When a party sustains injury in an accident involving a commercial truck, their first thought might be to file a personal injury lawsuit against the truck driver. However, experienced truck accident attorneys will also consider whether the trucking company might be held responsible under the legal doctrine of negligent hiring, which applies whether or not the employee intentionally caused harm. (Negligent retention, another legal theory, can also be claimed when an employer retains an employee after becoming aware that the employee poses a risk of causing harm.)
What is negligent hiring?
Negligent hiring is a legal theory that claims a company failed to exercise reasonable care when it failed to hire qualified and experienced employees. For example, an injured party could make a negligent hiring claim against a trucking company or organization that hired a driver with an unsafe background or lack of qualifications, and that driver’s negligence caused them to sustain an injury. However, to win a negligent hiring claim, the plaintiff must prove that the employer knew or should have known that the employee posed a risk for engaging in dangerous conduct that might inflict harm.
Liability for a trucking accident in Virginia
An employer is liable for damages caused by their employee while the employee is acting within the scope of their employment. In trucking accidents, the truck driver is typically acting within the scope of their employment as they were hired to drive the truck. However, if the truck driver was on a personal trip or doing a personal errand, the employer might avoid liability because the driver was no longer within their employment scope. Instead, the employee was on a “frolic of their own,” the legal term for an employee who deviated from their employment, which would release the employer from liability.
Another party that may be responsible for damages caused by a truck driver’s negligence is the party who hired the driver. It is important to note that the party who hired the driver is not necessarily the employer of the driver. Negligent hiring might be relevant in a situation where a hiring company placed a driver with known tendencies, (or tendencies that should have been discovered by reasonable investigation) in a position in which it should have been foreseeable that the employee posed a threat of injury to others. For example, a hiring company could be liable through a negligent hiring theory if the hiring company hired a driver with several prior DUIs on their record.
Unlike passenger car collisions, numerous parties may potentially be liable for a trucking accident. With multiple liable parties and potentially severe injuries, anyone injured in a collision involving a truck should retain an experienced trucking accident attorney.
Proving a negligent hiring claim
The necessary legal elements to support a negligent hiring lawsuit include:
- An employer/employee relationship exists.
- The employee is incompetent.
- The employer has actual (or practical) knowledge of the employee’s incompetence.
- The employee’s act or failure to act that caused the plaintiff’s injury.
- The employer’s negligence related to hiring or retaining the employee caused the injury.
If all the elements can be proven, it might lead to a victory for the injured plaintiff. There are also certain pieces of evidence that can be used to prove a negligent hiring claim. These include:
- Copies of convictions for prior felonies, misdemeanors, or other crimes on the part of the truck driver
- Copies of incident reports, arrest records, charges, and investigative information
- Prior safety violations under the Federal Motor Carrier Safety Regulations (FMCSA)
- The truck driver’s driving record, driver qualifications, and personnel file
- Evidence of a background check performed on the driver
The Federal Motor Carrier Safety Administration (FMCSA) requires trucking companies to review a driver’s history for the preceding three years by requesting personal information from previous employers, obtaining the motor vehicle record of a new applicant, reviewing the driver’s drug testing history, and continuing to conduct annual inspections of the driver’s motor vehicle record. If the company fails to inspect a driver’s history, they can face federal penalties, and the evidence used to prove a negligent hiring lawsuit.
Damages available in a truck accident claim
If an injured plaintiff can prove that a truck driver, trucking company, or other party is liable for their injuries, they may be able to seek compensation for various damages, including:
- Accident-related medical expenses – present and future
- Lost wages – present and future
- Property damage
- Pain and suffering
- Loss of enjoyment of life
- Permanent disability or disfigurement
However, Virginia truck accident claims are subject to a legal obstacle that can completely prevent any monetary recovery. Virginia is one of only five states and territories with a pure contributory negligence system, which means any degree of fault (even just one percent) attributed to a plaintiff will bar them from civil recovery. Said another way, even if a negligent truck driver or trucking company is 99 percent liable for a truck accident in Virginia, if the plaintiff is one percent responsible, this would likely end any hopes of recovering monetary damages. Therefore, it is critical to enlist the services of a skilled attorney when litigating truck accident claims in Virginia, since disputing allegations of contributory negligence will play an essential part of essentially every claim.
Many attorneys say they represent plaintiffs in truck accident claims, but few firms have the knowledge and resources to handle these complex cases successfully. Truck accidents are far more complicated and damaging than passenger vehicle collisions, and the subsequent claims require much more investigation, analysis, and preparation.
At Phelan Petty, our attorneys understand that every truck accident claim is unique. That is why we carefully examine the strengths and challenges of each case and build aggressive legal strategies to get our clients the compensation they deserve. To schedule a free consultation with one of our truck accident lawyers, please call or fill out our contact form today. We serve clients throughout Virginia from our Richmond offices.
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Michael Phelan is a Virginia trial attorney who practices with a special focus on traumatic brain injury (TBI) cases, pharmaceutical and medical device claims, product liability cases, and truck accidents. Michael’s peers have consistently recognized him for his excellence as a trial lawyer, and his clients have praised him for his commitment to deep research, his outstanding communication skills, and his sincerity and dedication.