Negligent Entrustment
When is a license check
not enough?
Session Objectives
1. Discuss legal concepts attached to
vehicle collisions
2. Review employer strategies to reduce
event exposure and deal with potential
legal consequences
3. Review case law examples (USA
jurisdiction) where employer was held
accountable
Disclaimer – No Legal Advice
I am not an attorney
Legal issues are subject to change &
vary by jurisdiction
Each case is unique
While traffic laws may vary,
enforcement & interpretation varies
even more greatly
Post-Collision Questions
• While insurance programs
help deal with physical
damages, bodily injuries
and financial
consequences, there
may be many open
questions….
Post-Collision Questions
• Questions of “fault” and/or “negligence”
contributed by each driver.
– Were there violations of traffic safety laws
proximate to the cause?
– Was there impairment of either driver?
– Were there roadway design issues or other
“engineered” issues?
– Was each driver “competent”?
Post-Collision Questions
• Are any other persons involved through
their relationship to the driver(s)?
– Vicarious Liability
– Respondeat Superior (let the master answer)
Vicarious Liability
Vehicle owner is responsible for
the conduct of driver who has
been given permission
to operate the vehicle
(i.e. teenage child,
neighbor)
Respondeat Superior
Employer is responsible for
the conduct of an employee
while the employee is
acting in the scope of
his/her employment
Personal versus Business Driving
• Examine:
– Ownership of vehicle
– Garage location and first destination of the day
– Typical use of vehicle
– Carriage of passengers or goods
– Are trips self selected or suggested by employer
– Conduct of driver during trip
(ie. Use of cell phone to transact
“business” while driving)
Personal versus Business Driving
• If a “personal” trip, then crash
investigation will examine:
– Individual’s contribution of fault/negligence
– Driver impairment
– Individual's license to drive (status)
– Whether material traffic laws may have
been violated
(i.e. Impairment,
Excessive Speed, etc.)
Personal versus Business Driving
• If a “business” trip, then the investigation
may expand to determine whether the
employer's practices contributed to the
event:
– Hiring Practices,
– Driver Supervision,
– Vehicle Maintenance,
– Entrustment of Vehicle
Negligent Hiring
Employer responsible for the
conduct of an employee if the
employer failed to use due care in
hiring and retaining such an
employee
Negligent Supervision
Negligent Retention
Employer responsible for the conduct
of an incompetent employee if the
employer failed to use due care in
monitoring (to detect problems) and
retaining (after detecting and failing
to address problems)
This duty is not limited to actions occurring on the employer's premises
Negligent Maintenance
Employer responsible for the care
and upkeep of the vehicle where
the failure of the employer led to the
unsafe condition of the vehicle that
also contributed to the collision.
(i.e. bad tires, nonfunctioning brakes, etc. were
materially responsible for causing the crash)
What is Negligent Entrustment?
To charge someone with a trust or
duty in an inattentive or careless
fashion or without completing
required process steps
Hmmm…
What is Negligent Entrustment?
Allowing another person to use a
vehicle knowing, or having reason to
know, that the use of the vehicle by this
person creates a risk of harm to others
A collision occurs and it is later alleged that the
employee or contractor was dispatched without due
regard for their qualification or ability to safely
operate the vehicle
Five Specific “Tests”
1. Driver was negligent in crash
2. The driver's negligence proximately caused
the crash
3. Vehicle owner entrusted the vehicle
4. The driver is deemed incompetent
5. The employer knew or should have known
of this incompetence
1. Driver Negligent in Crash?
• Accident reports or investigations
• Citations/Tickets as a result of the
accident
• Accident Photos
2. Driver was Proximate Cause?
• Again, will be determined by
investigation, reports and “experts” on
crash scenes
• Was there a direct link between the
driver’s incompetence/negligence and
the cause of the accident?
3. Employer Entrusted Vehicle?
Entrusted if the driver is “given
keys” and the vehicle was not
taken without permission
3. Employer Entrusted Vehicle?
• Entrustment is the act of giving access,
not based on nature of relationship.
• So contractors, third party service
providers (ie. security guards) or family
members of employer/employee could
be “entrusted”
4. Demonstrating Incompetence
 Was the driver “qualified” to drive?
Subject to specific safety regulations?
In
compliance with those regulations?
Possess
proper license for vehicle type?
Required
License
“paperwork” was up to date?
was valid?
4. Demonstrating Incompetence
• By reason of experience, training,
physical qualification was the driver:
– Able to demonstrate “safe operation” of
vehicle?
– Able to determine that cargo was loaded
and/or secured properly/safely
4. Demonstrating Incompetence
• Use of Federal Motor Carrier Safety
Regulations as a “standard” is common
• Potential to apply these standards even
if the affected driver does not operate a
“commercial motor vehicle”
5. Employer Knew or
Should Have Known
"Liability for the negligence of the incompetent driver
to whom an automobile is entrusted does not arise
out of the relationship of the parties, but from the act
of entrustment of the motor vehicle, with permission
to operate the same, to one whose incompetency,
inexperience, or recklessness is known or should
have been known by the owner."
(5A Am.Jur., Automobiles and Highway Traffic e 580 pp. 590-591; see also 8
Am.Jur.2d, Automobiles and Highway Traffic, ee 561,573; 60 C.J.S., Motor
Vehicles, e 431).
5. Employer Knew or
Should Have Known
• All employment records may be researched
including the driver’s background, and…
• Facts directly related to the incompetence
that are discovered, could have been
discovered by the employer
5. Employer Knew or
Should Have Known
• Ignoring a real or potential problem is
not an excuse or defense:
– Allowing “exceptions” to business practices
(ie. Safety, hiring, discipline, etc.)
– Documentation showing incompetence
without documenting a response action
– Doing nothing at all (i.e. “no policy”)
Spoliation
• Spoliation of Evidence is asserted
where defendant “lost” evidence that
may have been material to the plaintiff’s
case.
Spoliation
• Some jurisdictions allow suit as a
separate tort action against
management team
• Others handle as instruction to jury to
assume the evidence was damaging to
the defense’s case.
Business Practices
Prevention and “Defense”
Driver Training
Policy Development
Hiring Practices
Driver Supervision
Program
Action Steps?
• As a manager who is responsible for
people that drive on the job…How do I:
–Prevent collisions, preserve property,
protect lives
–Develop and document
policies/practices
–Prepare a defense in case of litigation
Action Steps
1. Employer policies regarding:
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Driver Selection/Qualification/Training
Driver Supervision/Monitoring
Permissive Use of Vehicles & Maintenance
Post-Accident investigations
2. Governmental regulations (if applies)
3. Managers should document that the
regulations/policies are followed
Examples of Standards
• USA
– Federal Motor Carrier Safety Regulations
• SafeStat Online
• SafeStat Score
– American National Standards Institute, Z15
Standard, Safe Practices for Motor
Vehicle Operations
Examples of Standards
• Canada
– Carrier Safety Management System
(CSMS) standard
• UK
– Corporate Responsibility / Driving for Work
– Corporate Manslaughter and Corporate
Homicide Act 2007
• Australia
– National Transport Commission
Sample Cases
Legal Impact of Safety
Performance
11/2008 - Tidwell v. Kemper, et.al.
• N.E. lawsuit alleges:
– Company entrusted their vehicle to Fink
– Employer knew or should have known of
issues, but allowed Fink to drive anyway.
“Man pleads not guilty to hit-run” from the Monterey County Herald
11/2008 - Tidwell v. Kemper, et.al.
• N.E. lawsuit alleges defendant driver :
– had previous convictions for drunk driving
in 1993 and 2006
– was participating in drug-treatment
program after an arrest in 2007
– was driving on a restricted use license
(allowed to drive to and from work location
and to/from treatment program site)
“Man pleads not guilty to hit-run” from the Monterey County Herald
January 8, 2009
• Intersection collision outside of a truckstop
(filling station) where the plaintiff alleges
truck driver was negligent by:
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failing to keep a proper lookout,
driving in a reckless manner,
driving too fast,
proceeding into an intersection without first
determining whether it was safe to do so,
failing to yield the right-of-way,
failing to sound his horn,
failing to slow down to avoid a collision,
failing to obey traffic laws
entering the intersection while he knew traffic was
present.
Madison-St. Clair, The Record, Jan 12, 2008
January 8, 2009
• Further the plaintiff alleges employer was
negligent by:
• failing to properly train its employees,
• failing to properly monitor its employees,
• failing to properly screen applicants in the hiring
process to eliminate unqualified drivers,
• failing to provide proper equipment to its employees,
• failing to provide proper training to its employees,
• failing to properly supervise its employees
• failing to properly determine whether its employees
were capable of safely operating trucks
Madison-St. Clair, The Record, Jan 12, 2008
Bus Crash-Terrell, TX, 6/24/02
• A chartered bus taking youngsters to a
church camp crashed into the concrete
pillar of an overpass, killing the driver
and four passengers
“…the families of nine
victims have filed a
lawsuit against the two
bus companies involved in
the trip and the company
that owned the bus.”
(Star-Telegram 08/06/02)
Bus Crash-Terrell, TX, 6/24/02
• Per local NBC TV report - the bus driver
was twice cited (previously) for driving
90 mph in a 60 zone.
• Also, the driver has had at least eight
traffic tickets during the last three years
for speeding, speeding in a school
zone, driving the wrong way on a oneway street and for not having insurance
Bus Crash-Terrell, TX, 6/24/02
• According to a news report on
August 9, 2008:
–A Dallas attorney won a $36 million
verdict for one of the families in the
2002 crash that killed five and injured
about twenty.
Chron.com (Houston Chronicle, Houston, TX)
Sherman, TX – 8/2008
• Motor coach accident occurred just after
midnight, and may have been a result of
a blown tire
– Using a recapped tire is a violation
– The driver’s medical cert was out of date
– The company had a history of various
violations (pattern)
– 17 deaths from this crash
$6.8 million jury award against KLLM
• The jury found that KLLM ignored its own standards
when it hired Stuart Foy, the truck driver accused of
causing the August 2000 accident
• Plaintiff counsel said Foy had:
– 8 preventable accidents and 6 moving violations in the
three years before he was hired and
– 2 additional minor accidents and another 4 tickets in the
months before the accident
• Foy’s previous driving record should have
prevented him from being hired & his record after
he was hired should have led to his being fired
•Reported in Land Line - 01/02/2003
Janesville, WI 3/25/99
• Police attempted to stop a passenger van
that was speeding
• The driver who had no valid license
attempted to switch seats with a passenger
while speeding down the highway
• The vehicle rolled, ejecting 12 passengers:
– Passengers were aged 15 to 25
– None wore seatbelts
– Seven were killed and five seriously injured
Janesville, WI 3/25/99
• Driver pleaded guilty to vehicular homicide
and was sentenced to seven years in prison
• Company was also charged with labor law
violations as a result of crash
• Company was sued by families, continues to
run crews of door-to-door sales people
Summary
• Anyone who is charged with driving
should be carefully qualified
• Business practices should be in place
and followed without exceptions
• Take corrective actions when needed
• Document your actions
• “Not knowing” is never an excuse or a
defense