A recent trend has emerged in which plaintiff lawyers attempt to turn every nighttime accident into a case of driver fatigue, poor maintenance, and corporate negligence. By understanding the unique issues involved in nighttime accidents and the science of driver fatigue, a defense can be prepared to counter these frequently baseless arguments, which are intended to cause a jury to fear a truck driver and a motor carrier and potentially increase jury verdicts.
Nighttime accidents involve a number of distinct issues that can be generally grouped together as visibility or conspicuity on the one hand, and fatigue and impairment related on the other.
Visibility or Conspicuity Issues
Visibility or conspicuity issues arise in nighttime accidents for obvious reasons; with reduced light, it becomes more difficult for all drivers to perceive and to react to hazards. Lawsuits against commercial drivers sometimes result when a plaintiff collides with the rear of a tractor, or a commercial driver is unable to avoid a forward collision with an inadequately illuminated person or vehicle in an unexpected location. In these scenarios, a plaintiff will contend that the truck driver was going too fast, too slow, or failed to maintain the tractor-trailer properly. Through early investigation and documentation of evidence, an effective defense can be developed to demonstrate the fault of the plaintiff.
The investigation should include documenting the lighting and visibility conditions as soon as possible. Sources of ambient light, including street lamps, nearby buildings, and moonlight, should all be documented to demonstrate increased sight distances for a plaintiff. Conversely, sight distances for a plaintiff may be reduced by glare from a scratched or dirty windshield or eyeglasses, or reduced illumination from scratched or dirty headlights. Thus, a plaintiff’s vehicle, and if possible, the condition of any eyeglasses, should be preserved as well.
When clean and in good and working condition, conspicuity tape and lights should provide sufficient notice to other motorists of the presence of a commercial tractor-trailer. Plaintiffs sometimes allege that conspicuity tape or lights were altered, repaired, or cleaned after a crash occurred. Thus, it is important to photograph the condition of the conspicuity tape and lights as soon as possible.
Additionally, the filaments of fractured incandescent lights should be inspected to determine if they were on and operable at the time of a collision; thus the filaments of both the trailer lights and the headlamps of the plaintiff’s vehicle should be inspected and photographed. Even when lights aren’t fractured in a crash, information regarding the pre-collision condition of a vehicle’s lights might be available through dash cam or surveillance camera recordings, which should be sought and preserved.
In situations in which a commercial vehicle struck a plaintiff, it’s possible that the plaintiff caused, or contributed to causing, the accident by failing to illuminate his or her person or his or her vehicle properly. Human factors studies have shown that pedestrians can be incredibly difficult to detect at night, and this is especially true if they are wearing dark or non-reflective clothing. Thus, a plaintiff’s failure to make him- or herself visible can be used to demonstrate comparative fault.
Though passenger vehicles are more easily perceived than people at night, if even one headlamp or taillight is inoperable, the ability to perceive the distance of a vehicle, or that the source of light is a vehicle, can become significantly reduced. In such a scenario, human factors or conspicuity expert can be retained to demonstrate that a plaintiff left a defendant truck driver with no ability to detect the plaintiff and avoid a collision.
Driver Fatigue and Impairment Issues
A number of lawyers belonging to the plaintiffs’ bar have been pushing driver fatigue arguments to new extremes by claiming that all commercial drivers are fatigued between the hours of 11:00 p.m. and 6:00 a.m. The argument stems from the decades-old Commercial Motor Vehicle Driver Fatigue and Alertness Study, conducted on behalf of the U.S. Department of Transportation (and others), which found a relationship between time of day and driver alertness and fatigue.
Though this study does demonstrate a generalized risk related to driving at night, an effective defense to the allegation that fatigue played a role in a specific crash may be established through evidence demonstrating that a driver was adequately rested and that fatigue was not a specific cause of the collision. Doing either requires understanding the science behind the Commercial Motor Vehicle Driver Fatigue and Alertness Study and evaluating the evidence specific to a defendant commercial driver that might establish that the driver and the carrier used effective countermeasures to address fatigue.
Understanding the science of fatigue starts with reading the study, understanding what it means, and using it to counter arguments that misrepresent its findings. To summarize, the Commercial Motor Vehicle Driver Fatigue and Alertness Study found a correlation between time of day and fatigue; however, it did not find a sufficiently strong correlation to establish that fatigue can be presumed based on time of day.
Additionally, as a fatigue expert can explain, in the context of the study, fatigue really means a lower level of alertness occurring naturally as the result of each person’s biological circadian rhythm. Though this biological function is real and is tied to the time of day, it is not unique to commercial drivers, and it does not vary with different sleep patterns. Thus, all persons on the road, including a plaintiff, other motorists, and even an investigating officer, would experience the same low point in their circadian rhythm and corresponding lower level of alertness at the time that a collision occurred.
Another point for the defense is that though all drivers may experience a lower level of alertness at night, the study recommends that commercial drivers continue driving at night because the risk of a crash during the daytime hours is actually greater, due to the increased volume of traffic during the day. Additionally, experiencing a lower level of alertness does not mean that a driver is sleepy or will fall asleep; instead, it slightly extends perception-reaction times and decreases a driver’s lane-keeping abilities. When there is no evidence that a crash resulted from slower perception-reaction times or lane deviation, a qualified human factors and accident construction expert can establish that the collision could not have been the result of fatigue.
An examination of information regarding the driver’s route, schedule, and sleep patterns can be used to demonstrate appropriate countermeasures to provide adequate rest. As addressed in the Commercial Motor Vehicle Driver Fatigue and Alertness Study, drivers with regular routes, more routine sleep patterns, who obtained quality sleep in the 24 hours preceding a collision, and who took naps, are the least likely to have been fatigued. Thus, each of these should be also assessed and developed as evidence to establish that a commercial driver was in fact rested at the time of a collision.
Though nighttime trucking accidents lend themselves to reptilian arguments relating to driver fatigue and corporate negligence, a logical and effective defense may be developed through early investigation and preservation of evidence and through a scientific and case-specific challenge to fatigue-related causation allegations.