The best way to avoid a trucking accident is to drive safely and follow Hours of Service (HOS) regulations.
But accidents happen. HOS violations happen. A large majority of serious accidents have nothing to do with Hours of Service violations. But proving that a particular violation did not cause an accident can be difficult for an industry that has long relied on written records that are often imprecise and hard to follow.
In recent years, the use of electronic logging has made Hours of Service violations easier to identify, and more consequential. If a driver receives a violation and is involved in an accident in the same trip, a lawsuit could be filed claiming that a driver’s hours of service violation was the reason for the crash.
On the other hand, electronic logging devices provide data that make such claims difficult to prove. One could easily claim that a vague, poorly recorded driver error resulted in an accident. It’s harder to argue that a two-minute delay recorded by an ELD at one point in the trip resulted in an accident several hours later.
In many ways, the prevalence of electronic logging devices has changed how lawsuits against trucking companies play out. Here are five ways companies can better prepare their drivers for the changing landscape, prevent risk, and decrease liability when accidents do happen.
Update safety programs
Despite the fact that a large majority of HOS violations don’t cause accidents, violations are often implicated when crashes do happen. Given how easily electronic logging devices detect violations (and how easily others can access this data during litigation), fleets should minimize the likelihood of violations by requiring regular training sessions with a solid safety program that evolves with industry standards.
Lawyers are already seeing areas where fleets equipped with ELDs could improve on safety. For example, during the last remaining minutes allowed for a driver’s trip, ELDs can produce an urgent situation that is itself a safety issue. What should a driver do when a device indicates he is minutes away from his limit and there’s no safe place to stop, but he will almost certainly receive a violation if he doesn’t?
Ted Perryman, who has represented trucking companies at the Missouri-based firm Roberts Perryman, described a driver who pulled off to park shortly before running out of hours, and was involved in a crash while he was parked. “You have drivers — especially newer drivers or younger drivers — getting so worried about those flashing lights, that they think, ‘Oh I gotta do something right away,’” Perryman told Motive.
Fleet managers should incorporate these scenarios into their safety programs, which should be updated regularly as we continue to learn new implications of ELDs for safety and liability.
Giving drivers the tools and motivation to manage risky situations is the best way to avoid legal issues. Logging hours electronically makes this much easier — both in preventing lawsuits and decreasing liability.
If a lawsuit is filed, both legal teams will comb through logs to determine if a driver violation could have caused a crash. Even with the most meticulous drivers, written logs are highly prone to error. “No matter how good the driver is, there are always mistakes. Mistakes as to where time was spent, where things happened, where the last break in service was,” Perryman said.
What’s more, the slightest inconsistency or missing detail in the written logs could support a plaintiff’s claim that the company is responsible for the crash. “It was sort of a nightmare,” Perryman said of working with the same unwieldy paper logs as the plaintiff. “Because in every case those who were filing suit against the trucking company were trying to make a case that the driver was over hours.”
Unlike paper logs that can become disorganized or lost, electronic logs ensure accurate, easily accessible information will be there when you need it.
Implement electronic logging devices early
Because electronic logging devices show exactly what a truck was doing and when, they are an even more critical resource in lawsuits where a plaintiff argues a driver’s violation and an accident were connected.
“If you were to make a list of the things that plaintiffs’ attorneys will immediately go look for in litigation that involves truck crashes, they look at log books,” Bill Chamblee told TruckingInfo.com in 2014. Chamblee cited an accident where the logs, input by the driver himself, differed from information downloaded from the truck. The plaintiff meant for the discrepancy to show that the driver could have been fatigued at the time of the crash. But the truck’s data, though different from the manual logs, showed the driver was not violating driving time regulations.
Terryman agreed that the precision of the ELD is invaluable. “Most electronic logging devices not only keep accurate track of the hours but they also show where the truck was positioned at any given time, usually tied to a GPS system,” he said.
If a lawsuit escalates, electronic logging devices mean judges and juries don’t have to parse through vague or imprecise logs to make a guess whether a violation caused an accident. ELDs place the truck at a specific place at a specific time, leaving little up to interpretation or bias.
After an accident, fleet managers shouldn’t wait to contact a lawyer. Immediately after the accident, a lawyer can counsel the company on next steps should an individual sue. Chamblee also recommends having a “biomechanical engineer get involved early on” to analyze the scene in the event they discover something that may benefit your case down the line.
But don’t jump the gun
In terms of decreasing liability when an accident has occurred, companies have several options. Actions like surveying the scene and contacting legal counsel immediately allow companies to collect the information they need early, even before a suit is filed. But how the company chooses to characterize the accident could also impact the case.
For instance, a trucking company can determine that an accident was “preventable” without assuming fault or liability. But lawyers caution against making that call right away, particularly if the case escalates. “Preventable in the industry is not the same as liability, but in a juror’s mind it is,” Chamblee told TruckingInfo.
ELDs have multiple benefits, including that they can decrease your fleet’s liability. While the ELD mandate won’t be enforced until December 2017, consider using them sooner to reduce your fleet’s insurance liability now.