Construction companies and others who manage fleets of vehicles—whether delivery drivers, on-road equipment operators, sales personnel, or managers who travel between worksites using company vehicles (or, sometimes, their own cars or trucks)—have significant exposure for the negligent actions of their workers and representatives behind the wheel.
In some cases, the fleet manager may face both civil and criminal liability depending upon applicable state law. Corporate fleet owners are often viewed as having “deep pockets” by juries, and damages may be awarded that are much higher than they would be if a driver was sued in his or her personal capacity. Moreover, there can be significant damage to the company’s reputation depending upon news coverage. Of course, there can also be workers’ compensation expenses if the worker/driver is killed or injured in the accident, in addition to injuring or killing a third party.
According to OSHA, someone dies in a motor vehicle crash every 12 minutes, someone is injured every 10 seconds, and a crash occurs every 5 seconds. Data indicate that more than 13,000 civilian workers were killed in roadway accidents in a single decade. The majority of crash victims are male (89 percent) and are between ages 35 to 54 (47 percent). While those working in the transportation sector make up the majority of those involved in motor vehicle crashes, the service, manufacturing, and sales industries are also heavily represented.
Significantly, 62 percent of the vehicles occupied by a fatally injured worker were registered to a business or the government, while 17 percent were driver-registered, and only 12 percent were registered to an unrelated entity (e.g., a car rental company). Motor vehicle crashes cost employers $60 billion annually in medical care, legal expenses, property damage, and lost productivity. OSHA estimates that an on-the-job crash that injures a worker costs the employer $74,000 on average. Costs can exceed $500,000 if the worker is killed. Fatal accidents involving third parties can exceed insurance policy limits and put a company out of business. |
Employers have legal liability exposure under a few different theories. The first is “negligent entrustment” under the legal doctrine of “respondeat superior.” This places the responsibility on the employer if the driver was incompetent; the employer entrusted its vehicle to the driver, and the driver’s lack of competency lead to the injuries of the third party.
Related liability theories include “negligent hiring” (hiring someone known to be a “bad” driver based on their history of accidents, tickets, or DUIs), “negligent retention” (where the employer fails to take action against a bad driver once it learns of the driver’s problems), and “negligent supervision” (where the employer failed to provide appropriate supervision or training in safe driving practices).
However, it is not necessary for a company vehicle to be involved in order for liability exposure to arise. In a recent case, Moradi v. Marsh USA, Inc. (California, 2013), the worker was using her own car, commuting home, and was involved in a collision while stopping along the way for food. The other driver sued and the court upheld the employer’s liability. Why? Because the employer required the employee to use her personal vehicle to travel to and from the office, and to make other work-related trips during the day, so the court found that the employee was acting within the scope of her employment while commuting as well. Earlier on the day of the accident, the worker had used her vehicle to transport coworkers to a company-sponsored program, and this may have influenced the decision.
Under the theory of respondeat superior, employers are vicariously liable for the tortious acts of their employees during the course and scope of employment. While normally “comings and goings,” such as commuting, are excluded from the scope of this theory, an exception is made when the use of the employee’s own vehicle gives some “incidental benefit” to the employer. So this is something to bear in mind if you require a foreman to use his own truck to travel from worksite to worksite, or for company meetings with subcontractors off-site.
In light of the substantial liability facing construction companies associated with the driving of their workers in on-road vehicles, proactive measures are recommended to improve safety and mitigate risk exposures. In the case of occupational motor vehicle accidents, the underlying causes vary widely, but include mechanical failure and driver error—both of which are within the control of the employer to some extent. Putting appropriate screening and disciplinary programs in place can be a great help in reducing liability. For new hires, who will drive while on duty, checking the validity of licenses (including those in states where the worker may have lived previously in the past 10 years) is vital and this can be accomplished through motor vehicle records and background checks.
Drug and alcohol screening of new hires is also useful, even where the worker will not hold a commercial driver’s license (CDL). If your company does have CDL drivers, you must abide by the applicable Department of Transportation safety rules for drug screening, alcohol restrictions, and hours of service rules. Never encourage a driver to exceed the hours of service limitations or require them to operate a vehicle with a known safety defect. The Surface Transportation Assistance Act has whistleblower protections (enforce by OSHA) to protect drivers who are retaliated against for raising safety concerns or refusing to exceed the limitations for hours of service.
There is also a consensus standard, ANSI Z15, which can assist employers and other fleet managers in developing appropriate programs to protect persons and property. It includes components such as: management, leadership, and administration; operational environment; driver considerations; vehicle considerations; and incident reporting and analysis. It is available through www.ansi.org. ■
About The Author Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, September 2014
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