Proving Negligent Hiring in Truck Wreck CasesMarch 8, 2017
When litigating a truck wreck, you are likely to have multiple claims of negligence. An often overlooked component of many cases is negligent hiring. Trucking companies tend to do very little due diligence when hiring a new driver. Thus, negligent hiring can be proven with thorough discovery during litigation.
Texas law recognizes that an employer has a duty to inquire into the competence and qualifications of those considered for employment. In order to succeed on a negligent hiring claim, a party must prove that the employer’s failure to investigate, screen, or supervise its employees proximately caused the injuries the plaintiffs allege. To sustain such a claim, a plaintiff must show that anything found in the background check would cause a reasonable employer not to hire the employee or put the employer on notice of the risk of harm to persons similarly situated as the plaintiff. Of course, if proper screening or investigation would not have revealed the risk, then plaintiff cannot meet its burden of proof and sustain the claim. Motor carriers tend to do very little, sometimes not even the federal minimum, when hiring drivers. In fact, we have had cases where motor carriers have done absolutely nothing except check for a valid driver’s license.
Recently, more and more motor carriers have attempt to avoid liability and the obligations of screening drivers by labeling employees as “independent contractors.” There are laws that establish whether a driver is legally classified as an independent contractor or not – a defendant cannot simply label an employee as an independent contractor to escape liability. The right of control is the primary test for determining the employer-employee relationship. The right to control can be proved by (1) contractual agreement, or (2) by evidence that the tortfeasor was performing services particular to the defendant’s business or that the defendant actually had a right to control the tortfeasor.
There typically will not be an agreement establishing the motor carrier’s control over the independent contractor. However, the independent contractor does perform services particular to the motor carrier’s business, which creates a presumption of employment. If the motor carrier has the right to dictate the means and methods of the independent contractor’s work, then an employee relationship is established. Assuming the driver is an independent contractor, an employer is required to investigate the independent contractor’s competency to drive if the performance of the contract requires driving. A person employing an independent contractor is required to use ordinary care in hiring. Again, chances are extremely high the employer did not perform standard screening in hiring such as taking the driver for a test drive or do anything to ascertain the driver’s competency to drive and follow the applicable laws.
The knowledgeable and experienced staff at the Amaro Law Firm are prepared to assist all of our referral partners in obtaining the most effective results for their clients. We have worked with firms which refer 18 wheeler wreck case, oil and gas injury cases, work injury cases, first party insurance cases (i.e., hail storm and windstorm), and other mass torts such as Deepwater Horizon claims.