1. WILL YOUR SAFETY PROGRAM HOLD UP IN COURT? “Everyone wants to sue a trucking company” Judges AND Juries are afraid of large trucks Trucking Companies make “easy targets” We live in a “victim society” where people blame everyone but themselves for their troubles. Lawyers will try to pick apart your safety program to prove you did not do what you should or that you did what you should not have done.

2. “ Punitive damages claims in trucking liability cases usually start with an allegation that the truck driver acted intentionally, wantonly or with gross negligence when he caused the accident.” Plaintiffs often allege that the trucking company intentionally, wantonly, recklessly or fraudulently endangered the public by placing that driver on the road. “Punitive damages can also arise from claims that a trucking company or driver fraudulently altered or concealed evidence, or that an insurance company did not negotiate a claim in good faith. Such a claim allows the plaintiff’s attorney to delve into the past history of both the company and its driver and the company’s hiring, training and disciplinary system during discovery. In most cases, a punitive damages CLAIM grossly inflates the cost of defending a lawsuit” (emphasis mine). Stockard R. Hickey III Frost Brown Todd Louisville, KY rhickey@fbtlaw.com GOTCHA!!! I WANT TO SUE A TRUCKING COMPANY IF IT IS NOT IN WRITING, IF IT IS NOT DATED, IF IT IS NOT SIGNED, OR IF YOU CANNOT FIND IT, IT DIDN’T HAPPEN

3. Punitive Damages come into effect when a judge or jury wants to send a message to the defendant. It is usually because the company did something it shouldn’t have (hired a drunk) or didn’t do something it should have (ongoing safety training). Actual (normal) damages occur are when a defendant is found at fault and pays all losses suffered by the plaintiff. This includes medical bills, damages to property, lost wages, etc. The trucking company was found at fault. The punitive damage award was $64,000,000. That is right – Sixty four million dollars! In part because they couldn’t prove they had adequately trailed their driver about seep patterns. The driver of the truck did not want the load to be late. The driver of the truck only had 5 hours of sleep in 24 hours. The driver of the truck started driving anyway. The driver of the truck was functionally asleep and did not see the stopped cars. The driver of the truck hit the stopped cars at 65 mph. The driver of this car and nine others died.. WHEN A JUDGE SAYS: “PROVE YOU ADEQUATELY TRAINED HIM!

4. If it is not in writing – If it is not signed – If it is not dated If you can’t find it - IT DID NOT HAPPEN WHEN – NOT IF – WHEN YOU GO TO COURT IT IS VITAL THAT YOU ARE PREPARED

5. WHEN IN COURT, YOU MUST BE ABLE TO PROVE 5 THINGS 1.PROPER HIRING - ADEQUATE HIRING POLICIES AND STANDARDS THE SAME FOR EACH HIRE – NO EXCEPTIONS (negligent entrustment). 2.POSITIVE RETENTION - DISCIPLINE MUST BE THE SAME FOR ALL DRIVERS DO NOT KEEP A DRIVER WHO SHOLD BE TERMINATED (negligent retention). 3.DRIVER COMPLIANCE - IF YOUR DRIVER SHOULD NOT BE THERE, YOU COULD HAVE TO PAY PUNITIVE DAMAGES (driver negligence). 4.FUNCTIONALLY AWAKE - YOU MUST PROVE YOU TRAINED YOUR DRIVERS IN PROPER REST PATTERNS (functionally asleep). 5.PROPER SURVAILANCE - YOU MUST PROVE YOUR DRIVER WAS ADEQUATELY TRAINED TO MAINTAIN SURVEILLANCE WHILE DRIVING (last clear chance). REMEMBER: IF IT IS NOT IN WRITING – IF IT IS NOT SIGNED – IF IT IS NOT DATED IF YOU CANNOT FIND IT - IT DID NOT HAPPEN

6. Remember, if he looks like Rasputin the Mad Monk he will probably testify like Rasputin the Mad Monk! Your company must have a written policy delineating the criteria for hiring a driver, AND you must follow it without exception. Always take a prospective driver for a road test. The route must be written and the same for each driver. Watch his or her attitude! Do not hire someone when you feel desperate for drivers. The driver application must conform to FMCSR 391.21. Have you EVER failed a drug test? Not hired – doesn’t show. WHY DID I HIRE THAT GUY? IS #1 (NEGLIGENT ENTRUSTMENT)

7. A truck driver changed lanes to the right and the car driver changed lanes to the left at the same time. This was the result In the deposition, attorney asked the truck driver “have you ever failed a drug test?” The truck driver said “yes.” He had applied for a job and FAILED the drug Test. The company did not hire him so the drug test failure would not show up on a previous employer check.. The car driver won $960,000 because the trucking company was guilty of “negligent entrustment” when it failed to ask if he had ever failed a drug test. 90 days later he applied at another company. This time he passed, and the company hired him. WHY DID I HIRE THAT GUY? (NEGLIGENT ENTRUSTMENT)

8. HE’S A GREAT GUY, BUT HE WON’T FOLLOW POLLICY IS #2 (NEGLIGENT RETENTION) Your company must have written policies covering the discipline and termination of drivers, AND you must follow them without exception. You must keep a receipt from the driver(s) for them. If it is not written, if it is not dated, if it is not signed, IT DID NOT HAPPEN! If a driver violates a company policy, he must be disciplined, and you must keep a signed and dated record of what, when, how. NEVER discharge someone when you are angry. If you fire someone for breaking a company policy and do not discharge another driver who does the same thing, you face punitive damages if the second driver has an accident.

9. DRIVER COMPLIANCE IS #3 (DRIVER NEGLIGENCE) If your driver is not supposed to be there, and if the accident would not have happened if your driver was not there, you can be liable for punitive damages. If your driver is illegal – out of hours, etc. he is not supposed to be there. You must keep records showing your driver was properly trained to recognize dangerous road conditions and find a safe place to pull off the road. If your truck has bald tires, faulty brakes, burned out lights, it is not supposed to be there. You must keep records showing your driver was REALLY trained to conduct a proper pre- trip inspection. You must keep records of post trip inspections for 90 days. You must keep records showing your drivers AND dispatchers were properly trained in hours of service.

10. On January 18, 2006, a U.S. District Court judge ordered the former president of a Rustburg, VA trucking company to pay a $10,000 fine and serve 30 days in jail for his role in falsifying driver logbooks to conceal violations of Federal Motor Carrier Safety Administration (FMCSA) hours-of-service regulations. Because he knew or should have known about it. A company dispatcher was fined $3,400 and placed on three months home confinement. The drivers were also sentenced. DRIVER COMPLIANCE IS #3

11. FUNCTIONALLY AWAKE IS #4 If it can be proven in court that your driver didn’t have enough sleep, or that you did not train him about driver fatigue, circadian sleep cycles, and proper rest, your company can be held liable for punitive damages. Cell phone records will be checked against sleeper berth times or the hours before the driver came on duty. Debit or credit card records will be checked against driver logs to check for falsification. You must be able to prove in court that you trained your drivers to pull over in a safe place and rest when they show signs of driver fatigue. With his eyes wide open, he slammed into a line of stopped traffic.

12. PROPER SURVEILENCE IS #5 (LAST CLEAR CHANCE) If it can be proven in court that your driver had or SHOULD HAVE HAD the last clear chance to avoid the accident and did not, your company can be held liable for punitive damages. Settled for $1,000,000. The brakes locked up and the 1 st driver tried to get off the road onto the shoulder. Later a 2 nd truck driver hit the corner of the trailer and the 1 st driver was killed. Since the brakes were frozen on the 1 st truck, the 2 nd driver had the last clear chance to avoid the accident and did not. Therefore his company was liable for damages. YOU MUST BE ABLE TO PROVE YOU ADEQUATELY TRAINED YOUR DRIVER

13. We are not saying it is right, fair, or even moral, but it is a precedent. READ IT FOR YOURSELF! The rule of last clear chance operates when the plaintiff negligently enters into an area of danger from which the person cannot extricate himself or herself.plaintiff The defendant has the final opportunity to prevent the harm that the plaintiff otherwise will suffer.defendant The inattentive defendant is one who fails to fulfill the duty to maintain a surveillance in order to see the plaintiff in time to avoid the harm, perceive the person's helpless or inattentive condition, and thereby exercise reasonable care to act in time to avoid the harm. IT IS A TRUCK DRIVER’S RESPONSIBILITY TO MAINTAIN ADEQUATE SURVEILLANCE AT ALL TIMES

14. We are not saying it is right, fair, or even moral, but it is a precedent. READ IT FOR YOURSELF! Due to the defendant's negligence, however, he or she fails to see the plaintiff in time, and injury occurs. The defendant's negligence must occur subsequent to that point in time when the person discovered or should have discovered the plaintiff's peril. In the law of torts, the doctrine excuses or negates the effect of the plaintiff's contributory negligence and permits him or her … to recover damages regardless of his or her own lack of ordinary care.negligencedamages Thompson & Gale Legal Encyclopedia (emphasis mine ) YOU MUST TRAIN YOUR DRIVERS IN PROPER SURVEILLANCE

15. Safety Training Essentials 1.Carefully plan a relevant curriculum and be absolutely certain that you teach the drivers everything you have planned in the curriculum. a. You must keep a copy of the curriculum that includes the date and place it was used and you must sign it. b. You must have a sign in sheet that includes a heading listing the subjects taught and place for each driver to print and sign their name and date it. c.Clip the sign in sheet to the curriculum. 2. Use real life examples and current trends to make the material relevant to drivers. If it is not in writing, if it is not signed, if it is not dated, or if you cannot find it – as far as a court is concerned, it did not happen.

16. Safety Training Essentials 4. Administer a quiz so you can document that the drivers learned the material and can use it. 5. The drivers must answer 100% correctly, and you must retain copies both signed and dated. 6. Give your drivers a well planned handout that reinforces the training. 7. Keep a copy you have signed and dated on file. 8. Remember, if it is not in writing – if it is not signed – if it is not dated – it didn’t happen. AND, it must be legible to be used in court.

17. You must have a written policy for both Remedial and Disciplinary training. You must retain a copy of the policy as well as a receipt signed and dated by each driver proving they received a copy. Usually a driver handbook is used. You must institute reasonable training commensurate with the infraction. Do not teach proper following distance as remedial training for a speeding ticket. Remedial Training and Disciplinary Essentials If you cannot produce a signed, dated copy or the training or discipline, it did not happen.

18. Remedial Training and Disciplinary Essentials You must be consistent and use the same training or discipline for each driver – no exceptions. You must retain legible (name printed), signed, dated copies of all training and disciplinary actions taken. All driver discipline must be in writing and it must be signed by the driver. If you don’t have well documented provable discipline and remedial training for any driver who has been convicted of a traffic violation, had a preventable crash, or has violated company policy: YOU could cost your company millions of dollars!

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