Drowsy Driving and the Law Jeffrey A Burns

Drowsy Driving and the Law Jeffrey A. Burns Dollar, Burns & Becker, LC Kansas City, Missouri 1

Fatal Crash 21 -year-old Kansas City, Kan. , man died early Tuesday morning when his car ran off the road and crashed into trees in the 3200 block of Brown Avenue in Kansas City, Kan. Police identified the victim as Kelly Dodd. He was pronounced dead at the scene. A witness told police that she had heard tires squealing and then a crash about 2: 15 a. m. Tuesday. Police found only Dodd in the car. Investigators said there was no indication of foul play. Police said speed was a contributing factor in the crash. 2

Verdict angers victims’ relatives Driver acquitted of manslaughter SPRINGFIELD—A former Southwest Baptist University football player was acquitted Thursday of involuntary manslaughter and assault charges in a wreck that killed three fellow students and permanently injured another. Green County Circuit Judge Henry Westbrooke instead convicted Tyler Wasmer of Independence of misdemeanor driving while intoxicated in the December 2000 incident. Westbrook, perhaps anticipating the dismay of relatives who made lengthy drives to Springfield for reach court appearance, spent nearly 30 minutes outlining the evidence in the case before announcing his verdict. He said it was clear that Wasmer had been legally drunk but said he thought the accident had occurred because Wasmer and his passengers had fallen asleep. 3

Faces up to 24 years in prison Spencer had driven at least nine hours more than allowed under federal rules before falling asleep behind the wheel, causing the crash… 4

… accepted a 25 -year prison sentence in exchange for his guilty plea. “… destroyed our family that day… he is sentenced to incarceration today, but on that day we were sentenced to a life of agony. ” 5

He appeared to have fallen asleep, and the Jeep picked up speed and veered to the right in the parking lot… Hand sentenced … to 25 years in prison for vehicular homicide, five years less than the maximum allowed by law; 10 years in prison for hit-and-run, the maximum … 6

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Man charged with cop’s death in crash: I fell asleep Ciardi Franklin of Perth Amboy testifies at his trial for smashing his sport-utility vehicle into patrol car and killing Officer Matthew Dziergowski The Perth Amboy man on trial for crashing into a patrol car and killing an Oakwood police officer testified yesterday that he fell asleep behind the wheel. “I must have fallen asleep, ” said Ciardi Franklin, while on the stand yesterday in state Supreme Court, St. George. 8

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565. 024 Involuntary Manslaughter, Penalty • 1. A person commits the crime of involuntary manslaughter if he: – (1) Recklessly causes the death of another person; or – (2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person. • 2. Involuntary manslaughter is a class C felony. 11

565. 024 Involuntary Manslaughter, Penalty Amendment • 3. A person commits the crime of involuntary manslaughter in the second degree if he acts with criminal negligence to cause the death of any person. • 4. Involuntary manslaughter in the second degree is a class D felony. 12

New Jersey 1. N. J. S. 2 C: 11 -5 is amended to read as follows: 2 C: 11 -5. Death by auto or vessel. a. Criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle or vessel recklessly. For the purposes of this section, driving a vehicle or vessel while knowingly fatigued shall constitute recklessness. “Fatigued” as used in this section means having been without sleep for a period in excess of 24 consecutive hours. 13

…man was killed by a…motorist who may have become lost while attempting to drive home drowsy… … was charged with vehicular homicide… under Maggie’s Law that makes it a criminal act to drive while 14 sleep-deprived…

New York • Section 1. The vehicle and traffic law is amended by adding a new section 1212 -a to read as follows: • S 1212 -A. Driving while ability impaired by fatigue; aggravated driving while ability impaired by fatigue. (1) Driving while ability impaired by fatigue. A person commits the offense of driving while ability impaired by fatigue when he or she drives, operates or uses any motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof while his or her ability or alertness is so impaired, or so likely to become impaired, through fatigue as to make it unsafe for him or her to begin or continue to operate said motor vehicle, motorcycle or any other vehicle propelled by any power other than muscular power or any appliance or accessory thereof. Driving while ability impaired by fatigue is prohibited. 15

49 C. F. R. 392. 3 Ill or Fatigued Operator No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. 16

• Lawyers have always been preoccupied with today’s details, and have worked with their eyes down. The historian, if he is lucky, can see why a rule came into existence, what social or economic change left it working injustice, how it came to be evaded, how the evasion produced a new rule, and sometimes how that new rule in its turn came to be overtaken by change. But he misunderstands it all if he endows the lawyers who took part with vision on any comparable scale, or attributes to them any intention beyond the winning of today’s case. Historical Foundations of the Common Law —S. F. C. Milsom 17

Vicarious Liability Darling v. J. B. Expedited Services 2006 WL 2238913 (U. S. D. C. M. D. Tenn) * U. S. v. Sandhu 462 F. Supp. 2 d 663 (E. D. PA, 2006) * 892 P. 2 d 703 (Cite as: 133 Or. App. 514892 P. 2 d 703) Court of Appeals of Oregon Frederic M. Faverty, Respondent v. Mc. Donald’s Restaurants of Oregon, Inc. , An Oregon Corporation, Appellant 9001 -00394; CA A 70327 18

Workers Compensation 793 S. W. 2 d 348 Supreme Court of Missouri, En Banc. Deborah Snowbarger, et al. , Respondents, v. Tri-County Electric Cooperative, et al. , Appellants No. 72465 July 31, 1990 Rehearing Denied Sept. 11, 1990 19

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Transportation Attorney Warns Trucking Executives About Legal Risks Byline: Dean Smallwood e. Trucker. com Thursday June 7, 2007 “There’s not a lot of good things going on in our legal system, ” transportation attorney Clay Porter told attendees of the CCJ’s Spring Symposium in Tuscaloosa, Ala. , on Wednesday, June 6. “Trucking companies should stop hauling freight and spend more time on fighting lawsuits – you’d be a lot 21 more profitable. ”

Various Trends/Methods Used to Raise Punitive Damages Log Speeding Bad logs can result in incorrect times, where strict mathematical calculations of miles traveled during a particular period might result in an incorrect conclusion of overly excessive speed. Also, terms such as “high-value extremely time sensitive load” could lead a jury to think speeding was validated by the company. 22

Various Trends/Methods Used to Raise Punitive Damages Carriers “permit” violations of the hours-ofservice regulations if they fail to have management systems in place that effectively prevent such violations. There is an actual accounting cost to some of these safety issues, ” Porter said. “The alternative is to start moving away from these problems. ” Also plaintiffs’ lawyers more often are going after the “good” companies – those with more money and insurance. 23

Various Trends/Methods Used to Raise Punitive Damages Shipper Liability Porter says he’s “glad to see it. ” 24

Various Trends/Methods Used to Raise Punitive Damages Company Officer Liability Motor carrier officers – from top brass to driver managers – may not engage in a pattern of avoiding compliance with regulations on commercial motor vehicle safety, and they may not conceal such violations. 25

Suggestions • • Deliver Fatigue Message to General Public Pass Fatigue Specific Legislation Find Funding to Assist Victims’ Groups Improve Record Keeping Eliminate 24 Hour Shifts Oppose Dangerous Cultural Messages Develop Investigative Protocol to Identify Fatigue as Cause of Crash • Establish that Sleeping Drivers Know they are Sleepy • Holy Grail: - a. Means to measure fatigue - b. Means to identify when tired becomes drowsy. 26

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle. 27