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Chapter Four Claims You Should Make in a Truck Crash Case

“Win Your Truck Crash Case And Avoid The Surprises That Can Wreck It”

When someone gets involved in an accident it can be easy to look at only the basic potential causes of the crash. For example, the driver’s actions, the truck’s maintenance, road conditions, or weather. While all of these factors should be thoroughly investigated and assessed, it is important to consider the negligence of not just the truck driver, but also the truck driver’s employer. The employer is ultimately responsible for hiring and training its truck driver, and for ensuring that its truck driver has received the proper licenses. Of course, the truck driver never would have been on the road if not for the employer. More importantly, the real reason for the crash may be bigger, more systemic problems with the truck company that can lead to more injury and/death on American roads.

Lawyers like the author investigate these claims and root out all the negligence that contributed to a crash. Of course, you should contact an experienced truck accident attorney to investigate the driver and the company they worked for if you are involved in an accident. Remember, often it is not just the truck driver’s actions that was the core cause of the collision that caused your injuries.

An experienced attorney will investigate the driver’s background and see if the driver was fit for driving that type of truck or if they had previous accidents or traffic violations. If it is discovered that the truck driver had a poor driving record, you may have a claim against the company for negligent hiring or retention.

Negligent Hiring

State and federal laws require trucking companies to practice due diligence when hiring and supervising commercial drivers to prevent trucking accidents. Any vehicle that weighs up to 80,000 pounds requires drivers to have extensive training and special licenses to operate. Qualified drivers must demonstrate that they have a history of safe driving and are medically fit to operate commercial vehicles. However, trucking companies commonly hire unqualified drivers to save money, putting the public at great risk. Sometimes, these companies knowingly hire unqualified drivers so they can pay them less. Further, companies are required to, and should, do a deep dive into driver’s background and their unsafe driving histories. Lastly, they may fail to properly train and supervise drivers. These negligent acts, if taken by a trucking company, can cause serious truck accidents and catastrophic injuries to other motorists.

When it is discovered that trucking companies failed to meet reasonable standards when hiring drivers, they can be held liable for negligent hiring. Examples of Negligent Hiring may include:

  • Hiring an unqualified truck driver
  • Hiring a driver with a history of unsafe driving
  • Hiring a driver with a history of drug or alcohol abuse
  • Hiring a driver without a valid driver’s license or commercial license
  • Hiring a driver who has a history of auto accidents
  • Was the Driver Whose Truck Wrecked into Me Caused by Negligent Hiring?

    During the hiring process companies must conduct thorough background checks on new commercial drivers and ensure they have valid commercial driver’s licenses (CDLs). These background checks are critical in identifying applicants with histories of substance abuse, prior serious crashes or disqualifying medical conditions. An employer may be liable for negligent hiring if the employer knew or should have known of the employee’s dangerous proclivities and the employer’s negligence was the proximate cause of the plaintiff’s injury. Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983).

    What Records Should Employees Pull When Doing Preemployment Screening?

  • DQ files: Driver qualification files (DQ files) could contain information on a driver’s prior work experience, license suspensions, crashes and moving violations. In addition, DQ files contain regularly updated Department of Transportation (DOT) medical examination certificates. Regulations also require companies to maintain current DQ files of drivers they employ.
  • Substance abuse records: Trucking companies must conduct pre-employment drug screening tests on applicants. In addition, companies may also pull drug test records from previous employers going back three years.
  • Medical exam records: Trucking companies must hire medically qualified drivers. Certain health conditions pose a significant crash risk. For example, workers with untreated sleep apnea may be more likely to cause accidents due to drowsy driving. In other cases, medical conditions may disqualify drivers from holding a commercial driver’s license (CDL).
  • Is the driver’s CDL current and up to date?
  • If you have been involved in a truck crash it is important to find an attorney capable of obtaining these records and other documentation concerning a driver and the trucking company. An experienced attorney will gather evidence of a company employed driver with histories of failed drug tests, disqualifying medical conditions or prior crashes, which can be used to show negligent hiring. Additionally, companies who employee truck drivers must keep detailed documentation on commercial truck drivers, such as DQ files or drug testing records. A factor determining if companies practiced the proper due diligence during the hiring process is whether any important documentation is missing.

    As case law provides, an employer has a duty to refrain from retaining or hiring an employee that poses a threat to other persons that the employee may be exposed to on the road. An action for negligent hiring or retention requires that the Plaintiff plead and prove the following elements:

    1. The employer knew or should have known that the employee had a particular unfitness for the position to create danger or harm to third persons; and
    2. That such particular unfitness was known or should have been known at the time of hiring or retention; and
    3. That the particular unfitness was the proximate cause of the plaintiff’s injury.

    Negligent hiring can arise from different actions the employer took when hiring a truck driver. An example is when the company hires a driver who does not qualify for the position or does not have the proper certifications required to drive the vehicle they are hired to drive. Another example is when the company might not have conducted a background check on an employee, thereby never knowing the prospective driver had a DWI or other traffic violation on their record. Companies also often fail to follow regulations created by the Federal Motor Carrier Safety Administration when hiring a new driver. For instance, companies sometimes fail to conduct a pre-employment alcohol and drug test. Even if an applicant has a clean record and the company followed all protocols, you may still be able to prove that the driver was inexperienced for the type of truck, cargo, and routes they had to drive.

    Negligent Retention

    The company’s responsibility to provide safe, responsible, and qualified drivers on highways and local roads does not end at the hiring process because employers have a continuous duty to keep the public safe. A key responsibility for companies is to ensure that their drivers at all times remain well-trained and have up-to-date licenses and certifications throughout their employment. The Company must also ensure that if a driver loses privileges to drive a certain type of vehicle or cargo, the driver is not assigned that vehicle or material until they again have such privileges. The elements of negligent retention are the same as for negligent hiring. Gibson, 952 S.W.2d at 246 (Mo. banc 1997).

    The most common sign of a company committing negligent retention is when a truck driver is ticketed for traffic violations during his or her employment or has received complaints from clients, other drivers at the company, or other drivers on the road and is retained by the Company. Trucking companies are also heavily regulated by the FMCSA and are required to keep driver records that include such information. A driver who has been convicted of a DWI or has multiple speeding or other traffic violations on his or her record is usually not the best fit to drive a heavy, dangerous vehicle and should not be behind the wheel of one.

    Additionally, the FMCSA requires drug and alcohol testing and if a company fails to test its drivers, or does nothing when a driver fails a test, it can be evidence of negligent retention.

    If you believe a company hired or retained an unqualified truck driver behind the wheel of a major commercial vehicle, you should contact an experienced attorney.

    Was Proper Supervision Provided to A Negligent Driver?

    Trucking companies are required to hire qualified drivers and properly supervise drivers to ensure they are acting in the best interest of public safety. A cause of action for negligent supervision may be established when: A master is under the duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. RESTATEMENT (SECOND) OF TORTS Section 317 (1965); Gibson, 952 S.W.2d at 247; Conroy v. City of Ballwin, 723 S.W.2d 476, 479 (Mo.App.1986).

    Proper supervision can eliminate or minimize the risk of a truck wreck due to driver error.

    Negligent Supervision Examples:

    • Supervisors allow drivers to violate hours-of-service rules. Drivers must show compliance with hours-of-service by keeping log books that supervisors must monitor.
    • Trucking companies fail to provide adequate training for new CDL drivers. New hires must receive training to recognize potential hazards and operate their vehicles. For example, drivers must know how to check tire pressure or properly secure loads from shifting before taking solo assignments.
    • Failing to drug test drivers who caused accidents that result in injuries or deaths. Federal regulations require trucking companies to administer drug tests to a driver after a truck wreck.
    • Companies continue to employ dangerous drivers. In some cases, companies may hire qualified drivers who then commit grievous violations during their employment. For example, a driver may test positive for a controlled substance after causing an accident. Employers who continue to allow drivers to operate a truck after a positive test like this are violating the law, as well as placing motorists at risk for truck crash injuries.
    • Companies continue to employ individuals with health conditions that make operating a commercial vehicle dangerous. If drivers show signs of dangerous or disqualifying health conditions, such as alcoholism or sleep apnea, then the employer must investigate further and take appropriate action.

    Employers can be found liable for damages when an incompetent or unfit driver causes a truck accident. Finding a good attorney is important in order to properly investigate both the driver and the company to determine if negligent supervision caused or contributed to injuries of a loved one’s wrongful death or injury.

    In Appendix 1 I attached to this book, I have included an example of a complaint we filed on behalf of our client, in which we alleged claims discussed in this chapter, among others.

    Negligent Training

    Even after a driver gets their CDL, they often need additional training and safety reminders. Truck companies have a duty to train their driver to make sure they are safe on the road. Many companies do (and should) formal training procedures where they teach and remind drivers about the rules of the road and procedures. Drivers need to learn particulars about routes, delivery destinations, dangerous road conditions and company procedure. Good trucking companies have robust training and make sure the drivers that they put on the road are safe. Often, a trucking company’s insurance policy requires them to have training procedures as well.

    In any profession, we have to continue to get training to remind us of the basics of our profession and hone our talents. I do this as a lawyer and truck drivers should do the same. For some examples of truck driver training, go to www.trucktraining.com and www.truckinfo.com. Here is a great article about how truck driver training improves safety, minimizes harm to fleet vehicles and makes the company run more products.

    It is a no brainer – extra driver training is worth the money and saves the company money in the long run. Companies that take short cuts and do not train their truck drivers are the types of companies that have problems. There are too many truck drivers and too many roads in the United States to not have a very well-trained driver. Many of the accidents are contributable to lack of training on truck driving in the United States.

    In litigation, the driver training is inquired by us as lawyers. We examine this to see if the truck driver had good or adequate training and if they kept up with continued training. We often find deficiencies or lack of training programs. We hire experts who are recognized in the trucking industry to tell a jury about the type of training that a company should have and that many do have in the United States. We are not trying to hold trucking companies to a too high or unreasonable standard – just what a normal adequate training should look like. If truck companies do not have it and training deficiencies contributed to an accident, truck companies should be held responsible.

    It is not just truck companies – drivers should be responsible for their own training and keep it up. The commercial drivers guide requires drivers to keep a log of their hours, pre-trip inspections to make sure their vehicle is safe and to obey the Rules of the Road for truck drivers. Similarly, truck drivers have to be responsible for their own training. They need extra tips or extra training on how to back up the trailer, how to drive in inclement weather, how to drive in urban setting, etc. If so, that truck driver should go and do this. Many of these training programs are offered for free or a very small cost if you look on Google.

    Some of our litigation and legal claims that focus on driver education also seem to improve safety of roads in our community. Every time we pursue a claim against a trucking company and talk about hiring drivers, retaining drivers and training of drivers, we are trying to make these trucking companies safer. If you talk to truck companies, they want to get the bad drivers and companies out of their industry as well. No company likes to have bad drivers who will bring down their reputation as a whole. Focusing on driver training as well as the retention and hiring is an attempt to keep our roads safer as well as to hold truck drivers and their employers responsible when they fall below the standard to which they should abide.

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