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
7
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
9
10
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.2C:11-5 is amended to read as follows:
2C: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
14
while 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. 2d 663 (E.D. PA, 2006)
*
892 P.2d 703
(Cite as: 133 Or.App. 514892 P.2d703)
Court of Appeals of Oregon
Frederic M. Faverty, Respondent
v.
McDonald’s Restaurants of Oregon, Inc.,
An Oregon Corporation, Appellant
9001-00394; CA A70327
18
Workers Compensation
793 S.W. 2d 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
20
Transportation Attorney Warns
Trucking Executives About Legal
Risks
Byline: Dean Smallwood
eTrucker.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