By Bryan Capps, Tennessee Attorney
Federal Motor Carrier Safety Regulations (FMCSRs) are critical in establishing negligence and liability in a personal injury case involving a commercial truck. Any lawyer who is handling or screening a trucking case will usually immediately seize upon one or two FMCSRs which they strongly believe were violated by the truck driver or trucking company. In fact, a thorough investigation of most trucking cases will reveal one or more violations. Once violations are identified, the question becomes: how can I best use the violation in the injury case?
Like so many legal questions, the answer is - it depends. You may use the violation(s) to establish a general pattern of negligent conduct, or you may attempt to prove negligence per se based on the violation. In either case, you can develop a strategy for determining when such violations are advantageous to your case by considering the following:
The FMCSRs apply to all commercial motor vehicles defined as any self propelled or towed motor vehicle used on a highway in interstate commerce to transport passengers or property when the vehicle:
Interstate commerce means trade, traffic, or transportation in the United States:
Intrastate commerce means any trade, traffic, or transportation in any State which is not described in the term "interstate commerce."
If you fail to prove that the FMCSRs apply to the truck in your case, the court will likely refuse to consider charging the jury on the regulations or negligence.
In determining which regulations were violated, and by whom, it is important to remember that the FMCSRs set a minimum standard of care for the entire commercial trucking industry.
§390.5 d) Additional requirements. Nothing in Subchapter B of this chapter shall be construed to prohibit an employer from requiring and enforcing more stringent requirements relating to safety of operation and employee safety and health.
§390.9 State and local laws, effect on. Except as otherwise specifically indicated, Subchapter B of this chapter is not intended to preclude States or subdivisions thereof from establishing or enforcing State or local laws relating to safety, the compliance with which would not prevent full compliance with these regulations by the person subject thereto.
Since the FMCSRs are the minimum requirements, do not succumb to a defendant’s ability to show that it simply complied with the regulations. Discovery and expert development should focus on whether the company: 1) actually complied with all relevant FMCSRs, 2) whether the relevant state laws require a higher degree of care, and 3) whether, like similar companies within the industry, the defendant developed more stringent internal criteria for drivers, record retention, inspection, maintenance etc.
While your investigation and discovery will search out evidence of violations, you will need an expert to prove the applicability of the FMCSRs, the standard of care which they create or require, and how they were violated in a particular case. It is important to retain an expert early; investigate together; and carefully develop potential theories of regulation-based negligence early in the case.
Failure to place (or provide) warnings near disable vehicle; placard placement; fatigued driver; improper securing of loads; improper driving during hazardous conditions.
Improper brake calibration; tire tread; light and reflector placement; cracked windshield.
Failure to do background check; failure to properly train; allowing to drive after repeated violations; young driver without co-driver; log book violations; fatigue.
This potential theory should never be overlooked. The FMCSRs have detailed and stringent requirements for the hiring and training of all drivers. The regulations require an employer to maintain all employee records at the carrier's principal place of business for as long as the driver is employed by that carrier and for three years after. The employer must administer, and the driver applicant must pass, tests covering FMCSRs and pass road tests demonstrating driver competence. The employer must also check the applicant's driving record for the past three years in every state where the applicant has held a license. The employer must do an extensive background check on the driver including contacting prior employers for the past three years. The employer must conduct an annual driver review and take actions based on the driver’s performance.
Failure to comply with these regulations can lay the foundation for a theory that the company was negligent in allowing the driver to be on the road at the time of a collision, and therefore liable for any resulting damages and injuries.