Helpful tips for all truck accident lawyers when dangerous trucking companies admit vicarious liability and then move to dismiss any direct negligence claims
I’ve litigated many serious truck accident cases in California, and this latest tactic is truly alarming. Dangerous trucking companies who do not play by the rules or care about safety are admitting vicarious liability as a tactic to keep out evidence of direct negligence, such as negligent hiring, entrustment and supervision of unfit truck drivers. What happens is this: inevitably, an innocent person gets seriously hurt or killed in a truck accident. At this point, the trucking companies will throw the truck driver under the bus, to try to keep out evidence of what the company itself did wrong. The trucking company will say “we know our driver was negligent, and we accept vicarious liability.”
Both myself and my legal colleagues at the Truck Accident Attorneys Roundtable have considerable experience with the laundry list of dodgy litigation tactics that defense lawyers use defending trucking companies. The most dangerous tactic, in my opinion, is admitting vicarious liability through the negligence of the driver, then moving to exclude evidence of their own negligence at trial.
The lawyers for these dangerous trucking companies will then argue that their own negligence is irrelevant because they have admitted that they are liable for the actions of the truck driver.
These arguments should never succeed. So, how can a truck accident attorney maintain the direct negligence claim in the face of these arguments? Here’s how:
First, many jurisdictions recognize both claims as two distinct theories of liability. In these jurisdictions, the law is well established that both claims may proceed — even if the trucking company admits vicarious liability in an attempt to game the judicial system. Many states follow this approach. Make sure you research what the law is.
Second, the Restatement of Torts recognizes direct negligence and vicarious liability as two distinct theories of liability (Restatement (Second) of Torts, §§ 307, 308, 390). Investigate whether your jurisdiction has adopted the Restatement, or at least these relevant sections, when litigating your truck accident case.
Third, the Restatement of Agency also provides for a direct cause of action against an employer who negligently hires or entrusts an employee with an instrumentality, notwithstanding the principle’s vicarious liability (Restatement (Second) of Agency § 213). Again, research whether your jurisdiction has adopted this approach.
Fourth, there is a compelling policy argument that we need to hold bad trucking companies accountable for hurting people. Fatal truck wrecks are on the rise. In virtually every single fatal truck accident or bus accident, somebody somewhere broke an important safety rule. We as a society, and we as trucking lawyers, should not let bad companies off the hook for knowingly cutting corners on safety and putting lives at risk. We all have a common interest in keeping our roads as safe as possible.
Fifth, in states which have comparative fault, as versus contributory negligence states, the law demands that fault must be compared with all defendants. That means 100% fault must be apportioned among all defendants in the action.
Finally, in states where joint and several liability has been abolished, comparative fault and evidence of each defendant’s negligence is crucial. Think about this: we hear about dangerous chameleon carriers in states like California breaking rules and killing somebody all the time, and then disappearing and reorganizing as a “new” company tomorrow.
If this happens in a state with no joint and several liability, and the company evaporates after you beat them in court, how much of your judgment can you collect from the truck driver? Since this is happening all over America, the court must allow the jury to allocate fault between the trucking company’s direct negligence and the driver. Then, if the trucking company disappears, the injured plaintiff will know what they are entitled to collect from the truck driver.
I hope you have found these tips helpful. Evidence of direct negligence must come in at trial, and it is imperative that you hold the dangerous company accountable for the harm they have done.
