A Universe of Crash & Liability Risk Factors Face Work Fleets

TASA ID: 9075

If you are the owner or operator of a motor transport or other work vehicle fleet, you have probably gotten that phone call from one of your drivers.  The driver calls in to report their involvement in an on-job traffic crash.  The ensuring Q&A sequence is predictable.  You’ll first ask about location and severity.  Are you okay?  What about the other vehicle and its occupants?  Is the crash scene now secure?  Should the company send someone to the scene?

For severe crashes, that may be the gist of the initial conversation.  First things first.  But the topic of causation will always follow.  How did the crash happen?  Who was at-fault?  Any laws broken?  Are we potentially liable?  As a manager, you will ask yourself whether the crash was preventable (i.e., your driver could be blamed), what were their critical errors, and whether you should impose consequences.  For many work vehicle crashes, this sequence constitutes most of the depth and breadth of managers’ investigations of their fleet crashes.

A “Reptile” Theory of Crash Litigation

The process generates more anxiety and expense if your fleet driver is at-fault and there is significant human and/or material harm.  Victims will become plaintiffs, and their attorneys will use discovery to seek to deconstruct the competence of your driver and your company’s safety management program and practices.  Some defendant groups have called this the reptile approach to crash litigation.  In their conceived scenario, the plaintiff attorney will present and seek to establish the importance of certain safety rules work fleets should follow.  “A safety rule is a universal principle of how people should behave . . .  A plaintiff attorney . . . will point out to jurors a general safety rule, get defense witnesses to agree with the rule, demonstrate to jurors how the defendant broke the safety rule, and, evoking emotion, suggest that breaking the rule put the entire community at risk . . . “ (Marinakis and Wilinski, 2016).   The second phase of the plaintiff attack is to convince jurors that they are the only ones with the power to counter the community threat.  It follows that jurors should exercise that power by finding for the plaintiff and awarding large monetary damages, both compensatory and punitive.

Per the theory, this plaintiff strategy is neurophysiologically grounded in the evolution of the human brain.  Plaintiff fear-mongering in testimony awakens the reptilian complex of jurors’ brains, the earliest portion of our brains which we share with other animals, including reptiles.   This brings forth primitive emotions and instincts, including anger and fear.  When aroused, the reptile brain takes command and can overpower logic and reason, thus leading to vengeance in the form of enormous jury awards (Marinakis and Wilinski, 2016).  The schematic shows this simplistic concept.

Does modern neuroscience actually espouse the existence of a reptilian brain in the core of the human and mammalian brain?  The idea was proposed and debated 50 years ago, but is dismissed by brain scientists today.  Few if any experts in brain evolution take the idea seriously (Murray et al., 2020).  Yes, the human brain has evolved and inner portions of it are similar to those of other vertebrates.  But humans do not have reptilian structures in their brains.

Moreover, for those of us seeking ways to reduce traffic crashes and harm, the idea of reptilian brains inside human jurors’ brains is fishy.  It’s a red herring – an argument intended to divert attention from the real problems and issues at hand.  The central issue in most crash litigations is real risk factors existing in a fleet which may have created “accidents just waiting to happen.”

Crash Causation: Risk + Proximal Trigger

The crash genesis schematic below (Knipling, 2009) presents a conceptual timeline of how risk factors and proximal causes result in a motor vehicle crash.  Driver errors and other failures (vehicle, roadway) are the immediate or “proximal” causes of crashes.  Driver errors account for ~90% of proximal crash causes (National Highway Traffic Safety Administration, 2008).  Researchers have delineated a detailed taxonomy of driver error types, but one simple distinction tells much of the story.  Most driver errors are either volitional misbehaviors (e.g., speeding, tailgating) or inadvertent mistakes (e.g., “looked but did not see”).  As a fleet operator, you have to decide which category applies, and then act accordingly.

Timeline of risk factors and proximal cause(s) before a crash (Knipling, 2009).

Proximal causes trigger collisions, but before that there is risk.  Crashes can happen to anybody under any circumstances, but usually they happen against a backdrop of elevated risk.  Risk factors operate probabilistically.  They can begin any time, ranging from years before a crash (e.g., driver history) to just seconds before (e.g., transient distraction).  They set up a situation where proximal errors are more likely to occur and/or have greater consequences.  Multiple risk factors exist at any time.  They can have additive or even multiplicative effects on total risk.  They include driver age (young), gender (male), driving history, non-driving troubles, personality (aggressiveness, impulsivity, risk-taking tendencies), poorly maintained equipment, non-use of vehicle safety technologies, roadway type, and traffic density.  In work fleets inadequate fleet safety management is the main correlate of increased crash risk.  Inadequate fleet safety management often includes (Knipling et al., 2003; Knipling and Nelson, 2011; Camden et al., 2019):

• Failure to establish and/or live by firm driving safety policies.
• Inadequate driver screening.
• Lack of safety training and other safety communications.
• Failure to monitor and evaluate employee drivers.  Evaluation includes in-vehicle monitoring; e.g., DriveCam®, StreetCam®, other dynamic sensors and recorders.
• Failure to equip fleet vehicles with crash prevention technologies such as Forward Collision Warning and Lane Departure Warning.
• Failure to plan trips mindful of traffic and other road risks. 
• Failure to intervene both proactively and retroactively to address unsafe employee driving.
• Failure to objectively monitor and measure overall fleet safety performance.
• Failure to seek constant improvement.
• For many non-transport service fleets, failure to recognize that their biggest safety risks are from traffic crashes, not from outside-the-vehicle accidents (Pratt/NIOSH, 2003; NIOSH, 2015).

Most of my 40+ years of traffic and fleet safety experience has been in conducting and overseeing safety research projects.  Along the way I’ve strived to document and present safety research findings in a manner which speaks to fellow researchers but also to motor fleet safety directors and to drivers.  My crash expert witness experience has spanned the last decade.  Based on this legal experience base, I don’t believe that plaintiffs’ strategies are centered on vilifying fleets through fear-mongering.  The primary content of my case opinions has been objective explorations of crash causation from a big picture perspective.  This starts with the proximal conditions and failures triggering the crash, and then probes deeper and more broadly into the array of safety management risk factors within the fleet which have elevated crash probability.  A fleet safety manager’s job is to implement practices to lower crash probabilities.  These same practices will shield against high tort liability when at-fault crashes do occur.    

Cited References

Camden, M.C., Hickman, J.S., and Hanowski, R.J.  Effective Strategies to Improve Safety; Case Studies of Commercial Motor Carrier Safety Advancement.  National Surface Transportation Safety Center for Excellence Report #19-UI-072.  April 2019.

Knipling, R.R.  Safety for the Long Haul; Large Truck Crash Risk, Causation, & Prevention.  American Trucking Associations.  ISBN 978-0-692-00073-1, 2009a.  Available for purchase at www.atabusinesssolutions.com.

Knipling, R.R., Hickman, J.S., and Bergoffen, G.  Synthesis 1:  Effective Commercial Truck and Bus Fleet Management Techniques.  TRB CTBSSP Project MC-02, ISSN 1544-6808, ISBN 0-309-08754-6.  Washington D.C.:  TRB, 2003.

Knipling, R.R. and Nelson, K.C.  Safety Management in Small Motor Carriers.  CTBSSP Synthesis 22, TRB, ISBN 978-0-309-22340-9,  http://www.trb.org/Publications/PubsCTBSSPSynthesisReports.aspx, 2011.

Marinakis, C. and Wilinski, J.  The Reptile Brain Strategy: Why Lawyers Use It and How to Counter It.  Litigation Insights, March 3, 2016.  Available at:

https://www.litigationinsights.com/reptile-brain-strategy-lawyers-how-to-counter/

Murray, E.A., Wise, S.P., Baldwin, M.K.L, and Graham, K.S.  The Evolutional Road to Human Memory, Oxford University Press, ISBN 978-0-19-882805-1, 2020.

Pratt, S. National Institute of Occupational Safety & Health (NIOSH). Publication No. 2003-119: Work-Related Roadway Crashes – Challenges and Opportunities for Prevention; 4. Special Topic on Driver Fatigue, September, 2003.  Available at: http://www.cdc.gov/niosh/docs/2003-119/2003-119d.html.

NIOSH.  Preventing Work-Related Motor Vehicle Crashes.  2015.  Available At: Https://Www.Cdc.Gov/Niosh/Docs/2015-111/Default.Html.

Bio

Dr. Ron Knipling is the author of Safety for the Long Haul; Large Truck Crash Risk, Causation, & Prevention, the only comprehensive textbook on large truck safety.  In recognition of the book, he received the International Road Transport Union (IRU) Order of Merit award, the first given to an American scientist.  Dr. Knipling is a traffic safety researcher, consultant, and expert witness based in the Washington, DC area.  

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