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Virginia law recognizes a claim for the negligent hiring of an employee or an independent contractor. With respect to independent contractors, the Virginia Supreme Court recognized a rule of liability for negligent hiring of an incompetent independent contractor, adopting the principles set forth in the Restatement (Second) of Torts § 411 which recognizes a defendant’s “liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor…to do work which will involve a risk of physical harm unless it is skillfully and carefully done.”

A U.S. District Judge in the United States District Court for the Western District of Virginia recently applied this principle in the context of the selection of a tractor trailer truck carrier by a freight broker or third party logistics company. In Jones v. C.H. Robinson Worldwide, Inc., a tractor trailer truck crashhttp://www.valawyersweekly.com/usdc-va-western-opinions/2008/06/12/008-3-216-jones-v-ch-robinson-worldwide-inc/ occurred when an inexperienced tractor trailer truck driver crossed the median and struck another tractor trailer truck head-on. The plaintiff driver sued the broker that hired the negligent driver’s carrier under a theory that the broker was negligent in the hiring of the negligent driver’s carrier. The court initially found that the operation of a tractor-trailer involves such a risk of physical harm contemplated in the Restatement, and, thus, that the plaintiff’s claim for negligent hiring of an independent contractor was viable under the facts of the case.

The court noted that at the summary judgment stage, the defendant did not dispute that the negligent driver or her carrier were incompetent. A federal motor carrier can be rated by the FMCSA as satisfactory, conditional, or unsatisfactory. Worldwide knew that the negligent driver’s carrier had received a “conditional” rating prior to assigning the “hot load” to the carrier in question. A hot load is one that must be delivered in a hurry. The FMCSA maintains a public website including safety information on all federal carriers. The subject carrier was in the bottom 3% in driver and vehicle safety evaluation areas. The court found that Worldwide had a duty to investigate the fitness of the carrier prior to hiring it to carry a “hot load” on the public highways, and, therefore, denied Worldwide’s motion for summary judgment. On May 8, 2008, in a bifurcated trial, the jury returned a liability verdict against Worldwide.

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