Negligent Hiring and Retention

A second liability concept crucial to Interstate Trucking litigation is the claim of negligent retention. Because of the highly regulated nature of interstate trucking, an unusually rich vein of information can be mined for evidence of negligent retention.

FMCSA regulations require that carriers maintain a driver qualification file, with pre-employment records, as well as an annual review of driver performance, accidents and violations (§ 391.51). Although the DQ file provides a good starting point for a negligent hiring and retention claim, the carrier’s internal records that may be critical to this claim often fail to find their way into this file.

Many carriers have both risk management and safety departments. These departments may be organized in very different ways and may maintain different internal records regarding the driver’s accident history. It is important to explore fully the records maintained in each department.

In one case we handled, the driver’s DQ file contained no record of any accidents during the driver’s four-year employment with the company. The risk management department likewise claimed not to have any records of prior accidents. After months of motions to force disclosure of records, however, a file in the safety department was unearthed which showed that the driver had no fewer than NINE accidents in the prior four years; that the company had found 7 of the accidents chargeable to him; that he had been placed on internal probation 3 times for preventable accidents; and that he was on two overlapping year-long probations at the time of the wreck in which we were involved.

The lesson is that DQ files are a starting point, not an ending point on negligent hiring and retention claims.

Videotape Depositions

Finally, ALWAYS videotape the depositions of the driver and the 30(b)(6) representative. Inevitably, there will be moments in a driver’s deposition that you simply need to show the jury. Besides, even Mother Theresa looked shifty when she was videotaped. And you never know just how bad the driver will look.