|Mitigating the Legal Risks of Safety Technologies|
John Cruickshank, an attorney with Alaniz and Schraeder, recently participated on a panel with Preco Electronics at WasteExpo 2015 with his presentation entitled Mitigating the Legal Risks of Safety Technologies. His presentation was so well received, we felt the message was a ‘must share’ for all heavy-duty equipment industries.
John’s overall legal philosophy is simple and to the point: A lawsuit avoided is better than a lawsuit won. In order to make this happen a company needs to identify their legal risks and eliminate them before a potential lawsuit arises. If there is an overall companywide passion for safety-from the C-level down, you are better able to help ensure employees and the public make it home safely.
The Basics of the Legal System
The reality is, if one of your vehicles is involved in an accident, a company should expect to be sued. When this happens the plaintiff’s attorney will make an effort to use technology, including in-cab DVR and telematics systems, to prove the case against you. At this point, most defendants will pay to settle the case to make it go away, rather than spending five+ years in litigation.
In order to prove that the company is responsible for the accident, the plaintiff’s attorney will attempt to show direct negligence. This is accomplished by proving that the operator’s employer demonstrated negligence by the hiring and supervision (or lack thereof) of the operator, and by entrusting a vehicle to that employee. Essentially, all of the decisions made up to that point in regards to that operator are on trial. Direct negligence includes:
The hiring of the employee—was there sufficient due diligence in the hiring process?
The retention of the employee—was the quality of the driver reviewed through training and testing?
Entrustment of the vehicle—was the employee capable of the job functions, including, driving safely and maintaining the vehicle (where applicable).
Proof of negligence opens the door to pursuing punitive damages. This is where the real money is for a plaintiff. The damages sought do not need to bear any rational relation to the amount of injury suffered and the purpose is to send a message and punish a company. The single biggest factor in a jury’s decision in these cases is the size of the company—the bigger the company, the bigger the payout.
Mitigating Your Legal Risks
Enough with the doom and gloom, let’s focus on how a company protects themselves and mitigates these risks. First you need to know and understand what your general liability and umbrella policies include and exclude. Do not assume everything is covered. Some states don’t allow punitive damages to be included, and many policies exclude negligent entrustment.
The plaintiff’s attorney will hone in on your company’s weaknesses and use them to prove their case, including poor decision making or significant items that were overlooked. You need to think of the legal process as legal warfare and assume you can be attacked from any legal direction. Throughout the discovery process, a theory of negligence will be compiled. This may include anything that may have caused the accident or could have prevented it. Retaining documents, performing proper equipment maintenance (and keeping the records), and providing frequent, on-going employee training will help circumvent their case.
One of the first things you will be asked for during the discovery process is the data from the equipment event recorder, such as your telematics system. Lawsuits are being proven (and in some cases disproven) by event data recorders; proper training, enforcement, and detailed records will allow you to provide data that works for you instead of against you. Employees also need to be trained to not offer any statements until a supervisor arrives on the scene. It is important to have an official policy in place and to train your employees about what to do in case of an accident.
Through the theory of liability, the plaintiff’s council will try to prove that the accident could have been prevented had safety technology been installed on the vehicle when the company had the opportunity. Safety technologies will help mitigate accidents and should be integrated into a complete safety system to ensure all of the pertinent data is easily accessible in one location. Should you decide not to incorporate safety technology into your current safety program, clearly document why that decision was made and retain those records. Examples of why safety technology is currently not being used may include: You didn’t have the ability to take trucks offline or, you didn’t have the appropriate staffing to install the technology. It should be noted that stating the cost was too high will not sway a jury in your favor. Document the decision very clearly and update the notes pertaining to that decision as necessary.
Lawsuits are a huge distraction and negative drain to an entire company. Understanding the approach a plaintiff’s attorney will take against you is crucial, as is understanding and implementing the technologies available to your fleet to help avoid these accidents from ever happening. Have a proactive safety program in place, train your team and then train them some more, maintain the quality of your operators, maintain your equipment and keep detailed maintenance records, and your fleet will be better prepared to mitigate the risks that come with a potential accident.