Employer Liability in Trucking Accidents: Negligent Retention / Hiring

Over the decades of practice experience gained through representing accident victims, the Truck Collision Attorneys of Zneimer & Zneimer, P.C. have observed multiple scenarios in which a motor carrier’s negligence was a critical component or contributing factor in establishing liability and obtaining compensation damages. Claims for general negligence are nearly always asserted in personal injury actions, however many actions also include additional claims for specific types of negligence, such as negligent hiring or retention.

As case law provides, an employer has a duty to refrain retaining or hiring an employee that poses a threat to other persons that the employee may be exposed to. An action for negligent hiring or retention, requires that the Plaintiff plead and prove the following elements:

1. The employer knew or should have known that the employee had a particular unfitness for the position so as to create danger or harm to third persons; and
2. That such particular unfitness was known or should have been known at the time of hiring or retention; and
3. That the particular unfitness was the proximate cause of the plaintiff’s injury.

In assessing the presence of an employer’s negligent or reckless conduct in the retention or hiring process, a common area inquired upon is the “knew or should have known” language provided in the first two elements of this particular type of action. Although federal law does not require that a precise set of procedures be utilized during the employment process, motor carriers should always keep in mind, that at a very minimum, they will be held to standards of reasonableness.

Certainly obtaining DMV records to verify the status of a driver’s license, is a good starting point. In doing so, motor carriers should pay close attention to two key regulations:

1. Single License Requirement: commercial drivers must not possess more than one license at a time; and
2. Medical Qualification: commercial drivers must have a current medical examiner’s certificate evidencing that the driver is physically qualified

Driving history is another essential component in the hiring process. Prior instances of license suspensions, violations, as well as accident history should all be taken into consideration during the hiring process. The FMCSA provides a variety of resources to motor carriers that can provide additional information regarding a particular driver, as well as assist in determining the fitness of a particular truck driver.

For example, motor carriers may purchase information provided through the FMCSA’s Pre-Employment Screening Program (PSP) “to assist in determining if a driver applicant should be hired.” PSP data provides 5 years of crash data and 3 years of inspection data on a truck driver. Although the program is only voluntary, enrollment in PSP can be highly valuable to a trucking company, particularly when considering the nominal fees involved, in comparison to a motor carrier’s potential exposure to civil liability, as well as auditing, imposition of fines, out-of-service orders, or other processes of intervention associated with state or federal regulation.

Perhaps more notable, is the proven effectiveness of the program, as reported by the FMCSA in October 2013, following a study, entitled the Safety Analysis and Industry Impacts of the Pre-Employment Screening Program (PSP). According to the study, trucking companies that regularly used the program, on average, reduced their driver out-of-service rates by 17.2%, in addition to an 8% reduction in crash rates.

The Truck Collision Attorneys of Zneimer & Zneimer, P.C. recognize that the employment procedures used by motor carriers can play a huge role in ensuring the safety of other motorists whom are forced to share our roadways with these massive vehicles. When the negligent actions of a trucking company results in an accident that causes an injury or fatality, our attorneys believe that they should be held accountable to the fullest extent possible.

Trucking accidents can be highly complex, and require a thorough investigation and analysis process, in order to determine each and every potential claim that can be asserted on a victim’s behalf. At Zneimer & Zneimer, P.C., we are not just personal injury and wrongful death attorneys—we are Trucking Collision Attorneys. Let our legal team put our decades of experience to work for you.