September 4, 2019

Hours of Service Rules, Driver Fatigue, and Liability

Drowsy driving, when you are sleep deprived, is more dangerous than driving drunk. The National Sleep Foundation reports that 60% of adults in the U.S. have gotten behind the wheel when tired and more than a third have fallen asleep behind the wheel.

Hours of service rules apply to truck and bus drivers, as they are more likely to cause catastrophic accidents due to the sheer size and velocity of the vehicles they operate. Your local truck accident lawyer at Cochran, Kroll & Associates, P.C. could help you investigate what liability can be assigned to driver fatigue in an accident if you were injured.

Sleep Deprivation

Most adults require a minimum of 7 hours sleep a night, and some up to 9 hours, according to the CDC, however nearly 35% of adults between the ages of 18 and 60 years do not get enough sleep.

Sleep deprivation robs the neurons in the brain of the ability to function correctly and dampens brain cell activity, which allows cognitive lapses in how we perceive and react to the world, according to Dr. Fried, a professor of neurosurgery at UCLA. Most importantly, it interferes with how the brain encodes and translates visual information into conscious thought.

This means if a pedestrian or an animal stepped in front of the vehicle, you are driving; it will take longer for the driver to realize what they are seeing – thus significantly slowing down their response time.

Sleep deprivation can cause changes in your memory, mood, and health in far-reaching ways. According to Dr. Finan, a sleep researcher at Johns Hopkins, they include:

Safety:

  • 6,000 fatal car crashes due to drowsy driving annually
  • One in 25 drivers will fall asleep at the wheel every month
  • Inability to recognize danger or objects
  • Reduced reaction time – sluggish responses
  • Reduced ability to make decisions
  • Affects your judgment – thus do not notice the effects of the sleep deprivation
  • The emotional center of the brain 60% more active – therefore no control over emotions
  • Hallucinations if severe

Health:

  • Increased risk of high blood pressure
  • 3x more likely to catch a cold
  • 48% higher risk of cardiovascular issues
  • 36% higher risk for colorectal cancer
  • 3x risk for type 2 diabetes
  • Lower immunity

Changes in your brain:

  • The brain can age 3-5 years due to sleep deprivation
  • Increased problems forming memories
  • 33% increase in dementia risk
  • Increased risk for fuzzy thinking, forgetfulness, anxiety, irritability, and depression

Weight:

  • Increased ghrelin levels (hunger hormone)
  • Decreased Leptin levels (appetite-control hormone)
  • Cravings for sweet, starchy and salty foods
  • 50% increase risk for obesity (on less than five hours sleep)

Role of Sleep Deprivation in Accidents

Studies have shown that sleep deprivation has the same effect on driving as driving drunk, and can be worse in some cases:

  • BAL (blood alcohol level) of 0.8 is considered drunk
  • If you are awake for 18 hours when driving – equivalent to BAL of .05
  • Awake for 24 hours – equivalent to BAL of .10.

Drunk or drowsy driving impairs your ability to pay attention to the road, your recognition and decision-making ability, and your ability to react in time.

However, a drunk driver will most often drive slowly and have more time to react, whereas a drowsy driver will not recognize that they are in trouble and can fall asleep while going fast.

Unfortunately, the odds are stacked against many CMV drivers – truck drivers are typically paid per mile or delivery, and there is no compensation for ‘off-duty’ time. This perverse incentive pushes them to take chances and to drive when not fully rested to make more trips. In some cases, unscrupulous companies will push them to take on more deliveries knowing full well that they are not rested, to make tight deadlines.

Waiting times at docks to pick up or deliver can seriously mess up a schedule and trying to make up time can coerce them into driving when they should not, with the added problem of sleep deprivation affecting their ability to recognize the signs of drowsy driving.

This is exacerbated in poor driving conditions – most truck drivers battle wind, sleet, snow, and storms for a large part of the year where alertness is crucial and the ability to react fast can mean the difference between life and death. Trucking accidents can have catastrophic consequences.

What Are the Signs of Drowsy Driving?

60% of Americans have driven while sleep-deprived and a shocking 37% admit to having fallen asleep at the wheel in the past year, according to the National Sleep Foundation’s Sleep in America poll.

Sleep-deprived drivers are unable to recognize the signs of drowsiness and put themselves and others in danger. In the early stages, they believe they can handle the drowsiness and may drink a caffeine beverage to try and wake up.

A passenger can watch out for signs of drowsiness, but in long-distance trucking, the passenger is often asleep in the berth behind, as they take turns to drive while the other sleeps.

Signs of drowsy driving include:

  • Constant yawning
  • Heavy or drooping eyelids
  • Blurry vision
  • Constant blinking
  • Trying hard to focus your eyes on the road
  • Rubbing your eyes
  • Difficulty concentrating
  • Head bobbing and difficulty keeping your head up
  • Leg cramping or restlessness, cannot find a comfortable position
  • Suddenly wondering where exactly you are (having forgotten the last stretch of road already)
  • Daydreaming
  • Disconnected thoughts
  • Missing exits
  • Drifting from your lane
  • Missing traffic signs
  • Wondering what the speed limit is
  • Tailgating (often done to have the lights to focus on)
  • Slamming on brakes too fast if something appears in front of you
  • Suddenly jerking the steering wheel for no apparent reason
  • Having to stop very hard if cars slow down in front of you
  • Hitting the side rumble strip
  • Irritability and shouting or honking at other drivers

If you show any of these signs, for your safety and that of others pull over and rest, or switch drivers (if the other person is alert enough to drive). The best motto is that nothing in this world is important enough to risk your life and that of others driving sleep-deprived, and especially in adverse weather conditions.

Another issue relates to drivers making long trips for personal reasons while in the 34-hour reset period, or not sleeping before reporting to work, and while this does not violate hours-of-service rules or federal guidelines for personal conveyance, failure to check if drivers are rested makes the company liable though.

Hours-of-Service Rules

The Federal Motor Carrier Safety Administration (FMCSA) established a set of rules and regulations to ensure that fatigued drivers are kept off the interstate highways and roads, to reduce the number of accidents involving trucks. It is estimated that as many as 20% of accidents are related to fatigued drivers.

The rules were first published in 1937 and has been updated a few times based on new research. The final rule was published on December 27, 2011, in the Federal Register, with an effective date of February 27, 2012, and remaining compliance set at July 1, 2013.

Following a huge public outcry and complaints from the trucking industry, the 34-hour restart was suspended in The Consolidated and Further Continuing Appropriations Act of 2015, pending the outcome of a study. Based on this it was restored to full effect; however, 2 regulations will not be enforced, namely 395.3c requirement for off-duty time between 1 am to 5 am, and 395.3d once-per-week limit on the use of the restart.

The FMCSA confirmed earlier this year that another overhaul of the rules is in the works.

A summary of the rules for property carriers (truck drivers) include:

  • Maximum of 11 hours driving
  • Must take a minimum of 10 consecutive hours break after driving shift
  • Of the 10 hours, if used in berth, must sleep for 8 hours
  • Total on-duty time (driving, loading, maintenance or paperwork) may not exceed 14 hours (called the driving window, and nothing stops the clock. In rule 395.2)
  • May not exceed 70 hours per week.
  • Once 70 hours on-duty time reached, a mandatory 34 hours off duty is required before starting the next on-duty week. This is called the 34-hour reset.

The requirements for a 30-minute break in the first 8 hours of driving, and two consecutive 1 am to 5 am sleep periods in the 34-hour reset is no longer being monitored.

Many other rules apply to local driving distances and in-state rules that need to be checked too.

Who Does It Apply To?

The rules apply to anyone driving a CMV (commercial motor vehicle) on a public roadway. This includes a vehicle that is:

  • Used for business purposes
  • Is involved in interstate commerce, and
  • Any of the following:
    • Weighs 10,001 pounds or more
    • A gross vehicle weight rating or gross combination weight rating of 10,001 pounds or more
    • Designed or used to transport 16 or more passengers (including the driver) without compensation
    • Designed or used to transport 9 or more passengers (including the driver) for compensation
    • Used to transport Hazardous Materials requiring placards (i.e., large quantities).

The rules vary between property-carrying and passenger-carrying CMV’s.

What Are the Driver’s Responsibilities?

The driver has to maintain clear and unambiguous logbooks of the 4 choices of status: driving time, on-duty/not driving, sleeper berth, and off-duty time.

He has a responsibility to comply with the Federal Hours-of-service regulations.

A known violation will be held against the driver.

What Are the Carrier’s Responsibilities?

CMV carriers are responsible for the training and monitoring of their drivers to ensure compliance.

Any driver violation may be held against the carrier.

If they carrier dispatched the driver knowing they are in breach of HOS rules, or failure to maintain effective compliance systems can attract hefty fines and in some cases jail time.

Electronic Logging Devices

The industry is in the process of switching over to Electronic Logging Devices (ELD’s) as it minimizes the risk of logbooks being tampered with or the common practice of keeping different sets of logbooks. However, logbooks will be used for quite a while, in case the ELD malfunctions. The compliance date was set on December 18, 2017. AOBRD’s (on-board recording devices) installed before this time must be replaced before December 16, 2019.

How Is It Enforced?

Roadside inspections are done frequently. There are weigh stations upon entering and leaving states near all borders, and across states; trucks can be pulled over and checked at any time. Electronic devices now alert inspectors when trucks from companies with previous violations approach to ensure they are pulled over and checked more frequently, whereas others are done randomly. Any police officer, state trooper, or traffic officer may inspect their logs at any time too.

Violations picked up at roadside inspection result in a traffic citation, and the driver may be placed out of service for a specific period.

Violations picked up at carrier audit could attract much higher civil fines by the Federal government.

Examples of violations

In 2017 the following citations were issued:

  • Not having a logbook – 32,600
  • Not having a current logbook – 25,554
  • No current driving record status – 71,000
  • Driving beyond the 8-hour limit – 51,149 (when this rule was still in force)
  • driving beyond the 11-hour limit in the 14-hour period – 19,000
  • driving beyond the 14-hour duty period – 33,000
  • false reporting times – 43,000

When Is the Carrier Held Liable?

Came v. Micou, 2005 WL 1500978 (M.D.Pa.,2005) – a leading case on punitive damages regarding systemic failure to manage drivers’ hours:

  • Defendants’ conduct constituted “reckless indifference to the rights of others”
  • Failure to monitor the truck driver’s conduct,
  • Failure to investigate the driver’s hours of service,
  • Re-dispatching the truck driver even though he had exceeded his hour of service limitations; and
  • Failure to have effective procedures in place to verify drivers’ hours of service

Compliance with Federal Motor Carrier Safety Regulations cannot be abdicated by

  • Use of an outside consultant 49 CFR §392.1
  • Claiming no actual knowledge of the violation 49 CFR §395.3
  • Claiming they did not permit or require the violation – liable for the actions of their employees

If you live in Michigan, and you have been involved in a trucking accident and suffered injury, call our law firm at 1-866-MICH-LAW (1-866-642-4529) for a free consultation. Our legal team can help you unravel all the regulations that apply to determine if the driver and the company are liable in your accident. At Cochran, Kroll & Associates, P.C. we never charge a fee unless we win your case.

Nikole has a special interest in medico-legal issues and holds post-basic degrees in medical law and business. She has developed quality improvement and safety plans for many practices and facilities to prevent medico-legal issues and teaches several courses on data protection and privacy, legal, medical examinations and documentation, and professional ethics. She has been writing professionally on legal, business, ethics, patient advocacy, research and medico-legal issues in articles, white papers, business plans, and training courses for over thirty-five years.

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