THE FMCSR SETS THE STANDARD OF CARE BECAUSE ILLINOIS IS A LOCK-STEP JURISDICTION.

Federal Motor Carrier Safety Regulations (FMCSR) are federal standards and often judges and opposing counsel often become confused about their relevance. Or worse, they assume that the rules which apply to passenger motor vehicles also apply to commercial motor carrying. Many bad results in trucking cases can be linked to lawyers who don’t understand that commercial motor carrying is a regulated industry.

It is the job of a trucking attorney to educate both the judge and jury. The applicability of the FMCSR should be placed on record in every case, and it should be a frequent refrain that Illinois has adopted the FMCSR in its vehicle code. In teaching these concepts to lawyers I always recommend using the term ‘lock-step’, as judges frequently started their careers as prosecutors and lock-step doctrine is an accepted part of search and seizure jurisprudence.

Judges unfamiliar with trucking law also frequently ‘get it’ when it is explained that Illinois has adopted the FMCSR in order to get federal roadway money.

Below is a typical introduction to the law of commercial motor carrying which explains why federal standards are relevant to Illinois tort law.

I. COMMERCIAL MOTOR CARRYING IS A HIGHLY REGULATED INDUSTRY
Commercial motor carrying is a pervasively regulated industry. 49 USC §31131 et. seq.; See also Midwest Crane & Rigging vs. F.M.C.S.A., 603 F. 3rd 837 (10th Cir., 2010)[Providing historical information on the regulatory regime from 1930’s to date]; see also 49 USC § 31100 et. seq. Congress has declared it the public policy of the United States to promote the safe operation of commercial motor vehicles. 49 USC §31131. Congress has further granted the Secretary of Transportation wide powers to effectuate this policy [49 USC §31133: 49 USC §31136], and created the Federal Motor Carrier Safety Administration [FMCSA] to assist the Secretary “[I]n furtherance of the highest degree of safety in motor carrier transportation.” 49 USC §113(b). Consistent with these mandates, the Federal Motor Carrier Safety Regulations [FMCSR] have been adopted [49 USC §31136: 49 CFR §300-399], which regulations cover a wide ambit, including Lease and Interchange of Vehicles [49 CFR §376], Hours of Service of Drivers [49 CFR §395], General Qualifications [49 CFR §390], Commercial Driver’s License Standards [40 CFR §383] as well as Qualifications of Drivers and Longer Combination Vehicles [49 CFR §391].

Evasion of these safety standards ‘by any means’ carries both civil and criminal penalty [49 USC §14906], and the Secretary has prohibited “any person” from aiding, abetting or encouraging a violation of these regulatory standards. 49 CFR §390.13. With respect to motor carriers, the Secretary has further prohibited the allowing of unqualified persons to operate a CMV; “[A] motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.” 49 CFR §391.11(a). Congress has not left the industry to guess as who is qualified. Employers are required to keep detailed qualification records on the drivers they employ. See 49 CFR §391.51. And, Congress has mandated that a driver must possess a commercial driver’s license [CDL] in order to operate a CMV. 49 USC §31302. Congress has further directed the Secretary of Transportation to promulgate rules making CDL’s uniform, tamperproof, and contain the ‘class or type’ of CMV the driver is authorized to operate [49 USC §31308(4)] and any special endorsements or medical restrictions are indicated on the driver’s CDL. 49 CFR §383.153(9)(i-vii) In sum, Congress has placed multiple compliance tools in the hands of the commercial transport industry.

II. ILLINOIS IS A LOCK-STEP STATE, AND HAS ADOPTED THE FEDERAL MOTOR CARRIER SAFETY REGULATIONS.
Illinois has adopted verbatim almost all of the Federal Motor Carrier Safety Regulations [“FMCSR”]. 625 Ill. Comp. Stat. Ann. §5/18b-105(b); People v. Blackorby, 146 Ill. 2d 307, 319, 586 N.E.2d 1231, 1237 (1992) [“The substantial volume of interstate and intrastate motor carrier traffic upon the highways of Illinois prompted the legislature to adopt the Federal motor carrier safety regulations into the Illinois Vehicle Code in order to make the roadways of Illinois safer.”] In addition to the specific adoption of portions of the FMCSR, Illinois regulates motor carriers via the Illinois Motor Carrier Safety Law, 625 Ill. Comp. Stat. Ann. 5/18b-100 et. seq., and the Illinois Commercial Transportation Law, 625 Ill. Comp. Stat. Ann. 5/18c-1101 et. seq. The purpose of these enactments is to actively supervise commercial motor vehicle transport and protect the motoring public: “It is hereby declared the policy of the State of Illinois to actively supervise and regulate commercial transportation of persons and property within the state.” [625 Ill. Comp. Stat. Ann. 5/18c-1103] The Illinois General Assembly has further mandated compliance with these standards: “Transportation by motor vehicle of persons or property in commerce that is not in compliance with this Chapter or any rules and regulations issued under this Act is prohibited.” 625 Ill. Comp. Stat. Ann. 5/18b-103. In fact, violation of the FMCSR is a felony in the State of Illinois. See People v. Blackorby, supra.

Conforming motor carrier safety laws to federal mandates is not unique to Illinois, but is required for receipt of federal highway funds. See 49 USC §31311(a)[Directing Secretary of Transportation to withhold roadway funds for States who fail to adopt minimum motor carrier safety standards]; See also 49 USC §31314 [Setting the amounts the Secretary is to withhold]. Congress has even vested the Secretary of Transportation with authority to preempt any State law or regulation which is “less stringent than” the motor carrier safety regulations prescribed by the Secretary. 49 USC §31141(c)(3) The Illinois General Assembly has also declared void any state law which contravenes or jeopardizes Illinois’ entitlement to federal highway funding. 625 ILCS §5/18b-106.2(f). The General Assembly had further vested the Illinois Department of Transportation [“IDOT”] with authority to adopt by reference “[A]ll or any portion of the Federal Motor Carrier Safety Regulations of the United States Department of Transportation, as they are now or hereafter amended.” 625 Ill. Comp. Stat. Ann. §5/18b-102(a). In sum, the Illinois General Assembly has placed Illinois in lock-step with the FMCSR and the federal regulatory regime which governs commercial motor carrying.

III. VIOLATION OF A SAFETY STATUTE SUPPORTS A CAUSE OF ACTION IN ILLINOIS.
The Illinois Supreme court has long held that the violation of a safety statute may form the basis of a suit, and the violation of a safety statute is evidence of negligence. French v. City of Springfield, 65 Ill. 2d 74, (1976). In French the plaintiff was a passenger in a car which collided with a utility pole. French, 65 Ill. 2d at 76. The plaintiff sued the City of Springfield alleging that the City failed to adhere to its own ordinances regarding the permitting and installation of construction barricades. Id. The Illinois Supreme Court found that Springfield’s ordinances were intended to protect public health and safety, and that violation of these ordinances raised a presumption of negligence. French, 65 Ill. 2d at 81. This is exactly what Plaintiffs are saying in the case at bar. The FMCSR’s are intended to protect public health and safety, which the Illinois Supreme Court recognized in People v. Blackorby, 146 Ill. 2d 307, 319 (1992).

Even before the creation of the FMCSA, the Illinois Supreme Court has allowed suits against motor carriers based upon violation of federal motor carrier safety regulations. Schedler v. Rowley Interstate Transp. Co., 68 Ill. 2d 7 (1977). The modern day Federal Motor Carrier Safety Regulations certainly qualify as safety regulations, and Plaintiffs have made explicit their reliance on the obligations which the FMCSR’s impose. Respectfully, tort suits predicated upon violation of safety regulations is not new or novel, and Plaintiffs’ claims fall squarely within the ambit of recognized causes of action.