Today's vehicles are loaded with state-of-the-art safety features. Today's roadways are better lit and more safely engineered. But highway safety still boils down to the driver. And today's drivers are a disaster. They're driving with rage; they're driving with cell phones attached to their ears. They're also driving tired. In a recent National Highway Transportation Safety Association study, 11 of 100 drivers admitted to dozing off behind the wheel at least once in the past year. Who knows how many more of the respondents were guilty of the same offense but didn't admit it?

The drowsy driving syndrome raises an important question for safety directors to consider: Is your company liable if one of your employees gets so tuckered out from work that he falls asleep and causes a traffic accident while driving home from his shift? The law of employer liability for drowsy driving by employees is only starting to emerge. But a new case from the State of Texas is likely to encourage victims of such traffic accidents to sue employers for damages.

What Happened

Meet Robert Ambriz. He's an employee for an oil and drilling company in Texas. It's Saint Patrick's Day, 1998, and Mr. Ambriz has just completed a graveyard shift. Working12 hours at a drilling site is gruelling under the best of circumstances. And the circumstances of this shift were anything but optimal. Workers were under enormous pressure to complete repairs to a rig. As the foreman would later testify, the entire crew was exhausted. Mr. Ambriz was no exception.

While driving home on Highway 490, Mr. Ambriz's vehicle improperly crosses the highway median and collides head-on with a vehicle coming from the other direction. Five people are killed - Mr. Ambriz, the driver of the other vehicle and his three passengers.

Why It Happened

We know what happened; but we don't know why. Mr. Ambriz's widow and the families of the four victims in the other vehicle claim that the accident is the result of Mr. Ambriz's fatigue. He was so tuckered out from work that he fell asleep behind the wheel, they argue. So they sue the company for damages. The company settles with the families of the four victims in the other vehicle. But the negligent case brought by Mr. Ambriz's widow against the drilling company goes to trial.

In the lawsuit, an expert witness testifies that, yes, fatigue was the cause of the accident. His conclusion is based on the results of research, interviews and tests involving the conditions of workers after putting in 12-hour shifts. The jury finds the explanation credible.

Was the Employer Responsible?

The jury now has to decide if the drilling company was responsible for Mr. Ambriz's drowsy driving. If so, the company can be held liable for the accident under the law of negligence. A person can be guilty of negligence if:

• It has a duty to use reasonable care to protect another;
• The person violates that duty; and
• The violation of that duty results in injuries to the other person.

The drilling company denies owing a duty to the victims. The accident was Mr. Ambriz's fault, not ours, it claims. The accident also happened while Mr. Ambriz was off duty. Normally, an employer is not responsible for what an employee does after work. But that can change under two conditions:

1. The Employer Knows the Off-Duty Employee Poses an Unreasonable Risk of Danger to Others: The drilling company had such knowledge, the jury finds. It knew that the work was fatiguing. Company officials and supervisors testified to this effect at trial. So the company couldn't claim ignorance.

2. The Employer Could Have But Didn't Control the Risk: The jury finds that the company did have such control. It deliberately scheduled long shifts, requiring employees to work 12-hour graveyard shifts for one week straight. But it didn't provide training to acquaint employees with the dangers of fatigue. All it did was appoint a "safety captain" to keep an eye on employees to ensure they weren't wearing out and spell anybody showing signs of fatigue from active duty. Unfortunately, nobody knew who the captain was most of the time. And the captains didn't bother monitoring whether employees were fit to drive home after their shifts.

The Ruling

The Texas state court finds the drilling company liable of negligently causing the death of Mr. Ambriz. Thus, the company must pay damages to his estate [Escoto v. Estate of Ambriz, 200 S.W.3d 716; 2006 Tex. App. LEXIS 4961 (Ct. App. Texas, 13th Dist., 2006)].

Conclusion

To put the case into perspective, consider that the law of negligence varies from state to state and province to province. The Ambriz case serves as direct and immediate precedent only in the State of Texas. But it would be a mistake to dismiss Ambriz as irrelevant to you because you're not from Texas. I didn't check for similar rulings in other states; my hunch is that there are such cases to be found for those who have the time to look for them. I also did a quick and cursory sweep for similar cases in Canada but couldn't find any. But I could easily have missed something; and even if it hasn't yet happened, a case like Ambriz is bound to take place in Canada at some point.

But the point of this article isn't to research the law of each state and province in the U.S. and Canada. That's an article worth writing, but it will have to wait for another day. The significance of Ambriz is that it shows how courts can adapt old theories of negligence law to hold an employer liable for an employee's drowsy driving - even if the accident occurs after work. As such, the case strongly suggests that employers have a legal duty to provide training and systematic management of fatigue, both during and after shifts.

SCORECARD

Drowsy Driving Fines from Other Jurisdictions

By Glenn Demby

In addition to being sued for negligence, employers could be fined under occupational health and safety laws for letting fatigued workers get behind the wheel. At least two such cases have occurred outside North America:

UK: A potato firm, named Produce Connection, was fined £30,000 for a workplace health and safety violation after an employee who had put in 76 hours in four days collided with a truck on his way home with fatal results.

Australia: A trucking firm was fined $130,000 when an employee who had been driving for 17 of 24 hours slammed his truck into a stationary vehicle on the side of a highway, killing four. The driver, who admitted to having smoked marijuana, was also sent to prison for 6 ½ years.

BY THE NUMBERS

The drowsy driver: An all too common sight on our highways

Drowsy Driving Fines from Other Jurisdictions

By Glenn Demby

We ran this bit a few weeks ago but here it is again in case you missed it. It documents the findings of three recent telephone surveys on drowsy driving, two in the U.S. and one in Canada: 

National Highway Transportation Safety Association Study (2003)

11 The percentage of drivers who admitted to nodding off while driving at least once in the previous year

66 Among those who admitted to nodding off, the percentage of drivers who reported having 6 or few hours of sleep the night before

National Sleep Foundation Study (1,456 drivers, fall 2004)

60 The percentage of drivers who admitted to nodding off while driving at least once in the previous year

37 The percentage of drivers who admitted to nodding off while driving at least once in their lives

Canadian Study (1,209 drivers, 2005)

20 The percentage of drivers who admitted to nodding off while driving at least once in the previous year

57 The percentage of drivers who admitted to driving when tired

Other Findings

• Age-wise, drivers under 30 were the group most likely to doze off while driving (findings of NHTSA & Canadian studies)
• Males were more likely than female drivers to doze off (NHTSA & Canadian)
• Nearly half of the drivers who dozed off had been driving only an hour or less (NHTSA & Canadian)
• About 0.7 percent of all drivers admitted to being in a crash at least once in the past five years and attributed the cause to drowsy driving (all three).

Source:http://www.nhtsa.dot.gov/people/injury/airbags/Countermeasures/pages/Chapt4/4DistandFatDriv.htm

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