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Companies are often not liable for negligence of independent contractors

Ho, ho, ho. Tis the season when we get together with our families, go to church, and of course shop. More than ever, that means we buy items online and get them quickly delivered to our door steps. Amazon hires thousands of delivery drivers under a program it calls Amazon Flex. These people have the flexibility to work seven days a week and as many hours as he or she can handle - even after working all day somewhere else. But it is Amazon which gets the real advantage of flexibility. The company is able to increase its pool of drivers without paying job benefits, health insurance, and vehicle liability insurance. How does it do this? Flex drivers are somehow not classified as employees but as independent contractors. So who is liable when there delivery truck drivers cause a wreck? This issue is winding its way through different courts with predictably conflicting results. The Texas Supreme Court rendered a decision on a related case in 2015. The problem is that allowing delivery drivers to be classified as independent contractors shifts liability and compensation from the company to the individual who may not even have auto insurance. If he does, you can bet it is the minimum coverage. In Texas, that is only $30,000 per one person injured, $60,000 for everyone injured (excepting the driver) and $25,000 for all vehicle damage (excepting the truck). That's usually not enough money to pay for everyone's medical bills, lost wages, and other damages. This disturbing trend is not limited to Amazon. FedEd, UPS, WalMart and other retailers and delivery services also rely on a fleet of independent contractors to make their deliveries. Oh, Uber and Lyft do this too, but that's a separate story that happens frequently in our new "gig economy."

Our country is experiencing a historic shakeup as a new administration takes over. With so many high profile changes, one that hasn’t received any attention, but is a top priority for me as a personal injury lawyer, is highway safety. Just last month, lawmakers blocked important sleep rules for commercial drivers. That's just the start of it. In an interview, a former chairman of the National Transportation Safety Board predicted that there will be ”an open season on safety in this coming Congress.” His comment appears to be right on the mark. The American Trucking Association has vowed to fight states that pass roadway safety measures for their residents and federal regulations that limit drive time and truck weight and length.

The National Highway Traffic Safety Administration (NHTSA) has just released a report that shows the dangers of distraction and sleepiness on our roads. More than one fourth of all 18-wheeler accidents are caused by driver inattention or fatigue. This is just what’s reported. Based on what I've seen as a personal injury lawyer, I believe the number is much higher. I am filing suit on behalf of a woman who was seriously injured when a distracted tractor trailer driver shown here crashed into her vehicle and killed her boyfriend as they were at a complete stop on Interstate 35 in Fort Worth. Several years ago, I represented the family of a young tow truck operator who was tragically killed when an 18 wheeler driver fell asleep at the wheel and veered off of I-35 north of Dallas-Fort Worth and crashed into another tractor trailer he was underneath. In June, three people were killed on I-30 in Royse City in East Texas when a tractor-trailer veered into the path of another tractor-trailer. The eastbound travelling rig dragged a small car with it as it jumped the center median into oncoming traffic. The driver fell asleep at the wheel.

Self-Reporting Must Be Ended
An 18-wheeler driver was killed when he plowed into a strip mall and his cataract surgery was cited as a possible cause of the accident. A tractor-trailer driver ran out of his blood pressure and diabetes medication blacked out, and rammed into a tour bus, killing two passengers. A Greyhound bus wreck that injured this woman and 34 other passengers after the driver blacked out and rolled the bus over an embankment. Investigators discovered the driver had sleep apnea, a condition he didn’t disclose on his application. A bus collided with a pickup truck, killing the driver. The bus driver also didn’t report his sleep apnea and had also stopped using a machine that would have kept the condition under control. There are thousands of other crashes like this every year involving commercial vehicles like 18 wheelers. These nightmarish stories highlight the ineffectiveness of the current commercial driver self-reporting system. The inadequate process fails to identify drivers who have dangerous medical conditions. Often, the driver’s condition is only discovered once he has caused a crash.

New Federal Rules Keep Tired Truck Drivers Off the Road  The Federal Motor Carrier Safety Administration's regulations limit drivers' time driving, mandate rest periods and require drivers to maintain accurate logbooks. These rules are intended to keep exhausted drivers off the roads and are critical in personal injury lawsuits. However the FMCSA investigators and injury lawyers have long been duped by dishonest drivers who kept two logbooks or manipulated the entries. When agents examined the drivers' logbooks, all seemed to be in order, when in reality tired drivers had  extended their work hours and skipped breaks. This discovery prompted FMCSA to make a long overdue move, requiring most long-haul drivers to convert to computer logbooks by the end of 2017. Drivers are not able to change the data, which is recorded automatically whenever the driver climbs behind the wheel. With access to accurate logbooks, inspectors and attorneys will now be able to increase enforcement of HOS rules.

Small Price to Pay

Some companies and drivers have argued that adopting the technology is too costly. Each device costs about $500 to $1,000. But the FMCSA estimates that the new device will prevent about 1,850 18-wheeler accidents, resulting in at least 26 deaths every year. A few hundred bucks is a small price to pay to get tired drivers off the road and save countless lives.

Some tractor-trailer drivers have also argued that a parked rig earns no money and that they should be able to drive until they feel too tired to keep on going. The problem with this argument is obvious.

Sleepy drivers often don't sense their judgment, reaction time and cognition faltering, much as drunk drivers don't notice their declining state. Through HOS rules, the FMCSA relies on accurate data to determine when a driver is too tired to drive, instead of allowing a compromised driver to make this important judgment call.

Also, the trucking industry has a systemic issue with pressuring drivers to keep going despite their exhaustion. The public has for too long accepted the risks posed by tired drivers because of negligent trucking industry employers. 

The driver will now have a valid reason not to meet his employer's demands -- "I am breaking the law if I continue working past what the HOS rules permit." The electronic logbooks put the responsibility squarely on the company to comply with HOS rules or face fines and restrictions on its operations.

Using Technology for Safer Roads and for Accident Recovery in Texas

Berenson Injury Law helps accident victims recover from negligent commercial truck drivers, trucking companies and insurance carriers. 

During my 35 years in practice, I have witnessed the many changes in technology that have made our roads safer and that have been useful legal tools. 

The digital logbook will compel drivers to comply with HOS regulations, improve enforcement and give me another tool to help injured Texans prove a driver's fatigued state at the time of an accident.

Why are criminal charges so rare when drivers and trucking companies break the law?

As an early Christmas present to Tracy Morgan, the Wal-Mart driver who severely injured the comedian and killed his close friend was indicted yesterday. 

The driver was severely sleep-deprived and speeding at the time of the June 7, 2014 crash. Before beginning his long-haul shift, Kevin Roper drove 700 miles from his home in Georgia to report to a Delaware Wal-Mart. 

Roper raced along the NJ highway at 65 mph in a 45 mph zone moments before the crash. He also failed to heed multiple warnings about construction lane closures and resulting slow moving traffic ahead. Having been awake for 28 hours, Roper could not react in time to avoid hitting Morgan's limousine. 

The devastating 18-wheeler accident did not result from a mistake, bad conditions or any other unavoidable cause. The collision was entirely preventable, except for the criminal conduct of the driver and his employer.

That a driver faces criminal consequences is very rare. People are injured and killed daily by negligent truck drivers who ignore speeding, distracted driving and hours of service laws, but drivers typically get a light reprimand and the company a small fine. Drivers and trucking corporations face no real consequences when the victims are less famous than the well-regarded Tracy Morgan.

We all know what sleep deprivation feels like. Now imagine that, while in that sleepless fog, you are tasked with maneuvering a 50 foot-long, 80,000-pound vehicle at 65 mph. 

Truck drivers often travel long distances to complete a delivery. Many may even start their route at a point far from home, meaning a commute of hours to begin a long-haul shift. Trucking companies that are intent on getting goods to their destination on time may push drivers to forgo sleep or look the other way when a driver pops a stimulant to make it through her or his shift.

More than 5,000 people are killed and 110,000 people are injured in commercial vehicle crashes every year. Up to one-half may be attributed to truck driver fatigue, according to a statistics provided in "The Sleep of Long-Haul Drivers" study published in the New England Journal of Medicine.

Truck drivers are not the only ones at risk of dangerous fatigue. The National Highway Traffic Safety Administration (NHTSA) estimates that sleeplessness causes at least 100,000 auto accidents, 71,000 crash injuries and 1,550 traffic deaths every year.

What Happens When a Driver Does Not Sleep Enough?

The human body needs sleep, just like it needs food, water and oxygen. The body may adapt for a while, but eventually the sleep deprivation takes its toll, including:

  • Reduced alertness: Losing just 90 minutes of sleep for just a single night can reduce daytime alertness by up to one-third.
  • Impaired cognition: The ability to process information effectively declines with extended tiredness.
  • Poor memory: Forgetfulness is common in sleep-deprived individuals.
  • Distraction and lack of focus: Fatigue reduces concentration and can lead to mind wandering and distraction.
  • Falling asleep: In the worse cases, a driver might fall asleep at the wheel. Even nodding off for just a moment can be enough to send the truck careening off the highway or into another vehicle. 

Electronic Logging Devices To Improve Compliance with Hours of Service Violations 

The Federal Motor Carrier Safety Administration (FMCSA) announced last year a proposed rule that mandates electronic logging devices (ELD's) in commercial trucks. The new rule is not scheduled to take effect until two years after the rule is published in the Federal Register on September 30, 2015.

This change is long overdue. Why?

Tractor-trailer drivers are required to maintain written logs of their miles travelled, work and drive hours and rest periods to comply with the hours of service (HOS) regulations. These handwritten logs can easily be tampered with if a driver has violated the HOS rules. In some cases, drivers maintain two sets of records -- one that reflects the real data and a second that is manipulated to demonstrate compliance. The driver sometimes produces the fraudulent set of data after an accident or in connection to an investigation.  Proving that the logs have been doctored is one of the most frustrating aspects of handling a case against a commercial carrier and its negligent driver.

Speeding Driver Had Been Awake for More Than 24 Hours A year ago this week, comedian Tracy Morgan and his colleagues were on their way home after a performance when a speeding Wal-Mart truck plowed into their limo. 62 year-old James McNair, known as Jimmy Mack, was killed and 45 year-old Tracy Morgan was severely injured. The popular star of SNL and Thirty Rock suffered serious traumatic brain injury, broken ribs and a broken leg. After a full year of extensive medical treatments and therapy, Tracy still has not been able to return to the stage. He made his first public appearance Monday and said he has bad days and good days. Although he continues to suffer from headaches and memory loss, Tracy told the Today Show host that his most difficult loss is the death of his close friend Jimmy Mack. The fatal Wal-Mart accident might have been even worse. Tracy's family typically travels with him to his comedy shows. But, fortunately, they remained home on this occasion. Otherwise, his children and fiancée may have been in the vehicle when the tractor-trailer plowed into them. Confidential Settlement Agreement Tracy's settlement with the world's largest retailer is confidential. Although the details are not public, Tracy expressed gratitude toward Wal-Mart, and the CEO of the company plans to make a personal apology, so these details give a small measure of insight into terms of the deal. Earlier this year, Wal-Mart settled with Jimmy Mack's family for $10 million. Driver Faces Criminal Charges, But What About Wal-Mart?
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