Until autonomous vehicles are fully realized, fleets will need to keep driver safety high on their list of priorities. Companies retaining drivers who practice good driving behaviors will not only help improve their well-being, it also means the they have less to worry about with regard to liability.
The types of liability that fleets can face in the event of a driver crashing into another vehicle, or other kinds of dangerous automotive incidents, can come in a few forms, which includes direct liability and vicarious liability.
For example, direct liability refers to a situation in which a person or a company becomes liable to another on the basis of their own act or omission.
Under the terms of liability exist risks regarding negligence that fleets should be aware of. Indeed, liability risks fall under an umbrella of state law claims that concern negligence for the employer and vary depending on the state.
This includes negligent entrustment, which occurs when a company is held liable for negligently providing an entrustee with a “dangerous instrumentality” with which that person causes injury to a third party.
Another possible issue is negligent retention, which involves an employment related claim in which a plaintiff asserts that an employer failed to discharge an employee who management knew was acting irresponsibly. (e.g., retaining a driver that was known for having several DUIs).
Understanding the broader scope of liability can help keep fleets curb potential issues but knowing some driver-specific issues that can give way to liability may help prevent the problem from ever existing.
Driving Under the Influence
While the risks of drunk driving are a perennial concern for any driver; it is slowly being overshadowed by drugged driving. This behavior has grown in tandem with the legalization of marijuana across several states in recent years.
In 2017, a report by the Governors Highway Safety Association and the Foundation for Advancing Alcohol Responsibility found that for the first time, vehicle fatalities caused by drugged driving outnumbered vehicle fatalities caused by drunk driving.
This not only means that fleets should make sure their fleet is more attentive to potential drugged drivers, but they should also perform regular drug testing and educate their drivers on the risks of driving under the influence.
David Wallace, vice president of the Justice Speakers Institute (JSI), which is an organization that educates the public on justice issues, said considering the ongoing legalization of marijuana, fleets need to be privy of drivers in their organization who may be driving under the influence.
“Drugged driving is becoming the new drunk driving, basically,” he said. “If fleet managers are not proactive and testing that and making sure their employees are staying clean, they’re going to have a problem. With regard to marijuana, obviously one of the concerns by people is that a test for marijuana can be found in the body depending on the test, for several days, at least.”
Therefore, consistent drug testing is encouraged for companies that retain employees who are hired to perform potentially dangerous tasks. For fleets, this means their drivers being on the road.
Judge Brian MacKenzie, CFO at the Justice Speakers Institute, said that drug testing should be done before the hiring processes and periodically during employment.
“You want to know going in that a person is not a problem, that’s why you want to run a records check on them to see if they’ve been arrested for drug or alcohol related offenses,” MacKenzie said. “And I’m not saying you shouldn’t hire someone that has a history for this offense, but you should know they’ve dealt with their history. So, you really want to start with a comprehensive look at the employee, that includes both testing and looking at their history.”
The way testing is done can vary by state, however. Since there are no federal restrictions for drug and alcohol testing in the workplace, an employee’s right for testing is left to state law, according to JSI.
“Some states sharply limit testing and others broadly allow it. Given the patchwork of state laws most employers have adopted a ‘reasonable suspicion’ standard for drug and alcohol testing,” according to JSI. In short, the employee must be witnessed having used drugs or alcohol, depending on what they are being tested for.
Wallace said there are several ways that fleets can test for marijuana.
“For marijuana, there are two main ways to test for it, either urine or blood. And in a criminal system, for drugged driving we always use blood,” said Wallace. “That’s because marijuana does not stay in the blood system as long. And so, if it’s in the blood in the form of THC, that’s fairly recent usage, whereas, with urine it stays in the body longer.”
Other ways fleets can identify if their drivers have a history of marijuana is through saliva testing, Wallace added.
Meanwhile, a new device is being developed that can detect whether a driver has smoked marijuana in the last two hours, which is a peak impairment timeframe, according a report from NPR. The device is designed to determine if THC is in a person’s breath. It can also double as an alcohol breathalyzer, providing law enforcement officials with a dual-tool for detecting intoxicants.
Being able to spot any problematic habits from prospective employees will better help fleets make better decisions during the hiring process.
“Maybe you don’t want to hire somebody who uses marijuana every day to drive a truck that could endanger people’s lives,” said MacKenzie. “People make choices. Many people who use drugs or alcohol issues can function with those issues, as long as they have a job that doesn’t put other people at risk. I would argue that we should understand that this is a disease and react accordingly.”
Fleets with drivers who are not well-rested can also open up potential liability risks.
Indeed, a study from the AAA Foundation for Traffic Safety earlier this year found that 9.5% of drivers involved in crashes were classified as drowsy.
Another recent study from the Centers for Disease Control and Prevention (CDC) found that individuals who typically slept six or fewer hours per night were more likely to report falling asleep behind the wheel. CDC also found that commercial drivers who operate vehicles such as tow trucks, tractor trailers and buses, are also more likely to drive drowsy.
Wallace of JSI noted that drowsiness can be difficult for fleets to track, but he mentioned that proper education about the effects of drowsy driving can curb the problem.
“There is a combination of things that fleet managers need to do,” he said. “One, as always, is to educate. Companies don’t do that enough. They test the policies and test the rules, but they don’t educate drivers on their significance. They don’t tell them why it’s important.”
Being in tune with the overall health of drivers can also help remediate this issue.
“If we’re looking at it as a health issue, and for example they have narcolepsy, you want to know that,” said MacKenzie of JSI. “This isn’t a moral issue, its a health issue, and it’s an issue that involves the safety of people on the road. If you do your due diligence and it turns out you hired someone who you legitimately tried to find out they suffered from certain conditions and did not know, and they didn’t know either, then you’re not going to be as open to liability as you would be otherwise.”
Beyond what driver’s can do to prevent fatigue, fleets need to also factor in how they schedule their drivers.
“Fleet managers are scheduling when their drivers are driving,” said Wallace. “They’re controlling how much time drivers are on the road, and so, making sure that the hours that are required to drive still leaves the person enough time to eat and sleep at the very least. If fleet managers are not allowing that kind of opportunity, and requiring extensive overtime because they’re shorthanded, they are creating the problem themselves.”
And if fleets are scheduling their drivers at night, more risks become apparent. According to the same AAA study, drowsiness varied significantly in relation to lighting conditions. Moreover, half of the crashes that involved drowsiness occurred in darkness.
“For a person who is driving at night, sleep rhythms can be changed, but we tend to be more likely to be asleep when it’s dark. So, the question you’re facing here is what are your policies with regard to this?” said MacKenzie. “Business in the country seems to have gone into a 24-hour cycle. But, when you go to those cycles, take into account what it means. And do things to protect the company.”
It comes down to making sure that continued monitoring and training are taking place by fleet managers. This helps keep the managers reduce their risk through continued education and keeps them privy to the drivers health
“You can hire somebody who starts out really well, and develops, for example, a hearing issue,” said MacKenzie. “That’s not their fault, but that becomes an issue that you have to deal with. And you really need to make sure that you train and monitor the entire time, because just because somebody is good at the start, doesn’t always mean they’re going to run that way.”
Personal Use or Reimbursed Vehicle
Knowing more about the driver’s and their fleet vehicles is also a key way to spot potential liability risks.
For example, if drivers are involved in a personal-use program, or are being reimbursed for driving their own vehicle for work duties, fleets should recognize risks related to this to eliminate future problems.
“The unique thing about providing a company car is that once you provide a company car, it’s very difficult to retract this,” said Rich Tillotson, VP of business development for Corporate Claims Management.
For example, considering the relationship between a company provided vehicle and the driver.
“Once that driver has that company car, more than likely, a lot of people in the household will use it,” he said. “Fleets usually have policies against who can and cannot use the vehicle, but sometimes they don’t. The problem with it is that the car is a company-owned vehicle. So whatever happens to that vehicle, be it an accident or an injury to whomever, there is an exposed liability for the company.”
What it comes down to is having a clearly written driver policy regarding personal use and reimbursement.
“If the policy is written properly for the reimbursement, you can pretty much alleviate company exposure and risk or injury or anything else, unless the driver does it on company time,” he added.
Being as specific as possible within the policy will help remediate any issue that can arise from this.
“Be very specific, very targeted (with the policy). So in the event the employee violates that and something occurs, at least the company has some legal footing to go back to,” he said. “The undefined is what the scary part of litigation is. Litigation is usually functioning in the gray. It’s not black and white.”
Consistent Driver Engagement
As mentioned previously, the key solution to many of the aforementioned issues is the regular monitoring of driver behaviors, habits, and actions. No matter what the issue is, the root for a solution is making sure that drivers and fleets are on the same page in terms of the fleets policy and exceptions.
“So by having a policy and have training and monitoring and enforcing where appropriate, they are taking huge steps to making sure they are not raising risk for the company,” said Wallace. “If there is a problem they notice in the monitoring, it comes back to educating. They’re engaging the employees, the drivers, with why it’s important. They educate to say ‘Here’s why.’ Then train, make sure they’re doing it. Making sure they follow through. And that’s not a onetime thing. That is a process that must continuously happen on a regular basis. So that way then the traffic safety culture is truly created and understood why it’s important.”
And while fleets won’t be able to catch everything that can pose an issue, if fleet managers are proactive, liability opportunities will decrease.
“You want to at least say you did your due diligence,” said MacKenzie. “And sometimes you may want to dig a little deeper, an extra half hour of work could save your company millions.”