OPENING STATEMENTS AND CLOSING ARGUMENTS IN TRUCKING LITIGATION (PLAINTIFF’S PERSPECTIVE)

HOW TO USE PRIMACY AND RECENCY

TO TELL AND CONFIRM THE STORY

Written by: FRANCISCO GUERRA, IV

P. BRIAN BERRYMAN ALEX M. MILLER

Bank of America Plaza, Suite 100 300 Convent Street

San Antonio, Texas 78230 210-527-0500

Presented by: FRANCISCO GUERRA, IV

State Bar of Texas PROSECUTING OR DEFENDING A TRUCKING OR AUTO

ACCIDENT CASE November 4-5, 2010

San Antonio

CHAPTER 10.2

Opening Statements And Closing Arguments In Trucking Litigation (Plaintiff’s Perspective) Chapter 10.2

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TABLE OF CONTENTS I. INTRODUCTION.……………………………………………………………………………………………….1 II. LIABILITY FOR THE PRIMARY WRONGDOER…………………………………………………………….1 III. SHARED LIABILITY ARISING FROM BEING PART OF THE WRONGDOER……………………………3 IV. SHARED LIABILITY ARISING FROM INDEPENDENT ACTS OF NEGLIGENCE OVER THE

PRIMARY WRONGDOER……………………………………………………………………………………….8 V. OPENING STATEMENT AND CLOSING ARGUMENTS – MIRROR IMAGES OF THE SAME STORY...16 VI. CONCLUSION…………………………………………………………………………………….…………….18

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I. INTRODUCTION

This law of primacy is that the state of being first often creates a strong, almost unshakeable impression. In fact, studies show that there is an 80% correlation between the verdict that a juror would have rendered immediately following opening statement and the jurors’ final verdict rendered at the conclusion of the case.1

The law of recency states that things

most recently learned are best remembered. One of the most significant advantages for a Plaintiff in a lawsuit is that the Plaintiff has the privilege of going first and last during both opening statement and closing argument. It is for this reason that the most effective use of opening statements and closing arguments is to tell the story that they will hear first and confirm the story that was proven last. We have found that this method not only maximizes your ability to sell your client’s story to the jury, but because you already know the facts, it also provides a perfect method to build and then confirm credibility with the jury.

The second part of this paper will

discuss how to effectively use primacy and recency in opening statements and closing arguments. Prior to that and before ever beginning to understand how to properly prepare an opening statement or closing argument, it is necessary to understand the basics of trucking litigation. A trucking accident is not just a large auto wreck. It is an accident that only occurred because somebody violated the law. It is an accident that occurred because somebody charged with the responsibility to act safely failed to do so. It is an accident that could have and should have been prevented. A trucking accident case is about the safety of the motoring public. The first part of this paper, therefore, is a brief summary of the types of things to be discovered in order to obtain the information to build your case 1 Effective Opening Statements from the Plaintiff’s Perspective; Karp, Sander

and then eventually prepare opening statements and closing arguments. II. LIABILITY FOR THE PRIMARY WRONGDOER

The underlying conduct and liability of the primary wrongdoer (the truck driver) is a pre-requisite to all liability theories in a trucking case. The Federal Motor Carrier Safety Administration has set forth many detailed regulations regarding motor carriers, drivers and the vehicles used. The Federal Motor Carrier Safety Regulations create the standard of care to be followed by motor carriers. Compare Omega Contracting v. Torres, 191 S.W.3d 828 (Tex.App.—Ft. Worth 2006) (holding that in a negligence per se case, the jury is not asked to decide whether the defendant acted reasonably under the circumstances because the regulations state what a reasonable person would have done) and Yap v. ANR Freight Systems, Inc., 789 S.W.2d 424 (Tex.App.—Houston [1st Dist.] 1990) (holding that the federal motor carrier safety regulations merely established the standard of care required by law.) Violations of these regulations are also important when trying to show that the motor carrier was grossly negligent (especially in regards to hiring, training or retaining employees). As detailed below, the first step in establishing primary liability against the driver in a trucking cases requires the discovery of documents that relate to the Federal Motor Carrier Safety Regulations. Examples of areas that should be investigated are as follows:

A. Driver’s Logs & Supporting Documents

When working on discovery in trucking

cases, the Plaintiffs have the benefit of government mandated record-keeping requirements. The most important of these records is the logbook, which each driver is required to maintain. Another benefit is that there are many other documents that can be checked and compared to each other and the logbook to ensure the veracity of each document. Plaintiffs should take time to

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request all of these documents and then try to reconcile the documents to ensure that all of them match the logbook and the motor carriers account of the events. Also, all of these documents should be requested for the greatest span of time possible, but no longer than 5 years. The longer the span, the more likely it is that a detailed analysis of all the documents could evidence a pattern or practice of doctoring log books and/or other documents, exceeding speed limits, exceeding hours of service requirements or other negligent activity or violations of state or federal laws.

As laws and technology change, the documents that are important in a trucking case change too. Also, through discovery, the plaintiffs should determine if along with the documents listed below the Motor Carrier has any practices or procedures in place that require greater record keeping of the drivers. Below is a non-exhaustive list of documents that should be requested in a trucking case.

1. Log Book

The logbook contains daily log sheets that must be completed by the driver. These books record the driver’s hours of service, miles traveled, on or off duty status and other information about the trip for each 24-hour period while she is on the road. This information is required to be kept under FMCSR 395.8. Further, FMCSR 395.3 has hours of service requirements that can be checked against the log to determine if the driver was exceeding hour requirements. All documents responsive to these requirements should be requested.

Some of the information in the logbook

could be very useful in crafting discovery for a Plaintiff. For example, FMCSR 395.8 requires the following to be included in the logbook:

•Date;

•Total miles driving for that day; •Truck or tractor and trailer number; •Name of Carrier; •Driver’s signature/certification; •24 hour period starting time; •Main office address; •Remarks; •Name of the co-driver; •Total hours; and •Shipping document numbers or name of shipper and commodity.

The logs books are sometimes hard to

discover in cases that have been filed more than six months after the subject incident. The FMCSR at 395.8 only requires that the motor carrier maintain this information for six months.

2. On Board Computer Printouts

and/or Reports

Some tractors are equipped with on-board computers that monitor vehicle and driver performance and store the information to later be uploaded into a larger system. This information is often used to generate reports of the performance of the driver, vehicle, and trip. Further, the technology of today allows these computers, if equipped with GPS, to monitor very specific details about the trip. This information can record the speed at any particular time, the location at any particular time, route traveled, any detours, average speed, time stopped and lots of other specific details. An onboard computer, with GPS capability, could be the Plaintiffs greatest rebuttal to the logbooks record of events.

3. Bills of Lading

A bill of lading is a document that is

required to be issued as a receipt of goods, evidence of title to the property being transported and as the contract of carriage setting forth the names of the contracting

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parties and the terms of the carriage. The Bill of Lading allows a party to ascertain the identity of the patients that contracted for the shipment.

4. Freight Bill

The freight bill contains much of the same information as the bill of lading. The freight bill also contains information on all the charges, the trailer number, the origin and destination terminals and special instructions to the driver for handling or delivering the load.

The benefits to discovery of the

freight bill are three fold. First, the trailers and the tractors often have separate and distinct insurance policies. The freight bill will allow a party to determine the identity of the trailer and is a starting point for determining any separate policies. Second, the origination and terminus of the shipment could become important if course and scope are challenged. The issue of whether the driver was on a detour or a frolic would often be obvious by looking at the origination and terminus of the shipment. Finally, any special instructions regarding the shipment and handling of the shipment give rise to obvious issues regarding negligence and/or gross negligence.

5. Trip Report

This document is a detailed account

of the entire trip for that particular haul. A trip report would contain facts about the trip. These facts include; date and place of beginning and end, driver’s name, truck equipment numbers, odometer readings, states traversed, monetary advances, fuel expenses and other expenses. This information can sometimes be taken from the on board computer or compiled from the drivers log and other documents.

6. Schedule from Motor Carrier

Sometimes motor carriers will provide a driver with the proposed schedule for the haul. This is used to convey to the driver where he/she is going and when he/she needs to be there. These documents can show if the motor carrier was encouraging the driver to exceed driving times or the maximum speed limits. Under the requirements of FMCSR 392.6, no motor carrier shall schedule a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the vehicle being operated at speeds greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is operated.

7. Driving Records

Driving records are required to be kept by Federal mandate to some extent. Any previous internal accident or investigation reports should also be requested regarding the subject driver.

Taking the time to draft an extensive and specific set of discovery on the seven categories set forth above will go a long way in establishing liability against the truck driver. Sometimes, this is the only avenue of recovery in a case. As set forth below, however, it is always prudent to conduct discovery on the issues of whether other potential defendants exist and if they are already in the lawsuit, whether they can held liable for the actions of the primary wrongdoer. Some of the discovery is applicable to the primary wrongdoer as well.

III. SHARED LIABILITY ARISING FROM BEING PART OF THE WRONGDOER In trucking litigation, the actions or inactions of the truck driver is only the beginning. To truly build a case about “safety”, one must understand that “safety” starts at the very core of the trucking company or the companies with which the trucking company was financially affiliated.

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One way to extend liability to an entity that did not technically perform the wrongful conduct is to break down the technical barriers between the defendant and the wrongdoer to show that the defendant was actually a part of the tortfeasor entity. There are two ways to go about this process. First, one can show the defendant and the wrongdoer are actually one in the same, under the doctrines of piercing the corporate veil known as single business enterprise and alter ego. Second, one can show the defendant and the wrongdoer were in something like a partnership in performing the conduct that caused the damages, under the doctrines of joint enterprise and joint venture. A. ALTER EGO The fundamental concept of corporate law is that the corporation is a wholly separate, legal entity. As such, the corporation, and not its shareholders, is liable for its obligations. Krivo Indus. Supply Co. v. National Distillers & Chem. Corp., 483 F.2d 1098, 1102-03 (5th Cir.1973). Nonetheless, under Texas law, courts do not hesitate to ignore the corporate form when it “has been used as part of a basically unfair device to achieve an inequitable result.” Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986).

In the landmark Castleberry case, the Texas Supreme Court listed six situations in which Texas courts may pierce the corporate veil: (1) when the fiction is used as a means of perpetrating a fraud; (2) where a corporation is organized and operated as a mere tool or business conduit of another corporation; (3) where the corporate fiction is resorted to as a means of evading an existing legal obligation; (4) where the corporate fiction is employed to achieve or perpetrate monopoly; (5) where the corporate fiction is used to circumvent a statute; and (6) where the corporate fiction is relied upon as a protection of crime or to justify wrong. Castleberry, 721 S.W.2d at 272. The Castleberry court defined alter ego

as when “a corporation is organized and operated as a mere tool or business conduit of another corporation.” Castleberry, 721 S.W.2d at 272; see also Harrell v. DCS Equip. Leasing Corp., 951 F.2d 1453, 1458-59 (5th Cir. 1992); Pan Eastern Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1130-33 (5th Cir. 1988). The Castleberry court further established that alter ego “is shown from the total dealings of the corporation and the individual, including the degree to which corporate formalities have been followed and corporate and individual property have been kept separately, the amount of financial interest, ownership and control the individual maintains over the corporation, and whether the corporation has been used for personal purposes.” Id. Castleberry’s emphasis on whether corporate formalities were observed set off a strong reaction in the business community and, by extension, the Legislature. Article 2.21 of the Texas Business Corporation Act was amended to remove the element of observation of corporate formalities from the list of factors to be considered in piercing the corporate veil, and to require, in contract cases, that actual fraud on the plaintiff be shown, as opposed to constructive fraud.

While there is some authority for the

proposition that Article 2.21 applies both to tort and contract cases, see, e.g., Aluminum Chemicals (Bolivia), Inc., 28 S.W.3d 64, 68 and n.4, most courts that have considered the issue have held that Article 2.21 applies only in contract cases. See, e.g., De La Hoya, 2005 WL 459619 (125 Fed. Appx. 533); Nordar Holdings, Inc., 969 F.Supp. at 422 and 423 n.2; Concept Clothing Co., Inc. v. Dabney, 2003 WL 23208272 (N.D. Tex. 2003); Western Horizontal Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d 65, 68 n.4 (5th Cir. 1994); PHC-Minden, L.P., 2005 WL 1979102; Farr v. Sun World Sav. Ass’n, 810 S.W.2d 294, 296 (Tex.App.—El Paso 1991, no writ).

The alter ego theory has been used not only to impose liability but also to establish jurisdiction and to toll limitations. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

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789, 799 (Tex. 2002) (“[t]o ‘fuse’ the parent company and its subsidiary for jurisdictional purposes, the plaintiffs must prove the parent controls the internal business operations and affairs of the subsidiary” and “the degree of control the parent exercises must be greater than that normally associated with common ownership and directorship.”); Matthews Const. Co., Inc. v. Rosen, 796 S.W.2d 692 (Tex. 1990); Gentry v. Credit Plan Corp. of Houston, 528 S.W.2d 571 (Tex. 1975). B. Joint Enterprise As our Supreme Court stated in Texas Department of Transportation v. Able, 35 S.W.3d 608, 613 (Tex. 2002):

Joint enterprise liability makes “each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other.” Shoemaker v. Estate of Whistler, 513 S.W.2d at 14 (Tex, 1974). In Shoemaker we adopted the definition of joint enterprise as stated in section 491, comment c of the Restatement of Torts. That section states:

[t]he elements which are essential to a joint enterprise are commonly stated to be four: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

RESTATEMENT (SECOND) OF TORTS § 491 cmt. c (1965); see also Blount v. Bordens Inc., 910 S.W.2d 931, 933 (Tex.1995); Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995).

Ables, 35 S.W.3d at 613. Most of the attention of the appellate decisions in recent years has been on the third element: whether there was “a community of pecuniary interest in that purpose, among the members.” It had been established in Shoemaker that the doctrine of joint enterprise liability applied only in a commercial or business context and not to family or social ventures. Shoemaker, 513 S.W.2d at 17. It is not always clear, however, which joint business ventures will qualify for joint enterprise liability and which will not. A review of some of the appellate cases decided during the last few years will illustrate where the courts have drawn lines. Texas Dep’t of Transportation v. Able, decided in 2000, dealt with an accident in which a married couple traveling outbound from Houston on the Highway 290 HOV lane were involved in a head-on collision by a driver going the wrong way in the same lane without his headlights on. The plaintiffs alleged that there was joint enterprise liability due to a joint venture between TxDOT and the Houston Metropolitan Transportation Authority (“Metro”). The jury found Metro both negligent and grossly negligent, found that TxDOT was not negligent, and found that there was a joint enterprise. The two agencies had entered into a “Master Agreement” for the construction and operation of HOV lanes in Houston. Included in a section of the Master Agreement entitled “Use of Facilities” was the following language: “the highway facilities upon which Transitways are constructed are under the ultimate control and supervision of the State.” Id. at 615. Other language said that TxDOT and Metro “will divide the responsibility for maintenance.” Id. But there were still other provisions that TxDOT argued gave Metro responsibility for day-to-day maintenance and operation of the lanes.

The Court held that TxDOT was liable, along with Metro, for the plaintiffs’ damages, stating:

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In essence, TxDOT invites this Court to redefine the scope of its enterprise with Metro by excluding the day-to-day maintenance and operation of the Transitways, a duty that TxDOT claims belonged to Metro. We decline the invitation for two reasons. First, allowing a member of a joint enterprise to escape liability to a third party simply by delegating responsibility for the component of the joint enterprise that caused the injury to the third party would defeat the theory of joint enterprise liability. Second, other provisions in the Master Agreement contradict TxDOT’s suggestion that it did not have control over the maintenance and operation of the Transitways. While the Master Agreement provides that Metro is the primary agency responsible for the day-to-day operation and maintenance of the Transitways, the agreement also clearly provides that the State, through TxDOT, has an interest and responsibility in the operation and maintenance of the Transitways.

Id. at 615-616. In other cases, the Supreme Court has declined to find a joint enterprise in a variety of fact situations. In Triplex Communications, the Court declined to find a joint enterprise between a nightclub and a radio station where the nightclub ran a “happy hour” special on drink pricing that corresponded to the station’s radio frequency, even though the station promoted the event. Triplex Communications, 900 S.W.2d at 719. In Blount, the Court held that two men who were killed in a motor vehicle accident while on a trip to Mexico to pick up horses owned by a family member and family friend were not involved in a joint enterprise, despite evidence that one of the

two men “would be able to pay some bills” after he returned from the trip. Blount, 910 S.W.2d at 933. St. Joseph Hosp. v. Wolff, 94 S.W.2d 513 (Tex. 2002) was a medical malpractice case arising out of the treatment of a patient at Brackenridge Hospital in Austin by, among others, a resident who was enrolled in a residency program through St. Joseph Hospital in Houston. The plaintiffs alleged a joint enterprise between St. Joseph Hospital and the Central Texas Medical Foundation, an organization formed to operate the residency program. The trial court submitted a jury charge that included in its definition of a “joint enterprise” as the third element whether there was “a common business or pecuniary interest” between the Hospital and the Foundation.” St. Joseph objected and asked the court to submit, instead, the Restatement language (“community of pecuniary interest”). Id. at 525. The Supreme Court acknowledged that it had used phrases such as “common pecuniary interest” and “business or pecuniary interest” in prior decisions, but said that it had done so only as a “shorthand” reference to the Restatement language. Id. at 526-27. Moreover, the Court concluded that “common business or pecuniary interest” and “community of pecuniary interest” do not mean the same thing, pointing out that franchisors and franchisees or wholesalers and retailers may have “common business interests” but do not share a “community” of pecuniary interest. Id. at 527-528.

The importance of this observation becomes more apparent when, as in this case, the evidence shows a more complex, ongoing relationship between the members of the claimed joint enterprise. In such circumstances, the evidence may show several different agreements and understandings between the parties, encompassing an assortment of common purposes, and thus a number of possible projects or

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“enterprises” devoted to carrying them out. The parties may have a “community of pecuniary interest” (required by the Restatement’s third element) in some of those purposes but not in others. Or, as to some of the putative enterprises but not others, the evidence may be equivocal or non-existent as to whether the parties have an equal right to a voice in the enterprise’s direction, giving an equal right of control as required by the Restatement’s fourth element.

Id. at 529. In such a relationship, the Court stated:

If the evidence shows several possible purposes and concomitant projects or enterprises to accomplish them, a properly worded charge must require the jury to find that the joint enterprise elements, particularly the “community of pecuniary interest in [the common] purpose” and “equal right of control” elements, exist with respect to the same concomitant purpose and enterprise. Otherwise, a jury could find a joint enterprise existed even if the evidence conclusively showed, for example, that with respect to two possible common purposes and their corresponding enterprises, there was no community of pecuniary interest in one, and no equal right of control in the other.

Id. The Court, having concluded that the charge was erroneous, next turned to a discussion of whether there was legally sufficient evidence of a joint enterprise even if the Restatement language had been used. The Court noted that “[t]he ordinary meaning of ‘pecuniary’ is ‘of or pertaining to money.’” Id. at 531. The Court held that

“to satisfy the third element of the Restatement definition an interest must first be monetary in nature.” Id. It further explained, “that monetary interest must be common among the members of the group – it must be one ‘shared without special or distinguishing characteristics.’” Id. The Court then reviewed the evidence about whether St. Joseph and the Foundation had a “community of pecuniary interest” in the surgical residency program at Brackenridge:

There is no evidence in the record that St. Joseph agreed to share with the Foundation any money it received from operating the general surgery residency program. Although St. Joseph received Medicare funds based on the number of residents in the program, there is no evidence the Foundation shared in those funds. Similarly, there is no evidence the Foundation agreed to share with St. Joseph any money it received from operating the residency program.

Id. In response to the Wolff’s’ contention that St. Joseph could not have even sponsored an accredited residency program without the Foundation’s participation, the Court said that the evidence indicated otherwise, noting: “[t]here is also evidence St. Joseph could have operated an accredited residency program by affiliating with institutions other than the Foundation and had previously obtained surgical experience for its residents by working with other hospitals in Houston.” Id. at 532. The courts of appeals have considered joint enterprise liability in a variety of factual contexts. In Watts v. Green, 190 S.W.3d 44 (Tex.App.—Amarillo 2005, no pet.), the Court affirmed a judgment based on joint enterprise liability against the owner of an insurance agency who participated in the sales by one of his agents of investments in pay telephones. There was ample evidence of the owner’s knowing about, participating in, and profiting from the telephone sales

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venture, even though there was no written agreement to which he was a party. Several court of appeals decisions have held that an indirect or general financial benefit is insufficient to amount to sharing in a “community of pecuniary interest. In Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 850 (Tex.App.—Fort Worth 2006, no pet.), the court held that the mere fact that an officer of one company also received income from another, related, corporation, did not amount to a “community of pecuniary interest.” The court also rejected the argument that a community of pecuniary interest existed because one trucking company was able to provide faster service to its customers by virtue of its arrangement with another company and, thus, to get more repeat business from satisfied those customers. The court relied on Ely v. Gen. Motors Corp., 927 S.W.2d 774, 779 (Tex.App.—Texarkana 1996, writ denied) (holding evidence that hospital’s association with medical foundation enhanced hospital’s reputation in medical community and attracted doctors to practice at hospital was no evidence of third element) and Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 58 S.W.3d 263, 275-76 (Tex.App.—Fort Worth 2001, pet. denied) (holding that evidence of general benefit arising from hospital’s agreement with radiology practice group was not even a scintilla of evidence of third element). C. Joint Venture Generally, it is more difficult to prove a joint venture than a joint enterprise. The elements of a joint venture are: (1) a community of interest in the venture; (2) an agreement to share profits; (3) an agreement to share losses; and (4) a mutual right of control or management of the enterprise. Ayco Development Corp. v. G.E.T. Service Co., 616 S.W.2d 184, 186 (Tex. 1981). Each partner in a joint venture is considered an agent of the others and is

liable for the debts and obligations incurred by the others in scope of the venture. Truly v. Austin, 744 S.W.2d 934, 937-38 (Tex. 1988). In Porter v. Puryear, 262 S.W.2d 933, 938 (Tex. 1953), the Texas Supreme Court held there was evidence of a joint venture, even though one of the parties was not directly tied to paying losses. In Porter, one doctor owned the hospital and performed anesthetics and the other performed the surgeries, and they agreed to share the amounts paid to them by the patients. The Court held that even though there was no specific agreement to share losses, the surgeon would experience a loss if the patient refused to pay because he would have lost the value of his services, time, and labor. IV. SHARED LIABILITY ARISING FROM

INDEPENDENT ACTS OF NEGLIGENCE OVER THE PRIMARY WRONGDOER

Another method of extending liability for the wrongful conduct of the truck driver to the trucking company is based on the independent tortuous conduct of that company as it relates to the primary wrongdoer. These claims differ from those discussed above because they are independent causes of action against the trucking company for its own negligence. A. Negligent Exercise of Control The Texas Supreme Court has recognized in numerous cases that one can be held liable for the wrongful or negligent act of another where he has retained the right to control that portion of the other’s activity, was negligent in the exercise of that control, and the other’s activity resulted in injury or damage to the plaintiff. For example, in Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998), a vacuum cleaner company retained control over how its distributors sold its products, requiring in-home sales demonstrations. The Court held the company, Kirby, liable to a plaintiff who was raped in her home by an

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employee of a distributor. In doing so, the court stated:

We do not question Carter’s status as an independent contractor, but this status is not a defense to Read’s claim. As previously, it is undisputed that Kirby directed its distributors that its Kirby vacuum cleaners be marketed solely through in-home demonstration. It was Kirby’s retention of control over this detail that gave rise to the duty to exercise that control reasonably.

990 S.W.2d at 735-36; see also Exxon Corp. v. Tidwell, 867 S.W.2d 19, 22 (Tex. 1993) (control by oil company over details of service station operation may impose duty to exercise ordinary care); Redinger v. Living, Inc., 689 S.W. 2d 415, 418 (Tex. 1985) (negligent exercise of control by contractor over details of sub-contractor’s work may create liability). In Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001), the Court stated:

A general contractor can retain the right to control an aspect of an independent contractor's work or project so as to give rise to a duty of care to that independent contractor's employees in two ways: by contract or by actual exercise of control. See, e.g., Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999); Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999). We have frequently used the phrases “right of control” or “retained control” interchangeably.

The Court in Lee Lewis Construction, Inc. added: “The distinction remains important, however, because determining what a contract says is generally a question of law for the court, while determining whether

someone exercised actual control is a generally a question of fact for the jury.” Id. Not just any “right of control” will suffice to establish liability, however. The Supreme Court has limited the applicability of the doctrine in a number of ways, holding, “[t]here must be a connection between the right of control and the particular activity or condition that caused the plaintiff’s injury.” Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998) (per curiam). The right to terminate a subcontractor or to stop the work is not a sufficient basis for liability. Dow Chem. Co. v. Bright, 89 S.W.3d 602, 607-08 (Tex. 2002). A requirement that a sub-contractor train its employees or comply with safety requirements will not subject a contractor to liability because of the sub-contractor’s failure to do so. Shell Oil Co. v. Khan, 138 S.W.3d 288, 293-94 (Tex. 2004). A general right to make suggestions regarding how activities are to be conducted will not provide a basis for liability. Dow Chem. Co. v. Bright, 89 S.W.3d at 611. The right to receive reports is not a right of control. Id.

For there to be a right of control the

“controlling” entity must be empowered to act – that is, it is necessary to show that a defendant had authority to require the primary wrongdoer to conduct the activity in a different way. Shell Oil Co. v. Khan, 138 S.W.3d at 293 and n. 19.2

2 There is room for some confusion about what the “controlling” entity must be entitled to do. In Khan, the Court held that the fact that Shell could have terminated a service station owner’s contract if it failed to provide proper security training to its employees did not expose it to liability (although there was no summary judgment evidence that Shell knew the employer wasn’t providing such training). 138 S.W.3d at 293. Yet in Tovar v. Amarillo Oil Co., 692 S.W.2d 469, 470 (Tex. 1985), the Supreme Court held that an oil company breached a duty of care to a drilling contractor employee by not exercising its contractual right to suspend drilling operations when it became aware that the drilling contractor was violating a specific, critical safety provision in the drilling contract. And in Hoechst-Celanese, the Supreme Court said that “an employer who is aware that its contractor routinely ignores applicable federal guidelines and standard company policies related to safety may owe a duty to require corrective

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While the “right of control” doctrine

had its origin in construction site cases, its use has been far more widespread than that. In a business case, De La Hoya v. Coldwell Banker Mexico, Inc., 2005 WL 459619 (125 Fed. Appx. 533) (5th Cir. 2005), the doctrine was applied to a franchisor-franchisee relationship, where the franchisor had retained the right to audit a local real estate agent’s escrow accounts, even though escrow services were not included in the scope of the franchise services. The evidence showed that the franchisor had notice of the agent’s misappropriation of client funds and had, in fact, instructed the agent to cease using her own escrow account and deposit client funds only in third-party escrow accounts. Relying on Read, the Fifth Circuit held that plaintiffs’ unchallenged evidence was sufficient to state a case against the franchisor for negligent exercise of control. B. Negligent Hiring, Training,

Retention, and Supervision Claims for negligence in hiring, training, retention, and supervision are normally made when the conduct of an employee is outside the course and scope of employment. Otherwise, the employer is liable based on respondeat superior. To recover on such an independent act of negligence, however, the plaintiff must prove the negligence in hiring, training, retention, or supervision was a proximate cause of the injury. Employers have a legal duty to the public and other employees to exercise ordinary care in hiring employees. LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex.App.—Amarillo 1997, writ denied). The extent to which they check the background and competence of the employee, however, depends on the type of work involved. For example, in Guidry v.

measures to be taken or to cancel the contract.” 967 S.W.2d at 357.

National Freight, 944 S.W.2d 807, 810-11 (Tex.App.—Austin, 1997, no writ), the court held the employer did not have a duty to investigate the criminal background of a truck driver who was not anticipated to have contact with the general public in performing his duties, even though the employer had a duty to investigate his driving history. If the employee is going to interact with the public (especially in private), however, it is likely necessary to perform criminal background checks. See Porter v. Nemir, 900 S.W.2d 376, 386 (Tex.App.—Austin 1995, no writ) (heightened obligation when the employee works with a vulnerable group). Section 145.002 of the Texas Civil Practice & Remedies Code requires in-home service companies and residential delivery companies to obtain “all criminal history record information relating to an officer, employee, or prospective employee of the company whose job duties require he will require entry into another person’s residence.” TEX. CIV. PRAC. & REM. CODE §145.002. Employers owe a duty of ordinary care in supervising their employees. This obligation is also heightened when the employee is performing dangerous work or poses a dangerous risk of harm. Denton Reg. Med. Cntr. v. LaCroix, 947 S.W.2d 941, 951 (Tex.App.—Fort Worth 1997, pet. dism’d) (duty to supervise employee administering anesthesia). An employer’s duty to screen employees does not end once the employee is hired. The employer has a continuing duty to exercise ordinary care in retaining employees. Robertson v. Church of God, Int’l, 978 S.W.2d 120, 125 (Tex.App.—Tyler 1997, pet denied).

The duties with regard to hiring,

training, retaining, and supervision also extend to independent contractors. Texas courts have recognized that a person can be held liable for the negligent selection of independent contractors. Pollard v. Missouri Pac. Railroad Co., 759 S.W.2d 670, 670 (Tex.

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1988) (holding a claim would arise if “MOPAC was negligent for employing an inexperienced contractor without inquiring into his experience and safety record.”); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 789 (Tex.App.—El Paso 1996, writ denied) (finding a fact issue whether the incompetence of the independent contractor was a proximate cause of the injuries); Castro v. Serrata, 145 F.Supp.2d 829, 833 (S.D. Tex. 2000) (“One hiring an independent contractor may be held responsible for the contractor’s negligent acts if the employer knew or should have known that the contractor was incompetent and a third person was injured because of the contractor’s incompetence,” (citing King v. Associates Commercial Corp., 744 S.W.2d 209, 213 (Tex.App.—Texarkana 1987, writ denied) citing Texas American Bank v. Boggess, 673 S.W.2d 398, 400 (Tex.App.—Fort Worth 1984, writ dism’d by agr.)). C. Negligent Entrustment

Even though negligent entrustment claims generally involve the entrustment of motor vehicles, they can also involve other sorts of chattel and defective products.

The elements for negligent entrustment of a motor vehicle are: (1) the owner entrusted the vehicle to another person; (2) that person was an unlicensed, incompetent, or reckless driver; (3) the owner knew or should have known the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver’s negligence proximately caused the plaintiff’s injuries. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). When the entrustment involves a different instrument or chattel, the elements are essentially the same, substituting that specific chattel with “vehicle” and generally focusing on the incompetence of the entrustee. National Conven. Stores v. T.T. Barge Cleaning Co., 883 S.W.2d 684, 686 (Tex.App.—Dallas 1994, writ denied). Texas also recognizes a general claim for

negligent entrustment of a product the entrustor knew or should have known was defective. Russell Construction Co. v. Ponder, 186 S.W.2d 233 (Tex. 1945). Negligent entrustment is derivative liability so that the plaintiff need not prove the entrustor’s negligence was a proximate cause of the plaintiff’s injuries, but only that the entrustor was negligent in the entrustment and the entrustee’s negligence proximately caused the plaintiff’s injuries. Spratling v. Butler, 240 S.W.2d 1016, 1017 (Tex. 1951). Because it is derivative liability, the entrustor is liable for the damages to the same extent as the entrustee. The following set of issues should be discovered to determine whether there are other potential defendants or liability for other defendants under the shared liability theories:

1. Employment Records

The plaintiff in a trucking case should attempt to discover all records the employer has regarding the particular driver’s history with the company. There are many different areas that could be of importance in a trucking case. Employment records generally have been subdivided into pre-employment, while employed and post-employment.

a. Pre-employment

Prior to employment as a driver, most applicants go through a stringent process of being screened and reviewed. This is due in part to the large exposure to liability a trucking company can face when their driver injures another. When deciding if to hire a driver, a motor carrier would often compile a large amount of documents. These documents are crucial for any plaintiff that is trying to prove a negligent hiring case. Some of the important documents that should be requested have been outlined below with a small description and explanation.

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b. Driver Investigation History

File FMCSR 391.53 mandates that each

motor carrier must maintain records relating to the investigation into the safety performance history of a new or prospective driver. This file must include the following information:

(1) A copy of the driver’s

written authorization for the motor carrier to seek information about the driver’s alcohol and controlled substances history as required under 391.23;

(2) A copy of the responses received for investigations required by 391.23 from each previous employer, or documentation of good faith efforts to contact them;

(3) The certificate of the

driver’s road test issued to the driver pursuant to 391.31;

(4) The response to each

State agency to the annual driver record inquiry required by 391.25;

(5) A note relating to the

annual review of the driver’s driving record as required by 391.25;

(6) A list or certificate

relating to violations of motor vehicle laws and ordinances required by 391.27;

(7) The medical

examiner’s certificate of his/her physical disqualification to driver a commercial motor vehicle; and

(8) A letter of physical

disqualification waiver is one is required.

c. Drug Testing

The Federal Motor Carrier Safety Regulations mandate drug testing. Subject to a few special conditions, FMCSR 382.301 requires the motor carrier to perform a pre-employment test for controlled substances. The motor carrier must receive a negative drug test result before allowing the driver to work.

d. Alcohol Testing

FMCSR 382.301 makes pre-employment alcohol screening optional for employers. Additionally, the regulations almost make it a discouraged practice. The employer who decides to alcohol screen pre-employment must follow specific, and possibly costly, procedures to do so. One important notation on alcohol screening is that an employer must alcohol-screen all safety sensitive employees if it decides to test one. Discovery should be sought in a way to determine if any employees underwent alcohol testing while others did not.

e. License

It goes without saying that prior to beginning employment, an employer should check to ensure that an applicant has all required licenses. Plaintiffs should seek discovery on the licenses in a way that allows them to compare the licenses, including dates of expiration, renewal and possible suspensions, with dates of employment and importantly, dates in which the driver was actually operating a vehicle. Also, a plaintiff should inquire as to whether or not the subject vehicle involved in the accident is one that requires any special licenses like a longer combination vehicle (LCV) would.

f. Investigation and Inquiry Documents

Motor carriers must perform certain inquiries into every driver’s background.

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The motor carrier must make an inquiry into the driver’s driving record during the preceding three years to the appropriate agency of every State in which the driver held a license during those three years. Additionally, the motor carrier must investigate the driver’s safety performance history with the Department of Transportation regulated employers during the preceding three years. These documents are required to be assembled and kept under FMCSE 391.23.

g. Medical Certificate

A truck driver must obtain a medical examination from a licensed medical examiner and optometrist prior to beginning employment per FMCSR 391.41. The purpose of this rule in part is to establish minimum physical qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers. The FMCSR is very detailed on what must be tested and performance minimums. Further, the motor carrier is required to keep the medical examiner’s certificate of her physical qualifications in the driver’s qualification file per FMCSR 391.51.

h. Road Test

In accordance with FMCSR 391.31, a motor carrier must require the driver to complete a road test prior to operating a commercial vehicle. The FMCSR specifically outlines the skills that must be tested and who qualifies to perform the test. These records are required to be kept in the driver qualification file.

i. Special Clearances or Licenses

It is important for Plaintiffs to be aware of what the driver was hauling at the time of the subject incident. The handling and transportation of certain things might create a need for special clearance or license. In situations where

the cargo is in and of itself dangers, be thorough in researching if any special clearances or licenses were required by the motor carrier and/or the driver.

j. Application

The application should already be part of the driver qualification file. However, the plaintiffs should ensure that on top of the federally mandated application the motor carrier did not have a separate and distinct application required of its applicants. Also, any resume or C.V. that was submitted along with the application should be requested.

k. References

Pre-employment reference checks are standard fare in many types of employment. As with any other job, sometimes employers go to lengths to retrieve references from previous employers to aid them in making an employment decision. The information contained as a result of checking references could go directly to what the employer knew when they hired the driver. This becomes very important in cases where you want to prove a negligent hiring case.

l. Criminal background checks

For obvious reasons it is important to know if they driver was a criminal, what type of crimes he committed and whether or not the employer knew of this. As in many jobs, employers sometimes request this information as part of the application process. The extent and nature of the driver’s criminal background could play a major role in proving an employer’s negligence in hiring and/or retaining a driver.

m. Driver Qualification File

The entire driver qualification file should be requested. Federal law mandates that certain things are kept within the driver qualification file. Many of these items have

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been mentioned above. However, all of them are not pre-employment documents. This file is to be supplemented annually at a minimum. Among these items are:

(1) the driver’s application for employment completed in accordance with FMCSR 391.21;

(2) a copy of the response by each State agency concerning the driver’s driving record pursuant to FMCSR 391.23;

(3) the certificate of driver’s road test issued to the driver pursuant to FMCSR 391.31, or a copy of the license or certificate that the motor carrier accepted as equivalent to the driver’s road test;

(4) the response of each State agency to the annual driver record inquiry as required by FMCSR 391.25;

(5) a note relating to the annual review of the driver’s driving

record as required by FMCSR 391.25; (6) a list or certificate relating to violations of motor vehicle laws

and ordinances as required by FMCSR 391.27; and

(7) the medical examiners

certificate as mentioned above,

and a letter from the Field Administrator, Division Administrator, or State Director granting a waiver of a physical disqualification if a waiver was issued.

l. Personnel File

Typically, the files mandated by

federal law will include everything

Plaintiffs would or could need to request in terms of personnel files. Requesting this actual personnel file, however, could prove fruitful. This should be requested just in case the employer keeps a personnel file separate and apart from the files required under federal law.

n. Incident or Accident Reports FMCSR 391.25 requires each motor

carrier to make an inquiry into the driver record of each driver it employs covering at least the previous twelve months. These inquiries are to be made to the appropriate agency of every State for which the driver held a commercial drivers license during that period.

Under FMCSR 391.27 the motor carriers are mandated to require the driver to prepare and furnish it with a list of all violations of motor vehicle traffic laws of which the driver has been convicted or of which the driver has forfeited bond or collateral. Both of the preceding documents are to be kept in the driver qualification file.

Plaintiffs should also explore any

accident reports that are not produced or kept under federal mandate but are the result of internal investigation. Any internal accident or investigation reports should be requested regarding the subject driver. This request should not be limited to the subject incident but should encompass any and all such reports that are in the possession of the employer.

o. Ongoing Drug and Alcohol Testing

1. The FMCSR outlines many situations

where drug and alcohol testing is either required or encouraged during employment. Random drug testing is required per 382.305. Specific requirements regarding the percentage of employees to be randomly tested is laid out in the regulation. Also, the FMCSR at 382.207 requires testing any time the motor carrier has reasonable suspicion

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that the driver is under the influence of drugs or alcohol. Finally, there are also provisions regarding drug and alcohol testing following a collision or accident. All of these rules are subject to many specific exceptions or qualifiers that should be researched in depth if drug and/or alcohol use is suspected in an accident.

p. Payment methods

The method and manner of payment should be requested also. Drivers be paid in a number of ways, including by the mile. It become important to know how they were paid to determine if the motor carrier had encouraged them to break any laws regarding time on the road and/or speed.

q. Post-Employment

In the event the driver has been terminated, the plaintiffs should attempt to request as many documents relating to the termination as possible. In particular, Plaintiffs should request any post-employment evaluation, any internal documents discussing termination or reasons for termination, and any unemployment records the driver has filed in order to receive unemployment benefits. Also, if this subject driver had been terminated from a previous employer, Plaintiffs should request the same information from the previous employer to determine whether or not the motor carrier did a proper job of researching the driver’s job history before employment.

r. Repair and Maintenance Records Inspection, Repair and Maintenance

FMCSR 396.3 generally requires that all motor vehicles under the control of the motor carrier be inspected, maintained and repaired. This regulation also requires that the records of inspection, repairs and maintenance be kept for the duration the vehicle is in operation with the motor carrier and for another eighteen months

after the vehicle has left the motor carrier’s control.

s. Driver Vehicle Inspection Reports

The Federal Motor Carrier Safety Regulations at 396.11 require that the drivers prepare a report in writing at the completion of each day’s work regarding an inspection of:

1. Service brakes including trailer brake connections;

2. Parking brake; 3. Steering mechanism; 4. Lighting devices and

reflectors; 5. Tires; 6. Horn; 7. Windshield wipers; 8. Rear vision mirrors; 9. Coupling devices; 10. Wheels and rims; and t. Emergency equipment.

The report must list any defect or

deficiency that might affect the safety of the vehicle. It should be performed and signed by the driver. If no defects are found, the driver still needs to sign off on the report.

u. Periodic Inspections

FMCSR 396.17 requires that every

vehicle be periodically inspected. Section 396, in the appendix, details the parts and accessories that at a minimum must be part of this inspection. The regulation appears to mandate that the inspections be performed at least once every twelve months. On top of that, FMCSR 396.21 mandates certain record keeping requirements for these inspections. v. Contractual/Financial Documents All contracts, payment documents, and information pertaining to profits and

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loses should be requested from all defendants and potential defendants. V. OPENING STATEMENT AND CLOSING

ARGUMENTS – MIRROR IMAGES OF THE SAME STORY

Now that you know the basics of trucking litigation, it is time to understand the effective use of primacy and recency to make promises during the opening statement that will be proven true during closing arguments. Most of these points are not original and are being used in courtrooms all across the country. The key is to use primacy and recency with each point and to ensure that each point is consistent with your theme in a trucking case. •THE SILVER BULLET (HAVE A CLEAR THEME)

The first step in developing a successful opening statement and closing argument is to identify the theory and theme of the case. The theme is a rhetorical device that justifies the morality of your theory and appeals to a juror’s sense of justice.3 Every single case, regardless of its size, must have a theme that the attorney raises in voir dire, mentions in the opening statement, brings out through the testimony or exhibits, and hammers home during the closing argument. The theme of the case consists of a one-sentence summary of what the case is about. It is best to employ one or more “feeling” words as part of your theme. The theme is not the legal or cerebral reason why you should win (insufficient evidence), but instead, it visually describes why you should win.4

The best themes are short--a sentence, a phase, even a single word that encompasses your strongest claim or defense. Something that is easy to 3 Opening Statements; Eliott, Edgar IV 4 Opening Statements: You Never Get a Second Chance to Make A First Impression; Hirschhorn, Robert

remember after being heard just once.5 Jurors learn through five senses. If possible, the theme should touch all five senses and should be repeated as often as possible during the course of the trial. The opening statement should begin and end with the theme. The closing argument should begin and end with the theme. A sample case theme in trucking litigation might be:

“This is a case of corporate accountability . . .”

“This is a case where a truck driver was allowed to violate the rules one too many times . . .”

“This is a case about keeping the motoring public safe . . .”

•TELL THE STORY/CONFIRM THE STORY

In order to deliver an effective opening statement and closing argument, it should be presented as you would present and tell a story. Telling a story is one of the most persuasive means of communication. How this is done is through a story to tell the information, the evidence you have, so that the jury will understand it, and its relationship to the theme. How we persuade is how we deliver and tell our story to the jury. Storytelling is the most basic means of communication.6

In trucking litigation the story is often told in chronological order. The story often starts with the driver’s experiences prior to his present job and usually ends with a litany of errors allowing him to remain on the road in spite of a bad driving record.

5 Using Themes at Trials; Gillam, Carol 6 Ten Points in Making an Effective Opening Statement; Noland, Douglass F.

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•THE CAST OF CHARACTERS

Think about the words and phrases you will use to describe the major witnesses in the case based on how you will depict them in the story. By the end of your opening statement, jurors must know who is good and who is bad, who is right and who is wrong, who is the victim and who is the perpetrator.7

A trial is really a scripted play for which you already have the benefit of dress rehearsal. If you have done an adequate job developing the case during the discovery phase, you will already know the facts. Because of this, you should forecast three key facts that you expect each witness will testify to during your opening statement. These facts should be consistent with your theme. This is especially true with key witnesses such as the officer that investigated the crash or the safety director for the trucking company. In trucking litigation, the safety director is the face of the company. If the facts substantiate it, you must hold the safety director responsible for the crash. Once the witnesses have testified and you are delivering your closing argument, you should confirm that the three facts you expected to elicit from each witness were in fact proven in open court. •THE BIG PICTURE (THE SAFETY OF THE MOTORING PUBLIC)

This may be expressed as good guys versus bad guys, heroes versus villains, or the big and powerful versus the weak and powerless. Still, this concept seems to always be present in good stories. Explore these concepts with every witness in your case.8 Unlike any other case, trucking litigation cases present a unique opportunity to present a theme of powerful 7 Id. 8 Tell Your Story Through Opening Statements; Alllison, William

versus weak. Almost every juror will have experiences driving on highways. Almost every juror will have experiences of driving in situations when large trucks are in close vicinity. Almost every juror will have heard of a tragic accident involving small vehicles and large tractor-trailers. Most jurors are fearful of being involved in these types of accidents because they usually involve death. There is a bias in the American public against tractor-trailers on American highways. As a Plaintiff, you must make your case about the greater good and not just one tragic accident. •REVEAL YOUR WEAKNESSES/ANTICIPATE DEFENSES

There is a tendency in opening statements to put one's best foot forward. What jurors hold against lawyers isn't so much the weaknesses of their case, it is that lawyers often try to hide those weaknesses. A stronger position is to expose case weaknesses before opposing counsel has a chance to use them to its own advantage. In a trucking case, these issues usually pertain to contributory negligence on behalf of the plaintiff or negative facts pertaining to damages. Talk about weaknesses first during opening statements and last during closing arguments.

•ESTABLISH AND CONFIRM CREDIBILITY

The opening statement is one of the most important components of any trial. It is your first opportunity to present the case to the jury, and to shape the jury’s perspective of the entire trial. The opening statement also is your first opportunity to present yourself to the jury, and to establish the kind of credibility that will persuade jurors to trust the testimony, documents, and other evidence that you eventually will submit for their consideration.9 Because you already know the evidence that will come before the jury, it is critical that you not oversell or exaggerate your case. Instead, pick the key 9Effective Opening Statements; Turner, Karen

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points that you know will not be disputed during trial. Establish those points during opening statement by promising to the jury that you will prove those points during the course of the trial. Once you have proven them, it is equally important that you remind the jury that you kept your promises during closing argument. This is a foolproof method of establishing credibility with the jury.

VI. CONCLUSION Establishing primary liability as to the primary wrongdoer is the foremost goal in trucking litigation. However, although Texas law holds plaintiffs to fairly demanding proof requirements in order to establish liability of one who is not the primary wrongdoer, each of the doctrines examined here offers an avenue to a liability finding when the evidence is available to make the case. While there are similar elements among these theories, each differs from the others in some important respects. The careful practitioner will closely examine the evidence in her client’s case before drafting discovery in order to determine which, if any, of these doctrines might apply.

Once you have developed your theories of liability through effective discovery, create a strong, almost unshakeable impression of those theories during opening statement through the law of primacy. Because you have the privilege of going first and last during both opening statement and closing argument, once you have promised the story that the jury will hear first, confirm that the promises you made were kept when you tell the final story last. This is the most effective method of maximizing your ability to sell your client’s story to the jury and establishing credibility with the jury.