An effective tool in attempting to limit recovery and the scope of discovery in Illinois may be gone. In McQueen v. Green, a tractor-trailer accident case involving personal injuries, the Illinois Supreme Court overruled Illinois’ application of Missouri’s “McHaffie Rule” (McHaffie v Bunch, 891 S.W.2d 822 (Mo. banc 1995)) which bars theories of “direct” negligence against a principal if the principal admits it is vicariously liable for the acts or omissions of its agent. The rationale of the Missouri Supreme Court in McHaffie is that once vicarious liability is admitted, additional liability theories are extraneous. The practical effect of this rule is that it limits the scope of relevant evidence. It also eliminates the potential of duplicative awards of damages, that is, a jury awarding damages for a theory based on negligent operation of a truck and a theory based upon a principal’s failure to train for which damages are indivisible.
Unfortunately, the McQueen opinion will probably ensure most lawsuits arising out of tractor-trailer accidents will include not only vicarious liability theories against motor carriers, but also claims of negligent hiring, retention and entrustment, even though the carriers fully complied with FMCSA regulations.
Driving on I-70 heading west from East St. Louis, Illinois, one crosses the Mississippi River into Missouri, and about 250 miles later, crosses the Kansas River into Kansas City, Kansas. Over the course of about four hours, a driver employed by a trucking company will be working in not only three different states, but three different federal court of appeals circuits. Following a recent Supreme Court decision not to review a ruling from the Eighth Circuit, that driver’s employer potentially remains subject to three different standards for responding to sexual harassment.
The case is Sellars v. CRST Expedited, Inc., which presented the issue of how employers must respond to reports of sexual harassment between co-workers to avoid liability under Title VII. The plaintiffs originally filed suit in 2015, asserting several claims against CRST based on alleged co-worker sexual harassment. According to the Eighth Circuit opinion, the case “team drivers” (a system where long-haul truck drivers worked in two-person crews) so that one driver can sleep while the other continues driving. This is done in the confined space of a tractor. CRST did not assign the driving pairs, but would approve teams who had mutually agreed to drive together. A team would not be approved where one of the drivers was tagged by HR as being “male only,” meaning that driver was not approved to pair with a female driver. The “male only” tag was applied to drivers who had previously been the subject of sexual harassment complaints.
The Eighth Circuit opinion recounted numerous alleged instances of inappropriate sexual comments, sexual harassment, assaults, and threats of violence against female employees. The plaintiffs claimed the harassment created a hostile work environment, and the employer was negligent in responding to and failing to prevent harassment. The plaintiffs also asserted that the employer’s policy (since rescinded) of removing the victim from the truck and forcing her to wait, unpaid, at a terminal until she could be placed on another truck, was per se retaliation for complaining about sexual harassment.
Two questions were presented to the Supreme Court. First: “Where an employee complains to her employer about sexual harassment, does the employer fully satisfy its legal obligation under Title VII if it stops the harassment of that employee by the particular harasser complained of (the rule in the Eighth Circuit), or must the employer also take action to deter future harassment by other potential harassers (the standard in the Ninth and Tenth Circuits)?” The second was whether CRST’s policies, which would tend to result in a reduction in pay and, would tend to cause a reasonable employee to “expect that complaining of sexual harassment would directly lead to a net decrease in pay” was a per se violation of Title VII (which is the rule in the Seventh Circuit).
Rather than take up these questions and provide clarity for employers regarding their obligations to respond to complaints of sexual harassment, the Court denied review with no explanation (as is the usual practice). However, the brief submitted by the petitioners has highlighted the circuit-split for savvy plaintiff’s attorneys. Employers should likewise take notice, because in a lawsuit, they may not have much control over which standard will apply.
That is because Title VII plaintiffs have multiple options in deciding where to file their complaints. A plaintiff may file in a judicial district in which 1) an unlawful employment practice was alleged to be committed; 2) the judicial district in which the employment records relevant to the claim are maintained and administered; 3) in the judicial district in which the plaintiff worked; or 4) if the employer cannot be “found” in one of the first three districts, then in the district of the employer’s principal place of business. Under the first option, the unlawful employment practice may be the harassment itself (which may span several states), the location of a manager or HR representative who takes an adverse employment action (in retaliation cases) or fails or refuses to conduct an investigation. For example, a plaintiff living in Des Moines, Iowa, working for a company headquartered in Chicago, who is harassed on a trip from Indianapolis to Denver, may file suit in as many as six different states. However, if an unlawful act occurs in Colorado, she may file suit there to fall within the more demanding Tenth Circuit standard for preventing harassment, and take advantage of a venue that is perceived as more plaintiff-friendly.
Because over-the-road trucking necessarily spans multiple states, and multiple federal circuits, an employer is well-served by trying to comply with the most restrictive circuit in which it operates.
Impact of the Great Resignation
For the fifth year in a row, the “driver shortage” topped the list of industry concerns. Additionally, the trucking industry and those companies in the supply chain are among those hardest hit by “the Great Resignation,” although it may be more accurately labeled “the Great Reshuffle.” Studies show that truck drivers are not leaving the trucking industry, but pursuing more attractive employment opportunities elsewhere within the industry. This rapid movement of employees poses great challenges and risks to employers.
There is obvious tension between the pressure to attract and retain experienced employees and strictly dealing with those accused of harassment. Employers may be reluctant to terminate harassers when it is so difficult to find qualified replacements. It may also be difficult to reject a qualified applicant with a history of harassment accusations. Conversely, it may be difficult to expand the talent pool to attract women, young people, and others in an industry that relies so much on word-of-mouth in hiring.
The deciding factor for employers may then be legal liability, which is why the Supreme Court’s decision to deny review is problematic. But, Title VII is not the only possible source of exposure for employers. Missouri, Kansas, and Illinois all recognize a cause of action for negligence in hiring or retaining an accused harasser. Although there are variations in how each state’s courts have interpreted the claims, the basic elements are: 1) the employer hired or retained an employee when the employer knew or should have known of the employee’s dangerous propensities; and 2) the employee injured a co-employee in manner consistent with those dangerous propensities. Employers may also be liable for other common law torts such as battery, assault, and infliction of emotional distress. For these claims, merely shuffling employees around may not effectively shield employers from liability.
Key Takeaways and Best Practices
- Consider how actions to curb sexual harassment may have unintended negative consequences for female employees. In the Sellars case, female employees received a net decrease in pay due to being separated from their harassers. And there are other instances where female employees may be denied important benefits and opportunities, such as training, mentorship, and advancement opportunities. Similarly, if an employee has to be kept separated from a co-worker because of behavior, that person should probably not be a part of the organization.
- Although the Sellars case involved male-on-female harassment, keep in mind that sexual harassment may occur between members of the same sex, and LGBT+ employees are among the most at risk for sexual harassment.
- Forces in the labor market have made hiring new employees more difficult than ever. The push to hire new workers should not cause employers to let their defenses down. Retaining bad actors may be a short-term solution with long-term negative consequences.
- Although an employer may avoid liability under Title VII for co-worker harassment, keeping harassers around keeps the door open for common law tort claims, which unlike Title VII, may or may not be subject to damages caps.
In 2021, a Record Setting $1 Billion Dollar Verdict was Rendered Against a Trucking Company - Demonstrating that Nuclear Verdicts in Trucking Cases Continue to RiseJanuary 11, 2022 | James Jarrow and Joanna Orscheln
The trucking industry has experienced a continuous rise in “nuclear verdicts” since 2011. The American Transportation Research Institute (“ATRI”) defines a “nuclear verdict” as a verdict in excess of $10 million dollars.
In 2011, a $40 million dollar verdict was awarded to victims of a trucking accident in Georgia, where a semi-truck driver failed to stop, striking a passenger vehicle, killing two people and severely injuring a third. In 2012, a $281.6 million dollar verdict was initially handed down (reduced to $105.2 million), in a case where a drive shaft off a commercial truck went through the windshield of a passenger vehicle, killing the driver. The Court determined that the semi-truck driver was not negligent, but that the company was.
In 2014, a $90 million dollar verdict was awarded in Texas, where a semi-truck was driving under the speed limit in inclement weather conditions, and a passenger vehicle traveling in the opposite direction lost control and veered into the truck’s path. The trucking company denied all fault, arguing that the cause of the accident was the pickup truck that had lost control, nonetheless, the jury found the trucking company liable for the crash. The collision resulted in the death of a 7-year-old, and a paralyzed 12-year-old. In 2016, a semi-truck driver in Georgia fell asleep at the wheel, crossed over the centerline of a two-lane highway, causing a crash that killed five individuals including two young children, resulting in a $280 million verdict.
The 2021 Landmark $1 Billion Dollar Verdict
In 2021, a Florida jury awarded a landmark $1 billion dollar verdict in a wrongful death trucking case. The jury placed blame on two trucking companies, Kahkashan Transportation Inc. (“Kahkashan”) and AJD Business Services Inc. (“AJD”), for the death of the 18-year-old decedent, and awarded $100 million to the parents for the decedent’s pain and suffering, and $900 million in punitive damages for negligent hiring and retention of the AJD semi-truck driver.
The driver for AJD, was on his cell phone, driving over the legal limit of hours, and without a Commercial Driver’s License, when he caused an accident, flipping his semi-truck, and creating a massive back up on the interstate. An hour later a driver for Kahkashan was traveling the speed limit on cruise control, and collided into the line of stopped traffic killing the decedent. Further, his truck’s data recorder showed he did not attempt to break until one second before the impact.
The $100 million dollar verdict to the parents was split by the jury, 90% against Kahkashan and its driver, and 10% against AJD and its driver. The $900 million in punitive damages verdict was solely awarded against AJD. However, AJD is no longer in existence, and had not participated in the court proceedings for the previous 2 years. Additionally, AJD’s insurance was canceled in 2019.
Even if no money is collected from AJD, this case still has a great deal of impact on the trucking industry. It shows that juries believe these high awards are acceptable, and warranted in certain cases. Further, verdicts like this continue to tarnish the public image of trucking companies, and their safety procedures and policies. Nuclear verdicts like the ones mentioned above, have resulted in skyrocketing insurance premiums, which in some instances have put trucking companies out of business. Additionally, these nuclear verdicts motivate Plaintiff’s lawyers to take on trucking cases, and seek punitive damages against trucking companies.
What Factors Impact the Size of Jury Awarded Verdicts in Trucking Cases?
The ATRI analyzed data obtained from 600 cases to determine the variables that impacted verdicts in the trucking industry. See Dan Murray, “Understanding the Impact of Nuclear Verdicts on the Trucking Industry,” American Transportation Research Institute. Some of the variables include unfortunate outcomes that are outside of a trucking company’s control. For example, research showed that an increase in overall verdict amounts was witnessed in cases involving the death of a minor, spinal injuries, and roll-over accidents.
However, the research also shows that there are numerous factors which increase the value of verdicts that are within a trucking company’s control, either in the way company is run, or the manner in which the case is litigated.
Cases involving the following factors yielded verdicts in favor of the Plaintiff 100% of the time: a semi-truck driver being over hours of service or having logbook violations, lacking a clean driving history, driving under the influence of controlled substances, a semi-truck fleeing the scene of a crash, and/or an accident being caused by a driver’s health-related issues. In cases that involved cell phone use, only one case yielded a defense verdict, which was the result of Plaintiff being unable prove that the phone was actually in use at the time of the crash.
The ATRI’s research showed that successful implementation of post-crash and pre-trial tasks such as case evaluation, mediation, and pre-trial preparation played a critical role in successful litigation results.
During the stages of an accident investigation, and case evaluation, it is critical that attorneys and insurance professionals work together to determine the verifiable facts, and assess the potential problems in the case. A thorough examination must be conducted as it relates to factors that may have contributed to the incident.
Next, assessing the reasonableness of an early settlement, based on the facts known at the time, generally helps promote a more reasonable settlement. Finally, pre-trial preparation is paramount. Having an attorney who is experienced, and familiar with the trucking industry will ensure that the necessary actions are being taken to combat arguments Plaintiff attorneys will raise, especially reptilian theory arguments, which lead to nuclear verdicts in trucking cases.
Despite Nuclear Verdicts Being on the Rise, Great Outcomes in Trucking Cases are Obtainable
In 2021 Baker Sterchi member, James R. Jarrow, secured a defense verdict in a week-long wrongful death trucking case that was tried in Missouri state court. Plaintiff alleged that the driver could have avoided the interstate accident, which resulted in the death of her husband. After significant pre-trial motion practice, and multiple experts testifying on both sides, the Plaintiff asked the jury for $3 million dollars in damages. But the jury agreed with the defense’s position, and rendered a verdict in favor of the trucking company.
Additionally, Baker Sterchi member, Joseph Swift also received a favorable outcome in 2021 in a challenging jury tried trucking case where liability was admitted, and the case was tried solely on the extent of damages. This case was initially filed in Cook County, Illinois state court, but was successfully removed to the federal District Court for the Southern District of Illinois. The truck’s dash camera (capturing both inward and outward views) showed 9 seconds of driver inattention, and a violent crash. Plaintiff sought to recover over $1.65 million in general and special damages. However, the jury awarded $145,000 in overall damages for cervical and lumbar surgeries, a very favorable verdict given the circumstances of the case.
Despite the upward trend of nuclear verdicts in the trucking industry, 2021 has proven that when cases are properly investigated, prepared, and tried, trucking companies can still obtain favorable jury verdicts.
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