Safety Technology in the Transportation Industry

1. Safety Technology in the Transportation Industry ATA Forum for Motor Carrier General Counsel 2014

2. Safety Technology in the Transportation IndustryPanelists Michael P. Sharp Partner at Fee, Smith, Sharp & Vitullo, LLP Mick R. Dragash Executive Vice-President, General Counsel & CCO at Gordon Trucking, Inc. Meredith O. Priestley Corporate Counsel at Cargo Transporters, Inc. Hal D. Meltzer Member at Baker, Sterchi, Cowden & Rice, LLC ATA Forum for Motor Carrier General Counsel 2014

3. Motivation behind Safety Technologies • Reported Large Truck Crashes in 2011 • Fatal – 3,341 • Total – 273,000 • Large Truck Crash Losses in 2011 • Lives – 3,757 • Injured – 88,000 • Cost of Large Truck Crashes • Fatal Crashes - $39 billion • Injury Crashes - $32 billion • Property Damage Only Crashes - $16 billion Imp w/ Ped or Animal 8%

4. Available Safety Technology • Adaptive Cruise Control System (ACCS) • Blind Spot Warning System • Forward Collision Warning System (FCWS) • Forward Collision Avoidance & Mitigation System (F-CAMS) • Lane Departure Warning System (LDWS) • Stability Control System • In Cab Driver Monitoring and Coaching • Event Data Recorders (EOBRs & ELDs)

5. Available Safety Technology • Night Vision System • Drowsy Driver Alert System • Advanced Tracking Systems • Adaptive Headlights • Backing Aids • Brake Stroke Monitoring System • Incident Management System • Roadside Inspection Technology • Speed Limiters and Variable Speed Limiters • Tire Pressure Monitoring System and Automatic Tire Inflation System

6. Adaptive Cruise Control System • Uses radar to automatically maintain a set following interval/distance between the CMV and the vehicle ahead • Interacts with the CMV’s engine management system (transmission and throttle) and cruise control system to control/adjust the speed of the CMV • Depending on the device, may provide a warning only or may decelerate or stop the CMV using automatic emergency braking (AEB) to maintain the pre-established interval/distance between vehicles

7. Blind Spot Warning System • Sensor technology detects objects in blind spots and provides a visual warning (normally in the side view mirror) • Can provide 360º of electronic coverage around the CMV, whether at speed or moving slowly • Warnings can be visual, audible or haptic (vibrating) • To achieve 360º coverage, tractor-semitrailers must have sensors on both the tractor and semitrailer

8. Forward Collision Warning System • Radar-based systems detects objects in the forward path, determine distance, differences in relative speed, and azimuth (angular measurement in a spherical coordinate system) between the CMV and the object or vehicle in front of it • Provides progressively more urgent warnings [audible, visual or haptic] according to pre-set thresholds • Does not take any action and does not control the CMV

9. Forward Collision Avoidance and Mitigation Systems • Forward-looking radar-based systems combines FCWS with automatic Collision Mitigation Braking (CMB) capability • Generates the visual, audible and/or haptic warning when the CMV comes within a pre-defined distance and closing rate with another vehicle or object • Applies foundation brakes if the driver fails to respond to the warning when the collision is determined to be imminent

10. Lane Departure Warning System • Forward looking vision-based systems consisting of a main unit and small video cameras mounted on the CMV’s windshield records data about upcoming roadway • Algorithms interpret video images of the lane to estimate the CMV’s state (lateral position, speed and heading) and road alignment (lane width and road curvature) in order to determine if the CMV is drifting from its lane • Warns the driver of a lane departure when the CMV is traveling above a certain speed threshold and the turn signal is not in use • Warning is generally auditory and sounds like a vehicle driving over a rumble strip • Does not take any action to avoid a lane departure and does not control the vehicle

11. Stability Control System • Sensors monitor vehicle dynamics [steering angle, yaw (the angle of a vehicle in relation to its vertical axis) rate, and speed], estimate the side-to-side stability, and compare this information to expected values to determine whether the vehicle is outside the expected performance window • When vehicle performance exceeds the expected or normal performance range, system intervenes by selectively braking certain wheels depending on whether the vehicle condition is related to over-steer, under-steer, or a rollover event

12. Two Types of Stability Control Systems • Roll Stability Control (RSC) for tractor roll (strictly a rollover event intervention) • Electronic Stability Control (ESC) for roll and yaw (loss of directional control) of tractors • These stability control systems actively reduce the tractor’s throttle and apply its brakes to decelerate the CMV if a high rollover risk or instability threshold is detected. ESC also controls vehicle steering

13. In Cab Driver Monitoring and Coaching • Video-based closed loop systems transmit video and kinematic (motion/movement) data from CMV to review center • Analysts review video and kinematic data and record what the driver was doing during the captured events and a severity score for each video event is calculated • Reviewed events are made accessible on a protected website for captured events and reports • Fleet supervisor reviews the videos and reports generated with the drivers to pinpoint the risky driving behavior and coaches the driver on how to avoid future risky behaviors

14. Event Data Recorders • Electronic On-Board Recorder (EOBR) or Electronic Logging Device (ELD) • Device connected to CMV’s engine records and monitors information related to on-duty status and hours of service compliance and/or vehicle performance such as fuel economy, speed, distance, location, and onboard events • FMCSA published its supplemental notice of proposed rulemaking in March 2014

15. Night Vision System • Compact thermal imaging system • Detects heat from animals or pedestrians located out of headlight range • Display is used as a natural checkpoint, similar to rear/side mirrors, to assist drivers in identifying hazards which otherwise would not have been seen

16. Drowsy Driver Alert System • Manufacturers claim that lane wandering can be cut in half by using an alert system • Designed to monitor driver’s eyes and pulse • Alert system vibrates steering wheel and puffs air to wake a drowsy driver

17. Advanced Tracking Systems • Instant messaging device with GPS • Used to communicate dispatch data, directions, etc. • Automatically creates FMCSR compliant driver logs • Critical event reporting tracks near-miss incidents over time, monitors drivers habitually following vehicles too closely, and monitors unintentional swerving between lanes

18. Adaptive Headlights • System adjusts headlight positioning to conform with curvature of the road • Lights turn with steering wheel, adjusted for speed and yaw • Illuminates curves at night so drivers may better anticipate hazards ahead

19. Backing Aids • Exterior mounted cameras provide driver with views of what may otherwise be blind spots • Assists with backing and approaching loading docks • Employs progressive auditory warning system which increases in rapidity as vehicle nears an object

20. Use and Driver Training • Installing safety technology is only the first step • Fully implementing safety features for purposes of training, monitoring, and supervising drivers is advisable to avoid claims of negligence

21. Legal Implications of Safety EquipmentNegligence and Standard of Care • The mere fact that an accident or injury has occurred, with nothing more, is not evidence of negligence on the part of anyone • What is required is evidence, which means some form of proof; and it must be evidence from which reasonable men may conclude that, upon the whole, it is more likely that the event was caused by negligence than it was not • The U.S. DOT through its FMCSA and PHMSA has set forth specifications and standards for commercial vehicle equipment, its inspection, maintenance, and repair, as well as driver knowledge and conduct; in some cases regulations are prompted or dictated by statute • As a general rule, the standard of care prescribed by a regulation or statute is a minimum standard of care • In some instances, state regulations, statutes, or common law decisions may prescribe a heightened standard of care • Thus, strict abidance of a particular statute or regulation does not automatically satisfy the defendant’s duty of care. • Although violation of a regulatory or statutory duty may constitute negligence, compliance with the regulation or statute does not necessarily establish ordinary care

22. Legal Implications of Safety TechnologyNegligent Failure to Equip • If a motor carrier chooses not to install available safety technology, a plaintiff may make a case of profits over safety in basing negligence upon failure to equip the CMV • Dollars vs. Lives Decision – Plaintiff claims that affordable available technology could have prevented an accident/loss • Additional Equipment not Prohibited: 49 CFR § 390.17 • Nothing in this subchapter shall be construed to prohibit the use of additional equipment and accessories…provided such equipment and accessories do not decrease the safety of operation of the commercial motor vehicles on which they are used

23. Legal Implications of Safety TechnologyNegligent Failure to Equip Although the vehicle ahead quickly lost control, installation of a night vision system or forward collision warning system may have allowed this driver to detect the oncoming vehicle sooner

24. Legal Implications of Safety TechnologyNegligentFailure to Educate and Train • If a motor carrier installs certain safety technology, yet fails to educate and train drivers on proper uses, plaintiff may make a case of negligent failure to educate/train • Similarly, a plaintiff may claim negligent failure to train if a motor carrier installs safety technology, yet fails to fully implement the equipment’s built-in training features • All drivers of CMVs must have the knowledge and skills necessary to operate a CMV safely, including: • Proper use of the motor vehicle's safety system • Knowledge of the correct procedures needed to use these safety systems in an emergency situation • 49 C.F.R. § 383.111

25. Legal Implications of Safety TechnologyNegligentFailure to Educate and Train • Notice the Forward Collision Warning System properly alerting the driver of a vehicle ahead, yet the audible pre-collision warnings are ultimately ignored

26. Legal Implications of Safety TechnologyNegligent Failure to Educate and Train 49 CFR § 392.14 requires using extreme caution in the operation of his or her truck during hazardous conditions, such as those caused by the snow, rain, and so on, which adversely affect visibility or traction The section goes on to say that ”speed shall be reduced when such conditions exist”

27. Legal Implications of Safety TechnologyNegligent Failure to Monitor/Supervise • If safety equipment installed has a tracking or monitoring mechanism, but that feature is unused or reports generated are ignored, a plaintiff may base a claim for negligence upon failure to monitor or supervise the driver • Whenever a duty is prescribed or a prohibition is imposed upon the driver, it is the duty of the motor carrier to require observance of such duty/prohibition • 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 49 CFR § 392.3

28. Legal Implications of Safety TechnologyNegligent Failure to Monitor/Supervise In this early morning collision, notice the driver’s eyes closing before impact. For CMVs equipped with safety technology capable of real-time reporting of hours of service, a plaintiff may base a claim for negligence upon failure to supervise/monitor such reporting for out-of-hours conduct

29. Legal Implications of Safety TechnologyNegligent Failure to Discipline • When safety equipment monitors and/or records unsafe driving events and no corrective training/discipline follows, a plaintiff may make a case of negligent failure to discipline

30. Legal Implications of Safety TechnologyNegligentFailure to Maintain • Once safety equipment has been installed, it must be regularly inspected and maintained to avoid a plaintiff’s negligence claim based upon failure to maintain safety equipment • Failure to Maintain- 49 CFR § 396.3 • Every motor carrier shall systematically inspect, repair, and maintain, or cause to be systematically inspected, repaired and maintained, all motor vehicles subject to its control. • Parts and accessories shall be in safe and proper operating condition at all times. These include those specified in Part 393 of this subchapter and any additional parts and accessories which may affect safety of operation…

31. Legal Implications of Safety TechnologyNegligence Per Se • In some instances, plaintiffs assert the doctrine of negligence per se to establish negligence as a matter of law • Under the doctrine of negligence per se, a standard of conduct imposed by a statute or regulation may define the conduct of a reasonable prudent person • If there was a violation of a regulation or a statute, that violation was the proximate cause of the accident, and the plaintiff thereafter suffers damages, then actionable negligence has been proven entitling the plaintiff to recover

32. Legal Implications of Safety TechnologyNegligence Per Se • Twofold inquiry in a potential negligence per se case: • Whether the plaintiff belongs to the class that the statute was intended to protect • Whether the plaintiff’s injury is the type the statute was designed to prevent • Factors to determine whether negligence per se liability is appropriate: • (1) whether the regulations are the sole source of any tort duty from the defendant to the plaintiff or merely supply a standard of conduct for an existing common law duty; • (2) whether the regulations put the public on notice by clearly defining the required conduct; • (3) whether the regulations would impose liability without fault; • (4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the regulatory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers; and • (5) whether the plaintiff's injury is a direct or indirect result of the violation of the regulations.

33. Safety Technologies and DefenseNegligence Per Se • Regulatory/statutory standard of care is not clearly defined • The Texas Supreme Court specifically refused to apply 49 C.F.R. §393.205, requiring “nuts or bolts shall not be missing or loose” as an indication of negligence per se, reasoning: • [T]he requirement that lug nuts shall not be ‘loose’ does not put the public on notice by clearly defining the required conduct because the regulations do not define the word ‘loose’ nor specify any particular amount of torque. • We hold that section 393.205(c)’s requirement that nuts shall not be loose is not an appropriate standard for applying negligence per se. • In addressing the applicability of §§393.3(a), and 396.13 regarding the general requirement of repair to “systematically inspect, repair, and maintain” the vehicle, the Court reasoned: • Likewise, §§393.3 and 396.13 simply require a motor carrier to maintain motor vehicles ‘in safe and proper operating conditions’ and a driver to ‘[b]e satisfied that a motor vehicle is in safe operating condition.’ • Determining what is or is not safe in these circumstances bears practically no difference from what is or is not reasonable. • We hold that §§393.3 and 396.13 are not appropriate bases for a negligence per se instruction.

34. Legal Implications of Safety TechnologySpoliation of Evidence • Duty to preserve evidence • Intentional destruction of evidence…or the significant and meaningful alteration of a document or instrument • Some jurisdictions recognize an independent tort for spoliation, but most only recognize an evidentiary presumption or inference • Standard: Whether, at the time the evidence was lost or destroyed, a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action

35. Legal Implications of Safety TechnologySpoliation of Evidence • Information to be Preserved: • In cab safety devices • LDWS • Rollover Avoidance • Collision Warning System • Drowsy Driver Warnings • Spoliation requests now include such data • Routinely included in discovery requests

36. Legal Implications of Safety TechnologySpoliation of Evidence • Consequences of Spoliation: • Independent claim for negligent or intentional spoliation • Sanctions • Dismissal • Issue preclusion/preclusion of expert • Monetary • Adverse inference

37. Safety Technologies and DefenseSpoliation of Evidence • Information was never retained or does not exist • For example,Omnitracs tracking data is not archived in most motor carriers’ computers • Ordinary Course of Business Defense • Information deleted as a matter of routine business • In the absence of bad faith • Cumulative/Lack of Prejudice • Existence of other supporting documentation

38. Safety Technology and the Transportation Industry Questions? ATA Forum for Motor Carrier General Counsel Panelists: Michael P. Sharp, Mick R. Dragash, Meredith O. Priestley, Hal D. Meltzer 2014