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By: Tom Bray
Publication: Transport Safety Management Today
Date Posted: Oct 14, 2020
One point to consider when using electronic logging devices (ELDs) is liability. Some believe that simply installing an ELD system exposes them to additional liability. This is due to data in the ELD records that can indicate compliance or safety problems.
Examples of problems that can be visible in an ELD system can include:
If the data in an ELD system is showing a driver was not operating safely and compliantly but the company took no action to stop the driver, then the company’s liability may indeed increase.
The same is true if the company is not managing or using the ELD system appropriately. Mismanagement involves allowing generic or “ghost driver” accounts, not investigating and assigning unassigned driving time, and/or not correcting drivers that were not operating safely and compliantly.
Most of the driver-related behaviors listed above (operating over hours, operating at high speeds, a history of hard braking) are captured in the engine control module (ECM). The ECM data will be available to investigators and plaintiffs following a crash, even if the carrier does not use ELDs.
As well as using ECM data, investigators and plaintiffs will locate and use other records to review your driver’s logs, habits, and performance.
The bottom line is the ELD system is not what gets a carrier in trouble. How the company uses (or doesn’t use) the data available to it is what can get a carrier in trouble.
If a carrier is not actively using the data available to it to audit and correct its drivers — whether the data comes from paper logs or ELDs — the carrier may face increased liability following a crash. Plaintiffs will be able to show the carrier was not living up to its duty to act. This will then be used to prove the company was grossly negligent in its entrustment or supervision of the driver involved in the crash. Such gross-negligence claims are one major reason for ever-increasing verdict and settlement amounts, including so-called nuclear verdicts.
Key to remember: It is not the use of ELDs that will expose you to excessive liability, it is how you are auditing and managing your drivers.
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