ESR News Blog
Written By ESR News Blog Editor Thomas Ahearn
On September 24, 2019, an Illinois state appellate court affirmed a jury verdict that awarded damages of more than $54 million in a personal injury lawsuit filed against a trucking company 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 opinion reviewed an appeal from the Cook County Circuit Court where plaintiffs James and Theresa Denton prevailed in their lawsuit filed against the trucking company, a contracting firm leasing semitrailers to the trucking company, and David Lee Johnson, the trucker involved in the accident who was employed by both companies.
The Cook County jury awarded the plaintiffs compensatory damages of $19,155,900, finding all defendants were negligent and finding the trucking company guilty in the negligent hiring and retaining of Johnson. The jury awarded punitive damages of $35 million since the trucking company’s “conduct was willful and wanton.”
The lawsuit stemmed from an accident in February of 2011 where a driver, now deceased, drove the wrong way on a highway in Indiana. Johnson was driving a truck above the speed limit on a suspended license and had “no idea” there was a wrong-way driver when he crashed into a Jeep ahead of him occupied by James Denton.
The collision caused the Jeep to slam into the fuel tank of another semitrailer. Denton suffered from multiple traumatic injuries that resulted in posttraumatic stress, depression, and anxiety. He underwent nine surgeries – including spinal fusions – and now has a prosthetic metal knee. He has been unable to work since the accident.
According to the opinion – which supported the finding of negligent hiring and retention – Johnson applied to be a commercial truck driver for the trucking company in January of 2010. A safety coordinator reviewed Johnson’s application and obtained his driver qualification file which revealed “disturbing negative information”:
- 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, 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, Johnson was employed by seven different companies, but his application listed six.
- Even though his application listed one termination, Johnson was actually terminated from four of those seven companies.
- In the seven years prior to applying, Johnson was convicted of nine traffic related offenses, including three for speeding and one for speeding more than 10 miles per hour over the speed limit.
- Johnson was also convicted of four counts of “felony reckless aggravated assault” for attempting to use a tire thumper to break the headlights on a vehicle occupied by four women in 2004.
The opinion stated the safety coordinator testified that Johnson’s felony conviction – having occurred within the last 10 years – automatically disqualified him under the company’s safety standards and she rejected his application, a decision which should have landed Johnson’s file into the company’s “no-hire” file.
Instead, Johnson’s file went to the trucking company’s safety director who acknowledged the safety coordinator’s “unequivocal” rejection and admitted that Johnson was a “marginal candidate” but conceded that the company was forced to accept “marginal drivers” in order to make a profit.
Regarding Johnson’s felony conviction, the safety director testified it was “directly related” to Johnson’s occupation as a professional truck driver. Furthermore, he agreed that Johnson “never should have been allowed to drive a rig” under the company’s standards. However, he hired Johnson in February of 2010.
Under company policy, Johnson was required to attend a safety orientation within a week of being hired but waited nearly a month to attend. He received five warning violations a few weeks later, was put on probation for six months, and was required to attend a safety meeting before he could be dispatched.
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. The company continued to employ Johnson and even dispatched him while his license was suspended.
The opinion stated the safety director testified the company “never ran” Johnson’s motor vehicle report or monitored his license after he was hired, so Johnson kept his job despite having at least 36 points on his record even though company policy required a driver with more than 30 points on his record to be terminated.
The Cook County jury found in favor of plaintiffs on their negligence claim against Johnson and assigned 40 percent of the fault to Johnson and his employers. In addition, the jury found in favor of plaintiffs on their claim for negligent hiring and retention and assigned 60 percent of the fault to the trucking company for that claim.
“Employers have a duty of due diligence in hiring, and if their hiring practices cause harm to co-workers or members of the public, an employer can be sued for negligent hiring,” Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR), explained in his book titled ‘The Safe Hiring Manual.’
“If an employer hires someone who they knew – or in the exercise of reasonable care should have known – was dangerous, dishonest, unfit, or unqualified for the position, and it was reasonably foreseeable that some sort of injury could happen to someone as a result, the employer can be sued for negligent hiring,” Rosen wrote.
Rosen continued: “Employers can be sued for negligent retention when they fail to terminate, discipline, or properly supervise an employee after learning that employee is dangerous or unfit.” He added that implementing a Safe Hiring Program (SHP) is a powerful defense in the event of a negligent hiring lawsuit.
“Even if there is a cost involved, employers need to measure the risk of hiring blind with the considerable and near certain risk of litigation and attorney fees stemming from a single bad hiring decision. As another old saying goes, it is a matter of ‘paying now or paying later,’” Rosen concluded.
Employment Screening Resources® (ESR) – a global background check provider – offers comprehensive background screening services to help employers make informed hiring decisions and avoid “bad hires” that can lead to costly negligent hiring lawsuits. To learn more about ESR, visit www.esrcheck.com.
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