Negligent Selection in Truck Accident Cases: Expanding Liability Beyond the Motor Carrier
By: Trevor D. Savage, Esq. and Taylor Asen, Esq.
In cases involving trucking crashes, the most common theory of liability arises from the conduct of the “motor carrier”: that is, the party that has agreed to transport materials on behalf of the party that owns or supplies those materials (the “shipper”). However, plaintiffs may also have claims against two additional (and often overlooked) defendants: (1) the shipper itself and (2) the broker – i.e., the entity hired by the shipper to vet and hire the carrier on the shipper’s behalf. Specifically, plaintiffs can pursue a claim against the shipper or broker for its negligent selection of the carrier and—depending on the facts of the case and the creativity of lawyering—they may be entitled to recover from the carrier, shipper, and the broker.
Under Federal regulations, a shipper is defined as a “person who tenders property . . . or hazardous material to a motor carrier or driver of a commercial motor vehicle for transportation in interstate or intrastate commerce.” 49 C.F.R. § 390.5. By contrast, a “motor carrier” is simply “a person providing vehicle transportation for compensation.” 49 U.S.C. § 13102(14).
Typically, a “shipper” hires a “motor carrier” to transport its load. In the event of a crash arising from that transportation, the motor carrier may be liable for negligent hiring, training, and supervision of its driver acting within the scope of their employment. The Federal Motor Carrier Safety Act (“FMCSA”) has created a database on truck drivers as part of its Pre-Employment Screening Process (“PSP”), and a motor carrier can access that PSP report on a given driver during the interviewing process. Thus, motor carriers may be liable where they: (1) hire or retain a driver who has more than one crash or moving violation; (2) hire a driver in violation of their own policies and procedures regarding the number and severity of permissible traffic violations; or (3) fail to discipline or terminate a driver who commits offense after being hired by the company. Where crashes are caused by mechanical failures of parts or systems in a vehicle, a carrier may also be liable for its failure to inspect, maintain, or repair its vehicles. 49 C.F.R. § 396.39(a), (a)(1).
The “Negligent Selection” Case
However, the shipper may also be liable for negligent selection of the motor carrier. Moreover, where the shipper hires a broker to screen the carrier on its behalf, two more potential theories of liability arise: the broker may be liable for negligent selection of the carrier, and the shipper may be liable for negligent selection of the broker.
There are no federal statutes or regulations that define what brokers or shippers are required to do when hiring a carrier. However, pursuant to the Restatement (Second) of Torts § 411, “[a]n employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractors (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.” As set out in Comment a to Section 411, “The words ‘competent and careful contractor’ denote a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable man would realize that a contractor must have in order to do the work which he is employed to do without creating unreasonable risk of injury to others, and who also possesses the personal characteristics which are equally necessary.” Notably, in Dexter v. Town of Norway, 1998 ME 195, 715 A.2d 169, the Law Court adopted the provisions Section 411 as the appropriate standard for negligent selection claims in Maine.
With that framework in mind, relevant questions in a negligent selection case—both with respect to the broker’s selection of a carrier, or the shipper’s selection of a broker—include:
- what investigation did the broker or shipper perform;
- what did the broker or shipper discover in that investigation;
- what investigation should the broker or shipper have performed;
- what would the broker or shipper have discovered if they had performed that investigation;
- should the broker have hired the carrier, or should the shipper have hired the broker;
- is there a causal connection between the carrier’s incompetence and the cause of the crash?
To determine the answers to those questions, it is instructive to review the FMCSA “Company Snapshot” website, which lists a carrier’s out-of-service violations, safety rating, and involuntary revocation of operating authority. 49 C.F.R. § 396.7; 49 C.F.R. § 385.905. It also necessary to request all agreements between parties involved in the shipment; the broker’s “hiring criteria” for carriers; the shipper’s “hiring criteria” for brokers; and any FOIA/FOAA information on the allegedly incompetent carrier and/or broker.
Depending on the results of this discovery, it may be possible to turn a one-defendant case into a three-defendant case: the shipper may be liable for its negligent selection of a broker; the broker may be liable for its negligent selection of a carrier; and the carrier may be vicariously liable for the negligent acts of its drivers. In doing so, an attorney can both help their client receive justice in a given case, and bring more parties to the table in order to maximize the recovery on that client’s behalf.