Russ Schaefer bought the truck he always wanted in October 2002. His new Freightliner Coronado, off the lot, cost well over $100,000. In June, Schaefer was driving at night on a familiar road when he snagged a power line. “I don’t know where that line came from,” Schaefer says. “It was never there before. It was obviously below the height it is required to be.”
Tim Douglas, a company driver from Georgia, fell asleep on I-75 and hit a pickup truck full of workers. Seven people died. Douglas spent two years in jail. Diagnosed with sleep apnea, Douglas says, “I am still paying for having a disease I didn’t know I had.”
Whether a driver is involved in a crash with only property damage or there are injuries and/or loss of life, he is well advised to know what to do before, during and after the event to legally protect himself. Even if he is entirely blameless, as was Schaefer, every professional involved in an accident can protect himself by understanding exactly what not to do and what he can do or must do at the scene of an accident. In cases like Douglas’, the long arm of the law can reach far back into a driver’s personal health, his medical records and other documents including log books to assign guilt or innocence.
The process of protecting yourself begins with accurate log books and truthful medical records. “Doctor shopping” can backfire if you are involved in an accident that has been caused by a consciously hidden medical condition. While Douglas did not know he had sleep apnea, a condition that can cause daytime sleepiness, he was held accountable for falling asleep. “Log books are the tip of the iceberg,” says Michael Langford, a lawyer specializing in transportation. “Any document, bills of lading, medical forms, can be used in court. A current log status is absolutely necessary.”
Protection begins with limiting your liability. Sleep when you are tired, never drive beyond your limitations and adhere to speed limits and other regulations.
Your truck should have the proper emergency equipment. Your truck must have a securely mounted and working fire extinguisher, extra fuses and warning devices – flares, lanterns or reflectors. Warning devices must be displayed appropriately when an accident has occurred.
At the scene of an accident, follow procedures as they are laid out in the FMCSA regulations. Langford says an enforcement officer has the right to expect you to produce all documents you are required to carry. However, you should make no admissions of guilt. “The best policy is to cooperate with non-incriminating comments,” Langford says. It is wise to say nothing to anyone except the officer at the scene. On the other hand, getting the addresses and phone numbers of witnesses and involved parties is a good idea. Don’t talk to insurance investigators from involved parties or anyone other than law enforcement officers, your lawyer and your company’s lawyer any time after the accident.
The judgments a driver makes at the scene must be based on “a fact by fact assessment” of what is happening, Langford says. It is important to stay calm and do everything possible to keep the situation from getting worse. If, for instance, there are injured people in danger from traffic, they may have to be moved. But Langford cautions that moving anyone can bring liability. The claim can always be made that moving an injured person made their injuries worse.
Jacqueline Smith, an ex-police officer and certified emergency medical technician, says, “It is best to display warning devices or stop traffic if possible rather than move an injured person. Sometimes this is not possible, and you have to move a person rather than allow him to be in harm’s way.” Good Samaritan laws, which regulate what can and should be done to aid the injured, vary from state to state, making compliance difficult. There are circumstances when a driver may have to choose between what he believes to be morally correct and what he knows may bring liability.
An accident with injuries may require a driver to make such decisions rather than not do anything. Langford notes that deciding to sit in the cab of your truck or not render assistance might inflame a jury against a person involved in an accident with injuries.
“Perhaps the best way to think about this situation is to recognize you don’t want to do any harm.” Langford says. Beyond that, a driver must make choices based on the facts of the situation.
What if you come upon an accident? According to Langford, “Bystanders have no legal responsibility to render aid. Only doctors, who have taken the Hippocratic Oath, are required to render aid.” Nevertheless, a driver may feel his moral responsibility goes beyond what the law expects of him. A bystander can at least report crashes via phone. Charles Gonzales, safety coordinator for Barr Nun Transportation, says, “One of my first questions to drivers who call in reporting an accident is, ‘Did you call the police?'”
Gonzales says calling police means you’ve done the right thing and gives the police the responsibility to respond or not respond. Often accidents occurring on private property, like fender benders in a truckstop parking lot, do not require police. In such cases the property manager should be advised so that security officers or other personnel can decide a course of action.
Langford suggests using a camera to document damages in accidents involving property only. “Taking pictures of injured people or bodies can backfire in court,” Langford cautions. “You may be gathering evidence against yourself. Enforcement officers will not generally take pictures unless there is a fatality.”
By their nature accidents do not allow for neat, constant advice on how to handle them. Avoiding personal liability must be tempered with the knowledge that, in some cases, you can be held liable for helping others and in other cases, you can be held liable for not helping. In accidents without injuries, the scenario becomes less cloudy, requiring only basic information taking and the good sense to say nothing. In some cases – for example, Schaefer’s entanglement with a low hanging wire – basic self-protection means making decisions about whether to let the insurance companies fight over responsibility or find a good lawyer.
Schaefer says he had trouble initially finding out whose wire caused the damage. “If I let my insurance company handle it, how can I be sure I will be compensated for the downtime and lost earnings I have incurred while my truck gets fixed?” Schaefer says. “I may have to get a lawyer just to get what I deserve.”
At the other end of the scale, Douglas is back at work, but only after years of looking for a trucking company that would take him on. Having paid dearly for falling asleep at the wheel, he must live the rest of his life with the knowledge of his involvement in a fatal crash.
While none of us can predict what will happen in the next mile, it is also true we can have a certain amount of control over the fallout from unexpected events. For drivers, maintaining paperwork and professional credentials and driving within the limits of the law provide protection before the fact. At the scene one must be guided by judgment, compassion and common sense.