What are Negligent Hiring and Retention Claims in Truck Accidents?

Posted on: August 30, 2021

When someone is injured in a truck accident involving a commercial truck, they will often bring a personal injury claim against the driver. An accident victim is reasonable in wanting fair and just compensation for their medical bills, loss of income, and other damages.

A truck accident lawyer is an important part of any personal injury claim. Truck accidents will often have multiple potentially liable parties, not just the truck driver. An experienced personal injury lawyer will know how to find and prove the liability of all responsible parties.

In a personal injury case, finding all the responsible parties is essential because an accident victim has only one chance to sue. They cannot go back and bring a claim against another party, nor can they sue for more money if insurance coverage is insufficient.

In personal injury cases, negligence is vital. When a person is injured because of someone else’s negligence, they can pursue a personal injury claim against a person, business, or other entity.

In the case of a truck accident, the employer may be liable under a claim of negligent hiring or negligent retention.

What are Negligent Hiring and Negligent Retention Claims?

Under the law, negligent hiring dictates that an employer can be held liable for the harm their employee inflicts on someone if the employer knew or should have known that the employee posed a risk of inflicting the harm.

Negligent retention is when an employer retains an employee after learning that the employee poses a risk of inflicting harm.

Following are examples of each.

Negligent hiring example. Smith Trucking Company hired a driver to deliver and set up appliances in customers’ homes. Smith Trucking did not run a background check on the new driver, nor did they contact the driver’s previous employer or references. During one delivery, the driver makes his way into other parts of the customer’s home and steals jewelry worth $100,000.

Under the doctrine of negligent hiring, the employer could be held liable because a background check on the employee would have shown a felony theft charge on the employee’s record. Smith Trucking did not perform a background check or any other due diligence on the driver. They should have known of the employee’s history of stealing but did not, and therefore may well be liable for his behavior.

Negligent retention example. Jones Trucking Company hired a driver to move products from one warehouse to another, requiring the driver to be on the road four to five hours each workday.

The driver’s truck has a toll-free number on the back for motorists to report reckless driving. In the past two months, the employer has received eight phone calls from motorists who report the truck swerving, speeding, changing lanes dangerously, and other driving issues. The company tells the driver to be more careful in the future.

One day, the driver causes an accident, severely harming passengers in a car. A police report then shows that the driver failed sobriety tests, and drunk driving is expected. The driver is charged.

Under the doctrine of negligent retention, the accident victim could have a strong case against Jones Trucking Company because the company knew from repeated phone calls that the driver was a danger on the road. They retained the employee even after knowing he posed a risk of inflicting harm.

Respondeat Superior Claims

Negligent hiring and retention claims aim to prove that the employer was partially responsible for an accident victim’s damages. Another doctrine of liability under the law is respondeat superior, a legal term that translates to: A master is responsible for the wrongdoing of a servant.

Unlike negligent hiring or retention claims, under respondeat superior, the accident victim does not need to prove that the employer was negligent. They need to prove only that the negligent employee was acting within the scope of employment at the time of the accident or crime. A truck accident lawyer can guide an accident victim on the best type of claim to pursue.

How to Prove Negligent Hiring or Retention by a Trucking Company

New Jersey allows negligent hiring and negligent retention claims in truck accidents. The plaintiff, through their lawyer, must generally prove at least some of the following, depending on the situation:

The employer knowingly violated Federal Motor Carrier Safety Regulations (FMCSR) or its own policies for hiring, retaining, and screening drivers.
- FMCSR requires trucking companies to initially and annually inspect a driver’s records, among many other safety requirements.
The employer knew or should have known that the employee’s conduct would subject third parties to an unreasonable risk of harm.
The employer consciously disregarded the driver’s record of safety violations, citations, and accidents.
The plaintiff’s injuries resulted from the general type of harm that was foreseeable.
The person responsible for the victim’s damages was employed by the employer named as a defendant in the lawsuit.
The employee was incompetent.
The employee’s negligence caused the victim’s injuries and other damages.
The employer’s negligence in hiring or retaining the employee was the proximate cause of the accident victim’s injuries and other damages.

A lawyer will review the employee’s previous accidents, tickets, citations, and criminal charges to establish an employee’s incompetence. To prove that an employer knew or should have known about an employee’s incompetence, a lawyer will investigate the hiring process to determine whether the employer:

Ran a background check on the employee.
Pulled the truck driver’s driving history, employment, and driving record.
Checked the driver’s references.
Screened the driver for drugs, if required by the employer.
Verified the driver’s training, education, and license.
Followed up on why the driver left their previous employment.

A lawyer will also request copies of documents, including:

Trucking company’s required annual review of the driver.
Medical examiner’s certificate.
Training certificates and training history, safety manuals, and other information retained by the driver.
Drug-testing records.
Results of driver’s road tests.
Statements regarding denial, revocation, or suspension of a license, permit, or privilege to operate a motor vehicle.
Reprimands regarding safety.
Complaints received about the driver.
Company policies regarding safe driving.
Criminal records and driving citations; incident reports; arrest records; other investigative documents.
Personnel files.

The above is not an exhaustive list. It serves only to show how a truck accident lawyer may go about proving an employer’s negligence and, therefore, potential liability in an accident.

Are Trucking Companies Obligated to Conduct Background Checks?

Under the FMCSR, trucking companies are required by law to inspect a driver’s history. These regulations exist to keep motorists safe from negligent truck drivers and trucking companies.

Under the FMCSR, trucking companies must:

Request personnel information from the driver’s previous regulated employers for the preceding three years.
Obtain driving records of new applicants from every state in which they held a driving permit in the preceding three years.
Review the driver’s drug-testing history for the preceding three years.
Annually inspect the driver’s motor vehicle record.

In a negligent hiring or negligent retention claim, a truck accident lawyer will thoroughly investigate whether an employer followed FMCSR regulations.

Do I Need a Lawyer in a Truck Accident?

The answer is yes, for many reasons. First, a lawyer will conduct a thorough investigation into all potentially liable parties in a truck accident. As discussed, this could include the truck driver and the trucking company that may have been negligent in hiring or retaining the trucker.

There may also be other liable parties. This could include a truck or part manufacturer or assembler, or even a municipality charged with keeping a highway in safe driving condition.

The takeaway here is that truck accidents are rarely as cut-and-dried as they may seem. A truck accident victim should never take an insurance company’s settlement offer without consulting with a lawyer. The reasons for this are many. Insurance companies never offer an amount of compensation that will cover a victim’s total costs and damages. They also do not consider any future expenses, such as long-term medical needs.

In addition, an insurance company may even try to assign liability for the accident to the victim. They also often claim that the truck driver was not actually employed by the trucking company or acting within the scope of employment duties at the time of the accident.

In short, a truck accident lawyer is the first line of defense after a truck accident.

Monmouth County Truck Accident Lawyers at Ellis Law Advocate for Victims of Truck Accidents

In a truck accident, there can be several liable parties. A victim must include all responsible parties in a lawsuit to recover a fair amount of compensation for their damages. The Monmouth County truck accident lawyers at Ellis Law have helped hundreds of truck accident victims receive the compensation they are due for medical bills, loss of income, and other expenses. If you or a loved one is injured in a truck accident, reach out to us today. Call us at 732-308-0200 or contact us online for a free consultation. Located in Freehold, New Jersey, we serve clients throughout East Brunswick, Toms River, Middletown, Jersey City, Neptune, Marlboro Township, Hudson County, Union County, Essex County, and Ocean County, as well as Brooklyn and New York, New York.