Every time I see a marginal car with a pizza delivery sign slapped onto the roof, I think about the driver. How old? How experienced? How desperate to make a few bucks in a tough economy? And from the employer’s viewpoint: how competent is the driver? Just how far must an employer go before they entrust a driver with the plastic logo and the insulated bag for delivering pizza to those of us who want dinner delivered in a box?
These thoughts congeal like day-old pizza in the sad case of Nicole Fisk, an 18 year old driver who worked (briefly) for Pizza Hut. Nicole only had her license for 3 months when hired by Pizza Hut in Clairemont CA. She was delivering pizza in November 2008 when she blacked out and drifted across the solid line into oncoming traffic. She slammed into a car operated by Shari Novak, 62, who suffered permanent brain damage and can no longer take care of herself. Shari’s mother, Olena, suffered a broken neck.
Who Pays?
The Novaks sued Pizza Hut, arguing that the company was responsible for the collision because they hired Fisk, a relatively inexperienced driver, who had a history of suffering blackout spells. Ah, there’s the rub. What did the employer know about Nicole Fisk? Only what she told them. She had a clean record, she carried the necessary insurance and her references were fine. She was not diagnosed with epilepsy until after the crash. Pizza Hut called it an “unforeseeable medical emergency” – which can be used as a defense to a negligence lawsuit.
Jurors rejected the defense, awarding Shari Novak $8.6 million and her mother $2.2 million. As one juror put it, “Fisk should have known she could have a blackout episode because of her medical history.”
Here’s where it gets interesting and where the issue of employer accountability comes to the fore. A consultant attorney points out that Nicole lied continuously about her health problems. When she first experienced blackouts, she was put on medication for acid reflux (a seemingly bizarre diagnosis, but perhaps based upon the limited information she provided her doctors). She apparently under-reported subsequent problems to these doctors. When she applied for a driver’s license, she failed to disclose her medical condition to the Registry. And when she applied for a job at Pizza Hut, she once again lied about her condition and its potential impact on her ability to perform the job safely.
It’s not difficult to feel some sympathy for Nicole. She is only 18. Her medical condition frightens her – she probably prefers not to think about it. Like any 18 year old, she wants to drive like her friends and earn a few bucks. In her own mind, she was not endangering herself or anyone else.
Impossible Standard?
While it’s important to note that the jury did not find Pizza Hut guilty of negligent hiring, it did conclude that the company is responsible for damages because Fisk was their employee at the time of the accident. John Gomez, the attorney for the Novaks, said that the verdict should send a signal to other companies “to be a little more careful when hiring professional drivers.” This is a bit disingenuous. Surely, the attorney is not suggesting that employers (illegally) research medical records on every potential hire. In this case, Pizza Hut followed its own reasonable procedures. Other than hiring a relatively inexperienced driver, they did nothing wrong.
Nicole Fisk was initially named in the personal-injury lawsuit but was later dropped from the case. Not because she was innocent – she is responsible for the tragic events on that November day – but because she had no assets of the magnitude sought – and secured – by the Novak attorneys.
There are few lessons to be learned here. Employers are routinely held accountable for many things which they do not control. It’s not so much a matter of accountability as the crass ability to pay. In a case of this scale, with damages this severe, someone must pay. That someone, obviously, is the corporate entity that was unfortunate enough to hire Nicole Fisk.