Motion to dismiss negligent hiring claim fails

Where the employer of a driver who was involved in an accident that catastrophically injured two persons was sued for negligent hiring and retention, and the complaint alleged the driver was fired from his previous job because of “too many incidents” that were serious enough to render him disqualified from consideration for rehire, the employer’s motion to dismiss was denied.

Background

On a rainy afternoon in August of 2018, a tractor-trailer operated by Ervin Joseph Worthy collided with two passenger vehicles stopped on Interstate 81. The drivers of the passenger vehicles suffered catastrophic injuries as a result of the crash.

Plaintiffs allege that Western Express Inc. employed Worthy, and that Worthy was acting in furtherance of Western’s business interests at the time of the accident. In April 2021, the court concluded that plaintiffs had pled sufficient facts to state a claim for willful and wanton negligence against Worthy, but it dismissed plaintiffs’ direct negligence claims against Western.

Plaintiffs subsequently filed amended complaints, raising new claims against Western for negligent hiring and negligent retention. Currently before the court is Western’s motion to dismiss plaintiffs’ amended complaints.

FMCSRs

Western construes the court’s previous order as finding that the Federal Motor Carrier Safety Regulations, or FMCSRs, “set the standard of care in this case.” In fact, the court held only that plaintiffs’ original complaints had failed to plead facts giving rise to a facially plausible claim that Western violated its duty under FMCSR § 390.11. Nowhere did the court state that the FMCSRs were the exclusive source of tort liability applicable to this case.

Western cites no precedent, from Virginia or otherwise, for its contention that traditional tort duties should yield to the FMCSRs as a matter of public policy to reduce the variability of duties carriers operating in multiple states may face in the hiring decision. Nor has Western offered any argument that the FMCSRs preempted common law causes of action. Even if the FMCSRs provided the exclusive standard of care, moreover, the standards it articulates are broad enough to encompass the allegations plaintiffs set forth.

Negligent hiring and retention

Plaintiffs allege that, based on the various records available to it, Western knew or should have known that Worthy had a dangerous propensity for bad driving. With respect to plaintiffs’ allegations of Worthy’s dishonesty, Western correctly argues that this does little to establish Western’s actual or constructive knowledge of a dangerous propensity that could foreseeably result in the kind of injuries plaintiffs suffered.

It is true that a reasonably prudent employer would investigate further after discovering an applicant had lied about his driving record. But that is merely to raise the possibility that further investigation would turn up something pointing to a dangerous propensity for bad driving. Plaintiffs must do more than raise a possibility, however. They must state sufficient facts to make their claim plausible.

Plaintiffs also cite Worthy’s motor vehicle record, or MVR, abstract, which allegedly showed that Worthy previously had his professional driver’s CDL suspended due to an improper (erratic) lane change violation and a following-too-closely violation. Standing alone, this allegation is insufficient to make Worthy a negligent hire.

But plaintiffs allege more. First, they allege that the MVR abstract calculated Worthy’s “total risk score” at 56, placing Worthy in a “risk category” of “fail.” Second, plaintiffs point to two crashes allegedly reflected by the Federal Motor Carrier Safety Administration pre-employment screening program detailed report.

Third, and most compelling, is the allegation concerning the report from Worthy’s previous employer. From this report Western allegedly would have learned that Worthy was fired from his previous job as a tractor-trailer operator because of “too many incidents” that were serious enough to render him disqualified from consideration for rehire.

Taking the allegations together, the court concludes that plaintiffs have succeeded in nudging their claims across the border from possibility to plausibility. And since it is not entirely clear from the amended complaints at what point Western knew or should have known the alleged facts concerning Worthy’s driving record, the motion to dismiss will be denied as to the negligent retention claim as well.

Defendant’s motion to dismiss denied.

Paul v. Western Express Inc., Case Nos. 6:20-cv-00051, 6:20-cv-00052, Feb. 17, 2022. WDVA at Lynchburg (Moon). VLW 022-3-080. 9 pp.