Brad Pistotnik Law
Abogado El Toro

Negligent Hiring, Negligent Supervision, Negligent Training

How do find a lawyer with expertise in bringing claims for negligent hiring, training, supervision, qualification, and retention?

Personal injury victims that have been involved in a car accident, motorcycle accidents, tractor-trailer accident or involved in a business owned vehicle or a fleet vehicle need to understand that there is a completely different part of the law that affects the thought process for the lawyer that you pick for you. When you hire a personal injury lawyer or attorney you must have some idea of what their basis of understanding is for complicated in catastrophic injury cases. Any lawyer can pretend to understand the field of personal injury civil practice on the plaintiff’s side just by claiming they know it. The truth of whether they actually know it is in the number of cases they file and how often they are in depositions and hiring experts. The attorneys at Brad Pistotnik Law are experienced in the areas of tractor-trailer and fleet commercial motor vehicle accidents. Brad has trained Tony, Jay and Bill in the art of discovery as it relates to finding issues about negligent hiring, training, and supervision. Those issues subsequently relate to whether or not the employee driver who caused an accident should be retrained, suspended, warned or simply fired under the rule of 3. A lot of trucking companies and bigger employers with fleet vehicles give people that drive for them a lot of brakes because they don’t want to show the evidence to the general public. When they do that they are ratifying the conduct of the driver and employee by failing to retrain an employee in the safety training session. They ratified the conduct by failing to warn or suspend that employee. In many cases, they should fire the employee immediately so the next person down the road is not killed. Unfortunately, everybody doesn’t do with are supposed to do. That is why you need lawyers like the lawyers at Brad Pistotnik Law that are highly trained in trucking accidents and other business-related commercial motor vehicle cases. Brad wrote the book on truck accidents kill. This regulatory and safety study looks at the analysis of the past history of our nation’s trucks on our roadways and shows how accidents can easily happen for failing to comply with the FMCSR. If your lawyer doesn’t know the FMCSR by heart and doesn’t know the basics under the comprehensive safety analysis system or CSA than you have a lawyer who does not have sufficient skill to be trying your trucking case.

A decent personal injury lawyer should know and have a high level training in the area of safety as it relates to compliance with the DOT and FMCSR regulations which fall under the general regulatory scheme starting at 49 CFR sections 380 through 399. Some of the law applicable to this rather stringent scheme of regulations is discussed immediately below. The point is that you need a lawyer that understands how complicated the law is.

If your lawyer is experienced in DOT regulations and the FMCSR regulations he should understand the general allegations that are required in a standard tractor-trailer accident. The tractor-trailer being operated by Defendant motor carrier and their driver was operating in interstate and intrastate commerce making it subject to the Federal Motor Carrier Safety Regulations issued under 49 C.F.R. Sections 381 through 399 which are enforceable pursuant to the Motor Carrier Act, PL 96-296, 1980 S 2245 and PL 96-296, July 1, 1980, 94 Stat 793.

The lawyer should allege that the tractor-trailer owned and/or operated and leased by defendant that was involved in this collision was dispatched, supervised, monitored, operated, and controlled by the department of operations, and the fleet management of the defendant motor carrier.

He should allege that the driver was hired, qualified, supervised, and trained by defendant Jack Cooper Transport.

He should allege that the Defendant and the driver were operating as a motor carrier as defined by the Federal Motor Carrier Safety Regulations (FMCSR).

He should allege that at all times material hereto defendant and their driver were operating under authority through the Department of Transportation (DOT) under their respective DOT licenses as set forth in preceding paragraphs above.

He should allege that 49 C.F.R. § 390.3(e)(1) & (2) provide that every driver and employee shall be instructed regarding and shall comply with all applicable regulations contained in the FMCSR.

He should allege that 49 C.F.R. § 390.4 provides that "motor carrier" means a for-hire motor carrier or a private motor carrier. That term includes a motor carrier's agents, officers, and representatives as well as employees responsible for hiring, supervising, training, assigning, or dispatching of drivers.

He should allege that Defendant and their driver were at all material times a "motor carrier" and an "employer" of its driver as defined as defined in 49 C.F.R. §382.107.

He should allege that 49 U.S.C. § 14704(a)(2) provides that "A carrier . . . is liable for damages sustained by a person as a result of an action or omission of that carrier. . . in violation of this part.” He should allege that 49 U.S.C. § 14101(a) provides that "a motor carrier shall provide safe and adequate service, equipment and facilities." Defendant and their driver negligently and wantonly failed to provide safe and adequate service which proximately caused the injury, death and damages to plaintiffs.

He should allege that the FMSCRs are located at 49 C.F.R. § 390 et seq. The FMCSRs and the MCA specifically under the section 40 C.F.R. § 391.1(a) and (b) states “(a) The rules in this part establish minimum qualifications for persons who drive commercial motor vehicles, as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualification of drivers. (b) A motor carrier who employs himself/herself as a driver must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers.” The FMCSR’s set forth the applicable minimum industry standard of care including the minimum qualifications for drivers and the minimum duties for drivers under 49 C.F.R. § 391.1(a) & (b).

He should allege that the Defendant motor carrier and their driver acted negligently and wantonly by reviewing their DOT and FMCSR records to provide a basis to allege they have an extraordinary history of unsafe driving violations of the FMCSR combined with having a faulty safety program which is preplanned and ultimately fails to meet the minimum requirements of the FMCSR and allows the company to negligently and improperly fail to properly qualify, train and supervise their drivers. This lack of development of appropriate safety countermeasures was as a result of a willful and conscious decision by the motor carrier to avoid spending necessary funds and monies to appropriately recruit, qualify, hire, train and supervise drivers with appropriate hazard perception training, defensive driving training and other safety countermeasures prescribed by the DOT and FMCSR in order to minimize preventable accidents which would have helped this driver avoid this accident. It is further believed that they have consciously failed to conduct appropriate audits of the driver’s hours of service records to meet the minimum industry standard that is required. They have underutilized log audits in a conscious decision to avoid hiring additional log auditing people which allows them to save money and increase profits at the expense of the plaintiff and the traveling public. The motor carrier’s decision to avoid spending monies on appropriate safety countermeasures prescribed by the Federal Motor Carrier Safety Administration (FMCSA) and the Federal Motor Carrier Safety Regulations (FMCSR) is an express or implied ratification of the conduct of the driver in driving their commercial motor vehicle (CMV) in an unsafe and inappropriate manner.

The lawyer should use the Safersystem Motor Carrier Snapshot to establish that the motor carrier has a systemic problem which is a habit, custom and a routine practice of allowing hours-of-service violations; a habit, custom and routine practice of unsafe driving violations; as well as a custom, habit and a routine business practice of failing to appropriately maintain its fleet of commercial motor vehicles for safety.

An employer has an obligation to use reasonable care in hiring, selecting, training and supervising their employees. They have a duty to hire safe and competent employees which includes the duty to control persons in their employment. If the Defendant knew or reasonably should have known that the employee presented a risk of harm to others and failed to appropriately train and supervise the employee then this duty is violated. Patterson v. Dahlston, 130 F. Supp.2d 1228 (D.Kan. 2000); Marquis v. State Farm Fire and Casualty Co., 265 Kan. 317, 265 Kan. at Syl. 7, 8; 961 P.2d 1213; Smith v. Printup, 254 Kan. 315, 866 P.2d 985; Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993); C.J.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993); Anspach v. Tomkins Industries, Inc., 817 F.Supp. 1499, 1519-20 (D.Kan.1993); Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991); Glover v. TransCor America, Inc. 57 F.Supp.2d 1240, 1245 (1999).

Whatever you are an unfortunate victim who has been injured by a business owned vehicle and you must look at negligent hiring, training, supervision, qualification and retention theories because each brings a separate cause of action which is distinct from a normal negligence claim for driver misconduct. This line of reasoning applies to all auto accidents, truck accidents, motorcycle accidents and tractor to-trailer accidents which are caused by a business that owns a fleet vehicle or a commercial motor vehicle or a vehicle which must meet the terms of the Federal Motor Carrier Safety Regulations (FMCSR). It changes the context of the case and makes the pursuit of the case more valuable. In essence, your lawyer can bring a claim for the regular negligence of the driver and then bring a set of additional claims under respondeat superior and vicarious liability doctrines for the separate and distinct causes of action set forth below:

1. Negligent hiring;

2. Negligent supervision;

3. Negligent training;

4. Negligent retention of a driver who is already had an accident;

5. Negligent qualification of the driver under the FMCSR.

Many personal injury attorneys do not do justice to their clients when they file a lawsuit with only standard negligence claims and leave these additional causes of action out of the case. They may commit malpractice when they do so. Why do they do it? Because it is much more difficult to do, it costs a lot, it takes extensive written discovery and depositions to prove and you must spend money on a safety expert. Many lawyers cannot afford, $20,000.00 to hire a safety expert or another $20,000.00 to retain an accident reconstruction expert. That lawyer will not be able to afford to help you or your family.

In Marquis v. State Farm Fire and Casualty Co 265 Kan. 317, 961 P.2d 1213 (1998), the Kansas Supreme Court held “Theories of negligent supervision or control and negligent hiring or retention of employees are separate and distinct from theories of liability of negligent entrustment. Negligent supervision includes not only the failure to supervise but also the failure to control persons with whom the defendant has a special relationship, including the defendant’s employee or persons with dangerous propensities” (265 Kan. at Syl 7, 8)

In Patterson v. Dahlsten, 130 F. Supp.2d 1228 (D. Kan. 2000) the Federal District Court analyzed the law in Kansas after Marquis, and commented specifically on the uniqueness of negligent hiring, training supervision, training and retention theories and stated,

. . . in Kansas, the torts of negligent hiring, retention, or supervision are torts 'distinct from respondeat superior,' as they are 'not derivative of the employee's negligence.' Id. at 1225. 'Liability is not imputed, but instead runs directly from the employer to the person injured.' Id. See also, Miller v. Dillard's Inc., 47 F.Supp.2d 1294, 1299 (D.Kan.1999) ('Even if the employer admits the employee was acting within the scope of his or her employment, the plaintiff may still bring an action for both respondeat superior and negligent entrustment or negligent hiring, retention, or supervision.') (internal quotation and citation omitted); Mart v. Dr. Pepper Co., 923 F.Supp. 1380, 1389 (D.Kan.1996) ('Liability for negligent supervision and retention is not vicarious liability under the doctrine of respondeat superior, but is direct liability....').

130 F.Supp.2d at 1232, 1233. (footnotes omitted) (emphasis supplied)

The well-known case of Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993) best illustrates why the evidence of the deficiencies is admissible. The lower court excluded evidence of pre-accident occurrences. The Kansas Supreme Court stated, “While we agree that conduct nearly three years before the accident may be remote in time, evidence of a course of causally related misconduct over a three-year-or-more period is relevant. . . If there is evidence of causally related misconduct. . . the evidence is relevant because it shows a long-term pattern of the same misconduct.” 254 Kan. at 343.

Ratification is an important concept related to negligent hiring, training, supervision, retention and qualification cases. In Smith v. Printup, id., authorization under the provisions of K.S.A. 1992 Supp. 60-3701(d)(1) may be either express or implied and generally is accomplished before or during the employee’s questioned conduct. It may be based on an express grant of authority or on a course of conduct indicating that the employee was empowered or given the right or authority to engage in the questioned conduct. It may be based on an express ratification or based on a course of conduct indicating the approval, sanctioning, or confirmation of the questioned conduct. 254 Kan. at 341.

Insurance companies know Brad Pistotnik Law fights as hard as any law firm in the State of Kansas. They know that we wrote or filed over 100 lawsuits in 2016. They know that we filed what was likely the highest number of personal injury suits by any law firm in 2016.
You can ask Judges in the Sedgwick County District Court that are in charge of lawsuits and discovery to find out who really files the most cases in this part of Kansas. It is Brad Pistotnik Law.

They know how many law firms file how many law suits. Lawyers that file law suits are trial lawyers and are generally highly experienced personal injury attorneys and lawyers. We file suits in Kansas, Nebraska, Missouri, Illinois and elsewhere.

This means that the insurance companies have to spend hundreds of thousands and millions of dollars to defend their insurance company and the motor carrier or business owner and their driver that hurt you. Insurance companies know that Brad Pistotnik Law does not give up. Insurance companies do not want to spend hundreds of thousands or millions of dollars to defend cases if they can get them resolved quickly and fairly. Insurance companies know they have to be afraid of our firm because of the strength of the firm and our ability to file so many law suits and to litigate cases day after day and year after year. With fear comes respect and with respect the lawyer gets many insurance companies that do not want to go to court and want to settle before trial.

We carry the tradition of helping injured victims under the general dba name of Pistotnik Law and you can always find us by simply searching for Brad. You can do a google search for Brad Pistotnik or Brad Pistotnik Law or Pistotnik Law and it will lead to finding the Brad Pistotnik Law, P.A. firm on the first page of the Google search.

Brad started this firm in 1983 when it was called Bradley A. Pistotnik, P.A. and we keep fighting for the rights of our clients so we can help injury victims who have suffered a personal injury or bodily injury.

We only have one office location which is located on the northeast side of Wichita at 10111 E. 21st St. N., Suite 204 Wichita, KS 67206. Brad Pistotnik, Tony Atterbury, Bill Bar and Jay Sizemore make up our present four trial attorneys. Our business phone number is 800-241-Brad. The main line is 316-684-4400. Brad Pistotnik can be located on a cell phone at 316-706-5020. Tony Atterbury can be located on his cell phone at 316-617-9237. Brad and Tony will come to see you at any time of day or night and we will travel across Kansas and to other states as well. Jay Sizemore can be located on his cell at 620-242-5253. Bill Barr can be reached on his cell phone at 312-550-3204.

Our team of personal injury lawyers work hard and work up to 100 hours a week to help our clients. All of our personal injury attorneys give out their cell phone number to each and every client. Try and find a normal personal injury attorney that gives you their cell phone. Not many do. But we always do. You can call us at night and on the weekends and holidays. We always will return your calls and we speak to Hispanics that need an Abogado through our interpreters, Karla and Reyna. When you want a lawyer who will answer the phone at night or on Christmas, New Year’s Day, the 4th of July, Thanksgiving, Easter or any other holiday, call us. We always do. You can reach me, Brad Pistotnik, any time of the day 24 hours a day at 316-706-5020. If I don’t answer the call because I’m asleep or busy I will return the call as soon as I can. Tony will answer the phone as well at night and on weekends and holidays. Everyone at Brad Pistotnik Law is highly dedicated and will give the extra attention that you need to help you win your case.

We serve bodily injury and personal injury victims from car accidents, motorcycle accidents, trucking accidents, bicycle accidents, pedestrian accidents, construction accidents, Worker’s Compensation accidents, plane crash accidents, wrongful death claims, electrocution claims, medical malpractice, nursing home negligence claims, and production liability claims. We do just about every other bodily injury claim you can think of in many states and cities.

Brad Pistotnik Law aka Pistotnik Law will help you and your family with any personal injury claim. We especially help people in Wichita, Garden City, Dodge city, Liberal, Hayes, Colby, Great Bend, Pittsburg, Coffeyville, Wellington, Arkansas City, Kingman, Great Bend, Hutchinson, Salina, Abilene, Newton, McPherson, Lindberg, Fredonia, Fort Scott, Kearney, Lincoln, Omaha, Kansas City, Sedgwick County, Wyandotte County, Jackson County, Wyandotte County, Seward County, Summit County, Ford County, Saline County, Ulysses, Satanta, Bird City and every other place you can think of in Kansas, Nebraska, Missouri and Illinois. I can promise you that if you call us we will always give you a free consultation as fast as humanly possible and our lawyers actually care about you and your family. We will come to you at your home or hospital. We are willing to spend the money it takes to build your case and we don’t charge anything unless we recover money. We will work as hard as humanly possible. When you need a hard-working and dedicated experienced trial attorney that helps you to win your case and get your damages then call Brad Pistotnik Law. Call for Brad, Tony, Bill or Jay.

Brad Pistotnik Law also helps people that are personal injury victims in Bellevue Nebraska and in the following other cities in Nebraska: Grand Island, Kearney, Hastings, North Platte, Norfolk, Columbus, Abie, Ainsworth, Alda, Allen, Amelia, Amherst, Anselmo, Arapaho, Archer, Arnold, Ashby, Ashton, Atlanta, Aurora, Axtell, Bancroft, Bartlett, Bassett, Bayard, Beaver city, Bee, Belden, Bellevue, Belvedere, Benkelman, Bennington, Adams, Alexandria, Alliance, Ames, Angora, and sleep, Arcadia, Arlington, Arthur, Ashland, Atkinson, Auburn, Advocate, Boston, Berkeley, Battle Creek, Beatrice, Beaver Crossing, Beamer, Belgrade, Bellwood, Big Springs, Blair, Bloomington, Blue Springs, boys town, Brady, Brewster, Brock, Brownville, Bruning, Brunswick, Burke, Bushnell, Byron, Cairo, Cambridge, Carrollton, Cedar Bluffs, Cedar Rapids, Central city, Chadron, Champion, Chapel, Clark’s, Laconia, Clearwater, College, Columbus, Concorde, Bladen, Bloomfield, blue Hill, Bradshaw, Brainard, Bridgeport, Broadwater, Broken Bow, Bruno, Burchard, Burwell, Butte, Calloway, Campbell, Carroll, Cedar Creek, Center, Ceresco, Chambers, Chapman, Chester, Clarkson, Clay Center, Cody, Comstock, Cook, Culbertson, Dakota City, Danbury, Davenport, David City, Decatur, Deshler, Dickens, Dix, Dorchester, Du Bois dealer, Dixon, Doniphan, Douglas, Dunbar, Dunning, Dodge, Dwight, Eagle, Elk Creek, Ellsworth, Ellesmere, Elyria, Emmett, Endicott, Exeter, Eddyville, Edison, Elkhorn, Elm Creek, Elwood, Emerson, Anders, Erickson, Ewing, Fairbury, Fairmont, Farnam, Filley, Fordyce, Foster, Fremont, Fairfield, Falls City, Farwell, Fort Calhoun, Franklin, Funk, Garland, Geneva, Giltner, Goehner, Gothenburg, Grand Island, Greeley, Gresham, Guide Rock, Gering, Gurley, Hamlet, party, Harrison, Henry, Percy, Hildreth, Holdredge, Holstein, Hooper, Hoskins, Hubbard, Humboldt, Herman, Hickman, Holbrook, Holmesville, Homer, Hubbell, Humphrey, Imperial, Indianola, Inman, Inavale, Inland, Jackson, Johnson, Kennard, Kilgore, Kenesaw, Keystone, Campbell, La Vista, Laurel, Lebanon, Lakeside, Lawrence, Lewellyn, Lexington, Lincoln, Lynwood, Litchfield, Long Pine, Warden, Lynch, Lewiston, liberty, Lindsay, Lisco, Lodgepole, Loomis, Louisville, Lyman, Lyons, Macy, Madrid, Malcolm, Manley, Marshland, Martin, Mason City, Maxwell, McCook, McGrew, Mead, Myrna, Milford, Milligan, Minitare, Mitchell, Moorefield, Morse Bluff, Murdock, Madison, Magnet, Marquette, Martell, Maskell, Max, Maywood, McCool Junction, MacLean, Meadows Grove, Memphis, Merriman, Miller, Mills, Minden, North Bend, North Platte, North Loup, Oak, Oakland, O’Dell, Oneill, Orchard, Orleans, Oshkosh, Otoe, Oxford, Oakdale, Odessa, Ocala, Omaha, Osceola, Overton, Page, Palmer, Panama, Parks, Paxton, Paris, Phillips, Pierce, Pine Bluffs, Platte Center, Palisade, Papillion, Pender, Petersburg, Pickrell, Plainview, Plattsmouth, Pleasant Dale, Plymouth, Ponca, Pleasanton, Polk, Potter, Primrose, Red Cloud, Reynolds, Rising City, Riverton, Rockville, Rosalie, Roselyn, Ruskin, Randolph, Raymond, Republican City, Richfield, Riverdale, Rogers, Rose, Royal, Rushville, Saint Edward, Saint Library, Salem, Scotia, Scribner, Seward, Shelton, Schubert, Silvercreek, Snyder, St. Helena, Saint Paul, Sargent, Scottsbluff, Seneca, Shelby, Shickley, Sydney, Smithfield, South Bend, Stanford, Staples, Steele City, Stella, Stockdale, Stratton, Stewart, superior, Stapleton, Sterling, Strang, Stromsburg, Summer, Surprise, Sutton, Syracuse, Table Rock, Taylor, Thurston, Tobias, Trumbull, Stanton, Stapleton, Tecumseh, Bedford, Tilden, Tryon, Union, Utica, Valentine, Verdel, Verdon, Valley, Virginia, Upland, and other cities and towns in Nebraska.

Whenever you need a personal injury attorney, personal injury lawyer or abogado, Call in the Bull. Call Brad Pistotnik Law at 316-684-4400.