judgment in favor of caleb in three days name cause of action like arius liability joint venture in negligent hiring the central issue before this court is whether the district court properly applied the summary judgment standard to the pla 's three cause of action and dismissing all the plants claims laws of it very clear that the judge should not weigh evidence judge credibility of witnesses nor make any inference we're going to give you the facts of the case which is exactly what the district judge improperly did in independent contractor if the party knew or should have known that the independent contractor was unfit and the case at hand kalen had direct knowledge that n z was unfit when it selected for the november second two thousand and eleven transport easily accessed information kalen actually paid a service called carrier to pull this public information and put it in the easy to use format for its employees to be considered when ever they selected a motor carrier to move  which includes abysmal safety record and included the previous wrecks and multiple basic scores above the respective thresholds one of our main concerns is that the judge somehow came to the conclusion on her own that basic scores or an unreliable in this case all part at times prior to the accident was an unrelated motor carrier so the question is what information was available if they're not related while basic scores have gone into effect in two thousand and ten and that information was available and there were available that their motor carrier in this case a z was under rated and that they could see how many regs that this company had been in prior to hiring them and other pertinent safety information and making an informed decision or what should have been informed decision in administration that's who did the score right i mean in canada or easy a or from zero to one hundred in these different categories yes or and cayle them had these scores in these different categories and so your argument seems to be that the judge said recognising what the scores are my real question is how the scores can be used to accurately predict well that goes to a place that i have before i get there here's where i want to go don't these numbers this is this eighty three point man and save driving eighty two point one and the te four point eight in vehicle maintenance what are they based on these in that both want to history it's based on or the road performance when you know when you see the eighteen wheelers and you say pull over into this lane go t way station that there it's based on you know receiving traffic tickets if they were in an accident all sorts of information that's continually fed through the system and updated on a monthly basis so you get a score check carrier for one one saw that they had a couple scores above the basics and just moved on didn't dig deeper even though the report told them to and selected them april seventh two thousand and eleven and he failed a new internet safety audit which is a kind of a  which was their own rule they were to check carrier for an isa on the check these scores to see if they needed to dig a little deeper that was what the employers must do they didn't even check and they just hired of that time july twenty second two thousand and eleven and he now has three basic driving school was so high that actually disregarding the fact that move away from the score is that there was a record of two accidents one occurred five days before they hired and one november second they were in another accident in another state they should have  the significance of that safety rating it used to me that they would have had all the information you talking about that a few months earlier keo him would have had career right yet it's one thing to say to snapshot of current status of something like that but somebody else of greater stature than the fifth circuit perhaps on issues of highway safety look at that same information and did not seem concerned is that not the relevance of that rating that they got their money after the sal eventually in this case actually tend to trigger a compliance review but when you look at the public record in a n z it's compliance of you after the fact there was no evidence of any wrecks that were considered so now they've got their safety their satisfactory thousand and twelve knowing that they had already been in a wreck on their watch a live ember sakit and didn't even check carrier for a one to see how their scores have progressed or if they had been any other wrecks had they done that they would see they were even five more wrecks but they hired them are three men on the court there's a male bailiff miss and go hard just all virus off a pair you want to take over you're going to let him do it you don't really know how funny that is because i was explaining to her that a stomach bug is running through my family my wife now it's with me i had this fear that i was going to have to call katie and robert and said your that i cannot stand up here so i apologize oh where cars having the same it years ago ok ok so no shaking hands off this phone but so i'm not going to talk about the vicarious liability or joint venture going to just leave those to the brakes i think the main issue is exactly what your honor is discussing and that is the negligent hiring i think that this becomes a very streamlined and i don't i hate to say easy so i'm not going to say it but a more streamlined analysis when you use the correct standard under louisiana law for this particular cause of action negligence and the judge got it right ok so what she said in this is on her decision to record two four seven seven negligent hiring in determining whether a principal is negligent for hiring an irresponsible independent contractor the court must consider the principals knowledge at the time of the hire more specifically where the principal has previously hired the contractor with good results and there is no evidence in the record to demonstrate the principals prior negligent hiring practices a claim for negligent hiring fails now let's look at the evidence i so for two loads the history is good result no problems no prob a negative history no adverse history when they look at the information its own carrier for one one which gives them some information about the carrier it says they have more than enough insurance that their department of transportation motor carrier authority is valid and up to date they can interact in interstate transportation that there is no alert for all it's a negative history  so what are we left with we're left with the basics course i'd like to come back and talk with you about that but the judge of time about knowledge is that the standard of knowledge is a known or should have known it's a negligent standard s isn't knowledge required or the possibility or of going beyond just knowledge and should have no i'm also part of the i don't believe should have known is part of this analysis under louisiana law now if i went to maryland law under the sram case they have a different state law analysis in that case a duty risk analysis if i went to new mexico they're going to have a different analysis but under louisiana law judge shelley dic got it right she quoted the district courts that talk about this very narrow cause of action there are a lot of cases about this where you can negligently hire an independent contractor who causes damage to somebody else that's why they leave it very narrow what is your experience what is your experience with this independent contractor how he responded to what's been brought up on the cases that hold that guillory one of the cases that say only looks at win on that basis so what what did we know and what should we have no correct let's let's go what did we know we know that they had a very good experience with us that there were no problems there was never a problem so that's our experience the other thing that we do is that they didn't have a rating and we know that there are companies that are on the road for twenty years that don't have ratings and we know that the department of transportation in both experts agreed that you can be on the road with no problems as an unrated carrier that's not a disqualifier what did we know we also knew that they had basic scores but what does that tell us what does what is what should we have known from the basic scores which weren't discussed when you all were talking earlier have a specific disclaimer that their expert acknowledged exists and it exists even though there's this research out there that might conclude  one thing about what the basic scores mean or my conclude another thing with basic scores need but there's a specific disclaimer that says don't rely upon this to make a determination on a safety fitness because it could lead to unintentional or just plain wrong consequences really testimony in evidence as to what is the basis of that disclaimer and the basic scores are supposed to be showing something about safety and maintenance and where the other categories let's see if i can find the exact  ok it says that this debt is is not a safety fitness determination and that the use of this data for purposes other than those identified and what's identified identified to prioritize investigations in roadside inspections by the d o t because it may produce unintended results and inaccurate conclusions so this is the testicle data is simply to be used by the d o t to identify who needs to have roadside inspections that's it it's not to be used by the general public to determine whether or not an entity is safe in fact the federal motor carrier went on record minute new federal motor carrier safety administration derren jones a field administrator for a this is record thirteen eighty four he was specifically asked the question and specifically answered that it was improper for the agency to rely upon the statistical data to the percentile scores to make a determination as to the safety fitness of a motor carrier will this case have the power if you do from further inquiry or investigation based on at least in part what the school board yes and here's what it is why did why would you adopt a this is the policy the policy is there is no instruction from the d o t on how to use this information and in two thousand and ten right before this accident this was brand new information so there's no instruction from the d o t how to interpret these  statistics so calle em says let's just use a commonsense reasonable prudent person approach you have five categories in the deal t's not saying which one is more or less important back then ok so let's say if you have one or two of these categories that are above the threshold that's ok but if you have four or five you're on the backside of that bell curve that's not ok but if you have three let's talk internally the find out if we have any history with this carrier that is adverse or negative and if we do we're not going to use them but if we don't as in this case there was no problem we're going to continue to use them because they're authorized by the d o t to engage in interstate transportation they have more than the required insurance we have no history the knowledge we have no history of them having a problem with us in addition there is no explanation in this information that's available because it's confidential who's at fault for these these accidents so if you see an accident and the motor carrier's rear ended it's not their fault it shows up and that's what those studies that came out after this was rolled out say they say you know what you can't use that information to determine somebody's propensity to get in accidents or they're unsafe draw a blank on the word on their their their their propensity to get into an accident you can't you cannot use the statistical data to predict that and in fact some of these study said that the smaller the carrier the more out of proportion than the percentages are therefore you have a disclaimer that says don't rely upon this information yes so that would under the procedure said that the should have been some internal discussion do that is there any evidence that that occurred the yes cassie i camino was asked that question as well as some of the others and she's in charge of the brokerage and she said you know  i cannot recall specifically the conversation but the four one one information shows that we checked them out again it shows a printout of when that information was checked but they can't recall there was no recollection of that  it's not it's not part of that now and i would suggest that they haven't failed to follow it there's no evidence that they failed to follow in fact all of the testimony confirms that they followed their normal operating procedures and including the first intake and then on that the date of this particular accident that they checked for one one they confirm the accuracy of the information where we are in summary judgment there is evidence of post accident activities  wondering if there would have been relevant evidence on the radio or later to show whether you really did not follow their internal procedures received well i will say there is absolutely no evidence that the record is devoid of any evidence demonstrating that k l m logistics had a history of hiring irresponsible contract motor carriers were you just reading from that was not the page it was not some of the district judges this is from the district judge but she she looked at the evidence that was presented and there is absolutely no evidence under louisiana law that the standard that will follow there's no evidence that kayla lam has a history of hiring irresponsible motor carriers there was no discovery taken on that there's no there's no information about any other motor carrier that might have been considered be responsible the only evidence that is in front of us is that ok l m had two satisfactory experiences with this motor carrier they were duly qualified to be on the road they had a they had more than enough insurance there was no adverse history in what matthew said correctly is after the fact to this is what goes on in by the way he was a regulator with the d o t and he was a regulator with the deity his whole job was to evaluate motor carriers he would go in and he would look at their practices and procedures and he would briefing so his whole job while with the d o t was to audit motor carriers he would go in and he explained the entire process following an accident you have access to that motor carrier's accident history you know how that accident happened he had at that he said they would have that access to this accident they would know the details of it they would have access to the practices the policies and procedures of that motor carrier so in this instance after this event occurs deal t conducts the safety audit they have access to more information that cayle him of the general public has access to and they concluded after this accident looking at the practices and procedures they say  you have a satisfactory safety rating so what is that occurred what if they were had the satisfactory safety rating before instead of being on rated nothing's changed other than other than they have a satisfactory safety rating from the d before the accident they were on rate ok so nothing's changed what we what the only thing that we're affirmed here is that the dio team the regulatory body the only body that can determine the safety fitness of a motor carrier said a satisfactory safety rating who better to get approval from it says what we did was reasonable if we if we didn't do it reasonably and if there was a problem with all of the information and details the t would have done its job in said condition or as you suggest it would pull that that d o t permit they didn't do that they said you're satisfactory i don't know what more tale him could have done to predict because clearly the deal t says don't use this statistical data to predict the safety fitness or crash keep wanting to see crashworthiness but the propensity to get into crashes don't use it for that purpose so all you can do is say ok our history like the we see in a law says our history has been good what more do we what more do we need to know our history has been good they've not had a problem but the judge didn't weigh that she didn't say well is it good or bad she said the only evidence in front of me is that they had two trips and those both of those trips were phone that's all that was in front of me she'd have to wait or assess credibility of anybody that was the only thing in front of her and according to the law that she relied upon the other part was there was no evidence that kayla lam had a history of hiring irresponsible motor parents so no evidence in one case so that's not an assessment in the other instance there was there were two positive experiences no problems there was no way to predict whether this person was going to take a left turn or not kalen didn't have responsibility or ownership over how that person operated the vehicle that was for fault when the accident we're talking about now i don't think that it was a question at all i think it was an easy accident that the fellow made a unprotected left turn into oncoming traffic so you're your honour's focusing on the negligent hiring the judge applied louisiana law she simply checked whether there was evidence or whether there wasn't evidence in applying the louisiana law the only evidence that was presented said that kalo and a n z had two satisfactory trips before this and there was no fraud or there was no negative history there was no insurance issue there was there was nothing in front of them that would present a problem that would say they could have predicted this accident and prevented it and even in they had the stamp of approval from the d o t after this accident saying this was a satisfactory satisfactory safety rated m personally and regard to the satisfactory rating i've already addressed that again it's a static assess what they're showing up they're looking at files are not looking at actual safety performance they're just saying you have basic scores most notably an unsafe driving in this case correctly predicted six crashes in a one and a half year period of agencies existence most notably the two wrecks prior to the accident question the ac rumor anything about this she actually didn't even know she was the one who actually sent the rape confirmation to a n z she thought it was the cole cambias turns out it was cassie herself and she had no idea so for her right for them to say that you know that what they did or didn't do there is no evidence that they did anything in regard to what they saw in n z prior to selecting them that day another thing to no evidence shows that as of august thirtieth two thousand and fourteen they didn't even have operating authority at that point ok the standard in regard to know knew or should have known obs extensively side of cases where the standard does include should have known and that it should include that because it is a negligence action it's a question of fact not only should they have known they did know because the evidence shows that they looked a carrier for one on november first two thousand and eleven they knew the day before they knew that they were due to previous rights they knew their basic scores were three above the threshold most notably unsafe driving and they still selected him and he got another reckon november second now in regard to hi and they should've at least dug deeper and asked the right questions and in determining whether they should have selected that motor carrier they did not all to believe what this comes down to is you've got a case where you have a company from mississippi safety performance and they take no action they just send them to louisiana and guess what happens we're here today because of the accident occurred thank you very much thank you thank you council court will be in recess to nine o'clock tomorrow