In Gear - Today's Trucking

The following headline
is factual: “Trucking
company agrees to pay
damages in wrongful death
lawsuit totaling $3,000,000.”
Imagine if the company had
not settled out of court. The
payout could have easily been
triple the settled-on amount.
Of course some questions
arise.
“Why would this company
agree to settle the lawsuit?
“What would have
motivated them to admit to
negligent hiring and
negligent entrustment?
And, “what the heck are
negligent hiring and negligent
entrustment, exactly?”
Simply put, negligent hiring
means the trucking company
either failed to conduct
a thorough background check
on the driver or—if it had and
discovered that he had a
previous crash resulting in a
suspended license and
multiple moving violation
convictions—the company
hired him anyway without
doing anything about it.
I happen to know that in
the $3-million case, it was the
latter, because the company
also admitted to negligent
entrustment.
That means they allowed
this driver to operate a
commercial vehicle while
knowing that he had previous
collisions and moving violations
and should probably not
have been behind the wheel.
Does that mean they never
should have hired this driver?
In this case yes, but maybe
not in all cases.
It’s one thing to not check
a driver’s history. You already
know to do that, so no
attorney can ever surprise
you in court by bringing up
information from a driver’s
past that you didn’t know
about. Never hire without
asking yourself, “if we were
being sued because of a
collision that this driver was
involved in, are we sure that
there is going to be no new
information dug up that we
were unaware of?”
I assure you, in thousands
of lawsuits across North
America every year, employers
are being surprised by
information about their own
employees’ pasts.
So what happens when you
find past indiscretions on a
new hire? Should you just stop
the hiring process right there?
Not necessarily. But what
you must do is investigate
what came of those indiscretions.
Did the driver receive
remedial training after a
crash or moving violation?
How long has it been since
that incident? Was there a
pattern of incidents? Has the
driver learned from his past
and has he received upgrading
or training to improve his
skills? Is there a paper trail to
prove that said training
occurred?
What generally happens in a
lawsuit like this is the plaintiff
attorney will try to show a
history of non-compliance
with rules and regulations
and show that the carrier did
nothing about them and
allowed them to continue.
Once the lawyer does that, it
is very easy to prove negligent
hiring and or negligent
entrustment.
You have to be 100-percent
sure of not only the drivers
you hire and their histories
but also your current drivers
and the steps you take after
collisions, citations or incidents.
Make sure they receive
remedial training and or
discipline, road test them and
ensure they continue to meet
standards and can operate
safely and within the law. And
document everything you do.
Make sure that when you
write it down, it will stand up
to scrutiny by that plaintiff
Street Smarts
Surprised Parties
safety Don’t let sneaky money-hungry litigators sideswipe you in court.
By Brian Botham
A trucking company
involved in a crash
presents a huge
target to hungry
litigators. And they
will come after you,
armed with facts.
WHEN THE BOOKS COOK YOU:
You should never be surprised in court.
lawyer and a jury.
This is why your insurance
company shows up on a regular
basis to go through your
files and hiring practices, etc.
They want to ensure that if a
situation occurs you have
everything in place to
protect yourself and their
exposure. That catch phrase
you always hear—Risk
Management—really means
managing (and therefore
minimizing) your risks.
Believe me. A trucking
company involved in a crash
presents a huge target to
hungry litigators. And they
will come after you, armed
with facts.
The public (and many
attorneys) seem to believe we
are all loaded, with more
millions to throw around
than Tiger Woods.
Maybe you are. I’m not. ▲
Brian Botham, CDS, is a certified
director of safety through NATMI.
He can be reached at 519-533-
3656 or bbotham@cmvsafety.ca.
JANUARY 2010 23