In my last article, I explained the benefits forward facing video camera systems may have on litigation expenses for commercial motor carriers and insurance companies. However, as the saying goes, not everything is as good as it seems. Even though the implementation of forward facing video cameras does have its benefits, it also creates the potential for greater exposure to commercial motor carriers and their insurers.
For example, forward facing video camera systems increase the possibility for exposure to a negligent supervision claim. North Carolina recognizes a claim for negligent hiring, supervision, and retention if the claimant can prove:
(1) the specific negligent act on which the action is founded . . . (2) incompetency, by inherent unfitness or previous specific acts of negligence, from which incompetency may be inferred; and (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the master could have known the facts had he used ordinary care in oversight and supervision,’ . . .; and (4) that the injury complained of resulted from the incompetency proved.1
The crux of a negligent supervision/retention claim generally turns upon whether the employer had actual or constructive notice. Usually, the employer has nothing to fear if the driver does not have a history of traffic accidents or violations. Without this information, history of traffic accidents or violations, it is more difficult to prove the employer had actual notice and even harder to prove constructive notice. However, depending upon the accessibility while the vehicle is in operation, activation mechanism, and some other functional capabilities, forward facing video camera systems allow for the employer to have more knowledge than it otherwise would.
The camera allows trucking and insurance companies to have recorded video footage of how an accident occurred. It follows that the camera also allows trucking and insurance companies to have real time footage of the commercial driver’s overall driving skill. The video footage would record the driver’s speed, whether he commits traffic violations, and, more generally, his/her overall skill as a driver.
For instance, the employer would have actual notice if it sees footage detailing the driver’s inaptitude or dangerous tendencies. Moreover, even if the employer has not seen the footage, a claimant would have a strong argument that the employer had constructive notice. As explained in the cause of action, the employer has constructive notice if it “could have known the facts had he used ordinary care in oversight and supervision.”2 The claimant would argue that the employer could/would have known the facts of the driver’s driving ability if the employer had reviewed the recorded footage.
Forward facing camera systems raise many questions. Does a commercial motor carrier need to review the recorded footage for its driver(s)? How often does the footage need to be reviewed? Does the employer have to retain the recorded footage? If so, for how long? Like most technological advancements, the law is slow to adapt.
Currently, the Federal Motor Carrier Safety Administration has minimum record retention guidelines for certain information and documentation.3 For example, within the driver qualification file the driver application, motor vehicle report from hire, safety performance history, and photocopy of commercial driver’s license must be retained for the driver’s employment, plus three years.4 Other records have shorter retention periods.5 The retention of video footage is not yet specified. Furthermore, the amount of storage that would be needed for the footage could be immense. As a result, the requirement to retain the recorded footage could very well vary with the size of the commercial motor carrier.
Along the same lines, there is currently no case law defining the employer’s duty to review the recorded footage or how often footage should be reviewed. However, as the technology is increasingly implemented, the likelihood of future case or statutory law is likely. Presumably the court will implement a “reasonableness” standard, especially since the fleet of commercial vehicles and employed drivers differs for each motor carrier.
Therefore, instead of waiting for the specific duty to be defined, the employer should take proactive steps to avoid being the potential poster child. The following are proactive measures that could prove beneficial for employers of commercial vehicle drivers with forward facing camera systems:
- Internal policy for reviewing recorded footage;
- Internal policy for the retention of recorded footage;
- Internal policy for tracking and documenting potential traffic violations;
- Training guidelines for corrective measures based on traffic violations.
Insurance carriers would also benefit by encouraging their insureds to create internal policies for forward facing camera systems. This would potentially help ensure that the commercial insurance carriers are not left footing the bill for a negligent supervision claim. It is important to note that compliance with internal policies does not insulate an employer from potential liability. Further, the policies and information surrounding the policies are likely discoverable if a lawsuit is filed. Nevertheless, the adherence to internal policies helps demonstrate the employer’s reasonableness in its supervision and retention of its employees. Just like a double edge sword, the practical reality of forward facing camera systems is that they can help and hurt. At times, the camera system has the capability to reduce litigation costs, and at other times, exposes the employer to greater liability. The industry trend is toward using the devices.
1 Medlin v. Bass, 327 N.C. 587, 591, 398 S.E.2d 460, 462 (1990).
3 See 49 CFR §§ 391.51, 395.30.
4 See 49 CFR §§ 391.51, 391.21, 391.23, 391.31, and 391.33.
5 See 49 CFR §§ 391.25, 391.27, and 391.43.