Trucking Accidents and a Florida Truck Wreck Lawyer
Anyone who is handling or screening a Florida Truck Wreck case will usually immediately seize upon one or two FMCSR’s 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, a Florida Truck Wreck Lawyer will then ask the question: how can I best use the violation in the 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 a Florida Truck Wreck Case case by considering the following:
1) Does the applicable FMCSR apply to the subject vehicle?
2) Is the FMCSR violation the result of an act or omission by the driver, by the company/employer or does it relate to the condition of the tractor/trailer?
3) Did the defendants also violate more stringent internal operating rules?
4) What are my potential theories of negligence based on the violations?
5) Were the violations likely a proximate cause of the collision and/or Injuries?
6) If so, what are the relevant authorities governing the use of FMCSRs for proof of negligence and/or negligence per se in the Eleventh Circuit or other relevant jurisdictions?
7) Will I need, or can I use, an expert, to establish the applicability of the FMCSRs, the violation, and/or proximate causation?
Determine Whether the FMCSR’s Apply to a Florida Truck Wreck Case
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—
(1) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more, whichever is greater; or
(2) Is designed or used to transport more than eight passengers (including the driver) for compensation; or
(3) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation; or
(4) Is used in transporting material found by the Secretary of Transportation to be hazardous under 49 U.S.C. 5103 and transported in a quantity requiring placarding under regulations prescribed by the Secretary under 49 CFR, subtitle B, chapter I, subchapter C. (49 C.F.R. § 390.5)
Interstate commerce means trade, traffic, or transportation in the United States—
(1) Between a place in a State and a place outside of such State (including a place outside of the United States);
(2) Between two places in a State through another State or a place outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or transportation originating or terminating outside the State or the United States.
Intrastate commerce means any trade, traffic, or transportation in any State which is not described in the term “interstate commerce.”1
A Florida court will have to first decide whether the “essential character” of the shipment was INTRAstate versus INTERstate before determining whether to apply the FMCSR’s to a Florida Truck Wreck Case. The key question to determine is whether the FMCSR applies is again a surgery of the “essential character” of the particular shipment. Texas v. NOR Co. v. Sabine Tram Co., 227 U.S. 111, 122, 33 S. Ct. 229, 233, 57 L. Ed. 442, 447 (1913). Crucial to a determination of the essential character of a shipment, is the shipper’s fixed and persisting intent at the time of the shipment. For example, whether at commencement a specific interstate destination for the shipment was definitely planned. Middlewest Motor Freight Bureau v. ICC 867 F. 2d 458, 460-61 (8th Cir.).
If you fail to prove that the FMCSRs apply to the vehicle in your case, the court will likely refuse to consider charging the jury on the regulations or negligence.
Is the Violation the Result of an Act or Omission by the Driver, by the Company/Employer or Does it Relate to the Condition of the Tractor/Trailer?
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 the 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.
Did the Defendant Have More Stringent Internal Operating Rules?
Since the FMCSRs are the minimum requirements, a Florida Truck Wreck Lawyer cannot 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.
What are the potential theories of negligence-based on the violations for a Florida Truck Wreck Case?
Negligent Operation
Failure to place (or provide) warnings near disable vehicle; placard placement; fatigued driver; improper securing of loads; improper driving during hazardous conditions.
Negligent Inspection and Maintenance
Improper brake calibration; tire tread; light and reflector placement; cracked windshield.
Negligent Hiring, Retention, and Entrustment
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. Consider the following case in which driving with falsified log books was considered unreasonable risk of harm and evidence of negligent hiring and entrustment
Osborne v. Pinsonneault, 2008 U.S. Dist. LEXIS 29695 (W.D. Ky. 2008). Refusal to grant partial summary judgment on negligent hiring and entrustment claims where logbooks were falsified. Court found that such falsification showed trucking company created an unreasonable risk of harm to the Plaintiffs in its entrustment, hiring, training, and supervision of driver.
Florida Truck Wreck cases require attention to Spoliation of Evidence Issues
From the initial intake, Florida Truck Wreck Lawyer should be very concerned with the intentional destruction of evidence by the defendant Trucking Companies. Florida has a specific tort for the intentional destruction of evidence but in order for this to apply to a Defendant Trucking Company, they must be placed on “notice” that the evidence they have in their possession, custody or control may be relevant to the Florida Truck Wreck Case being prosecuted. The essential elements a Florida Truck Wreck Lawyer will look for in a spoliation of evidence case in relation to a Florida Truck Wreck case are the following:
1. Existence of a potential civil action
2. A legal or contractual duty to preserve evidence which is relevant to the potential civil proceeding.
3. Destruction of that evidence.
4. Significant impairment in the ability to prove the lawsuit;
5. A causal relationship between the evidence destruction and the inability to provide the lawsuit; and
6. Damages.
A Florida Truck Wreck Lawyer that knows this area of the law will be very aware of these concerns and will provide the necessary notice letters relating to spoliation concerns. For more information about any Florida Truck Wreck case please contract Zarzaur Law, P.A. at 855-hire-joe or zarzaurlaw.com.
Florida Truck Wreck Lawyer , Joe Zarzaur, founder of Zarzaur Law has created this blog in an effort to educate the many citizens and visitors of Pensacola, Florida about their legal rights. Joe Zarzaur knows the ins and outs of Florida law, and offers friendly-quality legal help whether you have experienced an auto accident/car wreck, have been a victim of a trucking accident or are in need of a Florida Truck Wreck Lawyer.
11 E Romana Street
Pensacola, FL 32502
Telephone: 850-444-9299
Email: info@zarzaurlaw.com
Follow us on Twitter: @zarzaurlaw
Like us on Facebook: https://www.facebook.com/zarzaurlaw
Check us out on Google+: https://plus.google.com/+ZarzaurLawPensacola