Presenting a live 90-minute webinar with interactive Q&A Motor Carrier Claims for Negligent Entrustment, Hiring and Retention Navigating Discovery, Apportionment of Fault, Impact of Motor Carrier's Admission of Vicarious Liability, and More WEDNESDAY, AUGUST 16, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: J. Kent Emison, Partner, Langdon & Emison , Kansas City, Mo. Patrick E. Foppe, Esq., Lashly & Baer , St. Louis Matthew Wright, Founder, Wright Law , Franklin, Tenn. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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MOTOR CARRIER CLAIMS FOR NEGLIGENT ENTRUSTMENT, HIRING AND RETENTION Presenters: Patrick E. Foppe Matthew E. Wright Kent Emison
About your Presenter Patrick E. Foppe frequently defends claims involving commercial motor vehicle accidents. He conducts rapid response investigations to serious accidents as part of Lashly & Baer’s Rapid Response Team. Patrick serves on the Defense Research Institute’s (DRI) Trucking Law Committee’s Steering Committee and is the Chair of Publications. He also serves on the Transportation Lawyers Association’s (TLA) Executive Committee and is Vice-Chair of its Membership Committee. He has received numerous awards for his pro bono work, community service, and professional accomplishments. Patrick is also a regular author and is an invited speaker by many industry groups. Patrick and his wife Kate have seven children. Lashly & Baer, P .C. 714 Locust Street St. Louis, Missouri 63101 pfoppe@lashlybaer.com 314-621-2939 6
Presentation Outline I. Derivative Liability A. Elements of Various Causes of Action B. Majority and Minority Rule C. Punitive Damages Exception II. Where Does the Rubber Meets the Road? III. Discovery Strategies I. FMCSR Implications II. Key Documents and Deposition Considerations IV. Trial Strategies and Practical Tips 7
Overview of “Derivative” Liability Negligent entrustment, hiring, retaining, training or supervising claims • Often used to introduce evidence, which is not directly related to the • accident, against the motor carrier or others Seeks to hold a principal/entrustor directly liable for negligently hiring, • retaining, training or supervising its agent/entrustee who causes injury to another • Unlike respondeat superior liability, which simply holds a principal vicariously liable for the wrongful acts of its agent, deriviate claims mainly focus on the principal/entrustor’s conduct ― the proximate cause of the plaintiff’s injury is the principal/entrustor’s negligence in entrusting, hiring, retaining, training or supervising the agent/entrustee Imposing liability on the principal/entrustor requires a finding of culpability • by the agent/entrustee in causing an injury to a third party; thus, liability is “derivative” 8
Overview of the FMCSR • The FMCSR generally apply to all “employers” and “commercial motor vehicles,” which transport property or passengers in interstate commerce. See FMCSR § 390.3(a). An “employer” is generally a person engaged in a business affecting interstate • commerce that owns or leases a “commercial motor vehicle” in connection with that business, or assigns employees to operate it. Id . Every employer shall be knowledgeable of and comply with all the regulations • contained in the FMCSR which are applicable to that motor carrier’s operations. See FMCSR § 390.3(e)(1). Every driver and employee shall be instructed regarding, and shall comply with, all • applicable regulations contained in the FMCSR. See FMCSR § 390.3(e)(1). Whenever under the FMCSR a duty is prescribed for a driver or a prohibition is • imposed upon the driver, it is the duty of the motor carrier to require observance of such duty or prohibition. See FMCSR § 390.11. 9
Duties Imposed Upon Motor Carriers Under the FMCSR § 383 – duty to have a CDL; • • § 382 – duty to drug and alcohol test; § 391.11 – duty to ensure the qualifications of the driver ( i.e. valid • drivers license, list of violations, etc.); § 391.21 – duty to have a proper application for employment; • § 391.23 – duty to do background investigation; • § 391.27 – duty to provide a record of violations; • § 391.31 – duty to take a road test and secure a certificate of driver’s • road test; § 391.41 – duty to secure a medical examiner’s certificate; • 10
Duties Imposed Upon Motor Carriers Under the FMCSR § 391.51 – duty to maintain driver qualification file; • • § 391.53 – duty to maintain driver investigation history file; § 392.3 – duty to drive while not ill or fatigued; • • § 392.4 – duty to drive while not under the influence of drugs; § 392.6 – duty to provide schedules to conform with speed limits; • • § 395.3 – duty to conform to “hours of service” rules or maximum driving time; § 395.8 – duty to maintain driver logs; • § 396.3 – duty to maintain inspection, repair, and maintenance • records ; and • § 396.11 – duty to maintain driver vehicle inspection reports. 11
Negligent Entrustment - Elements 1. The entrustee (driver) was incompetent by reason of age, inexperience, habitual recklessness or otherwise; 2. The entrustor (motor carrier or others) knew or had reason to know of the entrustee’s incompetence; 3. There was entrustment of the chattel (tractor and/or trailer); and 4. The negligence of the entrustor concurred with the conduct of the entrustee to cause the plaintiff’s injuries. Restatement (2nd) of Torts § 390: ― One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use , is subject to liability for physical harm resulting to them. 12
Negligent Entrustment - Considerations Generally, an employer-employee relationship need not be proven. • • Implicit is that the harm must have resulted from the use of the tractor (or trailer?). Entrustment can be shown through the giving of express or implied • permission. Rainey by & Through Rainey v. Pitera , 651 N.E.2d 747 (1st Dist. 1995). Plaintiff must generally prove that entrustor actually knew or had • reason to know the driver was incompetent or reckless in driving. Halford v. Alamo Rent-a-Car, LLC , 921 So. 2d 409 (Ala. 2005). In theory, a driver is not required to have a spotless driving record to • be considered a competent driver. See e.g., Askew v. R & L Transfer, Inc. , 676 F . Supp. 2d 1298 (M.D. Ala. 2009). 13
Negligent Entrustment - Considerations Typically, the plaintiff must prove that the entrustor knew or should • have known of the driver’s incompetence by showing “evidence of precious acts of negligent or reckless driving . . . previous accidents, or previous acts of driving while intoxicated.” Id . In the context of a trucking case, the driver’s driving record becomes • central to the analysis as motor carriers have an obligation under the FMCSRs to investigate their driver’s records (more later). In a case where the claims against the driver are the only claims in • the lawsuit, his driving record may not be admissible as it is prejudicial character evidence. However, where the claims against the employer are joined with • those against the driver, the driving record may be admissible notwithstanding the potential for prejudice. See Bruck v. Jim Walter Corp ., 470 So. 2d 1141 (Ala. 1985). 14
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