Truck Accident Lawyers Need to Hold Decision Makers Accountable
Kudos to my friend, Ken Shigley, an excellent Atlanta attorney and truck accident lawyer. Ken recently wrote a blog post that suggests the only real way to deter trucking companies from intentionally violating the law is to hold truck company owners and officers personally liable for their participation in dispatching unfit drivers on trips that cannot be lawfully completed. I am not yet aware of a Michigan case adopting this rationale, but as I discuss below, it is certainly something I believe lawyers handling truck accident litigation should be pursuing.
First, the rules that apply here certainly suggest this can be done. Violations of Federal Motor Carrier Safety Regulations provide standards of care, duty, evidence of negligence and other important truck safety rules including:
49 C.F.R. ? 390.13: “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”
49 CFR ? 390.5: “Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.”
49 CFR ? 392.3: “No driver shall operate a motor vehicle, and a commercial 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.” (Read here on truck drivers under the influence.)
49 C.F.R. ? 395.3 (2003 version on hours of service): “Except as provided in ? 395.1(b)(1), 295.1(f), and 395.1(I), no motor carrier shall permit or require any driver used by it to drive not shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.”
Violations of Federal Motor Carrier Safety Administration Truck Regulations
Violations of FMCSA Regulations establish standards of care upon which a jury should be instructed in negligence actions. See, e.g., Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist., 2005); Donaldson v. J.D. Transportation Co., Inc., 2005 WL 1458230 (Tx. App. 2005); Payne v. Cornhusker Motor Lines, Inc., 2005 WL 1867727 (Mo.App. 2005); Ngueyn v. Arce, 34 Fed.Appx. 879, n. 4 (4th Cir., 2002)(not selected for publication); Green v. Prouty, 2001 WL 1773871 (Ohio App. 5 Dist., 2001); Muehlhauser v. Erickson, 621 N.W.2d 24 (Mn. App., 2000); Hagan v. Gemstate Manufacturing, Inc., 328 Or. 535, 982 P.2d 1108 (1999); Harmon V. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir., 1987); Osborne Truck Lines, Inc., V. Langston, 454 So.2d 1317 (Ala. 1984); Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 39 Fed.R.Serv.2d 1217, 17 Fed. R. Evid. Serv. 97 (1984).
In appropriate cases, FMCSR violations may also be charged as negligence per se or negligence as a matter of law. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court held that violation of the FMCSR driver log requirement is negligence as a matter of law. If the driver’s violation is negligence per se, there is certainly a good faith argument that the acts of the company owners who aid and abet the violation by dispatching the driver under circumstances that the violation must occur also constitutes negligence per se. See also North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 123-4 (Tx. App. 2001); Crooks v. Sammons Trucking, Inc, 2001 WL 1654986 (Cal.App. 3 Dist. 2001)(unpublished opinion); cf., J.R. Mabbett & Son, Inc. v. Ripley, 185 Ga.App. 601, 365 S.E.2d 155 (1988). In addition, FMCSR violations may be considered as foundations for award of punitive damages in appropriate cases. See, e.g., Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill., 2006); Came v. Micou, 2005 WL 1500978 (M.D.Pa., 2005).
Principle of Personal Liability – Truck Companies
There are certainly cases outside the truck accident context both in Michigan and throughout the country that also support the principle of personal liability of corporate officers for their personal acts and omissions. In fact, it is the same principle behind piercing the corporate veil that lawyers are taught in law school: “One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.” Wrigley, 111 Ga.App. at 406, 141 S.E.2d 859. (210 Ga. App. at 553)
The general rule throughout the United States is that an officer of a corporation who takes part in the commission of a tort of gross negligence or reckless indifference by the corporation may be personally liable. Additionally, an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done.
With that, an owner or safety director of a trucking company that knowingly dispatches unfit or fatigued drivers or who intentionally puts dangerous, out-of-service trucks on roads that later kill or seriously injure people should be held accountable. Currently, criminal prosecution is non-existent, and too many personal injury lawyers are content to settle these cases within insurance policy limits; without pursing accountability of the real actors who cause needless and preventable truck crashes.
Perhaps it is time lawyers start taking Ken’s advice.
– Steven M. Gursten is recognized as one of the nation’s top attorneys handling serious truck accident injury cases. He is on the board of governors for the Association of Plaintiffs Interstate Trucking Lawyers of America and past president of the American Association for Justice Truck Litigation Group. Recently, he was named a Michigan Lawyers Weekly Leader in the Law for his efforts to promote truck safety.
– Photo courtesy of Creative Commons, by Franco Folini
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