We all know that distracted driving is one of the leading causes of motor vehicle accidents. At this point, most lawyers handling car and truck accident injury cases are asking questions in interrogatories and at depositions about possible distractions from electronic devices, cell phones in particular. Many states, including Maryland, prohibit all drivers from using hand-held cell phones. Now the feds have followed suit, imposing a similar rule for drivers of commercial vehicles (mostly tractor-trailers).
Scott Turner (since deleted so no link) has a post discussing the Federal Motor Carrier Safety Administration’s (FMCSA) ban on hand-held cell phones that went into effect in January 2012. The new rule applies to all drivers who drive routes through more than one state, and to drivers who operate only in one state if they are carrying hazardous materials.
§ 392.82 Using a hand-held mobile telephone.
(1) No driver shall use a hand-held mobile telephone while driving a CMV.
(2) No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.
(b) Definitions. For the purpose of this section only, driving means operating a commercial motor vehicle on a highway, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays. Driving does not include operating a commercial motor vehicle when the driver has moved the vehicle to the side of, or off, a highway and has halted in a location where the vehicle can safely remain stationary.
(c) Emergency exception. Using a hand-held mobile telephone is permissible by drivers of a CMV when necessary to communicate with law enforcement officials or other emergency services.
How the Law Works
There is a very important point in Scott’s blog post for lawyers handling truck accident cases in states without a hand-held cell phone ban. You might think that if the motor carrier defendant is operating only intrastate and not carrying hazmats, neither state law nor the new regulation would prohibit handheld cell phone use. But you might be wrong.
Many states incorporate the FMCSA safety regs into state law either explicitly or by reference. Maryland does this- the cite is COMAR 11.21.01.02. It specifically adopts the FMCSA regulations found at 49 C.F.R. 390-393, which includes the handheld cell phone band, which is 49 C.F.R. 392.82. So if we didn’t already have a state-wide ban on handheld cell phone use, the federal regulation would still apply to tractor-trailers and most other commercial vehicles. Good to know, especially if you happen to be handling truck accident injury cases in a state without an existing ban on using handheld electronic devices. Of course, Maryland lawyers should not forget that the same COMAR section also incorporates many other useful FMSCA safety regulations on topics like vehicle operation and maintenance, and driver conduct, qualifications, and hiring.
Claims Based on Distracted Driving
Scott’s post also advocates carriers implementing a training course on distracted driving. He makes some good points in favor of this. Perhaps this is something to think about having your expert address if you are making a negligent training claim against a motor carrier in a distracted driving case. Is that an easy claim to make? No. But when you dig into trucking companies, particularly these smaller companies, it is mind-blowing what you can find. I’m in a case right now where I’m telling you the defense lawyer for the trucking company is off the record as outraged by the defendant as any of us.