Negligent Hiring Claims in Trucking Defense Litigation

Chris Tanke reported "The current driver shortage is only expected to worsen in the future as more drivers either retire or leave the industry. Temptation to deviate from your standard driver hiring criteria to find a driver to fill the empty seats will be strong."

According to the American Transportation Research Institute, the following violations can give you a good place to start to evaluate the the likelihood that an employee would be involved in a future crash:

Conviction	Increase in Crash Likelihood
Failure to use/improper signals	96%
Past crash	88%
Improper passing	88%
Improper turn	84%
Improper/erratic lane change	80%
Improper lane location	68%
Failure to obey traffic sign	68%
Speeding 15+ over limit	67%
Any conviction	65%
Reckless/careless/inattentive/negligent driving	64%

While excess speeding and reckless driving are down on the list as far as increased likelihood, they are also dangerous. In the event of a serious at-fault crash, the plaintiff attorneys will certainly look to use that violation to portray the driver in a negative light, which could increase the potential settlement/verdict amount.

Finding good, qualified, safe truck drivers will continue to be a problem for the industry. Deviating from your driver hiring criteria may solve your problem and fill the seat, but could create another problem by sparking higher accident/insurance costs.

If you are interesting reading more about the legal arguments and evidentiary methods used to defend against claims of negligent hiring, please read on. Otherwise, if you need any additional assistance in defending claims against one of the greatest industries in the world, please contact me at:

Perkins & Associates, LLC

401 Market Street, Suite 900

Shreveport, LA 71101

318-222-2426

Louisiana courts have specifically held that before any liability could be imposed upon an employer or supervisory employee for alleged negligence in hiring, training or supervision of an employee, a plaintiff has to show that the employee was negligent in the action for which plaintiff claims injury and that the negligence was causally linked to the plaintiff’s damages. Lacking such evidence, even if there were negligence on the part of the employer, it could not be linked to plaintiff’s damages. See Perry v. City of Bogalusa, et al., 804 So.2d 895, 899-900 (La.App. 1^st Cir., 12/28/01).

In Perry, plaintiff filed suit against the City of Bogalusa, the city police chief ("Agnew"), and unnamed city police officers, A, B, C, and D. Plaintiff owned a home which was struck and damaged when officers in pursuit of drug suspect, who was exceeding the speed limit and running stop signs, eventually crashed into the front of plaintiff’s house. Plaintiff was in the home at the time of the accident, but was not physically injured. Plaintiff sought damages for the property damage to his house and the "extreme mental anguish" he allegedly suffered when he heard and felt the impact and witnessed the police conduct in the arrest of the suspect following the impact. Plaintiff alleged that the accident was caused by a high speed automobile chase initiated by Officer "A" and participated in by the other officers, all of whom he claimed were negligent in taking this action. Plaintiff also claimed that the City was negligent in hiring the police chief, who was negligent in failing to provide supervision, training and standards for his officers.      

The City and Agnew filed answers and later filed a motion for summary judgment, supported by the petition, their answers and deposition testimony. After a hearing, the court concluded that the damage to plaintiff’s property was caused by the negligence of the suspect and, therefore, found no negligence on behalf of the City or Police Chief Agnew. The trial court granted the defendants’ motion for summary judgment regarding plaintiff’s claims against the City and Agnew. Plaintiff appealed the dismissal of his claims.

The Court of Appeal of Louisiana, 1^st Circuit held that, "Perry’s claim against the City is that it was negligent in hiring Agnew; he alleges Agnew was negligent in training and supervising the city police officers. Under the facts of this case, before any liability could be imposed on the City or Agnew, Perry would have to show that the police officers were negligent in their handling of the pursuit of Mingo (drug suspect), such that their actions caused Mingo’s loss of control of the vehicle. Lacking such evidence, even if there were negligence on the part of the City or Agnew, it could not be causally linked to Perry’s damages." Perry, 804 So.2d at 899-900. The Court affirmed the decision of the trial court to dismiss the plaintiff’s claims of negligent hiring, training, and supervision against the City and Agnew.

 Plaintiffs have to first prove that truck driver  was negligent and that his negligence caused the Plaintiffs injuries before any liability could be imposed upon the trucking company for alleged negligence in the hiring, retention, training or supervision of Robert Barkin. Without first proving the negligence of of the driver, any evidence of allegations pertaining to the negligent hiring, retention, training, and/or supervision is irrelevant and its presentation before the jury unfairly prejudicial to Defendants.

In Mays v. Pico Finance Company, Inc., 339 So.2d 382 (La.App. 2^nd Cir., 11/01/76), the Court addressed the issue of whether an employer ("Pico") had been negligent in hiring an employee ("Shockley") who committed an intentional tort upon a third party. Shockley had been hired by Pico as an assistant manager of its Ruston office and had been working at Pico for approximately 4 ½ months at the time he lured plaintiff ("Mays"), a prospective job candidate, to Monroe for an interview where he raped her three times in a hotel room. Among the claims made by Mays, was the allegation that Pico was negligent in hiring Shockley and that such negligence was a legal cause of the harm to her. The trial court found that Pico was not liable vicariously as the employer of Shockley under LSA-C.C. Art. 2320 as Shockley was not acting within the course and scope of his employment with Pico at the time Mays was raped. The jury also found that Pico was not negligent in the hiring of Shockley. Mays appealed.

The Court first agreed with the finding of the trial court that Shockley was not acting within the course and scope of his employment with Pico at the time that he committed the rape of Mays under the test outlined by the Louisiana Supreme Court in LeBrane v. Lewis, 292 So.2d 216 (la. 1974) and that Pico was not vicariously liable for the acts of Shockley.

Addressing the issue of whether or not Pico had been negligent in the hiring of Shockley, the Court of Appeal of Louisiana, Second Circuit reviewed the facts presented to the trial court and found that, (1) Pico did not make more than a cursory check of Shockley’s background; (2) a thorough investigation by Pico would have revealed that Shockley had pled guilty to theft, was an alcoholic, and had personality problems; and (3) there was no evidence of past sex offenses. The Court agreed with the trial court that Shockley’s past history could not reasonably lead Pico to anticipate that he might commit rape. Mays, 339 So.2d at 385. Further that even if Pico had a duty to protect plaintiff form the actions of an "off-duty" employee, the harm suffered by plaintiff could not have been foreseen and that a man with a past history of only crimes against property will commit rape. Pico was found not liable on the basis of negligence. Id.

Trucking companies must perform  background check on drivers prior to hirin by checking his driving records and contacting prior employers.   Pre-hiring drug testing, medical certification and  routine tests for drugs and alcohol are also required. If pre-hire citations are merely administrative in nature (failure to keep driver’s logbook at current status) or not revealed in DAC report there is nothing in driving history foreseeable that past history result in injury to Plaintiffs. 

We have also been faced with the aburd argument that a potential employer should do MORE than rely on DAC and that they should actually request the records from each State the driver may have driven. If you want more information on how we have addressed this particular issue, please contact me directly.

Suffice to say, In order for a jury to determine whether a USIS/DAC Services screening is appropriate, the jury will require expert testimony to explain the information available through USIS/DAC Services and the reliability of the available information.  Experts with  extensive training and experience in all of these areas, including work history, criminal records, and driving records background screening as applied to hiring both truckers and non-truckers are often used.

If the plaintiff's attorney argues that expertise in these areas is unneccessary, consider asserting that Louisiana state and federal courts have regularly permitted expert testimony regarding industry standards of care, including in cases involving hiring practices:

In  a slip and fall accident case, the trial court abused its discretion in disqualifying an expert in the field of industrial safety, loss prevention and hazard identification, including federal OSHA regulations. Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La.App. 2 Cir. 6/23/93).

When a seaman was injured on a drilling rig, the court permitted an expert in the planning and execution of deep water well drilling programs who had specialized knowledge of the oil rig industry practices, OSHA and Coast Guard regulations, and the American Petroleum Institute ("API") standards. Parfait v. Transocean Offshore, Inc., 2004-1271 (La.App. 4 Cir. 8/10/07), -- So.2d –, 2007 WL 2473252.

In a case involving an explosion on a drilling barge, the court permitted expert testimony regarding the standard of care prevalent in the oil industry. Bergeron v. Blake Drilling & Workover Co., Inc., 599 So.2d 827 (La.App. 1 Cir. 1992).

An expert opinion was permitted to testify on the standard for underwriting practices of life insurance companies. Lane v. Life Ins. Co. of Va., 176 So.2d 202 (La.App. 4 Cir. 1965).

In an employer’s breach of contract action against a staffing agency, the court permitted expert testimony in the standard of care for screening an applicant in the staffing industry. Isla Resources, LLC v. Frey, 2005-1607 (La.App. 3 Cir. 5/31/06), 931 So.2d 1233.

In a civil rights action against the police department, the court permitted an expert witness in the field of police operations and administration with expertise in national standards and applicant screening policies to testify. Snyder v. Trepagnier, 142 F.3d 791 (5th Cir. 1998).

In a civil rights action against a city, the court permitted expert testimony on whether the defendant was negligently hired and retained and whether the defendant was deliberately indifferent to the treatment of prison inmates. Washington v. City of Shreveport, NO. CIV. A 03-2057, 2006 WL 1778756 (W.D.La. Jun 26, 2006).

In a suit involving a boat sinking accident, the court heard expert testimony that the standard industry practice is to hire pilots who have their radar endorsement. Complaint of Cameron Boat Rentals, Inc., 683 F.Supp. 577 (W.D.La. Apr 08, 1988).

Mark Perkins