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Corporate risk experts are assessing a new law in New Jersey that makes drowsy driving a crime if it leads to a fatal accident. They believe it could have an impact far beyond one state by increasing civil liability for employers in general. Thomas B.K. Ringe III, an attorney at Philadelphia’s Duane Morris, has defended trucking companies in cases involving driver fatigue. “Employers have to be careful that they don’t [use] compensation schemes or scheduling that put their employees” into fatigue situations, Ringe said. But “more than the statute itself, the awareness of the impairment that fatigue may cause is potentially the bigger picture here” for employers. Michael Rosen, a partner in employment law at Foley Hoag in Boston, agreed, saying that the law raises general questions of increased civil risk across the country for corporations and entities that operate outside a standard work day. Examples include trucking firms, hospitals and health care facilities, manufacturers that operate double or triple shifts and fire departments and other agencies that use emergency personnel. The new law has simply raised the stakes on civil liability over fatigue, Rosen said. The law, which went into effect on Aug. 5, made New Jersey the first state where operating a vehicle or vessel while fatigued is a crime if someone is killed. The new statute is called Maggie’s Law, for Maggie McDonnell, a 20-year-old college student killed by a driver who fell asleep behind the wheel. The law makes vehicular homicide while fatigued a second-degree felony, punishable by up to 10 years in prison and a $150,000 fine if the driver stayed awake at least 24 hours straight before a fatal accident. Congress is considering its own version of Maggie’s Law, and at least 10 other states, including New York, have similar bills pending, according to Martin Moore-Ede, a medical doctor, an expert in alertness and sleep studies and former head of Harvard Medical School’s circadian physiology lab. Science has shown, according to Moore-Ede, that fatigue impairs a person’s performance much as alcohol does. A person without sleep for 24 hours equates to a person with a blood alcohol level of .10-or legally drunk, he said. Moore-Ede, chairman and CEO of Circadian Technologies Inc., now does research and consulting for companies on how to improve work productivity without increasing risks during extended hours of operation. But increasingly, Moore-Ede said, he is being contacted to conduct scientific studies for plaintiffs or defendants involved in trials over accidents due to fatigue. He estimated that the number of such inquiries has jumped from three or four a year in 2001 to four or five a month this year. “It used to be that these cases were put down to human failure; it was their fault for being tired or falling asleep,” Moore-Ede said. “But now people are increasingly blaming the work schedule.” Driver fatigue is the primary cause of over 100,000 heavy vehicle accidents and 1,500 fatalities each year in the United States, according to Moore-Ede, and he cited several recent cases that found employers liable for an employee’s fatigue-related accident. In Scarpello v. Consolidated Rail Corp., No. HUD-L-4349-99 (Hudson Co., N.J., Super. Ct.), the court in 2002 ordered Conrail to pay a $52.4 million wrongful death claim when a conductor was hit by a train after a fatigued brakeman failed to throw a rail switch. In another case, a Texas jury found an oil drilling company jointly liable for a fatal accident in which a fatigued employee driving an oil field truck fell asleep on his drive home, killing himself and four people in another car. Escoto v. Nabors Drilling, No. 01-81 (Tex. Dist. Ct., jury verdict 2001). The jury awarded $5.95 million in damages. According to a safety director’s report in that case, previous verdicts in the state’s similar cases-including one against the same drilling company in a near-identical fatal crash-were all in favor of the employer. “But as the public, and there-fore juries, become more aware of the dangers of shift work, it’s easy to see that companies may face greater liability on this issue in the years ahead,” the report stated. Rosen of Foley Hoag agreed, saying the rule across the country has been that individuals are liable for what they do when not working. Courts are increasingly willing to impose liability on employers for the actions of employees off the job, he said. A 24/7 culture “Employers must realize it is an issue that cuts across a lot of different kinds of industries . . . we are increasingly a 24/7 culture,” Rosen said. The attorney, who sometimes works with Moore-Ede, said he helps clients with shift workers assess their potential liability when work goes beyond standard shifts. This includes accidents on, before and after the job, he said. The law “is going to cause those employers to rethink their practices . . . to think about ways to minimize the possibility of employer liability,” Rosen said, including controlling long work hours, mandating transportation for a fatigued worker or even requiring naps.

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