The short answer, and why it surprises people
Most shippers assume that once a load is tendered, the crash risk belongs to the carrier — and if a broker was in the middle, to the broker. That is not how negligent-selection law works. The claim is not about who was driving. It is about who chose the truck, and whether that choice was reasonable given what a careful party would have seen in the carrier's public safety record. If the shipper made or effectively controlled that choice, the shipper can be named.
This duty is old. It comes from the ordinary common-law rule that a party who hires an independent contractor must use reasonable care in the selection (Restatement (Second) of Torts § 411). What is new is the pressure behind it.
Two ways a shipper gets pulled in
- Direct negligent selection. The shipper chose the carrier itself — no broker — and tendered to a carrier whose public FMCSA record a reasonable shipper would have screened out.
- Negligent selection of the broker. The shipper used a broker but failed to reasonably vet that broker, or kept effective control over the carrier decision. Liability can flow back to the shipper for the delegation itself.
Why the temperature just went up
On May 14, 2026, the Supreme Court decided Montgomery v. Caribe Transport II, LLC 9-0, holding that the FAAAA does not preempt state-law negligent-selection claims against freight brokers. For a decade brokers could get these cases dismissed early on preemption grounds. That exit ramp is now closed, and every one of these claims can proceed into discovery.
Shippers should read that as a leading indicator, not a bystander's headline. The plaintiffs' bar now has a clean, Supreme-Court-blessed path to argue that whoever selected an unsafe carrier owed a duty of care — and shippers never had the preemption shield to begin with. The rational expectation is more shipper-side claims, not fewer.
What a court actually asks
The standard is ordinary care, not perfection and not strict liability. A shipper is not the insurer of its carrier's safety. The question is whether it did what a reasonable shipper in its position would have done before entrusting the freight — and, critically, whether it can show that it did. A shipper that can produce a timestamped record of what it checked, the policy it applied, and the reasoning behind each decision is in a materially stronger position than one relying on memory and a rate confirmation.
What to document on every load
- Live FMCSA snapshot captured at the time of selection.
- Written carrier-acceptance policy applied consistently.
- Risk-checklist results recorded with the shipment.
- Evidence the broker (if used) was itself vetted.
- Sign-off with documented reasoning wherever anything needed justification.
- Tamper-evident audit trail so the file holds up later.
That file is the whole ballgame. It is also exactly what a screening tool produces automatically and a paper-and-memory process does not. See the negligent-selection defense for what belongs in the file and how a court reads it.