Summary
A professional truck driver “T” bones a passenger vehicle. The collision occurred in the morning on a rural two lane highway. The car driver misjudged the gap at a 2-Way STOP and drove out in front of the approaching dump truck.
Post-crash investigation discovered that one of the air brakes was out of adjustment. Further, a rear-brake chamber was corroded. Both these defects and others deemed the vehicle out-of-service.
Lawyers for the plaintiff predicted that defense would use the “intoxicated” driver defense. For example, a drunk driver operates and vehicle at the posted speed limit and proceeds through an intersection on a green light. In the intersection, the inebriated driver was “T” boned by another that ran the STOP sign. Intoxication of the driver is not a factor in determining libability in our hypothetical case.
In the crash involving the truck driver, the out-of-service vehicle is in fact a determination in the case. First, truck drivers are trained, monitored, and policed to ensure compliance so that commercial vehicles are safe to be operated on public roads. Second. had the braking system been properly maintained, braking distance of the vehicle would have been reduced, and the crash less severe. Consequently, the young woman may not have sustained life-threatening injuries.
Click to see duty of care for bus drivers.
Rick August, PhD
Working as as Expert Witness, Dr. August provides testimony in crash analysis, traffic safety, road user behavior, and driver education. His expertise is in commercial vehicles (trucks & buses), duty of care, and air brakes.
Duty of Care for Truck Drivers
Driving An “Out-of-Service” Vehicle (Late September 6:20am)[1]
Overview of Crash
On a rural 2-lane Ontario highway, a truck driver drove a loaded dump truck in the early-hours of the morning.
In keeping with the time of day, traffic was minimal.
The elevation of the road increased.
The 1994 Ford Louisville’s diesel engine struggled to maintain 70kph (40mph).
At the 2-Way STOP signed intersection, a young woman drove a 2009 Toyota Yaris.
Misjudging the gap, she made a left turn in front of the loaded dump truck.
Its steering hamstrung by the mid-section lift axle, the dump truck “T” boned the small car.
The young woman survived.
Post-Crash investigation
During the post-crash investigation, it was discovered that the truck’s front-left air brake was out-of-adjustment.
OPP (Ontario Provincial Police officers also discovered that the rear-right service brake chamber was corroded and leaking.
The steering mechanism was loose.
Less than 3-months earlier, the truck had been into the shop for its annual inspection.
The corroded service brake chamber should have been diagnosed and replaced at that time.[2]
In addition, the driver told police that he had adjusted the rear brakes the previous evening.
No evidence materialized that indicated the driver held certification to adjust automatic slack adjusters on an air brake equipped vehicle.
Moreover, if automatic slack adjusters are beyond their push rod travel limit and have to be manually adjusted.
This defect suggests that there’s something else wrong with the brake system (brake drums or shoes, “S” cams or its bushings, etc.).[3]
Analysis
Anti-Drink Driving Defense & Public Education
During a conversation with the lawyer representing the young woman, he indicated that the defense’s case would focus on the “drunk driver precedent.” He outlined the proposed defense he expected.
A driver operates a motor-vehicle while intoxicated.
The driver maintains the posted speed limit.
Proceeding through an intersection, another driver runs a red light.
Consequently, there’s a crash.
Proceedings against the drunk driver owing to her intoxication would not be a viable argument in court.
The reason being, that the intoxication did not affect the severity of the collision in any way.
The other driver would be held entirely responsible owing to the fact that he ran a red light.
He argued that the case with the truck driver operating the “out-of-service” dump truck would be viewed through the same legal lens.
I countered that the drunk-driver precedent did not apply to this “professional truck driver,” or any other professional driver for that matter.
The move to educate drivers to NOT drink and drive originated in the early-1970s.
Changes in the law, public outreach programs, grass-roots movements, and deterrence policing worked to educate the driving public about the dangers of driving while intoxicated by alcohol.
In addition, a small section of the driver’s handbook became dedicated to the anti-drink driving campaign, fatigue, and the ill-effects of other prescription and over-the-counter medications.
In Canada, the United States, Australia and other countries in the world, the efficacy of these anti-drink driving programs has reached saturation.
In other words, drinking and driving has not been eliminated.
Even with the harsh Canadian penalties.
Here, drink-driving is charged under the Criminal Code, not the Highway Traffic Act as it is in other countries.
And now, with the legalization of marijuana, even more drivers are operating motor-vehicles while intoxicated.
Truck Driving School Training
Truck drivers operating an out-of-service vehicle on public roadways is NOT like anti-drink-driving campaigns.
In the last quarter century, owing to the technicality and complexity of earning a truck driver’s license, most applicants attend truck driving school.
For a dump truck driver, there are three major components to the course:
- Shifting
- Turning
- Pre-Trip Inspection.
For vehicles fitted with air brakes, this is a fourth major component of the course to earn a commercial driver’s license (CDL).
When hired by a company, drivers receive more training that includes both air brake and pre-trip inspection information. This training is in addition to other knowledge and skills they must possess to operate a commercial vehicle safely.
Truck Driver Air Brake Courses
Truck driving students must take an air brake course, which is usually held over a weekend and is 16 hours in duration.
The pre-trip inspection for the air brake system on the vehicle focuses on just the vehicle’s braking system.
Students are taught the names of its major components, whether these are working, and to determine if the vehicle is out-of-service.
If the vehicle is out-of-service, it CANNOT be driven on public roadways.
Drivers are required to pass a test, both at the truck driving school and at the licensing authority to demonstrate competency that they can determine if the air brake system is working, not damaged, and is safe to be operated on public roads.
Truck Driver Pre-Trip Inspection Training
For a dump-truck license, students must complete a daily pre-trip inspection in an allotted time of thirty minutes.
The complete pre-trip inspection includes the air brake inspection as one of its components.
In addition, the truck driver must inspect the vehicle’s other major components and determine if these are both working and safe to be operated on public roads.
Students are also taught the difference between major and minor defects.
A leaking service brake chamber, for example, is a major defect and will put the vehicle out-of-service.
A clearance light not working would be a minor defect.
All discovered defects are noted on the daily pre-trip inspection form.
The pre-trip inspection form is a legal requirement of driving a commercial vehicle.
In addition to filling out the daily pre-trip inspection form, the driver must hand these into the company every fourteen days.
The company must keep these on file for a minimum of six months.
Industry Training for New Hires
Companies too are required to provide training for their drivers.
New employees receive training specific to the equipment they’re operating.
For example, if an international flat deck company brings on new drivers, they will be required to train them in weight compliance, load security, defensive driving, and cross-border procedures to name but a few of the possible courses.
Many truck driving companies outsource their training to organizations such as Carrier’s Edge.
If drivers are recent graduates from a truck driving school with little driving experience they may even be entered into a mentorship program, where they spend time with an experienced driver.
Compliance and Risk Mitigation
Larger companies will have Safety Departments that are responsible for training and compliance.
If drivers aren’t filling out logbooks, pre-trip inspection reports, and other paperwork correctly, they will receive individual training to comply with state and federal laws.
Further, incidence and crashes with equipment will bring remedial training to reduce and mitigate these costs – both insurance, financial costs, and liability.
In keeping with compliance and mitigating risks associated with driving, most large commercial trucking companies will hold annual or biannual safety meetings.
Policing Commercial Traffic
In addition to legal requirements and training to complete a daily pre-trip inspection, professional drivers of trucks and buses have their own police force.
Often referred to as the DOT (Department of Transportation), these authorities can be found in the weigh stations along major highways.[4]
If the weigh station is open, commercial vehicles MUST enter.
First, the DOT weigh the vehicle and do a visual inspection as it passes the office.
At some scales, officers will get the truck to stop just past the scale to determine if the brake lights are working.
If a defect is seen during the drive-by, officers will signal the driver to pull into the parking area.
There, authorities may do a complete inspection.
At random, drivers are signalled to park their truck and bring all relevant paperwork into the office.
This paperwork can include:
- Valid driver’s license
- Vehicle(s) registration and insurance
- Annual Safety Inspection of the truck and towed units
- Pre-trip inspection forms
- Logbook, and supporting documentation if required
- Bills of Lading
- Oversize permits (if any)
- Dangerous Goods documentation (if the vehicle is placarded)
If the paperwork is in order, the driver is often released; if the paperwork contains errors or there are omissions, DOT officers may conduct a full inspection of the vehicle and/or issue fines.[5]
In these events that major defects are found, the vehicle is placed out-of-service.
Overweight, incorrect permits and paperwork, and vehicles with defects will incur fines.
These are issued to the driver for operating an unsafe vehicle on public roadway.
Truck Driver Training is Ongoing, Monitored, & Policed
The training for commercial drivers to NOT operate unsafe vehicles on public roads goes far beyond that of public outreach campaigns and grass roots movements.
To earn their license drivers must demonstrate competency in preforming pre-trip inspection of the vehicle.
If they can’t execute a competent pre-trip inspection, they won’t pass their CDL test.
When hired by a company, drivers receive more training that includes both air brake and pre-trip inspection information.
This training is in addition to other knowledge and skills they must possess to operate a commercial vehicle safely.
Truck Drivers Fill Out & Submit Legal Documents
Every day, truck drivers are required to fill out an itemized pre-trip inspection form.
And depending on the driver’s route and location, they will go through an inspection station no less than once a week.
Owing to this policing and the possibility of a fine, drivers are constantly reminded that they CANNOT operate an unsafe vehicle on public roads.
As well, truck drivers tend to be transient and change companies a lot.
All violations are recorded on their driver’s abstract and CVOR (Commercial Vehicle Operator Record) which are required as part of their application to a new company.
Comparison of “Pre-Trip Inspection” and Anti-Drink Driving Education
Education against drink-driving and education to conduct a daily pre-trip inspection on a commercial vehicle are not the same calibre.
Anti-drink-driving education is general and sporadic; whereas education for truck drivers to conduct a daily pre-trip inspection is specific.
In addition, the driver training for truck drivers is ongoing in the form of daily paperwork requirements and policing of this aspect of our commercial trucking industry.
Although the drunk driver in our hypothetical case didn’t do anything technically wrong, the intoxication is not a factor in the severity of the crash.
In our collision involving a CDL driver, the defects of the out-of service vehicle did affect the severity of the crash.
Had the braking system been functioning properly, the driver would have applied the brakes with maximum efficiency and subsequently reduced the severity of the “T” bone crash with the passenber vehicle.
The training to comply with anti-drink-driving laws negates the “intoxicated driver defensive” for a CDL driver operating an out-of-service vehicle on public roads.
A truck driver operating an out-of-service vehicle on public roads is a gross violation of a professional’s responsibility and duty-of-care.
Truck drivers have both initial and ongoing training to carry out their responsibilities.
Moreover, these drivers are monitored by their company, and policed by government authorities to be in compliance with regulations to ensure public safety.
Disregard for public safety and operating an “out-of-service,” loaded commercial vehicle on public roads factors significantly into the determination of right and wrong in this case.
Sources
[1] An out-of-service vehicle is one found to have a major mechanical defect that makes it unsafe to be operated on public roadways. A leaking service brake chamber, for example, would be a major defect. And this defect would have to be repaired before the vehicle could be legally operated on public roads.
[2] According to a commissioned metallurgical report, the corroded brake chamber would have taken eight years to achieve its deteriorated state.
[3] In an air brake system, or any braking system for that matter, the brake shoes are pressed against the drums and create friction. During this application, the brake shoes wear. As the brake shoes wear, the slack adjusters adjust and compensate for the wear of the brake shoes. Simply speaking, if the brake shoes are completely worn and require replacement, not amount of adjusting will neither make the system effective nor safe.
[4] In the province of Ontario, for example, the Ministry of Transportation (MTO) polices commercial drivers; in British Columbia, it’s the Commercial Vehicle and Safety Enforcement (CVSE). In truck driver vernacular, they’re simply referred to as “Diesel Bears.” In a more vulgar setting, truck drivers refer to the DOT as “Mermaids.” They’re the cunts with the scales. This vulgarity cements in the minds of CDL driver both the importance and legal requirement to do a daily pre-trip inspection on their vehicle to both ensure its safety, and for the driver to not to receive fines.
[5] Some paperwork errors or omissions will incur a fine. A logbook violation, for example, will often be met by a fine.