was 99 percent responsible for the wreck, the tortfeasor is still responsible for a proportionate share of damages.

Actually, in these cases, the shipping or transportation company is financially responsible for damages, because of the respondeat superior rule. Third party liability theories like respondeat superior are especially important in wrongful death and other catastrophic injury claims. Frequently, individual tortfeasors do not have enough insurance coverage to pay fair compensation in these claims.

Drowsy truck drivers often cause serious injuries. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Attorneys can connect victims with doctors, even if they have no insurance or money.