Truck Crash Preventability - Scott L. Turner

Truck crashes are a unique brand of tragedy that nearly all have one thing in common, they are nearly always preventable. The preventability aspect of a CMV crash is defined as preventable from the CMV driver's actions and/or inactions, and/or the actions and/or inactions of a second vehicle if applicable. Proper investigation must ensue by the Motor Carrier to properly asses fault. This can often be done with the involvement of legal counsel in order to keep the results as being non-discoverable by the Motor Carrier, in all probability.

There are numerous crash cases that I have inspected and opined on from a CMV expert standpoint whereas the Motor Carrier simply got it wrong. As a result their CMV driver continues about his business, sometimes as a menace CMV driver that should never have been hired in the first place, more the exception than the rule.

The FMCSA specifies the definition of a preventable crash in Part 385 - Safety Fitness Procedures whereas it defines two qualifiers: the crash must involve a CMV, and the CMV driver and/or Motor Carrier did all that could be done do to prevent the subject crash:
 

• § 385.3 Definitions and acronyms. Preventable accident on the part of a motor carrier means an accident (1) that involved a commercial motor vehicle, and (2) that could have been averted but for an act, or failure to act, by the motor carrier or the driver.

This definition is consistent within nearly all industry standard definitions as to preventability in that it points to the professional CMV driver as to what he/she did to avoid being party to the subject crash.

In many cases as to causation, a solid investigation could point to what the CMV driver and/or Motor Carrier did as to a contributing factor hours and/or potentially days to weeks or even months prior to the subject crash. 

It is further known that crashes often result from many contributing factors working together to cause the crash. In other words, the act of the physical crash alone is often not the sole cause as typically identified by enforcement personnel that often examine the crash parties issues of potential or likely causation on the crash scene only.

As stated, indirect contributing factors may have taken place days, months or even years prior to the crash. According to the ATRI-LTCCS (Large Truck Crash Causation Study) defining “causation”, it states: “motor vehicle crashes are complex events. Usually they involve two or more vehicles. Elements that influence the occurrence of a crash may take place hours, days or months before the crash”.

The second part of the puzzle is to examine the CMV driver’s history, Motor Carrier’s safety performance history, in addition to their collective willingness to comply with the Federal Motor Carrier Safety Regulations. As suggested, one additional point of examination is what did the CMV driver do hours to days before the crash. These are all potential contributing factors to a crash that are determining factors as to preventability.

One such example of a preventable crash would be if the CMV driver is fatigued either by his/her own doing and/or the Motor Carrier's inadequate management controls caused him/her to operate the subject CMV beyond the hours permitted as defined in Part 395 of the FMCSR. 

 

 



 

 

 

Then there is the results of the investigation that point to the driver of the car as to operating their motor vehicle in a negligent manner, where it can be proven the car driver had the last clear and best chance to prevent the subject crash. Again, it still must be considered as to what the CMV driver did or did not do to become party to the crash irrespective of the findings as to the motor vehicles involvement.

If the CMV driver did not act in a prudent manner to avoid the crash a comparative negligence result will almost be for certain. 

It is extremely important that a Motor Carrier thoroughly qualify their candidate CMV drivers as this is the very beginning of success and/or failure, the first brick in the foundation of crash preventability.

There are a great number of studies and standards of care in the CMV universe that aid the Motor Carrier in the proper hiring decision. Such examples are the ATRI-LTCCS whereas it gives statistics of a CMV driver's potential for a future crash risk based on past moving violation convictions. There are tools to enlist the assistance of the FMCSA such as PSP (Pre-Employment Screening); the CMV candidate driver's MVA; past Motor Carrier employers referrals; etc.

When an unqualified CMV driver is hired it is without a doubt that when a Plaintiff attorney hires a top flight CMV expert, the facts of the unqualified hire will be exposed, or at least should be.  

If the Motor Carrier hires a CDL driver to simply get a warm body in the seat of the CMV just to "turn a wheel", the term of "knew or should have known" may well be used when the CMV driver has been convicted of past speeding violations within a two, three or even a four or five year period prior to the crash of subject. If properly sought after by Plaintiff's counsel, the experienced and highly qualified CMV expert will provide Plaintiff Counsel with terms such as "great weight to [past] violations" as stated in the FMCSR Part 391 - Qualifications of drivers:
 

• § 391.25 Annual inquiry and review of driving record. (2) motor carrier must consider the driver's accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicate that the driver has exhibited a disregard for the safety of the public.

To ignore these issues by a Motor Carrier regarding the FMCSR and industry standards of care can be proven detrimental in the civil litigation trial and/or mediation.

When and if it is determined that a CMV crash could have been prevented based on the CMV driver's actions and/or inactions to become party to the crash, and an investigation reveals that the CMV driver has a highly questionable moving violation history, respected standards of care will be brought into the litigation to support this claim.

One such document that will be evidenced by the savoy CMV Expert may very likely be a produced is a white paper written by HireRight whereas it states the following as to negligent hiring and/or negligent retention:

• “Negligent hiring occurs when an employer hires an incompetent or unfit employee who it knows, or by the exercise of reasonable care should have known, was incompetent or unfit and thereby creates an unreasonable risk of harm to others.”
  

-or-

• “Negligent retention occurs when an employer becomes aware, or should have become aware, of problems with an employee that indicate the employee’s incompetence or unfitness to perform his or her job, but the employer takes no action.”

One such example of a indisputable case as to negligent hiring and retention where I personally handled back a few years ago, a case I knew would never see the inside of a courtroom was a CMV driver that had in a five-year preceding period multiple moving violations: 3 speeding, one of which was over 85-MPH in a 65-MPH zone with a CMV, plus one careless driving. The small Motor Carrier hired him anyway. The crash occurred 44 days after the hiring. 

The afore stated crash could have been in all probability a preventable crash avoided simply by saying to the CMV driver candidate, "you are not qualified to our standards". This prudent way of handling the candidate will in all certainty prevent future litigation regarding an unqualified CMV driver if he/she were to be involved in a crash if he/she were in fact hired. In addition, a Motor Carrier should keep a documented file (not FMCSR required) on all rejected candidates to have proof of following prudent practices regarding unqualified CMV driver candidates. This file will be very helpful for Defense counsel come litigation time in so the Motor Carrier can demonstrate best efforts to hire qualified CMV drivers. 

There are many other issues that must be acted upon when considering the hiring of a candidate CMV driver according to the FMCSR Part 391. To hire an unqualified CMV driver regardless of his/her recent past is the very beginning of the preventability factor. Therefore a Motor Carrier must consider their hiring parameters and policies wisely.

Scott L. Turner

Motorcoach (Bus) Crash: Human Cargo - Scott L. Turner

Motorcoach (Bus) Crash: Human Cargo - Scott L. Turner

 

Whenever people are in transit, the stakes are high. All too often we turn on the news to hear of yet another motorcoach crash on the way to a casino, or a busload of children on their way to school or sporting event. In any event, the consequences are typically tragic, at best a minor few injuries.

In this article, I will provide a cursory look at inspection procedures for motorcoach and bus commercial motor vehicles (CMV's), a few regulatory issues, and causation factors.

The USDOT has incorporated motorcoaches and buses into the Federal Motor Carrier Safety Administration (FMCSA) regulations where they, too, are subject to the stringent regulations governing their operations, and rightfully so. However, as in motor carrier trucking operations.

Being FMCSA-trained in motorcoach/bus (hereinafter "bus") and truck roadside inspections, I would like to educate counsel on some of the issues involving bus operations, violations, regulations and other general information. This article, of course, is not an overview of bus operations; it is merely a snapshot. For further information, one must consult the FMCSR (regulations) where the near inextricability of truck and bus regulations reside; specifically parts 382, 383, 387, 390, 392, 393, 395, 396, et al.

A bus inspection is essentially a 22-step process, recommended to be carried out by three FMCSA-trained inspectors. This will likely be changed in the future, to a two-inspector process. As with property-carrying motor carriers, a Commercial Motor Vehicle (CMV) that is in commerce (including buses) can only be inspected by, and notices of violations issued by, a certified FMCSA inspector who is an enforcement officer. In other words, a regular police officer, Trooper or Highway Patrolman cannot issue FMCSA violations without being trained and certified as such by the FMCSA.

As stated previously, motorcoaches and buses are CMV's, with few exceptions. A CMV by FMCSA definition is 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 of 4,536 kg (10,001 pounds) or more, whichever is greater, or
2. Is designed or used to transport more than 8 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 the transportation of hazardous materials (HM) in a quantity requiring placarding.

Intrastate motor carriers - motor carriers that do not transport outside of their respective state - are governed by state law and not the FMCSA, therefore specific state law regarding motor carriers applies. However, most states adopt the FMCSR verbatim or very near to verbatim.   

Before determining if a motor carrier of passengers meets the applicability of the FMCSR, there are many factors that must be considered.  I will address a few of the questions that must be asked for this determination:

• Is the motor-carrier for hire?
• Is the motor-carrier compensated directly or indirectly?
• Indirect example: A hotel chain offers a shuttle back and forth to their hotel from the airport.
• Direct example: A tour company is compensated by the passengers for a tour of Nashville, Tennessee.
• Is the carrier a private motor-carrier?
• Is the carrier a private motor-carrier of passengers (business)?
• Is the carrier a private motor-carrier of passengers (non-business)?
• Is the carrier a school bus operation?

Specifically for the definitions of the aforesaid, one must consult 49 CFR 390.5., Subpart A - General Applicability and Definitions. There is more information that must be known regarding the motor carrier prior to being certain of the specific regulation parts that must be followed by a motor-carrier; for example, there is a big difference between a motor-carrier that is transporting a country music band around from concert location to concert location, and a motor-coach traveling from Los Angeles to New York, picking up and dropping off passengers along the way.

Insurance Requirements:

The insurance requirements for passenger-carrying motor-carriers were increased in1985. Prior to November 19, 1985 passenger-carrying motor-carriers were required to have only 50% of the coverage required today. After November 19, 1985, such motor-carriers were required to have $5,000,000.00 in coverage for any vehicle with a seating capacity of 16 passengers or more; for 15 passengers or less, the required amount is $1,500,000.00.

Motorcoach/Bus Inspection:

During an inspection of a motorcoach, it is important for the inspection team to be cognizant of the inconvenience to passengers; therefore, typically speaking, the best inspection location is the destination, where the Motorcoach operator has dropped off his passengers: e.g. amusement parks, museums or casinos. Specifically, the following inspection location opportunities are typically available:

• Carrier Facility
• Destination
• En-route

The en route inspection is the type of inspection that should be avoided unless serious or egregious safety violations are observed in-transit. Furthermore, en route inspections can- not be random, as they are with property carrying type CMV's, if passengers are onboard. There must be probable cause to pull a bus over for inspection purposes.

As to destination inspections, an inspection team must be aware of trickery that may be played by the carrier. If they know a bus is questionable, they simply state that the bus is in for repairs. Therein lays the justification for destination inspections. The bus is in an "as is" operational state; therefore, no excuses. However, carrier facility inspections are typical for post-crash inspections unless the vehicle has been impounded. If the CMV is stored post-crash at the carrier's facility, spoliation can be a concern.

A good example of an inspection at a destination location is at an amusement park. The passengers are out of the bus for an eight hour or so day. The driver is available with all of his required documentation.
As for required driver documentation, a driver should be required to produce the following, at minimum:

• Driver's License/CDL with proper endorsement(s)
• Operating authority
• Medical Certificate or Waiver/Skills Performance Evaluation Certificate (if applicable)
• Record-of Duty status (for driver and *co-driver [*if applicable])
• Shipping Papers (if HM is present)
• Driver's Daily Vehicle Inspection Report (DVIR) (if available)
• Documentation of Periodic Inspection
• Any other documentation (i.e. registrations, trip envelope, proof of insurance, tour itinerary, charter orders, interline agreements, toll receipts, fuel receipts, etc.)

In general, the hours-of-service rules for passenger-carrying motor-carriers differ from that of property carrying motor-carriers (trucks). A snapshot of a property-carrying motor-carrier's hours-of-service is 11 hours of driving time in a 14 hour on-duty status period.  This restricts the driver from driving over 11 hours or past the 14^th hour. In addition, the property-carrying motor-carrier must get 10 hours of rest; again, this is very general.

As for passenger carrying motor-carriers, the general 10 hour rule is as such: a driver may not drive more than 10 hours following eight consecutive hours off-duty. As to the 15 hour rule, again, the driver may not drive after being on-duty 15 hours following eight consecutive hours off-duty.

Causation:

One of my favorite subjects in any crash is investigating "causation," second only to performing post-crash inspections, the importance of which is often underestimated by counsel.

What follows is a list of many potential causation factors with applicable notations:

• Distracted driving: Distracted driving comes in many forms. It takes a keen eye to uncover why a bus crashed in the first place. Several examples are, but of course not limited to: 
• Cell phone/texting - As of January 3^rd, 2012, the FMCSA prohibited the usage of cell phones while operating any CMV.
• Other electronic devices: I-Pods, GPS systems, etc.
• Passengers conversing with the driver causing inattentive driving.
• It is an FMCSA violation for the driver to be able to see the television screen in a motorcoach, Van-Hool (double-decker) type bus, or any bus for that matter. 

• Fatigued driving: often discovered through keen post-crash gumshoe investigation. It is not difficult to determine falsification of logs if one knows where to look and how to look. I use the term, "Record-of-Duty Status Forensic Audit" for figuring out if a driver was in compliance.
• Speeding and/or careless driving: often this information is available by ECM data, GPS systems, EOBR's, logbooks, EZ Pass (electronic toll pay systems), toll receipts, deposition statements of witnesses and passengers.  
• Equipment failure: the potential for equipment failure exists, but is often not the cause of a crash.  Typical equipment failure can include, but is not limited to the following:
• Tire blow-out - The tire should be closely examined by a tire expert, a true tire specialist. As a side note; retreads, recaps and re-grooved tires are forbidden on the steering axle. However, the tire may say "re-groovable" but not having been re-grooved.  
• Brakes - Brake types, chamber sizes, pushrod stroke, air system leaks, airline chaffing, s-cam flip-over, insufficient brake shoe friction material, treadle valve air leak, air loss rate, etc.
• Suspension; broken suspension, leaking air bag(s)
• Steering wheel lash - determining how much play is in the steering wheel. Steering wheels with too much play can cause under or over correction in an emergency action, thereby causing a bus to roll-over.
• Exhaust system - exhaust leaks into the bus cabin area can cause carbon monoxide asphyxiation. Chemical-asphyxiation will cause confusion and poor judgment followed by possible death or long term health issues.
• Encroachment of a car or other CMV into the bus's space cushion causing over-reaction, over-correction, or maybe there was nothing the bus driver could do to avoid the impending crash. 
• Vehicle dynamics: the most common dynamic to affect a motorcoach's performance is center-of-gravity (COG), most common in Van Hool (double deckers). 

There are many other issues surrounding causation that must be investigated on a motorcoach crash. There are potentially indirect causation factors that must be considered, such as driver history, driver's health condition and driver training to name a few. These factors may also exonerate the good and responsible driver.

Investigating a CMV crash, performing post crash inspections and researching a carrier's history in any CMV crash is no time for conjecture. The facts must bear out the truth of what happened. It is only by experience that a CMV crash can ultimately be determined as to why and how? The stakes are high for both plaintiff and defense.

© 2013-2015

Scott L. Turner

SLTurner@SLTurnerConsulting.com

Truck Crash: Post Crash Document Preservation – Scott L. Turner

Truck Crash: Post Crash Document Preservation – Scott L. Turner

As a snapshot of document preservation; the following is intended to provide a quick reference guide as to the same.

Each CMV crash; and the circumstances involving the crash vary, often substantially; therefore, each case needs to be independently investigated and thoroughly understood. In addition, Motor Carriers applicability varies somewhat as well; such as, but not limited to: 100 air-mile radius, Intrastate v. Interstate, HM on board, etc. 

The above stated; there are some constants in every CMV crash that must always be sought out.

It is logically known in the Motor Carrier legal community that the documentation of a driver, driver’s activities and driver’s ability to adhere to company policy, and federal regulations is critical in adjudicating a CMV crash; further, it is essential to the point of either adding a zero, or taking a couple off a settlement, or jury’s decision; worse yet, the difference between criminal conviction, or being exonerated.

Post crash document preservation is critical from both a defense standpoint, and a plaintiff standpoint. If a Motor Carrier operated within the confines of the regulations; FMCSA and PHMSA (where applicable), document preservation is clearly a benefit, and every effort should be made to preserve the same to protect both the company and the driver.

If a Motor Carrier performs its business as an ‘old-school’ mentality shop, still operating like it was 1985, the document preservation surrendered during discovery may prove to be painful, and may eventually render the Motor Carrier uninsurable and/or causing of interventions by the FMCSA.. 

If plaintiff counsel intends to prove proximate cause of negligence as to the motor carrier, they had best act quickly upon retention as there are certain critical documents that have a ‘shelf life’. As such, if these certain documents are not requested to be preserved, they may very well be destroyed, and this may be critical evidence. 

In general, immediately a law firm should look to preserve the following documents, but not limited to:

• Driver Vehicle Inspection Report (DVIR)
• Records of Duty Status (RODS or HOS, Hours-of-Service)
• Electronic On-Board Recordings (EOBR)
• Driver time sheets (if applicable)
• Receipts: tolls, fuel, service receipts, food (supporting RODS)
• Bills of lading, shipping documents
• EZ Pass; or other electronic toll paying devices
• PrePass
• Scale tickets
• Electronic Control Module (ECM) data
• Global Positioning data (GPS)
• Cell phone records

There are many other items that will need to be produced during the discovery phase of a court case; however, these additional documents do not have the time sensitivity as some of the aforesaid; examples: medical, training, company policy, Q-files, etc.

The two documents that will often prove to be the most effective in either prosecuting a driver’s and/or motor carriers negligence or exonerating them from any wrong doing are the Records of Duty Status (logbooks) and the DVIR’s, both of which are permitted to be destroyed within scheduled time frames as prescribed by the FMCSA; respectively they are six months and three months.

In addition to the above scheduled destruction time frames, all supporting documents to the RODS must be retained for the same period of six months. 

Once defense counsel receives a demand letter of preservation of such documents, and destruction occurs after the date of the letter, the same may be considered spoliation of evidence. If the time sensitive evidence of RODS and DVIR’s are “not available”, it may be assumed to be a violation of the FMCSA specific regulation. If such documents are not available, often there are other ways to determine fatigue driving that may have been a causation factor to the crash.

Fuel receipts that are offered up as supporting documentation, and that are issued from many of the large nationwide fuel vendors such as T/A, Pilot and Love’s often will not display the time as to which an operator fueled, only the date will appear.

At the end of the day, every successful CMV crash case that is either civilly or criminally prosecuted; or successfully defended is nearly always built on the foundation of documentation the Motor Carrier has in their possession, and a keen eye to examine the same. Therefore, expedient preservation of these documents is critical to a successful conclusion.

© Copyright 2012-2014

Scott L. Turner

SLTurner@SLTurnerConsulting.com

Truck Crash: Distracted Driving - Scott L Turner

Truck Crash: Distracted Driving – Scott L. Turner

This post will probably not tell you much more than you may already know; distracted driving is risky behavior that often compromises the safety of others.

Distracted driving; a growing problem in North America. In fact, the problem of distracted driving has reached an epidemic level with distracted driving being the main causative factor in many crashes, many that are not even credited as distracted driving.

It is estimated that approximately 25% of all motor vehicle crashes in the United States are caused by some degree of distracted or inattentive driving.

Distracted driving has been an intrinsic part of motor vehicle operations well before the invention of the cell phone. By a motor vehicle operator changing the radio station, clearly there is distraction, eating or drinking are likewise distractions. In fact; anything that takes the operator away from their main function of operating the motor vehicle is distracted driving.

People often believe that "multitasking will allow them to accomplish their trip in addition to a cell teleconference, or eating on the run. The truth about multitasking according to the National Safety Council states: "Multitasking is a myth. Human brains do not perform two tasks at the same time. Instead, the brain handles tasks sequentially, switching between one task and another. Brains can juggle tasks very rapidly, which leads us to erroneously believe we are doing two tasks at the same time. In reality, the brain is switching attention between tasks - performing only one task at a time." 

According to the National Highway Traffic Safety Administration (NHTSA), in 2009 distracted driving injured the number of motorist’s equivalent to the population size of Cleveland, Ohio. In addition to those estimated 448,000 injured motorists, 5,474 were killed in motor vehicle related crashes as a result of distracted driving.

As of January 3^rd, 2012, hand-held cell phone usage by an Interstate Commercial Motor Vehicle (CMV) drivers, for both truck and bus is banned by the Federal Motor Carrier Safety Administration (FMCSA).; furthermore, the same is banned on Intrastate CMV operations if the carrier is transporting hazardous materials requiring placarding. This Intrastate regulation is governed by the Pipeline and Hazardous Materials Safety Administration (PHMSA).

It is important to note that there are still some states that have not banned hand-held cell phone usage to date of this post. Therefore, if a carrier is an Intrastate carrier, that carrier’s drivers currently are not in violation if they use a cell phone, right? Not necessarily. Many states have adopted the FMCSR (regulation) verbatim, thereby making it illegal to utilize a cell phone in a CMV (truck or bus); regardless of what the broader state law says.

Now that we have cleared that up; what about all those other distractions in the cab of an 80,000# tractor-trailer, or a passenger carrying motor vehicle in commerce with say 16 passengers, both CMV’s. A few of the many distractions are, but not limited to:

• Cell phone (hand-free or otherwise)
• Texting
• I-Pods
• GPS
• Laptops
• CB’s
• Eating/drinking
• Grooming

In addition to cell phones, there is one other electronic device that I would like to briefly discuss; the GPS.

GPS’s are great tools. Amongst other applications, they save fuel by correct and legal routing a 102” tractor-trailer, for example, it is illegal to operate a 102” CMV in the borough of Manhattan, New York. There are GPS systems that can assist in the correct routing, thereby reducing the inner-city fine potential. At $4.50/gallon for diesel fuel, every wrong turn counts. The aforesaid stated; the GPS only creates yet another distraction.

Although there are no FMCSA or PHMSA requirements regarding actual distracted driver training such as; cell phone usage, or GPS usage; prudence dictates the day. If a carrier were to consider distracted driving subject matter into a training syllabus, and document the same, it clearly would benefit, first and foremost by creating a safer driver; second, by being able to demonstrate a reasonable degree of prudence, care and caution as to driver safety management.

There are currently training programs available that will assist in the training of both CMV drivers, as well as younger drivers and company fleet drivers

Now that we have discussed the CMV aspect to distracted driving; what about the 3,000 pound automobile, the high school or college kid that see no harm? These careless acts by young adults, and many seasoned commuters are often the causative factor of a CMV crash; and the outcome will typically be that of the car loosing in the crash; that is 3,000 lbs vs. potentially 80,000 lbs, or more.

A motor carrier has far too much to loose by distracted driving. Not only lives, injuries and property damage which are the most concerning, and the genesis of all the regulations; but now, a motor carrier’s in commerce have to be concerned about their CSA score. A distracted driving violation carries the maximum severity weight of 10 and may harm your Unsafe Driving BASIC score. In addition, the motor carrier that has a crash that is determined to be distracted driving as a direct causation factor will have their Crash Indicator BASIC score impacted for two years. 

Nearly every driver that drives distracted believes that he/she will not be caught. That coffee spilled all over the driver and windshield is an indicator of what may have occurred pre-crash. The 911 call that is made immediately after the crash by a passer-by witness that is later discovered from subpoenaed cell phone records that the CMV driver, or car operator was engaged in a conversation, or just sent a series of texts pre-crash is powerful evidence.

ECM evidence such as hard brake applications coinciding with subpoenaed cell phone/text usage immediately prior to the crash is likewise very powerful evidence that would be difficult to be explained away.

There are many forms of evidence that can often be identified by means of thorough investigation, CMV/car inspection(s), effective discovery, witness depositions and statements, ECM downloads, cell phone subpoenas, etc. Understanding all of this evidence, to make sense of applicable convincing timelines is critical to either prove your client’s lack of involvement as to causation, or proving the defendants negligence.

It has been determined that distracted driver’s using cell phones fail to look or process approximately 50% of what they see in their driving environment. This is commonly referred to by researchers as inattention blindness, similar to that of tunnel vision. It is the cognitive distraction that ultimately causes that car driver to not see that 80,000# semi-tractor trailer; or that bus driver to not see that bystander; or that CMV driver to fail in his observation of a changing traffic light at a controlled intersection.

In closing; a CMV carrier should consider focus a measurable amount of their driver training on reducing distracted driving. Schools should incorporate distracted driving and operating around CMV’s in their syllabuses during driver education. These simple steps would measurably reduce such crashes.

For your review and reference; below I have incorporated a list of frequently asked questions as to the new ban on cell phone usage. 

© 2012-2014

Scott L Turner

Slturnerconsulting.com

Frequently Asked Questions (FAQ) - Ban on Hand Held Cellular Phones

Q: What is the effective date of the Mobile Telephone rule?

A: The effective date of the rule is January 3, 2012.

Q: Are wired or wireless earpieces allowed?

A: Yes. Hands-free use of a mobile telephone is allowed using either a wired or wireless earpiece, or the speakerphone function of the mobile telephone. Wireless connection of the mobile telephone to the vehicle for hands-free operation of the telephone, which would allow the use of single-button controls on the steering wheel or dashboard, would also be allowed.

Q: Are commercial motor vehicle (CMV) drivers allowed to use push-to-talk mobile communications equipment while driving?

A: Yes, provided the driver does not reach for, dial, or hold the actual mobile telephone in his/her hand while driving and the driver is able to touch the button needed to operate the push-to-talk feature from the normal seated position with the safety belt fastened. Generally, the use of this type of communications equipment does not require drivers to take their eyes off of the forward roadway because the button used to enable the driver to communicate can be operated from the normal seated position with the safety belt fastened. For example, if the mobile phone is mounted in a cradle or similar device near the driver, or there is a remote push-to-talk button near the vehicle controls to allow the driver to communicate without reaching for, dialing, or holding the actual mobile telephone in his/her hands while driving, the equipment may be used.

Q: Are holders of a commercial driver’s license (CDL) subject to the regulation only when driving a CMV, as defined in 49 CFR 383.5, or any vehicle?

A: CDL holders are subject to the Federal rule only when driving a CMV.

Q: What drivers are covered by the Federal rule: intrastate or interstate? CDL holders? All CMVs?

A: This Federal rule covers both, drivers of CMVs in interstate commerce, and also any drivers who operate a vehicle transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.

If a CMV driver is employed by a State or a political subdivision of a State (e.g. county, city, township, etc.), FMCSA safety regulations do not apply, even if the driver is engaged in interstate transportation. But if a CMV driver employed by a State or a political subdivision of a State is operating a vehicle that requires a CDL, the applicable State traffic laws would govern (e.g., Maryland’s prohibition on the use of hand-held phones). The States have 3 years to implement by State law the disqualification provision.

Q: What is required of the employer in terms of company policy or training?

A: The rule does not require motor carriers to establish written policies in terms of company policy or training programs for their drivers. However, employers are prohibited from allowing or requiring their drivers to use hand-held mobile phones. A motor carrier may establish policies or practices that make it clear that the employer does not require or allow hand-held mobile telephone use while driving a CMV in interstate commerce. The carrier is responsible for its drivers’ conduct.

Q: Is dialing a phone number allowed under this rule?

A: No. Dialing a mobile telephone while operating a CMV in interstate commerce is prohibited by the rule. A driver can initiate, answer, or terminate a call by touching a single button on a mobile telephone, earpiece, steering wheel, or instrument panel – comparable to using vehicle controls or instrument panel functions, such as the radio or climate control system.

Q: Can a driver reach for a mobile telephone even if he/she intends to use the hands-free function?

A: No. In order to comply with this rule, a driver must have his or her mobile telephone located where the driver is able to initiate, answer, or terminate a call by touching a single button while the driver is in the seated driving position and properly restrained by a seat belt. If the mobile telephone is not close to the driver and operable while the driver is restrained by properly installed and adjusted seat belts, then the driver is considered to be reaching for the mobile phone, which is prohibited by the rule.

Q: Are tow trucks exempt?

A: No. The interstate operation of tow trucks that meet the definition of a CMV are not exempt. Tow trucks, however, are exempt when responding to police emergencies in accordance with 49 CFR 390.23(a)(3).

Truck Crash: Foundation Air Brake Fade; Scott L Turner

Truck Crash: Foundation Air Brake Fade; Scott L. Turner

Air brake mechanical failure is not a common event, in-fact, it is very uncommon; however, mechanical things do break from time to time.

If brake failure does occur, it is often due to maintenance failures of the motor carrier, although this is not always the causation of brake failure. There are also the driver components as to how he uses his/her braking system, or abuse of the braking system. 

I write this post from the perspective of one who has personally responded to over 1,000 truck crashes, many as a result of the inability to effectively stop and 80,000 GVWR commercial motor vehicle (CMV), at times as a result of not creating enough space cushion, or another vehicle attepting to occupy the same space as the CMV whereas the CMV can not stop quickly enough. In addition, as a former driver of a CMV in my earlier years, I too nearly lost my life as a result of brake failure in the mid-1980’s.

I don’t say that God was my co-pilot; he simply took the wheel.

Around 1986 I was on Route 100 in Vermont, headed to New Hampshire. My load consisted of a gross total of 90,000# plus load on a lowboy, or dropdeck type trailer, a heavy machinery transport unit. The load was a very large Komatsu track-hoe excavator that I was contracted to transport..

I picked the machine up at the piers at Port Newark, New Jersey as the machine was in-bound from Japan. After picking up the 10’4” wide-load, I intended to take the New York State Thruway to the Massachusetts Turnpike, then onto New Hampshire. When I reached the entry way for the Massachusetts Turnpike, it was temporarily restricted to wide-loads due to construction. I had to re-route.

Little did I know that my new route would take me through the ski regions of Vermont, I was in my early 20’s and was not very well traveled in the Northeast.

Driving an early model, owned and operated Mack R-600 with a five speed transmission, I was traveling up and down these seemingly harmless hills; until, there it was! Staring me in the face like a death sentence, a walk down that so-called “green mile”, and I had done nothing wrong; or so I thought………. Ignorance was my only crime.

Apparently, the signage that stated “trucks use low gears, 5 mile mountain, ?% grade” had been knocked down previously by an auto colliding with it as a result of a previous snow event, according to a State Trooper. But this I can say, it was steep, long and quite frankly “horrifying”..

At the crest of the mountain I was in fifth gear, at approximately 45 MPH. Suddenly I looked down the throat of this seemingly endless two lane mountain roadway, I immediately knew I was in trouble.

My truck immediately began picking up speed; I contemplated jumping out for a split second as there were no dwellings, only woods. Not a good idea. So I grabbed the wheel, starting speaking loudly to the Good Lord to save me from this inevitable crash, return me home to my wife and newborn son.

I tried to downshift in a panic, missed my gear to 4^th, and then could not get it back into 5^th. I was freewheeling out of control with a speed quickly beyond that of the 100 MPH mark; although my speedometer pinned out at 80 something way before that.    

While only grabbing the steering wheel, I tried to slow my CMV by braking, then I had to try and fan my brakes because I had no choice, that was all I had left.

I quickly viewed my air gauges to only watch my pressure rapidly decline as I was quickly approaching 80 PSI and below. Then it happened, both of my dash air brake buttons popped; my yellow parking brake and red trailer air supply buttons both. Now I am in a total free wheel in excess of 100 MPH with no brakes.

Near instantly I saw smoke coming from my brake assembly areas of my trailer tires and tractor tires; from smoke to quickly what appeared to be fire(s). This was the least of my concerns at this point.

When smoke begins to emanate from a foundation air brake structure, the temperature is in-excess of 850 degrees Fahrenheit. If you are following a CMV and smell brake burn, the drum and shoe friction material temperature has exceeded 550 degrees Fahrenheit. This data is according to Carlisle Brake and Friction.

I blew through this little town at the bottom of the five mile mountain at over 100 MPH, using what little air I had left to warn the town folks that a freight-train was coming down the mountain, uncontrollably without tracks or brakes.

Thank God the towns folks were either keen to this type occurrence, or there were just too few residence to by chance be in the street.

A long story short; it took me several miles to finally come to a stop with my trailer tires fully engulfed in flames and my tractor tires smoking like the Marlboro Man after a six pack on a Friday night.

I know this reads more like a novel than an educational or informative post to my blog; however, in addition to other issues such as routing, pre-planning trips, maintenance, etc., there is a relative moral to this story: brake fade is serious business often with deadly consequences.

I will not get to technical in this post as to how brakes work and how they fail with exception to a degree of brake fade issues.

There are several different types of brake fade; but first one needs to understand how CMV airbrakes actually work, in general terms.

Below is a diagram that demonstrates as to how specifically an airbrake system works:

                                                                                  Source: © 2008 HowStuffWorks

In simplistic and layperson terms, air is converted to mechanical energy. When the driver pushes down onto his brake treadle (foot valve), this sends air to the brake chambers, which in turn the air is converted to mechanical energy by pushing out the pushrod. The pushrod is attached by a clevis pin to an automatic slack adjuster. The slack adjuster is connected to a camshaft. The camshaft rotates on the rotation of the slack adjuster by means of the pushrod being exerted outward from the brake chamber.

At the drum side of the camshaft there is an “S” design (hence: S-Camshaft) which rotates and mechanically expands the brake shoes (friction material) against the inner drum, thereby creating friction and causing the truck to slow down or stop.

There are many factors as to foundation airbrake performance; as such, I have listed just a few, without getting into the air supply itself, or extensive potential list of driver error factors:

Direct Human Factors:

• What does the ECM data tell us, if available?
• Was the brake application a hard brake application?
• What was the speed just prior to the hard brake application, through to the crash? 
• Where there any distractions causing delayed reaction?
• Perception to reaction time considerations

Direct Mechanical Factors:

• Were the pushrod strokes such that the braking ability is substantially reduced due to pushrods being out-of-adjustment?
• How much friction material was on the shoes at the time of the crash?
• Were there any wheel/drums that were in violation whereas the drum friction contact points were grease coated?
• Were the inner drums (friction points) rusted? If so, it likely indicates an inactive brake?
• Was there more than 20% of the total brakes out-of-adjustment, or other mechanical malfunction(s)?
• Was there a misalignment of the brake linings?
• Foundation airbrake lag time consideration

Other Factors:

• Improper weight distribution of cargo
• Cargo-tank product surge factors
• Were the tires not maintained with proper inflation?
• Road surface conditions.
• Weather conditions.

Brake fade that caused my brake shoes and drums to brake glazing was ultimately a major contributor to causation of my runaway truck back in approximately 1986.

Brake fade was initially caused by the excessive overheating of my brake drums. As my brake drums overheated due to excessive friction material pressing excessively against the drums, the drums essentially expanded beyond the point of effective usefulness as a result of the 850 plus degrees Fahrenheit that was generated.

In sense, when the brake drums overheated to the point of excessive expansion, the brake shoe friction material becomes less in contact with the brake drum as the drum pulls away from the brake shoes. The brake drum, round in shape actually expands in its circumference.  

As the CMV picked up speed, the situation only deteriorated more rapidly. When both of my dash air brake buttons popped; my yellow parking brake and red trailer air supply button, the brake shoes pushed excessively against the brake drum causing an instant brake glaze.

You know the rest of the story.

Foundation air brake fade is essentially assigned to one or more brake fade conditions, they are as follows: mechanical fade, friction fade, fluid fade, and domino effect fade.

It is not the intention to create a reader of this post to a foundation airbrake expert; therefore, I will not get into detail as to how friction converts kinetic energy into the heat necessary in a foundation airbrake system to stop an 80,000# GVWR-CMV; therefore indicating friction fade issues as denoted above, as opposed to mechanical fade where the drum pulls away from the friction material due to expansion due to overheating; again, as described above in real world terms.  

The reason for the brief explanation as aforesaid is to demonstrate that there may be one or more brake fade issues in a crash. Each crash where brake issues are of concern should be thoroughly investigated in so that if the defense is harmless in the causation as to brake failure, elimination of brake fade and proper maintenance is critical.

Juxtaposed to the above; if a plaintiff is the victim of a crash, believed to be due to poor brake maintenance, and brake fade is a causation issue, a proper inspection of equipment and maintenance records is likewise critical.

Little did George Westinghouse, the inventor of the Foundation Airbrake System in 1872, ever expect to see his invention be used on millions of CMV’s throughout history. 

© Copyright 2012-2014
Scott L Turner
Slturnerconsulting.com