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					                         Trial Strategies for Holding Trucking Companies Re-
                         sponsible for Their Employee’s Negligent
                         Conduct
                         by J. Kent Emison & Mark Emison
 J. Kent Emison

                                                                                                                     Mark Emison
I. Introduction                              trucking company’s negligent hiring                   exist[s] to allow the plaintiff to
       The vast majority of trucking         and entrustment, but as discussed                     introduce proof of the negligence
accidents are caused by truck drivers        below, we were able to admit many                     of the defendant-principal in the
with the following traits:                   facets of the trucking company’s direct               form of potentially inflammatory
       • Fatigue                             negligence into evidence. This included               evidence        concerning       the
       • A history of prior accidents        the company’s negligent practices and                 defendant’s knowledge of prior
       • A history of driving violations     procedures in hiring and supervising                  misconduct on the part of the
       • A lack of experience                drivers and facts that the company                    tortfeasor.
       • A lack of training                  hired the defendant driver despite a                  In 1981, Illinois abandoned
Sole blame should not always be placed       serious prior trucking accident, his           contributory negligence in favor of a
on the individual truck drivers; in most     sparse training and experience, and two        comparative negligence, and in 1986,
cases, trucking companies place the          license revocations, including a lifetime      the state statutorily adopted a modified
driver in a position to fail. Trucking       commercial driver’s license. As a result,      comparative negligence.6 In Lorio v.
companies notoriously cut corners            the federal court jury awarded these           Cartwright,7 the U.S. District Court in
and do the absolute minimum required         clients a very fair verdict (see endnote 4).   the Northern District of Illinois was
by federal and state law when they do        The scope and purpose of this article          tasked with deciding whether the rule
background checks on new drivers and         is to examine current Illinois law and to      in Neff was applicable after the change.
train new drivers. Truck drivers who         discuss various ideas regarding methods        The court reasoned that Neff ’s ruling
lack training, have been involved in         to maximize the instances of negligent         made sense in a contributory negligence
prior serious trucking accidents, and        conduct by trucking companies into             regime,8 but “loses much of its force. .
have a history of driving violations         evidence.                                      .under comparative negligence.” The
are routinely fired by one trucking                                                          court explained that “the negligence
company, only to be hired again and          II. Illinois Law Regarding the                 of the [employer] is not the same as
again by other companies. Ultimately         Viability of Direct Negligence Claims          the negligence of the [employee].”9
these bad truck drivers cause collisions     Against an Employer when the                   In a contributory negligence regime,
that severely injure or kill motorists       Employer Admits Being Vicariously              the difference between the negligence
who share the highways with them.            Liable for the Employee-Tortfeasor             of the employer and the employee-
       Unfortunately, Illinois law bars             This issue was first addressed           tortfeasor did not matter – if the
claims of negligent hiring, supervision,     in Neff v. Davenport Packing Co.,3 while       employee was liable, then the employer
retention, and entrustment against           Illinois was still under a contributory        was necessarily liable under respondeat
employers – trucking companies in the        fault regime – which barred a plaintiff ’s     superior.10 Additional direct negligence
context of this article – if the employer    recovery if the jury assessed any fault        claims against the employer would not
admits to vicarious liability for the        to the plaintiff. In Neff, the Illinois        add “the slightest to the amount of the
driver.1 Given the current state of          Court of Appeals ruled that negligent          judgment against the [employer].”11
Illinois law, plaintiffs in trucking cases   entrustment claims were barred when                   In contrast, under a comparative
often face obstacles in their efforts        “the party so charged has admitted his         negligence regime, “the trier of fact
to admit evidence of the trucking            responsibility for the conduct of the          must determine percentages of fault for
company’s negligent conduct. We              negligent actor.”4 The Illinois Supreme        a plaintiff ’s injuries attributable to the
recently faced this dilemma in Reagan        Court5 later explained Neff ’s reasoning:      negligence of plaintiff, the negligence
v. Dunaway Timber, a case in Arkansas               [When a] defendant-principal            of each defendant, and the negligence
Federal Court.2 Arkansas law mirrors                acknowledge[s] his responsibility       of other non-parties.”12 The difference
Illinois on this issue. The court barred            for the alleged negligence of the       between the employer’s negligence and
evidence going solely to support the                tortfeasor-agent. . .no reason          the employee-tortfeasor’s negligence

24   Trial Journal                                                                                      Volume 14, Number 2  Summer 2012
matter a great deal to the difference in    exceed the liability of the employee.”19    driven trucks “over the road” for more
the amount of the judgment. Under                  Gant controls in Illinois; the       than fifteen years before Dunaway
comparative negligence, if the plaintiff    Illinois Supreme Court has not ruled        hired him and had not had any training
prevails on both the negligence             on the issue. With Gant, Illinois           driving trucks over the road in nearly
claims against the employee and the         joined a minority of other states that      twenty years.
direct negligence claims against the        bar negligent hiring, retention, and              Quisenberry admitted he had
employer, the employer “would be            entrustment claims against an employer      lied on his driver’s application to
liable for the percentage of plaintiff ’s   when the employer admits to vicarious       Dunaway by not disclosing the two
damages caused by the [truck driver’s]      liability.20 Despite the rule in Neff and   revocations and for failing to disclose
negligence and for the percentage           Gant, the strategies discussed below        the prior accident, but claimed he told
of plaintiff ’s damages caused by the       may be useful in admitting evidence of      his supervisor the truth shortly after
[trucking company’s] separate” direct       prior bad conduct of truck drivers and      he was hired. Dunaway admitted the
negligence claims.13 The court held that    trucking companies.                         following:
Neff was not viable after the adoption                                                        • It hired only experienced drivers
of comparative negligence, and held         III. Theories of Liability                        because the company provided
that “the Illinois Supreme Court would            Despite Gant’s bar on claims                no training or supervision of
so hold were it to decide the issue.”14     of negligent hiring, retention and                drivers;
Lorio echoes the law in several other       entrustment against an employer if                • It should have found out as much
states that allows direct negligence        the employer admits vicarious liability,          as possible about Quisenberry
claims against employers who admit          other claims should be made regarding             before hiring him;
to vicarious liability of their employee-   trucking companies’ negligence. These             • It did the minimum required
tortfeasors.15                              claims will be dependent on the facts of          under federal law regarding the
       Lorio was a federal decision,        the case, but some of the claims made             driving history of Quisenberry
so Neff ’s viability under Illinois’        in Reagan may be applicable. In order             (which did not show the two
comparative        negligence      regime   to adequately explain these claims, a             prior revocations or the prior
remained unsettled in Illinois appellate    short synopsis of Reagan is set forth             accident); and,
courts until 2002, when the issue           below.21                                          • It did not monitor or supervise
again appeared before the Illinois                                                            drivers when they were on the
Court of Appeals in Gant v. L.U.            Reagan vs. Dunaway Timber                         road.
Transport.16 In Gant, the court held that         While exceeding federal limits
“[notwithstanding the fact that Illinois    on driving hours, a Dunaway Timber                The court entered a pretrial order22
is a comparative negligence jurisdiction,   Company truck driver, Morgan                that prohibited us from presenting any
a plaintiff who is injured in a motor       Quisenberry, lost control of his semi-      evidence of negligent hiring, retention
vehicle accident cannot maintain a          truck, crossed the centerline on a          or entrustment due to an Arkansas
claim for negligent hiring, negligent       highway, and struck an oncoming semi-       decision similar to Gant.23 However,
retention or negligent entrustment          truck driven by Roger Reagan. Mr.           the order specifically held that ruling
against an employer where the employer      Reagan died shortly thereafter. This        did not preclude “any independent
admits responsibility for the employee      tragedy is a prime example of what          negligence claims [plaintiffs] assert
conduct under a respondeat superior         happens when a trucking company             against defendants regarding negligence
theory.17 The court reasoned that           cuts corners and hires a driver that        in failing to have adequate policies,
“allowing the simultaneous submission       no reasonable company would trust           practices or procedures in place.” The
of these two separate theories would        to drive an 80,000 pound truck on           court indicated it would take up any
create the possibility that an employer’s   the highway. Prior to being hired           objections to this evidence as it came
negligent entrustment of a vehicle to       by Dunaway Timber, Quisenberry              up at trial.
an employee would result in a greater       had pled guilty to two DWI’s and                  During direct exam of the
percentage of fault to the employer         had two license revocations. Under          trucking expert,24 we carefully steered
than is attributable to the employee.”18    federal law, he had a lifetime ban          clear of references to the prohibited
The court opined that “although [direct     on driving commercial trucks on             areas mentioned above, but instead
negligence claims against an employer]      interstate highways. In addition, just      focused on the trucking company’s
may establish independent fault on          three months before Dunaway hired           poor policies, practices and procedures
the part of the employer, it should         him, Quisenberry crashed a truck            it had in place regarding the training,
not impose additional liability on the      into a bridge while hauling hazardous       supervision and monitoring of
employer. Employer’s liability. . .cannot   materials. Finally, Quisenberry had not          holding trucking companies continued on page 26

Volume 14, Number 2  Summer 2012                                                                                         Trial Journal 25
holding trucking companies continued from page 25         and procedures mentioned above;        N.E.2d 574 (3rd Dist. 1971).
Quisenberry. Uncontroverted expert                        4. Be prepared to respond to the       4
                                                                                                    Id. at 575.
testimony was presented that Dunaway                      inevitable Motion to Dismiss on        5
                                                                                                    Lockett v. Bi-State Transit v. Bi-State
could have discovered Quisenberry’s                       the claim of negligent hiring,         Transit Authority, 445 N.E.2d 310, 313-
revocations with an internet search for                   retention and entrustment;             314 (Ill. 1983).
$15. The search would have taken less                     5. Carefully go over the driver        6
                                                                                                    Alvis v. Ribar, 85 Ill.2d 1 (Ill. 1981);
than fifteen minutes. Dunaway also                         qualification file, any statements       735 ILCS 5/2-1116.
could have discovered the revocations                     of the driver, any documents           7
                                                                                                    Lorio v. Cartwright, 768 F.Supp. 658
and the prior accident by doing a records                 signed or authored by the              (N.D. Ill. 1991).
search at the local county courthouse.                    driver that may contain lies or        8
                                                                                                    The court’s rationale:
As is often the case, the defense could                   misrepresentations that could                  In…a [contributory negligence]
not resist questioning the firm’s expert                   be used to contest the credibility             jurisdiction, the entrustee-agent
on each of the actions Dunaway                            of the bad driver. This is a                   will be either totally liable for
took in the hiring process to comply                      separate and distinct grounds                  plaintiff ’s damages or not at all
with the minimum requirements of                          for admission of such evidence                 liable for plaintiff ’s damages. If
federal law. The court agreed with us                     regardless of the claims made;                 the entrustee is not at all liable
that Dunaway “opened the door” to                         6. Wait for the defense to make                for plaintiff ’s damages, whether
evidence of Dunaway’s policies and                        a statement at trial glorifying                it is because the entrustee was
procedures during the hiring process,                     the defendant company that will                not negligent or the plaintiff
thus allowing us to get the negligent                     serve to “open the door” to this               was contributorily negligent,
practices and procedures in the hiring                    evidence.                                      the entrustor-principal cannot
process outlined above. In addition                                                                      be liable for any part of the
Quisenberry’s lies on his application               V. Conclusion                                        plaintiff ’s injuries under either the
were used to impeach him, and thus                         Case law banning direct negligence            respondeat superior theory or the
his license revocations were referenced             claims against employers when they                   negligent entrustment theory. If
as well as prior accidents during                   admit to responsibility for their truck              on the other hand the entrustee
the trial testimony of Quisenberry,                 drivers’ negligence loses its logic in               was liable and the entrustor’s
Dunaway’s president, and the trucking               a comparative negligence regime. It                  responsibility for the acts of the
expert (although any mentioning of                  prevents juries from assessing fault to              agent admitted, the entrustor-
Quisenberry’s DWIs were precluded                   all culpable defendants, for all of the              principal would be liable under
under Federal Rule 403).25 26                       culpable conduct that led to the lawsuit.            the respondeat superior theory.
                                                    In the context of trucking cases, the                Under the latter circumstances,
IV. Lessons Learned                                 negligence of trucking companies in                  it is unnecessary to determine
       While Reagan was an Arkansas                 putting incompetent and dangerous                    whether the entrustor-principal
federal court case, the facts and law               drivers on the roads is distinct from                was also liable under the negligent
regarding exclusion of negligent hiring             the individual negligence of the truck               entrustment theory as the amount
claims are similar to those found in                drivers. Even so, under Gant, plaintiffs             of the plaintiff ’s recovery under
Illinois cases. Some practical ideas                in Illinois are presently stuck with the             that theory would be identical to
to help in such a case include the                  law. Hopefully the strategies outlined               the amount of plaintiff ’s recovery
following:                                          in this article will offer some ideas to             under the respondeat superior
       1. In addition to pleading                   put clients in the best possible position            theory. Because it is unnecessary,
       negligent hiring, retention and              to obtain a favorable verdict.                       and because the evidence of
       entrustment, also plead other                                                                     negligent entrustment tends to
       theories such as negligent policies,                        Endnotes                              be highly prejudicial, the rule
       practices and procedures for                 1
                                                       Gant v. L.U. Transport, 770 N.E.2d                set forth in Neff makes eminent
       training, supervising, monitoring,           1155 (1st Dist. 2002).                               sense in a contributory negligence
       etc., if applicable to the case;             2
                                                      Teri Reagan and Maverick Transportation,           jurisdiction. Id. at 660.
       2. Do comprehensive discovery                LLC v. Dunaway Timber Company, et            9
                                                                                                    Id.
       on each of these areas;                      al; Case No. 3:10-CV-03016. United           10
                                                                                                     Id.
       3. Have expert testimony that                States District Court, W.D. Arkansas,        11
                                                                                                     Id.
       is directed not only to negligent            Harrison Division. The jury awarded          12
                                                                                                     Id.
       hiring, but also specifically                 $7,000,000 to plaintiffs.                    13
                                                                                                     Id. at 660-661.
       addresses the policies, practices            3
                                                       Neff v. Davenport Packing Co., 268        14
                                                                                                     Id.

26   Trial Journal                                                                                            Volume 14, Number 2  Summer 2012
15
    Alabama, Kansas, Michigan, Ohio,           Rodgers v. McFarland, 402 S.W.2d 208,         appellant’s arguments that the district
South Carolina, Delaware, North                210 (Tex. App. 1966); Beavis v. Campbell      court erred by allowing references
Carolina, and Virginia allow such              Cty. Hosp., 20 P.3d 508 (Wy. 2001).           that the witness took the test and
claims. Richard A. Mincer, The Viability       21
                                                   This discussion is limited to the         references whether the witness passed
of Direct Negligence Claims Against Motor      negligent hiring practices of Dunaway         the test. Id. We argued that even if
Carriers in the Face of an Admission of        and at trial additional claims of fatigued    Quisenberry’s revocations and prior
Respondeat Superior, 10 Wyo. L. Rev. 229,      driving and numerous violations               accidents were inadmissible, his lies
fn 20 (2010) (citing Poplin v. Bestway         of FSMCA were made and can be                 on his applications about them were
Express, 286 F. Supp. 2d 1316 (M.D.            obtained by contacting our office.             admissible as impeachment evidence.
Ala. 2003); Marquis v. State Farm Fire         22
                                                  Pretrial Order on Motions in Limine        The court agreed.
& Gas Co., 961 P.2d 1213, 1225 (Kan.           is attached as Exhibit B.                     26
                                                                                                We cannot set forth all of the
1998); Perin v. Peuler, 130 N.W.2d 4,          23
                                                  Elrod v. G&R Const. Co., 275 Ark.          testimony and evidence because of
8 (Mich. 1964); Cark v. Stewart, 185           151, 628 S.W.2d 17 (1982).                    space limitations, but contact our
N.E. 71, 73 (Ohio 1933); James v. Kelly        24
                                                  Philip J. Smith, Analysis, Inc., 2207      office if you would like additional
Trucking Co., 661 S.E.2d 329, 332 (S.C.        Lyn Street, Grand Junction, CO 81505.         information.
2008); Smith v. Williams, C.A. No. 05C-        25
                                                  In support, we relied on Simmons,
10-307 PLA, 2007 Del. Super. LEXIS             Inc. v. Pinkerton’s Inc., 762 F.2d 591 (7th   J. Kent Emison is a partner at Langdon
266 (Sel. Super. Ct. Sept. 11, 2007);          Cir. 1985). In Simmons, a civil case, a       & Emison, where he devotes 100% of
Plummer v. Henry, 171 S.E.2d 330, 334          witness took a polygraph test but the         his practice to personal injury litigation
(N.C. App. 1969); Fairshter v. Am. Nat’l       results were inconclusive. Id. at 603.        on behalf of people who have been hurt
Red Cross, 322 F.Supp.2d 646, 654 (E.D.        The witness agreed to take a second           by defective products, trucks, and a wide
Va. 2004).                                     polygraph test but never actually took        variety of other claims. He is a Fellow
16
    Gant v. L.U. Transport, 770 N.E.2d         the test. Id. Despite this, the witness       in the International Academy of Trial
1155 (1st Dist. 2002).                         untruthfully told an investigator that        Lawyers, and a member of the AAJ’s
17
   Id. at 1159.                                he passed his second polygraph test.          National Finance Committee.
18
   Id.                                         Id. The district court did not admit
19
   Id.                                         the polygraph results as substantive          Mark Emison is an associate at Langdon
20
    Jurisdictions in which the state’s         evidence, but allowed evidence of the         & Emison. He graduated from the
highest court preclude these claims            witness’s lie to the investigator to be       University of Chicago Law School in
when an employer admits to vicarious           elicited on cross-examination under           2010. After law school, he completed
liability include California, Connecticut,     FRE 608(b). Id. at 604. The 7th Circuit       a one-year clerkship with Chief Justice
Idaho, Maryland, Mississippi, and              affirmed that the lie was admissible           William Ray Price, Jr., at the Missouri
Missouri. Richard A. Mincer, The               under 608(b) to impeach the witness           Supreme Court before starting with the
Viability of Direct Negligence Claims          even though the polygraph evidence            firm.
Against Motor Carriers in the Face of an       was inadmissible, and also rejected the
Admission of Respondeat Superior, 10 Wyo.

                                                                                                                               What are YOUR ITLA dues worth?
L. Rev. 229, fn 20 (2010) (citing Armenta
                                                                         Need MCLE credits?
v. Churchill, 267 P.2d 303 (Cal. 1954);
Prosser v. Richman, 50 A.2d 85 (Conn.
1946); Wise v. Fiberglass Systems, Inc., 718
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P.2d 1178, 1181 (Idaho 1986); Houlihan
v. McCall, 78 A.2d 661, 665 (Md. 1951);        ucational programs? Look to ITLA. As a member, you receive
Nehi Bottling Co. v. Jefferson, 84 So. 2d      reduced rates for ITLA seminars and webinars.
684 (Miss. 1956); McHaffie v. Bunch,
891 S.W.2d 822 (Mo. 1995). Other               If you miss a live seminar, just go to the CLE Store tab on the
states that also appear to hold this view      ITLA website and access the on-demand programs, available any
include are Illinois, Florida, Georgia,        time of day or night. If you prefer a program on CD, we have
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Id. (citing Clooney v. Geeting, 352 So. 2d
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Nat’l Union Fire Ins. Co., 463 S.E.2d 358,
                                               offering superior educational programs long before MCLE.
361 (Ga. App. 1995); Ortiz v. N.M. State
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Volume 14, Number 2  Summer 2012                                                                                        Trial Journal 27

				
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