February 2019 The Roemer Report

February 2019

On the Darker Side of the Driver Shortage

In the USA’s rise over the past 100+ years to the dominant economic powerhouse of the world, one of the great unsung heroes has been our truck drivers; the regular Joes and Jennys who have literally delivered on the promises of America’s free-market economic system. Unsung perhaps, because over the decades truck driver’s and their reputations have been both vaunted and vilified in society, but mostly vilified it seems; targeted by politicians, regulators and public safety advocates all looking to spare the motoring public from the hazards of transporting goods commercially using heavy vehicles on public roads. And then there’s the lawyers.

It is an undeniable grind to be a professional commercial truck driver. Most in the industry understand this: The job is physically demanding, isolating and extremely dangerous, especially for people that operate class 8 rigs over-the-road for long distances. Oh, and if you missed the memo, relative to the task and hours, and the physical demands the profession places on drivers the job can be absolutely harrowing. Even life threatening. Amalgamate all the reasons, dangers, pitfalls and issues – and throw in some very uncooperative demographic trends - and it becomes easy to see why there is a chronic shortage of qualified drivers for the job. Nevertheless, bad is bad; employing substandard drivers can be very bad for business.

A bad, tragic day near Gainesville

On Friday, January 4, Florida’s Sun Sentinel broke the story of a horrible, fiery crash involving two semi’s, a church van and two other vehicles. As if the headline “5 children among 7 killed in fiery crash on way to Disney,” wasn’t startling enough, the video showing a seeming war-zone conflagration with a semi in the center of mass of flames and dense smoke was even worse.

Prayers from millions of people no-doubt went up for all the unfortunate victims and their families who suffered that terrible day. What an impossibly cruel twist of fate that those kids were headed for a day of fun Walt Disney World when the church van in which they were riding got caught in a fiery pileup involving another car and two 18-wheelers.

Ultimately, seven people died that day outside of Gainesville on a stretch of I-75 familiar to many. According to the Sun Sentinel’s report, two vehicles were traveling north, a tractor-trailer and another car. Witnesses and other accounts say the semi veered sharply into the left lane and the two collided, and lost control.

Both vehicles went into the median and then broke through the center guardrail. The entangled vehicles then entered the south-bound lane where they crashed into another semi and church van headed for the Disney resort.

As a result of the subsequent collisions, one of the truck’s fuel tanks ruptured, ignited and explosions and fire immediately engulfed the horrific scene. According to reports, a fifth car, unable to avoid the wreck, passed through at speed hitting several passengers thrown from the church van.

A terrible, terrible toll, indeed.

An investigation into what triggered the crash, was launched immediately to understand what could cause such a devastating wreck on a straight, flat stretch of a divided highway in clear weather on a well-travelled patch of I-75, a main drag that connects Florida to the rest of the region.

Driver’s record becomes a material issue - fast

After putting out the fires and securing the scene, officials announced the crash was going to be investigated as a homicide. In due course the official investigation revealed Steve Holland, the 59-year-old trucker who allegedly set the fatal chain-reaction wreck in motion by executing a violent maneuver, had accumulated numerous citations from law enforcement over his driving career, including several for violations ranging from speeding, driving an unsafe vehicle, operating an overloaded vehicle and not providing proof of insurance.

One thorough explication of the potential legal ramifications and liabilities generated by the driver who allegedly caused this wreck, can be found in a recent blog published by national trial lawyers Aldous\Walker on their website. “Though the incident is still under investigation,” intoned the blog’s lead, “revelations involving the trucker’s driving history can potentially provide direction into what caused the wreck – and whether it could and should have been prevented.”

Legally obligated to reduce risks; including bad drivers

Aldous\Walker’s lawyers put it this way; commercial truck drivers and the commercial trucking companies that employ them have legal obligations when it comes to reducing risks posed by their “massive and monstrously dangerous machines.” Their hyperbole is a disgrace. Plaintiffs attorneys use what are known as ‘reptilian brain theory’ tactics to terrify the public – and jurors – in order to generate ever-larger damage awards. Simply described: a reptile brain response is when we move swiftly and unthinkingly away from a source of danger. And so, the lawyers work hard to instill in our minds an instinctive fear of the heavy trucks with which 4-wheelers must share the roads.

Hyperbole aside, they are not wrong about the legalities and financial outcomes – especially those associated with poor regulatory compliance. In truck-accident cases like these, explains the law firm, exploring whether or not drivers and truck fleet operators fail to uphold those obligations “becomes critical to the victims who seek accountability and justice for preventable losses.”

Being the how-to manual for potential future litigants that it is, the blog offers the following points to highlight what investigators are looking for when assigning blame and gauging negligence and criminality associated with accidents and other incident involving large commercially operated vehicles:

· The trucker’s driving history and commercial driver’s license status, including proper licensing and training.

· Whether there were regulatory violations involved, including violations of federal trucking laws regarding vehicle weight restrictions, cargo securement, vehicle maintenance and similar.

· Whether the trucker was fatigued (and/or in violation of HoS rules), distracted or impaired by drugs or alcohol at the time of the crash.

On to the dark side

One bullet though stood out loud and clear, and speaks directly to the dark side of the whole driver shortage issue:

· Whether the trucking company was negligent in the hiring or retention of a potentially unsafe driver or oversight of a safe fleet, or if truck driver negligence played a role.

This is the scary part for fleet operators. It’s defined as negligent entrustment

The dictionary definition is: “the entrusting of a dangerous article to one who is reckless or too inexperienced or incompetent to use it safely.”

In this case the “article” in question are trucks being operated recklessly.

From JRank’s Law Library:

“Negligent entrustment claims arise when an unlicensed, incompetent, or reckless driver causes damages while driving a motor vehicle owned by someone else. A party injured by such a driver must generally prove five components of this TORT:

1. That the owner entrusted the vehicle to the driver

2. That the driver was unlicensed, incompetent, or reckless

3. That the owner knew or should have known that the driver was unlicensed, incompetent, or reckless

4. That the driver was negligent in the operation of the vehicle and that the driver’s negligence resulted in damages

5. If a plaintiff proves these elements, an owner may be liable for the full amount of damages caused by the driver. In some instances, the plaintiff may also recover Punitive Damages from the owner, particularly if the owner himself acted recklessly in entrusting the vehicle to the driver.”

And those Punitive Damages that can run into the many millions? NOT covered by insurance.

In the case of the the driver involved in the Gainesville wreck, his record and eyewitness testimony has led authorities to pursue this case criminally. And although the truck’s ownership chain of custody has not been established, the subsequent wrongful death and similar law suits will be looking for the deepest pockets possible to extract damages. See the link below, but a jury recently awarded $11 million to a widow after her husband rear-ended a semi parked on the side of the road because the driver had to pull over for a call of nature.

About the driver shortage

Where is all of this going? The upshot is this: with an increasingly tight labor market, America’s trucking industry is under real pressure to sometimes be less than rigorous about scrutinizing drivers’ records and qualifications when considering bringing on a new driver – or getting rid of a veteran. (And we understand it is way harder to let go of a proven performer.) But If the industry is so desperate for drivers that fleets are keeping bad apples in spite of rotten driving and safety records, there is no doubt the entire barrel is at risk.

Most everyone in the business understands that collectively we have some work to do “polishing the chrome” of the truck-driving profession in order to make commercial driving more attractive to qualified, career-minded people on all fronts. On this page, we have previously called out low driver pay as part of the problem. Recent headline: Walmart fleet operators announce new pay scales for their drivers, offering salaries as much as $90K. Pay and benefits upgrades are effective in attracting new applicants, but fleets must work harder than ever to be sure the drivers they entrust with heavy trucks are the solid individuals we all need to keep the goods moving.