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Truck attorney tip 4: Using the Restatement of Torts to stop attorneys from sweeping evidence under the rug

Written by Steve Gursten Posted July 24th, 2014

Sweep evidence under the rug

This is part four of my blog series on what to do when a trucking company tries to admit negligence as legal tactic to keep evidence of its own wrongdoing and negligence hidden from a jury. We’ve previously shared three thoughts:

  1. Many states already have good law on allowing a direct negligence claim against the company and a claim against the driver).
  2. Comparative negligence requires exactly that – for a jury to compare  all parties’ negligence and allocate that percentage of fault for causing the crash.
  3. The Restatement of Agency supports claims against the trucking company and the truck driver.

The Restatement of Torts (Second)

The Restatement of Torts (Second) is also extremely helpful in this regard.  The Restatement of Torts also provides for two separate theories of negligence: Vicarious liability and direct negligence.

The Restatement of Torts (Second) provides two separate theories of liability where negligent entrustment is involved:

  • Vicarious liability: One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.  Restatement (Second) of Torts § 390 (1965) (emphasis added).
  • Direct negligence: It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others. Restatement (Second) of Torts § 307 (1965) (emphasis added).
  • Direct negligence: It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.  Restatement (Second) of Torts § 308 (1965) (emphasis added).

Note the subtle distinction: Under §390, the employer is subjected to liability for the harm negligently caused by his employee notwithstanding his own negligence; but under § 307 the employer is directly negligent for using a defective instrumentality (including a person); and under § 308 the employer is directly negligent for allowing a third party to use something, or engage in activity, which the employer knew would create an unreasonable risk of harm.

This is another important legal argument to stop clever defense attorneys from hiding bad acts of negligence that led to a deadly truck wreck. We at the Roundtable are committed to the principle that the only way to have fewer truck accidents and safer roads is to stop unsafe trucking companies from hiding what they did wrong. Next week, we will share a few additional legal tips  before wrapping up this series on what lawyers should do when the defense tries to hide bad acts by admitting negligence.

– Photo courtesy of Creative Commons, by Evil Erin

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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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