Monthly Archives: January 2016

Public Comments on NHTSA Rulemaking for Rear Underride Guards Ends February 16

Remember to get your comments into NHTSA by February 16:  http://www.regulations.gov/#!documentDetail;D=NHTSA-2015-0118-0001

This Proposed Rule document was issued by the National Highway Traffic Safety Administration (NHTSA)

For related information, Open Docket Folder

Action
Notice of proposed rulemaking (NPRM).

Summary
This NPRM proposes to upgrade the Federal motor vehicle safety standards that address rear underride protection in crashes into trailers and semitrailers. NHTSA is proposing to adopt requirements of Transport Canada’s standard for underride guards, which require rear impact guards to provide sufficient strength and energy absorption to protect occupants of compact and subcompact passenger cars impacting the rear of trailers at 56 kilometers per hour (km/h) (35 miles per hour (mph)). NHTSA is issuing this NPRM in response to a petition for rulemaking from the Insurance Institute for Highway Safety (IIHS), and from Ms. Marianne Karth and the Truck Safety Coalition (TSC). This is the second of two documents issued in response to the Karth/TSC petition. Earlier, NHTSA published an advanced notice of proposed rulemaking requesting comment on strategies pertaining to underride protection afforded by single unit trucks.

Dates
You should submit your comments early enough to ensure that the docket receives them not later than February 16, 2016.

Trip North May 2015 154

Should manufacturers be held to a higher standard than those which have been proven to be ineffective?

Should manufacturers be held to a higher standard than those which have been proven to be ineffective?

The following paper is an interesting read related to that topic. . .

“The Case for a ‘Strong’ Regulatory Compliance Defense”

Richard C. Ausness, University of Kentucky, College of Law, 1996, Law Faculty Publications

Here are some excerpts:

“The regulatory compliance defense is another concept that can limit tort liability. In its strong version, the regulatory compliance defense provides that a product is not defective if it meets applicable regulatory standards or requirements. However, very few jurisdictions recognize regulatory compliance as a complete defense to tort liability. Instead, most courts allow juries to take compliance with regulatory standards into account, but steadfastly refuse to treat federal safety standards as anything more than minimum standards. 12″ [p. 1212]

“The National Traffic and Motor Vehicle Safety Act of 1966 35 directs the Secretary of Transportation to promulgate safety requirements for automobiles and other motor vehicles.36 Each safety standard must protect the public against “unreasonable risk of accidents occurring because of the design, construction, or performance of motor vehicles and … unreasonable risk of death or injury in an accident.“”37 Federal Motor Vehicle Safety Standards currently govern safety glass, door strength and latch design, fuel system integrity, occupant protection, and numerous other aspects of motor vehicle safety. 38″[p.1215]

“Regulatory safety standards may be either descriptive or performance oriented. Descriptive or specification standards mandate the use of particular materials, processes, designs, or labeling.65 Performance standards describe the performance characteristics of a product but do not specify how these characteristics are to be achieved.66 Performance standards are thought superior to descriptive standards because they allow for flexibility without sacrificing the benefits of specificity.67 However, both descriptive standards and performance standards are more specific than tort liability rules.68″ [p. 1218]

” Consequently, a product manufacturer may be held civilly liable as a matter of law for injuries caused by its failure to comply with applicable safety standards.’ It should be noted, however, that some courts conclude that noncompliance merely creates a presumption of negligence.182 Courts treat compliance with government safety standards somewhat differently than they treat noncompliance with such standards. Section 288C of the Restatement (Second) of Torts provides that compliance with a legislative enactment or an administrative regulation does not preclude a finding of negligence in cases where a reasonable person would take additional precautions.‘ 183 Most states appear to follow the Restatement’s approach in negligence cases. Thus, compliance with safety regulations is generally considered to be some evidence of due care,184 but it is seldom conclusive. 185

B. Effect of Compliance with Federal Product Safety Standards Ordinarily, regulatory compliance is treated the same in product liability cases as it is in negligence cases. Although there are some exceptions, 186 most courts agree that federal safety regulations are relevant evidence in products liability cases.187 On the other hand, few courts are willing to give much weight to such statutes. Instead, most have concluded that compliance with federal safety standards is merely evidence that a product is not defective, effectively allowing juries to substitute their judgment for that of a regulatory agency.”‘ 188″ [pp.1240-1242]

National Traffic and Motor Vehicle Safety Act.-A number of courts have concluded that compliance with federal motor vehicle safety standards does not foreclose tort liability.2″ 1 Dawson v. Chrysler Corp. 202 is illustrative. In Dawson, the plaintiff alleged that the defendant’s automobile was designed defectively because it did not have a continuous steel frame.2 °3 Chrysler maintained that its design was adequate because it complied with applicable federal safety standards.20 4 The court, however, relied upon a provision of the National Traffic and Motor Vehicle Safety Act, which expressly preserved tort claims against automobile manufacturers.205 In the court’s view, this authorized tort liability even though manufacturers complied with motor vehicle safety standards.206″ [pp. 1243-44]

Dorsey v. Honda Motor Co.207 involved a claim for punitive damages by the owner of a subcompact automobile who was injured when his vehicle collided with a larger car.208 The trial court concluded that compliance with federal motor vehicle standards precluded an award of punitive damages because it negated the element of recklessness as a matter of law. 209 The court of appeals observed, however, that the NTMVSA expressly preserved common-law tort claims. 210 The Dorsey court also relied on the Restatement (Second) of Torts to conclude that “compliance with regulatory standards. .. does not require a jury to find a defendant’s conduct reasonable.” 211 If compliance with a federal regulatory standard did not automatically cause defendant’s conduct to be considered reasonable, the court reasoned that it could be reckless, thereby justifying an award of punitive damages. 212″ [p.1244]

“Ordinarily, the best way to determine if a strong regulatory compliance defense should be adopted is to compare costs and benefits. If the benefits of a strong regulatory compliance defense exceed its social costs, the defense should be adopted. If the opposite is true, the regulatory compliance defense should be rejected. . . On the benefit side, a strong regulatory compliance defense will provide manufacturers with specific and uniform standards to follow. . . On the loss side, the lessening of tort liability would deprive manufacturers of some incentive to invest in product safety. Consequently, products would become more dangerous and product-related accidents would increase accordingly. . . ” [p. 1265]

(Note: Emphasis is mine.)

Read more here: http://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1488&context=law_facpub

Rebekah photo of crash

https://www.fortrucksafety.com/

Mary’s Prayer

Mary's Prayer

A prayer written by Mary Lydia Karth (age 13), Spring 2013

August 6, 1999 — May 8, 2013

 

“Saving lives in road traffic—ethical aspects”

Saving lives in road traffic—ethical aspects
Jessica Nihlén Fahlquist

Z Gesundh Wiss. 2009 Dec; 17(6): 385–394.
Published online 2009 Apr 9. doi: 10.1007/s10389-009-0264-7

“In transportation as well as in health care, people die and are prevented from dying due to actions and omissions of individuals as well as functioning and dysfunctional systems and policies. Accordingly, a continuous ethical discussion concerning road traffic is needed. The areas discussed in the following are criminalisation, paternalism, privacy, justice and responsibility.1 The reasons for this focus is that these are five important areas in moral philosophy and together they provide a rough list according to which many of the more specific ethically relevant issues arising in traffic safety can be categorised.”

Read the whole article essay here:  http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2967260/

Lengthy read, but very good at raising pertinent questions regarding the ethics of road safety liability.

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“The effect of state regulations on truck-crash fatalities.”

From a 2009 research article, “The effect of state regulations on truck-crash fatalities.“:

“Truck-length limitations reduced fatalities in crashes involving large trucks. Our model estimates suggested that if all states had adopted a speed limit of 55 miles per hour for all vehicles in 2005, an additional 561 fatalities would have been averted.”

http://www.unboundmedicine.com/medline/citation/19150907/The_effect_of_state_regulations_on_truck_crash_fatalities_

Think how much space it would take up to tell the stories of those 561 people. . .

How many people have needlessly died due to the failure of states to adopt proven traffic safety laws?

Why on earth don’t we establish National Traffic Safety Standards & require them to be adopted by States?

Related Citations:

  1. Underride safety protection: benefit-cost assessment of rear-impact guards for the North Dakota farm truck fleet.  http://www.unboundmedicine.com/medline/citation/19333831/Underride_safety_protection:_benefit_cost_assessment_of_rear_impact_guards_for_the_North_Dakota_farm_truck_fleet_
  2. Potential benefits of underride guards in large truck side crashes.  http://www.unboundmedicine.com/medline/citation/23137090/Potential_benefits_of_underride_guards_in_large_truck_side_crashes_
  3. Estimating side underride fatalities using field data.  http://www.unboundmedicine.com/medline/citation/24406960/Estimating_side_underride_fatalities_using_field_data_
  4. Evaluation of US rear underride guard regulation for large trucks using real-world crashes. http://www.unboundmedicine.com/medline/citation/21512906/Evaluation_of_US_rear_underride_guard_regulation_for_large_trucks_using_real_world_crashes_
  5. A recommended specification for heavy vehicle rear underrun guards.  http://www.unboundmedicine.com/medline/citation/17113017/A_recommended_specification_for_heavy_vehicle_rear_underrun_guards_
  6. Biomechanics of under ride motor vehicle crashes.  http://www.unboundmedicine.com/medline/citation/17487053/Biomechanics_of_under_ride_motor_vehicle_crashes_
  7. [Motor vehicle accidents with entrapment. A medical and technical investigation of crash mechanism, injury pattern and severity of entrapment of motor vehicle occupants between 1983 and 2003].  http://www.unboundmedicine.com/medline/citation/17180605/[Motor_vehicle_accidents_with_entrapment__A_medical_and_technical_investigation_of_crash_mechanism_injury_pattern_and_severity_of_entrapment_of_motor_vehicle_occupants_between_1983_and_2003]_
  8. The facial-bone fractures among fatally injured car occupants in frontal collisions. http://www.unboundmedicine.com/medline/citation/19264531/The_facial_bone_fractures_among_fatally_injured_car_occupants_in_frontal_collisions_ & our crash injuries: http://www.regulations.gov/#!documentDetail;D=NHTSA-2015-0070-0018

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Why on earth don’t we establish National Traffic Safety Standards & require them to be adopted by States?

Thanks to the wonders of modern technology, I was able to watch a live-stream press conference yesterday from the comfort of my home. As a result, I was enlightened about the STATE OF SAFETY in our country. We are acting like the individually-united states are just that–individual. Acting like they need to have control over decisions about what SAFETY measures should be required in their individual states.

In disregard of the abundantly-available wonders of modern safety technology, what we are really doing is increasing the likelihood that INDIVIDUALS in their states will experience DEATH BY MOTOR VEHICLE!

Advocates for Highway & Auto Safety held a press conference yesterday at which they released their 13th annual Roadmap of State Highway Safety Laws–outlining the 319 proven safety laws which many states have not adopted, including such things as seat belt usage, motorcycle helmet laws, impaired driving, child passenger safety, teen graduated licensing laws, and distracted driving.

I was alerted to the upcoming event by Lou Lombardo of Care for Crash Victims. He sent out this notice:

Report to be released tomorrow from Advocates for Highway and Auto Safety titled “Missing”.

Missing refers to State Safety Laws missing in each State.

Buried in the State summaries are statistics on the number of people who died of crash injuries in each State for the past 10 years. Add them up and we find that 362,532 Americans are “missing” i.e., lost their lives due to vehicle violence over the 10 year period.

Using NHTSA figures of estimated injuries nearly 1.5 million additional people suffered serious injuries in America over the 10 year period. These people are also “missing” – i.e., not counted.

Using DOT values of $9 million in comprehensive costs per fatality, America “missing” losses would be valued by DOT to be about $3 trillion.

Roadmap reports

Why would we think that proven safety measures should be left up to the individual states to determine whether or not to require their use? Is this a matter of personal freedom? Do we think that we are trampling on citizens’ individual rights? Do we think that we need to give them CHOICE in this matter?

Do we need to let individuals become informed and make their own decisions on what would or would not be a good idea for them? Would their choice impact only them and them alone? Is that really what we think and how we choose to govern our country?

Is it the duty of the federal government to protect its citizens from crash deaths & serious injuries? I happen to think so: http://annaleahmary.com/2016/01/is-it-the-duty-of-the-federal-government-to-protect-its-citizens-from-crash-deaths-serious-injuries/.

And if that is, in fact, the case, then why not establish national safety standards and require them to be adopted by states? I know, from the aftermath of our crash, that there are already certain federal highway safety standards which states are required to adopt as is.

For an example of this, see FMCSA’s COMPATIBILITY OF STATE LAWS AND REGULATIONS AFFECTING INTERSTATE MOTOR CARRIER OPERATIONS  https://www.fmcsa.dot.gov/regulations/title49/part/355.

Why not do the same for all of those 319 proven SAFETY LAWS alluded to by Advocates for Highway & Auto Safety? Mandate that all states adopt them as well. Why have each state struggle to re-invent the wheel and wade through all of the research (or try to do the research themselves) when we could gather all of the resources needed to design SAFETY Laws at the national level?

See how we are doing that kind of collaborative effort to obtain the best possible truck underride protection:

To not do so is to cause untold delays in bringing about SAFER travel on our roads. In my estimation, to continue to travel down this road of Individual State Safety Laws, is to knowingly sentence to DEATH BY MOTOR VEHICLE countless members of our families and communities today and in all the days to come.  That is plain and simple criminal negligence.

Reckless Driving & Criminal Injustice: One More Grief For Victims to Bear

And, on top of what I have already said, I would like to add that once safety measures are mandated, then I think that there should be criminal penalties for not adhering to those laws. There should be fines for violation of traffic safety laws. And, if breaking those laws leads to death or serious injury, then the lawbreaker should be held accountable, charged with RECKLESS criminal action, and receive appropriate consequences.

I am no legal expert and cannot begin to delineate exactly how it should be  handled. But when I looked up the word reckless, I found reference to the term reckless endangerment , which has been described like this:

In Tennessee, a person may be convicted of the crime of Reckless Endangerment if the state prosecutor proves beyond a reasonable doubt that the person:

  1. Recklessly engaged in conduct;
  2. That placed or may have placed a person;
  3. In imminent danger of death;
  4. Or serious bodily injury.

The term reckless, as it is used here, means that a person was aware of, but consciously disregarded, a substantial and unjustifiable risk that his conduct would place another person in imminent danger of death or serious bodily injury. 

http://www.tndui.com/criminal-defense/knoxville-felony-offense-lawyer/knoxville-reckless-endangerment-lawyer/

Just yesterday, I saw an example of car owners choosing to not use a safety measure–lane departure warning devices, which apparently can be quite annoying (a glitch which could quite probably be remedied). If use of this safety technology becomes mandated, then those who choose to disregard the law should be charged with any resulting DEATH BY MOTOR VEHICLE.

And, while we are at it, let’s inform and train our citizens from an early age that a vehicle is not a toy and that their driving behavior impacts those around them big time:  https://www.facebook.com/EndDistractedDrving/photos/a.316429631751037.73716.141583792568956/994168863977107/?type=3&fref=nf. We should take a clue from a Jimmy Stewart-narrated 1954 driver safety film:

This, of course, brings up the need to have automakers provide safety devices as standard not optional equipment–at an affordable price for all. And for older vehicles, offer discounts for retrofitting them where possible:

Why am I being so vocal about this issue? Because I do not want thousands upon thousands of family members to receive death certificates in the mail for loved ones whose deaths could have been prevented by this country acting in a timely and morally responsible manner.

certificates and pens 010

This issue of mandating national traffic safety standards to be adopted by states adds one more practical application to my recommendations for a National Vision Zero Goal and Vision Zero Executive Order.

Check out the details of our Vision Zero Petitions here: http://annaleahmary.com/2016/01/adopt-a-national-vision-zero-goal-save-lives-not-dollars/

Maybe I need to get going and launch a new petition calling for federal safety laws to be adopted by all states–including proven means for moving Towards Zero Crash Deaths & Serious Injuries and in a timely manner.  https://www.fmcsa.dot.gov/regulations/title49/section/350.107 & http://www.statesman.com/news/news/local/after-deadly-traffic-year-austin-to-join-national-/nqCgq/

To do so would be honoring the memory of not only our daughters, AnnaLeah (forever 17) and Mary (13) who died due to a potentially-preventable truck underride crash, but also my ancestor, Resolved Waldron, who came to New Amsterdam in 1654, established a home on Broadway near Wall Street http://tinyurl.com/hlpu2mx, and “His conscientious exactness in performing his duties [as deputy sheriff] made him a favorite with Governor Stuyvesant.”  http://www.eroots.net/docs/Waldron%20public.pdf May we always be a nation diligent to protect our citizens.

Is it the duty of the federal government to protect its citizens from crash deaths & serious injuries?

Advocates for Highway & Auto Safety held a press conference today which I watched live-stream. They released their 13th Roadmap of State Highway Safety Laws–outlining the 319 proven safety laws which many states have not adopted, including such things as seat belt usage, motorcycle helmet laws, impaired driving, child passenger safety, teen graduated licensing laws, and distracted driving.

Roadmap reports

I submitted several questions online, and they replied to this one: “What is causing resistance to these laws being adopted?”

The reply: lobby groups, laws getting stalled in committee. Joan Claybrook encouraged the public to get involved because it can make a difference.

I also asked the question: “How might a National Vision Zero Goal overcome the problem of looking at safety measures in terms of states rights? Establish national safety standards and require them to be adopted by states.”

The reply was a simple: Setting goals is not enough.

No, setting goals is not enough. Which is why, in my efforts to push for Vision Zero, I have clearly laid out specific means of practical implementation. And it is why I have called for President Obama to set a Vision Zero Goal and follow it up with a very detailed Vision Zero Executive Order which will give DOT the authority to implement a Vision Zero rulemaking policy. Purpose: to move things along faster and with more teeth to save the most lives possible.

Check out the details of our Vision Zero Petitions here:  http://annaleahmary.com/2016/01/adopt-a-national-vision-zero-goal-save-lives-not-dollars/

But I don’t think that all of my question was really addressed. Isn’t it a role of the federal government to protect its citizens? Is the federal government protecting its citizens from Death by Motor Vehicle?

Would it not make sense for these proven laws to be made Federal Law and that adoption of them by every state in the nation be mandated? Is not anything less abdicating from the responsibility to protect its citizens?

As far as I am concerned, it is not violating individual rights to mandate safety measures which are proven to protect individual citizens by saving their lives. What is stopping us from doing so?

Why should states waste time (Read that as LOSE MORE LIVES) re-inventing the wheel and crawling through the red tape and battling the lobbyists who only care about their pocketbook?

NHTSA Administrator Mark Rosekind made the point today that the number of crash deaths in our country have gone up at least 8.1% (maybe more) in 2015 from the 32,675 people who lost their lives on the roads in 2014. And we don’t want to rise up and say, “Enough is enough!”?

Example of state laws being compatible with federal regulations:  COMPATIBILITY OF STATE LAWS AND REGULATIONS AFFECTING INTERSTATE MOTOR CARRIER OPERATIONS,

Petition screenshot 021

Petition screenshot 001

 

 

“Eight emerging technologies to watch”

“A recent report by Volpe, the DOT’s the National Transportation Systems Center, identifies emerging technologies that may have significant impacts on U.S. and global transportation systems within three to five years. And most of these will find their way into—or become a replacement for—trucks and trucking.”

by in Running Lights  Jan 28, 2016

http://fleetowner.com/blog/eight-emerging-technologies-watch

Front underride 002

“Fatigue and the criminal law.”

Should Driving While Fatigued be considered RECKLESS or NEGLIGENT when a person is driving an 80,000 lbs. death machine? Not a new question. Deserves an answer.

“Fatigue is an increasingly recognised risk factor for transportation accidents. In light of this, there is the question of whether driving whilst fatigued should be a criminal offence. This paper discusses the current legal position, including the problems of voluntary conduct and self awareness. Three models for reform are proposed. The manner in which scientific research can inform legal consideration and future directions for research are discussed.”

Ind Health. 2005 Jan;43(1):63-70.

http://www.ncbi.nlm.nih.gov/pubmed/15732306

Other related studies:

  1. “Fell asleep and caused a fatal head-on crash? A case study of multidisciplinary in-depth analysis vs. the court. http://www.ncbi.nlm.nih.gov/pubmed/19214881
  2. “Convicted of fatigued driving: who, why and how? ”  http://www.ncbi.nlm.nih.gov/pubmed/19540978
  3. “[Tiredness and sleepiness in bus drivers and road accidents in Peru: a quantitative study].”  http://www.ncbi.nlm.nih.gov/pubmed/15333261
  4. “Modern medicine is neglecting road traffic crashes. ” http://www.ncbi.nlm.nih.gov/pubmed/23776413
  5. “Acute cannabis consumption and motor vehicle collision risk: systematic review of observational studies and meta-analysis.”  http://www.ncbi.nlm.nih.gov/pubmed/22323502
  6. “Psychomotor vigilance testing of professional drivers in the occupational health clinic: a potential objective screen for daytime sleepiness.”  http://www.ncbi.nlm.nih.gov/pubmed/21826029
  7. “Visual vigilance in drivers with obstructive sleep apnea.”  http://www.ncbi.nlm.nih.gov/pubmed/19616141

If a truck driver is prone to drive drowsy, what is the logical strategy to make him/her a safer driver? Forbid driving commercially? Require technology to alert to sleepiness? Convict of a reckless criminal offense if not used and a crash results leading to death or serious injury?

What Hours of Service (HOS) rules would make the most sense?

And ENFORCEMENT is oh so very important. In our crash, the Crash Report said, “No Medical Card found.” Yet, was any further mention made of this or investigation done into this? Not that I am aware of.

Driving While Fatigued = DWF = A Public Health Problem

IMG_4491

“Despite Plenty of Anti-Sleep Gadgets, Truckers Still Fall Asleep at the Wheel”

A long article from the perspective of some truck drivers on the fatigue that tends to occur when driving for a living. . . http://motherboard.vice.com/read/despite-plenty-of-anti-sleep-gadgets-truckers-still-fall-asleep-at-the-wheel .

Imagine being the one who fell asleep at the wheel and killed someone as a result. Drowsy driving is too often ignored until it’s too late.  Let’s do a better job of solving this problem, America.

DWF = Driving While Fatigued

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