Negligent Hiring, Retention, Entrustment in Truck Accident Cases

221.JPG
 
 

Developing Negligent Hiring, Retention, Entrustment & Dispatch Cases:  Compiling the Proof

 

By:  John A. Houghton

Introduction

The objective of this article is to give an overview of negligent hiring, retention, and entrustment law in Georgia and the evidence gathering process required to support such claims.  In the context of trucking cases, the overworked and underpaid over-the-road driver can often be a source of sympathy for the defense.  From the Plaintiff attorney’s perspective, it is important to not merely fixate on the driver’s shortcomings and conduct in causing a tractor-trailer crash.  The practitioner should focus a considerable amount of attention on the motor carrier’s conduct in potentially ignoring all of the warning signs of an unsafe driver. 

Negligent hiring and retention claims place the crosshairs directly on the motor carrier as the party responsible for the collision.  The rationale is that the motor carrier’s failure to ensure it was putting a safe driver on the roadway is a proximate cause of these collisions.  There are a number of simple, inexpensive ways to investigate whether the company negligently hired and/or retained an unsafe driver who injured your client.  The development of these claims is a very fact-intensive process, but one that will ultimately enhance the value of your trucking case.

I.         Negligent Hiring & Retention Claims

            Negligent Hiring & Retention claims only require proof that company 

knew or should have known

The thrust of any negligent hiring or retention claim is that a motor carrier either:

a)     knowingly violated the Federal Motor Carrier Safety Regulations (FMCSR) or its own internal policies and procedures in hiring, retaining, and screening an unsafe driver, or

b)      consciously disregarded the consequences of its actions in dispatching a driver with a significant record of safety violations, citations and/or wrecks.

Negligent hiring and retention claims require the Plaintiff “to show the employer knew or should have known of the employee's dangerous propensities.” See Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 829 (1993) citing Southern Bell Tel. etc. Co. v. Sharara, 167 Ga. App. 665, 307 S.E.2d 129 (1983).  See also O.C.G.A. § 34-7-20

Even where a defendant is potentially entitled to summary judgment on a claim for negligent entrustment because of plaintiff's failure to show defendant's actual knowledge of the driver's incompetency, the negligent hiring / retention claim can survive.  This is because the standard of care in negligent hiring / retention cases is whether defendant knew or in the exercise of reasonable care, should have known of the driver's incompetency. Smith v. Tommy Roberts Trucking Co. 209 Ga. App. at 829. [Emphasis supplied]

The duty on the motor carrier to inspect the driver’s history is imposed by the Federal Motor Carrier Safety Regulations.  The regulated motor carrier is required to make efforts to request personnel information from previous regulated employers / motor carriers listed on the new driver’s application for the preceding 3 years. See 49 CFR § 391.23(a)(2).  Additionally, the regulations require the motor carrier to obtain a motor vehicle record of the new applicant from every state he held a permit for the previous 3 years. See 49 CFR § 391.23(a)(1) Evidence that the motor carrier failed to follow the regulations in screening a new driver, or outright intentionally ignored a potentially unsafe driving history creates a sufficient factual issue to get the negligent hiring claims to a jury. See Smith at 828-829.[1]

The FMCSR also require motor carriers to annually inspect the driver’s motor vehicle record. See 49 CFR § 391.25.  Beyond the initial liability of a motor carrier failing to properly inspect a new applicant’s history, the annual review requires the company to yearly audit the driver’s record for any significant moving violation convictions accumulated during the course of his employment.  “The motor carrier must consider the driver's accident record and any evidence that the driver has violated laws governing the operation of motor vehicles, and must give great weight to violations, such as speeding, reckless driving, and operating while under the influence of alcohol or drugs, that indicate that the driver has exhibited a disregard for the safety of the public.” 49 CFR § 391.25(b)(2) [Emphasis supplied]  

Even convictions for certain offenses in the driver’s personal vehicle count toward his or her possible disqualification as a CDL driver. See 49 CFR § 383.51. The failure to perform the required annual review or the outright disregard of multiple violations is evidence of negligent retention by the carrier.

The prospective motor carrier employer must also investigate whether in the previous three years, the potential new driver had violated the alcohol and controlled substance prohibitions delineated under subpart B of part 382.  See 49 CFR § 391.23 (e)(1).  Generally, the first violation of this rule by either a refused drug / alcohol screening or a positive test result carries with it an automatic 180 day disqualification.  Evidence that a prospective motor carrier simply failed to review the drug testing history of a Defendant driver could be construed as consciously indifferent to the motoring public’s safety on the part of the company.  The egregiousness of this conduct is amplified when the motor carrier also fails to make their driver submit to a required post-collision drug and alcohol screen. 

Respondeat Superior / Admission of Agency Defense

            Often times, the defense lawyer will ‘admit’ in their Answer (or subsequent pleadings) that the driver was operating the company vehicle in the course and scope of his employment at the time of the wreck.  The objective by the defense admitting respondeat superior is to defeat any derivative claim against the company for negligent hiring, retention and punitive damages. The rationale is that by admitting that the company is responsible for the conduct of the driver, there is no separate claim against the motor carrier for any regulatory violations in driver screening.  It is a calculated risk, as admitting agency sacrifices the defense’s ability to get the motor carrier dismissed as a named-party by dispositive motion. 

            There is a split authority on whether such an admission will actually defeat the hiring and retention claims.  Despite the holding in Bartja v. National Union Fire Ins. Co., 218 Ga. App. 815 (1995), Durben v. American Materials, Inc., 232 Ga. App. 750, 751 (1998) Western Industries v. Poole 280 Ga. App. 378 (2006), the prevailing standard is that a valid claim for punitive damages against the company will allow the hiring and retention claims to proceed to a jury. Smith at 829.[2]  Bartja, Durben and Poole were predicated on a narrow set of relatively non-aggravating facts in which the company admits respondeat superior.  These cases are quite distinguishable from most claims involving commercial drivers.

            The Court of Appeals found in Bartja that upon hiring the driver, the employer had complied with federal regulations mandating an investigation of the driver’s driving record for the previous three years. Bartja at 819.  The record revealed two moving violations and three prior accidents, but none of the incidents would have disqualified him as a driver under the applicable federal regulations. Id. at 818. 

In Durben the plaintiff brought claims for punitive damages, as well as negligent hiring / retention / entrustment and cited only a single prior incident of the defendant driver evidenced through an un-certified prior complaint and police report. Durben, 232 Ga. App. at 752.  She also provided materials she had obtained from the defendant driver’s prior employer without accompanying testimony. Id.  The court predicated part of its ruling on a lack of competent evidence in support of the facts submitted by plaintiff in Durben. Id. at 753.

In Western Industries v. Poole, Defendant hired Shareef as a driver in 2002 when he had only one (1) prior moving violation conviction on his record which had resulted in a license suspension. Id. at 379.  Western Industries required no Motor Vehicle Record authorization at the time of hire and merely included questions on the application inquiring whether Shareef had been convicted of violations in the past three years. Western Industries v. Poole, 280 Ga. App. at 379.  Shareef pled nolo to a citation for failure to maintain lane when causing a wreck in a company vehicle, and was fired by Western Industries as a result. Id. at 379-380. 

The Court of Appeals rendered fairly unfavorable rulings for the Plaintiffs in the Bartja, Durben and Poole cases.  However, these cases represent the rare occasion when the motor carrier admitted respondeat superior, substantially complied with all of the federal regulations governing driver screening, and no major history of driver violations existed anyway.  There will certainly be trucking cases when the evidence demonstrates no major compliance issues or problems with a driver history.  However, preparation and study of the Federal Regulations are crucial to the survival of these claims with the trial court.  The Plaintiff’s lawyer should consider a standard of care expert early on to guide them through the regulations and document production prior to deposition.

            Plaintiff’s counsel must exhaustively develop the facts in their cases to maximize their impact for both the trial court and jury.  The inflammatory nature of a company’s conduct does not magically appear at trial.  The facts that support hiring and retention liability require extensive development in pre-suit research and discovery.

Interplay with Punitive Damages

If a motor carrier is the employer and does admit respondeat superior, then the question becomes how to develop a valid claim for punitive damages as delineated by the Smith v. T.R.T.C. exception. 209 Ga. App. at 829.  In many instances, evidence of the company’s conduct may be egregious enough to justify punitive damages under Georgia law.  Aldworth Company v. England, 286 Ga. App. 1 (2007) or TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 460 (2004), are two cases which are instructive on this area of the law.  In Aldworth Company v. England the Court of Appeals upheld a jury verdict for punitive damages against a motor common carrier for negligent hiring and retention.

Aldworth involved a driver who failed to disclose numerous driving citations on his application, and a company that failed to follow numerous legal duties in investigating the driver’s history. Id. at 4.  The Court noted that the company “violated its own internal operating procedures in not investigating any of the driver’s infractions.” Id. at 4. [Emphasis supplied]  As such, the Court of Appeals held that the evidence met the “clear and convincing” standard of O.C.G.A. § 51-12-5.1(b) and was sufficient for the jury to find that Keystone had “demonstrated that entire want of care which would raise the presumption of conscious indifference to consequences,” supporting an award of punitive damages. Id.

Aldworth is notable in that it recognizes punitive liability can attach to a company’s violation of its own internal operating procedures when screening the safety of a driver.  This underscores the importance of obtaining all safety policies & procedures and driver handbooks from the company prior to deposition.  Direct violations of company policies and procedures in driver screening, whether intentional or not, meet the clear and convincing standard required to establish punitive liability under Georgia law. Id.  The Plaintiff’s lawyer must have a solid understanding of these policies prior to the driver and safety director’s depositions. 

Similarly, punitive damages are also justified when there is clear and convincing evidence that a company “displayed a conscious indifference to the possibility that an under-investigated employee was involved in a series of crimes that could foreseeably lead to violent results” TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807, 817 (2003)  Despite TGM Ashley Lakes v. Jennings being a premises liability case, the holding reinforces the notion that a company’s failure to follow its own hiring / screening policies is clear and convincing evidence of punitive conduct. Id.[3] 

II.       Building the Case

            There are numerous ways to gain an understanding of the Defendant driver’s prior safety history.  The process of establishing hiring / retention liability against the company generally requires methodical discovery efforts and thorough depositions of company personnel.  However, at the outset of the case, there are an assortment of pre-suit techniques to determine if there is evidence of a negligent hiring and retention claim against the company.  Given the extensive driving history most CDL drivers have, there is usually a wealth of information that can be obtained.

            A.        Open Record Act Requests

            There are many invaluable nuggets of information that can be gathered in a very short period of time following the wreck initially.  The open record act request serves as the most efficient / least costly method for obtaining a basic understanding of the defendant’s driving history pre-suit. 

                        1.  Records from Defendant driver’s home county

As a starting point, consider sending an open record act request to the Superior, State, Magistrate, and Municipal Courts for the county and city in which the defendant driver resides.  Request certified copies of convictions for any and all prior felonies, misdemeanors, or other crimes from the State and Superior courts in the county where the driver resides.  Additionally, send a similar request to the driver’s local Sheriff’s Office and Police Department requesting any and all incident reports, arrest records, charges or other investigative documents for the driver at his current address. (See Appendix for examples)  Even though over-the-road drivers generate violations all over the country, you will be surprised at how many citations are usually issued to these defendants in their own county.

                        2.  Records from Georgia DPS – Motor Carrier Safety Assistance Program

            The Georgia Department of Public Safety will maintain any records of prior violations issued by the Motor Carrier Compliance Division (MCCD).  These records will include any violations of the FMCSR on file that occurred inside the state of Georgia.  This will provide a preview of any safety violations on record with the company prior to exchanging discovery. (See Appendix)

            These requests are useful in determining whether the motor carrier (or its lawyer) are being forthright in disclosing all violations within their initial document production.  However, these records do not provide a full perspective on the driver’s history of violations, given that many defendants are over-the-road drivers with citations in different states.

B.        Safersys.org / SMS Results Search

Any commercial vehicle with a DOT number will have a history on www.safersys.org; federally reportable wrecks involving commercial motor vehicles will generally have a post-crash report.  It is important to perform a safersys search right away from the initial information provided about the motor carrier in the accident report.

The FMCSA which runs the Safersys portal will not release the name, driver’s license number or any specific identifying information of the drivers with the prior violations.  It is important to use the VIN and license plate number for the power-unit on the accident report and try to match it up with any of the violations listed on the carrier’s SMS Results page on Safersys.org. 

In the course of a driver’s employment with the company, the re-assignment of power units is generally infrequent.  This means that the Plaintiff’s lawyer should be able to match up the VIN / plate number for the power-unit involved in the accident report with any other reported violations or crashes on the safersys portal.  Once the case is in suit and you have obtained the motor vehicle record and the driver’s qualification file, you can confirm in deposition that these violations involved the same driver.

C.         Freedom of Information Act Requests

            Similar to Open Record requests, a battery of Freedom of Information Act requests should be sent to the Federal Motor Carrier Safety Administration to obtain as much information about the carrier and the driver as possible. (See Appendix for examples)  Often, this request will net multiple reports that were not maintained on the safersys website.  The FMCSA will redact any reference to driver’s names, license numbers and any other identifying information.  However, utilize the information obtained from the accident report, citations, and Safersys searches to cross check VIN and plate numbers to see if the same vehicle has had prior violations in their records.

            The waiting period for responses to these requests is significant, as the DOT is always backlogged.  FOIA requests should be made as early as possible in the case, so that the records have been provided before the first company depositions.

III.     Discovery Considerations

A.        Trucking Interrogatories & RPDs

            The importance of written discovery cannot be overemphasized in the context of a negligent hiring and retention claim against a motor carrier.  Specific items that are vital to claims for negligent hiring and retention include:

·         Driver’s Qualification File / Personnel File (which should have within it):

o   Application for employment;

o   Copy of his CDL license;

o   Safety History Requests and Responses

o   Driver’s certification of prior motor vehicle accidents;

o   Driver’s certification of prior violations of motor vehicle laws;

o   Driver’s prior employment history;

o   Carrier’s inquiry into his driving record;

o   Carrier’s inquiry into his employment record;

o   Documents regarding carrier’s annual review of his driving record;

o   Response of each state agency to carrier’s annual inquiry concerning his driving record;

o   Certification of driver’s road test;

o   Medical examiners certificate;

o   Statement setting forth in detail any denial, revocation, or suspension of any license, permit or privilege to operate a motor vehicle;

o   Training certificates and training documents;

o   Drug testing records;

o   All violations of FMCSR by the driver that have been sent to the company

o   Any prior reprimands for violations of safety rules, preventable accidents

o   Any complaints received by the company regarding the driver (1-800 How’s My Driving or similar documentation is sometimes available)

·         Driver manuals, guidelines, rules or regulations issued to drivers by Defendant or kept by Defendant.

·         Company Policy & Procedure Handbook regarding Hiring / Firing / Discipline Practices

·         Safety manuals, brochures, handouts, literature, or other written documents pertaining to safety provided to drivers by Defendant or kept by Defendant.

The purpose of these items in the context of developing negligent hiring / retention claims is to get a full understanding of every violation, wreck, or reprimand the motor carrier knew about, and every internal policy they were required to follow.  If the defense fails to provide these items before the driver and safety director’s depositions, the Plaintiffs’ lawyer must compel their production.  These items are vital to establishing the ‘knew or should have known’ element of these claims.

After the initial exchange of discovery, review the document production closely for items that were not produced or withheld subject to an objection.  Put on your calendar a 1 week deadline after receiving the document production to get out your 6.4 letter.  Fight the privilege battle.  Many of these cases languish with unproduced documents that are indispensable to negligent hiring and retention claims.  Do not let an unscrupulous risk manager or safety director gut your client’s case through non-production of documents.

B.        Subpoenas / Non-Party RPDs

            Send a subpoena / non-party RPD for all of the following items:

1.       The defendant’s Motor Vehicle Record (MVR) from the Department of Driver Services (DDS)  (See Appendix for examples)

2.      The Drivers Qualification and Personnel File of the driver from all prior employers listed on the driver’s application (See Appendix)

Obtaining these items serves to independently confirm what the company should have known about the driver either at the time of hire or during the course of his employment.  Evidence that the Driver’s Qualification file does not contain responses from either the state Department of Driver’s Services or prior employers supports a finding that the company violated the FMCSR in screening the driver.  All of this information should be used in the deposition of the Safety Director and 30(b)(6) designee.

C.         Depositions of Driver / Safety Director / 30b6

            Simplify your cross-examination in the deposition of these drivers and safety personnel.  Fill in the blanks with non-leading open-ended questions when absolutely necessary, but be prepared enough to conduct the entire deposition with simple true or false inquiries.  Demonstrating your authority on the facts and regulations early in deposition sends a message to the deponent that he/she should not stray from the question or create nonsense explanations. 

            Walk through all of the violations slow and painstakingly.  Given the complexity of the regulations and the vast amounts of records, it is sometimes difficult to designate one fact to every question.  Be creative while preparing your outline chapters, and think through the best way to simplify your questions for a jury.  It is important to be mindful of how these inquiries fit into your theory of the case. 

Although it may be repetitive, keep getting admissions from the driver that each of these violations were on his/her record at the time of hire. Get the safety director to agree to all of the screening requirements imposed by the FMCSR and company policy. This supports the “should have known” standard of proof.  Even in the smaller cases, consider using a videographer for depositions.  To the extent you are required to fight a dispositive motion, these brief video clips can be powerful to the trial judge.  Consider attaching a succinct PowerPoint video presentation as an exhibit to your response brief.

 

 

IV.      Conclusion

The appeal of the hiring / retention claim is that the motor carrier serves as a gatekeeper that should prevent unsafe drivers from being dispatched.  The safety departments for these motor carriers are the last line of defense protecting the public from potentially unsafe drivers in 80,000+ lbs vehicles.  Negligent hiring / retention claims are the means through which companies are held to the underlying principles of the Federal Motor Carrier Safety Regulations.  These rules were designed to prevent tragedies and keep the public safe.  Without the enforcement of these regulations against motor carriers, the purpose of the FMCSR would ring hollow.  And, without the diligent efforts of Plaintiff’s counsel in pursuing these claims, this reckless conduct will continue unabated.

[1] “Evidence was presented in this case that the employer had a legal duty to make certain inquiries into the driver's qualifications and driving record and failed to do so. Thus, the employer's lack of actual knowledge of defendant's incompetency, if such is shown, is not a defense to plaintiff's claim. To hold that the employer is entitled to summary judgment on the negligent entrustment claim because of its failure to discover the driver's record is to reward the employer for remaining ignorant despite its legal duty to discover the facts. Such a holding is contrary to commonsense and public policy.” Smith v. T.R.T.C., 209 Ga. App. at 829

[2] “If the jury finds the employer should have known the driver was an unsafe driver, then the jury could also find that the employer's permitting him to drive the company-owned truck was a proximate cause of the collision. Thus, neither defendant is entitled to summary judgment on the issue of punitive damages.” Smith v. T.R.T.C., 209 Ga. App. at 829

[3] The facts show that Glover knew Oliver had been in trouble with the law but kept silent; that TGM did not completely follow its hiring policies; that the TGM hiring process was not designed to determine whether a potential employee had been convicted of a crime; that the property manager, district manager, and regional manager did not do their respective jobs in the process of the hiring of Oliver; that apartment key control policies were routinely violated; that TGM knew that they had a recent series of unforced entries and robberies; that some tenants suspected an employee and one suggested criminal background checks; that Oliver had been caught in an apartment on an unauthorized basis; and that despite all this, management still did not undertake criminal background checks of the small number of employees, control access to the keys, or alert residents to the situation. TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807, 817 (2003)