Newsletter

Michael Jay Leizerman
EJ Leizerman & Associates, LLC
717 Madison Avenue
Toledo, Ohio 43624
Phone: (419) 243-1010

I.Introduction

I believe that most jurors want to make a difference. They want their verdict to be larger than the specific facts of your case and will do so if you point them in the right direction.

A jury will return a more significant verdict if it will increase community safety or if the jury is outraged by egregious acts or omissions. Jurors will make their thoughts and feelings heard by way of their verdict. This paper consists of my thoughts on how to make your case larger than what the facts first appear and convince the jury that their verdict will make the roads safer. By following this basic outline, you will be holding truck companies to the required legal standards, which will help save lives.

 

II. Ask yourself: What is this case about?

My main purpose in this paper is to convince plaintiffs' counsel not to focus on the plaintiff, but to focus on the trucking company when prosecuting a large truck collision. The theme of a large truck case should almost always include the truck driver, and quite often the truck company.

The defendant expects most plaintiffs' counsel to prosecute a large truck case like any other motor vehicle collision. The defendant would like large truck cases to solely involve the mechanics of the crash - who, what, when, where, and how but not WHY. By in essence performing your own root cause analysis^[2] of the crash^[3], you will be well on your way to proving a claim for punitive damages. You may also be able to provide the answer to your client's ever-present question: why did this tragedy occur?

As an example, the fact that a driver crossed the center line and killed a person is the answer to how the collision occurred. The fact that XYZ trucking company requires its workers to perform runs impossible to complete in ten hours with appropriate breaks is why a crash occurs. It explains why the driver was fatigued or provides a solid inference that he was. Also, a trial that focuses on the truck company takes the focus off potential negative facts in the plaintiff's case, such as issues of contributory negligence.

To aggressively prepare a large truck case, it is crucial to focus on the trucking company. I do not mean to suggest that every trucking company in every case has committed federal regulation violations. I can remember at least one case where the driver and company seemed to follow all the rules and the collision was simply an accident. I do mean to suggest, however, that most truck crashes are not accidents.

Look for federal regulation violations in order to zealously represent your client. In particular, become familiar with the Federal Motor Carrier Safety Regulations.^[4] Of course, it is necessary to conduct thorough discovery in order to apply the regulations to the facts of your case. Since some trucking companies can be evasive in providing information, it is important for you to do research on the trucking company in your case and in an attempt to impeach its representative.

 

III. The public policy of punitive damages in trucking cases

The more we each learn about the number of large truck injuries and deaths and their causes, the greater social responsibility we will feel to help fix the current system. A compilation of inspection data reveals an out of service vehicle in nearly one out of four inspections!^[5] One in twelve drivers - on the average - is out of service upon inspection.^[6]Also very troubling is the fact that about one in sixteen hazmat inspections results in an out of service determination.^[7]

The most recent available data compilation reports that large trucks are annually involved in approximately 453,000 crashes, 101,000 injuries, and 4500 deaths.^[8] Most of these deaths occur during weekday daylight hours.^[9] Therefore, there is an average of one death every daylight hour as a result of large truck crashes.

Of course, the ability to successfully argue for punitive damages will also result in a greater recovery for your clients. A viable punitive damages argument will many times provide the impetus for a fair offer, especially if the trucking company recognizes exposure and pressures its insurance carrier accordingly.^[10]

If punitive damages are not permitted in your jurisdiction, use federal regulation violations to show negligence per se and willful and wanton conduct.

IV. Tired Truckers

We can make the roads safer across the nation by making the public, legislatures, judiciary and juries aware of the problem of tired truckers. Drunk driving awareness - and safer cars - have saved lives over the last couple decades. Public awareness about tired truckers will save lives if the public is educated and becomes outraged about the number of routine violations.

A crash is about ten times more likely to be fatal when a large truck involved.^[11] Over half the crashes involving large trucks involve fatigue.^[12] It is a violation of federal law for a truck driver to drive while so fatigued that he cannot drive safely.^[13]

 

V. Outline of available discovery and research tools

Government internet sites are an indispensable tool in large truck cases. Some of the most important sites are listed below:

• www.safersys.org
  • check often to see growth rate of company
  • check to view subsequent fatalities and violations
• FMCSA
  • http://fmcsa.dot.gov
  • Tech Briefs by FMCSA Research and Technology
• Analysis and Information Online
  • http://ai.volpe.dot.gov/CrashProfile
  • lists crashes and fatalities in your state by county
  • 100 carriers with most crashes (see 1- 30 below)

• SafeStat
  http://ai.volpe.dot.gov/SafeStat (see below)

Click on the underlined text below for an explanation of how an indicator or measure was calculated

Compliance Review Results (within 18 months)					Vehicle Inspections Results (within 30 months)
Measures and Indicators
Vehicle Review Indicator ( VRI)			Insuf. data		Vehicle Inspection Indicator ( VII)				47.0
Vehicle Review Measure ( VRM)			Insuf. data		Vehicle Inspection Measure ( VIM)				0.475
Summary Event Data
Date of Review			None		Number of Vehicle Inspections				186
Number of Critical Violations			N/A		Number of OOS Inspections				38
Number of Acute Violations			N/A		Vehicle OOS Rate ( VOR)				0.204
	Vehicle OOS Violation Summary (within 30 months)
	Violation Number	Description				Number of OOS Violations	Number of Inspections
	392.9A1	FAILING TO SECURE CARGO/393.100-393.106				1	1
	393.11	NO/DEFECTIVE LIGHTING DEVICES/REF/PROJECTED				2	2
	393.19	NO/DEFECTIVE TURN/HAZARD LAMP AS REQUIRED				3	3
	393.205C	WHEEL FASTENERS LOOSE AND/OR MISSING				1	1
	393.207C	LEAF SPRING ASSEMBLY DEFECTIVE/MISSING				1	1
	393.207F	AIR SUSPENSION PRESSURE LOSS				2	2
	393.25F	STOP LAMP VIOLATIONS				15	11
	393.40	INADEQUATE BRAKE SYSTEM ON A CMV				1	1
	393.42	NO BRAKES AS REQUIRED				2	1
	393.45	BRAKE TUBING AID HOSE ADEQUACY				2	2
	393.46	BRAKE HOSE/TUBE CONNECTION				1	1
	393.75A	FLAT TIRE OR FABRIC EXPOSED				3	3
	393.75A2	TIRE-TREAD AND/OR SIDEWALL SEPARATION				1	1
	393.75A3	TIRE-FLAT AND/OR AUDIBLE AIR LEAK				4	4
	393.9	INOPERABLE LAMP (OTHER THAN HEAD/TAIL)				3	2
	393.9H	INOPERABLE HEAD LAMPS				1	1
	393.9T	INOPERABLE TAIL LAMP				5	4
	396.3A1BA	BRAKE-OUT OF ADJUSTMENT				1	1
	396.3A1BL	BRAKE-RESERVE SYSTEM PRESSURE LOSS				2	2

 

• State DOT webpage
• Trucking company's web page

Discovery:

• Bills of lading
• ECM printouts
• E-mail
• Satellite communication
• Requirements under 49 CFR 350 et seq., including:
  • 49 CFR 391
• qualifications file
• annual driving record
• record from previous employer (if not, negligent hiring)
  • Alcohol and drug information - 49 CFR 382
  • Log books - 49 CFR 395

The above are only representative samples areas.

VI.Conclusion

We can help make the roads safer for car and truck drivers by ensuring the truck companies abide by the laws and regulations that govern them. By conducting thorough discovery and utilizing simple research tools on the internet, you will often find legal violations - sometimes shocking and unconscionable. Integrate your discovery and research facts with a settlement and trial theme that focuses on the trucking company.

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Materials within the E.J. Leizerman & Associates, LLC web site are for informational purposes only. They are not legal advice and should not be used as such. Transmission of the information is not intended to create, and receipt does not constitute an attorney-client relationship.

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