As the transportation industry continues to struggle with hiring drivers, evolving state laws on illegal drugs and the role they play in the hiring process present another layer of uncertainty employers must confront in their attempts to augment a dwindling workforce. The presence of prior, drug-related charges and/or convictions on an applicant’s background check creates a tension: the desperate need for drivers, on the one hand, balanced against the potential legal repercussions an employer could face if the applicant is hired and later involved in an accident. In addition to the driver’s negligence being imputed to the employer under respondeat superior principles, the company could also face direct liability under a negligent hiring claim.
Negligent hiring is a distinct cause of action premised on the idea that an employer who conducts its business through employees is subject to liability for harm caused to others by the employee where the employer knew or had reason to know that the employee posed an unreasonable risk of harm to others within a particular line of work. A South Carolina appellate court opinion issued on February 9 of this year provides some guidance on the evidence a plaintiff may introduce in support of such claims at trial.
The case—Isabelle MacKenzie v. C&B Logging and Charles Brandon Barr, Appellate Case No. 2018-001016—involved a plaintiff who was injured after she fell from her motorcycle while avoiding a trucking accident. The driver-defendant, Charles Barr, was attempting to re-enter the highway after stopping at a friend’s home for the alleged purpose of repairing a flat tire. Before Barr could align his truck in the correct travel lane, another motorist coming in the opposite direction collided with Barr. MacKenzie came upon the accident and was forced to slalom her motorcycle between the two vehicles to avoid collision. MacKenzie fell to the ground and was injured. MacKenzie filed suit against Barr and his employer, C&B, alleging inter alia that C&B was directly negligent in its hiring and retention of Barr.
At trial, MacKenzie’s counsel attempted to introduce a “laundry list” of prior illegal drug charges, including possession of cocaine with intent to distribute, criminal conspiracy regarding same, and other drug possession charges dating back to 2011. A jury awarded $180,000 in compensatory damages to MacKenzie but no punitive damages. MacKenzie appealed—arguing that the trial court erred by refusing to admit evidence of the prior charges which, according to MacKenzie, were relevant to the issue of whether C&B was negligent in hiring Barr and culpable for purposes of punitive damages. MacKenzie contended that the evidence demonstrated “a breach of duty to society as a whole” and a “history of bad decision-making” that should have alerted C&B to the risk Barr posed. MacKenzie also argued that evidence of the prior charges supported her theory that Barr had stopped not to repair a flat tire, but to buy narcotics.
The appellate court disagreed. In finding that the evidence was properly excluded, the court held that it was not relevant to the ultimate issue: “The issue was not why Barr pulled over to the side of the road, but his conduct as and after he did so—and whether C&B was negligent for purposes of actual damages . . . in employing him based on the risk that he would not operate his truck properly.” The court distinguished between prior charges of moving violations and the drug charges MacKenzie sought to introduce. In the court’s view, the former may have been relevant to C&B’s negligence in hiring Barr. Not so with the drug charges—none of which involved Barr’s operation of a motor vehicle. Because there was no evidence that Barr was impaired at the time of the incident, there was no “nexus” or similarity between the prior bad acts evidenced by the drug charges and Barr’s failure to follow safety procedures when re-entering the highway that caused MacKenzie’s injuries. Since the evidence was not relevant to show C&B’s negligent hiring, it “held no probative value” as to punitive damages on that claim.
To be sure, the MacKenzie decision does not speak to the wisdom of hiring drivers with checkered backgrounds. It does, however, provide some useful precedent for companies contesting liability on negligent hiring grounds.
If you have any questions about this article, or about moving violations in general, please contact Josh Howell (email@example.com) at 804-377-1263 or Steve Setliff (firstname.lastname@example.org) at 804-377-1261.