Your defense of an accident suit starts with hiring. Those who see our industry as a “profit center” for litigation are looking beyond the facts of the accident itself and focusing on the hiring, training, and supervision of the driver.
This is the first of several postings that will examine this issue. Today we will focus on the basis of their claims—what are the legal theories. Subsequent postings will focus on their tactics and what we can do to protect against and respond to them.
Virtually all trucking lawsuits now contain form-language claims that the company negligently hired, trained, and supervised the driver. These accusations can also include claims of negligent retention and entrustment which have subtle distinctions from the other allegations. Plaintiffs then try to parlay these claims into bases for punitive damages.
These claims cover the continuum of your driver’s employment—from hiring to training, from supervision to retention. Each claim focuses on a particular period on that time line.
“Negligent hiring” is a claim that, prior to hiring the driver, the company knew or should have known of the driver’s unfitness. The focus of this claim is on the adequacy of the trucking company’s pre-employment investigation and evaluation of the prospective driver.
“Negligent training” is a claim that, once the driver was hired, the company failed to provide all of the required training that it knew or should have known that the driver needed to safely perform the duties of a commercial driver. This claims looks at what occurred between the time of hiring and when the driver to put out on the road.
“Negligent supervision” involves what the company did, or failed to do, when the driver is on the job after their hiring and training. It looks at whether, upon commencement of the job by the driver, the company failed to monitor, correct, and improve the driver to ensure safe performance of their duties.
“Negligent retention” is yet another potential claim, close to but distinct from those listed above. The question in this claim is whether the company, during the driver’s employment, became aware or should have become aware of issues with the driver that evidence their unfitness, yet the company takes no remedial action, such as investigation, training, discipline, reassignment, or even termination.
Finally, there is the claim of “negligent entrustment”. This claim is just what it says—entrusting your vehicle to a driver that you knew or should have known was unlicensed, incompetent, or reckless.
These are the corporate claims that form the core of the challenge for companies in litigation. Next time, we’ll look at the amplified challenge and risk of punitive damages—what is required and what it can mean to you.
Doug Marcello is a transportation attorney who has earned his CDL. His law practices focuses upon serving the trucking industry. Based in Central Pennsylvania, he has represented trucking companies in cases throughout the US, having been specially admitted in 35 states. He is a frequent speaker at industry events and driver safety meetings. He has also written numerous articles concerning issues confronting the industry and has produced several DVDs relating to accident response and aggressive defense of claims. All posts by Doug Marcello