In TROY MITCHELL v. FAYETTEVILLE PUBLIC UTILITIES, the trial court awarded workers’ compensation benefits to an injured lineman who had violated a rule requiring the use of protective gloves while in a bucket lift. The employer appealed, contending that the statutory defenses of willful misconduct and, more particularly, the willful failure or refusal to use a safety appliance or device precluded recovery. The appeal was referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact and conclusions of law in accordance with T.C.A. Sec. 50-6-225(e)(3) (2008). After oral argument before the Panel, but before the Panel filed its opinion, the case was transferred to the full Court. Because the evidence established that the employee admitted his knowledge of a regularly enforced safety rule, understood the rationale for the rule, and willfully (rather than negligently or recklessly) failed to comply, the injuries he suffered because of the rule violation were found not compensable by the Supreme Court. The judgment of the trial court was reversed and the case was dismissed. This is another scary decision from the Supreme Court on this issue. We fear it will only encourage more claims of wilfull violation of safety rules by employers, who frequently pressure employees to take short cuts while maintaining a facade of written safety rules.
Category Archives: General
US Transportation Secretary Ray LaHood is pushing for a national law banning the use of cell phones while driving. While speaking at an anti-distracted driving summit, in San Antonio,which was attended by medical personnel, government officials, and safety advocates, LaHood characterized distracted driving as a “national epidemic” and said that a federal ban would be the way to prevent it. LaHood said that he doesn’t think other distracting behavior, such as eating or applying make-up, should be banned by the federal government since “not everyone does that.” LaHood added, “But everyone has a cell phone and too many of us think it is OK to talk on our phones while we are driving.”
New survey finds distracted driving a growing problem. WRC-TV Washington (4/26, Wilkins) reported on its website, “New statistics from the NTSB show just how big of a problem distracted driving in work zones really is in the Washington region.” A new survey released “by Transurban-Fluor, in partnership with AAA Mid-Atlantic, shows that 40 percent of drivers in work zones use their cell phones.” NTSB Chairman Deborah Hersman commented, “NTSB issued a recommendation last December recommending to states that they ban talking or texting on the phone while behind a wheel, except for emergency situations.”
The Washington Post (4/26, Halsey) reports, “With miles of highway construction underway in Northern Virginia, the region’s police officers say work-zone accidents have increased dramatically because drivers are using mobile devices to talk or text.” A new survey by AAA and Transurban “of 409 police officers who patrol Northern Virginia’s roadways, found that cellphone use was to blame in one in three work-zone accidents.” Approximately “80 percent said banning cellphone use behind the wheel would dramatically reduce road accidents.” The article also notes last year’s recommended ban on all cellphone use while driving from the NTSB.
In a recent decision from the Tennessee Workers Compensation Panel, Keith v. Western Express (2/16/12) , a truck driver who says he was ordered to deliver a load in California by a certain time was denied workers compensation benefits because he violated Federal Motor Carrier Safety Regulations governing hours-of-service while trying to get there on time. He apparently went to sleep at the wheel and wrecked his truck in New Mexico. The driver presented the case as an example of damned if you do and damned if you don’t. The driver felt that he would have been fired or disciplined for being late. But, it was clearly impossible for him to have made the delivery deadline and not violated the hours-of-service rules. When the wreck occurred, he had driven over 36 hours without a 10 hour break, according to the on-board Qualcomm system.
There is no excuse for a truck driver falling asleep at the wheel of a loaded tractor-trailer, and now Tennessee may deny workers compensation benefits to drivers who are injured while violating Federal Motor Carrier Regulations, provided there is a causal connection between the violation and the injury.
On March 1, 2012, a Hamilton County jury returned a verdict of $40,651.78 in Circuit Court in favor of Plaintiffs, Phyllis and Rick Bradley. Phyllis had been struck in the head by a falling stroller at the Toys R Us store on Highway 153 in Chattanooga on September 2, 2008. Toy R Us admitted liablity but contested the nature and extent of injury. She suffered from head pain and burning on her head, with electrical like zaps. The medical term for these conditions is posttraumatic injury to the nerve, scalp region which is resulting in the abnormal dysesthesias, paresthesias, with characteristics of complex regional pain syndrome, according to Dr. David Rankine. Hu Hamilton and Patrick Cruise represented the Plaintiffs in Phyllis A. Bradley and Richard Bradley v. Toys “R” Us – Delaware, Inc. 09C957.
The Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines, and other transportation industries. Mandatory drug testing is required for five specific categories of drugs (referred to as the SAMHSA 5, previously called the NIDA-5):
1. Cannabinoids (marijuana, hash)
2. Cocaine (cocaine, crack, benzoylecognine)
3. Amphetamines (amphetamines, methamphetamines, speed)
4. Opiates (heroin, opium, codeine, morphine)
5. Phencyclidine (PCP)
There is an emerging trend with some of the more safety orriented trucking companies like JB Hunt, Schneider, C.R. England, Roehl Transport, Gordon Trucking, that have replaced the DOT required urine test with the radioimmuneassay of hair (RIAH) test, commonly known as hair testing.
Hair testing is more expensive, so why are some companies using it? Hair testing reveals 12 times more positive tests, or failures, than urine testing. Experts report that illegal drugs can be detected in hair for upwards of 90 days. Not only does hair testing give a longer window of detection, detecting drug users who abstain for a short period of time, but there is an inability to tamper with the test, unlike mandatory urine testing. Currently, there are no known adulterants for hair tests. Since hair tests analyze the drugs inside the hairshaft, external contaminants/chemicals have no effect.
The small percentage of carriers utilizing hair testing are more readily and accurately identifying illegal drug users. In the long run, they are probably saving millions of dollars and keeping drug users out of their trucks, thereby reducing the number of catastrophic wrecks on our highways.
Lawyers in all states, including Tennessee and Georgia, are governed by a set of rules regarding conduct, ethics, and professionalism. Subject to certain specific exceptions, it is generally inappropriate for a lawyer to “solicit” business from “specifically identified persons.” In other words, the client is supposed to choose a lawyer, instead of the lawyer choosing the client. Nevertheless, a very small number of lawyers obtain police accident reports in an attempt to identify individuals injured in car wrecks. Once those individuals are identified, a letter from the law firm is sent to the accident victim in an attempt to obtain business. In Tennessee, the Rules of Professional Responsibility permit such communications if the lawyer has a familial or prior professional relationship. In all other cases, such communications (solicitation) shall not be sent until more than 30 days have passed since the accident or disaster occurred. If you are contacted by an attorney immediately after you have been injured in a wreck, it is possible that you are being improperly solicited by a lawyer that is disregarding the rules of professionalism that govern lawyers. Do you want that law firm representing you? Improper solicitation is an unsavory practice that should not be tolerated.
New hours of service regulations for truck drivers have failed to reverse the 2003 change by the Bush administration increasing to 11 hours the time drivers can be behind the wheel each day. The new rules by the Federa Motor Carrier Safety Administration, 49 CFR §395.3, offer some improvements, including a shorter work week and a required 30-minute rest break after eight hours on duty. For nearly 70 years, the limit had been 10 hours, until the 2003 change.
“It’s no secret that truckers often drive when they’re tired. In a 2005 survey the agency commissioned, 65% of truckers reported they sometimes or often felt drowsy while driving. And nearly 48% said they had actually fallen asleep while driving during the previous year. Putting weary drivers behind the wheels of 40-ton rigs hurtling down interstates is a formula for tragedy.”
The foregoing is a good quote from a commentary on the change, or lack thereof, appearing in USA Today, entitled, “New Transportation Rules Fall Short.” The full article can be viewed at:
The Final Rule on hours of service can be reviewed at http://www.fmcsa.dot.gov/documents/hos-final/HOS-Final-Rule.pdf
Plaintiff, Norma O’Neal, was interviewed for an article entitled “Christmas tree fires rare but destructive” which appeared on the front page of the Chattanooga Times Free Press on Saturday, December 17, 2011. Norma has only a small artifical Christmas tree on the table in her rental house this year, but it is the first Christmas tree she has had since her home burned down two years ago, just two weeks before Christmas 2009. The 2009 fire started at the Christmas tree she had just put up the night before. The article quotes Chattanooga Fire Department spokesman, Bruce Garner, who explains what can happen when a Christmas tree catches fire: ” . . . it can be catastrophic. It generates an incredible amount of heat and flames in seconds.” Although Norma won her case against Nationwide in November, with a jury verdict totaling $784,676, she has “yet to receive a dime” as Nationwide has filed for a new trial. Norma has lived in five different places in the past two years, including two motels, and the article concluded with her statement that “It has been a terrible ordeal.”
The Hamilton Firm reminds everyone to be very careful with real Christmas trees. As beautiful as they are, they can explode like a firebomb inside your home, if the tree ever catches on fire. Keep the tree branches away from electrical outlets and unplug the lights from wall when the tree is unattended. Keep the tree far away from heaters and fireplaces. And, keep the water resovoir full.
Drivers of large commercial vehicles will soon be specifically prohibited from using hand-held cell phones while operating their vehicles. The joint rule from the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Safety Administration (PHMSA) is the latest action by the U.S. Department of Transportation to end distracted driving. “When drivers of large trucks, buses and hazardous materials take their eyes off the road for even a few seconds, the outcome can be deadly,” said Transportation Secretary Ray LaHood in a statement. “I hope that this rule will save lives by helping commercial drivers stay laser-focused on safety at all times while behind the wheel.” The final rule prohibits commercial drivers from using a hand-held mobile telephone while operating a commercial truck or bus. Drivers who violate the restriction will face federal civil penalties of up to $2,750 for each offense and disqualification from operating a commercial motor vehicle for multiple offenses. Additionally, states will suspend a driver’s commercial driver’s license (CDL) after two or more serious traffic violations. Commercial truck and bus companies that allow their drivers to use hand-held cell phones while driving will face a maximum penalty of $11,000. Approximately four million commercial drivers would be affected by this final rule.
“This final rule represents a giant leap for safety,” said FMCSA Administrator Anne S. Ferro. “It’s just too dangerous for drivers to use a hand-held cell phone while operating a commercial vehicle. Drivers must keep their eyes on the road, hands on the wheel and head in the game when operating on our roads. Lives are at stake.” While driver distraction studies have produced mixed results, FMCSA research shows that using a hand-held cell phone while driving requires a commercial driver to take several risky steps beyond what is required for using a hands-free mobile phone, including searching and reaching for the phone. Commercial drivers reaching for an object, such as a cell phone, are three times more likely to be involved in a crash or other safety-critical event. Dialing a hand-held cell phone makes it six times more likely that commercial drivers will be involved in a crash or other safety-critical event.
In September 2010, FMCSA issued a regulation banning text messaging while operating a commercial truck or bus and PHMSA followed with a companion regulation in February 2011, banning texting by intrastate hazardous materials drivers. “Needless injuries and deaths happen when people are distracted behind the wheel,” said PHMSA Administrator Cynthia Quarterman. “Our final rule would improve safety and reduce risks of hazmat in transportation.” Nearly 5474 people died and half a million were injured in crashes involving a distracted driver in 2009. Distraction-related fatalities represented 16 percent of overall traffic fatalities in 2009, according to National Highway Traffic Safety Administration (NHTSA) research.
Many of the largest truck and bus companies, such as UPS, Covenant Transport, Wal-Mart, Peter Pan and Greyhound already have company policies in place banning their drivers from using hand-held phones.
The final rule is published at http://www.fmcsa.dot.gov/rules-regulations/administration/rulemakings/final/Mobile_phone_NFRM.pdf
On Wednesday afternoon, November 9, 2011, a Hamilton County jury returned a $784,676.65 verdict in Circuit Court in favor of Norma O’Neal, whose Chattanooga home at 1706 Estrellita Circle went up in flames just two weeks before Christmas Day in 2009. Hubert Hamilton and Patrick Cruise served as trial counsel for the Plaintiff.
Mrs. O’Neal had just set up her Christmas tree the night before. It was a real tree, not artificial. She had wrapped the tree with strings of electric lights, and adjusted and rotated her tree so it was positioned just right. She decided to finish the rest of her decorating later. She unplugged the lights from an extension cord plugged into the wall and went to bed. The next morning she went in to work at Blue Cross Blue Shield, where she is employed as a nurse. It was a normal work day until 4:00 p.m. when she got the call that her house was on fire. She rushed home and found the fire department busy extinguishing the fire. The fire had started in the corner of her living room where the Christmas tree had stood. All that remained of the Christmas tree was the charred trunk with strands of lights wrapped around it. The living room, including some irreplaceable family antiques, was destroyed.
Later that evening the fire rekindled in a wall, and broke out again causing additional damage to the upper floor of the home, and into the attic. Initially, the cause of the fire was listed as “undetermined”.
Mrs. O’Neal had a home owners’ policy with Nationwide. As she began to document her losses and provide records to document her claim, Nationwide was investigating the fire. By April, her claim against Nationwide for replacement of her home and contents was denied. Nationwide contended that the fire had been intentionally set by a family member in the vicinity of the Christmas tree.
Mrs. O’Neal was forced to file suit against Nationwide to recover her losses. An expert fire investigator, Jeff Morrill, re-examined the fire scene on her behalf and found evidence of an electrical event occurring at a receptacle on the wall adjacent to the Christmas tree. Investigators for the City of Chattanooga and Nationwide Insurance had missed or overlooked a melted copper plug blade in the receptacle and had also failed to realize that the circuit breaker controlling that receptacle had tripped at the time of the fire. The Plaintiff’s fire investigator concluded that an accidental electrical event started the fire in the Christmas tree.
During the jury trial, Mr. Morrill explained to the jury that once a Christmas tree starts burning, it can be completely engulfed in flames in a matter of seconds. High temperatures are reached very quickly and the fire can then flash over to nearby furniture and furnishings. Within seconds the entire room can be consumed in flames.
Despite the evidence of an electrical event at the receptacle adjacent to the Christmas tree, Nationwide continued to contend that the fire was intentionally set by a member of the family. After hearing all of the evidence, the jury concluded otherwise and returned a verdict for Mrs. O’Neal in the full amount submitted for the house, contents and additional living expenses. In addition, the jury found that Nationwide had acted in bad faith and awarded an extra 18% as a penalty, and included pre-judgment interest of 10%.
As a result of this 2009 Christmas tree fire, Norma O’Neal and her family have been without a home for nearly two years. The favorable jury verdict will enable her to rebuild her home and begin putting her life back together. O’Neal v. Nationwide was tried before Judge Neal Thomas, Div. IV, Circuit Court of Hamilton County, Tennessee.