The Trial Lawyer Winter 2018 - Page 93

week. (B)(2) According to §395.2, on-duty time for any passenger-carrying CMV is defined as all time from the time a driver begins work or is required to be in readiness for work until the time the driver is relieved from work and all responsibilities for performing work. Performing other compensated work for a person who is not a motor carrier is also considered on-duty time. C. Pursuant to 49 CFR §392.80, Texting while operating a Commercial Motor Vehicle (CMV) has been formally banned due to the fact that CMV drivers who ‘text’ while driving are over 23 times more likely to be involved in a crash. Texting while driving is still a substantial problem. The penalties for violating the rule can be up to $2,750 for drivers and up to $11,000 for employers who allow or require drivers to use a mobile device for texting while driving. However, according to “Unguided Weapons of Mass Destruction: Commercial Motor Vehicles and Cellphone/Texting” in The Lawyer’s Logbook, “under the FMCSA, CMV operators can still use a hands-free device, use voice-activated dialing, or can initiate, answer, or terminate a call by touching a single button. In the event of a collision, in order to argue compliance, the driver must have been in the seated driving position and properly restrained by a seat belt.” State regulations may differ on the use of cellphones, tablets, and other electronic communication devices. D. Many deaths and injuries from bus accidents could be avoided or at least reduced if the safety features of the buses were improved. While some recommendations from the National Transportation Safety Board (NTSB) involve better driver qualification and oversight, many recommend improvements to bus safety features, such as forward collision warning systems and automatic braking, strengthened roofs, improved seat anchorages, revised window glazing requirements, developing performance standards for luggage racks, and improved fire protection. What are the Critical Procedures on Handling Bus Accident Cases right now? Whenever there is a bus accident, according to the article “A Comprehensive Plan for School Bus Accidents” on, a bus drivers’ first call is inevitably to report something like; “We’ve just had a bus accident, but everyone is OK” (Fahey, J., 2011). However, in most cases, everyone is not OK and some passengers are actually injured. Future plaintiffs need to be aware that the bus driver has been trained, and expectations are geared toward keeping the passengers (especially children) safe, therefore, if they are injured, this needs to be abundantly clear at the scene of the bus accident. Future plaintiffs also need to be aware that due to the bus driver initially saying “everyone is OK,” the future plaintiffs are vulnerable to most of the critical evidence at the scene disappearing. Even with all of the chaos of the accident, the future plaintiffs need to call 911, take photos, have an accurate report made by the law enforcement officer, and collect as much information as possible. Additional good practice by the plaintiff ’s attorney includes: 1. Get your crash team involved immediately (an investigator, videographer, photographer, and accident reconstructionist) 2. Get the names and contact information of everyone at the accident scene (including other passengers); 3. Ask witness and other passengers for any photographs or video taken (usually by cellphone) when taking detailed statement by your investigator; 4. Collect any news articles or television coverage regarding the accident; 5. Check social media posts by the driver, witnesses, and other passengers; 6. Make sure to have the police report and review it for accuracy; 7. Send spoliation letters to preserve evidence to all parties immediately (bus company, bus driver, government/ municipality, third party, and so on); 8. Send cellphone specific spoliation letters for the drivers’ cellphones, tablets, and other electronic communication devices; 9. If the plaintiff was not taken to the hospital after the accident, it is critical that they see a doctor as soon as possible, preferably the same day; 10. In many jurisdictions, there is a substantially limited amount of time to file a claim against the government/ municipality; therefore you need to make sure that it is filed as soon as possible in order for the opportunity of review, processing, and determination of whether they are going to deny the claim; 11. Get all pertinent Electronic Onboard Recording Devices (EOBRD), also referred to as “Black Box” or “Electronic Logging Device” or “Event Data Recorder” and computer downloads from all vehicles immediately; 12. Have your accident reconstructionist, along with your other crash team members, go to the scene and examine all vehicles involved; 13. Buy and store as many vehicles you can. The Trial Lawyer x 91