A primer on precasters’ responsibilities for truck drivers at the plant, on the road and on the job site.
By Bridget McCrea
No precaster wants to hear about its manhole risers toppling off a truck while the vehicle is driving down the highway or its panels falling from a boom truck while it’s parked at a job site, but accidents happen. In fact, according to the U.S. Bureau of Labor Statistics (BLS), vehicle-related accidents happen a lot. The most recent numbers show that more than 1,700 deaths occur annually as a result of occupational transportation incidents. That number is more than 38% of the 4,547 annual number of fatalities from occupational injuries.
The BLS says that fatal highway incidents are the most frequent type of fatal work-related events and accounted for nearly two out of every five fatal work injuries in 2010.
Motor vehicle crashes incur both economic costs and human costs. On average, a fatality occurring on the job costs a business more than $500,000 in direct and liability costs, and each nonfatal injury costs nearly $74,000.
An accident doesn’t have to be fatal in order to impact the precaster that registered the vehicle and hired a driver to transport it to and from the job site. Products can fall off trucks while they are on the road, trucks can be unintentionally steered into buildings and other structures, and bulky precast items can fall off truck-mounted cranes. Even if no one gets physically hurt during such mishaps, the financial liability will likely find its way back to the precaster.
“The basic rule of law applies in pretty much all contexts and areas, including the plant/yard, on the road and at a delivery site,” says Thomas J. Simeone, a personal injury attorney with Washington, D.C.-based Simeone & Miller LLP and a part-time law professor with extensive experience with the liability of delivery drivers. “Generally, an owner/employer is responsible for the acts of its employees/agents, including their negligence.”
There are some exceptions to the rule, such as when a delivery driver injures a fellow employee (another employee of the same precast firm), the injured employee is limited to a workers’ compensation claim (rather than a personal injury case). “The other, and probably more important, exception,” says Simeone, “is that a manufacturer will not be liable for the negligence of an independent contractor.”
The latter exception has pushed some companies to use more independent contractors or “1099” workers to deliver from point A to point B. “One of the reasons that companies turn employees into independent contractors is to limit their liability for the worker’s negligence,” Simeone says, adding that the mere fact that the manufacturer and driver call their relationship an “independent contractor relationship” and provide for payment via 1099 (rather than employee withholding) is not binding in a court.
“Instead, a court can still find a driver to be an employee,” Simeone explains, “if the manufacturer retains and/or exercises control over the driver’s actions to such a level that the driver is for all intents and purposes an employee.” Simeone says this law will apply whether the driver is on the road, at a delivery site, or on the manufacturer’s property. “Finally, if the driver is injured by someone other than the manufacturer, then he can bring a claim against that person, including a customer of the manufacturer,” says Simeone. “And if he is an employee, he can also bring a workers’ compensation claim.”
Reading the fine print
Risk of work-related motor vehicle crashes cuts across all industries and occupations – not just those that require heavy lifting and tractor-trailers. In the United States, companies and drivers that operate large trucks and buses are covered by comprehensive safety regulations. In contrast, there are no federal occupational safety regulations that cover the workers who use smaller, employer-provided vehicles or personal vehicles.
According to Richard De Angelis, a spokesman with the Occupational Safety and Health Administration’s (OHSA) office of communications, three different government groups develop and enforce motor vehicle safety regulations. The mission of the Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) is to prevent commercial motor vehicle-related fatalities and injuries on public highways. Travel on public highways is under the jurisdiction of the Department of Transportation (DOT). But when employees are loading and unloading trucks, OSHA regulations govern the safety and health of the workers. It is the responsibility of employers to ensure their safety at the warehouse, at the dock, at the rig, at the construction site, at the airport terminal and in “all places truckers go to deliver and pick up loads.”
Finally, De Angelis points out that OSHA does not have jurisdiction over truck drivers while they are traveling on public roads to get to and from their employer’s place of business and customer locations. (Additional information regarding OSHA standards that apply to the trucking industry can be found on OSHA’s website.1)
Regardless of which governing body is in charge when an accident happens, Simeone says the most important fact that precasters need to keep in mind – at least from a legal liability point of view – is that the actions of any agent (defined as someone you are responsible for) of the company can come back to haunt you. “If you have control over the person and are benefitting from the work he’s doing, then he’s an extension of your company,” says Simeone. “When he’s negligent, you’ll also be on the hook for the negligence.”
When looking at the three key areas where a precaster’s risk heightens in terms of driver safety – in the yard, on the road and at the job site – Simeone says there’s really no difference among the three areas in the eyes of the law. “The location really doesn’t matter,” he says. “Generally, the precaster will be responsible as long as the person driving is working within the scope of the ‘agency.’”
In some instances, the company will be free of risk. An employee who is commuting to or from work, for example, or running personal errands, won’t generally fall under the agency umbrella, he explains, even if the vehicle in question is a company-owned or company-leased truck. “The employer is usually not responsible if the driver rear-ends another car on the way to or from work,” Simeone says. “If the person isn’t doing work for the company at the time, then it doesn’t matter where the accident takes place – the precaster won’t be on the hook for it.”
The big rigs
If you routinely use 18-wheel tractor-trailers to deliver precast products to customer job sites, the safety rules get a bit more onerous (see the sidebar “Deciphering the Hours of Service Rules), according to Simeone. That’s because the regulations around this type of transportation are especially stringent and sometimes even difficult for the most diligent driver to follow. They are required to maintain log books, check in at weigh stations, pay fines (when certain rules aren’t followed), and a myriad other issues can come up at any time while your employees are on the road.
Lawsuits related to tractor-trailer transportation can’t always be avoided, but through proper documentation and rule following, they can be minimized and at least fought successfully at the legal level. “Make sure your drivers are documenting everything they do, filling out their log books, following the regulations and getting the proper amount of rest while on the road,” says Simeone. “There are a lot of regulations put on commercial drivers, and all of that information will be evidence in court.”
For those drivers who are behind the wheel of smaller vehicles and/or driving short distances to and from customer sites, Simeone says the precaster’s best line of defense is a written policy that’s reviewed, updated and enforced. Have drivers read and sign the policy, he says, and then enforce it in a good faith effort that, if it should become necessary, will stand up in a court of law. “If you can prove that you’ve honestly enforced the policy in good faith and that there are no glaring omissions,” says Simeone, “at least you’ll have one less issue to fight in the case.”
Programs that promote safe driving behaviors, diligent vehicle and equipment maintenance, and the latest rules and regulations will also go a long way in helping to minimize risk. Early intervention steps – like checking the driving records and histories of anyone who is going to be in control of a company vehicle and even conducting routine drug tests – can also help ward off problems before they occur.
“When you hire drivers, you always want to check their licenses and driving records, and then make sure they’re up to speed on all of the safety regulations that govern what they’re doing at the plant, on the road and at the customer’s location,” Simeone says. “Add a written policy to the equation, and you’ll be protected as much as you can be.”
Bridget McCrea is a freelance writer who covers manufacturing, industry and technology. She is a winner of the Florida Magazine Association’s Gold Award for best trade-technical feature statewide.
2 This chart is available at www.fmcsa.dot.gov/documents/hos/HOS_Compare_new_rule_to_current.pdf