negligent entrustment a tragic road. presentation summary what is negligent entrustment? what issues...
TRANSCRIPT
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Negligent Entrustment
A Tragic Road
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Presentation Summary
What is Negligent Entrustment? What issues are investigated? Ways that negligence is demonstrated Examination of key business practices Sample Cases Resources for More Information
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Disclaimer – No Legal Advice
I am not an attorney Legal issues are subject to change The specific facts of any case are unique Consult with your own attorney if you have
specific concerns
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Survey
Who has been involved in a Negligent Entrustment investigation?
Who has responsibility for safety practice implementation?
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What is Negligent Entrustment?
To charge someone with a trust or duty in an inattentive or careless
fashion or without completing required process steps
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What is Negligent Entrustment?
“Someone” could include employee, contractor, third party service provider, family member, etc.
depending on variables
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Two closely related concepts
Respondeat Superior Negligent Hiring
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Respondeat Superior
Employer is responsible for
the conduct of an employee
while the employee is
acting in the scope of
his/her employment
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Negligent Hiring
Employer responsible for the conduct of an employee if the
employer failed to use due care in hiring and retaining such an
employee
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Commercial Vehicle Application
Allowing another person to use a vehicle knowing, or having reason to know, that the use of the vehicle by this person creates a risk of harm to others
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Commercial Vehicle Example
A collision occurs and it is later alleged that the employee or contractor was dispatched without due regard for their qualification/ability to safely operate the vehicle
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Determination of Negligence
Two distinct areas of potential negligence to review after a collision:
DRIVER - for the collision itself
MANAGERS - for “allowing” the employee to drive
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Determination of Negligence
Assume driver was negligent Management’s policies and practices will
be focus of investigation
1. Were there policies in place?
2. Were the policies practiced/followed?
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Potential Questions
Did your company have a policy regarding Driver Selection? Driver Hiring? Driver Orientation and Ongoing Training?
How do managers document/verify that the policies are followed?
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Critical Elements
Details to be Investigated
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Five Key Issues are Examined
1. Was this driver incompetent?
2. Did employer know, or have reason to know, of this incompetence?
3. Did employer actually entrust the vehicle?
4. Was the driver negligent on the occasion?
5. Was driver’s negligence proximate cause?
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1. Demonstrating Incompetence
Was the driver “qualified” to drive?Subject to specific safety regulations?In compliance with those regulations?Possess proper license for vehicle type?
License was valid?
Required “paperwork” was up to date?
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1. Demonstrating Incompetence
By reason of experience, training, physical qualification was the driver: Able to demonstrate “safe operation” of
vehicle? Able to determine that cargo was loaded
and/or secured properly/safely
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1. Demonstrating Incompetence
Use of Federal Motor Carrier Safety Regulations as a “standard” is common
Potential to apply these standards even if the affected driver does not operate a “commercial motor vehicle”
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2. Employer Knew or Should Have Known
All employment records may be researched Driver’s background will be closely
examined, and… Facts directly related to the incompetence
that are discovered, could have been discovered by the employer
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2. Employer Knew or Should Have Known
Ignoring a real or potential problem is not an excuse or defense
Allowing “exceptions” to business practices (i.e.. Safety, hiring, discipline, etc.)
Documentation showing incompetence without documenting a response action
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2. Employer Knew or Should Have Known
Faulty compliance with business practices is not ideal, but may be better than no establishment of
practices or no attempt to comply
Controversial Statement?
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3. Employer Entrusted Vehicle?
Entrusted if the driver is performing within the scope of their job duties and the vehicle was not taken without permission
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3. Employer Entrusted Vehicle?
What about contractors, third party service providers (i.e.. security guards) or family members of employer/employee?
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4. Driver Negligent in Crash?
Accident reports or investigations Citations/Tickets as a result of the
accident Accident Photos
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5. Driver was Proximate Cause?
Again, will be determined by investigation, reports and “experts” on crash scenes
Was there a direct link between the driver’s incompetence/negligence and the cause of the accident?
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Business Practices
Prevention and “Defense”
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Key H.R. and Safety Areas
Driver recruiting and selection practices New hire evaluation and orientation Ongoing driver review and training Post accident reviews and training
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An Important Note
Never ignore a real or potential problem – there is
no defense or excuse by saying I didn’t know…
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Driver Recruiting & Hiring
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Driver Recruiting and Hiring
How do you recruit drivers? Look at advertising (wording) Specific requirements and qualifications Is “driving ability” a core skill? Up-to-date with pertinent regulations?
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Driver Recruiting and Hiring
Is hiring done centrally? Can locations or managers make
“exceptions” to guidelines? If “borderline” candidates are hired,
what is done to document what will be done to assure safety?
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New Hire Evaluation & Orientation
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New Hire Evaluation & Orientation
What is required by virtue of position? Regulations may dictate testing:
Road skills Physical Drug and Alcohol
Document results and deal with any negative exceptions
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New Hire Evaluation & Orientation
Familiarize newly hired employees with equipment, routes, procedures
Document conversations, receipt of manuals or guidebooks
Periodic review and revision of materials Deal with concerns now, not later
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New Hire Evaluation & Orientation
Administration of records for employees is critical
Anniversaries of key dates should not be missed
A system to remind and schedule updates should be put in place
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Driver Review & Training
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Driver Review and Training
People change over time and so do their habits
Driver review is a periodic revalidation of each driver’s qualifications
As negative habits are discovered, documentation of coaching and training efforts are needed
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Driver Review
How do you review and document job performance?
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Driver Review
Periodic management reviews (FMCSR) Motor Vehicle Report 1-800 How’s My Driving? Electronic On Board Recorders (Black Box) Ride Along review
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Driver Review and Training
Coach & counsel for improved performance Praise safe, productive performance Schedule training to correct negative
performance that has been discovered
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Driver Training
Training can be provided as: Traditional Classroom Self-led via Internet, CD ROM,
Video, Booklets, etc. Document the impact of training
(additional review)
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Post Accident Reviews & Training
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Post Accident Reviews & Training
Training for drivers and managers on what to do and say following a crash?
What procedures are followed after a crash? Accident Scene Photos Accident Report Kit Prompt contact with
company and police
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Post Accident Reviews & Training
How do you handle crashes where your driver is incapacitated?
Who will act on your company’s behalf? Was there a fatality involved? Were there passengers, riders or hazardous
materials in your vehicle?
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Post Accident Reviews & Training
Crash report: honest, direct & never humor Consistently review performance of any
driver involved in a crash If system failed, make corrections If it is clear that the driver needs training to
prevent similar accidents get it done
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Sample Cases
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Gafford v. Duncan 1993
Georgia Appellate Court 436 SE 2d 78 Employee used a company truck to ram
his wife’s car No Negligence Entrustment
no entrustment of vehicle not within the scope of employment
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Butler v. Baker 1993
90 Ohio Appellate, 3d 143, 628 NE 2d 98 $150,000 award for Negligent Entrustment Construction foreman returning truck to
company yard and hit a motorist after a four hour lunch with alcoholic beverages
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Huyhn v. R. Warehousing, et.al.
No. 12-97-00249-CV 12th district Appellate, Tyler, TX 1998 Upheld evidence (in)admissibility (missed
drug test) Citation of lower court ruling was of
interest – 60% v. 40% finding of fault Respondeat Superior ruling, not N. Ent.
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Resources
Where to Get Help
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Resources
Attorney P&C Insurance carriers – Loss Control Agent, Broker Risk Manager, RM Firms Associations Vendors focused on Fleet Safety
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Summary
A Manageable Issue
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Summary
Anyone who is charged with driving should be carefully qualified
Business practices should be in place and followed without exceptions
Take corrective actions when needed Not knowing is never an excuse
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Questions?
Thank You for Your Participation