Defending Against Attempts to Hold CMV Drivers to a Higher Standard of Care
(May 2020) - 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. Plaintiffs’ goal is to place themselves, as “non-professional drivers,” in a considerable advantage over the “professional driver,” especially in comparative fault scenarios. Plaintiff success rates at trial would drastically increase if juries were able to consider whether a truck driver’s actions required more care and caution than “ordinary” care. The “professional driver” standard of care assertion accompanies and bolsters plaintiffs’ reptilian theme at trial that motor carriers must place only the world’s safest drivers behind the wheel.
The key to defeating this 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, which 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 plaintiffs’ 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 plaintiffs’ higher standard of care assertions. Language such as “professional driver,” “commercially trained driver,” and/or “commercial motor vehicle driver” should set off an alarm as you read the complaint. It is imperative not to admit any allegation which labels the defendant a “professional driver.” However, simply denying such allegations is not always the best route. Where the 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’s license (CDL) training, understanding of the CDL manual, as well as the Federal Motor Carrier Safety Regulations (FMCSR). 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 . . .” Defense counsel should object to such questions and the driver should be prepared 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.
Below are several cases one can rely on when defending against the professional driver standard of care:
Cervelli v. Graves, 661 P. 2d 1032 (Wyo. 1983)
The Wyoming Supreme Court held that 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)
A United States District Court held that 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)
A 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)
The U.S. District Court for the Western District of Kentucky held that professional truck drivers and other motorists are held to the same standard of care.
Dahlgren v. Muldrow, 2008 WL 186641 (N.D. Fla. Jan. 18, 2008).
The U.S. 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 are 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 misstated the law and would prejudice the defendant truck driver.
Townsel v. Dadash, Inc., 2012 Tex. App. LEXIS 3185
A Court of Appeals in 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 there was no higher or separate standard for a “professional driver.”
This article appeared in the Transportation Law Update May 2020 Newsletter.
Todd A. Gray, Managing Partner
Joseph Fiorello, Associate