In 2011 a motorist was driving the wrong way on an interstate in Indiana. As other drivers swerved to avoid the wrong-way driver, a commercial truck driver was oblivious to what was transpiring in front of him. The outcome is an avoidable case of negligence resulting in a 54 million dollar verdict against the motor carrier and forever altering the lives of those involved.
While the commercial truck driver, speeding and driving on a suspended license, had “no idea” that there was a wrong-way driver, he managed to crash into a Jeep that slammed into the fuel tank of another semi-truck. The Jeep driver was doused in diesel fuel but managed to extricate himself from the wreckage. Post-accident, the Jeep driver suffered from numerous traumatic injuries, including post-traumatic stress, depression, and anxiety. His physical injuries required him to undergo nine surgeries, including spinal fusion and a metal knee replacement. Nerve damage caused the Jeep driver to become incontinent. It affected his marriage and relationships with family members. He became unable to work, regularly takes narcotics to manage his pain, and sees a counselor to help with depression and anxiety.
The Commercial Truck Driver
The commercial truck driver applied with the motor carrier in January 2010. As part of the pre-hire process, the carrier obtained a driver qualification file which reported that the driver had a commercial driver’s license but had never completed a truck driving course. Within the previous three years, the driver had been involved in four accidents, had three moving violations, and had his license suspended twice. By contrast, the driver’s application listed two accidents, no moving violations, and one license suspension. Seven different companies employed the driver over the previous ten years; his application recorded six. The driver’s application listed one termination, although, in court, the driver testified that he had never been terminated. The driver was fired from four of those seven companies. Finally, the driver was convicted of nine traffic-related offenses ranging from speeding to a multitude of moving violations. Notably, the driver was convicted of four counts of felony reckless aggravated assault stemming from a 2004 incident where he busted a car’s headlights that he believed was tailgating him.
A safety coordinator at the motor carrier initially reviewed and rejected the driver’s background against the carrier’s safety standards. Because the driver had a felony conviction within the last ten years, he was “automatically disqualified” under the carrier’s safety standards. However, the carrier’s safety director overturned the coordinator’s rejection and found that the driver was a “marginal candidate.” The director asserted the carrier was forced to employ “marginal drivers” to be profitable. Under oath, the safety director testified that the driver’s felony conviction was “directly related” to a commercial truck driver’s job. Additionally, he agreed that the driver “never should have been allowed to drive a rig” under the carrier’s safety standards. Nonetheless, the driver was hired.
While under the company’s employ, the driver failed to attend a safety orientation on time. He received five warning violations shortly after that and was placed on probation for six months. Post-probation, the driver was required to attend a safety meeting, which he never participated in before hitting the road. Within weeks he received a speeding ticket, three moving violations, a logbook violation, and had his license suspended over the next nine months. The carrier continued to employ the driver and dispatched him while his license was suspended.
Further, the carrier didn’t run the driver’s motor vehicle records or monitor his license for violations, causing the carrier to be unaware of the driver’s reckless history. In reality, while the driver shouldn’t have been hired, he had amassed so many violations in his first year at the company that he should have been terminated according to the carrier’s safety policy. Yet, he continued to drive.
The Legal Standard
Employers must act reasonably when hiring, supervising and retaining workers. Negligent hiring occurs when an employer fails to verify that a prospective employee may present a danger to the organization. Negligent hiring claims can be brought by an individual when an employer fails to screen a worker adequately, and that worker subsequently harms someone else.
In making a negligent hiring claim, the harmed individual argues that the business knew or should have known their worker’s background history before hiring them. While states have defined the elements necessary to prove a negligent hiring claim, at their most basic, the harmed party must establish:
- The employer owed a “duty of care” to others when hiring the worker
- The employer breached that duty
- The breach was the cause of the injury or harm
- The injury or harm was reasonably foreseeable
- Damages resulted from the employer’s inaction.
If an employer is not diligent in assessing a worker’s background and that worker harms someone, that employer could be on the line for the worker’s actions. And employers are responsible for the ongoing supervision of their workers and ensuring that their retention does not indicate foreseeable harm to the organization’s workforce or its clients.
In the case of the Jeep driver injured at the hands of a commercial driver operating on a suspended license, the jury found that the motor carrier was negligent in their hiring and retention of the driver. The jury awarded the plaintiffs compensatory damages of $19,155,900 and punitive damages of $35 million, noting that the motor carrier’s conduct was “willful and wanton.”
Righting a Preventable Wrong
The Federal Motor Carrier Safety Regulations (FMCSR) identify the types of checks motor carriers must perform when hiring a new driver. While the FMCSR are well-intentioned, they may fall short of protecting a motor carrier from a claim of negligence. Going beyond the minimum requirements instilled by the FMCSR can help to mitigate risk to motor carriers.
Some gaps posed by relying solely on FMCSR’s requirements for vetting drivers are obvious; take criminal screening, for example. While FMCSR does not require that a motor carrier conduct criminal background checks, the advantages to doing so are numerous. Criminal search solutions are available with different scopes in mind and a variety of search depths available. For example, a search of criminal felony and misdemeanor searches within the counties identified through the driver’s provided address history is widely considered a best practice among larger motor carriers. Other options such as criminal court searches conducted in jurisdictions found through a trace of the driver’s Social Security Number or derived from databases such as HireRight’s Widescreen product help provide additional risk mitigation. Motor carriers concerned with crimes involving human trafficking or specific drug-related crimes may also consider Federal District Court criminal searches. The bottom line is that not conducting a criminal search and turning a blind eye to a driver’s potential criminal history may provide a case for negligent hiring.
Other opportunities for risk mitigation are not as apparent but just as important. Carriers may consider verifying employment beyond the three years required by the FMCSR. Solutions like DAC Employment History File reviews possible employment history against more than six million commercial driver records supplied by over 2,500 carriers. Requesting motor vehicle records beyond FMCSR’s requirements can also help to bridge a gap.
Verifying the driver’s identity and the existence of commercial driver’s licenses held in states other than those disclosed by the driver can also help reduce risk. The American Association of Motor Vehicle Administrators’ Commercial Driver’s License Information System (CDLIS) can be used to verify that a driver has listed all states where a CDL is held. HireRight’s CDLIS+ solution also includes records maintained within a proprietary database, which may identify additional states in which a driver’s license was held that are not contained in CDLIS.
Reviewing accidents recorded with the DOT can also strengthen a motor carrier’s defense that they are holistically reviewing the risk imparted by the driver. The Federal Motor Carrier Safety Administration’s (FMCSA) Pre-Employment Screening Program (PSP) includes the most recent five years of crash data (DOT recordable accidents) and three years of roadside inspection data from the Motor Carrier Management Information System (MCMIS).
Finally, many carriers are starting to recognize the power of ongoing monitoring. Motor carriers don’t have to be in the dark about the risk brewing with their drivers’ histories. Monitoring solutions like arrest record monitoring, criminal record monitoring, and driver license monitoring help provide carriers with actionable information in advance of periodic rechecks.
Large legal verdicts known as nuclear verdicts against transportation companies are a prominent part of the legal landscape. Register for our webinar on Mitigating Risk from Nuclear Verdicts due to Negligent Hiring Claims on March 11 and hear from legal and transportation experts discuss trends, cases, and background screening practices you can employ to help mitigate risk.