By harmonsonlaw on April 3rd, 2018 in Truck Accidents
Distracted driving is deadly driving. Distracted 18-wheeler truck drivers are hauling upwards of 80,000 pounds of steel and rubber on our roads and interstates and have the potential to cause catastrophic injury and death. The combination of using a mobile phone or texting while driving can have fatal consequences. Hardly a day goes by that I do not see a big rig trucker using his cell phone while on the Interstate. At Harmonson Law Firm, we are committed to combatting the menace of distracted driving by vigorously prosecuting our distracted driving cases as aggressively as possible. The following is a summary of a recent case that Harmonson Law Firm prosecuted against a truck driver who was distracted by his mobile phone that resulted in the death of his occupant co-employee.
What were the facts?
A truck driver of an 18-wheeler, an employee of a major food delivery company, was traveling from South Texas to the Austin, Texas area after delivering a load. The driver’s co-employee, asleep in the sleeper berth of the truck’s cab, was also in the truck. The driver was driving in the right-hand lane of travel on a major roadway going about 75 MPH. Without any vehicle malfunction, without applying his brakes, and without any warning, the driver’s tractor-trailer left the roadway on the right-hand side of the road. The truck crashed head first into a concrete pillar. The driver significantly injured himself and killed his co-employee. The deceased co-employee was survived by a wife and 5 children. Our firm had the fortune of representing one of the deceased sons who resided in the El Paso, Texas area. We sued the negligent driver and his employer, the food company.
The company’s lawyers concocted a story that the driver was suddenly beset by a stroke which caused the wreck. It was our hunch that the driver had not suffered any medical problems and had instead been focused on his mobile phone at the time of the accident. We set out to prove just how the inexplicable accident actually happened.
What laws did we allege the truck driver violated?
The Federal Motor Carrier Safety Administration (FMCSA) sets forth the regulations that govern drivers of commercial vehicles. The Federal Motor Carrier Safety Regulations (FMCSRs) contain severe laws that prohibit and restrict the use of mobile phones and texting while driving. We set out to prove that the driver and his employer company violated these rules of the road. The FMCSRs, the rules of the road that we used to prove their negligence include the ban on texting and the prohibition of using a cellular telephone.
FMSCR §392 states that no driver shall use a hand-held mobile telephone while driving a commercial motor vehicle. The law also states that no motor carrier (the employer and owner of the tractor-trailer) shall allow or require its drivers to use a hand-held mobile telephone while driving a commercial motor vehicle. FMCSR §392.80 also provides that no driver shall engage in texting while driving and no motor carrier shall allow or require its drivers to engage in texting while driving. According to the FMCSRs, the prohibited use of a cellular telephone by a driver includes:
- Using at least one hand to hold a mobile phone to make a call
- Dialing a mobile phone by pressing more than a single button
- Reaching for a mobile phone in a manner that requires a driver to maneuver so that he or she is no longer in a seated driving position, restrained by a seat belt.
With the knowledge of these law, we set out to prove that the driver was using his cellular phone and in fact was not suffering a medical condition at the time of the accident.
How did we prove the truck driver was distracted?
The first discovery we undertook was to prove that the driver did not have a stroke prior to the accident. We were able to retrieve the driver’s medical records through a subpoena and by using an exception in the privacy laws known as HIPAA to retrieve those records. As we suspected, there was no evidence in the driver’s medical records that he had suffered a stroke, a heart attack or any other medical condition prior to the accident. We next turned to discovering information related to the driver’s use of his cellular telephone.
We used a freedom of information request/open records request to obtain the cellular telephone records that the Texas DPS had acquired after the accident. In a major crash investigation, DPS will obtain these records to look for potential safety violations and causative factors. Sure enough, the DPS had those records and provided them to us after a valid request. Another way to retrieve this information is through a civil subpoena from the cellular telephone carrier like AT&T and Verizon. To obtain these records, a truck lawyer should try and get consent from the defendant driver and his attorney. If that fails, there are mechanisms to require the telephone carriers to produce the records. You may have to go to the judge to get an order, but in a major accident with distracted driving involved, it is imperative to get these records.
After obtaining the records, we analyzed the records extensively. We employed a cellular telephone records expert to review the records and give a report on the cellular phone use. Our expert provided a forensic examination of the cell phone records to tell us the exact date and time of the telephone calls and text messages. An expert can also perform a physical examination of the phone and gather information about data usage like apps, social media usage etc.
What proof of distracted driving did you uncover?
Through discovery and with the help of our cellular telephone records expert, we were able to determine that the truck driver had used his mobile phone on numerous occasions in the hours and minutes prior to the crash. The evidence showed 18 outgoing calls, 2 incoming calls and 1 incoming text including an outgoing call minutes before the accident. This was strong evidence that the driver had been using his cellular telephone in violation of the FMCSRs and had been engaged in distracted driving at the time of the collision. To bolster our evidence, we also hired an Ph.D. expert on distracted driving.
Our expert professor, a Ph.D. of cognitive neuroscience and human factors expert, has a specialty in distracted driving. His work and study on distracted driving has been extensively published in peer reviewed journals. His research focuses on distracted driving and the correlation with interaction with electronic devices while driving. His research has shown the following:
- Drivers are 8x more likely to be in a crash than when the driver pays attention
- When a driver takes his eyes off or the road for 2.5 seconds there is a significant impairment of lane maintenance, visual scanning and processing of information necessary to safely operate a vehicle safely.
We also introduced studies conducted by the FMCSA. Research commissioned by the FMCSA shows that the odds of being involved in a crash or other safety-critical event are 6 times greater for commercial motor vehicle drivers using a mobile phone while driving than for those who do not. Dialing truck drivers took their eyes off the forward roadway for an average of 3.8 seconds. At 55 mph (or 80.7 feet per second), this equates to a driver traveling 306 feet, the approximate length of a football field, without looking at the roadway.
We also received the company’s policies and procedures manual in discovery, including the company’s cellular phone usage policy. The policy was deficient in that it did not strictly prohibit the use of a mobile telephone and texting while driving as is required by the FMSCRs. We were able to show that not only was the driver negligent, but his employer was negligent as well. The company should have had strict policies in compliance with the FMCSRs.
What was the result of the case?
While nothing can bring back our client’s dad, we were able to obtain a significant confidential settlement for our client. He will now have money to go to college and start a life for himself when he reaches 18 years of age.
If you or a loved one is injured or killed in a car or truck accident and you suspect that distracted driving was the cause of the crash, please call Clark Harmonson at the Harmonson Law Firm. Harmonson Law Firm is located in El Paso, Texas. We accept cases throughout Texas, New Mexico, Arizona and California. Our number is (915) 584-8777 or contact us here.