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Truck attorney tip 2: What to do when trucking co’s lawyers try to keep out evidence by admitting negligence?

Written by Steve Gursten Posted July 17th, 2014

Tip 2: The Restatement of Agency


Last week, I shared 5 arguments you will likely hear from defense attorneys in truck cases, including tips for getting around the trucking companies “admit and exclude” legal tactics. In other words, the defense lawyer admitting negligence, or more rarely, admitting liability in serious truck accident injury and death cases to exclude evidence of negligent conduct.

There are several ideas for getting around this underhanded tactic. Here’s two for today, and Joe Fried, Michael Leizerman, and I will share more legal tips in the weeks that follow.

First, understand the law in your jurisdiction.  Many states allow two distinct claims against the truck driver and the trucking company. As you will read in further blogs, there are very strong public policy reasons to do so.

Here’s another idea that may help you get over this legal hurdle should you ever encounter it (odds are that if you’re an attorney who is involved in a  serious truck accident case you probably will):

The Restatement of Agency (Second)

The Restatement of Agency (Second) allows a principle (ie. a trucking company) to be directly liable for his conduct under certain circumstances. These include where the principle is negligent or reckless:

  • In giving improper or ambiguous orders of in failing to make proper regulations; or
  • In the employment of improper persons or instrumentalities in work involving risk of harm to others:
  • In the supervision of the activity; or
  • In permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.


Restatement (Second) of Agency § 213 (1958).

  • Comment “d” to § 213 in the restatement clarifies: Liability results under the rule…not because of the relation of the parties, but because the employer antecedently had reason to believe that an undue risk of harm would exist because of the employment. Restatement (Second) of Agency § 213 (1958), cmt. d (emphasis added).

Further, §213 specifically provides for “concurrent negligence of master and servant” and states that “[i]n addition to liability under the rule stated in this section, a master may also be subject to liability if the act occurs within the scope of employment. In a given case, the employer may be liable both on the ground that he was personally negligent and on the ground that the conduct was within the scope of employment.” Restatement (Second) of Agency § 213 (1958), cmt. h (emphasis added).

Bonus legal tip

Another thing I’ve found to be extremely helpful to stop the defense from trying to sweep damning evidence of negligence under the rug in these cases is checking to see whether your jurisdiction has cited this part of the Restatement with approval and found it persuasive. Cite those cases in your own state jurisdiction which adopt this as the correct approach.

For example, in my home state of Michigan, the Supreme Court of Michigan has cited these excerpts with approval. I can point to the Restatement of Agency and cite cases which adopt this as the correct approach in Michigan when the defense lawyers try to stop the jury from hearing about how the trucking company broke the law.

This may be the most important issue in transportation law today.  In the weeks that follow, I will introduce additional strategies for getting the trucking company’s bad acts into evidence when the defense tries to keep it out.

About Steve Gursten

Attorney Steven Gursten is president of the Motor Vehicle Trial Lawyers Association and past president of the American Association for Justice Trucking Litigation Group. He has been named a Michigan Lawyers Weekly "Leader in the Law" for his efforts to prevent truck accidents and promote national truck safety. Steve was also a Michigan Lawyers Weekly "Lawyer of the Year" for a record settlement in a truck accident case. He has received the top reported truck accident jury verdict and top reported truck accident settlement in Michigan for multiple years, according to published year-end compilations of all jury verdicts and personal injury settlements by Michigan Lawyers Weekly. He has been named a "Top 50 Super Lawyer," by SuperLawyers, is listed in Best Lawyers in America, and has been awarded an AV-rating by Martindale-Hubbell, which is the highest rating for legal ability and ethics. Steve speaks to lawyers throughout the country on truck accident litigation. He is a founding member of the Truck Accident Attorneys Roundtable, head of Michigan Auto Law, and has dedicated his legal career to making our roads safer.
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