Opening/Closing Trucking Litigation

OPENING STATEMENTS AND CLOSING ARGUMENTS IN TRUCKING LITIGATION (PLAINTIFF’S PERSPECTIVE)

HOW TO USE PRIMACY AND RECENCY TO TELL AND CONFIRM THE STORY

Written by: FRANCISCO GUERRA, IV P. BRIAN BERRYMAN ALEX M. MILLER Bank of America Plaza, Suite 100 300 Convent Street San Antonio, Texas 78230 210-527-0500

Presented by: FRANCISCO GUERRA, IV

State Bar of Texas PROSECUTING OR DEFENDING A TRUCKING OR AUTO ACCIDENT CASE November 4-5, 2010 San Antonio CHAPTER 10.2

Opening Statements And Closing Arguments In Trucking Litigation (Plaintiff’s Perspective) Chapter 10.2

TABLE OF CONTENTS

I. INTRODUCTION.……………………………………………………………………………………………….1

II. LIABILITY FOR THE PRIMARY WRONGDOER…………………………………………………………….1

III. SHARED LIABILITY ARISING FROM BEING PART OF THE WRONGDOER……………………………3

IV. SHARED LIABILITY ARISING FROM INDEPENDENT ACTS OF NEGLIGENCE OVER THE PRIMARY WRONGDOER……………………………………………………………………………………….8

V. OPENING STATEMENT AND CLOSING ARGUMENTS – MIRROR IMAGES OF THE SAME STORY...16

VI. CONCLUSION…………………………………………………………………………………….…………….18

I. INTRODUCTION and then eventually prepare opening statements and closing arguments. This law of primacy is that the state of being first often creates a strong, almost II. LIABILITY FOR THE PRIMARY WRONGDOER unshakeable impression. In fact, studies show that there is an 80% correlation The underlying conduct and liability between the verdict that a juror would have of the primary wrongdoer (the truck driver) rendered immediately following opening is a pre-requisite to all liability theories in a statement and the jurors’ final verdict trucking case. The Federal Motor Carrier rendered at the conclusion of the case.1 Safety Administration has set forth many detailed regulations regarding motor The law of recency states that things carriers, drivers and the vehicles used. The most recently learned are best remembered. Federal Motor Carrier Safety Regulations One of the most significant advantages for a create the standard of care to be followed by Plaintiff in a lawsuit is that the Plaintiff has motor carriers. Compare Omega Contracting the privilege of going first and last during v. Torres, 191 S.W.3d 828 (Tex.App.—Ft. both opening statement and closing Worth 2006) (holding that in a negligence per argument. It is for this reason that the most se case, the jury is not asked to decide effective use of opening statements and whether the defendant acted reasonably closing arguments is to tell the story that under the circumstances because the they will hear first and confirm the story regulations state what a reasonable person that was proven last. We have found that would have done) and Yap v. ANR Freight this method not only maximizes your Systems, Inc., 789 S.W.2d 424 (Tex.App.— ability to sell your client’s story to the jury, Houston [1st Dist.] 1990) (holding that the but because you already know the facts, it federal motor carrier safety regulations also provides a perfect method to build and merely established the standard of care then confirm credibility with the jury. required by law.) Violations of these regulations are also important when trying The second part of this paper will to show that the motor carrier was grossly discuss how to effectively use primacy and negligent (especially in regards to hiring, recency in opening statements and closing training or retaining employees). As detailed arguments. Prior to that and before ever below, the first step in establishing primary beginning to understand how to properly liability against the driver in a trucking cases prepare an opening statement or closing requires the discovery of documents that argument, it is necessary to understand the relate to the Federal Motor Carrier Safety basics of trucking litigation. A trucking Regulations. Examples of areas that should accident is not just a large auto wreck. It is be investigated are as follows: an accident that only occurred because somebody violated the law. It is an A. Driver’s Logs & Supporting accident that occurred because somebody Documents charged with the responsibility to act safely failed to do so. It is an accident that could When working on discovery in trucking have and should have been prevented. A cases, the Plaintiffs have the benefit of trucking accident case is about the safety of government mandated record-keeping the motoring public. The first part of this requirements. The most important of these paper, therefore, is a brief summary of the records is the logbook, which each driver is types of things to be discovered in order to required to maintain. Another benefit is that obtain the information to build your case there are many other documents that can be checked and compared to each other and the

1 logbook to ensure the veracity of each Effective Opening Statements from the Plaintiff’s document. Plaintiffs should take time to Perspective; Karp, Sander 1 request all of these documents and then try •Total miles driving for that to reconcile the documents to ensure that day; all of them match the logbook and the •Truck or tractor and trailer motor carriers account of the events. Also, number; all of these documents should be requested •Name of Carrier; for the greatest span of time possible, but •Driver’s no longer than 5 years. The longer the signature/certification; span, the more likely it is that a detailed •24 hour period starting time; analysis of all the documents could •Main office address; evidence a pattern or practice of doctoring •Remarks; log books and/or other documents, •Name of the co-driver; exceeding speed limits, exceeding hours of •Total hours; and service requirements or other negligent •Shipping document numbers activity or violations of state or federal or name of shipper and laws. commodity.

As laws and technology change, the The logs books are sometimes hard to documents that are important in a trucking discover in cases that have been filed more than case change too. Also, through discovery, six months after the subject incident. The the plaintiffs should determine if along FMCSR at 395.8 only requires that the motor with the documents listed below the Motor carrier maintain this information for six months. Carrier has any practices or procedures in place that require greater record keeping of 2. On Board Computer Printouts the drivers. Below is a non-exhaustive list and/or Reports of documents that should be requested in a trucking case. Some tractors are equipped with onboard computers that monitor vehicle and 1. Log Book driver performance and store the information to later be uploaded into a The logbook contains daily log sheets that larger system. This information is often must be completed by the driver. These used to generate reports of the performance books record the driver’s hours of service, of the driver, vehicle, and trip. Further, the miles traveled, on or off duty status and technology of today allows these computers, other information about the trip for each 24- if equipped with GPS, to monitor very hour period while she is on the road. This specific details about the trip. This information is required to be kept under information can record the speed at any FMCSR 395.8. Further, FMCSR 395.3 has particular time, the location at any particular hours of service requirements that can be time, route traveled, any detours, average checked against the log to determine if the speed, time stopped and lots of other driver was exceeding hour requirements. specific details. An onboard computer, with All documents responsive to these GPS capability, could be the Plaintiffs requirements should be requested. greatest rebuttal to the logbooks record of events. Some of the information in the logbook could be very useful in crafting discovery for 3. Bills of Lading a Plaintiff. For example, FMCSR 395.8 requires the following to be included in the A bill of lading is a document that is logbook: required to be issued as a receipt of goods, evidence of title to the property being •Date; transported and as the contract of carriage setting forth the names of the contracting 2 parties and the terms of the carriage. The Sometimes motor carriers will Bill of Lading allows a party to ascertain provide a driver with the proposed schedule the identity of the patients that contracted for the haul. This is used to convey to the for the shipment. driver where he/she is going and when he/she needs to be there. These documents 4. Freight Bill can show if the motor carrier was encouraging the driver to exceed driving The freight bill contains much of the times or the maximum speed limits. Under same information as the bill of lading. The the requirements of FMCSR 392.6, no motor freight bill also contains information on all carrier shall schedule a run nor permit nor the charges, the trailer number, the origin require the operation of any commercial and destination terminals and special motor vehicle between points in such period instructions to the driver for handling or of time as would necessitate the vehicle delivering the load. being operated at speeds greater than those prescribed by the jurisdictions in or through The benefits to discovery of the which the commercial motor vehicle is freight bill are three fold. First, the trailers operated. and the tractors often have separate and distinct insurance policies. The freight bill 7. Driving Records will allow a party to determine the identity of the trailer and is a starting point for Driving records are required to be determining any separate policies. Second, kept by Federal mandate to some extent. the origination and terminus of the Any previous internal accident or shipment could become important if course investigation reports should also be and scope are challenged. The issue of requested regarding the subject driver. whether the driver was on a detour or a frolic would often be obvious by looking at Taking the time to draft an extensive the origination and terminus of the and specific set of discovery on the seven shipment. Finally, any special instructions categories set forth above will go a long way regarding the shipment and handling of in establishing liability against the truck the shipment give rise to obvious issues driver. Sometimes, this is the only avenue of regarding negligence and/or gross recovery in a case. As set forth below, negligence. however, it is always prudent to conduct discovery on the issues of whether other 5. Trip Report potential defendants exist and if they are already in the lawsuit, whether they can This document is a detailed account held liable for the actions of the primary of the entire trip for that particular haul. A wrongdoer. Some of the discovery is trip report would contain facts about the applicable to the primary wrongdoer as trip. These facts include; date and place of well. beginning and end, driver’s name, truck equipment numbers, odometer readings, III. SHARED LIABILITY ARISING FROM states traversed, monetary advances, fuel BEING PART OF THE WRONGDOER expenses and other expenses. This information can sometimes be taken from In trucking litigation, the actions or the on board computer or compiled from inactions of the truck driver is only the the drivers log and other documents. beginning. To truly build a case about “safety”, one must understand that “safety” 6. Schedule from Motor Carrier starts at the very core of the trucking company or the companies with which the trucking company was financially affiliated. 3 One way to extend liability to an entity that as when “a corporation is organized and did not technically perform the wrongful operated as a mere tool or business conduit conduct is to break down the technical of another corporation.” Castleberry, 721 barriers between the defendant and the S.W.2d at 272; see also Harrell v. DCS Equip. wrongdoer to show that the defendant was Leasing Corp., 951 F.2d 1453, 1458-59 (5th Cir. actually a part of the tortfeasor entity. 1992); Pan Eastern Exploration Co. v. Hufo Oils, There are two ways to go about this 855 F.2d 1106, 1130-33 (5th Cir. 1988). The process. First, one can show the defendant Castleberry court further established that alter and the wrongdoer are actually one in the ego “is shown from the total dealings of the same, under the doctrines of piercing the corporation and the individual, including the corporate veil known as single business degree to which corporate formalities have enterprise and alter ego. Second, one can been followed and corporate and individual show the defendant and the wrongdoer property have been kept separately, the were in something like a partnership in amount of financial interest, ownership and performing the conduct that caused the control the individual maintains over the damages, under the doctrines of joint corporation, and whether the corporation enterprise and joint venture. has been used for personal purposes.” Id.

A. ALTER EGO Castleberry’s emphasis on whether corporate formalities were observed set off a The fundamental concept of strong reaction in the business community corporate law is that the corporation is a and, by extension, the Legislature. Article wholly separate, legal entity. As such, the 2.21 of the Texas Business Corporation Act corporation, and not its shareholders, is was amended to remove the element of liable for its obligations. Krivo Indus. Supply observation of corporate formalities from the Co. v. National Distillers & Chem. Corp., 483 list of factors to be considered in piercing the F.2d 1098, 1102-03 (5th Cir.1973). corporate veil, and to require, in contract Nonetheless, under Texas law, courts do cases, that actual fraud on the plaintiff be not hesitate to ignore the corporate form shown, as opposed to constructive fraud. when it “has been used as part of a basically unfair device to achieve an While there is some authority for the inequitable result.” Castleberry v. Branscum, proposition that Article 2.21 applies both to 721 S.W.2d 270, 271 (Tex. 1986). tort and contract cases, see, e.g., Aluminum Chemicals (Bolivia), Inc., 28 S.W.3d 64, 68 and In the landmark Castleberry case, the n.4, most courts that have considered the Texas Supreme Court listed six situations in issue have held that Article 2.21 applies only which Texas courts may pierce the in contract cases. See, e.g., De La Hoya, 2005 corporate veil: (1) when the fiction is used WL 459619 (125 Fed. Appx. 533); Nordar as a means of perpetrating a fraud; (2) Holdings, Inc., 969 F.Supp. at 422 and 423 n.2; where a corporation is organized and Concept Clothing Co., Inc. v. Dabney, 2003 WL operated as a mere tool or business conduit 23208272 (N.D. Tex. 2003); Western Horizontal of another corporation; (3) where the Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d corporate fiction is resorted to as a means of 65, 68 n.4 (5th Cir. 1994); PHC-Minden, L.P., evading an existing legal obligation; (4) 2005 WL 1979102; Farr v. Sun World Sav. where the corporate fiction is employed to Ass’n, 810 S.W.2d 294, 296 (Tex.App.—El achieve or perpetrate monopoly; (5) where Paso 1991, no writ). the corporate fiction is used to circumvent a statute; and (6) where the corporate fiction The alter ego theory has been used not is relied upon as a protection of crime or to only to impose liability but also to establish justify wrong. Castleberry, 721 S.W.2d at jurisdiction and to toll limitations. See BMC 272. The Castleberry court defined alter ego Software Belgium, N.V. v. Marchand, 83 S.W.3d 4 789, 799 (Tex. 2002) (“[t]o ‘fuse’ the parent company and its subsidiary for Ables, 35 S.W.3d at 613. jurisdictional purposes, the plaintiffs must prove the parent controls the internal Most of the attention of the appellate business operations and affairs of the decisions in recent years has been on the subsidiary” and “the degree of control the third element: whether there was “a parent exercises must be greater than that community of pecuniary interest in that normally associated with common purpose, among the members.” It had been ownership and directorship.”); Matthews established in Shoemaker that the doctrine of Const. Co., Inc. v. Rosen, 796 S.W.2d 692 joint enterprise liability applied only in a (Tex. 1990); Gentry v. Credit Plan Corp. of commercial or business context and not to Houston, 528 S.W.2d 571 (Tex. 1975). family or social ventures. Shoemaker, 513 S.W.2d at 17. It is not always clear, however, B. Joint Enterprise which joint business ventures will qualify for joint enterprise liability and which will not. As our Supreme Court stated in A review of some of the appellate cases Texas Department of Transportation v. Able, 35 decided during the last few years will S.W.3d 608, 613 (Tex. 2002): illustrate where the courts have drawn lines. Texas Dep’t of Transportation v. Able, Joint enterprise liability makes “each decided in 2000, dealt with an accident in party thereto the agent of the other which a married couple traveling outbound and thereby to hold each from Houston on the Highway 290 HOV responsible for the negligent act of lane were involved in a head-on collision by the other.” Shoemaker v. Estate of a driver going the wrong way in the same Whistler, 513 S.W.2d at 14 (Tex, lane without his headlights on. The plaintiffs 1974). In Shoemaker we adopted the alleged that there was joint enterprise definition of joint enterprise as liability due to a joint venture between stated in section 491, comment c of TxDOT and the Houston Metropolitan the Restatement of Torts. That Transportation Authority (“Metro”). The section states: jury found Metro both negligent and grossly [t]he elements which are negligent, found that TxDOT was not essential to a joint enterprise negligent, and found that there was a joint are commonly stated to be enterprise. four: (1) an agreement, express The two agencies had entered into a or implied, among the “Master Agreement” for the construction members of the group; (2) a and operation of HOV lanes in Houston. common purpose to be carried Included in a section of the Master out by the group; (3) a Agreement entitled “Use of Facilities” was community of pecuniary the following language: “the highway interest in that purpose, facilities upon which Transitways are among the members; and (4) constructed are under the ultimate control an equal right to a voice in the and supervision of the State.” Id. at 615. direction of the enterprise, Other language said that TxDOT and Metro which gives an equal right of “will divide the responsibility for control. maintenance.” Id. But there were still other RESTATEMENT (SECOND) OF provisions that TxDOT argued gave Metro TORTS § 491 cmt. c (1965); see also responsibility for day-to-day maintenance Blount v. Bordens Inc., 910 S.W.2d and operation of the lanes. 931, 933 (Tex.1995); Triplex The Court held that TxDOT was Communications, Inc. v. Riley, 900 liable, along with Metro, for the plaintiffs’ S.W.2d 716, 718 (Tex.1995). damages, stating: 5 two men “would be able to pay some bills” In essence, TxDOT invites this after he returned from the trip. Blount, 910 Court to redefine the scope of its S.W.2d at 933. enterprise with Metro by excluding the day-to-day maintenance and St. Joseph Hosp. v. Wolff, 94 S.W.2d 513 operation of the Transitways, a (Tex. 2002) was a medical malpractice case duty that TxDOT claims belonged arising out of the treatment of a patient at to Metro. We decline the invitation Brackenridge Hospital in Austin by, among for two reasons. First, allowing a others, a resident who was enrolled in a member of a joint enterprise to residency program through St. Joseph escape liability to a third party Hospital in Houston. The plaintiffs alleged a simply by delegating responsibility joint enterprise between St. Joseph Hospital for the component of the joint and the Central Texas Medical Foundation, enterprise that caused the injury to an organization formed to operate the the third party would defeat the residency program. The trial court theory of joint enterprise liability. submitted a jury charge that included in its Second, other provisions in the definition of a “joint enterprise” as the third Master Agreement contradict element whether there was “a common TxDOT’s suggestion that it did not business or pecuniary interest” between the have control over the maintenance Hospital and the Foundation.” St. Joseph and operation of the Transitways. objected and asked the court to submit, While the Master Agreement instead, the Restatement language provides that Metro is the primary (“community of pecuniary interest”). Id. at agency responsible for the day-to- 525. The Supreme Court acknowledged that day operation and maintenance of it had used phrases such as “common the Transitways, the agreement pecuniary interest” and “business or also clearly provides that the State, pecuniary interest” in prior decisions, but through TxDOT, has an interest said that it had done so only as a and responsibility in the operation “shorthand” reference to the Restatement and maintenance of the language. Id. at 526-27. Moreover, the Court Transitways. concluded that “common business or pecuniary interest” and “community of Id. at 615-616. pecuniary interest” do not mean the same thing, pointing out that franchisors and In other cases, the Supreme Court franchisees or wholesalers and retailers may has declined to find a joint enterprise in a have “common business interests” but do variety of fact situations. In Triplex not share a “community” of pecuniary Communications, the Court declined to find interest. Id. at 527-528. a joint enterprise between a nightclub and a radio station where the nightclub ran a The importance of this observation “happy hour” special on drink pricing that becomes more apparent when, as in corresponded to the station’s radio this case, the evidence shows a more frequency, even though the station complex, ongoing relationship promoted the event. Triplex between the members of the claimed Communications, 900 S.W.2d at 719. In joint enterprise. In such Blount, the Court held that two men who circumstances, the evidence may were killed in a motor vehicle accident show several different agreements while on a trip to Mexico to pick up horses and understandings between the owned by a family member and family parties, encompassing an assortment friend were not involved in a joint of common purposes, and thus a enterprise, despite evidence that one of the number of possible projects or 6 “enterprises” devoted to carrying “to satisfy the third element of the them out. The parties may have a Restatement definition an interest must first “community of pecuniary interest” be monetary in nature.” Id. It further (required by the Restatement’s explained, “that monetary interest must be third element) in some of those common among the members of the group – purposes but not in others. Or, as it must be one ‘shared without special or to some of the putative enterprises distinguishing characteristics.’” Id. The but not others, the evidence may be Court then reviewed the evidence about equivocal or non-existent as to whether St. Joseph and the Foundation had a whether the parties have an equal “community of pecuniary interest” in the right to a voice in the enterprise’s surgical residency program at Brackenridge: direction, giving an equal right of control as required by the There is no evidence in the record Restatement’s fourth element. that St. Joseph agreed to share with the Foundation any money it Id. at 529. In such a relationship, the Court received from operating the general stated: surgery residency program. Although St. Joseph received If the evidence shows several Medicare funds based on the possible purposes and concomitant number of residents in the program, projects or enterprises to there is no evidence the Foundation accomplish them, a properly shared in those funds. Similarly, worded charge must require the there is no evidence the Foundation jury to find that the joint enterprise agreed to share with St. Joseph any elements, particularly the money it received from operating “community of pecuniary interest the residency program. in [the common] purpose” and “equal right of control” elements, Id. In response to the Wolff’s’ contention exist with respect to the same that St. Joseph could not have even concomitant purpose and sponsored an accredited residency program enterprise. Otherwise, a jury could without the Foundation’s participation, the find a joint enterprise existed even Court said that the evidence indicated if the evidence conclusively otherwise, noting: “[t]here is also evidence showed, for example, that with St. Joseph could have operated an accredited respect to two possible common residency program by affiliating with purposes and their corresponding institutions other than the Foundation and enterprises, there was no had previously obtained surgical experience community of pecuniary interest in for its residents by working with other one, and no equal right of control hospitals in Houston.” Id. at 532. in the other. The courts of appeals have considered Id. joint enterprise liability in a variety of factual contexts. In Watts v. Green, 190 S.W.3d 44 The Court, having concluded that (Tex.App.—Amarillo 2005, no pet.), the the charge was erroneous, next turned to a Court affirmed a judgment based on joint discussion of whether there was legally enterprise liability against the owner of an sufficient evidence of a joint enterprise even insurance agency who participated in the if the Restatement language had been used. sales by one of his agents of investments in The Court noted that “[t]he ordinary pay telephones. There was ample evidence meaning of ‘pecuniary’ is ‘of or pertaining of the owner’s knowing about, participating to money.’” Id. at 531. The Court held that in, and profiting from the telephone sales 7 venture, even though there was no written liable for the debts and obligations incurred agreement to which he was a party. by the others in scope of the venture. Truly v. Austin, 744 S.W.2d 934, 937-38 (Tex. 1988). Several court of appeals decisions have held that an indirect or general In Porter v. Puryear, 262 S.W.2d 933, financial benefit is insufficient to amount to 938 (Tex. 1953), the Texas Supreme Court sharing in a “community of pecuniary held there was evidence of a joint venture, interest. In Omega Contracting, Inc. v. Torres, even though one of the parties was not 191 S.W.3d 828, 850 (Tex.App.—Fort Worth directly tied to paying losses. In Porter, one 2006, no pet.), the court held that the mere doctor owned the hospital and performed fact that an officer of one company also anesthetics and the other performed the received income from another, related, surgeries, and they agreed to share the corporation, did not amount to a amounts paid to them by the patients. The “community of pecuniary interest.” The Court held that even though there was no court also rejected the argument that a specific agreement to share losses, the community of pecuniary interest existed surgeon would experience a loss if the because one trucking company was able to patient refused to pay because he would provide faster service to its customers by have lost the value of his services, time, and virtue of its arrangement with another labor. company and, thus, to get more repeat business from satisfied those customers. IV. SHARED LIABILITY ARISING FROM The court relied on Ely v. Gen. Motors Corp., INDEPENDENT ACTS OF NEGLIGENCE 927 S.W.2d 774, 779 (Tex.App.—Texarkana OVER THE PRIMARY WRONGDOER 1996, writ denied) (holding evidence that hospital’s association with medical Another method of extending liability foundation enhanced hospital’s reputation for the wrongful conduct of the truck driver in medical community and attracted to the trucking company is based on the doctors to practice at hospital was no independent tortuous conduct of that evidence of third element) and Blackburn v. company as it relates to the primary Columbia Med. Ctr. of Arlington Subsidiary, wrongdoer. These claims differ from those L.P., 58 S.W.3d 263, 275-76 (Tex.App.—Fort discussed above because they are Worth 2001, pet. denied) (holding that independent causes of action against the evidence of general benefit arising from trucking company for its own negligence. hospital’s agreement with radiology practice group was not even a scintilla of A. Negligent Exercise of Control evidence of third element). The Texas Supreme Court has C. Joint Venture recognized in numerous cases that one can be held liable for the wrongful or negligent Generally, it is more difficult to act of another where he has retained the right prove a joint venture than a joint enterprise. to control that portion of the other’s activity, The elements of a joint venture are: (1) a was negligent in the exercise of that control, community of interest in the venture; (2) an and the other’s activity resulted in injury or agreement to share profits; (3) an damage to the plaintiff. For example, in Read agreement to share losses; and (4) a mutual v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998), right of control or management of the a vacuum cleaner company retained control enterprise. Ayco Development Corp. v. G.E.T. over how its distributors sold its products, Service Co., 616 S.W.2d 184, 186 (Tex. 1981). requiring in-home sales demonstrations. The Court held the company, Kirby, liable to a Each partner in a joint venture is plaintiff who was raped in her home by an considered an agent of the others and is 8 employee of a distributor. In doing so, the someone exercised actual control is a court stated: generally a question of fact for the jury.” Id.

We do not question Carter’s status Not just any “right of control” will as an independent contractor, but suffice to establish liability, however. The this status is not a defense to Read’s Supreme Court has limited the applicability claim. As previously, it is of the doctrine in a number of ways, holding, undisputed that Kirby directed its “[t]here must be a connection between the distributors that its Kirby vacuum right of control and the particular activity or cleaners be marketed solely condition that caused the plaintiff’s injury.” through in-home demonstration. It Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d was Kirby’s retention of control 354, 357 (Tex. 1998) (per curiam). The right over this detail that gave rise to the to terminate a subcontractor or to stop the duty to exercise that control work is not a sufficient basis for liability. reasonably. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607- 08 (Tex. 2002). A requirement that a sub- 990 S.W.2d at 735-36; see also Exxon Corp. v. contractor train its employees or comply Tidwell, 867 S.W.2d 19, 22 (Tex. 1993) with safety requirements will not subject a (control by oil company over details of contractor to liability because of the sub- service station operation may impose duty contractor’s failure to do so. Shell Oil Co. v. to exercise ordinary care); Redinger v. Living, Khan, 138 S.W.3d 288, 293-94 (Tex. 2004). A Inc., 689 S.W. 2d 415, 418 (Tex. 1985) general right to make suggestions regarding (negligent exercise of control by contractor how activities are to be conducted will not over details of sub-contractor’s work may provide a basis for liability. Dow Chem. Co. v. create liability). Bright, 89 S.W.3d at 611. The right to receive In Lee Lewis Construction, Inc. v. reports is not a right of control. Id. Harrison, 70 S.W.3d 778, 783 (Tex. 2001), the Court stated: For there to be a right of control the “controlling” entity must be empowered to A general contractor can retain the act – that is, it is necessary to show that a right to control an aspect of an defendant had authority to require the independent contractor's work or primary wrongdoer to conduct the activity in project so as to give rise to a duty a different way. Shell Oil Co. v. Khan, 138 of care to that independent S.W.3d at 293 and n. 19.2 contractor's employees in two ways: by contract or by actual 2 exercise of control. See, e.g., Koch There is room for some confusion about what the Ref. Co. v. Chapa, 11 S.W.3d 153, 155 “controlling” entity must be entitled to do. In Khan, the Court held that the fact that Shell could have terminated a (Tex.1999); Coastal Marine Serv. of service station owner’s contract if it failed to provide proper Tex., Inc. v. Lawrence, 988 S.W.2d security training to its employees did not expose it to 223, 226 (Tex.1999). We have liability (although there was no summary judgment frequently used the phrases “right evidence that Shell knew the employer wasn’t providing of control” or “retained control” such training). 138 S.W.3d at 293. Yet in Tovar v. interchangeably. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex. 1985), the Supreme Court held that an oil company breached a duty of care to a drilling contractor employee by not exercising its The Court in Lee Lewis Construction, Inc. contractual right to suspend drilling operations when it added: “The distinction remains important, became aware that the drilling contractor was violating a however, because determining what a specific, critical safety provision in the drilling contract. contract says is generally a question of law And in Hoechst-Celanese, the Supreme Court said that “an for the court, while determining whether employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may owe a duty to require corrective 9 National Freight, 944 S.W.2d 807, 810-11 While the “right of control” doctrine (Tex.App.—Austin, 1997, no writ), the court had its origin in construction site cases, its held the employer did not have a duty to use has been far more widespread than investigate the criminal background of a that. In a business case, De La Hoya v. truck driver who was not anticipated to have Coldwell Banker Mexico, Inc., 2005 WL contact with the general public in performing 459619 (125 Fed. Appx. 533) (5th Cir. 2005), his duties, even though the employer had a the doctrine was applied to a franchisor- duty to investigate his driving history. If the franchisee relationship, where the employee is going to interact with the public franchisor had retained the right to audit a (especially in private), however, it is likely local real estate agent’s escrow accounts, necessary to perform criminal background even though escrow services were not checks. See Porter v. Nemir, 900 S.W.2d 376, included in the scope of the franchise 386 (Tex.App.—Austin 1995, no writ) services. The evidence showed that the (heightened obligation when the employee franchisor had notice of the agent’s works with a vulnerable group). Section misappropriation of client funds and had, 145.002 of the Texas Civil Practice & in fact, instructed the agent to cease using Remedies Code requires in-home service her own escrow account and deposit client companies and residential delivery funds only in third-party escrow accounts. companies to obtain “all criminal history Relying on Read, the Fifth Circuit held that record information relating to an officer, plaintiffs’ unchallenged evidence was employee, or prospective employee of the sufficient to state a case against the company whose job duties require he will franchisor for negligent exercise of control. require entry into another person’s residence.” TEX. CIV. PRAC. & REM. CODE B. Negligent Hiring, Training, §145.002. Retention, and Supervision Employers owe a duty of ordinary Claims for negligence in hiring, care in supervising their employees. This training, retention, and supervision are obligation is also heightened when the normally made when the conduct of an employee is performing dangerous work or employee is outside the course and scope of poses a dangerous risk of harm. Denton Reg. employment. Otherwise, the employer is Med. Cntr. v. LaCroix, 947 S.W.2d 941, 951 liable based on respondeat superior. To (Tex.App.—Fort Worth 1997, pet. dism’d) recover on such an independent act of (duty to supervise employee administering negligence, however, the plaintiff must anesthesia). prove the negligence in hiring, training, retention, or supervision was a proximate An employer’s duty to screen cause of the injury. employees does not end once the employee is hired. The employer has a continuing Employers have a legal duty to the duty to exercise ordinary care in retaining public and other employees to exercise employees. Robertson v. Church of God, Int’l, ordinary care in hiring employees. LaBella 978 S.W.2d 120, 125 (Tex.App.—Tyler 1997, v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 pet denied). (Tex.App.—Amarillo 1997, writ denied). The extent to which they check the The duties with regard to hiring, background and competence of the training, retaining, and supervision also employee, however, depends on the type of extend to independent contractors. Texas work involved. For example, in Guidry v. courts have recognized that a person can be held liable for the negligent selection of independent contractors. Pollard v. Missouri measures to be taken or to cancel the contract.” 967 Pac. Railroad Co., 759 S.W.2d 670, 670 (Tex. S.W.2d at 357. 10 1988) (holding a claim would arise if negligent entrustment of a product the “MOPAC was negligent for employing an entrustor knew or should have known was inexperienced contractor without inquiring defective. Russell Construction Co. v. Ponder, into his experience and safety record.”); 186 S.W.2d 233 (Tex. 1945). Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 789 (Tex.App.—El Paso 1996, Negligent entrustment is derivative writ denied) (finding a fact issue whether liability so that the plaintiff need not prove the incompetence of the independent the entrustor’s negligence was a proximate contractor was a proximate cause of the cause of the plaintiff’s injuries, but only that injuries); Castro v. Serrata, 145 F.Supp.2d the entrustor was negligent in the 829, 833 (S.D. Tex. 2000) (“One hiring an entrustment and the entrustee’s negligence independent contractor may be held proximately caused the plaintiff’s injuries. responsible for the contractor’s negligent Spratling v. Butler, 240 S.W.2d 1016, 1017 acts if the employer knew or should have (Tex. 1951). Because it is derivative liability, known that the contractor was incompetent the entrustor is liable for the damages to the and a third person was injured because of same extent as the entrustee. the contractor’s incompetence,” (citing King v. Associates Commercial Corp., 744 S.W.2d The following set of issues should be 209, 213 (Tex.App.—Texarkana 1987, writ discovered to determine whether there are denied) citing Texas American Bank v. other potential defendants or liability for Boggess, 673 S.W.2d 398, 400 (Tex.App.— other defendants under the shared liability Fort Worth 1984, writ dism’d by agr.)). theories:

C. Negligent Entrustment 1. Employment Records

Even though negligent entrustment The plaintiff in a trucking case should claims generally involve the entrustment of attempt to discover all records the employer motor vehicles, they can also involve other has regarding the particular driver’s history sorts of chattel and defective products. with the company. There are many different areas that could be of importance in a The elements for negligent trucking case. Employment records entrustment of a motor vehicle are: (1) the generally have been subdivided into pre- owner entrusted the vehicle to another employment, while employed and post- person; (2) that person was an unlicensed, employment. incompetent, or reckless driver; (3) the owner knew or should have known the a. Pre-employment driver was unlicensed, incompetent, or reckless; (4) the driver was negligent on the Prior to employment as a driver, most occasion in question; and (5) the driver’s applicants go through a stringent process of negligence proximately caused the being screened and reviewed. This is due in plaintiff’s injuries. Schneider v. Esperanza part to the large exposure to liability a Transmission Co., 744 S.W.2d 595, 596 (Tex. trucking company can face when their 1987). When the entrustment involves a driver injures another. When deciding if to different instrument or chattel, the elements hire a driver, a motor carrier would often are essentially the same, substituting that compile a large amount of documents. specific chattel with “vehicle” and generally These documents are crucial for any plaintiff focusing on the incompetence of the that is trying to prove a negligent hiring entrustee. National Conven. Stores v. T.T. case. Some of the important documents that Barge Cleaning Co., 883 S.W.2d 684, 686 should be requested have been outlined (Tex.App.—Dallas 1994, writ denied). below with a small description and Texas also recognizes a general claim for explanation. 11 c. Drug Testing b. Driver Investigation History File The Federal Motor Carrier Safety Regulations mandate drug testing. Subject FMCSR 391.53 mandates that each to a few special conditions, FMCSR 382.301 motor carrier must maintain records requires the motor carrier to perform a pre- relating to the investigation into the safety employment test for controlled substances. performance history of a new or The motor carrier must receive a negative prospective driver. This file must include drug test result before allowing the driver to the following information: work.

(1) A copy of the driver’s d. Alcohol Testing written authorization for the motor carrier to seek information about the FMCSR 382.301 makes pre- driver’s alcohol and controlled employment alcohol screening optional for substances history as required employers. Additionally, the regulations under 391.23; almost make it a discouraged practice. The (2) A copy of the employer who decides to alcohol screen pre- responses received for employment must follow specific, and investigations required by 391.23 possibly costly, procedures to do so. One from each previous employer, or important notation on alcohol screening is documentation of good faith efforts that an employer must alcohol-screen all to contact them; safety sensitive employees if it decides to test one. Discovery should be sought in a (3) The certificate of the way to determine if any employees driver’s road test issued to the underwent alcohol testing while others did driver pursuant to 391.31; not.

(4) The response to each e. License State agency to the annual driver record inquiry required by 391.25; It goes without saying that prior to beginning employment, an employer should (5) A note relating to the check to ensure that an applicant has all annual review of the driver’s required licenses. Plaintiffs should seek driving record as required by 391.25; discovery on the licenses in a way that allows them to compare the licenses, (6) A list or certificate including dates of expiration, renewal and relating to violations of motor possible suspensions, with dates of vehicle laws and ordinances employment and importantly, dates in required by 391.27; which the driver was actually operating a vehicle. Also, a plaintiff should inquire as to (7) The medical whether or not the subject vehicle involved examiner’s certificate of his/her in the accident is one that requires any physical disqualification to driver a special licenses like a longer combination commercial motor vehicle; and vehicle (LCV) would.

(8) A letter of physical f. Investigation and Inquiry disqualification waiver is one is Documents required. Motor carriers must perform certain inquiries into every driver’s background. 12 The motor carrier must make an inquiry the cargo is in and of itself dangers, be into the driver’s driving record during the thorough in researching if any special preceding three years to the appropriate clearances or licenses were required by the agency of every State in which the driver motor carrier and/or the driver. held a license during those three years. Additionally, the motor carrier must j. Application investigate the driver’s safety performance history with the Department of The application should already be Transportation regulated employers part of the driver qualification file. during the preceding three years. These However, the plaintiffs should ensure that documents are required to be assembled on top of the federally mandated application and kept under FMCSE 391.23. the motor carrier did not have a separate and distinct application required of its g. Medical Certificate applicants. Also, any resume or C.V. that was submitted along with the application A truck driver must obtain a should be requested. medical examination from a licensed medical examiner and optometrist prior to k. References beginning employment per FMCSR 391.41. The purpose of this rule in part is to Pre-employment reference checks are establish minimum physical qualifications standard fare in many types of employment. for persons who drive commercial motor As with any other job, sometimes employers vehicles as, for, or on behalf of motor go to lengths to retrieve references from carriers. The FMCSR is very detailed on previous employers to aid them in making what must be tested and performance an employment decision. The information minimums. Further, the motor carrier is contained as a result of checking references required to keep the medical examiner’s could go directly to what the employer certificate of her physical qualifications in knew when they hired the driver. This the driver’s qualification file per FMCSR becomes very important in cases where you 391.51. want to prove a negligent hiring case.

h. Road Test l. Criminal background checks

In accordance with FMCSR 391.31, a For obvious reasons it is important to motor carrier must require the driver to know if they driver was a criminal, what complete a road test prior to operating a type of crimes he committed and whether or commercial vehicle. The FMCSR not the employer knew of this. As in many specifically outlines the skills that must be jobs, employers sometimes request this tested and who qualifies to perform the information as part of the application test. These records are required to be kept process. The extent and nature of the in the driver qualification file. driver’s criminal background could play a major role in proving an employer’s i. Special Clearances or negligence in hiring and/or retaining a Licenses driver.

It is important for Plaintiffs to be m. Driver Qualification File aware of what the driver was hauling at the time of the subject incident. The The entire driver qualification file handling and transportation of certain should be requested. Federal law mandates things might create a need for special that certain things are kept within the driver clearance or license. In situations where qualification file. Many of these items have 13 been mentioned above. However, all of Plaintiffs would or could need to request in them are not pre-employment documents. terms of personnel files. Requesting this This file is to be supplemented annually at actual personnel file, however, could prove a minimum. Among these items are: fruitful. This should be requested just in case the employer keeps a personnel file (1) the driver’s application for separate and apart from the files required employment completed in under federal law. accordance with FMCSR 391.21; n. Incident or Accident Reports (2) a copy of the response by each State agency concerning the FMCSR 391.25 requires each motor driver’s driving record pursuant to carrier to make an inquiry into the driver FMCSR 391.23; record of each driver it employs covering at least the previous twelve months. These (3) the certificate of driver’s road inquiries are to be made to the appropriate test issued to the driver pursuant to agency of every State for which the driver FMCSR 391.31, or a copy of the held a commercial drivers license during license or certificate that the motor that period. carrier accepted as equivalent to the driver’s road test; Under FMCSR 391.27 the motor carriers are mandated to require the driver (4) the response of each State to prepare and furnish it with a list of all agency to the annual driver record violations of motor vehicle traffic laws of inquiry as required by FMCSR which the driver has been convicted or of 391.25; which the driver has forfeited bond or collateral. Both of the preceding documents (5) a note relating to the annual are to be kept in the driver qualification file. review of the driver’s driving record as Plaintiffs should also explore any required by FMCSR 391.25; accident reports that are not produced or kept under federal mandate but are the (6) a list or certificate relating to result of internal investigation. Any internal violations of motor vehicle laws accident or investigation reports should be and requested regarding the subject driver. This ordinances as required by FMCSR request should not be limited to the subject 391.27; and incident but should encompass any and all such reports that are in the possession of the (7) the medical examiners employer. certificate as mentioned above, o. Ongoing Drug and Alcohol and a letter from the Field Testing Administrator, Division 1. Administrator, or State Director The FMCSR outlines many situations granting a waiver of a physical where drug and alcohol testing is either disqualification if a waiver was required or encouraged during employment. issued. Random drug testing is required per 382.305. Specific requirements regarding the l. Personnel File percentage of employees to be randomly tested is laid out in the regulation. Also, the Typically, the files mandated by FMCSR at 382.207 requires testing any time federal law will include everything the motor carrier has reasonable suspicion 14 that the driver is under the influence of after the vehicle has left the motor carrier’s drugs or alcohol. Finally, there are also control. provisions regarding drug and alcohol testing following a collision or accident. s. Driver Vehicle Inspection All of these rules are subject to many Reports specific exceptions or qualifiers that should be researched in depth if drug and/or The Federal Motor Carrier Safety alcohol use is suspected in an accident. Regulations at 396.11 require that the drivers prepare a report in writing at the completion p. Payment methods of each day’s work regarding an inspection of: The method and manner of payment should be requested also. Drivers be paid 1. Service brakes including trailer in a number of ways, including by the mile. brake connections; It become important to know how they 2. Parking brake; were paid to determine if the motor carrier 3. Steering mechanism; had encouraged them to break any laws 4. Lighting devices and regarding time on the road and/or speed. reflectors; 5. Tires; q. Post-Employment 6. Horn; 7. Windshield wipers; In the event the driver has been 8. Rear vision mirrors; terminated, the plaintiffs should attempt to 9. Coupling devices; request as many documents relating to the 10. Wheels and rims; and termination as possible. In particular, Plaintiffs should request any post- t. Emergency equipment. employment evaluation, any internal documents discussing termination or The report must list any defect or reasons for termination, and any deficiency that might affect the safety of the unemployment records the driver has filed vehicle. It should be performed and signed in order to receive unemployment benefits. by the driver. If no defects are found, the Also, if this subject driver had been driver still needs to sign off on the report. terminated from a previous employer, Plaintiffs should request the same u. Periodic Inspections information from the previous employer to determine whether or not the motor carrier FMCSR 396.17 requires that every did a proper job of researching the driver’s vehicle be periodically inspected. Section job history before employment. 396, in the appendix, details the parts and accessories that at a minimum must be part r. Repair and Maintenance of this inspection. The regulation appears to Records Inspection, Repair and mandate that the inspections be performed Maintenance at least once every twelve months. On top of that, FMCSR 396.21 mandates certain FMCSR 396.3 generally requires that record keeping requirements for these all motor vehicles under the control of the inspections. motor carrier be inspected, maintained and repaired. This regulation also requires that v. Contractual/Financial the records of inspection, repairs and Documents maintenance be kept for the duration the vehicle is in operation with the motor All contracts, payment documents, carrier and for another eighteen months and information pertaining to profits and 15 loses should be requested from all remember after being heard just once.5 defendants and potential defendants. Jurors learn through five senses. If possible, the theme should touch all five senses and V. OPENING STATEMENT AND CLOSING should be repeated as often as possible ARGUMENTS – MIRROR IMAGES OF during the course of the trial. The opening THE SAME STORY statement should begin and end with the theme. The closing argument should begin Now that you know the basics of and end with the theme. A sample case trucking litigation, it is time to understand theme in trucking litigation might be: the effective use of primacy and recency to make promises during the opening “This is a case of corporate statement that will be proven true during accountability . . .” closing arguments. Most of these points are not original and are being used in courtrooms all across the country. The key “This is a case where a truck driver is to use primacy and recency with each was allowed to violate the rules one too point and to ensure that each point is many times . . .” consistent with your theme in a trucking case. “This is a case about keeping the motoring public safe . . .” •THE SILVER BULLET (HAVE A CLEAR THEME) •TELL THE STORY/CONFIRM THE STORY The first step in developing a successful opening statement and closing In order to deliver an effective argument is to identify the theory and opening statement and closing argument, it theme of the case. The theme is a rhetorical should be presented as you would present device that justifies the morality of your and tell a story. Telling a story is one of the theory and appeals to a juror’s sense of most persuasive means of communication. justice.3 Every single case, regardless of its How this is done is through a story to tell the size, must have a theme that the attorney information, the evidence you have, so that raises in voir dire, mentions in the opening the jury will understand it, and its statement, brings out through the testimony relationship to the theme. How we persuade or exhibits, and hammers home during the is how we deliver and tell our story to the jury. Storytelling is the most basic means of closing argument. The theme of the case 6 consists of a one-sentence summary of what communication. the case is about. It is best to employ one or more “feeling” words as part of your In trucking litigation the story is often theme. The theme is not the legal or told in chronological order. The story often cerebral reason why you should win starts with the driver’s experiences prior to (insufficient evidence), but instead, it his present job and usually ends with a litany 4 visually describes why you should win. of errors allowing him to remain on the road in spite of a bad driving record. The best themes are short--a sentence, a phase, even a single word that encompasses your strongest claim or defense. Something that is easy to

3 5 Opening Statements; Eliott, Edgar IV Using Themes at Trials; Gillam, Carol 4 6 Opening Statements: You Never Get a Second Chance Ten Points in Making an Effective Opening Statement; to Make A First Impression; Hirschhorn, Robert Noland, Douglass F. 16 versus weak. Almost every juror will have •THE CAST OF CHARACTERS experiences driving on highways. Almost every juror will have experiences of driving Think about the words and phrases in situations when large trucks are in close you will use to describe the major witnesses vicinity. Almost every juror will have heard in the case based on how you will depict of a tragic accident involving small vehicles them in the story. By the end of your and large tractor-trailers. Most jurors are opening statement, jurors must know who fearful of being involved in these types of is good and who is bad, who is right and accidents because they usually involve who is wrong, who is the victim and who is death. There is a bias in the American the perpetrator.7 public against tractor-trailers on American highways. As a Plaintiff, you must make your case about the greater good and not just A trial is really a scripted play for one tragic accident. which you already have the benefit of dress rehearsal. If you have done an adequate job •REVEAL YOUR WEAKNESSES/ANTICIPATE developing the case during the discovery DEFENSES phase, you will already know the facts. Because of this, you should forecast three key facts that you expect each witness will There is a tendency in opening testify to during your opening statement. statements to put one's best foot forward. These facts should be consistent with your What jurors hold against lawyers isn't so theme. This is especially true with key much the weaknesses of their case, it is that witnesses such as the officer that lawyers often try to hide those weaknesses. investigated the crash or the safety director A stronger position is to expose case for the trucking company. In trucking weaknesses before opposing counsel has a litigation, the safety director is the face of chance to use them to its own advantage. In the company. If the facts substantiate it, you a trucking case, these issues usually pertain must hold the safety director responsible to contributory negligence on behalf of the for the crash. Once the witnesses have plaintiff or negative facts pertaining to testified and you are delivering your damages. Talk about weaknesses first closing argument, you should confirm that during opening statements and last during the three facts you expected to elicit from closing arguments. each witness were in fact proven in open court. •ESTABLISH AND CONFIRM CREDIBILITY

•THE BIG PICTURE (THE SAFETY OF THE The opening statement is one of the MOTORING PUBLIC) most important components of any trial. It is your first opportunity to present the case to This may be expressed as good guys the jury, and to shape the jury’s perspective versus bad guys, heroes versus villains, or of the entire trial. The opening statement also the big and powerful versus the weak and is your first opportunity to present yourself powerless. Still, this concept seems to to the jury, and to establish the kind of always be present in good stories. Explore credibility that will persuade jurors to trust these concepts with every witness in your the testimony, documents, and other case.8 Unlike any other case, trucking evidence that you eventually will submit for litigation cases present a unique their consideration.9 Because you already opportunity to present a theme of powerful know the evidence that will come before the jury, it is critical that you not oversell or 7 Id. exaggerate your case. Instead, pick the key 8 Tell Your Story Through Opening Statements; Alllison, 9 William Effective Opening Statements; Turner, Karen 17 points that you know will not be disputed during trial. Establish those points during opening statement by promising to the jury that you will prove those points during the course of the trial. Once you have proven them, it is equally important that you remind the jury that you kept your promises during closing argument. This is a foolproof method of establishing credibility with the jury.

VI. CONCLUSION

Establishing primary liability as to the primary wrongdoer is the foremost goal in trucking litigation. However, although Texas law holds plaintiffs to fairly demanding proof requirements in order to establish liability of one who is not the primary wrongdoer, each of the doctrines examined here offers an avenue to a liability finding when the evidence is available to make the case. While there are similar elements among these theories, each differs from the others in some important respects. The careful practitioner will closely examine the evidence in her client’s case before drafting discovery in order to determine which, if any, of these doctrines might apply.

Once you have developed your theories of liability through effective discovery, create a strong, almost unshakeable impression of those theories during opening statement through the law of primacy. Because you have the privilege of going first and last during both opening statement and closing argument, once you have promised the story that the jury will hear first, confirm that the promises you made were kept when you tell the final story last. This is the most effective method of maximizing your ability to sell your client’s story to the jury and establishing credibility with the jury.