reptile theory

It is no secret that jury verdict awards against transportation companies are on the rise nationwide. In May 2018, a Harris County, Texas jury awarded $89.7 million to a mother who lost a child and whose other child was seriously injured despite the undisputed facts that the truck driver was driving below the speed limit, did not lose control and that the claimant vehicle crossed the center line.

The plaintiffs’ counsel persuaded a jury to find in favor of the plaintiff because the truck driver was directed to drive through freezing rain and icy conditions. Post-trial, plaintiffs’ counsel was quoted as saying that the company’s “business model is deadly, dangerous and absolutely must change.”

This verdict was not an isolated event.

In all, there have been more than 40 verdicts against trucking companies in excess of $10 million in recent years. It has become common practice for plaintiffs’ attorneys to employ the “reptile theory” throughout discovery and at trial while seeking increasingly larger verdicts against transportation companies. This approach seeks to invoke an emotional response in jurors that transportation companies are profit-driven and are not concerned with the general public’s safety.

Transportation company drivers may even be portrayed as the victim of the profit-driven company’s refusal to give them the tools to operate safely. Rather than being asked to award damages for the alleged injuries to this specific plaintiff, jurors are encouraged to render large verdicts against the transportation company to send a message to the defendant trucking company (and the industry) and to deter the alleged bad conduct on the part of the company going forward.

So, besides having a strong safety policy that is uniformly enforced, what are transportation companies doing to navigate through these issues and better protect themselves?

First, companies should ensure that driver qualification files, hours of service logs, pre-trip inspections, and maintenance records are compliant with federal regulations and overall standards of care. Files, logs, and records need to be maintained and need to be complete. Minor omissions or incomplete files can play into reptile theory. Further, drivers who fail to properly keep logs or complete inspections should be subjected to discipline by the company up to and including termination, in accordance with the Company’s handbook.

Next, companies should require drivers to regularly update their safe-driving training. Companies that train and re-train their drivers on safe driving behaviors demonstrate their commitment to public safety. Besides presumably increasing public safety, documentation of these training efforts provide demonstrable evidence to companies to refute reptile arguments associated with safety and training.

Technology can help promote and demonstrate a Company’s safety culture. Collision-mitigation systems, lane-departure warning and correction systems, driver fatigue-sensing systems, adaptive cruise control, and other avoidance systems may reduce the number and severity of accidents. Companies without these technologies (if available) can expect to be challenged on their commitment to public safety as part of a reptile approach.

Next, inward and outward facing dash cam systems and GPS systems can equip companies with accurate information about unsafe driving behaviors. The American Transportation Research Institute (ATRI) has conducted studies which indicate these types of driving behaviors are strong predictors of future crash involvement. Companies that review and analyze video and data from their drivers are better positioned to address unsafe driving practices. Should an accident occur that ends up in litigation, the company can demonstrate that steps were taken to identify and prevent any unsafe driving behavior such as that alleged to have been involved in the lawsuit. However, having the systems is not enough. Failure to monitor and/or take action to retrain drivers with an unsafe driving behavior identified by the camera or tracking system can create additional reptile arguments.

The more companies can demonstrate that they are committed and take a proactive approach to safety, the better they will be able to protect themselves and successfully navigate through what has become an increasingly adverse litigation landscape.

Sources: KETV Omaha

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