Negligent hiring, assignment, and retention of the driver by a carrier is an independent cause of action. The legal standard for negligent hiring and retention is fourfold:
1. The employee performs a negligent act or omission;
2. The employee is essentially unfit or has a history of previous similar bad acts, from which incompetence can be inferred;
3. The employer had notice of the employee’s previous bad acts or unfitness; and
4. The plaintiff is injured as a result of the employee’s incompetence or proclivity for prior similar bad acts.
In most jurisdictions, punitive damages for negligent hiring and retention can be obtained if a case can be proven.
Negligent hiring and retention is based on the principle that the employer conducting activity through an employee is subject to liability for the harm resulting from negligent conduct in the employment and the retention of improper persons in work involving a risk of harm to others. Negligent retention occurs when the driver has been employed for awhile and the motor carrier has reason to know, or should have known, that the driver is incompetent or dangerous and yet allows the employee to drive. Punitive damages may be available where the driver’s incompetence is blatant and/or the employer’s fore‑knowledge is so long‑standing as to constitute conscious disregard.
The Duty to Hire Safe Drivers
All trucking companies have a duty to exercise reasonable care in hiring drivers, particularly because of the horrendous consequences that can result in any breach of that duty. However, the consequences alone do not elevate the breach to willful and wanton conduct. The breach must be one of recklessness or conscious disregard of the knowledge of the employee’s prior bad act. So, for example, depending on the circumstances, it is likely to be willful and wanton conduct if a trucking company hires a driver who has twice had his driver’s license suspended for, say, intoxication.
The protocols for hiring are set forth in the national standards promulgated in the Federal Motor Carrier Safety Regulation Handbook. Those include not only checking a driver’s motor vehicle record, but also doing a complete background check, particularly contacting prior employers of a truck driver recruit.
In conducting an investigation of a truck accident crash that resulted in serious injury or death, we may find evidence that a trucking company should have never hired the driver who caused the accident, or that the trucking company should have terminated the driver prior to the accident but failed to do so. In these situations, we may have a reason to bring an independent action against the trucking company for this conduct.
If this conduct rises to an extreme level (often referred to as “gross negligence”), we may also ask the jury to award punitive damages to punish the company for its conduct.
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