What 'Reasonable Care' Actually Means for Brokers Selecting Carriers After Montgomery

When the Supreme Court decided Montgomery v. Caribe Transport II, it removed the federal preemption defense that ended negligent-selection cases early. What it conspicuously did not do was define what a broker actually has to do to avoid liability. The Court left the standard of care to state tort law and, ultimately, to juries.

That gap is now the most important question in freight brokerage risk management. "Reasonable care" sounds vague, but it is a well-developed legal concept with a predictable shape. This article explains what it actually means in the carrier-selection context, how courts and juries will apply it, and how to translate it into an operating standard.

Negligence has four elements — only one is really in dispute

A negligent-selection claim against a broker has the same structure as any negligence claim: the plaintiff must prove duty, breach, causation, and damages.

• Damages are rarely contested in these cases — they involve catastrophic injuries or deaths.
• Causation is contested but largely factual: did selecting this carrier lead to this crash?
• Duty is now effectively settled in the broker's disfavor — Montgomery and the state-law trend treat a broker that selects carriers as owing a duty of reasonable care in that selection.

That leaves breach — did the broker fail to exercise reasonable care? — as the battleground. Almost every defensible (or indefensible) outcome turns on this single element. Understanding what "reasonable care" means is understanding where you win or lose.

"Reasonable care" is what a reasonably prudent broker would do

The legal standard is not perfection, and it is not hindsight. It is what a reasonably prudent broker, in the same circumstances, with the information reasonably available at the time, would have done. Three features of that definition matter enormously in practice.

It is measured at the time of selection, not after the crash

This is the most important and most counterintuitive point. The plaintiff's attorney will know everything about the carrier because there was a catastrophic crash. The legal question, however, is what a reasonable broker would have known and done before the load was tendered, using the data available then. A broker who ran a disciplined check and documented it is judged on that check — not on facts that only surfaced afterward. A broker who can't show what it reviewed gets judged on the plaintiff's hindsight reconstruction.

It is an objective standard, applied through expert testimony

"Reasonable" is not what your brokerage happens to do — it is what a competent brokerage in your position should do. Both sides will retain industry experts to testify about what a prudent broker's process looks like: which FMCSA data points are checked, what disqualifies a carrier, how exceptions are handled, whether monitoring continues after onboarding. Your process will be measured against that emerging industry baseline, not against your own historical habits.

It scales with foreseeable risk

Reasonable care is proportional. The diligence a reasonable broker applies to a brand-new authority hauling hazmat for the first time is not the diligence applied to a long-established carrier with a clean record on a routine lane. Courts expect more scrutiny where the foreseeable risk is higher. A tiered process — deeper review for higher-risk carriers and loads — is not just efficient, it tracks the legal standard.

What a jury will actually be asked to weigh

Strip away the doctrine and a negligent-selection trial comes down to a handful of concrete questions a jury can understand:

• Did the broker check the carrier's FMCSA authority and confirm it was active and properly classified?
• Did the broker review the available safety data — inspection and out-of-service history, crash involvement, and the carrier's safety rating?
• Were there red flags a reasonable broker would have seen, and if so, what did the broker do about them?
• Did the broker have a consistent process, and did it actually follow that process for this carrier?
• Can the broker prove any of this, or is it relying on memory?

Notice that none of these require the broker to have been right in some absolute sense. They ask whether the broker looked, whether it had a process, and whether it acted reasonably on what it saw. That is a standard a well-run brokerage can meet — and prove.

The FMCSA-data reality the standard has to account for

Reasonable care means reasonable use of available data — and the available federal data has real limitations a broker (and a competent expert) must understand:

• Most carriers have no safety rating. A formal safety rating comes from a compliance review, and the large majority of active carriers have never had one. "Not rated" is the normal state of affairs, not a red flag in itself. Treating every unrated carrier as disqualified is neither realistic nor what reasonable care requires.
• SMS data is not what it used to be. FMCSA no longer publicly displays Safety Measurement System percentile rankings for property carriers. Brokers and the public see inspection results, violation and out-of-service data, and crash involvement — not a tidy percentile score. Reasonable care is reading what is actually available, in context, not citing a percentile that is no longer public.
• Crash data is fault-neutral. FMCSA crash records include every crash a carrier was involved in, regardless of fault. A reasonable reading weighs severity and pattern, not a raw count, and does not treat a not-at-fault crash as proof of an unsafe carrier.
• Out-of-service rates are noisy on small samples. A carrier with three inspections and one OOS does not have a "33% OOS rate" in any meaningful sense. Reasonable care accounts for sample size.
• Authority age is the USDOT issuance date, not an operating history. Treat it as one input, not a proxy for experience.

Building a process on an accurate understanding of this data is itself part of reasonable care. A process that misreads the data — or claims to rely on data that does not exist — is easier to attack, not harder.

The concurrence is the safe harbor — read it as a checklist

Justice Kavanaugh's concurrence in Montgomery (joined by Justice Alito) was explicit that this ruling does not mean automatic liability after every crash. Brokers, it said, "should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies."

Read operationally, that is a two-part defense:

1. Acted reasonably — ran a consistent, documented process appropriate to the risk.
2. Reputable carrier — selected a carrier whose available record a reasonable broker would have accepted.

Both parts are within your control, and both are provable if you build for it.

Translating the standard into an operating rule

"Reasonable care" becomes manageable when you convert it into a standard your team can actually execute:

• Define your minimum check. Authority status and classification, insurance on file, safety rating, inspection/OOS history, and crash involvement — every carrier, every time.
• Define your disqualifiers and your exception path. Decide in advance how you treat conditional and unsatisfactory ratings, out-of-service orders, and adverse patterns. (See our companion piece on handling each safety rating.) When you accept a borderline carrier, that should be a recorded, deliberate judgment — not an unexamined default.
• Scale scrutiny to risk. More review for new authority, high-value or hazardous freight, and adverse signals.
• Document the point-in-time picture. Capture what you saw and why approval was reasonable on that data. This is the difference between being judged on your process and being judged on the plaintiff's hindsight. See how to build a defensible vetting file.
• Keep watching. Reasonable care does not end at onboarding — a carrier that degrades after approval is a foreseeable risk you are expected to monitor.

The bottom line

The Supreme Court did not tell brokers what reasonable care requires, but the law already gives the answer its shape: a consistent, risk-scaled, well-documented selection process, executed with an accurate understanding of FMCSA data, and continued after onboarding. Brokers who can show they ran that process — not just that they intended to — are exactly the brokers the Montgomery concurrence said should be able to win.

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This article is for informational purposes only and is not legal advice. Negligence standards vary by state and continue to develop; consult qualified transportation counsel about your operations.