Employer liability for driving-while-fatigued?

Author: Adam Pomeroy

Last week PLF attorneys filed an amicus, or friend-of-the-court, brief in Maryland’s highest court, discussing employer liability for off-duty employees who drive while fatigued. The case is Barclay v. Ports America, Inc.

Ports America operates marine cargo facilities in Baltimore and employs longshoremen to load and unload ships. According to the terms of the collective bargaining agreement between Ports America and the longshoremen’s union, once an employee went on shift he could stay on shift as long as he wanted – Ports had no power to cut short an employee’s shift if there was any work left to do. In this case, a longshoreman employed by Ports America chose to work 22 hours unloading a ship and then began a 45-mile commute home. En route, he fell asleep at the wheel, crossed the center line, and collided with a car driven by Michael Barclay. Unfortunately, the longshoreman was killed and Mr. Barclay was grievously injured. Barclay sued Ports America alleging that the employer had been negligent in permitting long work hours and then letting employees drive home. Barclay argued that employers have a duty to general public to prevent fatigued workers from using the public highways. The lower courts didn’t recognize that duty, but Maryland’s high court is now considering the case.

PLF argued that employers do not have a duty to the public to monitor employees for fatigue or to prevent off-duty employees from driving while fatigued.  Employers should provide resting areas onsite for employees who do not believe they can drive safely (as Ports America did in this case), but cannot restrain an employee who believes himself competent to drive.  Finding that employers have such a duty would have severe negative consequences:

• first, employees would have to monitor employees for fatigue – possibly leading to violations of employees right to privacy;
• second, employers would have to prevent fatigued employees from leaving – possibly leading to violence or liability if the employee demands to leave and the employer restrains the employee from leaving;
• third, it would allow employees to not take responsibility for their actions by giving it to their employer; and
• fourth, recognizing a broad duty such as this would open the doors for opportunistic litigants to unjustly go after employers solely because they are the “deep pockets.”

Courts should not impose tort liability on employers for the actions of their off-duty, off-premises employees. If anyone is liable to Mr. Barclay it is the longshoreman – through his estate – who chose to drive home while fatigued.