Commercial Transportation

• Jurisdiction: United States,Federal
• Publication year: 2021
• Citation: Vol. 72 No. 4

Commercial Transportation

Madeline E. McNeeley

Sarah L. Adle

Joshua H. Dorminy

Elizabeth M. Brooks

Stephen G. Lowry

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Commercial Transportation

by Madeline E. McNeeley^*

Sarah L. Adle^**

Joshua H. Dorminy^***

Elizabeth M. Brooks^****

and Stephen G. Lowry^*****

I. Introduction

Commercial transportation involves all the significant forms of passenger and freight transportation across the United States. This Article surveys significant judicial, regulatory, and legislative developments in commercial-transportation law affecting the federal judicial circuit including Georgia, Alabama, and Florida during the period from January 1, 2020, through December 31, 2020.¹ The first three

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areas discussed here are subject to heavy federal regulation due to their far-reaching effects on interstate commerce: trucking and other commercial motor vehicles, aviation, and railroads. The other two areas discussed in this Article—autonomous-vehicle technology and shareable electric bicycles and scooters—are regulated primarily at the state and local levels at present but interact with federal law in some important ways.

II. Trucking and Other Commercial Motor Vehicles

A. Regulation

In May of 2020, the Federal Motor Carrier Safety Administration (FMCSA) issued a long-awaited hours of service final rule.² The final rule includes major changes that Transportation Secretary, Elaine Chao, said would give commercial drivers more control and options for planning their days.³ In effect, the new rule allows commercial truck drivers to travel longer distances, for a longer period of time, and to still be considered a "short haul" driver, therefore not subject to the strict requirements of the FMCSA.⁴ The rule change extends the distance limit for short haul drivers from 100 air miles to 150 air miles and increases short haul drivers' maximum on-duty period from twelve to fourteen hours.⁵ The new rules also give drivers more options for how they split their sleeping and driving hours and required thirty-minute breaks after eight hours of driving.⁶ Drivers will now be able to split their required ten hours off-duty into two periods: one period of at least seven consecutive hours in the sleeper berth and the other period of not less than two consecutive hours, either off-duty or in the sleeper berth.⁷ The final rule does not increase driving time and will continue to prevent commercial truck drivers from driving for more than eight consecutive hours without at least a thirty-minute break.⁸

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B. Recent Cases

In Hardman v. Southeast Permanente Medical Group, Inc.,⁹ the United States District Court for the Northern District of Georgia addressed the question of whether a doctor, who certified a motor carrier driver as fit to drive, could be held liable to the victim of the driver following a trucking accident. In Hardman, the plaintiff's wife died after her vehicle was rear-ended by a tractor-trailer in Alabama. The driver of the tractor-trailer, Mr. Hawkins, owned his own trucking company, Hawkins Brothers, LLC. Prior to the collision, which occurred in 2016, the driver had been diagnosed with Type II diabetes mellitus in 2001 and began taking insulin in 2010.¹⁰ Under the Federal Motor Carrier Safety Regulations (FMCSR),¹¹ a driver diagnosed with Type II diabetes must receive an exemption in order to continue operating as a commercial truck driver.¹² To receive the exemption, the driver must "obtain medical certification from a physician listed on the FMCSAs National Registry of Certified Medical Examiners."¹³ Mr. Hawkins did obtain a medical certificate, but the physician who completed Mr. Hawkins's medical certificate was not registered with the FMCSA. The plaintiff filed suit against the physician's medical practice and the physician alleging claims for negligence, wantonness, and negligent supervision.¹⁴

The crux of the plaintiff's case was that the physician who signed Mr. Hawkins's certificate was negligent in certifying him as fit to operate a commercial motor vehicle and that the plaintiff's wife was killed as result of that negligence.¹⁵ Specifically, the plaintiffs expert contended there was evidence to suggest that Mr. Hawkins fell asleep at the wheel, causing the collision at issue.¹⁶ The defendants filed a motion for summary judgment, arguing that as to the claim of negligence, Mr. Hawkins's physician owed no duty to the plaintiff's wife, a third party.¹⁷ The court, applying Alabama law, disagreed.¹⁸ Rather, the court

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reasoned that "the existence of a duty is determined by a number of factors, including, '(1) the nature of the defendant's activity; (2) the relationship between the parties; and (3) the type of injury or harm threatened[,]'" and especially "whether the injury was foreseeable by the defendant."¹⁹ The court found under the facts of the case and

in the light most favorable to the Plaintiff . . . that it was reasonably foreseeable that an automobile accident would follow Dr. Simpson's certification of Mr. Hawkins as medically fit to drive a commercial motor vehicle in the event Mr. Hawkins was not actually fit to operate such a vehicle—due to, for example, untreated and undiagnosed sleep apnea.²⁰

Thus, even though the person harmed was not the physician's patient, it was foreseeable that untreated conditions such as those experienced by Mr. Hawkins could cause an automobile accident and injure another motorist, so the physician owed a duty to her and there was a fact question about whether he had breached that duty.²¹

Although the court granted summary judgment in favor of the defendants as to the plaintiff's claims for wantonness and negligent supervision, the court's finding opens the door to potential liability for those in the medical field who are responsible for ensuring the physical fitness of drivers.

III. Aviation

Commercial aviation is almost exclusively controlled by federal authority through statutes, courts, and regulations promulgated by the Federal Aviation Administration (FAA). While the Eleventh Circuit did publish a noteworthy opinion regarding the viability of claims pursuant to federal maritime law, this Survey period brought an unprecedented task to rulemaking authorities: the COVID-19 pandemic. In addition to regulations issued in the ordinary course, the FAA worked swiftly to address the role of aviation in this public health emergency. The FAA faces a considerable challenge in having to enact regulations that balance the interests of safety and continuing aviation operations while the COVID-19 pandemic evolves in real time.

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A. Regulation

In February 2020, the FAA amended the requirements of pilot professional development.²² This final rule provides that new-hire pilots must have an opportunity to observe operations and become familiar with procedures before serving on a flight crew, revises curriculum, and requires leadership and mentoring training to reduce incidents of unprofessional behavior and pilot errors.²³ The National Transportation Safety Board (NTSB) has continuously cited pilot behavior as factors in multiple incidents and accidents.²⁴ This rule is an acknowledgement of an ongoing problem in the aviation industry with pilots engaging in unprofessional behavior and not adhering to standard operating procedures, which has catastrophic results.²⁵

On March 11, 2020, the World Health Organization characterized COVID-19 as a pandemic, which required immediate action among numerous industries, including aviation. The FAA issued Special Federal Aviation Regulation No. 118 (SFAR 118),²⁶ which extended deadlines for certain requirements that were unable to be met because of the COVID-19 pandemic.²⁷ Many of the FAA's training, testing, recency, and renewal requirements require individuals to be in close proximity where there is an increased risk of COVID-19 transmission.²⁸ Under the extraordinary circumstances, the FAA determined that extending the certification requirements would not present an additional risk to aviation safety that

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could not be mitigated.²⁹ The FAA amended SFAR 118 three times in 2020 to expand the protections to new populations of airmen.³⁰

Another action necessitated by the COVID-19 pandemic paused legal enforcement against any pilot, crewmember, or flight engineer based on noncompliance with medical certificate duration standards.³¹ While FAA medical examinations are critical to aviation safety,³² the physical nature of the examinations increases the risk of transmission of COVID-19. This relief only applied to an eligible class of persons and was limited to medical certificates that expired between March 31, 2020 and June 30, 2020.³³

The next regulatory update involves an issue known to most air travelers. The Department of Transportation (DOT) defined "service animal" as "a dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability."³⁴ Because airlines charge passengers for transporting pets and are prohibited from charging passengers traveling with service animals, passengers previously had an incentive to claim their pets were "emotional support animals" and, thus, service animals.³⁵ More passengers traveling with animals, many of which were uncrated and untrained, resulted in an increase of animal misbehavior on airplanes and in the airport. Now, airlines can classify emotional support animals as pets and limit the number of service animals that one passenger can bring onboard an aircraft.³⁶

Under this rule, airlines can require passengers to submit a form attesting to a service animal's training, good behavior, and health,³⁷ and

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can require that service animals are tethered onboard an aircraft.³⁸ The rule also specifies the circumstances under which a passenger may be charged for damage caused by the animal.³⁹

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