The Legal Case for Safety Programs Negligent Entrustment.
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Transcript of The Legal Case for Safety Programs Negligent Entrustment.
The Legal Case for Safety ProgramsNegligent Entrustment
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 hasn’t had a lot of crashes
to prove out the need to maintain vigilance or make more improvements?
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?
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
Let’s Jump Into the “Legal-ese”
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.
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
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
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
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
Four Key Issues are Examined
1. Was this driver incompetent?
2. Did employer know, or have reason to know, of this incompetence?
3. Was the vehicle actually entrusted to the operator?
4. Was the driver negligent (i.e. the “proximate cause” of the crash?
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?
License was valid?
Required “paperwork” was up to date?
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????
2. Employer Knew or Should Have Known
“[Negligent Entrustment arises]…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).
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?
2. Employer Knew or Should Have Known All employment records may be researched Driver’s 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
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).
3. Employer Entrusted Vehicle?
• Contractors• Family members of
employer/employee • Service providers
(ie. security guards)
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 driver’s
incompetence/negligence and
the cause of the accident?
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”
Sample CasesLegal Impact of Safety Performance
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.
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.
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)
$6.8 million jury award against KLLM
Plaintiff attorney said that KLLM’s 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.
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
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)
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
Thank Thank
You!You!