WILL YOUR SAFETY PROGRAM
HOLD UP IN COURT?
We live in a “victim society” where
people blame everyone but
themselves for their troubles.
Lawyers will try to pick apart your
safety program to prove you did not
do what you should or that you did
what you should not have done.
“Everyone wants to sue a trucking company”
Judges AND Juries are afraid of large trucks
Trucking Companies make “easy targets”
I WANT TO SUE A TRUCKING COMPANY
“Punitive damages claims in trucking liability cases usually start
with an allegation that the truck driver acted intentionally,
wantonly or with gross negligence when he caused the accident.”
Plaintiffs often allege that the trucking company intentionally,
wantonly, recklessly or fraudulently endangered the public by
placing that driver on the road.
“Punitive damages can also arise from claims that a trucking
company or driver fraudulently altered or concealed evidence, or
that an insurance company did not negotiate a claim in good faith.
Such a claim allows the plaintiff’s attorney to delve into the past
history of both the company and its driver and the company’s
hiring, training and disciplinary system during discovery. In most
cases, a punitive damages CLAIM grossly inflates the cost of
defending a lawsuit” (emphasis mine).
Stockard R. Hickey III
Frost Brown Todd
Louisville, KY
IF IT IS NOT IN WRITING, IF IT IS NOT
rhickey@fbtlaw.com
DATED, IF IT IS NOT SIGNED, OR IF YOU
CANNOT FIND IT, IT DIDN’T HAPPEN
GOTCHA!!!
WHEN A JUDGE SAYS: “PROVE YOU ADEQUATELY TRAINED HIM!
Actual (normal) damages occur are when a defendant is found at fault
and pays all losses suffered by the plaintiff. This includes medical bills,
damages to property, lost wages, etc.
Punitive Damages come into effect when a judge or jury wants to send a
message to the defendant. It is usually because the company did
something it shouldn’t have (hired a drunk) or didn’t do something it
should have (ongoing safety training).
The driver of the truck did not want the
load to be late. The driver of the truck
only had 5 hours of sleep in 24 hours. The
driver of the truck started driving anyway.
The driver of the truck was functionally
asleep and did not see the stopped cars.
The driver of the truck hit the stopped
cars at 65 mph. The driver of this car and
nine others died..
The trucking company was found at fault. The punitive damage award was
$64,000,000. That is right – Sixty four million dollars! In part because they
couldn’t prove they had adequately trailed their driver about seep patterns.
WHEN – NOT IF – WHEN YOU GO TO COURT
IT IS VITAL THAT YOU ARE PREPARED
If it is not in writing – If it is not signed – If it is not dated
If you can’t find it - IT DID NOT HAPPEN
WHEN IN COURT, YOU MUST BE ABLE TO PROVE 5 THINGS
1. PROPER HIRING - ADEQUATE HIRING POLICIES AND STANDARDS THE SAME
FOR EACH HIRE – NO EXCEPTIONS (negligent entrustment).
2. POSITIVE RETENTION - DISCIPLINE MUST BE THE
SAME FOR ALL DRIVERS DO NOT KEEP A DRIVER
WHO SHOLD BE TERMINATED (negligent retention).
3. DRIVER COMPLIANCE - IF YOUR DRIVER SHOULD
NOT BE THERE, YOU COULD HAVE TO PAY PUNITIVE
DAMAGES (driver negligence).
4. FUNCTIONALLY AWAKE - YOU MUST PROVE YOU TRAINED YOUR DRIVERS IN
PROPER REST PATTERNS (functionally asleep).
5. PROPER SURVAILANCE - YOU MUST PROVE YOUR DRIVER WAS ADEQUATELY
TRAINED TO MAINTAIN SURVEILLANCE WHILE DRIVING (last clear chance).
REMEMBER: IF IT IS NOT IN WRITING – IF IT IS NOT SIGNED – IF IT IS NOT DATED
IF YOU CANNOT FIND IT - IT
DID NOT HAPPEN
WHY DID I HIRE THAT GUY? IS #1
(NEGLIGENT ENTRUSTMENT)
Your company must have a written policy delineating the criteria
for hiring a driver, AND you must follow it without exception.
Always take a
prospective
driver for a road
test. The route
must be written
and the same
for each driver.
Watch his or her
attitude!
• Do not hire someone
when you feel desperate for
drivers.
• The driver application
must conform to FMCSR
391.21.
• Have you EVER failed a
drug test? Not hired –
doesn’t show.
Remember, if he looks like Rasputin the Mad Monk
he will probably testify like Rasputin the Mad Monk!
WHY DID I HIRE THAT GUY? (NEGLIGENT ENTRUSTMENT)
A truck driver changed lanes to the right and the car driver changed lanes to the
left at the same time.
This was the result
In the deposition, attorney asked the
truck driver “have you ever failed a drug
test?” The truck driver said “yes.” He
had applied for a job and FAILED the drug
Test. The company did not hire him so
the drug test failure would not show up
on a previous employer check..
90 days later he applied at another
company. This time he passed, and
the company hired him.
The car driver won $960,000 because the trucking
company was guilty of “negligent entrustment” when it
failed to ask if he had ever failed a drug test.
HE’S A GREAT GUY, BUT HE WON’T FOLLOW
POLLICY IS #2 (NEGLIGENT RETENTION)
Your company must have written policies covering the discipline
and termination of drivers, AND you must follow them without
exception. You must keep a receipt from the driver(s) for them.
If it is not written, if it is not dated, if it is
not signed, IT DID NOT HAPPEN!
If a driver violates a company policy, he must
be disciplined, and you must keep a signed and
dated record of what, when, how.
If you fire someone for breaking a company policy
and do not discharge another driver who does the
same thing, you face punitive damages if the
second driver has an accident.
NEVER discharge
someone when you
are angry.
DRIVER COMPLIANCE IS #3
(DRIVER NEGLIGENCE)
• If your driver is not supposed to be there, and if the
accident would not have happened if your driver was not
there, you can be liable for punitive damages.
• If your driver is illegal – out of hours, etc. he is not
supposed to be there.
• You must keep records showing your driver was properly
trained to recognize dangerous road conditions and find a
safe place to pull off the road.
• If your truck has bald tires, faulty brakes, burned out
lights, it is not supposed to be there.
• You must keep records showing your driver was REALLY
trained to conduct a proper pre- trip inspection.
• You must keep records of post trip inspections for 90 days.
You must keep records showing your drivers AND dispatchers were properly
trained in hours of service.
DRIVER COMPLIANCE IS #3
On January 18, 2006, a U.S. District Court
judge ordered the former president of a
Rustburg, VA trucking company to pay a
$10,000 fine and serve 30 days in jail for
his role in falsifying driver logbooks to
conceal violations of Federal Motor
Carrier Safety Administration (FMCSA)
hours-of-service regulations.
Because
he knew or should have known about it.
A company dispatcher was fined $3,400 and placed
on three months home confinement. The drivers
were also sentenced.
FUNCTIONALLY AWAKE IS #4
If it can be proven in court that your driver didn’t have enough
sleep, or that you did not train him about driver fatigue,
circadian sleep cycles, and proper rest, your company can be
held liable for punitive damages.
With his eyes wide open, he slammed
into a line of stopped traffic.
• Cell phone records will be checked
against sleeper berth times or the hours
before the driver came on duty.
• Debit or credit card records will be
checked against driver logs to check for
falsification.
• You must be able to prove in court that
you trained your drivers to pull over in a
safe place and rest when they show signs
of driver fatigue.
PROPER SURVEILENCE IS #5 (LAST CLEAR CHANCE)
If it can be proven in court that your driver had or SHOULD HAVE HAD the last
clear chance to avoid the accident and did not, your company can be held liable
for punitive damages.
• Settled for $1,000,000.
• The brakes locked up and the 1st driver tried
to get off the road onto the shoulder.
• Later a 2nd truck driver hit the corner of the
trailer and the 1st driver was killed.
• Since the brakes were frozen on the 1st
truck, the 2nd driver had the last clear chance
to avoid the accident and did not.
• Therefore his company was liable for
damages.
YOU MUST BE ABLE TO PROVE YOU ADEQUATELY TRAINED YOUR DRIVER
We are not saying it is right, fair, or even moral, but it is a precedent.
READ IT FOR YOURSELF!
The rule of last clear chance operates when the plaintiff
negligently enters into an area of danger from which the person
cannot extricate himself or herself.
The defendant has the final opportunity to prevent the harm
that the plaintiff otherwise will suffer.
The inattentive defendant is one who fails to fulfill the duty to
maintain a surveillance in order to see the plaintiff in time to
avoid the harm, perceive the person's helpless or inattentive
condition, and thereby exercise reasonable care to act in time to
avoid the harm.
IT IS A TRUCK DRIVER’S RESPONSIBILITY
TO MAINTAIN ADEQUATE SURVEILLANCE AT ALL TIMES
We are not saying it is right, fair, or even moral, but it is a precedent.
READ IT FOR YOURSELF!
Due to the defendant's negligence, however, he or she
fails to see the plaintiff in time, and injury occurs. The
defendant's negligence must occur subsequent to that
point in time when the person discovered or should
have discovered the plaintiff's peril.
In the law of torts, the doctrine excuses or negates the
effect of the plaintiff's contributory negligence and
permits him or her … to recover damages regardless of
his or her own lack of ordinary care.
Thompson & Gale Legal Encyclopedia (emphasis mine)
YOU MUST TRAIN YOUR DRIVERS IN PROPER SURVEILLANCE
Safety Training Essentials
1. Carefully plan a relevant curriculum and be
absolutely certain that you teach the drivers
everything you have planned in the curriculum.
a.
You must keep a copy of the curriculum that
includes the date and place it was used and
you must sign it.
b. You must have a sign in sheet that includes a
heading listing the subjects taught and place
for each driver to print and sign their name
and date it.
c.
Clip the sign in sheet to the curriculum.
2. Use real life examples and current trends to
make the material relevant to drivers.
If it is not in writing, if it is not signed, if it is not dated, or if you
cannot find it – as far as a court is concerned, it did not happen.
Safety Training Essentials
4. Administer a quiz so you can document that the
drivers learned the material and can use it.
5. The drivers must answer 100% correctly, and you
must retain copies both signed and dated.
6. Give your drivers a well planned handout that
reinforces the training.
7. Keep a copy you have signed and dated on file.
8. Remember, if it is not in writing – if it is not
signed – if it is not dated – it didn’t happen.
AND, it must be legible to be used in court.
Remedial Training and
Disciplinary Essentials
You must have a written policy for both Remedial and Disciplinary training.
You must retain a copy of the policy as well as a receipt signed and dated by
each driver proving they received a copy.
Usually a driver handbook is used.
You must institute reasonable training commensurate
with the infraction.
Do not teach proper following distance as remedial
training for a speeding ticket.
If you cannot produce a signed, dated copy or
the training or discipline, it did not happen.
Remedial Training and
Disciplinary Essentials
You must be consistent and use the same training or
discipline for each driver – no exceptions.
You must retain legible (name printed), signed, dated
copies of all training and disciplinary actions taken.
All driver discipline must be in writing and it must be
signed by the driver.
If you don’t have well documented provable discipline
and remedial training for any driver who has been
convicted of a traffic violation, had a preventable crash, or
has violated company policy:
YOU could cost your company millions of dollars!
VERTICAL ALIANCE
GROUP
CAN TAKE CARE OF
ALL YOUR TRAINING AND
RECORD KEEPING
NEEDS
Best Practices Series
“WILL YOUR SAFETY PROGRAM HOLD UP IN
COURT? ”
Questions and Comments
Guest:
deanhuth1@tds.net
615-793-9988
Host:
skessler@verticalag.com