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Negligent Hiring or Retention

In addition to claims directly against the driver for his careless driving, a plaintiff can also sue the trucking company for the truck driver’s negligence based on a theory called vicarious liability. Furthermore, a victim of a truck accident may also have a claim for negligent hiring against the trucking company.

Negligent hiring involves a claim that the trucking company should not have hired the driver because the company should have known that the driver was incompetent at the time of his or her employment. The focus is primarily on the employer’s preemployment investigation. The FMCSR specify a carrier’s responsibilities to obtain background information on a driver before hiring the driver, and a failure to comply with these regulations will subject a carrier to a claim for negligent hiring if compliance would have identified the driver as incompetent. See Wallen v. Allen, 343 S.E.2d 73, 78 (Va. 1986). A driver applying for employment must complete an application listing any moving violations or accidents for the three-year period prior to the date of application and identifying each motor carrier that the driver has been employed by for the past ten years. See 49 C.F.R. § 391.21. The employer must obtain a moving violations report (MVR) from any state issuing a license to the driver and a list of accidents and violations of alcohol or controlled substances regulations, as well as test results. See 49 C.F.R. § 391.23. The employer must confirm that the driver is physically able to operate a commercial vehicle by obtaining a medical examiner’s certificate. See 49 C.F.R. §§ 391.41, 391.43.

Beginning on May 21, 2014, the motor carrier must verify that the driver was certified by a medical examiner listed on the National Registry of Certified Medical Examiners. See 49 C.F.R. § 391.23(m)(1).

Some relatively common medical conditions are identified as disqualifying in 49 C.F.R. § 391.41(b). Applicants are not qualified to drive an interstate carrier if they have lost a foot, a leg, a hand, or an arm, or have

  • an impairment of the foot, leg, hand, or arm that interferes with the ability to drive;
  • diabetes mellitus requiring insulin for control;
  • a serious heart condition;
  • a history of respiratory dysfunction;
  • high blood pressure or joint or muscular problems that interfere with the ability to drive;
  • epilepsy or any other condition that might cause a loss of consciousness;
  • a mental or psychiatric disorder that interferes with the ability to drive;
  • less than 20/40 vision with corrective lenses;
  • significant hearing loss;
  • use of a controlled substance that interferes with the ability to drive; or
  • a clinical diagnosis of alcoholism.

49 C.F.R. § 391.41(b). However, see 49 C.F.R. § 391.49 (a person who is not physically qualified to drive under § 39.41(b) may drive a commercial motor vehicle if the FMCSA Division Administrator has granted a skill performance evaluation (SPE) certificate to that person).

After the driver is hired, the trucking company must maintain a driver qualification file containing the following materials:

  • the driver’s application for employment,
  • a written record of inquiries to prior employers and any responses received from them,
  • the preemployment MVR on the driver,
  • the results of any road test or a copy of the driver’s CDL,
  • the driver’s annual review,
  • the MVR on the driver related to the annual review,
  • the driver’s certified list of moving violations and accidents provided in conjunction with the annual review, and
  • the medical examiner’s certificate of physical qualification.

See 49 C.F.R. § 391.51(a)–(b).

The documents in the driver’s qualification file must be kept by the company for as long as the driver is employed by the company and for an additional three-year period. 49 C.F.R. § 391.51(c).

Negligent retention and negligent entrustment cases involve claims against trucking companies that allow drivers to operate their trucks even after the trucking company has learned that the driver is unlicensed, incompetent, or unsafe. Theories of “negligent hiring” or “negligent retention” are recognized by a number of jurisdictions, including Massachusetts. See Foster v. Loft, Inc., 26 Mass. App. Ct. 289, 290 (1988) (citing Carson v. Canning, 180 Mass. 461 (1902)). (The employer in Foster failed to make any attempt to check the employee’s background, failed to request references, and did not require an application. The Appeals Court affirmed a judgment against the employer, holding that an employer whose employees are brought in contact with members of the public in the course of the employer’s business has a duty to exercise reasonable care in employee selection and retention. Foster v. Loft, Inc., 26 Mass. App. Ct. at 290–91.)

Liability for negligent hiring or retention occurs when the employer becomes aware or should have become aware of problems with an employee that indicate unfitness and the employer fails to take further action such as investigation, discharge, or reassignment. The liability is entirely independent of the employer’s liability under the principles of respondeat superior. Therefore, if your trucking case may involve a claim of negligent hiring or negligent retention, it is important to plead separate counts. If you do not prevail on a claim for respondeat superior because the driver was not acting within the scope of employment, the counts for negligent hiring and/or retention may preserve your claim against the trucking company. “[W]hether the employee’s wrongful conduct was within the scope of his or her employment is generally not an issue in a negligent hiring or negligent retention action.” Foster v. Loft, Inc., 26 Mass. App. Ct. at 291 n.4.

A slight variant on the negligent retention case is the tort of negligent entrustment. To prove negligent entrustment, the plaintiff has the burden of showing that the defendant-driver had control of the vehicle and the owner had actual knowledge that the driver was unfit or incompetent to drive. See Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 771 (2005). Even in cases in which the driver of a truck is an independent contractor, the owner can be held responsible for the act of entrusting a truck to an unfit or incompetent driver. The case of Zarski v. Creamer, 317 Mass. 744 (1945) may be particularly helpful in a truck accident case where there is evidence that the driver’s violation of the hours-of-service regulations or general fatigue were contributing factors for the crash. In Zarski, the court noted that, if properly pleaded, negligent entrustment might be a viable theory if the owner knew that the driver had worked seventeen hours on the preceding day and needed sleep and that the crash occurred because the driver’s fatigue caused him to be “wanting in alertness.” See Zarski v. Creamer, 317 Mass. at 746.

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