The Federal Motor Carrier Safety Administration (the “FMCSA”) promulgates regulations applicable to both the trucking and motorcoach industries[i]. It is important to remember that these regulations (the Federal Motor Carrier Safety Regulations commonly called the “FMCSR’s”) constitute minimum standards[ii]. 49 CFR §391.1 establishes minimum qualifications for drivers of commercial motor vehicles. Nothing prohibits a truck or bus company from exceeding these minimum safety standards in their operations. The FMCSR are applicable in interstate commerce. State and local laws relating to safety are not precluded by the regulations so long as they do not prevent compliance with the FMCSR, therefore local law may provide additional opportunities for proof of a cause of action. Many states have adopted all or most of the regulations as applicable to intrastate commerce – with differences/tweaks that can be material in any given state. That said, in Kentucky, for instance, they are incorporated for the most part via administrative regulation 601 KAR 1:005.
[i] A wealth of FMCSA materials, including applicable regulations, can be found at www.fmcsa.dot.gov.
[ii] See 49 CFR §390.1(d), §390.3, and §391.1 for language as to the regulations providing minimum Standards.
Motor carriers (whether transporting people or property) and their drivers bear regulatory responsibilities in the maintenance and operation of the inherently dangerous machines with which the law entrusts them to operate. Insight into actual industry customs, practices, and the practical aspects of operating a tractor-trailer or motorbus present important opportunities for establishing liability for negligence and potentially punitive damage claims. That said, this article is intended to highlight important, and perhaps some not well known, FMCSA regulations that may be of use in your next case.
- Adverse Weather Conditions. 49 C.F.R. §392.14
Truck and bus operators must operate their vehicles safely in adverse weather; this means changing from the way they drive in good weather. We all have witnessed truckers and bus drivers plow through bad weather as if immune to the laws of physics. That said, such drivers are operating illegally. The standard of care for driving in adverse weather requires “extreme caution”. Speed must be reduced. 49 C.F.R. §392.14 states: “[E]xtreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.”
- Hours of Service.
HOS regulations for property carrying drivers and passenger carrying drivers differ. Drivers carrying property hours of service are governed by 49 CFR §395.3. Drivers carrying passengers’ hours of service are governed by 49 CFR §395.5. If confronted with a potential hours of service (HOS) violation, unless you are an expert in auditing log books and carrier records, it may serve you best to engage a trucking industry expert to audit and assist as you investigate whether your case involves an HOS violation. Falsification of log books is a way of life for many drivers and carriers. Many drivers keep two sets of log books –actual logs, and falsified logs. Auditing the supporting data, including charting pick-ups, fueling, border crossings, etc., gets complicated. Using someone with auditing software and industry experience is a practical means of establishing whether an HOS violation exists.
- Cargo Securement.
Injuries can occur during the unloading or loading of cargo. The shifting of cargo during transit can also be a factor in the causation of an accident in the course of transit or at the dock. Obviously, a load can simply spill during transit too. Cargo securement rules are promulgated by the FMCSA, with the general rule being that Cargo must be firmly immobilized or secured on or within a vehicle by structures of adequate strength, dunnage (loose materials used to support and protect cargo) or dunnage bags (inflatable bags intended to fill space between articles of cargo or between cargo and the wall of the vehicle), shoring bars, tiedowns or a combination of these.
Cargo securement regulations begin at 49 CFR §393.100. This regulation states that commercial motor vehicles subject to cargo securement standards include trucks, truck tractors, semitrailers, full trailers, and pole trailers. Each commercial motor vehicle must, when transporting cargo on public roads, be loaded and equipped, and the cargo secured to prevent the cargo from leaking, spilling, blowing or falling from the motor vehicle. Cargo must also be contained, immobilized or secured to prevent shifting upon or within the vehicle to such an extent that the vehicle’s stability or maneuverability is adversely affected.Particular types of cargo also require particular measures for their safe transit. Specific rules apply to intermodal containers, logs, lumber, metal coils, paper rolls, concrete pipe, automobiles, heavy machinery, crushed vehicles, and the list goes on.
Next, if you have a cargo securement issue, look at 49 CFR §392.9. The driver must have the cargo and vehicle properly distributed and secured. The cargo must not obscure the driver’s view ahead or to the right or left sides, interfere with his free movement or access to accessories required for emergencies. That said – look for coolers, computers, and other items with the cab. Once the truck is loaded, the driver’s duty does not stop. The driver must assure his or her self that cargo securement is appropriate, must inspect the cargo for load securement within the first 50 miles of the trip and make adjustments, and must reexamine the cargo and and make necessary load securement adjustments whenever the driver makes a change of duty status, when the vehicle has been driven 3 hours or 150 miles, whichever comes first. This is not the case if the load has been sealed.
- Employee Credentialing, Testing and Training.
Driver qualification, training, certification (including longer combination vehicles), safety compliance, records retention, and the reporting of accidents or violations of law can be of issue in your case. Drivers are required to undergo regular medical evaluations for fitness as well. Entry level driver training regulations commence at 49 CFR §380.501. An entry level driver is a driver with less than one year of experience operating a CMV with a CDL in interstate commerce. Entry-level driver training is training the CDL driver receives in driver qualification requirements, hours of service of drivers, driver wellness, and whistleblower protection as appropriate to the entry-level driver’s current position in addition to passing the CDL test. The employer using an entry-level driver must ensure the driver has received a training certificate, and that record must be retained by the employer as long as the driver is employed, and for one year thereafter.
General qualifications for drivers are covered by 49 CFR §391.11. It states:
(a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in §391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.
(b) Except as provided in subpart G of this part, a person is qualified to drive a motor vehicle if he/she—
(1) Is at least 21 years old;
(2) Can read and speak the English language sufficiently to converse with the general public, to understand highway traffic signs and signals in the English language, to respond to official inquiries, and to make entries on reports and records;
(3) Can, by reason of experience, training, or both, safely operate the type of commercial motor vehicle he/she drives;
(4) Is physically qualified to drive a commercial motor vehicle in accordance with subpart E—Physical Qualifications and Examinations of this part;
(5) Has a currently valid commercial motor vehicle operator’s license issued only by one State or jurisdiction;
(6) Has prepared and furnished the motor carrier that employs him/her with the list of violations or the certificate as required by §391.27;
(7) Is not disqualified to drive a commercial motor vehicle under the rules in §391.15; and
(8) Has successfully completed a driver’s road test and has been issued a certificate of driver’s road test in accordance with §391.31, or has presented an operator’s license or a certificate of road test which the motor carrier that employs him/her has accepted as equivalent to a road test in accordance with §391.33.
- Physical Qualifications of Drivers
Commercial drivers must be medically certified as physically qualified to do so, and when on duty have a current medical examiner’s certificate that he or she is physically qualified to do so. Reading the requirements, when those are juxtaposed against personal experience with many truck drivers, always makes me wonder how some drivers could ever get certified… Fitness to drive may be one of the most overlooked opportunities presenting in cases for fairly and materially biasing a jury against a driver or company. If one should not have been driving at all, and the person’s particular disqualifying medical condition contributed to causing the accident, people/jurors should get angry…
The regulation addressing physical qualifications for drivers is 49 CFR §391.41. The driver must undergo a physical examination addressed in 49 CFR §391.43. There are very specific physical requirements that must be met (though there are provisions for a medial variance that can be obtained). Falsification of certification cards, of fraudulent certifications are not uncommon in the industry.
- Ill or Fatigued Driver.
49 CFR §392.3 states that “[n]o driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. However, in a case of grave emergency where the hazard to occupants of the commercial motor vehicle or other users of the highway would be increased by compliance with this section, the driver may continue to operate the commercial motor vehicle to the nearest place at which that hazard is removed.”Cases of fatigue can often be dovetailed with violations of driver qualifications for physical fitness: sleep apnea is a condition that may be so significant if untreated as to likely interfere with a driver’s ability to drive a commercial motor vehicle safely, yielding him/her too fatigued to drive safely.
- Vehicle Inspection, Repair and Maintenance.
Records must be retained of driver inspections, as well as systematic fleet inspections, repairs and maintenance. 49 CFR §393 delineates necessary parts and equipment for the commercial vehicle, and the same must be kept in working order. Records must also be retained on the vehicle for prescribed periods of time. Brake inspections must be performed by qualified brake inspection personnel 49 CFR §396.25. Many drivers or carriers will claim to have inspected their brakes, but lack the qualification to do so. If you have a case with an equipment violation bad brakes, or other issue, 49 CFR §396.7 states that a vehicle shall not be operated in such a condition as likely to cause an accident or breakdown of the vehicle. Any motor vehicle discovered to be in an unsafe condition while being operated on the highway may be continued in operation only to the nearest place where repairs can safely be effected. Such operation shall be conducted only if it is less hazardous to the public than to permit the vehicle to remain on the highway
- Retroreflective sheeting and reflex reflectors; safety equipment
The lack of conspicuity of a semitrailer or other trailer has caused many tragedies. 49 CFR §393.13 has very specific requirements deals with reflectors and the location for the reflectors. As you ride down the road on any given day (especially with anyone in the Trucking Litigation Group of the AAJ) you will find many, many examples of trailers that do not comply with these requirements. Additionally, many accidents happen because of the breakdowns of a tractor or trailer in or near the roadway. Emergency signals for stopped commercial motor vehicles are addressed in 49 CFR §392.22. Hazard warning signal flashers must immediately be placed on when stopped other than in necessary traffic stops, whether in the roadway, or on the shoulder of the road. Warning devices should be placed (triangles) within 10 minutes of a stop, with locations described in the regulation.
- Aiding and Abetting
This regulation gets results. If you find a regulatory violation, perhaps you can show how the carrier is complicit in that violation – such in and of itself is another violation. 49 CFR §392.13 states that “[n]o person shall aid, abet, encourage, or require a motor carrier or its employee to violate the rules of this chapter”. If a carrier is sanctioning violations, this perhaps regulation will, and should, strike fear in the heart of that carrier, the insurer, and defense counsel.
In close, truck and bus cases are complex. Counsel must understand the law. The timing of an investigation, as well as the quality of that investigation, are essential. But the investigation does not start and stop at the scene of the crash. It leads counsel into the operations of the motor carrier.Operating procedures, documents, and attendant operational functions and customs in the industry must be understood and explored. Big trucks and buses cause big crashes. Approach these cases with respect, diligence and due consideration, and the client’s interests will be both well served, and protected.
© Lange, 2015
 A wealth of FMCSA materials, including applicable regulations, can be found at www.fmcsa.dot.gov.
 See 49 CFR §390.1(d), §390.3, and §391.1 for language as to the regulations providing minimum Standards.