A substantial body of case law has been developed, holding shippers and transportation brokers independently liable for injuries sustained in trucking accidents based on the negligent selection of a carrier or subcarrier, even where the carrier or subcarrier has been retained as an independent contractor. See, e.g., L.B. Foster Co. v. Hurnblad, 418 F.2d 727 (9th Cir. 1969); Chinn v. Mark, Nos. L-829-06, L-1807-05 and L-2048-05, 2010 WL 374958 (NJ App. 2010); Puckrein v. ATI Transport, Inc., 897 A.2d 1034 (N.J. 2006); Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630 (W.D. Va. 2008). In each of these cases, the Court has held that section 411 of the Restatement (Second) of Torts applies to trucking, and shippers and transportation brokers are liable “for physical harm to third persons caused by [their] failure to exercise reasonable care to employ a competent and careful contractor to do work which will involve a risk of physical harm unless it is skillfully and carefully done.” Restatement (Second) of Torts § 411.
In Hurnblad, the shipper–a national steel and fabricating company–entered into a shipper-carrier contract with a carrier and the carrier brokered the load to an independent owner-operator. 418 F.2d at 728. The Court upheld a verdict finding the shipper liable for plaintiffs’ personal injuries based upon the shipper’s failure to make a sufficient inquiry into the carrier’s competence despite the fact that there was no evidence that the shipper had actual knowledge of the carrier’s incompetence. Id. at 732. The Court held the shipper to a very high standard of care because they sent out about 400 interstate shipments per month and were not just a casual shipper of goods. Id. at 731.
In Puckrein the Court denied a shipper’s Motion for Summary Judgment based upon similar facts. In this case, the shipper contracted with a carrier to transport a load under a shipper-carrier agreement and the carrier brokered the load out to an independent contractor. Puckrein, 897 A.2d 1034 at 1038. The Court proceeded to set forth the elements of the shipper’s negligent hiring claim: (i) the company that transported the load was incompetent; (ii) the harm that resulted arose out of that incompetence; and (iii) the shipper knew or should have known of the incompetence. Id. at 1042. The Puckrein court ultimately found that “even if it could be proved that [the shipper] made reasonable inquiry of the [subcarrier] at the time of its original retention, its duty did not end there.” Id. at 1044. The shipper “had a continuing duty to inquire” as to the carrier’s competence to transport its products. Id.
This growing body of case law may provide an individual seriously injured in a trucking accident with an additional source of recovery. Further, it represents an important step in ensuring the safety of our highways as it will force large companies to conduct an in depth inquiry into the competence of the individual/company that they are hiring before allowing them to carry their load. If you or someone you know has been injured in a trucking accident, please contact the experienced attorneys at Stark & Stark for a free consultation.