The Legal Case for Safety Programs

1. The Legal Case for Safety Programs Negligent Entrustment

2. 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?

3. 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?

4. 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”

5. 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.

6. 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

7. 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

8. 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

9. 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

10. 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?

11. Was the driver “qualified” to drive? 1. Demonstrating Incompetence • 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?

12. 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????

13. 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 recklessnessis known orshould have been knownby 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).

14. 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?

15. 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

16. 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).

17. 3. Employer Entrusted Vehicle? • Contractors • Family members of employer/employee • Service providers (ie. security guards)

18. 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?

19. 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”

20. Sample Cases Legal Impact of Safety Performance

21. 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.

22. 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.

23. 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)

24. $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.

25. 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)

26. 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)

27. 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

28. Thank You!