"But I didn't do it!": Expanding Theories of Vicarious Liability[dagger]

FDCC Quarterly, Summer 2008 by Franklin, Robert T

Not surprisingly, the Graves Amendment and its application have already been challenged in a number of litigated claims. In several instances, the new federal law has been held to validly preempt applicable state law under which the vehicle owner could otherwise have been held liable.59 The statute has been addressed in reported opinions from three different New York courts. In two of those cases the law was recognized as validly preempting the New York state law that provides for vicarious liability against vehicle owners.60 In Graham v. Dunkley,61 however, a different division of the New York court held that the Graves Amendment was unconstitutional.

In Graham, an owner of a vehicle involved in an accident filed a motion to dismiss the complaint against it, alleging that the complaint failed to state a valid cause of action due to the protection afforded by the Graves Amendment. The judge in Graham, however, refused to apply the new federal law holding instead that it was an unconstitutional intrusion into state law, beyond that which is permitted by the Constitution's Commerce Clause. In making that ruling, the judge showed precisely the type of "bleeding heart" sympathetic approach to finding any "deep pocket" to pick that it could, stating:

While the court's decision is strictly limited to the facts of this case, this court cannot wholly exempt a corporate class of tortfeasor from liability to otherwise innocent men, women and children, who seek recompense in the courts of the State of New York when they become sick, seriously injured, permanently maimed or even killed, directly as a result of a dangerous instrumentality owned only by that corporate class of tortfeasor who is doing business in the State of New York and subject to the laws of the State of New York, unless otherwise directed by the New York State Legislature.62

In playing the "injured children" card, however, the court conveniently ignored the fact that one who merely owns a vehicle is similarly "innocent" in terms of any accident caused by the independent operator of such vehicle. The court also exhibited classic liberal "class warfare" by referring to "corporate" tortfeasors, even though an individual owner of a vehicle could just as easily be held liable despite having committed no tortuous act whatsoever. Time will tell whether the Graham case will be followed in other jurisdictions. It is likely that at some point the United States Supreme Court may need to address the issue of the law's constitutionality.

V.

CONTRACTUAL LANGUAGE/BEST PRACTICES

In the face of increasing recognition of theories of vicarious liability against brokers and shippers for the motor carriers with whom they contract, those brokers and shippers should tailor their contracts and procedures so as to minimize potential exposure under the theories. For example, an applicable contract should make the independent contractor relationship between the parties explicit, and the brokers and shippers should endeavor to maintain the requisite "arm's length" with the motor carrier so as to maintain that relationship. The broker or shipper should also strive to have as little as possible to do with the actual movement of the freight, specifying that all aspects of such freight movement are within the motor carrier's control and discretion.