The Legal Case for Safety Programs

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The Legal Case for Safety Programs

• Negligent Entrustment

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The Legal Case for Safety

• Elevating safety to a TOP Management Priority
  can be a tough sell
• Crash statistics (the big three mentioned
  earlier) can be one way, but
• What if money is really tight to expand or
  continue programs?
• What if your company hasnt had a lot of crashes
  to prove out the need to maintain vigilance or
  make more improvements?

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The Legal Case for Safety

• Even a single crash can have the potential to
• Shut down a firm
• Develop bad press
• Invite regulators to investigate
• Black mark on record for insurance coverage
• Watch out for any time a skilled plaintiff's
  attorney gets involved and asks tough questions

• Who at your company is in charge of providing
  answers?

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Disclaimer No Legal Advice

• I am not an attorney
• Legal issues are subject to change
• The specific facts of any case are unique
• Consult with your own attorney if you have
  specific concerns

Lets Jump Into the Legal-ese
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What is Negligent Entrustment?
To charge someone with a trust or duty in an
inattentive or careless fashion or without
completing required process steps
Someone could include employee, contractor,
third party service provider, family member, etc.
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What is Respondeat Superior?
Employer is responsible for the conduct of an
employee while the employee is acting in
the scope of his/her employment
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What is 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
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Commercial Vehicle Application
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
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Commercial Vehicle Example
A collision occurs and it is later alleged that
the operator was dispatched without due regard
for their qualification or ability to safely
operate the vehicle
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Four Key Issues are Examined

• Was this driver incompetent?
• Did employer know, or have reason to know, of
  this incompetence?
• Was the vehicle actually entrusted to the
  operator?
• Was the driver negligent (i.e. the proximate
  cause of the crash?

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1. 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 paperwork was up to date?

• License was valid?

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1. Demonstrating Incompetence

• By reason of experience, training, physical
  qualification was the driver
• Can demonstrate safe operation?
• Able to determine that cargo was loaded and/or
  secured properly/safely
• Meet DOT Standards????

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2. Employer Knew or Should Have Known
Negligent Entrustment arisesfrom 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).
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2. Employer Knew or Should Have Known

• Did your company have a policy on
• Driver Selection?
• Driver Orientation and Training?
• Driver Performance Review
• Accident Investigation/Review
• How do managers document/verify that the policies
  are followed?

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2. Employer Knew or Should Have Known

• All employment records may be researched
• Drivers background will be closely examined,
  and
• Facts directly related to the incompetence that
  are discovered, could have been discovered by the
  employer
• Allowing exceptions to business practices (ie.
  Safety, hiring, discipline, etc.)
• Documentation showing incompetence without
  documenting a response action

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3. Employer Entrusted Vehicle?
"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, ."
(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).
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3. Employer Entrusted Vehicle?

• Contractors
• Family members of employer/employee
• Service providers
• (ie. security guards)

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4. Driver Negligent in Crash?

• Accident reports or investigations
• Citations/Tickets as a result of the accident
• Accident Photos
• Was there a direct link between the drivers
  incompetence/negligence and
• the cause of the accident?

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Key H.R. and Safety Areas

• Driver recruiting and selection practices
• New hire evaluation and orientation
• Ongoing driver review and training
• Post accident reviews and training

Business Practices Provide Your Prevention and
Defense
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Sample Cases

• Legal Impact of Safety Performance

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Byer v. Market Transport

• Not A Negligent Entrustment Case, but clearly a
  potential company killer
• 8,132,000. Jury verdict for plaintiffs after
  rejecting a settlement offer of 4.5 million.
• Byer, age 15, suffered irreversible brain damage
  when the Byer family car was sideswiped by a
  tractor and trailer. The jury deliberated one day
  before delivering its unanimous verdict.

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Nevarez v. Foremost Dairies

• Not A Negligent Entrustment Case, but
• 11,000,000. A multi-vehicle auto-truck collision
  that resulted in identical C-5/C-6 quadriplegic
  injuries to a father and daughter, when their car
  was rear-ended on smoke-covered I-5 by the
  defendant's tractor and trailer.

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Cwiklinski v. Jennings

• The complaint alleged plaintiff's brother, who
  was an alcoholic and lost his license, had taken
  her car without permission on five earlier
  occasions. The trial court refused to impose upon
  her the duty to prevent her brother from taking
  her car and entered summary judgment.
• It is insufficient to simply allege an owner left
  car keys where they could be taken. The court
  believed it was not foreseeable for the sister to
  believe her brother would take the car, give it
  to a friend who would drive it negligently and
  cause an accident.
• 267 Ill. App. 3d 598, 641 N.E.2d 921, 204 Ill.
  Dec. 491 (1st Dist. 1994)

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6.8 million jury award against KLLM

• Plaintiff attorney said that KLLMs driver had
• eight preventable accidents and six moving
  violations in the three years before he was hired
  
• and two additional minor accidents and another
  four tickets in the months before the accident.
• The jury found that KLLM ignored its own
  standards when it hired Stuart Foy, the truck
  driver accused of causing the August 2000
  accident.

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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)
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Bus Crash-Terrell, TX, 6/24/02

• 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 8 traffic
  tickets during the last three years for speeding,
  speeding in a school zone, driving the wrong way
  on a one-way street and for not having insurance
• Despite the extensive history of speeding and
  traffic tickets, the driver still managed to
  obtain a commercial driver's license (and gain
  employment)

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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

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Thank You!