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Negligent Hiring, Retention and Lending of Vehicle Claims

Filed under Office & HR.

The theory underlying negligent hiring and retention claims — if they relate to an auto accident involving one of your employees and a company vehicle — is that you are liable for the accident because of the sloppy job you have done in hiring, or not firing, the employee who then caused the accident. As a lawyer who is helping someone to sue you sees things, if you had not hired (or retained) the employee, there would never have been an accident.

Unlike some of the other liabilities from employee use of your vehicles, you can be sued under a negligent hiring/retention theory for any unfortunate incident involving an employee, not just vehicular accidents.

So what are some effective defenses to negligent hiring or retention claims? Usually your best defense to a negligent hiring/retention argument is proving one of the following:

  • that there was nothing wrong with your employee
  • that you had no way of knowing there was something wrong with your employee

We'll leave it to your lawyer to argue that there was nothing wrong with your employee when, and if, the time comes that you need to assert that defense. But we can help you take steps now that will later help you prove that you are, and always have been, a conscientious employer.

  • If you are considering hiring an employee, be very careful in the recruiting and hiring process. In particular, be careful to do a thorough background check and avoid negligent hiring.
  • If you already have employees, deal with any noticeable problems promptly by disciplining or, where necessary, terminating any problem employee.
  • If you conduct regular performance reviews, it can help you document the fact that you monitor your employees.

These steps can help show that you are not negligent about handling your responsibilities as an employer.

Negligent Lending of a Vehicle Theory

In negligent lending cases, you are liable because you let an employee use a company vehicle when you knew (or should have known) the employee was unfit to drive.

What can you do about employer liability for negligently lending a vehicle? To reduce your liability from negligent lending suits against you, you can:

  • Obtain adequate insurance on all of your vehicles. Ask your insurance agent about any vehicle safety programs he or she can recommend.
  • Be sure that any employees who use your vehicles have all licenses and permits required to operate the vehicles that they use. You should keep this documentation on file, but in a file that is separate from other personnel records. (Some government agencies, such as the Equal Employment Opportunity Commission (EEOC), may take a dim view of employers who keep photocopies of picture ID's like driver's licenses in personnel files. This is because they can be used to identify a person's race, sex, and age and, theoretically at least, facilitate unlawful discrimination.)
  • Draft and enforce vehicle policies that alert you when an employee is not fit to drive. However, be careful about having employees tell you about such things unless you are prepared to have someone drive in their place. The worst thing you can do is let an employee take the wheel after that employee has specifically told you that he or she unfit to drive.

Negligent Vehicle Maintenance

In negligent maintenance cases, you will be liable for an accident if a condition of your company vehicle made it unsafe to drive and that condition (for example, faulty brakes or a bad tire) contributed to the accident. Unlike some of the other liabilities from employee use of your vehicles we discuss, you can be sued by both your employee and anyone the employee injures with your vehicle if it was negligently maintained.

What are the grounds for negligent maintenance lawsuit grounds? A lawyer who sues you for negligent maintenance will usually argue the case in one of two ways: negligence per se vs. "ordinary negligence."

  • Negligence per se. The argument that is by far the easiest for the lawyer if the facts lend themselves to it, is to show that the condition of the vehicle made it unlawful to be driven at the time. A vehicle with nonfunctioning brake lights, or a vehicle that has not undergone a mandatory safety inspection that would have caught the problem that led to the accident, are two examples. The lawyer's term for driving a vehicle in an unlawful condition is negligence per se.

      Warning

      Warning

      In many states, once an attorney establishes the unlawful condition of a vehicle (negligence per se) and shows that it contributed to the accident, you become automatically liable. The only issue left for a jury in such a case may be simply determining the amount you'll have to pay. The lesson here, and the strategy for reducing your liability under this theory, is simple: Never allow your vehicle to be operated in a condition that could be considered unsafe or unlawful. Even the shortest of distances is not worth the risk!

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