What Is A Higher Standard Of Care? By Carmen DaecherPlaintiff attorneys love to talk about the "higher standard of care" as if it exceeds the heavens. On the other hand, they also assert that Federal Motor Carrier Safety Regulations are "minimum standards". How should anyone make sense and define what is a "higher standard of care"? I believe there is a simple way to do this. Ask yourself this question - What rules must the driver of a passenger vehicle abide by? Simply put, the answer is all state specific regulations or statutes related to driving and using public highways. Now ask yourself - What must a professional commercial driver comply with? The answer is the same rules as the driver of a passenger vehicle plus any additional regulations or statutes related to driving commercial vehicles and the Federal Motor Carrier Safety Regulations if you are involved in interstate commerce. In most cases, state regulations for commercial drivers are the federal regulations. This makes the answer to "higher standard of care" simple. The answer is the Federal Motor Carrier Safety Regulations. This also makes clear that these regulations are not "minimum standards", they are the standard. There is other knowledge or information that a commercial driver must understand that is different from the knowledge a driver of a passenger vehicle must know. To understand what these are compare the state driver manuals for driving a passenger vehicle as compared to driving a commercial vehicle. Issues of following distance, and other types of important principals are contained in these manuals, from which tests to obtain licenses are derived, and they form a foundation of necessary knowledge that a driver must know. The skills test a driver takes in the vehicle for which they are receiving a license completes the foundation of knowledge and skill required to obtain their license. This means that compliance with regulations is not simply performed for compliance sake, but to meet the "higher standard of care" that many states require of commercial drivers. Motor carriers can qualitatively improve providing a higher standard of care by implementing management systems which build upon this standard. The systems will complement the standard in that they can define the physical requirements of a job, even though such a definition is not required in the regulations. They can define minimally acceptable driving histories for hiring and for continuing employment, even though these are not defined in the federal regulations. They can define disciplinary actions for unacceptable behaviors, even though they are not defined in the federal regulations. In other words, good risk management is a supplement and compliment to the basic foundation for a higher standard of care. Other than for new entrants and drug and alcohol abuse, training also is a supplement to the standard. And good communication processes also qualitatively enhance the standard. Committing management processes to written policies and procedures continues to qualitatively enhance the organizations ability to consistently perform to the level which the organization has defined for itself. And, just as documentation is required by the Federal Motor Carrier Safety Regulations, documenting the actions that an organization takes to enhance the quality of the standard of care is highly recommended. This does not mean that you should keep documents forever. Document overload can be a real problem for organizations depending upon their size. But you should retain documents for the time required by the Federal Motor Carrier Safety Regulations and retain documented confirmation of enhancements that you implement (such as driver training) for the length of employment or use of an individual, equipment, etc. Why is all of this important? Because you need to clearly understand what is required of you and your drivers and, in addition, what should be considered to consistently and adequately manage risk, based upon the organization's criteria in excess of the standards contained in the Federal Motor Carrier Safety Regulations. Plaintiff attorneys will call whatever you do inadequate. They will attempt to show that it is imperfect and could have been better. But don't allow them to confuse you into thinking that perfection is the standard. Throughout my experience I have seen no "perfect" system or standard. What is far more important is whether you have been reasonable in attempting to manage risk and comply with a "higher standard of care" as defined by the Federal Motor Carrier Safety Regulations. My previous article of not letting foxes in the henhouse would be worth rereading at this point. Look at the operational aspects associated with accidents:
The key point is to maintain compliance with Federal Motor Carrier Safety Regulations and your policies and procedures at all times. While you may have occasional lapses, you must guard against frequent and repetitive lapses in complying with the Federal Motor Carrier Safety Regulations or your own policies and procedures.. Let the plaintiff attorneys play God. You continue to strive to make your organization the best that it can be here on earth. *** Click here to visit the NADME training web site ***
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