Potential personal liability of trucking company owners and officers for improper dispatching
While there are no published decisions adopting this position, it is theoretically possible to hold trucking company owners and officers personally liable for their personal participation in dispatching drivers on trips that cannot possibly be lawfully completed.
Violations of Federal Motor Carrier Safety Regulations provide applicable standards of care, breaches of duty, and evidence of negligence, specifically including:
49 C.F.R. § 390.13: “No person shall aid, abet, encourage, or require a motor carrier or its employees to violate the rules of this chapter.”
49 CFR 390.5: “Person means any individual, partnership, association, corporation, business trust, or any other organized group of individuals.”
49 CFR 392.3: “No driver shall operate a motor vehicle, and a commercial motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver’s ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the commercial motor vehicle.”
49 C.F.R. § 395.3 (2003 version): “Except as provided in §§ 395.1(b)(1), 295.1(f), and 395.1(I), no motor carrier shall permit or require any driver used by it to drive not shall any such driver drive: (1) More than 10 hours following 8 consecutive hours off duty; or (2) For any period after having been on duty 15 hours following 8 consecutive hours off duty.
Violations of Federal Motor Carrier Safety Regulations establish standards of care upon which a jury should be instructed in negligence actions. . See, e.g., Weaver v. Chavez, 133 Cal.App.4th 1350, 35 Cal.Rptr.3d 514 (Cal.App. 2 Dist., 2005); Donaldson v. J.D. Transportation Co., Inc., 2005 WL 1458230 (Tx. App. 2005); Payne v. Cornhusker Motor Lines, Inc., 2005 WL 1867727 (Mo.App. 2005); Ngueyn v. Arce, 34 Fed.Appx. 879, n. 4 (4th Cir., 2002)(not selected for publication); Green v. Prouty, 2001 WL 1773871 (Ohio App. 5 Dist., 2001); Muehlhauser v. Erickson, 621 N.W.2d 24 (Mn. App., 2000); Hagan v. Gemstate Manufacturing, Inc., 328 Or. 535, 982 P.2d 1108 (1999); Harmon V. Grande Tire Co., Inc., 821 F.2d 252 (5th Cir., 1987); Osborne Truck Lines, Inc., V. Langston, 454 So.2d 1317 (Ala. 1984); Gorby v. Schneider Tank Lines, Inc., 741 F.2d 1015, 39 Fed.R.Serv.2d 1217, 17 Fed. R. Evid. Serv. 97 (1984). In appropriate cases FMCSR violations may also be charged as negligence per se or negligence as a matter of law. In Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005), the court held that violation of the FMCSR driver log requirement is negligence as a matter of law. If the driver’s violation is negligence per se, there is certainly a good faith argument that the acts of the company owners who aid and abet the violation by dispatching the driver under circumstances that the violation must occur also constitutes negligence per se. See also, North American Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 123-4 (Tx. App. 2001); Crooks v. Sammons Trucking, Inc, 2001 WL 1654986 (Cal.App. 3 Dist. 2001)(unpublished opinion); cf., J.R. Mabbett & Son, Inc. v. Ripley, 185 Ga.App. 601, 365 S.E.2d 155 (1988). In addition, FMCSR violations may be considered as foundations for award of punitive damages in appropriate cases. See, e.g., Trotter v. B & W Cartage Co., Inc., 2006 WL 1004882 (S.D.Ill., 2006); Came v. Micou, 2005 WL 1500978 (M.D.Pa., 2005).
Georgia cases outside the trucking context support the principle of personal liability of corporate officers for their personal acts and omissions. In Moore v. Barge, 210 Ga. App. 552, 436 S.E.2d 746 (1993), the court wrote:
Although shareholders or officers in a corporation enjoy a limited liability, they may be held liable individually for their own tortious or wrongful acts. Zagoria v. DuBose Enterprises, 163 Ga.App. 880, 886, 296 S.E.2d 353 (1982), rev’d on other grounds, 250 Ga. 844, 302 S.E.2d 674 (1983); Wrigley v. Nottingham, 111 Ga.App. 404, 406, 141 S.E.2d 859, rev’d in part on other grounds, Nottingham v. Wrigley, 221 Ga. 386, 144 S.E.2d 749 (1965). “One who is sued in his personal capacity, whether the alter ego, an officer or agent of a corporation, may not escape personal liability for his tortious misconduct damaging employees or third persons by hiding behind the corporate veil even in those situations where the corporation might also be a proper party to the action.” Wrigley, 111 Ga.App. at 406, 141 S.E.2d 859. (210 Ga. App. at 553)
In Beasley v. A Better Gas. Co., 269 Ga. App. 426, 604 S.E.2d 202 (2004), a fatal gas fire occurred two years after the gas company’s employees made an installation, and the gas line was later damaged, constituting an intervening proximate cause. There was no evidence that the president of the gas company had an individual role. While finding no liability under those facts, the court noted:
The general rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done or participated or co-operated therein. . . . Cherry v. Ward, 204 Ga.App. 833, 834(1)(a), 420 S.E.2d 763 (1992). Where “the evidence is insufficient to pierce the corporate veil … the liability of the corporate officers for a tort committed by the corporation is dependent upon separate evidence of direct participation in the tort.” (Citation and emphasis omitted.) Speir v. Krieger, 235 Ga.App. 392, 400(4), 509 S.E.2d 684 (1998).
Of course, discovery of the facts of an owner’s or officer’s personal participation in dispatching drivers to make runs that cannot be completed without violation of FMCSR’s is difficult, and persuading a judge to adopt this line of reasoning may be difficult. But it could happen.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.