Tuesday, July 15, 2008 In transit   VOLUME 1 ISSUE 12  

Sievers Safety Services provides trucking expert witness testimony/consultation in truck driver hiring, loading/unloading, driver training, driver supervision and DOT regulations.

Topic List
From the Chair
Compliance with Conspicuity --It’s Good for Business
Removing Cargo Claims To Federal Court: 6 Reasons Why Federal Courts Might Remand A Cargo Claim Back To State Court
Vicarious Liability: The Scope of Employment
The Driver “Walk Around”--An Imperative For Accident Prevention and DOT Compliance
Vorad Data Admitted As Basis For Accident Reconstruction Opinions
Protecting The Insurer’s Claim File: An Overview of the Current Status of the Work Product Doctrine
The Offer of Judgment--a Forgotten Settlement Tool
Emerging Issues Electronic Tracking Data --
In Transit Leadership

Committee Chair

Donna L. Burden

In Transit Editor

Steele Holman

In Transit Assistant Editor

Sue Lawless

Trucking Law Committee

Trucking Law Committee

Vicarious Liability: The Scope of Employment
by Stockard “Rob” Hickey III

Trucking companies naturally assume they will share the civil liability of a driver who is involved in an accident while driving the company’s equipment.  Contrary to popular belief, you may have a defense.  Because we all know what happens when you “assume,” it makes sense to learn how the law of vicarious liability applies to truck drivers and their employers. 


For trucking companies facing a vicarious liability claim, the good news is that you may not be liable for every negligent act of your driver.  The bad news is that there is no universal rule you can rely upon because each state has its own legal standard.  Recent court decisions in two neighboring states illustrate very different approaches to the issue.   


In McMahon v. Continental Express, Inc., 2008-Ohio-76, the Ohio Court of Appeals considered the issue of where to draw the line on “course and scope of employment.”   The claim arose when two truck drivers who were off duty in a rest area began arguing on the CB.  One driver then walked over and climbed onto the other truck’s running board to exchange threats.  The driver inside the truck shifted into gear and jerked the truck forward, knocking the unwanted visitor off the running board and onto the ground.  As the truck continued forward, the man on the ground was lying in the path of the trailer tires.  A bystander pulled the man to safety, but the good Samaritan’s leg was run over in the process.  The leg was later amputated.


The Samaritan sued the driver who caused the injury and won a default judgment for compensatory and punitive damages.  He then filed another suit against the driver’s employer, alleging that the driver was acting within the course and scope of his employment when the injury occurred.  At first, the trial court dismissed the claim because the driver was off duty and his actions were not intended to benefit his employer.  However, the claim was reinstated on appeal.  The Ohio Court of Appeals held that the injury may have been unintentional and that the company had not proven the acts that caused it were outside the scope of a truck driver’s employment.  The court noted that the company hired the driver to drive its truck, and he was driving its truck when the injury occurred.  The court simply eliminated the requirement that the employee’s actions are intended to benefit the employer.


Across the river in Kentucky, a court reached a very different conclusion six weeks later.  In Mid-States Plastics, Inc. v. Estate of William Clinton Bryant, 245 S.W.3d 728 (Ky. 2008), the Supreme Court of Kentucky addressed the issue of whether an employer can be held liable for an injury to a passenger who was invited to accompany an employee on a business trip.  (Although it did not involve a trucking claim, the principles would be binding precedent in a trucking case).  The estate of Rev. William Clinton Bryant filed a wrongful death action after Rev. Bryant was killed in the crash of a private airplane piloted by his friend, Daniel Edwards.  Edwards was on a business trip for his company, Mid-States Plastics, Inc., and had invited his friend along solely for personal pleasure.  It is important to note that Rev. Bryant had no business purpose and that his presence gave no benefit to the company.  Unfortunately, the plane struck a cell tower and crashed, killing both occupants.


 The estate filed suit against Mid-States Plastics, Inc., claiming that the company should be held vicariously liable for the negligence of its employee.  The trial court dismissed the claim, but the intermediate Court of Appeals reversed that ruling.  The Supreme Court reinstated the trial court’s ruling and dismissed the claim.  In its published opinion, the court held that an employer could be liable for injury to a guest passenger only if two requirements were met:  First, the employee must have actual or implied authority to invite the guest to ride along.  Second, the invitation must “serve the work of the employer.”  Because Rev. Bryant’s presence did not benefit Mid-States Plastic, Inc., the company was not vicariously liable for his death.


Applying Kentucky’s rationale to the facts of the Ohio case would have us asking whether the effort to dislodge the aggressor served the purpose of the trucking company and whether the presence of the good Samaritan under the trailer tires was intended to benefit the company.  The company would probably not have been liable if the truck stop had been south of the Ohio River. 


Conversely, applying Ohio’s law to the Kentucky plane crash case, the critical factual issue would be whether the pilot was flying on the business of his employer.  Because he was, the company would be vicariously liable for the negligence that caused the crash.  The company would remain a party and, instead of a suit between two individuals, the corporation’s “deep pockets” would become an issue for the jury. 


What practical application does this information have?  In preventing, investigating, evaluating and defending trucking accident claims, we should keep in mind that vicarious liability is not automatic.  We must develop the evidence and legal arguments that may lead to dismissal or, at least, the narrowing of the claim.  Trucking companies should have written policies regarding their drivers’ extracurricular activities, as a court is less likely to find “actual or implied authority” for activities that the employer has expressly prohibited. 


In summary, activities of drivers that are prohibited and/or that do not benefit the employer are less likely to be expressly “within the course and scope of employment.”  Evidence of the driver’s work duties and activities at the time of the loss should be preserved.  Those factors, as well as the vicarious liability law of the particular jurisdiction, must be considered in evaluating a claim.  Finally, if the facts and law support them, appropriate motions should be made to dismiss or limit the claim of vicarious liability. 

Stockard R. “Rob” Hickey III

Frost Brown Todd LLC

Louisville, Kentucky



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