Richard D. Alaniz
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 facts 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 your employee is involved in an accident while working, you can be held liable. Facts like the ones in this New Jersey case - where a company knew or had a reason to know that a driver of its commercial vehicles could create a risk of harm to others - creates a “negligent entrustment.” And the stakes are much higher.
Lawsuits charging negligent entrustment or negligent hiring and retention often arise after an accident where 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 will always be the drivers’ own negligence in causing the accident. But the courts will also look at the company’s policies and practices to see if they were as thorough and comprehensive as possible when it comes to screening out unsafe or inadequately trained drivers.
While this may seem like a petty legal concept, these established theories of liability put companies that need employees to drive for work, such as HVACR providers, at serious risk. Understanding the many ways that companies can be exposed to such claims is the key to helping mitigate these risks, which will keep the company and its drivers - not to mention the public - as safe as possible.
SETTING STANDARDS AND POLICIES
The Federal Motor Carrier Safety Administration, a division of the U.S. Department of Transportation, sets the standards for drivers of commercial vehicles. Among other requirements, a driver must: be in good health and physically able to perform all duties of a driver; speak and read English well enough to converse with the general public; understand highway traffic and signals, respond to official questions, and be able to make legible entries on reports and records; be able to drive the vehicle safely; know how to safely load and properly block, brace, and secure the cargo; have only one valid commercial motor vehicle operator’s license; pass a driver’s road test or equivalent; and complete an application for employment and possess a valid medical certificate. Among the most important rules, though, is the one that requires an employee to provide his or her employer with a list of all motor vehicle violations, or a signed statement that the employee 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 (see sidebar “A Checklist for Driver Qualifications” below), no matter how talented he or she may be at installing or repairing HVACR systems.
Besides following the regulations laid out by the Federal Motor Carrier Safety Administration, 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 spelled out clearly, documented carefully, and strictly enforced in order to ward off 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 past five years. Also, on this application, 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 that every employee who will drive while working has signed the consent as a condition of employment. You may also want to periodically update such signed consent forms.
• 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, but should be used only in limited circumstances; if possible, employees with a tendency towards road rage, for example, should be identified and trained about appropriate behavior.
• Ongoing Review and Training
Meet with employees on an ongoing basis 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 those are updated and on file.
• Post-Accident Review and Training
Whenever company drivers are involved in an accident, conduct a formal review whether the employee was at fault or not. 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 want to 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 will help minimize legal liability.
Sidebar: A Checklist for Driver Qualifications
According to the Federal Motor Carrier Safety Administration, every company must have a qualification file for each regularly employed driver. That file must include:
• The driver’s application for employment
A person will not be allowed to drive a commercial motor vehicle unless he or she has completed and signed an application for employment.
• An inquiry to previous employers
Employers must make an investigation of the driver’s employment record for the past three years. This investigation must be made within 30 days of the date his/her employment begins.
• An inquiry to state agencies
Employers must contact state agencies about an employee’s driving record for the last three years. Employers must also request annual driving records. A note about the results of this review should be included in the driver’s qualification file.
• Certificate of violations
At least every 12 months, an employer must require every driver to prepare and furnish a list of all violations of motor vehicle traffic laws and ordinances during the past year.
• Driver’s road test certificate
Employers should not allow an employee to drive a commercial motor vehicle until he or she has successfully completed a road test and been issued a certificate or a copy of the license or certificate which the company accepted as equivalent to the driver’s road test.
• Medical exams
The driver must pass a medical examination conducted by a licensed health care professional. Once the driver receives a medical examiner’s certificate, he or she must carry it at all times. The medical exam certificate must be renewed every two years. - Federal Motor Carrier Safety Administration, www.fmcsa.dot.gov Publication date: