An Accident or an Indictment of the Industry?

May 26, 2009

Trucking accidents always present obstacles for the defense. The sheer physics involved often create situations involving serious injuries and fatalities. Couple the likely damages involved with the fact that there is a natural prejudice among the vast majority of the jury pool, and defending carriers and their drivers is frequently an uphill battle, to say the least.

With that said, it is without question that one of the major questions that absolutely must be addressed is that of collateral issues such as negligent entrustment and negligent supervision. Most of the lawsuits that I have defended contain these claims, in addition to simple negligence and wantonness claims against the driver and carrier.

The laws of evidence generally will prohibit the plaintiff from introducing evidence of past instances of negligent conduct committed by a defendant to show that he or she was negligent in the present lawsuit. However, if there is a viable claim that the owner of the vehicle negligently entrusted the truck to a driver, then the driver’s entire history can be admissible to prove that the owner should have known that the driver was incompetent, and therefore that the owner’s negligence in entrusting the truck to the driver was an additional cause of the accident.

Although such a claim theoretically does not create additional damages for plaintiffs, it can turn an otherwise straightforward accident into an indictment of the trucking industry, by allowing a plaintiff’s attorney to grandstand about the driver’s history, rather than the subject accident. It is therefore crucial that a driver’s history must be explored early in the litigation, and if possible, these issues must be addressed in a motion for summary judgment or for partial summary judgment.

Here in Alabama, the Supreme Court has made it clear that it is “essential that the plaintiff prove that the driver was incompetent, i.e., that he is likely because of his youth, inexperience or other wise to use [the vehicle] in a manner involving unreasonable risk of physical harm to himself and others.”  Reeves v. King, 534 So. 2d 1107, 1108 (Ala. 1988). In addition to proving that the driver was incompetent, the plaintiff must also prove that the owner knew (or that given the negative history, should have known) that he or she was incompetent. If the driver’s history is relatively good, then most judges will, understanding how evidence of prior violations and accidents will prejudice a jury, dismiss the collateral claims.

It should be noted that, at least in Alabama, a spotless history is not required.  In Pryor v. Brown & Root USA, Inc., 674 So. 2d 45 (Ala. 1995). The Supreme Court considered a situation in which a personal injury action was brought against an employer in connection with an accident occurring after its employee left work but was driving the employers vehicle. The Court found that the employee had been charged with DUI in another state, and had received two speeding tickets. In affirming summary judgment in favor of the employer on a claim of negligent entrustment, the Court found that the employee’s past driving record was not sufficient to support the claim.

Likewise, in Thedford v. Payne, 813 So. 2d 905 (Ala. Civ. App. 2001), the Court of Civil Appeals considered a case in which a passenger brought an action against the driver and his mother. In reversing the trial court’s judgment on the negligent entrustment claim, the Court held that evidence showing that the driver, who had only been driving for one year prior to the accident, and had been involved in a similar accident some three months prior to the subject accident, was not sufficient proof of negligent entrustment, and that the trial Court aired in submitting the plaintiff’s claims to the jury.

In the absence of these collateral issues, it is unlikely rhat evidence of past conduct will be admitted.  However, failing to appreciate the danger that these issues raise in the defense of trucking lawsuits can place the client at a definite disadventage.


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