• Right on Paper But Wrong in the Body: "Off Duty & On Duty" Discussion from the Eyes of a Litigator
  • October 22, 2015 | Author: Douglas Heise
  • Law Firm: Heyl, Royster, Voelker & Allen Professional Corporation - Edwardsville Office
  • You are off the road and at home for 3 days straight. Your friend Bob has been asking you to help him put that new roof on his garage. Bob knows that you have helped others with various home repair projects and have been paid for your efforts. He has offered to follow suit. After finishing your "honey do" list at home on your first day off, you and Bob tackle the roof on your second and third days off. The roof is on at 5:00 p.m., the mess is cleaned up and you are home at 6:00. Even though the days were hot, you spent your time helping a friend and have a few extra bucks in your pocket for your efforts. You start to settle in for the evening.

    At 7:00 p.m., your dispatcher calls. A driver has called in sick, and he needs you to deliver a time sensitive load. To make the schedule, you have to leave the house by 2:00 a.m. You take the load since you haven't been on duty for 2 days and will get plenty of sleep. Two hours into the trip you are involved in an accident. At the accident scene, your logs are checked - no tickets are written, but someone did have to go the hospital. The next day the company has you come in and talk to the safety people and the company's lawyer. You show them your logs. Everyone agrees they look fine, but the lawyer starts asking questions about what you did on your time off. You tell them about helping a friend put on a roof. The lawyer asks if you were paid, then starts prying into any other job where you got paid for your help. What does this have to do with this guy that pulled out in front of you? Your log book is good, you hadn't been on duty for 3 days. Yet, the lawyer does not look happy.

    The lawyer begins explaining his concerns by reading 49 CFR 392.3 which states, in part:

    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.

    He says that plaintiffs' attorneys are always looking for ways to argue that commercial motor vehicle carriers are putting drivers on the road that are fatigued. They explore the drivers' "on" and "off" duty activities.

    On duty time means all time from the time a driver begins to work or is required to be in readiness to work until the time the driver is relieved from work and all responsibilities for performing work (49 CFR 395.2). In response, you again point out that you had been off the road for 3 days prior to this accident. Not good enough says the lawyer. Section 395.2 (9) says that on duty time shall include performing any compensated work for a person who is not a motor carrier. That would include Bob. In fact, plaintiff's lawyer will argue that home repair was your second job since you had been paid for it in the past, just as Bob did. This second job, says your lawyer, should have been reported to the company. The safety people are now not looking very comfortable.

    He continues. CFR 395.3 dictates that, subject to certain exceptions, no motor carrier shall permit or require any driver to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial vehicle . . . more than 11 cumulative hours following 10 consecutive hours off duty. Looking at his notes, the lawyer explains that you had not been off 10 consecutive hours. Home by 6:00 p.m. and out the door by 2:00 a.m. was only 8 hours. In addition, plaintiff's attorney will ask about the weather while up on the roof, how much water (or other beverages you consumed) while roofing. You will be asked about your normal sleep times. You will be asked what time you normally drive vs. sleeper time. Your logs will be scrutinized to verify driving/sleeper time. You will be asked about your alcohol consumption at home, prior to sleep. You will be asked about other activities that may generate income performed at home or for others. Do you garden and sell the produce? Do you raise and sell cattle? These activities may also be considered compensated work.

    But, you explain, you don't farm or raise cattle. You simply like to help out friends when you have the time. Your lawyer is sympathetic and understands. Unfortunately, plaintiff's counsel will not be. Although his client pulled out in front of you, plaintiff's counsel will argue that you had enough time to react to avoid the accident. Plaintiff will get an expert to testify about reaction time and how fatigue increases the time it takes to react. The expert will be critical of your employer for not having proper training of its drivers regarding what is off duty, and how it failed to monitor its drivers' off duty activities. Plaintiff will be critical of you for knowing that you had been working and not truly off duty, yet you accepted a load knowing that you would be driving fatigued.

    The thought comes to you that maybe Bob isn't such a good friend after all.