Liability of the Commercial Driver: Negligent Hiring Meets the Dangerous Instrumentality Doctrine
The average driver on Florida’s highways shares the road with a great many commercial vehicles. From semitrailers to jitneys, gasoline tankers to orange trucks, increased traffic leads to an increased rate of accidents. There are subtleties of liability for the injuries resulting from these accidents that are frequently overlooked. This article explores Florida’s dangerous instrumentality doctrine, vicarious liability, and federal preemption of the regulation of commercial motor vehicles.
Vicarious liability for the negligence of a professional driver is determined by Florida’s dangerous instrumentality doctrine, which provides that the owner of an inherently dangerous tool is liable for any injuries caused by that tool’s operation.1 In the seminal case of Southern Cotton Oil Co. v. Anderson, 86 So. 629 (Fla. 1938), the Florida Supreme Court first extended the doctrine to motor vehicles, holding that owners may be held accountable for any damages suffered by third parties as the result of the negligent operation of their vehicles, when they are driven by others with their knowledge and consent.
Many people now lease automobiles as financing alternatives to purchasing, and thereby never acquire legal title to the vehicle in which they have beneficial ownership. In recognition of this, the Florida Supreme Court created an exception to the dangerous instrumentality doctrine for long-term leases. Leasing companies were no longer held vicariously liable for any accidents involving vehicles in which they only held bare legal title, but no right of control.2 This was later codified by our legislature.3
The distinction between bare legal title and beneficial ownership and control was recognized in Palmer v. R.S. Evans, Jacksonville, Inc., 81 So. 2d 635, 637 (Fla. 1958):
[T]he rationale of our cases which impose tort liability upon the owner of an automobile operated by another.. . would not be served by extending the doctrine to one who holds mere naked title as security for payment of the purchase price. In such a titleholder, the authority over the use of the vehicle which reposes in the beneficial owner is absent (emphasis in original).
Later decisions have uniformly reiterated that there must be an ability to exert control over a vehicle before vicarious liability will be imposed for its operation. In Aurbach v. Gallina, 753 So. 2d 60 (Fla. 2000), the plaintiff attempted to extend liability to both parents of an 18-year-old driver, only one of whom was a title owner, based upon the nonowner parent’s alleged right to control the vehicle driven by his daughter. Both parents paid for the purchase and maintenance of the vehicle, and it was kept in their garage. The court expressed unwillingness to stretch the limits of liability beyond those who lack actual control over a vehicle:
In the absence of common law or statutory authority, we hold that a parent who owns neither legal title nor an identifiable property interest in a motor vehicle should not be held vicariously liable for his or her child’s negligent operation of the vehicle under the dangerous instrumentality doctrine.4
Aurbach has signaled the end of a lock-step application of the doctrine based simply upon ownership. While this is necessarily a more fact-intensive inquiry than positing liability on whomever holds title, it is an approach which resonates with modern tort concepts and keeps Florida in the forefront of allocating liability based upon fault.
Negligent Hiring
Respondeat superior is a similar but separate theory of recovery for negligent driving that imposes liability upon a principal for the negligent acts of his agent undertaken within the scope of the agent’s employment.5 If a driver acts within the scope of his employment in causing a collision, a plaintiff may pursue his master under respondeat superior. The same is true for a motor carrier’s liability for its driver’s grossly negligent driving.6 In Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d DCA 1977), a plaintiff shifted the typical focus of tort claims against a driver and his employer by bringing a claim against the motor carrier under a negligent hiring theory. The court held that the negligent hiring theory imposed no greater liability upon the motor carrier than its vicarious liability for its driver’s negligence. Consequently, the burgeoning body of law developing under the theory of negligent hiring is largely irrelevant with respect to the professional driver. The employer, as the vehicle’s owner, is already responsible for the operation of its dangerous instrumentality.
Both the dangerous instrumentality doctrine andthe theory ofrespondeat superior have historically depended upon the ownership of the vehicle.7 The Florida Supreme Court recognized in the landmark case of Mercury Motors Express, Inc. v. Smith, 393 So. 2d 545 (Fla. 1981), that vicarious liability awards compensation for injuries without regard to fault. “The rationale for imposing vicarious liability is the employer’s ultimate control over the servant and the instrumentality causing injury and the state’s interest in compensating the victim.”8 Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 123 (Fla. 2d DCA 1987), addressed the specific relevance of Mercury Motors to the professional driver:
The application of Florida law reflects the needs of the interstate system. Vicarious liability is unique in its application of liability for wrongs attributable to an agent. Because of this unique feature, the interstate system is served by applying this principle with certainty, predictability and uniformity of result. Further, the basic policies underlying vicarious liability law demand that a master be found liable for the negligent acts of his agent. Failure to apply the vicarious liability law would allow masters to send their agents out into the stream of interstate commerce without fear that liability would find its way back to the master.
The goals of certainty, predictability, and uniformity of result are generally satisfied by holding the owner of its vehicle liable under the dangerous instrumentality doctrine. This principle recognizes that the owner alone must be held liable as the entity with control over the details of the manner in which the driver performs his duties. Unless a driver has acted outside the scope of his employment, a plaintiff may not invoke theories of negligent hiring or retention.
When a plaintiff sustains no additional damages as a result of any acts by an employer which could in any way be deemed to exist apart from those resulting from its driver’s negligence, he has no independent claim such as would allow him to hold two entities vicariously responsible for the same conduct. While this may seem self-evident, commercial driving relationships are frequently complex. For example, one company might lease a truck, a driver, or both to another company, which might in turn sublease one or both to yet another. In Walker v. U-Haul Company, Inc., 300 So. 2d 289 (Fla. 4th DCA 1974), a motor carrier was found to be jointly and severally liable with its driver for injuries caused in a collision with the plaintiff’s car. After the negligent driver was released, the court held that the discharge of the driver served to discharge the employer, even if there is an independent claim against the employer for the negligent hiring of the driver, because the plaintiff sought the identical compensatory damages against each. This is significant. Under general notions of joint and several liability, a plaintiff would generally be free to settle with any entity potentially responsible such as an employer, master or lessor, under any of a number of theories. In the context of the commercial driver, however, the recovery is more results-oriented. If there is negligence, the only critical determination is to find a responsible party in control.
In a claim for negligent hiring, the court in Garcia v. Duffy, 492So. 2d 435 (Fla. 2d DCA 1986), spelled out the extent of a background investigation that may be considered by a jury:
[T]here is no requirement, as a matter of law, that the employer make an inquiry with law enforcement agencies about an employee’s possible criminal record, even where the employee is to regularly deal with the public.. . . Even actual knowledge of an employee’s criminal record does not establish, as a matter of law, the employer’s negligence in hiring him. . . [T]o say an employer can never hire a person with a criminal record “flies in the face of the premise that society must make a reasonable effort to rehabilitate those who have gone astray.”9
The Garcia court found that the plaintiff failed to allege that anything occurred subsequent to the hiring of the employee that would have placed an employer on notice of his “dangerous character.” Unless there is such an allegation, a claim of negligent retention, as contrasted with one for negligent hiring, is subject to dismissal.
The reasons that negligent hiring is alleged are often twofold. The first is simply to find a responsible party capable of satisfying a judgment. The second (and for the employer, more problematic) reason is to provide a basis for the introduction of the driving records of its employee at trial. Often a plaintiff will urge that the driver’s prior criminal, driving, and regulatory records are evidence of his unsuitability as a commercial driver.
The courts in Florida have uniformly precluded the admission of evidence of past driving history to prove fault against the driver.10 The use of such evidence against the employer was limited in McFarland & Son v. Basel, 727 So. 2d 266 (Fla. 5th DCA 1999). In that case, an injured car passenger brought a negligence suit against a truck driver and the motor carrier premised upon the driver’s failure to fill out an employment application, in “derogation of the regulations of the Interstate Commerce Commission.” In reversing a $5.5 million verdict, the appellate court held that
The simple violation of a licensing statute, unless the violation can be shown to be directly related to the incident, is not proof of negligence. Brackin v. Boles, 452 So. 2d 540 (Fla. 1984). Without proof of a causal connection between the regulatory restriction and the incident, the finding of liability based on a regulatory deficit is unsustainable.11
When there is a lack of relevance to the subject accident, proof of a driver’s prior criminal history must also be excluded. The Florida Evidence Code, F.S. §90.404(1) (1976), provides: “Evidence of a person’s character or a trait of character is inadmissible to prove action in conformity with it on a particular occasion.”
Section (2) provides limited exceptions when such evidence is relevant, to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.”
A similar prohibition is found in F.S. §90.410 (1978), which makes evidence of a plea of nolo contendere “inadmissible in any civil or criminal proceeding. . . . ”
Even if a driver was driving on a suspended license at the time of the accident, he only broke the law if he knowingly drove with an invalid license.12 This is logical; an administrative suspension has no relevance to a driver’s negligent operation of a vehicle.13
Federal Regulation
In 1986, Congress created the Federal Motor Carrier Safety Administration and required that all states adopt uniform standards for commercial drivers.14 Beginning in 1992, in order to continue to receive federal funding for transportation, all states are required to issue a uniform commercial drivers license (CDL) in lieu of a chauffeur’s license. The states have also adopted federally-mandated uniform standards for motor carriers to follow in hiring commercial truck drivers. Because these uniform standards are now set by federal law, federal law largely preempts state law.15
Such uniformity serves an important function in an industry inherently affecting interstate commerce. Interstate commerce would be impeded if, for example, Florida-licensed commercial drivers were required to stop at the Georgia border because Georgia did not recognize the Florida drivers’ qualifications to drive. A driver licensed to drive commercially in one state is constitutionally qualified to drive anyplace in the United States, enjoying the basic tenets of comity and federal supremacy in matters which affect interstate commerce. The regulations specifically require that “[a] State shall allow any person who has a valid CDL. . . to operate a commercial motor vehicle in the State.”16 This is not a matter of discretion: If a driver is issued a CDL, he must be allowed to drive commercially upon the highways of Florida. Florida has incorporated the majority of the federal standards into its state laws.17 Federal regulations prescribe the duties of a “motor carrier” with respect to the hiring and retention of its drivers. 49 C.F.R.§390.11 mandates that “[w]henever.. . a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.” The motor carrier’s duties are thus made nondelegable.
“Qualification” is a term of art in the field of commercial motor vehicle compliance, and can make or break a case of liability against a motor carrier. It is generally defined in 49 CFR §391.11:
(a) A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in §391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle. (Emphasis added.)
A number of criteria are given in subsection (b) to ascertain whether a person is qualified to drive, and requires that the person can, by reason of experience, training, or both, safely operate the vehicle. Also, the mandatory application process itself is extremely detailed. For example, the applicant must furnish the motor carrier an application with certain specific information, including details of his experience and training and a three-year history of his driving record and employment history.18 A road test must also be given which will allow the employer “to evaluate the skill of the person who takes it at handling the commercial motor vehicle.”19
An examination of the driver’s employment record for the prior three years is required of the motor carrier.20 This information forms a portion of the extensive driver qualification file that the motor carrier must maintain.21 This must include driving and employment record inquiries, road test results, medical clearances, responses from inquiries to state agencies, and results of each annual license review. These records must be maintained by the motor carrier for at least three years after the employment relationship ends.22 The driver qualification file forms a road map of what a motor carrier must do to qualify its drivers, and ultimately to demonstrate the driver’s qualifications if later challenged.
A frequent issue arises as to what is considered a “driving record,” which must be considered by a prospective employer. The federal regulations require the driver applying for employment to provide a “list of all violations of motor vehicle laws or ordinances (other than violations involving only parking) of which the applicant was convicted or forfeited bond or collateral during the three years preceding the date the application is submitted.”23 What may be considered is specified in 49 CFR §390.5:
Conviction means an unvacated adjudication of guilt, or a determination that a person has violated or failed to comply with the law in a court of original jurisdiction or by an authorized administrative tribunal, an unvacated forfeiture of bail,.. . a plea of guilty or nolo contendere accepted by the court, the payment of a fine or court cost, or violation of a condition of release without bail, regardless of whether or not the penalty is rebated, suspended or probated.
An employer is not allowed access to the common driving history reports prepared by the Department of Motor Vehicles. The public records law affecting the disclosure of driving information only allows a motor carrier to “obtain or verify information required under the commercial Motor Vehicle Safety Act of 1986.”24 An issue often arises as to what value, if any, may be placed upon a driving violation of which adjudication has been withheld. While this inquiry typically arises in the context of using proof of such a disposition for impeachment purposes, the Florida Supreme Court long ago defined “conviction” as “adjudication by the court of the defendant’s guilt.”25 As a matter of federal constitutional law, it is clear that any arrest not resulting in an actual conviction may not be considered by an employer.26
Federal law, rather than Florida common law, controls the relationship between a driver, his employer, and the public. In Judy v. Tri-State Motor Transit Co., 844 F. 2d 1496 (11th Cir. 1988), the 11th Circuit examined the role of Florida common law as it applied to the leasing of commercial drivers. A “contract driver” named William Judy had signed an agreement to drive on behalf of a lessor of a motor carrier. The motor carrier supplied his trailer, required him to comply with all of its rules and regulations, dispatched him and provided times for him to pick up and drop off loads, directed him as to which routes to take, and provided him with all required permits. The court concluded that federal law creates the statutory employer relationship between motor carriers and the driver and truck leased to it.
Regulations of the Interstate Commerce Commission require motor carriers to assume full responsibility for the negligence of lessor-drivers of leased equipment.27 The regulations preclude joint liability between a lessor and lessee:
The regulations require that the carrier assumes “complete responsibility” for the duration of the lease. 49 CFR 1057.12(c)(1). Once again, this court is unable to harmonize “complete responsibility” with “joint liability”; consequently, any conflicting state law doctrine must give way to the federal statute in its regulatory scheme.28
The U.S. Supreme Court has interpreted the “complete responsibility” language by holding that lessors and lessees may enter into enforceable contractual agreements among themselves, provided the agreements do not adversely affect the public.29 The Third Circuit described such provisions as creating “exclusive responsibility,” which make motor carriers exclusively liable for the operation of their leased trucks, even when the lessor’s employee is driving a truck for a third party when an accident occurs.30 This interpretation has been widely followed in what has become known as “logo liability,” i.e., as long as the carrier’s logo is displayed, the driver remains the “statutory employee” of the carrier, even if the driver is not operating under the carrier’s authority at the time of the collision.31 This principle was extended in Carolina Casualty Ins. Co. v. Insurance Co. of N. America, 595 F.2d 128 (3d Cir. 1979), which held that federal law creates an irrebuttable presumption that an employment relationship exists between a driver and the lessee motor carrier which leases him.32 49 CFR §390.21 requires that a vehicle must display both the name or trade name of the motor carrier and the name of any operating carrier. Uniform federal standards determined a driver’s qualification to drive a truck, and the pre-emptive federal regulations imposed a nondelegable duty on the trucking company to qualify commercial drivers.33
Conclusion
Not so long ago, the litigation of “traffic accidents” was relatively simple and straightforward. In some respects it still is. Whenever a commercial vehicle is involved, however, there must be a sensitivity to the federal regulations now incorporated into Florida law, as well as the posture of the dangerous instrumentality doctrine. Both concepts share an underlying theme. Liability will rest upon a financially-responsible party having the right to control the operation of a vehicle.
1 Crowell v. Clay Hyder Trucking Lines, Inc., 700 So. 2d 120, 123 (Fla. 2d D.C.A. 1997); Michalek v. Shumate, 524 So. 2d 426 (Fla. 1988).
2 Kraemer v. General Motors Acceptance Corp., 572 So. 2d 1363, 1365 (Fla. 1990) (doctrine “is premised on the theory that the one who originates the danger by entrusting the automobile to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation”).
3 Fla. Stat. §324.021 (1996).
4 Aurbach, 753 So. 2d at 575.
5 Jones v. Gulf Coast Newspapers, Inc., 595 So. 2d 90 (Fla. 2d D.C.A. 1997).
6 See J.R. Brooks & Son, Inc. v. Quiroz, 707 So. 2d 861 (Fla. 3d D.C.A. 1998); Clooney v. Geeting, 352 So. 2d 1216 (Fla. 2d D.C.A. 1977).
7 Crowell, 700 So. 2d at 123.
8 Mercury Motors, 393 So. 2d at 549.
9 Garcia, 492 So. 2d at 435, citing Mallory v. O’Neil, 69 So. 2d 313 (Fla. 1954), and §317, Restatement (Second) of Torts.
10 See, e.g., Corbett v. Seaboard Coastline Railroad Co., 375 So. 2d 34 (Fla. 3d D.C.A. 1979) (evidence of defendant driver’s lack of license properly excluded); Goldner v. Lentin, 96 So. 2d 553 (Fla. 3d D.C.A. 1957) (defendant driver’s license restrictions are inadmissible where there is no causal connection to collision).
11 McFarland & Son, 727 So. 2d at 268–269.
12 See Waites v. State of Florida, 702 So. 2d 1373 (Fla. 4th D.C.A. 1997) (construing Fla. Stat. §322.34; establishing scienter requirement); see also 49 C.F.R. 391.15(b)(2) (driver required to notify employer when notice of license suspension received).
13 McFarland & Son v. Basel, 727 So. 2d 266 (Fla. 5th D.C.A. 1999); accord, State v. Van Hubbard, 751 So. 2d 552 (Fla. 1999) (prior driver’s license suspension was inadmissible bad act evidence).
14 49 C.F.R. §383.73.
15 Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984).
16 49 C.F.R. §383.73 h (emphasis added).
17 Fla. Stat. §316.302(1)(a) (1990): “ all owners and drivers of commercial motor vehicles that are engaged in intrastate commerce are subject to the rules and regulations contained in 49 CFR parts 382, 385 and 390–397.. . . ”
18 49 C.F.R. §391.21.
19 49 C.F.R. §391.31.
20 49 C.F.R. §391.23.
21 49 C.F.R. §391.51.
22 49 C.F.R. §391.51(8)(c).
23 49 C.F.R. §391.73.
24 Fla. Stat. §119.07(3)(bb)10 (1996).
25 Smith v. State, 78 So. 530, 532 (Fla. 1918); followed Roberts v. State, 450 So. 2d 1126 (Fla. 4th D.C.A. 1984).
26 See, e.g., McCraven v. City of Chicago, 18 F. Supp. 2d 877 (N.D. Ill. 1998); Gregory v. Litton Systems, 472 F.2d 631 (9th Cir. 1973).
27 Proctor v. Colonial Refrigerated Transp. Co., 494 F.2d 89 (4th Cir. 1974); Ryder Truck Rental Company v. UTF Carriers, Inc.,719 F. Supp. 455 (W.D. Va. 1989).
28 Ryder Truck Rental, 719 F. Supp. at 459.
29 Transamerican Freight Lines, Inc. v. Brada Miller Freight Systems, Inc., 423 U.S. 28 (1975).
30 Mellon Nat’l. Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir. 1961).
31 Judy, 844 F.2d at 1496; Simmons v. King, 478 F.2d 857 (5th Cir. 1973).
32 Accord, Rodriguez v. Ager, 705 F.2d 1229 (10th Cir. 1983).
33 Judy, 844 F. 2d at 1496.
Walter G. Latimer is a board-certified civil trial lawyer with Marlow, Connell, Valerius, Abrams, Adler & Newman in Miami. He attended Tulane University (B.S., 1979) and the University of Missouri (J.D., 1983). His practice concentrates primarily in insurance defense and excess coverage issues.
This column is submitted on behalf of the Trial Lawyers Section, Robert F. Spohrer, chair, and D. Keith Wickenden, editor.
