c. 2005, jpb, all rights reserved, [email protected] safety and litigation management agta 2007 a...

C. 2005, JPB, all rights reserved, [email protected]

SAFETY SAFETY AND AND

LITIGATION MANAGEMENTLITIGATION MANAGEMENT

AGTA 2007A Presentation By Jack Burkert


Examining the problem Examining the problem

The stacked deck- target defendant!

Exposure- Fifty people may have you in their sights

How do we protect ourselves?Safety program effectiveness-

– Can we really stop losses


How to cope…How to cope…

Know the rules of the “Game”Know your own weaknessesUnderstand industry loss trendsUnderstand how safety programs

best workEstablish countermeasuresDocument what you do


Drivers make financial Drivers make financial decisionsdecisions

Every time they---– drive through a yellow light– speed up rather than slow down– argue with another party

AND, the decisions they make cannot be reversed- you are stuck with them


Case studyCase study

It is well after midnight….our driver has been at the wheel for several hours and is moving with traffic on a major interstate highway….

At about 3:30am, the driver begins to have trouble staying awake….following vehicles see him “drift” several times

The vehicle leaves the highway and strikes a light stanchion, runs into a ditch and lays onto its side


FatigueFatigue

A real – not imaginary - problemMay be induced by sleep

deprivation, physical condition, medication

Target area for plaintiffsResponse area for motor carriersHours of service violations



Our driver spots his green traffic light, but notes a car coming from the right at high speed

Our driver fails to slow or prepare to stop, assuming the other guy will stop for him

The adverse car runs the traffic light, into the intersection where he strikes our car and several others, injuring three


Safe drivingSafe driving

How well is your driver trained?How often is your driver trained?How often are check rides

conducted?What records do you have?Failure to train drivers is a target

area:Negligent entrustment?



The bus driver is attempting a left turn in a highly congested city intersection

A pedestrian crossing with the walk light is struck by the left front corner of the bus, as the bus turns left

As the comatose individual is removed from the scene, the bus driver states he never saw the individual


Attentive driving?Attentive driving?

What counts is what the passengers say in testimony!

Diversions of attention are always suspected– Cell phones, text messages, conversations

each qualify as diversions A clear look out is demanded

– Constant vigilance is the standard we have to meet


Some industry dataSome industry data

Learn from the mistakes of others


Claims history by descriptionClaims history by description

The top two most critical claims - Driving– Rear end the vehicle ahead 9.3%– Left turn collision 5.6%

These claims account for 15% of the events, and 31% of the dollars



Passenger and pedestrian claims are infrequent, but very serious when they occur

Frequency and severity– Passenger injury off the bus .3 % – Pedestrian knockdown .9%– Costs of these two 21%



The top three most frequent claims– Hit parked vehicle 13.3%– Sideswipe 12.0%– Backing 9.6%

These claims account for 35% of the events, but only 9% of the dollars


About the drivers involved...About the drivers involved...

Evaluating 2970 claimsDrivers with ONE loss: 2334Drivers with TWO losses: 451Drivers with THREE losses: 123Drivers with FOUR losses: 42Drivers with FIVE losses: 15


About the drivers involved...About the drivers involved...

What does that first claim typically cost?– $4,839

What does that third claim typically cost?– $11,283

What does that fifth claim typically cost?– $16,577


Liability thoughtsLiability thoughts

How is liability assigned?


The liability may be The liability may be yours…yours…

Negligence can occur in many ways– Driver errors, poor training, improper

entrustment, inadequate oversight, failure to maintain safe equipment

Contributory and comparative negligence – You may pay a settlement in cases where you

have minimal contribution to the events Standard of care

– Maintain the highest degree of care– Know what is expected from a professional


NegligenceNegligence

No negligence

Negligence

Gross negligence

Driver and company error and violation free

Driver error or violation, company failure of some kind

Prior awareness, failure to control, direct contribution to the events


After the crash- LitigationAfter the crash- Litigation

Lawsuits will likely be filedNever “Hold” lawsuit papersThe dilemma: the driver as friend

or foe– Terminate or not, that is the question


Litigation realitiesLitigation realities

Be careful what you say, do and write– Everything written is discoverable– Everything your driver says can and will be

used in court

You have no friends– Litigation creates enemies where there were

none, – Litigation creates friendships of convenience– Expect all of the dirty laundry to get washed


Litigation MUST DO’sLitigation MUST DO’s

Prepare your organization for a loss– Driver training– Crisis plan

After the loss– Respond to the loss scene– Protect all relevant documents– Use caution in writing reports and findings

And for trial– Seek and listen to attorney guidance– Speak only the truth


Lowering exposureLowering exposure

In safety and litigation


Litigation mitigation stepsLitigation mitigation steps

Maintain records of all safety activity– Document driver qualification– Record safety interventions

Train drivers in safety– Show how to drive safely, then repeat– Safety meetings at least quarterly


Litigation mitigation stepsLitigation mitigation steps

Stay legal all of the time– Taxes and licenses, fees and

assessments– Respond to regulatory change– Audit driver hours, logs, schedules

Add technology– GPS, Lane departure, anti-rollover tools– Watch the double edged sword!


Loss preventionLoss prevention

Make safety the highest priority – Establish employee behavior standards and

train all personnel to meet them– Accept no conduct that is inconsistent with

that goal Establish and operate an effective, well

supported loss control program– Monitor performance, establish quality

checks, and establish appropriate employee incentives



Take regulatory compliance seriously– Enforce all rules, audit all processes

Never give driver’s credit for knowing things, – Make them prove it, train them, then test and re-

test Recordkeeping is critical

– Track every vehicle’s repairs, all work and parts– Track every drivers qualification– Track every training session and those attending



Maintain a competent training program– Fatigue– “What to do” if…– Crash scene conduct and actions– ADA training– EPA training– OSHA training


Solutions: Solutions: Passenger incidentsPassenger incidents

– Manage pick up and drop points– Standardize mirrors– Add-on guards and devices– Announcements: Passenger

awareness– Driver concentration and patience


Solutions: Solutions: Unsafe followingUnsafe following

– Driver risk recognition– Driver training in safe following

standards– Driver attitude and patience– Conduct check rides at least annually– Ongoing observation and supervision– Systematic rewards and penalties


Solutions: Solutions: Distracted or fatigued driverDistracted or fatigued driver

Some basic steps– Manage medical conditions– Education is primary

Drivers make poor judgments

– Trip planning modifications Starting times Length of day issues Rotating shifts


Solutions: Solutions: Multiple loss driversMultiple loss drivers

View the first crash as a warningRespond to the situation NOWAnticipate the worst

– Assume bad habits are the rule, not the exception

Observe, discuss, teach, then testPeriodic observation as follow up is

always demanded


Thanks for listening….Thanks for listening….

Questions?Comments?Need more help?Contact Jack Burkert at

– [email protected]– 410 708 4686

c. 2005, jpb, all rights reserved, [email protected] safety and litigation management agta 2007 a...

Documents

individual slide

bus driver

jack burkert slide

green traffic light

walk light

yellow light

light stanchion

case study