Tracy Morgan and James “Jimmy Mack” McNair: Another Tragedy Caused by Lack of Sleep?

This weekend brought yet another tragedy caused by a truck driver who hadn’t slept for more than 24 hours prior to the accident.  Although the Federal Motor Carrier Safety Administration (FMSCA) requires truck drivers to take breaks from driving in their hours-of-service rules, it is not uncommon for accidents to occur when drivers violate those rules.  In 2013, these rules were modified to limit the maximum average work week for a truck driver to 70 hours (a decrease from the former 82 hours) with a requirement for truck drivers to take a 30 minute break during the first eight hours of a shift.  The rules were also modified to allow drivers who reach the maximum of 70 hours a week to resume if they had rested 34 consecutive hours, including at least two nights when their body clock demands the sleep most – from 1:00 to 5:00 a.m.   The rules allow for 11 hours of daily driving and a 14 hour work day.  Penalties for violations of these rules carry fines of up to $11,000.00 per offense for trucking companies and civil penalties to the drivers of up to $2,750.00 for each offense.  However, the real concern for these rules is highway safety.    According to FMSCA Administrator Anne S. Ferro, “These fatigue-fighting rules for truck drivers were carefully crafted based on years of scientific research and unprecedented stakeholder outreach. . . The result is a fair and balanced approach that will result in an estimated $280 million in savings from fewer large truck crashes and $470 million in savings from improved driver health. Most importantly, it will save lives.”  The new regulations were estimated to save 19 lives and prevent approximately 1,400 crashes and 560 injuries each year.

That’s what happened to a married couple, their two sons, and an unborn child who were moving from Montgomery County to California in 2012.  Christopher Schmidt, age 30 and his wife, Diana Schmidt, age 28, were moving their family to the Sacramento area to be closer to Diana’s parents.  Diana Schmidt was seven months pregnant.  The two parents were traveling in separate cars, one behind the other, when they were forced to stop for traffic on Interstate 80 which had slowed due to another accident ahead.  A tractor-trailer approaching from behind slammed into the Ford Mustang Christopher Schmidt was driving and the force of that collision propelled the Mustang into the rear of the Toyota Corolla carrying Diana and the children, causing the Toyota to crash into a truck stopped in front of it.  Both cars burst into flames and the entire family, plus their three dogs perished in the crash.  Ultimately, the driver of the semi, Josef Slezak, age 36, pled guilty to four counts of motor vehicle homicide and one count of motor vehicle homicide of an unborn fetus.  Josef Slezak had been asleep at the wheel when the crash occurred and there was no evidence he slowed down as he approached the line of stopped traffic.  Testimony in this case demonstrated that Slezak left Midwest Refrigerated Services in Milwaukee, Wisconsin about 3 o’clock in the afternoon Central Time on September 8, 2012 and was on-duty until the early morning hours of the crash in Cheyenne County on September 9th, nearly 15 hours later, which would exceed regulations.  My partner, attorney John Inserra, opines “These cases often require extensive discovery to determine hours of service issues, as well as the safety of the tractor/trailer and whether other federal trucking regulations have been violated in a thorough investigation of the claim.”

In the Tracy Morgan accident, Wal-Mart trucker Kevin Roper failed to slow for traffic ahead and swerved to avoid a crash, ultimately smashing into the back of Morgan’s chauffeured limo bus, killing comedian James “Jimmy Mack” McNair and injuring Tracy Morgan and three other people.  He has been charged with death by auto and four counts of assault by auto.  A New Jersey law allows a person who causes injury after knowingly operating a vehicle after being awake for more than 24 hours to be charged with assault.  Wal-Mart has stated it would “take full responsibility” if it were determined its truck caused the accident, however stated it believed Roper was operating within federal regulations.  Federal data confirms that Wal-Mart trucks have been involved in 380 crashes in the past two years, causing nine deaths and 129 injuries, according to the Federal Motor Carrier Safety Administration.  The Morgan and Schmidt accidents further emphasize the importance of truckers obeying the hours of service regulations not only for their own safety but to avoid tragedies that affect innocent families.