Negligent hiring, retention claims survive motion to dismiss

Two plaintiffs who were catastrophically injured in an accident caused by a truck driver who had been fired from his previous job because of “too many incidents” that were serious enough to render him disqualified from consideration for rehire can bring negligent hiring and retention claims against the driver’s current employer.

The Western District of Virginia denied the employer’s motion to dismiss in what it called a close case.

“[T]aking the allegations together, the Court concludes that Plaintiffs have succeeded in nudging their claims across the border from possibility to plausibility and have justified proceeding to the discovery phase of litigation,” Judge Norman K. Moon wrote.

Moon’s  Feb. 17 opinion is Paul, et al., v. Western Express, Inc., et al. (VLW 022-3-080).

The crash

Judy M. Paul was driving southbound on Interstate 81 near Rockbridge County. It was raining heavily on that August day, and vehicles in front of her were either slowing or fully stopped. Paul and the driver immediately behind her, Andre G.H. Le Doux V, came to a complete stop.

The driver behind Le Doux collided with the rear of his vehicle with enough force to push it into Paul’s vehicle.

Shortly after these impacts, Ervin Joseph Worthy crashed his tractor-trailer into Paul and Le Doux. Both suffered traumatic injuries.

The claims

Paul and Le Doux’s nearly identical complaints were consolidated by consent motion. They claimed Worthy failed to comply with applicable Federal Motor Carrier Safety Regulations, or FMCSRs.

The pair also brought negligent hiring and negligent retention claims based on Worthy’s commercial driving history, which was allegedly available to Western Express before his first day on the job. According to the opinion, the history showed “serious traffic violations” and that Worthy had been fired by a prior commercial driving company for “too many incidents.”

The pair claimed that Western employed Worthy and that, at the time of the accident, Worthy was acting in furtherance of Western’s business interests.

The court said Paul and Le Doux could state a claim for willful and wanton negligence against Worthy, but dismissed the direct negligence claims against Western.

The plaintiffs’ amended complaints raised new claims against Western for negligent hiring and negligent retention.

Western moved to dismiss the amended complaints.

The FMCSRs

Moon balked at Western’s claim that, based on the court’s earlier order dismissing the plaintiffs’ direct negligence claims against it, the FMCSRs “set the standard of care in this case.”

The judge pointed out that “[m]ore than a few logical layovers” stood between Western’s conclusion and the court’s actual holding.

“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 to ensure that its drivers observed their own duties under the FMCSRs,” Moon wrote. “Nowhere did the Court state that the FMCSRs were the exclusive source of tort liability applicable to this case.”

Western “cite[d] no precedent, from Virginia or otherwise, for its contention, presented at the hearing on this motion, 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,” Moon explained.

Nor did the company offer any argument that common law causes are preempted by the FMCSRs; the judge said it “would have been perfectly rational for Congress not to pre-empt common-law claims, which — unlike most administrative and legislative regulations — necessarily perform an important remedial role in compensating accident victims.”

Moon said the FMCSRs “impose a duty on motor carriers to ensure that its drivers can ‘by reason of training or experience, safely operate the type of vehicle [they will] be driving[.]’ Even if the FMCSRs provided the exclusive standard of care, the standards it articulates are broad enough to encompass the allegations Plaintiffs set forth.”

Negligent hiring and retention

The plaintiffs had to show their claims that Western failed to exercise reasonable care when it vetted Worthy for a job and that their injuries were a foreseeable result of that were plausible in order to survive a motion to dismiss.

Based on available records and Worthy’s Motor Vehicle Report Abstract, Western knew or should have known had a “dangerous propensity for bad driving,” the plaintiffs argued.

Moon agreed with Western that allegations of Worthy’s dishonesty did not establish actual or constructive knowledge of a dangerous propensity that could foreseeably result in the kind of injuries the plaintiffs sustained because “[o]ne can be a pathological liar and still an excellent driver.”

And while a reasonably prudent employer would look closer if it found out an applicant had lied about his driving record, “that is merely to raise the possibility that further investigation would turn up something pointing to a dangerous propensity for bad driving,” Moon said.

But here, the plaintiffs cited Worthy’s MVR abstract, which allegedly showed that Worthy had had his professional driver’s CDL suspended due to an improper lane change violation and a following-too-closely violation. Moon said that, taken together, the plaintiffs’ claims give rise to a “facially plausible claim.”