As a trucking accident trial lawyer, I occasionally see trucking companies try to evade responsibility for their driver. Generally, that is covered adequately by 49 C.F.R. § 390.5 which in the interstate trucking context defines “employee” to include “an independent contractor while in the course of operating a commercial motor vehicle.”
But when a really devious trucking company comes up with a scheme to try to evade that responsibility, we can fall back on what courts used before enactment of that “statutory employee” rule.
Before 1956, courts could rely upon the Restatement rule that, “An individual or a corporation carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for physical harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Restatement (Second) of Torts § 428.
Some of the cases that can be cited on this point are Black v. Montgomery Trucking Co., Inc., 129 Ga.App. 36,(followed Restatement rule), reversed on other grounds without mention of either Restatement rule or federal statutes or regulations, 231 Ga. 211 (1973)(compare Dove v. National Freight, Inc., 138 Ga.App. 114 (1976)); Venuto v. Robinson, 118 F.2d 679 (3rd Cir., 1941)( Restatement 428 applied to hold interstate motor carrier liable for negligence of independent contractor driver); Hodges v. Johnson, 52 F.Supp. 488 (D.C.VA. 1943); War Emergency Co-op. Ass’n v. Widenhouse, 169 F.2d 403 (4th Cir. 1948); Lehman v. Robertson Truck-A-Way, 122 Cal.App.2d 82, 264 P.2d 653 (Cal.App. 3 Dist. 1953); Louis v. Youngren, 12 Ill.App.2d 198, 138 N.E.2d 696 (Ill.App. 1 Dist., 1956); Eli v. Murphy, 39 Cal.2d 598, 248 P.2d 756 (Cal, 1952)(nondelegable duty of motor carrier to public).
The Shigley Law Firm, LLC, in Atlanta, Georgia, focuses on trucking litigation. Ken Shigley is a Certified Trial Advocate of the National Board of Trial Advocacy, a member of the Advisory Committee of the Association of Interstate Trucking Lawyers of America, former chair fo the Southeastern Motor Carrier Liability Institute, and Secretary of the State Bar of Georgia.