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(July 2021) – The overwhelming
authority nationwide suggests that commercial motor vehicle drivers
are held to the same standard of care as all other drivers –
ordinary negligence. However, that has not stopped plaintiffs’
attorneys from aggressively asserting that “professional
drivers” should be held to a higher standard of care. The
plaintiffs’ goal is to place the “non-professional
driver” in a considerable advantage over the
“professional driver.” Plaintiffs’ success rate at
trial would drastically increase if a jury was able to find that
the truck driver did not demonstrate ordinary negligence, but that
his or her actions fell below the standard of care of a
professional driver. The professional driver standard of care
assertion accompanies plaintiffs’ reptilian arguments that
motor carriers must place only the world’s safest drivers
behind the wheel.
The key to defeating a plaintiff’s higher standard of care
argument is to identify it early and aggressively defend against
it, while alerting the court that no such higher standard
exists.
Plaintiffs’ attorneys have been asserting this argument for
years, but such efforts have significantly ramped up following the
Wisconsin Supreme Court’s 2015 decision finding no error in
the trial court’s jury instruction that reflected a higher
standard of care for commercial motor vehicle drivers.
See Dakter v. Cavallino, 866 N.W. 2d 656 (Wis. 2015).
The jury instruction at issue provided:
At the time of the accident, the defendant . . . was a
professional truck driver operating a semi tractor-trailer pursuant
to a commercial driver’s license issued by the state of
Wisconsin. As the operator of a semi tractor-trailer it was the
[defendant’s] duty to use the degree of care, skill and
judgment which a reasonable semi truck driver would exercise in the
same or similar circumstances having due regard for the state of
learning, education, experience, and knowledge possessed by semi
drivers holding commercial driver’s licenses. A semi truck
driver who fails to conform to the standard is negligent. The
burden is on the plaintiff to prove that [the defendant] was
negligent.
Fortunately, the above decision is an outlier; however, it is
critical for defense counsel to be aware of a plaintiff’s
attempts to set forth the higher standard so that Dakter
never gains significant traction.
As you read each complaint in a transportation case, you should
be on the lookout for a plaintiff’s higher standard of care
assertions. Language such as “professional driver,”
“commercially trained driver,” and/or “commercial
motor vehicle driver” should set off an alarm. It is
imperative to not admit any allegation which labels the defendant a
“professional driver.” However, simply denying such
allegations is not always the best route. Where a complaint paints
our driver as a “professional driver,” a motion to
strike is warranted. Before filing an answer, a motion to strike
should be considered. This will allow you to inform the judge at
the outset that there is no heightened standard of care for
commercial motor vehicle drivers. Even if the motion is
unsuccessful, the judge has been alerted that the overwhelming
authority does not support a heightened duty, and the court is
aware that this issue will likely be re-visited.
It is also critical to object to written discovery labeling the
defendant-driver as a “professional driver” or
“commercial driver.” Any request for admission seeking
admittance that the driver was a “professional driver”
should be denied.
The defense attorney also needs to prepare his driver and
trucking company personnel for the higher standard of care argument
prior to depositions. Plaintiffs’ attorneys will try to set the
driver up by walking through his driver training, Commercial Driver
License (CDL) training, understanding of the CDL manual, as well as
the Federal Motor Carrier Safety Regulations (FMCSRs). Defense
counsel must object to each question setting the stage for a
“professional driver” jury instruction at trial, and a
defendant-driver must be thoroughly prepared to answer questions
which include references such as, “As a professional driver .
. .” or “As a commercial driver . . .” Counsel
should object to such questions and the driver should be prepared
to testify that all drivers on the road are held to the same
standard. Thorough preparation and objections will thwart a
plaintiff’s attempt to combine the reptile theory with the
higher standard of care.
Plaintiffs will undoubtedly try to establish the higher standard
of care through their retained Department of Transportation (DOT)
experts. In recent years, experts have become increasingly brazen
in setting forth the alleged heightened standard. In a recent trial
we had in Bexar County, Texas, the plaintiff’s DOT
expert’s report provided the following:
- The professional driver must be a defensive driver. This means
to drive in such a way that the driver commits no errors, and so
controls the vehicle to make adjustments for changes in road,
weather, and traffic conditions, and the actions other drivers make
so they will not involve or trap them in a collision. - The responsibility of a professional commercial motor vehicle
driver to avoid collisions goes beyond mere compliance with traffic
laws. - Commercial motor vehicle drivers must use common sense, always
work at the highest level of alertness and have the training and
experience to avoid dangerous situations.
Following the deposition of an expert who claims a higher
standard of care, it is essential to file a motion to preclude the
expert’s testimony. Further, you will need a defense DOT
expert to assert that there is no higher standard. Lastly, you will
want to follow up with a motion in limine to preclude any reference
whatsoever by the expert, counsel, or any other witness concerning
the alleged heightened standard.
Several cases you can rely on in defending against the
professional driver standard of care are detailed below:
Cervelli v. Graves, 661 P. 2d 1032 (Wyo.
1983)
The Wyoming Supreme Court held it would be improper to hold a
professional truck driver to a higher standard of care.
“Plaintiff . . . would have us treat this as a professional
truck driver’s malpractice case. That we will not do.”
Id., at 1038.
Fredericks v. Castora, 360 A. 2d 696 (Pa. Super Ct.
1976)
The Superior Court of Pennsylvania refused to give a jury
instruction that included a higher degree of care for truck
drivers.
Cahalan v. Rohan, 2004 WL 2065056 (D. Minn. Sept. 2,
2004)
United States District Court held Minnesota imposed one standard
of care for all drivers – ordinary negligence. Minnesota
refused to recognize a standard of care for professional drivers
that differed from all other drivers.
Tavorn v. Cerrelli, et al., 2007 WL 2189075 (Mich. Ct.
App. July 31, 2007)
Michigan Court of Appeals denied the plaintiff’s request
for a jury instruction detailing a standard of care for commercial
truck drivers. The court stated this was “an ordinary traffic
accident with an ordinary question: was the truck driver negligent
in turning when he did rather than yielding the right-of-way and
waiting for the bus to pass.” The court noted that although,
as the plaintiff asserted, it may take a tractor-trailer longer to
complete a turn, that did not change the duty of the truck driver.
The duty remained one of ordinary care.
Southard v. Belanger, 966 F. Supp. 2d 727 (W.D. Ky.
2013)
United States District Court of Kentucky held professional truck
drivers and other motorists were held to the same standard of
care.
Dahlgren v. Muldrow, 2008 WL 186641 (N.D. Fla. Jan.
18, 2008).
United States District Court for the Northern District of
Florida granted the defendant’s motion in limine precluding
the plaintiff from making any statements or inferring that
commercial motor vehicle operators were held to a higher standard
of care, as well as barring any jury instruction to that effect.
The court held that a truck driver was held to an ordinary standard
of care and that permitting the plaintiff to argue otherwise would
misstate the law and prejudice the defendant truck driver.
Townsel v. Dadash, Inc., 2012 Tex. App. LEXIS
3185
Court of Appeals of Texas held that the trial court correctly
denied the plaintiff’s proposed jury instruction that read
“a professional tow truck driver is held to the same standard
of care that would be exercised by a reasonably prudent
professional tow truck driver acting under the same or similar
circumstances.” The court determined that there was no higher
or separate standard for a “professional driver.”
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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