April 9, 2015
By Jeffrey A. Burns of Dollar, Burns & Becker
(Burns is considered by many to be the leading expert on the causes of truck crashes in the country.)
The connection between over-the-road trucking and driver fatigue is not new. For as long as drivers have had to make certain delivery times and shippers have paid to have their products delivered by truck, drivers have been falling asleep at the wheel. As early as 1935 the National Safety Council issued its report on the problem: Too Long at the Wheel.  Since then, our society has developed into a 24-hour society, and fatigue, in general, has become a broad societal problem. The National Sleep Foundation reports that 37% of American adults are so sleepy during the day that it interferes with daytime activities. Given the demands of the job, this has to be worse for truck drivers. "Just-in-Time" delivery and "rolling warehouse logistics" have made trucking a truly round-the-clock endeavor. Yet, even today, certain trucking groups down-play driver fatigue and portray it as a relatively minor problem, citing their (absurd) position that fatigue plays a role in less than 2% of fatal truck crashes. Even the FMCSA, which is supposed to be protecting the public from dangerous trucking activities, puts the percentage at a ridiculously low 5.5%. The world's leading sleep experts agree that fatigue is the largest identifiable and preventable cause of accidents in the transportation operation. They further point to official underestimation of the problem as part of the problem 
“The National Sleep Foundation reports that 37% of American adults are so sleepy during the day that it interferes with daytime activities.”
1995 appears to be the watershed year for taking driver fatigue seriously in trucking. In that year, Secretary of Transportation, Federico Peňa, called for the first National Truck and Bus Safety Summit, to be held in Kansas City, Missouri. Trucking industry representatives met with researchers, safety advocates and government representatives with the goal of developing a list of the most pressing safety issues facing the trucking industry. The list would be used to guide research, regulation and training efforts to try to reduce truck crashes, fatalities and injuries. After several days of meetings, sessions, workshops, and speeches, the Summit participants developed a list of 17 safety issues facing the trucking industry and ranked them in priority order. Number one on the list was driver fatigue. In the years following, more emphasis has been put on the fatigue issue, with fatigue training videos being offered by all major industry training suppliers, train-the-trainer sessions have been developed, dozens if not hundreds of research projects have been undertaken, and technological advancements have given us gadgets and algorithms to help detect when a driver might be getting too tired to drive safely.
In spite of the additional focus and attention on the issue, and in spite of the Department of Transportation's announced 1999 goal of reducing truck-crash fatalities by 50% in ten years, we still have no litmus test to determine whether a driver is fatigued when he or she is involved in a crash and we are still suffering more than 5,000 fatalities a year in truck crashes in the U.S. Because of poor investigation in the area of fatigue (there is no "breathalyzer" or other test to give a driver after a crash to determine his or her fatigue level), and because of horrible records regarding involvement of fatigue in crashes, we still have no solid statistics regarding how many or what percentage of truck crashes are caused or contributed to by driver fatigue. Figures as low as 2% and as high as 58% of particular types of crashes have been given. Even results from the long-awaited Large Truck Crash Causation Study will not be able to accurately portray the true extent of the problem, because the study included no acceptable protocol to identify fatigue-related crashes and took an "I-know-it-when-I-see-it" approach to identifying fatigue as a cause. The fact of the matter is that driver fatigue is a significant cause of losses in the trucking industry and should be investigated as a possible factor in catastrophic truck crashes.
The investigation into whether fatigue played a part in a particular case will vary, depending upon the type of crash and the information available. What is considered by some to be the classic "fall asleep" case involves a crash with little or no braking with one vehicle running into another vehicle or object (or running straight off the road when the road turns) when there was clear visibility and no obstructions to the driver's view. Not all fatigue related crashes, however, share these characteristics. A driver does not need to fall asleep to have his or her driving impaired by fatigue. Fatigue impairs drivers in much the same way that alcohol intoxication does; a driver's ability to perceive and react becomes increasingly diminished as the level of fatigue increases. Indeed, even "relatively moderate levels of fatigue impair performance to an extent equivalent to or greater than is currently acceptable for alcohol intoxication."
When what we know about fatigue is superimposed over what we know about the economics of the trucking industry since it was deregulated in 1980, it becomes clear that our highways are literally full of "accidents waiting to happen." Accordingly, an evaluation of a crash requires an understanding of the interplay among some or all of the following: the economics of the industry, how the crash occurred, the driver's sleep/wake pattern in the days preceding the crash, time on task, time of day, the driver's training, the driver's health, company policies, and the fundamentals of the science of sleep.
Within the confines of this article it is not possible to identify and explore every factor necessary to determine if driver fatigue caused or contributed to cause a crash. Each case will bring its own individual facts that will require its own approach. The basics of the science of sleep, against which the facts may be analyzed, however, can be stated and are set forth below.
Most of what we know about the science of sleep has been developed in the last 50 years. Although we continue to learn more every year, what we have learned so far indicates that a person's need for sleep grows in direct proportion to that person's lack of sleep (sleep debt) and that, ultimately, sleep is the only safe countermeasure for fatigue.
"At 65 miles an hour, a driver who suffers a 3 second microsleep is "driving" a truck the length of a football field while effectively being unconscious."Microsleep episodes last from a few seconds to several minutes, and often the person is not aware that a microsleep has occurred. In fact, microsleeps often occur when a person's eyes are open. While in a microsleep, a person fails to respond to outside information. A person will not see a road signal light or notice that the road has taken a curve. Microsleeps are most likely to occur at certain times of the day, such as pre-dawn hours and mid-afternoon hours when the body is "programmed" to sleep. Microsleeps increase with cumulative sleep debt. In other words, the more sleep deprived the person is, the greater chance a microsleep episode will occur. In one study of microsleep, participants were asked to press a button when a strobe light was flashed directly in their eyes every few seconds. During a microsleep they did not notice the light and were not even aware that they had been asleep.
Although a truck driver's job has never been easy, competitive forces since the industry was deregulated in 1980 have created an environment in which most, if not all of the variable costs involved in trucking are attempted to be place directly on the backs of the individual drivers. The situation has been described by one expert as follows:
The number of authorized motor carriers in the United States exploded after deregulation from less than 30 thousand to more than 500 thousand by the turn of the century.Today, no exact figure is available, but it is believed to be between 600 and 700 thousand motor carriers. The resulting unfettered competition has been effective in keeping rates (and driver pay) low. Throughout the long-haul industry, the most common method of payment is still pay "by the mile." This means that the longer and farther the driver travels, the more pay he or she can make. Because the per-mile rate has been kept relatively stagnant, drivers feel a great deal of pressure to continue driving when they know they should stop to rest. Add this to the fact that most drivers are not paid for time they spend waiting to load and unload, and you have great pressure to drive as many miles as possible to make up for lost time.
Many drivers have left the industry and many drivers that stay in the industry change jobs frequently. The driver turnover rate for large truckload companies during the second quarter in 2005 jumped to 129%, the second highest on record. The turnover rate (or "churn" rate) at smaller truckload companies recently dropped from approximately 100% to 81%, and turnover rate for less than truckload (LTL) carriers is in the 15% to 17% range. The industry refers to the present situation as a "driver shortage." The reality, however, is that there is no shortage of workers in this country, as is proven by national unemployment statistics. The fact is, there is a shortage of people who want to work 70 to 100 hours per week, be gone from their families for extended periods of time, and make an average hourly rate that would be approximately equivalent to a senior fast-food service job. Truck drivers are not protected by the overtime provisions of the Fair Labor Standards Act.
The result is that well-run, safe companies have been challenged by companies willing to cut corners to obtain or keep business. As carriers compete for the shrinking profit margin, working conditions for many drivers have worsened, leading to these high attrition rates and attracting more poorly qualified drivers into the industry. With this downward spiral, the biggest question is why there are not even more truck crashes on our highways.
When a truck crash is caused by driver fatigue, the claims that arise from the crash will focus on whether the driver and the carrier complied with the regulations regarding the hours the driver can work, and whether they otherwise took reasonable steps to minimize this ever-present danger. Safety directors can no longer claim that they did not realize fatigue is a problem. Although the official industry line is that fatigue causes a low percentage of fatal truck crashes, the world's foremost experts who have honestly looked at the fatigue problem have formulated a "consensus statement" and have concluded that fatigue "is the largest identifiable and preventable cause of accidents in transport operations (between 15% and 20% of all accidents), surpassing that of alcohol or drug related incidents in all modes of transportation. The expert consensus statement also identified poor government statistics as one of the contributing factors: "Underestimation of the impact of fatigue can lead to the underutilization of important countermeasures.
Although a wide variety of fatigue training materials are available from all truck industry general supply companies, most trucking companies do not screen their drivers for sleep disorders and do not provide training to their drivers about problems associated with fatigue. Only recently have the federal regulations provided specifically (and vaguely) for any driver training related to "fatigue countermeasures" and this only applies to entry level drivers. Nonetheless, the regulations do provide, albeit, somewhat indirectly, that a motor carrier must provide effective training regarding fatigue to all of its drivers. This requirement is found in 49 CFR §392.3 which provides:
No driver shall operate a commercial motor vehicle and a motor carrier shall not require or permit a driver to operate a commercial vehicle while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue…as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.
This requirement clearly states that the motor carrier shall not permit a fatigued driver to continue driving when it is unsafe for him or her to do so. Unless that company has someone sitting in the seat next to the driver, monitoring the driver's alertness, and telling him when to pull over, the motor carrier must have in place a training system to comply with this directive. Interpretations for the federal regulations published in the federal register of April, 1997, by the Office of Motor Carriers (predecessor to the FMCSA) confirmed that "carriers are liable for the actions of their employees. Neither intent to commit, nor actual knowledge of, a violation is a necessary element of that liability. Carriers "commit" violations…of …regulations by their employees if they fail to have in place management systems that effectively prevent such violations."
Accordingly, in order to comply with this regulation, a motor carrier must have in place a management system that effectively prevents a driver from continuing to drive when he or she is too fatigued to do so. Merely informing a driver that he should pull over when he is too tired to drive would be similar to a motor carrier merely telling a driver not to violate the hours of service provisions, without having an audit system in place, and clearly would be indicative of irresponsible and incompetent management.
Many times, the safety department of a trucking company is interchangeably called its "compliance" department. Sometimes it may be referred to as the "safety and compliance" department. Too often, they focus more on the compliance side than the safety side. The regulations provide for the minimum standards and framework that must be met by a motor carrier. "Compliance" is too often focused on making sure that the motor carrier does not violate the specific terms of the regulations. A focus on safety, however, involves an assessment of the risk of a particular operation and the implementation of measures to reduce the risk. The difference, especially in the area of truck driver fatigue, is the difference between life and death. For example, a driver who drives 11 hours straight followed by ten hours off duty for four cycles, is absolutely compliant with the regulations, but is even more absolutely an imminent threat of serious injury and death to the public because the driver will have been subjected to a rearward rotating schedule with a dangerous alteration of his sleep cycles and, in the next driving period will be driving throughout the period of time at which he was sleeping at the beginning of his tour of duty. "Compliance" seeks to avoid a literal violation of a regulation. "Safety" seeks to prevent crashes, serious injuries and deaths. Compliance is simply not sufficient.
The danger of driver fatigue is obvious. Long before a fatigued driver falls asleep, he or she suffers from degraded judgment and decision making capabilities, cognitive fixation, decreased coordination, reduced reaction time, perseveration, decreased memory and mental functioning, and indifference to normal stimuli. The degradation in performance capability is directly proportional to the degradation found in alcohol impairment and should be considered every bit as dangerous. It is the responsibility of every motor carrier to provide its drivers with the tools necessary to perform the job demanded of them and to prohibit them from driving while fatigued. Since 1995, the industry has literally been flooded with information about the dangers of driver fatigue, educational and training materials for their drivers, and more information for their management. A company that does not provide its drivers with adequate information, training, and supervision to insure that the drivers do not drive while they are fatigued is closing its eyes to the greatest risk to the public that their operation presents. Such conduct demonstrates an indifference to and conscience disregard for the safety of others and should be dealt with accordingly.
 This position cites the study "Estimates of the Prevalence and Risk of Fatigue in Fatal Accidents Involving Medium and Heavy Trucks", by Kenneth L. Campbell, which internally admits that "the overall proportion [of fatigue involvement] in fatal accidents…underestimates the true value."
 Id at 48.
 Bus Department News, www.utu.org/depts/busfiles/busnews/2000news/bsnews3.htm, quoting Dr. Mark Mahowald, Director of the Minnesota Regional Sleep Disorders Center and past president of the American
Academy of Sleep Medicine.
 This official "guidance" was specifically drafted with regard to §395.3 which provides that no motor carrier shall require or permit any driver used by it to drive in excess of the allowable hours of service. This regulation uses the same "require or permit" language as found in §392.3.
By Jeffrey A. Burns ©
Dollar, Burns & Becker, LC
1100 Main Street, Suite 2600
Kansas City, Missouri 64105