Pre-Trip and Emergency Equipment Inspection: Overview
The regulations require inspection of certain components of intermodal equipment prior to driving the CMV. These requirements are generally referred to as the “pre-trip” inspection, and while the regulations do not limit their requirements to an inspection at the beginning of a “trip”, this term is generally accepted. Given the often-abysmal state of intermodal trailers, this requirement may be significant.
The regulations also require the driver make certain that emergency equipment as required is available, and this requirement may have particular impact when a vehicle is involved in an accident. The regulation was revised substantially at the end of 2009, so that language describing inspection requirements for CMV other than intermodal was deleted.
Equipment, Inspection and Use
1. All motor carriers and their employees responsible for drivers or equipment are required to be instructed in the requirements of the regulation.
2. The requirements for use of intermodal equipment require “inspection” of certain components, and drivers who operate intermodal equipment over the road are “deemed to have confirmed that the… components were in good working order when… accepted”.
3. The parts which must be “inspected” on intermodal equipment include those listed above and in addition:
a. lighting devices, lamps, markers, and conspicuity marking material;
b. wheels, rims, lugs, tires;
c. air line connections, hoses, and couplers;
d. king pin upper coupling device;
e. rails or support frames;
f. tiedown bolsters;
g. locking pins, clevises, clamps, or hooks;
h. sliders or sliding frame deck.
4. The regulations also include a description of the brake inspection, calling for inspection of components “readily visible to a driver performing as thorough as possible a visual inspection without physically getting under the vehicle.” Thus, a driver is not required to get up underneath the vehicle for this purpose.
5. Drivers are also required to make certain the vehicle has emergency equipment “in place and ready for use,” including:
a. fire extinguishers;
b. spare fuses;
c. stopped vehicle warning devices, either triangles (3), fusees (6), or flares (3)
The requirements imposed upon a driver for inspection before driving must be explored in detail in any case where equipment problems caused or contributed to the accident. Note that the requirements are not limited to a “pre-trip” and you should avoid using questions that suggest a safe harbor by completion of inspection at the beginning of the day. Note, too, that the regulations are ambiguous with regard to the specific means and manner of inspection, other than with regard to brakes, where the driver is explicitly discharged of the task of getting under the vehicle.
The requirement of an inspection does not set forth a list of equipment components which must be inspected, and instead simply requires drivers to “be satisfied the equipment is in safe operating condition.”
If you are handling a matter which involves an equipment problem, expect the driver to testify in no uncertain terms that he fully inspected the offending component, and that it was indeed in “good working order” before he got on the road. Counsel therefore needs to be ready, by the point where you are talking with the driver, to challenge this testimony. While the actual challenge may be saved for a later date, counsel needs to know what to ask and where to lead the driver in order to lock him into testimony which can be undermined or proven false later. This almost certainly means having a competent expert complete a thorough inspection of the vehicle, and if necessary, perform tests on the part at issue. If, for example, the expert can show that the brakes displayed such wear that no braking effectiveness could have been present for some time before the wreck, testimony by the driver that he tested the push-rod travel the morning of, and found everything within tolerance, will not be easily believed by the jury.
If dealing with a case where intermodal equipment was used, keep in mind the differences in the inspection required. Intermodal equipment is notorious for sustaining damaging use, whether lashed to a ships deck or hoisted onto a set of railroad trucks. Look for the possibility of an equipment failure carefully when this equipment is at issue, and make certain you seek repair and maintenance records from its owner.
These regulations do not just require a driver to make certain the brakes are working, or that a set of triangles is present. The driver must also use the equipment when the need arises. It could be quite powerful to have a driver testify he did not put out his flares after an accident because he knew they would not light.
Note that the new version of the regulation not only no longer refers to inspection of any CMV, but also provides more detail with regard to the inspection of an intermodal unit than previously. Now, drivers must make certain the intermodal unit has proper conspicuity markings. The breadth of the new requirements should be factored in when conspicuity is an issue for intermodal units.
Finally, do not make the rookie mistake of asking a driver whether he prepared a “pre-trip” report as required by the regulations. No pre-trip report is required. The report which is required is a post-trip report. The driver may admit he did not prepare a “pre-trip” report, but you will have achieved nothing other than demonstrating to defense counsel that you do not know your way around a trucking case.
Pertinent Case Law
The duty to inspect a CMV before operating it on the road is a “strong one,” such that it would “contravene public policy” to allow a motor carrier and its driver to seek indemnity against a brake repair vendor who had inspected and allegedly failed to repair brake problems several weeks before the accident. In Burrows v. Core-Mark Inter. Inc., 54 F.3d 785 (CA9, 1995) (Table- unpublished opinion). the court affirmed a directed verdict in favor of the brake mechanic against whom the motor carrier sought indemnity after the CMV brakes failed and an accident occurred. Quoting the trial court’s opinion, the Ninth Circuit noted:
It would contravene public policy… to allow [motor carrier] to pass on liability and get indemnity… to allow that and send a message to trucking companies… that would undercut the purpose and policy behind requiring daily inspections of these vehicles and specifically the braking systems.
Burrows thus stands as a strong example of the vigor of the policy requiring motor carriers to inspect vehicles before operating on the road.
Note that the regulations do not say when the pre-trip inspection must occur. See Boudreaux v. Swift Transp. Co.,402 F.3d 536 (5th Cir. 2005). Must it be within an hour of getting on the road, or a day? The regulations do not impose a particular time period, leaving open the possibility of some problem occurring in the interim.
The requirement that warning flags, flares or fusees be on board and used when needed is explored in Burlington Northern & Santa Fe RR. v. Bruce Willey Trucking. There, the railroad sought damages caused when one of its trains struck a truck which was disabled on the railroad track, where the driver had failed to place triangles/flares. The trial court refused to charge the jury on the FMCSR requirements that a CMV be equipped with, and the driver use, warning devices when disabled. The court of appeals held such refusal was error and reversed.