TORTS / What method for tort plaintiff to prove that driver of truck that hit him had violated Federal Motor Carrier Safety Regulations by “driving beyond the allowable number of hours”? (1) Evidentiary method held probative: Distance driven versus time of driving; (2) Held not probative: Mere fact that driver did not make required logbook entries (though such failure itself WAS a violation though NOT of hours of service regulation).

Markham v. Hall Worldwide Transportation, LLC, 2012 WL 6041816 (U.S. District Court, S.D. Georgia, December 4, 2012. Free copy available here.

Who is affected? Motor carriers and truck drivers subject to FMCSA hours of service rules.

Background

“This lawsuit arises out of a traffic accident between Plaintiff, who was driving a log truck, and Jeremy Hancock (“Mr.Hancock”), who was driving a tractor-trailer owned by Defendant Hall Worldwide Transportation, LLC (“Hall”). Mr. Hancock allegedly rear-ended Plaintiff’s log truck and did not survive the accident. Plaintiff alleges that Mr. Hancock was negligent per se by violating O.C.G.A. § 40-6-49,    which prohibits motorists from following too closely. Plaintiff also alleges that Mr. Hancock operated his tractor-trailer negligently. Plaintiff alleges that Hall is vicariously liable for the negligent acts of its employee, Mr. Hancock, under the doctrine of respondeat superior. Plaintiff asserts that he has incurred and will continue to incur medical expenses, physical and mental pain and suffering, and lost wages.

Defendants filed a Motion in Limine to exclude from evidence portions of the testimony of Plaintiffs accident reconstruction expert, Jeffrey Kidd (“Mr.Kidd”). (Doc. No. 33). Defendants move to exclude Mr. Kidd’s opinions that (1) … and (2) Mr. Hancock violated Federal Motor Carrier Safety Regulations [hours of service]. Defendants contend that both opinions are based purely on conjecture.”

Court’s analysis

Two-fold response to Motion in Limine on hours of service-related evidence.

First, court will allow expert to testify on likely hours vis-à-vis FMCSR hours of service limits based on the following: “Mr. Kidd’s opinion that Mr. Hancock likely violated the FMCSR by driving beyond the allowable number of hours is based on his calculation of the distance driven by Mr. Hancock in the time he drove it.

Second, court will not allow adverse inference based on defendant motor carrier’s failure to produce driver’s logbooks. While failure to make appropriate logbook entries for operations driven violates the FMCSR, it does not warrant an adverse inference in the absence of evidence that the reason for the failure to keep appropriate logbook entries for operations driven is bad faith spoliation: “Plaintiff has made no showing that Defendants failed to produce the logbooks as a result of bad faith spoliation by Defendants. As a result, Plaintiff will not be afforded an adverse inference based on Defendants’ failure to produce the logbooks.”