For The Defense, December 2011 - DRI Today

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Trucking Law The court concluded that a jury could reasonably conclude that the driver “acted outrageously in continuing to drive while knowing the risks of doing so in a state of fatigue.” Id. at *34; see also Gunnells v. Dethrage, 366 So. 2d 1104, 1106 (Ala. 1979) (finding a jury had properly considered punitive damages when the driver testified that he “might have had a little bit of Whether a driver was actually in a tired state at the time of an accident is the key inquiry and not all circumstantial evidence can adequately establish fatigue, despite the hunches of plaintiffs and their counsel. drowsiness” and that the car had drifted over the center line and back just before the accident). However, direct evidence of driver fatigue does not automatically mean that a defense attorney cannot achieve a summary judgment. In one case, the driver testified that he was sleepy but not asleep at the time of the accident. Turner v. Werner Enterprises, Inc., 442 F.Supp.2d 384, 385 (E.D. Ky. 2006). Specifically, he testified that “obviously when you’re tired, you’re kind of like in an… in and out state.” Id. Yet even in light of this testimony, the court granted a summary judgment in favor of the trucking company and its driver on the punitive damages claim. Id. at 387. Because the driver was “within the speed limit, apparently within the proper lane, and without any suggestion of intoxication,” mere fatigued driving did not rise to the level of culpable conduct warranting punitive damages. Id. at 386. Common Threads After reviewing the numerous cases that have tackled whether a punitive damages 70 ■ For The Defense ■ December 2011 award is appropriate when an accident is caused by driver fatigue, it can be a challenge to synthesize the holdings to extract a distinct bright line that, once crossed, would completely foreclose a summary judgment in favor of a defendant and making punitive damages a real possibility. Because the punitive damage standard varies from state to state, and because the outcomes hinge largely on the specific facts of each case, unsurprisingly we have found inconsistencies and contradictions among the courts that have examined this issue. Yet some common threads have emerged. Punitive Damages Against the Commercial Driver Simply put, if a driver was aware of his or her fatigue before an accident and made a conscious decision to continue driving, a defendant’s attorney will not likely achieve a summary judgment on the punitive damages claim. Such knowledge and subsequent conduct appears to make the difference with driver fatigue between negligent and culpable conduct warranting punitive damages. Several courts have stated that “just falling asleep at the wheel does not support an award of punitive damages.” Batts, 2009 WL 6842545, at *2; see also Briner, 337 N.W.2d at 868 (“The act of falling asleep generally would not constitute conduct that would allow punitive damages.”); George, 708 S.E.2d at 207 (“inadvertent driver error caused by falling asleep behind the wheel by itself does not support an award of punitive damages”). Yet, in many of those same cases, the courts permitted the juries to consider punitive damages because the drivers had some awareness of their fatigue and continued to drive. For instance, in Briner, the commercial driver “knew of his [fatigued] condition and persisted in driving despite the danger.” Briner, 337 N.W.2d at 868 (emphasis added). In Claypoole, the driver “knew she was physically exhausted,” since she had stopped her vehicle twice before the accident and attempted to wake herself up. Claypoole, 43 Pa. D. & C.4th at 528 (emphasis added). In McAchran, the driver “was aware of the substantial risks involved in continuing to operate his truck while fatigued but acted to serve his own interests having reason to know and consciously disregarding the substantial risk of harm to others.” 2009 WL 888539, at *1 (emphasis added). In Osborne, the driver had been driving over 16 hours at the time of the accident and “with knowledge of that fact continued to drive.” Osborne, 454 So. 2d at 1326. In all of these cases the courts permitted the juries to consider whether punitive damages were warranted. Conversely, a court granted a summary judgment in favor of the driver and carrier because the court found “no evidence [that the driver] consciously ignored the risk of fatigue.” Batts, 2009 WL 6842545, at *2 (emphasis added). The Burke court, discussing the punitive damages claim, did not find evidence that the driver “consciously appreciated the risk of prolonged driving” beyond the 10-hour rule. Burke, 904 F.2d at 183 (emphasis added). Given the twin goals of punitive damages—punishment and deterrence—it makes sense that courts home in on a driver’s awareness of fatigue and whether he or she made a decision to continue driving. It is difficult to deter accidental conduct. For the same reason, it would not make sense to punish that behavior. The case law reflects these underlying principles. Levying Punitive Damages Against a Motor Carrier When juries consider whether to levy punitive damages against a motor carrier, the focus shifts from the driver’s conduct to the knowledge and acts or omissions of the carrier management. On examining the cases in which courts permitted juries to consider levying punitive damages against motor carriers, several patterns emerged. Regardless of whether a plaintiff seeks punitive damages based on respondeat superior or direct claims against a carrier, the most common reason courts permit juries to award punitive damages is that a carrier failed to monitor a driver’s compliance with the HOS regulations. For instance, in Torres, the court found that the carrier had received notice several times that its drivers were not complying with the HOS regulations. Torres, 658 P.2d at 839. The problem had existed for a number of years, and the carrier did not attempt to take corrective measures. Id. The court explained that the carrier “should have known that its failure to Falling asleep, continued on page 81
Trucking Law FMSCA Safety Evaluation By Philip M. Gulisano and Thomas J. Lang More data available to the public and to plaintiffs’ attorneys means motor carriers must proactively monitor safety status, investigate violations and crashes immediately, and take corrective action. CSA— The Final Version? We have been talking for some time about “CSA 2010,” the program created by the Federal Motor Carrier Safety Administration (FMCSA) to focus attention on the specific behaviors of drivers and motor carriers that lead to crashes. The program, now just called “CSA,” which stands for “compliance, safety, and accountability,” was first rolled out by the Administration in 2008 for a trial run in four states: Colorado, Georgia, Missouri, and New Jersey. In 2009, the FMCSA added Delaware, Minnesota, Maryland, Montana, and Kansas. Currently, a portion of the CSA, the safety measurement system, is fully active in all 50 states and warning letters are being received by carriers in each state. However, all interventions are not fully implemented in each state due to the need for additional training of enforcement staff. The FMCSA expects that all interventions will be fully implemented shortly. Additionally, the safety fitness determination prong of CSA must still undergo federal rulemaking, which we expect will be released by the FMCSA before publication of this article. Once all of these steps are completed, the entirety of the CSA program should be fully implemented throughout the entire United States. The CSA program takes a new approach to the way that information regarding motor carrier performance such as roadside inspection data, driver logs, and crash history is collected and used to attempt to determine compliance with federal rules and potential safety issues. This article presents an overview of the CSA program, the methodology that it uses to measure safety compliance and make intervention decisions, and some potential issues that all motor carriers and the attorneys advising them need to understand, not only to maintain and to reinforce safe driving practices, but also to take proactive approaches to litigation. Patti Gillette, Director of Safety for the Colorado Motor Carrier Association, was active on the forefront of the initial CSA program testing in Colorado and has extensive experience with the program. Dr. Gillette travels around the country educating motor carriers and drivers on the particulars of the CSA program and agreed to ■ Philip M. Gulisano is a founding member of, and Thomas J. Lang is an associate at, Burden, Gulisano & Hickey, LLC in Buffalo, New York. Mr. Gulisano has over a decade of experience representing trucking industry clients in the defense of catastrophic personal injury, cargo and loss transfer claims. He serves as the webcast chair for the DRI Trucking Law Committee. Mr. Lang also focuses his practice on representing trucking industry clients in defense of personal injury and loss transfer claims. For The Defense ■ December 2011 ■ 71
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