It was every family’s nightmare. Several years ago, a young mother in New Jersey was taking her infant son out for a walk in a stroller, accompanied by her father. As they were walking along the shoulder of the road, both mother and son were hit by a hospital van transporting patients. The baby died and the mother suffered brain injury.
When certain factors came to light, this story became every employer’s nightmare, too. The driver allegedly had several moving violations and did not have a commercial driver’s license. The woman’s husband and father sued the hospital, claiming that the hospital was negligent in hiring, training, monitoring and retaining the driver. The hospital ended up settling the case for $16 million.
In most cases, if an employee is involved in an accident while working, the company can be held liable. Facts such as those in the New Jersey case — in which a company knew or had a reason to know that a driver of its commercial vehicles could create a risk for others — is “negligent entrustment.” And the stakes are high.
Lawsuits charging negligent entrustment often arise following an accident in which the employee or contractor was dispatched on a run without due regard for the driver’s qualifications or ability to safely operate the vehicle. In lawsuits, the main issue is always the drivers’ own negligence in causing the accident. But the courts also look at the company’s policies and practices to see if they are as thorough and comprehensive as possible in screening out unsafe or inadequately trained drivers.
Setting Standards and Policies
The Federal Motor Carrier Safety Administration (FMCSA), a separate administration of the U.S. Department of Transportation, sets the standards for drivers of commercial vehicles. These requirements include:
- Good health and physical ability to perform all duties of a driver.
- English language proficiency to converse with the general public, understand highway traffic signs and signals, respond to official questions, and make legible entries on reports and records.
- The ability to drive the vehicle safely and to safely load and properly block, brace, and secure cargo.
- Only one valid commercial motor vehicle operator’s license.
- Successful completion of driver’s road test or equivalent.
- Completion of an application for employment.
- Possession of a valid medical certificate.
Among the most important rules, however, is the one that requires a driver to provide his or her employer with a list of all motor vehicle violations, or a signed statement that the driver has not been convicted of any motor vehicle violations during the past 12 months. A disqualified driver must not be allowed to drive a commercial motor vehicle for any reason.
Besides following FMCSA regulations, companies that employ drivers or employees who drive for work should take additional steps to ensure that they do not knowingly hire and retain anyone with a spotty or questionable record behind the wheel. These steps should be clearly defined, documented carefully, and strictly enforced to protect against potential claims for negligent entrustment.
Driver Recruiting and Selection
On the written job application, include a place to list all driving violations or accidents for the previous five years. In addition, include a section authorizing the employer to obtain and review motor vehicle records on a regular basis. Driving records are protected by the Driver’s Privacy Protection Act (DPPA), and states cannot disclose individual records without the signed consent of the employee. Be sure every employee who will drive while working has signed the consent as a condition of employment.
New-Hire Evaluations and Orientations
Conduct orientations for new drivers that outline the company’s standards, so drivers have a clear understanding of what is required by law and what expectations the company has of them while they are on the road.
Consistent Policies for Potential Driver Impairment
Zero tolerance for drug, alcohol, and prescription medication abuse must be spelled out, and employees should be regularly reminded of the policies and drug tested as permitted by law. Psychological tests may also be considered, if specific circumstances warrant. These tests should be used only in limited circumstances. If possible, drivers with a tendency towards road rage, for example, should be identified and trained about appropriate behavior.
Ongoing Review and Training
Meet with drivers regularly to make sure they have read and understand company policies. This is also a good time to verify that employees have an appropriate license for the type of vehicle they are operating. If someone who has only driven a company car has begun to drive a delivery van or small truck, for example, it may be time to consider having that employee obtain a commercial driver’s license. As required by law, employers should also regularly check driving and medical records to make sure they are updated and on file.
Post-Accident Review and Training
Whenever company drivers are involved in an accident, conduct a formal review whether the driver was at fault. If necessary, consider additional training and possible disciplinary action following an accident.
Carrots Along with the Sticks
Besides stressing the negative consequences of poor driving, employers may also consider programs that reward good driving. Emphasizing the positive aspects can make it easier for good employees and keep them focused on maintaining clean driving records.
Eliminating accidents for company drivers is ideal. In a perfect world, there would be no exposure to lawsuits from driver mishaps on the road. But when accidents do happen and lawsuits follow, a well-thought-out, well-documented, and well-implemented policy helps minimize legal liability.