Recent amendments to the Federal Motor Carrier Safety Act ("FMCSA") regulations have imposed new obligations on transportation companies, including owner-operators, to report to a central database certain issues related to their drivers’ use and abuse of drugs and alcohol. Among other things, these regulations do the following:
1. Establish a central repository of the alcohol and drug test records of all drivers holding a Commercial Driver’s License;
2. Require FMCSA-regulated employers, medical review officers, third-party administrators and substance abuse professionals to report to the Clearinghouse all violations of drug and alcohol regulations promulgated under the FMCSA (including 49 C.F.R., parts 40 and 382).
3. Require transportation companies to inquire from the Clearinghouse about the alcohol and drug histories of current and prospective drivers before permitting them to operate a commercial motor vehicle on the public roads – this must be done at the time of hiring and then annually.
These regulations certainly impose new burdens on transportation companies. There will be increased time and costs associated with the hiring process, maintaining employee files and monitoring and reporting about employees. But the increased costs might not impact only a company’s HR budget. These new regulations might also increase the risk of exposure to companies for personal injury and property damage caused by prior employees. With the new reporting requirements imposed by the FMCSA, it is not a stretch to imagine a plaintiff blaming a driver’s prior employers for negligent reporting of a past employee’s drug and alcohol test results. A driver’s current employer might also seek contribution or an allocation of fault against a driver’s prior employer for the latter’s negligent reporting.
True, many courts have held that the FMCSA does not provide an individual private right of action for tort claims arising out of alleged violations of FMCSA regulations. See, e.g., Leon v. FedEx Ground Package Sys., Inc., No. CIV 13-1005 JB/SCY, 2016 WL 836980 (D.N.M. Feb. 16, 2016) (collecting authorities and citing reasons why courts have declined to read an individual private right of action into the FMCSA regulations); Terry v. Swift Transp., 1:16CV256, 2017 WL 1013074 (M.D.N.C. Mar. 14, 2017). But violators of the FMCSA’s reporting regulations must still be concerned about exposure to civil claims. A lack of an express individual private right of action might not provide complete insulation against tort liability.
Plaintiffs, faced with this problem, often attempt to impose such liability under a theory of negligence per se. Generally, negligence per se arises when a defendant violates a statute, ordinance or regulation and that violation proximately causes injury to another. See e.g. Safari Club Int’l v. Rudolph, 845 F.3d 1250, 1258 (9th Cir. 2017). The injury must result from an occurrence the enactment was designed to prevent and the injured plaintiff must be a member of the class of persons the statute was intended to protect. Id. By establishing the elements of negligence per se, a plaintiff can relieve itself of the burden of proving the duty and breach elements associated with traditional negligence. Walters v. UPMC Presbyterian Shadyside, 144 A.3d 104, 121 (Pa. Super. Ct. 2016). See also AmeriGas Inc. v. Landstar Ranger, Inc., 230 Cal. App. 4th 1153 (2014) (propane company sought indemnity and contribution from motor carrier on negligence per se theory arguing that motor carrier violated FMCSA regulations regarding mandatory personnel training); Peeples v. Custom Pine Straw, Inc., 174 F. Supp. 3d 1363 (S.D. Ga. 2016) (plaintiff sued pine straw company under theory of negligence per se alleging violations of the FMCSA’s tire pressure regulations); Stierwalt v. FFE Transp. Services, Inc., 449 S.W.3d 181 (Tex. App.—El Paso 2016) (plaintiff sued truck driver and employer for negligence per se, alleging that driver had stopped on shoulder of highway in violation of official sign prohibiting non-emergency stopping).
A plaintiff injured in an automobile accident involving a commercially licensed driver under the influence of drugs or alcohol may attempt to use negligence per se to establish liability against the driver’s current employer under negligent hiring and supervision theories. That plaintiff might cite to regulatory violations and rely on a negligence per se theory. And that plaintiff might also try to include a negligence or negligence per se claim against prior employers if those prior employers failed to report the driver’s past drug and alcohol test results to the Clearinghouse. The plaintiff could possibly point to reporting omission (or errors) and argue that the FMCSA regulations on reporting were intended to protect people in her position from the type of harm she ultimately suffered. Along these lines, it is not inconceivable to think that a commercial driver’s current employer, when sued by the injured plaintiff, might be the one to bring in the former employer under a negligence per se theory to seek contribution or an allocation of fault.
Not all jurisdictions recognize negligence per se, but others still regard regulatory violations as some evidence of negligence. See e.g. Juliano v. Simpson, 461 Mass. 527, 532 (2012); Williams v. Leone & Keeble, Inc., 170 Wash. App. 696, 719 (2012); Braitman v. Overlook Terrace Corp., 68 N.J. 368, 385 (1975); Clements v. Tashjoin, 92 R.I. 308, 313-14 (1961). This might avoid some, but not all, concerns for transportation companies.
And transportation companies might recognize, correctly, that in many jurisdictions one has no obligation to report crimes, provide assistance or otherwise prevent the criminal or tortious conduct of others. See e.g. Restatement (Second) of Torts § 314 (1965). Yet, there can be exceptions to that rule. For example, one might owe a duty to protect another if there exists a “special relationship” between the two. See Id. at § 314A. It remains to be seen whether courts will view the regulatory obligation to report drug and alcohol incidents as creating a “special relationship” with all members of the general public. Under the logic employed by courts that have adopted negligence per se theories (and to a lesser extent, those that allow violations as evidence of negligence), this is a real possibility.
Perhaps a comparison might be drawn by some recent cases dealing with the issue of mandated reporting of child abuse and neglect. Looking at Connecticut as an example, the courts there have appeared reluctant to read an implied right of action into the mandated reporter statute but apparently see no issue in using a violation of that statute as a basis for a negligence per se claim. See, e.g., Ward v. Greene, 267 Conn. 539 (2004) (addressing limitations in the scope and intent of mandated reporter statute); Doe v. Hartford Board of Ed., 63 Conn. L. Rptr. 89 (Conn. Super. Ct. Aug. 31, 2016) (permitting plaintiff to proceed under a theory of negligence per se where the defendant allegedly violated the mandated reporter statute). This comparison is not perfect as the mandated reporter statutes are generally designed to protect a limited class of persons (children in the care of the reporter) while the FMCSA is more geared towards the protection of the public as a whole. Further, the mandated reporter statutes also contain certain safe harbor provisions for reporters who acted in good faith; information and allegations about potential child abuse or neglect are frequently less concrete than the results of blood tests. Still, there remain enough similarities about which transportation companies can be concerned; the analysis found in these cases might provide a road map for plaintiffs.
Of course, negligence per se and “special relationships” must not be seen as imposing strict liability or permitting a res ipsa loquitor argument. “As the Supreme Court has stated: ‘Sometimes the violation [of a safety statute] is described as ‘negligence per se’; we have made clear ... that that term is a confusing label for what is simply a violation of an absolute duty. Once the violation is established, only causal relation is in issue.’” Moody v. Boston & Maine Corp., 921 F.2d 1, 4 (1st Cir. 1990), quoting Carter v. Atlanta & St. A.B.R. Co., 338 U.S. 430, 434 (1949) (citations omitted). In the context of reporting drug and alcohol test results, a plaintiff would have to show that, had the tests been reported to the Clearinghouse, the accident would not have occurred. A plaintiff might find this difficult. This might also push the focus back on to what the current employer knew or should have known.
The FMCSA Clearinghouse regulations at issue are new and it remains to be seen how courts will determine their applicability in civil tort claims. Nonetheless, transportation companies must be aware of the possibility that violations of these regulations could result in tort exposure. A former driver may no longer be a company’s employee, but still its concern.
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