First and foremost, it must be noted that the regulations for the safe operation of a CMV is not simply a “fatigue” regulation. It is far broader, specifically addressing both a driver’s “ability” and “alertness.” Accordingly, it encompasses not only fatigue but also illness and “any other cause” that makes it unsafe to begin or continue driving. The duty expressed by the regulation also extends to the motor carrier, who must not “require or permit” a driver so impaired to operate its CMs. This is important because the “we had no idea” defense is a common one raised by defendant motor carriers. In some cases this defense may very well be valid, but it is important for counsel to probe for policies and procedures that the motor carrier had in place to detect problems and instruct drivers in how to deal with them. The acts and omissions of the motor carrier should be a focus because the regulations require it to instruct its employees as to the rules for safely operating a CMV. If the motor carrier never instructed its drivers that they must not drive while sick, the regulation may have been violated even if the driver did not report his illness.
This regulation is obviously critical when a driver falls asleep or, because of illness or injury, cannot safely operate a CMV. There are numerous real world examples that illustrate its importance:
- the obese driver that failed to put out emergency triangles after pulling over because of a blown tire who admits in his deposition that he has trouble getting in and out of his tractor cab due to his size;
- the diabetic driver who does not stop to eat because he has a “hot” load, and subsequently passes out due to low blood sugar;
- the driver that works two jobs and drives while he is still exhausted from working the graveyard shift.
Counsel is advised to look for “the violation behind the violation.” In other words, there is often a reason why a driver ran a light or made an improper lane change, and that reason might, in and of itself, constitute a violation. If that reason involves fatigue, illness, or “other causes”. There may be a regulatory breach that supports a claim of negligence per se.
Counsel is also advised to rule out the application of the “grave emergency” exception. A driver who has gone over his hours because of an unpredictable weather event may invoke this exception. To avoid a surprise at trial, any deposition in a case where the fatigue/illness regulation is at issue should include questioning designed to eliminate the possibility of an alleged “grave emergency.”
Finally, it is also important to determine whether a driver was put on the road while fatigued or ill as a result of rigid corporate policies. As will be seen, there are numerous reported cases that involve claims by drivers who were discharged when they refused to drive while tired. The driver’s handbook and the corporate policies regarding dispatch may provide useful information on the subject of fatigue. Testimony from a dispatcher or other managerial employee to discover how the policy is implemented might also need to be obtained. During his deposition, ask the driver whether he was forced to drive when he did not feel like it. The driver may voice a complaint laying blame on the motor carrier. He may even have letters from the motor carrier admonishing him for refusing dispatch, which, for one reason or another, did not appear in the DQ or personnel file that was produced in discovery.