This case illustrates how important it is that your organization not only conduct due diligence before you hire someone, to avoid negligent hiring actions. And how important it is for your organization to follow its policies in terms of retention and avoid a negligent retention action.
Negligent hiring is the concept that employers can be held liable for negligent retention when they knew or “should have known” if an employee has a reasonable propensity to injure members of the workforce or of the public. Why? Because of the concept of respondeat superior.
Negligent Retention is the concept that employers can be held liable for negligent retention when they knew or “should have known” if an employee has a reasonable propensity to injure members of the workforce or of the public.
On September 24, 2019, an Illinois state appellate court $54 Million Award Against Universal AM-CAM affirmed a jury verdict that awarded damages of more than $54 million in a personal injury lawsuit filed against Universal AM_CAN, Ltd. (UACL) over the negligent hiring and retention of a trucker with a “disturbing” driving record who was involved in an accident while on the job.
The facts in this case illustrate how an employer ignored facts in the diligence before hiring this individual and then ignored events that should have resulted in a dismissal.
Paragraph 7 of the opinion lists some of the facts about the driver:
- Johnson held a commercial driver’s license from South Carolina even though he had never completed a truck driving course.
- Within three years of applying to UACL, Johnson was involved in four accidents, had three moving violations, and had his license suspended twice.
- Johnson’s application only listed two accidents, no moving violations, and one license suspension.
- Within 10 years, he was employed by seven different companies, but his application listed six.
- Johnson was actually terminated from four of seven companies for reasons that included tailgating a motorist, a felony conviction, too many points on his license, and crashing into a vehicle after refusing to let it merge onto an interstate ramp. Regarding the last incident, Johnson testified, “I don’t have to let nobody off a ramp.”
Paragraph 8 of the opinion lists these facts about the driver:
- In the seven years prior to applying at UACL, Johnson was convicted of nine traffic-related offenses, notably, three for speeding and one for speeding more than 10 miles per hour over the speed limit.
- Additionally, he was convicted of disobeying an official traffic device, failing to pay a speeding ticket or otherwise appear, turning unlawfully, improperly parking, and not wearing a seatbelt.
- Johnson was also convicted of four counts of “felony reckless aggravated assault” on November 29, 2004, for attempting to break, with a tire thumper, the headlights on a vehicle occupied by four women. Johnson testified that while he was driving a truck, a car was tailgating him on the highway with its high beams on so he pulled off “to bust its headlights for blinding [him].” Johnson testified that as a result of the conviction, he learned to ignore those “ignorant people, out [there] on the interstate, that don’t know nothing about driving a truck.” Three weeks later, Johnson was convicted of “misdemeanor assault and battery of high and aggravated nature.”
Paragraph 9 lists how the driver violated UACL safety standards:
- Johnson’s felony conviction, having occurred within the last 10 years, automatically disqualified him under UACL’s safety standards. UACL manager admitted that Johnson was a “marginal candidate,” but conceded that UACL was forced to accept “marginal drivers” in order to make a profit. Regarding Johnson’s felony conviction, the UACL manager testified that it was “directly related” to Johnson’s occupation as a professional truck driver and agreed that Johnson “never should have been allowed to drive a UACL rig” under the company’s standards. Yet, UACL still hired Johnson on February 3, 2010.
Paragraph 11 continues with violations of UACL safety standards:
- Pursuant to UACL’s policy, drivers were required to attend a safety orientation within a week of being hired. Johnson took a slower approach, waiting nearly a month to attend.
- Johnson received five warning violations a few weeks later and consequently was put on probation for six months.
- During that time, Johnson was required to attend a safety meeting before he could be dispatched. Furthermore, UACL advised Johnson: “If you have any additional moving violations, accidents or safety incidents, we will be forced to revoke your driving privileges under [UACL] authority.” Johnson failed to attend the mandatory safety meeting and, within weeks, received a speeding ticket, three moving violations, a logbook violation, and had his license suspended over the next nine months.
- UACL not only continued to employ Johnson, but it also dispatched Johnson while his license was suspended. Moat testified that after Johnson was hired, UACL “never ran” his motor vehicle report or monitored his license, which meant that UACL never made itself aware of the various deficiencies detailed there.
Paragraph 12 continues with violations of UACL safety standards:
- UACL also had a policy that assessed a different number of points for every violation, accident, or safety incident. For each instance, the corresponding number of points would be added to the driver’s record where it would remain for 30 months. According to Moat, a driver who had more than 30 points on his record would be terminated. As for Johnson, he was not terminated despite having at least 36 points on his record that year.