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What the Defense Does Not Want the Jury to Hear: The Defendant is a Professional Driver!

By Mike A. D'Amico
and
Brendan Faulkner
May 2012

Your client was seriously injured in a crash when a commercial truck driver turned left into the path of your client's car. Liability is not as clear as you would like. How do you win the jury over? You want to tell the jury that the truck driver is a professional driver but the defense has filed a motion in limine. The defense argues that referring to the truck driver as a professional driver is improper because you are improperly asking the jury to hold the truck driver to a higher standard of care. Who is right?

The Standard of Care for a Commercial Driver is the Same as for Other Drivers, but the Jury May Consider the Driver's Special Skills and Knowledge in Determining the Degree of Care Which Should Have Been Exercised Under the Circumstances.

The defendants argue that even though the truck driver is a professional driver, his training and years of experience are irrelevant and inadmissible because the standard of care for a commercial driver is the same as an ordinary driver. Yes and no. The professional experience of a truck driver is relevant in determining whether he exercised the proper degree of care under all of the circumstances.

The standard of due care in a traffic crash, in the absence of a legislative rule of conduct, is that of the ordinarily prudent person under the circumstances, but the degree of care necessary to satisfy that standard may vary. Steinhaus v. Steinhaus, 145 Conn. 95, 97, 139 A.2d 55, 56 (1958); Matulis v. Gans, 107 Conn. 562, 141 A. 870, 871 (1928).

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm 12 (2010) states the general rule that "[i]f an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person." The comments to this section acknowledge that, in the absence of an inherently dangerous activity or of a preexisting relationship between the parties, the rationale for the above rule is less compelling. See Id., comment a. Nonetheless, the Restatement takes the position that evidence of a defendant's extra skills or knowledge should be considered in determining whether the defendant has met the applicable standard of care by acting as a reasonable person would have under all of the circumstances:

  • Despite these concerns, on balance it is best to take persons' actual knowledge and skills into account when the level of their knowledge or skills exceeds the average. In determining which dangers the person knows or should know of, and which precautions the person can appropriately adopt, it simply is not possible to ignore what knowledge the person actually has . . .
  • Moreover, given that all actual knowledge is taken into account, it is appropriate to take all actual skills into account as well. In fact, knowledge and skills cannot be easily distinguished; what the professional driver or skier has is a combination of the two. Moreover, an alternative rule that professes to exclude evidence of the actor's special skills would likely be eroded by the dynamics of litigation; in one way or another, the fact of those special skills would end up coming to the attention of the jury. It can be noted that even though the actor's extra skills can properly be considered, these skills do not establish for the actor a standard of care that is higher than reasonable care; rather, they provide a mere circumstance for the jury to consider in determining whether the actor has complied with the general standard of reasonable care.

Id. (emphasis added).

In an injury case involving an expert skier, the Tenth Circuit stated the position upon which the comments to 12 of the Restatement (Third) rely:

  • It would appear then that in order to satisfy the standard of care, a person having special knowledge must exercise a quantum of care which is commensurate with the circumstances, one of which is his or her special skill and training. An instruction of this kind is not easy to expound in a charge to a jury for the reason that it is capable of creating the impression that a double standard of care exists. In truth there is but one standard, that of reasonable prudence under the circumstances. The decision must be made on the basis of the surrounding circumstances, including the fact that the person involved is an expert. He is called upon to exercise care commensurate with his knowledge of the risk in order to satisfy this 'reasonable' standard.

LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 734 (10 th Cir. 1977)(emphasis added); see also Sinai v. Polinger Co., 498 A.2d 520, 529-531 (D.C. 1985) (citing Lavine affirming trial court's jury instruction in a negligence action against a landlord / professional property manager that amount of care owed a tenant should be assessed by comparison with that amount of care normally exercised by other property managers).

Furthermore, the Restatement (Second) of Torts specifically adopts the idea that while the applicable standard of care is ordinary care, those with special skills or knowledge are expected to use those skills to recognize risks that an average member of the community might not:

The actor is required to recognize that his conduct involves a risk of causing an invasion of another's interest if a reasonable man would do so while exercising

  • (a) such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have; and
  • (b) such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.

Restatement (Second) of Torts 289 (1965). Comment m to 289 of the Restatement (Second) of Torts further elaborates on this concept:

  • m. Superior qualities of actor. The standard of the reasonable man requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgment in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities, he is required to exercise the superior qualities that he has in a manner reasonable under the circumstances. The standard becomes, in other words, that of a reasonable man with such superior attributes.

The case of Cervelli v. Graves, 661 P.2d 1032 (Wyo. 1983), illustrates the point. There, the plaintiff sued for personal injuries sustained in a collision between his pickup truck and the defendants' cement truck. The plaintiff appealed from a defense verdict based in part on his objection to the trial court's instruction that "[a] reasonable, careful person, whose conduct is set up as a standard, is not the extraordinarily cautious person, nor the exceptionally skillful one, but rather a person of reasonable and ordinary prudence." The plaintiff contended that this paragraph wrongly precluded the jury from taking into account any knowledge and skill the cement truck driver possessed as a result of his professional experience.

The Wyoming Supreme Court agreed, holding that the paragraph at issue should not have been part of the instructions and that a jury may take into account a driver's professional experience in determining whether he met the degree of care required under all of the circumstances:

  • That language is an apparent attempt to enlarge upon the reasonable man standard. In that attempt to explain the reasonable man concept, however, the instruction goes too far. It contradicts the correct statement of the law contained in the first paragraph of the instruction. Simply put, the first paragraph of the instruction correctly states that negligence is the failure to exercise ordinary care where ordinary care is that degree of care which a reasonable person is expected to exercise under the same or similar circumstances. The trial court's instruction first allows the jury to consider the parties' acts as compared to how the reasonable person would act in similar circumstances and then limits the circumstances the jury can consider by taking out of their purview the circumstances of exceptional skill or knowledge which are a part of the totality of circumstances.
  • Our view that negligence should be determined in view of the circumstances is in accord with the general view. The Restatement, Torts 2d 283 (1965) defines the standard of conduct in negligence actions in terms of the reasonable man under like circumstances. Professor Prosser, discussing the reasonable man, likewise said that 'negligence is a failure to do what the reasonable man would do under the same or similar circumstances.' He contended a jury must be instructed to take the circumstances into account. Prosser, Law of Torts 32, p. 151 (4th ed. 1971). Prosser also went on to note that under the latitude of the phrase 'under the same or similar circumstances,' courts have made allowance not only for external facts but for many of the characteristics of the actor himself.

661 P.2d at 1036.

The Jury May Consider the Truck Driver's Training, Education, and Experience, Including His Knowledge of the Federal Motor Carrier Safety Regulations.

A truck driver is a professional driver. While ordinary care of a reasonable person is the applicable standard of care, the degree or amount of care owed should be assessed by taking into consideration the driver's additional knowledge, skills and training as a professional. 1

In order to drive a commercial truck, a driver must have a commercial driver's license which requires training far different than that of a private passenger car. Truck drivers are specially trained, for instance, not to enter an intersection on a yellow light as their trucks are often over 70 feet long and they are unable to clear the intersection; further commercial truck drivers are trained not to try and beat a yellow light because the risk of a crash is heightened and their trucks can be deadly because of the vast difference in size and weight. This special training is not understood by lay people unfamiliar with commercial trucking and requires explanation by an expert with knowledge and understanding of commercial truck driving. 2

Commercial motor vehicle drivers are subject to and required to be knowledgeable of and conform to the safety guidelines outlined pursuant to 49 CFR 383.111, 49 CFR 383.113, and Subpart G to Part 383. The Federal Motor Carrier Safety Administration has developed and issued standards for the testing and licensing of CDL holders. 3 Based on these standards states develop their own tests satisfying the minimum federal standards provided for in 49 CFR 383. The tests must include a section on basic knowledge, i.e. covering the areas referred to in 49 CFR 383.111. This requires all commercial motor vehicle operators to have knowledge of 20 general areas, including safe operations regulations ( e.g. the effects of fatigue on commercial motor vehicle operation), speed and space management, and the relationship of cargo to vehicle control.

In order for the jury to properly assess whether a truck driver exercised reasonable care under the circumstances, they must be allowed to assess the driver's professional training and experience, as well as the law, regulations, and guidelines which govern his conduct. He is a professional driver, and you should not be precluded from referring to him as such.


[1] In a Connecticut case last year, the trial court included the following language in the portion of the jury charge explaining negligence: "The fact that [the truck driver] was driving a tractor-trailer at the time of this accident does not mean that the standard of care applicable to him is any different from the standard of care applicable to [the plaintiff]. A truck driver is subject to the same standard of care as any other motorist. However, you may take the experience and training of each driver into consideration in determining whether he or she acted as a reasonably prudent person under the circumstances." Emmanuele v. Howell, Jury Charge, docket no. CV-08-6002967, judicial district of Hartford at Hartford (Aurigemma, J.) (April 18, 2011). That same court had previously denied a defense motion in limine that sought to preclude plaintiff's counsel from referring to the truck driver as a professional driver. Emmanuele v. Howell, Order re Motion in Limine (no. 280.00), docket no. CV-08-6002967, judicial district of Hartford at Hartford, (Aurigemma, J.) (Jan. 11, 2011).

[2] A truck driving expert should be disclosed to express these opinions.

[3] The Commercial Motor Vehicle Safety Act of 1986 retained the states' right to issue a driver's license, but established minimum national standards states must meet when issuing commercial driver's licenses (CDLs). Most states have issued a Commercial Driver's License Manual which sets forth many of the applicable safety rules.