Pertinent Case Law
Case law addressing the road test requirement primarily falls into two categories:
- cases where the giving or failure to give a road test is relevant in determining whether a driver was an employee for purposes of workers compensation coverage
- cases where the motor carrier itself is alleged to be negligent for allowing a driver it had not tested to operate a commercial motor vehicle
Smith v. Tommy Roberts Trucking Co.
Support for an award of punitive damages based in part on the failure to give a road test is found in Smith v. Tommy Roberts Trucking Co. There, the Georgia Court of Appeals reversed a trial court’s grant of summary judgment to the driver and motor carrier as to the plaintiff’s claim for punitive damages. In its analysis, the court observed evidence of the breach of a number of provisions of the FMCSRs, including the failure to road test the driver. As the court noted, “[i[t is for the jury to decide whether these facts show the driver’s incompetency, the employer’s knowledge of the incompetency and that the employer’s negligence, if any, concurred with that of the driver to cause the plaintiff’s injuries.” This holding is notable for its use of the phrase “concurred with that of the driver,” inasmuch as the court was recognizing the possibility that, as the saying goes, “causation may have many fathers.”
Indian Trucking v. Harber
The reasoning of the Georgia Court of Appeals in Smith is echoed by that of the Indiana Court of Appeals in Indian Trucking v. Harber. There, an owner-operator employed a driver, whom it provided along with a tractor to a certificated motor carrier. The owner-operator failed to administer a road test to the driver prior to allowing him to operate the CMV that it leased to the motor carrier. There was also evidence the owner-operator failed to require the driver to follow the FMCSRs’ vehicle inspection requirements for pre-trip and brake inspections and brake adjustment. In affirming a $2 million judgment for the death of a passenger in a vehicle struck by the tractor-trailer, the court held:
Acts of negligence need not be the sole proximate cause of the injury in order for liability to arise. If a party’s negligence is a proximate cause of the injury, that party shall be liable for the injury. Therefore, if multiple parties owe concurrent duties to the injured party, each may be liable for breach of their respective duty.
This is a more explicit declaration of what was suggested in Tommy Roberts, i.e. that the breach of the FMCSRs by the motor carrier may constitute an element of causation together with the direct negligence of the driver. However, as in both cases, some technical, wholly-unrelated breach, such as failing to carry snow chains at the time of a wreck that occurs in the desert during summertime, is not going to carry the day. There must be a tangible link, and it is up to the practitioner to ferret out and develop that link.
In a slightly broader sense, the Indian Trucking case also addresses the general theory that a combination of violations of the FMCSRs may support a finding that the motor carrier was itself negligent. Such a claim is not based on vicarious liability for the acts of the driver. Addressing this theory, the court in Indian Trucking observed the near-universal rule that the “unexcused or unjustified violation of a duty dictated by statute is negligence per se,” and that such violation must be the proximate cause of the harm.
The court then proceeded to address the various violations of the regulations by each defendant in the context of how they related to violations committed by their co-defendants. Thus, the court not only recognized that a breach may be a component of the proximate cause which led to the driver’s negligence, but it also looked to the combination of breaches as making up the causal link. For example, the court noted that the evidence supported a finding that the truck driver did not know how to properly check and adjust the brakes on his tractor, and that the brakes may have been so out of adjustment as to have no braking force at all. The owner-operator, having failed to administer the road test that likely would have revealed this deficiency on the part of the driver, should have disqualified him from operating a CMV. The court also observed that the owner-operator failed to require the driver to perform inspections required by the FMCSRs (he probably did not know how). That, too, was found to constitute a link in the causal chain leading up to the fatal collision. Finally, the court found that the motor carrier itself failed to maintain the equipment and ensure that it was properly inspected by the driver before operation. Taking these various breaches together, the court found that the jury was authorized to find negligence not only on the part of the driver, but also on the part of the equipment owner-lessor and the motor carrier-lessee.
The Indian Trucking opinion is important for its implicit ruling that safety-related functions and duties are not permitted to be delegated by the motor carrier when it leases equipment owned by another. Just as importantly, the jury was permitted to hear about the various violations, rather than simply just the driver’s own negligence in failing to check the brakes. Certainly, the picture that plaintiff’s counsel was allowed to paint was far more striking than the simple negligence of a likely sympathetic “Joe Six-Pack” working man.
Accordingly, the practical value of the Indian Trucking case is that it offers an excellent tutorial on how regulatory breaches by the motor carrier (and/or the owner-operator) may be knit together with the acts of a negligent driver to support a verdict on compensatory damages. The key, as always, is to demonstrate to the court how the breaches of the FMCSRs led to, or were a component part of, the mechanism that caused the occurrence. For example: a motor carrier fails to require any road test, and thus permits a driver who is incompetent to perform a vehicle inspection to operate a CMV on the roadway. The driver then is incapable of discovering and unable to remedy the CMV’s maladjusted brakes. These two breaches, one by the motor carrier and the other by the driver, combine to proximately cause the collision and place liability on both.
Although normally sufficient to prove a breach of the standard of care, this logical construct was not followed in Wanke v. Lynn’s Transportation Co., supra, resulting in summary judgment against the plaintiff on a claim for punitive damages. There, the plaintiff argued that the failure to administer a road test evidenced a conscious disregard for safety so as to justify a punitive damages award. The court disagreed, noting that although no road test was given, the driver had a CDL issued in another state, and was thus possibly exempt from the requirement of a road test per the provisions of § 391.33.2 However, there is no indication that the plaintiff had probed the CDL issue to determine, for example, whether the driver was required to pass a road test to get the CDL, or whether he had to pass a road test in an equivalent-type vehicle. Likewise, there is no indication that the plaintiff presented evidence that the road test could have uncovered some incompetence or inability on the part of the driver that may have caused the accident. Notably, the Wanke court also engaged in a “totality of the circumstances” analysis to determine whether punitive damages were supported by the evidence, but again found no link between the alleged punitive conduct and the underlying collision.
The ruling of the Wanke court as to punitive damages may be viewed in conjunction with one by the Sixth Circuit, which reversed a punitive damages award based in part on the failure to administer a road test in Womack v. Gettelfinger. There, it was actually the defendants who submitted evidence that the failure to administer a road test was not a proximate cause of the incident. The driver had failed a road test given by a prior prospective motor carrier employer. With little to no experience driving a CMV, he then sought employment with the defendant motor carrier, which did not administer a road test at all. After he was hired, the driver drove several thousand miles without incident. Further, a friend of the defendant driver who was hired at the same time “certified” that the defendant driver was “competent.”
In reversing the award of punitive damages, the Sixth Circuit held that the wreck “resulted from a lapse of judgment that no pre-employment test would have been likely to predict,” and that while the motor carrier may have been negligent in hiring the driver, “[entrusting] a $200,000 tractor trailer to an apparently responsible driver does not bespeak the kind of wanton misconduct necessary to support a punitive damage award.”
This rather questionable analysis, which on its face smacks of an invasion of the jury’s role in weighing and considering the evidence, once again highlights the necessity for careful linkage of a regulatory breach with the occurrence. A fair argument may be made in many cases involving driver error that, at a minimum, the required road test might have disclosed some problem that could have been addressed and remedied. After all, the FMCSRs presumably did not include a road test requirement just so that it could be ignored. In fairness, it should be noted that the Womack court, despite any other failings it could be cited for, was addressing an award of punitive damages and therefore, was faced with the corresponding higher burden of persuasion. Arguably, the court may have been more likely to admit the same evidence, as the court in Indian Trucking did, had it been submitted solely to prove simple (or even gross) negligence.
As with any breach of a regulation claim, the careful practitioner must find a basis to link the breach with the more obvious cause, i.e., the failure to adjust brakes or set out warning cones when stranded on the side of the road. Such a link is logically easier to establish for a showing of negligence, rather than an award of punitive damages. But there are certainly cases where breach of regulations bolster, if not establish outright, the need for punitive damages. The point is to obtain the evidence of breach needed to secure the related jury charge, and then argue it as part of an overall disregard for safety on the part of the motor carrier.