Over the last thirty years, there never has been a more confused doctrine than the current “duty of reasonable care” faced by transportation brokers, third-party logistics companies and shippers as they select carriers for transport. The confusion in what was once reasonable and well understood law has been fueled by a perfect storm of judicial reasoning with misplaced reference to faulty empirical data, the complete failure of the Federal Motor Carrier Safety Administration (FMCSA) to properly assess carrier safety worthiness, a feeding frenzy by the plaintiffs’ bar and apathy by many in the industry. The purpose of this commentary is to examine how this uncertainty developed, to identify some of the more glaring issues that must be addressed, and to give some possible guidance as to how the industry, FMCSA and courts should proceed to clarify the duty of a broker in complying
with “reasonable care” in selecting carriers.
