Waller Truck Co., Inc. v. Morton et al

Filing 44

MEMORANDUM AND ORDER overruling 37 Defendant's Motion for Summary Judgment. Signed by District Judge Kathryn H. Vratil on 10/10/14. (mm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WALLER TRUCK CO., INC.,
Plaintiff,
v.
BRIAN MORTON and
CARY JAMES BOCKOVER, III,
Defendants.

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CIVIL ACTION
No. 13-2249-KHV

MEMORANDUM AND ORDER
Waller Truck Company, Inc. brings suit against Brian Morton for negligently entrusting his
pickup truck to Cary James Bockover, III, who was driving the truck when it collided with a semitractor trailer driven by an employee of Waller Truck.1 This matter is before the Court on Defendant
Brian Morton’s Motion For Summary Judgment (Doc. #37) filed April 30, 2014. For reasons stated
below, the Court overrules defendant’s motion.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535,
1538-39 (10th Cir. 1993). A “genuine” factual dispute is one “on which the jury could reasonably
find for the plaintiff,” and requires more than a mere scintilla of evidence. Liberty Lobby, 477 U.S.

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Waller Truck also asserted a claim against Bockover who has not appeared. On
February 19, 2014, the Clerk entered default as to Bockover.

at 252. A factual dispute is “material” only if it “might affect the outcome of the suit under the
governing law.” Id. at 248.
The moving party bears the initial burden of showing that there are no genuine issues of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Justice v. Crown Cork & Seal
Co., 527 F.3d 1080, 1085 (10th Cir. 2008). Once the moving party meets the initial burden, the
burden shifts to the nonmoving party to show that a genuine issue remains for trial with respect to
the dispositive matters for which the nonmoving party carries the burden of proof. Nat’l Am. Ins.
Co. v. Am. Re-Ins. Co., 358 F.3d 736, 739 (10th Cir. 2004); see Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). As to these matters, the nonmoving party may
not rest on the pleadings but must set forth specific facts. Fed. R. Civ. P. 56(e)(2); Matsushita, 475
U.S. at 586-87; Justice, 527 F.3d at 1085. Conclusory allegations not supported by evidence are
insufficient to establish a genuine issue of material fact. Jarvis v. Potter, 500 F.3d 1113, 1120 (10th
Cir. 2007); see Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 853 (10th Cir. 1996).
When applying this standard, the Court must view the factual record in the light most
favorable to the party opposing the motion for summary judgment. Duvall v. Ga.-Pac. Consumer
Prods., L.P., 607 F.3d 1255, 1260 (10th Cir. 2010); see Ricci v. DeStefano, 557 U.S. 557, 586
(2009). Summary judgment may be granted if the nonmoving party’s evidence is merely colorable
or is not significantly probative. Liberty Lobby, 477 U.S. at 250-51. Essentially, the inquiry is
“whether the evidence presents a sufficient disagreement to require submission to the jury or
whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.
Factual Background
The following material facts are uncontroverted, deemed admitted or where controverted,

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construed in a light most favorable to plaintiff.
Morton resides on approximately 10 acres of land in Parsons, Kansas. In late 2010 or early
2011, Morton hired Bockover to do several odd jobs on his property. Morton allowed Bockover to
use Morton’s pickup truck in conjunction with these jobs.
Later in the spring of 2011, Bockover’s own pickup truck broke down, and Morton allowed
Bockover to use his truck to perform various jobs both for Morton and other people. Morton did
not directly supervise Bockover when he used the truck. Morton limited Bockover’s use of the truck
for traveling to and from jobs and completing those jobs at various locations within Parsons. Morton
specifically told Bockover not to use the vehicle for personal use. In May of 2011, Morton
discovered that law enforcement officers arrested Bockover for driving under the influence (DUI)
while operating Morton’s truck some 50 miles outside of Parsons, Kansas. When Morton learned
that Bockover had been arrested, he realized that Bockover may have exceeded the permissive use
of the truck on other occasions as well.
In August of 2011, Morton hired Bockover to clean up fallen limbs and do other yard work
on Morton’s property. Bockover agreed to do the work on August 19 or 20, 2011, when Morton had
planned to be out of town. The work included transporting downed limbs on Morton’s property to
a burn pile which was also located on Morton’s property. Bockover understood that Morton gave
him permission to use Morton’s truck only on Morton’s private property and only for the specific
purpose of hauling limbs to the burn pile. Bockover recalls that Morton told him that he could not
take the truck off of Morton’s property. When Morton hired Bockover and allowed him to use the
truck in August of 2011, he knew that Bockover had two prior DUIs, that Bockover had a suspended
driver’s license, and that Bockover had previously attended an alcohol rehabilitation program.

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After hiring Bockover, Morton left town for the weekend of August 19-21, 2011. Without
Morton’s knowledge or permission, Bockover took the truck off of the property to pick up a freezer
he had purchased. Morton was not aware that Bockover had purchased a freezer or that Bockover
wanted to use the truck to haul the freezer. During the evening of August 21, 2011 on Highway 169
in Montgomery County, Kansas, Bockover crashed Morton’s truck into a semi-tractor trailer which
was owned and operated by Waller Truck.
Waller Truck claims that Morton negligently entrusted his truck to Bockover who was
intoxicated at the time of the accident.
Analysis
To prevail on its claim of negligent entrustment, Waller Truck must prove the following four
elements: (1) Morton entrusted the truck to Bockover, (2) Bockover was incompetent to use it,
(3) Morton knew or had reason to know that Bockover was incompetent to use it, and (4) the
entrustment of the vehicle was the proximate cause of the damage to Waller Truck. See Shirley v.
Glass, 297 Kan. 888, 894-95, 308 P.3d 1, 6 (2013); McCart v. Muir, 230 Kan. 618, 620-21, 641 P.2d
384, 387 (1982). Morton argues that he is entitled to summary judgment because (1) Bockover was
not incompetent to operate the vehicle on private property, (2) Morton was not negligent because
he did not know or have reason to know that Bockover would exceed the limited permission to use
the vehicle only on Morton’s property, and (3) Morton was not a proximate cause of the accident
because Bockover deliberately exceeded the scope of Morton’s limited permission to use the
vehicle.
Plaintiff has presented sufficient evidence for a reasonable jury to find that Bockover was
not a competent driver and that Morton knew or should have known of this fact. An incompetent

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driver is one, who by reason of age, experience, physical or mental condition, or known habits of
recklessness, is incapable of operating a vehicle with ordinary care. McCart, 230 Kan. at 620-21,
641 P.2d at 387. “It is negligence to permit a third person to use a thing . . . which is under the
control of the actor, if the actor knows or should know that such person intends or is likely to use
the thing . . . in such a manner as to create an unreasonable risk of harm to others.” Snodgrass v.
Baumgart, 25 Kan. App.2d 812, 816, 974 P.2d 604, 607 (1999) (citing Restatement of Torts
(Second) § 308, comment b). Viewing the evidence in a light most favorable to plaintiff, Morton
knew or had reason to know that Bockover was likely to ignore any prohibition to use the truck on
public roadways because some three months earlier, Bockover ignored Morton’s limitation to only
use the truck for business use in the town of Parsons. At that time, Bockover was arrested for DUI
while operating Morton’s truck some 50 miles away from Parsons. At that time, Morton realized
that Bockover might have used the truck beyond its permitted use on other occasions as well. By
August of 2011, Morton also knew that Bockover was arrested for DUI on another occasion and
Bockover had a suspended driver’s license. The above facts create a genuine issue of material fact
whether Bockover was a competent driver and whether Morton was negligent in entrusting the truck
with Bockover.2

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Morton argues that he cannot be liable for Bockover’s unauthorized use of the vehicle
on public roadways. Morton is not immune from liability for negligent entrustment by placing
various restrictions on the use of the vehicle. The tort of negligent entrustment involves supplying
property to a third person and the tort frequently occurs when a car owner lends or entrusts his or
her car to a person whom the owner knows is incompetent or inexperienced to use it safely. Tran
v. Nguyen, 44 Kan. App.2d 443, 450, 238 P.3d 314, 319 (2010). In using the property, the third
party often goes beyond the owner’s express restrictions. Liability for negligent entrustment,
however, may attach if the third person’s known character or the peculiar circumstances of the care
of the vehicle are such as to give the actor good reason to believe that the third person may misuse
the vehicle and create an unreasonable risk of harm to others. See Stallings v. Werner Enters., Inc.,
(continued...)
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Plaintiff has also presented sufficient evidence for a reasonable jury to find that Morton was
a proximate cause of its damages. The Kansas Supreme Court has noted that whether the negligent
conduct of the original wrongdoer is to be insulated as a matter of law by the intervening negligent
act of another is determined by the test of foreseeability. Davey v. Hedden, 260 Kan. 413, 427, 920
P.2d 420, 430 (1996). If the original actor should have reasonably foreseen and anticipated the
intervening act causing injury in the light of the attendant circumstances, his act of negligence would
be a proximate cause of the injury. Id. Morton argues that he could not reasonably foresee that
Bockover would ignore Morton’s limited permission to use the vehicle. While Morton has presented
evidence that he told Bockover not to operate the vehicle off the property, the issue is whether when
Morton left his truck keys with Bockover for the weekend, he knew or should have known that
Bockover was likely to use the truck in such a manner as to create an unreasonable risk of harm to
others. Snodgrass, 25 Kan. App.2d at 816, 974 P.2d at 607. The evidence discussed above is
sufficient to create a genuine issue of material fact whether Morton should have reasonably foreseen
and anticipated that Bockover would operate the truck on public roadways while intoxicated.
Accordingly, the Court overrules Morton’s motion for summary judgment on this issue.
IT IS THEREFORE ORDERED that Defendant Brian Morton’s Motion For Summary
Judgment (Doc. #37) filed April 30, 2014 be and hereby is OVERRULED.
Dated this 10th day of October, 2014 at Kansas City, Kansas.
s/ Kathryn H. Vratil
Kathryn H. Vratil
United States District Judge

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(...continued)
598 F. Supp.2d 1203, 1207 (D. Kan. 2009) (citing Restatement (Second) of Torts § 308, comment
b).
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