MoBar CLE Masters Series:
Transportation Law
Evidentiary Issues in transportation law
Moderator: Ted Agniel,
Greensfelder, Hemker & Gale, P.C.
Speakers: Morry Cole,
Gray, Ritter & Graham, P.C.
And
Dale Weppner
Greensfelder, Hemker & Gale, P.C.
Speaker Notes by: Morry S. Cole
B--1
1
TABLE OF CONTENTS
negligent hiring and entrustment Claims………………………………………………… 2
Negligent Entrustment (2)
Negligent Hiring, Retention, and Supervision (3)
Defenses (4)
Evidentiary Bases for Claims of negligenCe per se………………………………………. 5
Generally
Regulatory Standards
FMCSA Violations
evidenCe from the event data reCorder (edr)…………… ……….……………………… 6
Technology Primer (6)
Steps a Plaintiff’s Attorney Must Make (6-7)
Downloading Information from the EDR (7)
Table (8)
sample download protoCol…………………………………………………………………………. 9
uninsured motorist’s waiver of non-eConomiC damages………….………..….. 10
Missouri Statute, RSMo s. 303.390
summary……...…………………………………………………………………………………………………… 11
B--2
2
How to make a submissible case on Negligent Hiring and
Entrustment Claims
Negligent Entrustment
In order to recover under a theory of negligent entrustment the plaintiff must show:
(1) the entrustee is incompetent,
(2) the entrustor knew or should have known of the entrustee’s incompetence;
(3) there was an entrustment of the chattel; and
(4) the negligence of the entrustor concurred with the conduct of the entrustee as a
proximate cause of the harm to the plaintiff.
Evans v. Allen Auto Rental & Truck Leasing Co., 555 S.W.2d 325, 326 (Mo. Banc 1977). A
negligent entrustment action can be used to impute negligence to an employer from its
employee’s conduct in a way similar to the doctrine of respondeat superior1; however, the plaintiff
1 In order to recover under a theory of respondeat superior, the plaintiff must show (1) an employer-
employee relationship; (2) existed at the time, date, and place and under the circumstances of the
plaintiff’s claim; (3) reliance by the plaintiff on the acts or omissions of the employee; and (4) the
B--3
3
is not required to prove that the employee was acting within the scope of his or her
employment. See McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo.banc 1995).
Negligent Hiring, Retention, and Supervision
The Missouri Supreme Court set out the elements and general rules for how to recover
under a theory of negligent hiring in McHaffie By and Through McHaffie v. Bunch, 891 S.W.2d
822 (Mo. 1995).
In order to recover under a theory of negligent hiring, the plaintiff must show:
(1) the employer knew or should have known of an employee’s dangerous proclivities;
(2) the employee was hired (or retained in employment);
(3) the employer’s negligent act or omission was the proximate cause of an injury
sustained by the plaintiff at the hands of the employee; and
(4) the employee’s misconduct was consistent with the employee’s dangerous
proclivity.
See id. Claims of negligent retention and negligent supervision are often brought with claims of
negligent hiring. See Gibson v. Brewer, 952 S.W.2d 239 (Mo. Banc 1997); Reed v. Kelly, 37
S.W.3d 274 (Mo. Ct. App. 2000); Conroy v. City of Ballwin, 723 S.W.2d 476 (Mo.App.1986). If the
employer then retains the employee, then he may be liable for negligent retention, which has
the same elements as negligent hiring. See Gibson, 952 S.W.2d at 246 (Mo. Banc 1997).
Additionally, a plaintiff may be able to recover under a claim of negligent supervision if:
(a) the servant
i. is upon the premises in possession of the master or upon which the servant is
privileged to enter only as his servant, or
ii. is using a chattel of the master, and
(b) the master
i. knows or has reason to know that he has the ability to control his servant, and
ii. knows or should know of the necessity and opportunity for exercising such
control.
Reed v. Kelly, 37 S.W.3d at 278. Thus, this cause of action also requires evidence that would
cause the employer to foresee that the employee would create an unreasonable risk of harm
outside the scope of his employment. Id.
employee acted within the scope of the employment or the scope of the agency. See Studebaker v.
Nettie’s Flower Garden, Inc., 842 S.W.2d 227, 229 (Mo. Ct. App. E.D. 1992). The test for whether
respondeat superior applies is whether the person sought to be charged as the master had the right or
power to control and direct the physical conduct of the other performance of the act. Id.
B--4
4
Defenses
In McHaffie, the Missouri Supreme Court established the general rule that ‚once an
employer has admitted respondeat superior liability for a driver’s negligence, it is improper to
allow a plaintiff to proceed against the employer on any other theory of imputed liabilty.‛ See
id at 826. Therefore, if a plaintiff alleges theories of respondeat superior, negligent entrustment,
and negligent hiring against an employer for its employee’s actions and the employer admits
respondeat superior liability, the plaintiff cannot also present evidence on negligent entrustment
and negligent hiring.
Though McHaffie had been clear that evidence of all three theories would be irrelevant
and prejudicial to the jury (see id.), Missouri courts were divided on whether or not the plaintiff
could allege the elements of each theory in its complaint. See Brown v. Larabee, No. 04-1025-
CV-W-HFS; 2005 WL 1719908, at *2 (W.D.Mo. July 25, 2005) (granting a motion to dismiss
negligent hiring claim against an employer who had admitted to respondeat superior liability);
Hoch v. John Christner Trucking, Inc., No. 05-0762-CV-W-FJH, 2005 WL 2656958, at *2
(W.D.Mo. Oct. 18, 2005) (stating that ‚once a defendant admits vicarious liability for actions of
its employee/agent, negligent hiring/training/entrustment claims serve no real purpose‛); But
see, Cisco v. Mullikin, No. 4:11 CV 295 RWS, 2012 WL 549504, at *1 (E.D.Mo. Feb. 21, 2012)
(holding that McHaffie does not prevent Cisco from alleging negligent hiring, entrustment,
training and supervision claims); Kwiatkowski v. Teton Transportation, Inc., 2012 WL 1413154
(W.D.Mo. 2012) (recognizing a punitive damages exception to McHaffie after discussing the split
in federal authority and noting the absence of any Missouri decisions on the issue.)
Recently, however, the Missouri Court of Appeals in the Western District held that there
is an exception for claims for punitive damages to the general rule barring direct negligence
claims against an employer who has already admitted vicarious liability. Wilson v. Image
Flooring, LLC, 400 S.W.3d 386, 393 (Mo. Ct. App. 2013), reh'g and/or transfer denied (Apr. 30,
2013). The Court further noted that in order to invoke the punitive damages exception, a
plaintiff must specifically plead facts supporting a claim for punitive damages. Id. Therefore, a
plaintiff must plead punitive damages specifically in its petition in order to present evidence on
its claim for negligent hiring if an employer has already admitted respondeat superior liability.
B--5
5
Evidentiary bases for claims of Negligence Per Se
Generally
Four requirements must be met to establish a claim for negligence per se: 1) a violation
of a statute or ordinance; 2) the injured party must be within the class of persons intended to be
protected by the statute or ordinance; 3) the injury complained of must be of the nature that the
statute or ordinance was designed to prevent; and 4) the violation of the statute or ordinance
must be the proximate cause of the injury. Business Men's Assur. Co. v. Graham, 891 S.W.2d
438, 455 (Mo.App.1994). Additionally, Missouri courts have narrowly construed the
requirement that the injury be of the type the statute was intended to prevent.2
Negligence per se arises where the legislature pronounces in a statute what the conduct
of a reasonable person must be, whether or not the common law would require similar conduct,
and the court then adopts the statutory standard of care to define the standard of conduct of
reasonable person. Lowdermilk v. Vescovo Bldg. & Realty Co., Inc., 91 S.W.3d 617, 628 (Mo. Ct.
App. 2002) (quoting Restatement Torts (Second) sections 286, 288 (1965)).
Regulatory Standards
The courts of this state shall take judicial notice, without proof, of the contents of the
code of state regulations. Mo. Ann. Stat. § 536.031. Generally, courts cannot take judicial notice
of an administrative regulations, but evidence of administrative regulations ‚can become of
record by formal identification, offer and receipt‛ into evidence. See Prokopf v. Whaley, 592
S.W.2d 819, 823 (Mo. banc 1980).
Violation of the Federal Motor Carrier Safety Act as Negligence Per Se
Missouri courts allow evidence of violations of motor carrier regulations to support a
plaintiff’s claim of negligence per se where Missouri has adopted a penal statute in accordance
with the regulation. See King v. Morgan, 873 S.W.2d 272, (Mo. Ct. App. 1994). A penal statute
may be pleaded as a standard of care in a negligence action if (1) The injured party is in the class
of persons for whose protection the statute was enacted; and (2) The statute was enacted to
protect persons or property, conserve public health, or promote public safety. Id. at 275 (citing
Moore v. Riley, 487 S.W.2d 555, 558 (Mo.1972); State ex rel. Wells v. Mayfield, 365 Mo. 238, 246–
47, 281 S.W.2d 9, 13 (banc 1955)).
2 For example, the court in Sayers v. Haushalter, 493 S.W.2d 406 (Mo. Ct. App. 1973) ruled that a rabies
prevention ordinance, which required dog owners to limit the movement of dogs that had previously
bitten someone, was inapplicable to the facts. In Haushalter, the defendant dog owners took their dog next
door at their neighbors' invitation. The dog attacked the plaintiff. Because the dog was not "running at
large" as the term was used in the ordinance, the ordinance did not apply to the facts of the case.
B--6
6
If a penal statute meets these criteria, a violation of that statute, as in the case of a non-
penal statute, constitutes actionable negligence per se if the following four elements are met: (1)
There was, in fact, a violation of the statute; (2) The injured plaintiff was a member of the class
of persons intended to be protected by the statute; (3) The injury complained of was of the kind
the statute was designed to prevent; and (4) The violation of the statute was the proximate
cause of the injury. Eckert v. Thole, 857 S.W.2d 543, 545 (Mo.App.1993).
Violations of FMCSRs can support submission of a claim of negligence per se. For
example, violation of the FMCSR driver log rule is negligence of a matter of law, but that the
plaintiff must present evidence of a causal relationship between the violation and the wreck. See
e.g., Hill v. Western Door, 2005 WL 2991589 (D.Colo.,2005).
How evidence from the Event Data Recorder (EDR) can be used to
make a submissible case
A Technology Primer
Trains, Airplanes, Motor Vehicles, and Motor Vehicle Carriers possess varying types of
data recording devices, commonly referred to as ‚black boxes,‛ that are helpful in obtaining
information surrounding a collision. Each mode of transportation is now required by federal
regulations to store certain types of data in a standardized way; however, the information
available varies between the mode of transportation and the differing makes and models within
the mode of transportation. Additionally, the technical names for the black boxes will differ
according to the manufacturer.
B--7
7
How EDR Can Help (or Hurt)
EDR information can serve as a ‚witness,‛ that is unbiased to provide information to
prove a submissible (and winning) case.
Steps a Plaintiff Attorney Must Take
In the event that a client is involved in an accident, the attorney should take steps to
preserve the data recorded if it is available.
1. Immediately send a spoliation of evidence letter (perhaps by hand delivery).
2. Either reach a written agreement with parties to the accident or file an immediate
protective order in order to preserve the data.
3. Document who has custody of the vehicle and seek a court order strictly limiting access
or movement of the vehicle and data recorder unit prior to inspection by the attorney or
his experts.
4. Specifically request the data, and any other automatically recorded on-board data, from
the defense and the insurance carrier.
5. Gather data recording information from vehicles traveling immediately in front of or
behind the automobile involved in the accident, if relevant and available.
6. Schedule a download pursuant to a written protocol.
Downloading information from the EDR
There are decisions to be made with respect to "altering" the ECM Data after an
Accident.
Should the vehicle be move under its own power?
Should power be removed?
If the vehicle has already been driven after the accident , does it matter?
Should a download be attempted on a heavily damaged vehicle? If so how?
Can the appropriate circuits be repaired?
Can the module be removed and downloaded?
Does downloading alter the data?
Can the module be removed to preserve the data?
The answers vary depending on a) the particular truck and ECM, b) the type of crash
and c) what happened to the vehicle/engine during and following the accident.
B--8
8
Many trucks have other electronics that should also be considered.
Is there data in the ABS or Stability control systems?
Does the truck have an airbag system?
Does the truck have a GPS unit and if so what type?
Does the truck have electronic logs, Qualcomm or a similar system
Does the truck have any collision avoidance systems such as VORAD?
Does the trailer have any electronic systems? If so what type?
EXAMPLES OF CAPTURED DATA
Required Data Additional Voluntary Data
Event Data
Recorder (EDR)
in Motor
Vehicles
49 C.F.R. § 563.7
-Delta-V
-Max. Delta-V
-Time, max. delta-V
-Speed
-Engine throttle, % full (or accelerator
pedal, % full)
-Service brake, on/off
-Ignition cycle
-Safety belt status, driver
-Frontal air bag warning lamp, on/off
-Frontal Air Bag Deployment information
-engine RPMs
-ABS activity
-Vehicle roll angle
-Stability control
-Steering input
-Safety belt status, right passenger
-Side Air Bag Deployment information
-Seat track position
-Occupant size classification
-tracking communication systems
-mobile resource management systems
-telematic systems
-vehicle-use histograms
-vehicle position history
-live sensor data streams (Parameter IDs, DTCs,
sensor data snapshots, and sensor data logs)
(VORAD vehicles monitor other vehicles in addition
to the host vehicle)
On-Train
Monitoring
Recorder
(OTMR) in
Locomotives
49 C.F.R. § 229.135
-Train speed
-Selected direction of motion
-Time
-Distance
-Throttle position
-Applications and operation of the train
automatic air brake
- Applications and operation of the
independent brake
-Application and operation of the
dynamic brake
-Cab signal aspects
-GPS coordinates
-On/off rail detection
-Permission to enter railway
-Proximity reporting
-Voice recording
-Video recording
-Accelerometer
Flight Data
Recorders (FDR)
in Airplanes
14 C.F.R. § 121.343
-Time
-Altitude
-Airspeed
-Vertical Acceleration
-Heading; and
-Time of each radio transmission either to
or from air traffic control
-Pitch attitude
-Roll attitude
-Longitudinal acceleration
-Control Column or Pitch Control Surface Position;
and
-Thrust of Each Engine
-Control wheel or lateral control surface position
-Rudder pedal or yaw control surface position
-Position of each thrust reverser
-Trailing edge flap or cockpit flap control position
-Leading edge flap or cockpit flap control position.
B--9
9
Sample Protocol for Downloading Module
Objectives: To download the 2008 Ford F150 PCM.
General Guidelines
1. There will be a sign-in sheet at the inspection site. All individuals at the site must provide
their name, company, address, phone number and representation. No one will be permitted to
participate without a signature on the sign-in sheet. A copy of the sign-in sheet will be sent to
each individual present.
2. All persons participating in the examination will be responsible for providing and using
appropriate personal protection equipment such as safety glasses, gloves, boots, etc.
3. The use of video cameras is permitted provided they have no audio recording.
4. All testing, inspection, and evidence removal will be done in the company of all parties
present at the inspection. Only one item of evidence will be inspected at any given time.
5. Any evidence that is determined to need further examination, testing, or preservation will be
removed from the car with the approval of all parties. An agreement will be in place prior to the
inspection regarding who will take custody of any such evidence.
6. In the event it is not possible to adhere to this protocol, it may be modified on site by
unanimous agreement of all parties present at the inspection.
General Inspection of Vehicle to Determine Proper Download Method
1. Do not turn the ignition on at any point until instructed to by the protocol.
2. Determine that there is sufficient electrical power available in the vehicle by checking visually
and with a meter. 12 volt vehicle battery voltage is required during the entire download
process. Check to see how damaged the wiring in the vehicle is. Check to see if the cables are
still plugged into the PCM module. It should be located on the lower passenger side cowl panel.
3. If there is not enough battery power or power through DLC go straight to direct to PCM
download. If the wiring isn’t damaged we can use a battery pack to supply power.
DLC Download
1. Connect the computer to the CDR Interface Module using a serial cable.
2. Connect the Ford PCM Adapter (F-00K-108-221) to the 15 pin connector on the CDR Interface
Module. If needed use the 6 ft extension cable.
3. Connect the DLC cable (F-00K-108-287) to the PCM adapter or to the extension cable if it is
used.
4. Connect DLC cable to the vehicle’s OBD II connector if doing a DLC download.
5. Once connected, ensure that the green ‘ready’ light on the PCM adapter is illuminated. At this
time turn on the vehicle’s ignition switch to the run position.
6. Turn on the CDR program. Create a new file and enter in the appropriate information.
Download the PCM.
B--10
10
7. Watch for the three downloads passes to be complete and note any error messages that are
displayed. Save the data after the download is complete.
8. Once completed with downloading the PCM data, turn the ignition switch off, remove power
to the PCM adapter and disconnect the PCM interface or DLC cable.
Direct to Module Download
1. Connect the computer to the CDR Interface Module using a serial cable.
2. Connect the Ford PCM Adapter (F-00K-108-221) to the 15 pin connector on the CDR Interface
Module. If needed use the 6 ft extension cable.
3. Connect the PCM cable (F-00K-108-223) to the PCM adapter or to the extension cable if it is
used.
4. Connect the other end of the PCM cable directly to the appropriate connector on the PCM.
Ensure that the connector is securely pressed into the connector on the PCM.
5. Plug in the provided power supply to the battery pack and plug its DC power connector into
the PCM adapter.
6. Ensure that the green ‘ready’ light on the PCM adapter is illuminated.
7. Turn on the CDR program. Create a new file and enter in the appropriate information.
Download the PCM.
8. Watch for the three downloads passes to be complete and note any error messages that are
displayed. Save the data after the download is complete.
9. Once completed with downloading the PCM data, turn the ignition switch off, remove power
to the PCM adapter and disconnect the PCM interface or DLC cable.
B--11
11
the uninsured motorist’s waiver of non-economic damages
Missouri Statute
1. An uninsured motorist shall waive the ability to have a cause of action or otherwise
collect for noneconomic loss against a person who is in compliance with the financial
responsibility laws of this chapter due to a motor vehicle accident in which the insured driver is
alleged to be at fault. For purposes of this section, the term ‚uninsured motorist‛ shall include:
(1) An uninsured driver who is the owner of the vehicle;
(2) An uninsured permissive driver of the vehicle; and
(3) Any uninsured nonpermissive driver.
Such waiver shall not apply if it can be proven that the accident was caused, in whole or
in part, by a tort-feasor who operated a motor vehicle under the influence of drugs or alcohol,
or who is convicted of involuntary manslaughter under subdivision (2) of subsection 1 of
section 565.024, or assault in the second degree under subdivision (4) of subsection 1 of section
565.060.
2. The provisions of this section shall not apply to an uninsured motorist whose
immediately previous insurance policy meeting the requirements of section 303.190 was
terminated or nonrenewed for failure to pay the premium, unless notice of termination or
nonrenewal for failure to pay such premium was provided by such insurer at least six months
prior to the time of the accident.
3. In an action against a person who is in compliance with the financial responsibility
laws prescribed by this chapter by a person deemed to have waived recovery under subsection
1 of this section:
(1) Any award in favor of such person shall be reduced by an amount equal to the
portion of the award representing compensation for noneconomic losses;
(2) The trier of fact shall not be informed, directly or indirectly, of such waiver or of its
effect on the total amount of such person's recovery.
4. Nothing in this section shall be construed to preclude recovery against an alleged tort-
feasor of benefits provided or economic loss coverage.
5. Passengers in the uninsured motor vehicle are not subject to such recovery limitation.
(MO ST 303.390).
The constitutionality of RSMo s. 303.390 has not yet been judicially tested.
B--12
12
Summary
I. Negligent Hiring and Entrustment Claims
a. Elements
i. Negligent Entrustment (Evans v. Allen Auto Rental & Truck Leasing Co.,
555 S.W.2d 325, 326 (Mo. Banc 1977))
1. Entrustee is incompetent
2. Entrustor knew or should have known of the entrustee’s
incompetence
3. There was an instrument of chattel and
4. Negligence of entrustor concurred with the conduct of the
entrustee as a proximate cause of the harm to plaintiff
ii. Negligent Hiring (McHaffie By and Through McHaffie v. Bunch, 891
S.W.2d 822 (Mo. 1995))
1. Employer knew or should have known of employee’s dangerous
proclivities
2. Employee was hired or retained in employment
3. Employer’s negligent act or omission was the proximate cause of
an injury sustained by the plaintiff at the hands of the employee;
and
4. Employee’s misconduct was consistent with the employee’s
dangerous proclivity
b. Defenses
i. Admitting Respondeat Superior Liability (McHaffie)
ii. Note: exception carved out for punitive damages (Wilson v. Image
Flooring, LLC., 400 S.W.3d 386, 393 (Mo. Ct. App. 2013).
II. Evidentiary Bases for Claims of Negligence Per Se
a. Regulatory Standards
i. State Regulations
1. Judicial Notice
ii. Administrative Regulations
1. Formal identification, offer and receipt
b. FMCSA
i. Can be a basis for negligence per se. Missouri courts allow evidence of
failures to follow motor vehicle carrier regulations and industry
standards to support awards of punitive damages against motor carriers.
c. Other
III. Evidence from Event Data Recorder (EDR)
a. National Highway Traffic Safety Administration
B--13
13
i. 49 C.F.R. 563
b. How to Download Information
i. Automobiles--Crash Data Retrieval System (CDR)
ii. Commercial Trucks—CAN network
iii. Diagnostic Link Connection (DLC)
IV. Uninsured Motorist’s Waiver of Non-economic Damages
a. RSMo s. 303.390
B--14
