Gordon v. Turner et al
Filing
144
MEMORANDUM OPINION & ORDER:(1) Defendant Universal Fleet & Tire Service, Inc.s Motion for Summary Judgment 123 be, and is, hereby GRANTED IN FULL Accordingly, summary judgment is entered in Universal Fleets favor as to Count III (negligenc e), Count V (negligence per se), and Count XI (punitive damages); (2) Defendant Pallet Companies, Inc., d/b/a IFCO Systems, LLCs Motion for Summary Judgment on the Issue of Punitive Damages 125 be, and is, hereby GRANTED IN FULL. Summary ju dgment is therefore entered in IFCOs favor as to Count XI (punitive damages);(3) Defendant Tenorris F. Turners Motion for Summary Judgment on the Issue of Punitive Damages 128 be, and is, hereby GRANTED IN FULL. Summary judgment is therefore entered in Turners favor as to Count XI (punitive damages);(4) Defendant Midwest Construction Services, Inc., d/b/a Trillium Driver Solutions Motion for Summary Judgment 129 be, and is, hereby GRANTED IN PART and DENIED IN PART. Trillium i s entitled to summary judgment as to Count III (negligence), Count V (negligence per se), Count VI (negligent hiring), Count VII (negligent training), Count VIII (negligent supervision), Count X (negligent retention), and Count XI (punitive damages). Trillium is not entitled to summary judgment as to Count II (vicarious liability);(5) Plaintiff Tiffany Gordons Motion for Hearing 143 be, and is, hereby DENIED AS MOOT; (6) The following claims remain in this action: Count I (negligence) a gainst Turner; Count II (vicarious liability) against Trillium and IFCO; Count III (negligent maintenance) against IFCO; Count IV (negligence per se) against Turner; Count V (negligence per se) against IFCO; Count VI (negligent hiring) against IFCO; Count VII (negligent training) against IFCO; Count VIII (negligent supervision) against IFCO; Count IX (negligent entrustment) as to IFCO; and Count X (negligent retention) against IFCO; and (7) Because none of the remaining claims pertain to Defendant Universal Fleet, it be, and is, hereby DISMISSED as a Defendant in this action. Signed by Judge David L. Bunning on 06/29/2016.(KRB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 13-136-DLB-CJS
TIFFANY GORDON
vs.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
TENORRIS F. TURNER, et al.
DEFENDANTS
******************
I.
Introduction
This negligence action arises from a traffic collision that occurred on the exit ramp
from Southbound I-75 to U.S. Highway 42 in Boone County, Kentucky. Defendant Tenorris
Turner was driving a tractor-trailer for Defendant Pallet Companies, Inc., doing business
as IFCO Systems, LLC (“IFCO”), when he rear-ended Plaintiff Tiffany Gordon’s sedan,
causing a chain-reaction collision. At the time of the accident, Turner was employed by
Defendant Midwest Construction Services, Inc., doing business as Trillium Driver Solutions
(“Trillium”), a staffing company that provides clients like IFCO with temporary drivers.
Gordon sued Turner, IFCO, and Trillium, as well as Defendant Universal Fleet, the
maintenance company that last inspected and serviced the trailer. All four Defendants now
move for summary judgment on Gordon’s claims, arguing that she has failed to prove the
elements of negligence and cannot justify an award of punitive damages. The Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
1
II.
Factual and Procedural Background
On June 14, 2013, Gordon was driving her 2011 Chevrolet Cruze in the right lane
of the southbound exit ramp from I-75 to U.S. Highway 42 in Boone County, Kentucky.
(Doc. # 125-2 at 2-3). Turner, en route to an IFCO client with a load of pallets, was driving
a tractor-trailer just behind Gordon. (Id.). As traffic slowed, Turner hit Gordon’s Chevy
from behind, propelling it into the vehicle ahead and sparking a chain reaction crash that
involved three other vehicles. (Id.). Gordon’s Chevy then spun counter-clockwise, only to
be hit by the tractor-trailer again. (Id.). The tractor-trailer came to rest with its grill
embedded in the driver’s side door of Gordon’s Chevy. (Id.).
Deputies from the Boone County Sheriff’s Office responded to the accident scene.
(Id.). According to their report, Gordon complained of bruising but refused immediate
medical attention, saying that she would seek treatment independently. (Id.). None of the
other drivers involved in the chain-reaction collision were injured. (Id.). Turner reportedly
told the deputies that he tried to apply his brakes, but the tractor-trailer sped up on him.
(Id.). He further stated that he pumped the brakes in an effort to stop, but was unable to
do so. (Id.). The deputies also spoke with one of the other motorists involved in the crash,
who said that he noticed a loose brake line hanging from the trailer just after the accident.
(Id.). He said he pointed this out to Turner, who then reattached the line. (Id.).
Turner contacted Trillium’s branch manager, Jason Sump, and told him about the
accident. (Doc. # 131-1 at 4). Sump drove to the scene, picked Turner up and took him
to a nearby clinic for a drug test. (Id. at 48-49). The results of that test were negative.
(Id.). Sump also discussed the accident with Turner and took notes on their conversation.
2
(Id. at 41). Those notes are consistent with the statements Turner made to the deputies
at the accident scene. (Id. at 6-7; Doc. # 125-2 at 2-3).
Meanwhile, two of the deputies performed a field inspection of the tractor and trailer.
(Id.; Doc. # 123-2). They discovered an inoperable required lamp, three clamp brakes out
of adjustment and an air leak in the brake tubing on the trailer. (Id.). They also noted that
at least 20% of the service brakes on the trailer were defective. (Id.). Because of these
defects, the deputies deemed the trailer to be “out of service,” meaning that it could not be
operated until IFCO made the necessary repairs. (Id.).
The record reflects that Universal Fleet, a maintenance company that IFCO retained
on an as-needed basis, serviced the trailer just two months before the accident. (Docs.
# 123-3 and 131-2 at 72). Specifically, Universal Fleet conducted an annual inspection of
the trailer, as required by the Federal Highway Administration (“FHWA”), to ensure that it
was road-worthy. (Doc. # 127-2 at 14, 27 and 46). As part of that inspection, Universal
Fleet greased and adjusted various components of the trailer, including the brakes, and
replaced a rusty maxi chamber.1 (Id.).
After the accident, IFCO retained Universal Fleet to correct the defects discovered
by the deputies. (Doc. # 123-4 and 125-3). It also asked Universal Fleet to conduct its
own investigation into the cause of the accident. (Doc. # 131-2 at 23). According to
Universal Fleet’s owner, Michael Terry, the defective brakes were not the cause of the
accident. (Doc. # 127-2 at 22). He explained that the brakes were only slightly out of
alignment. (Id. at 23). The federal regulations allow for one to two inches of adjustment,
1) A maxi chamber is a brake chamber attached to the trailer’s suspension. (Doc. # 127-2 at 14).
3
or travel, on the brakes. (Id.). The third brake on the left axle of the trailer had two and a
quarter inches of travel, while the fourth brake had two and an eighth inches of travel on
both the left and right axles. (Id.).
IFCO also offers expert testimony from Neil Gilreath, a police officer with experience
in accident reconstruction, who opined that the brakes could not have caused the accident.
(Doc. # 127-4). That being the case, IFCO concludes that the accident must have been
Turner’s fault. (Doc. # 129-6). Gordon responds with expert testimony from Dr. Scott Noll,
a mechanical engineer, who asserts that the brakes were indeed the cause of the accident.
(Doc. # 127-3). The police report does not identify a clear cause of the accident. (Doc. #
125-2 at 2-3). Instead, it states that the accident was caused by a combination of driver
inattention, defective brakes and unspecified “other” factors. (Id.). Therefore, the precise
cause of the accident is still unknown, as evidenced by these conflicting opinions.
Turner, a Trillium employee, was driving the tractor-trailer on behalf of IFCO that
day. (Docs. # 123-5 at 2; 131-1 at 12). At that time, Trillium and IFCO had a services
agreement, pursuant to which Trillium hired, trained, and supplied IFCO with temporary
drivers. (Doc. # 131-2 at 12). Because Trillium staffed these temporary drivers, IFCO did
not directly compensate them for their services. (Id. at 3). Instead, IFCO paid Trillium, and
Trillium paid the drivers. (Id.). IFCO was only responsible for supervising the temporary
drivers while they worked on IFCO’s behalf. (Id. at 12). Turner had worked for Trillium on
other assignments for one year without incident. (Doc. # 131-1 at 27). The day of the
accident was Turner’s first day on assignment to IFCO. (Id.).
Trillium maintains that it performed a background check, verified Turner’s last three
4
years of employment, obtained a copy of his CDL, reviewed his medical card, and ensured
that he was compliant with Department of Transportation (“DOT”) regulations before hiring
him. (Id. at 15-22). Trillium also obtained a Motor Vehicle Report (“MVR”) and Drive-ACheck Report (“DAC”) for Turner. (Docs. # 129-4 and 129-5). These reports indicated that
Turner had a valid commercial driver’s license (“CDL”) and ten years of commercial driving
experience with multiple employers. (Doc. # 129-4). Within the previous three years, he
had two speeding citations and a misdemeanor conviction for exceeding the maximum axle
load. (Id.). He also had one DOT recordable crash2 and one non-DOT recordable crash,
both involving stationary objects, within that time period. (Id.). According to Debarah Scott,
an Area Manager for Trillium, Turner’s record passed muster under federal regulations, as
well as Trillium’s hiring standards. (Doc. # 131-1 at 16-25 and 60-70). Althoug h Trillium
contacted some of Turner’s former employers, it was unsuccessful in obtaining much
information from them. (Id.). Trillium ultimately verified the dates of employment through
the MVR and DAC, but did not resolve any lingering questions about the circumstances of
Turner’s departure from those companies.3 (Id.).
Scott admitted that Trillium received an incomplete Medical Examination Report for
Turner. (Id. at 30-31). Although the examiner indicated that Turner was taking medication
for high blood pressure, he did not complete the sections asking about Turner’s onset date
2) A DOT-recordable accident meets the DOT definition for “accident” as set forth in Section 390.5 of the
Federal Motor Carrier Safety Regulations, codified at 49 C.F.R. § 390.5. (Doc. # 129-5). According to Scott,
an applicant is not eligible for employment if they have had a DOT-recordable accident in the previous year.
(Doc. # 131-1 at 23). Turner’s DOT-recordable crash occurred about two years before he applied to Trillium.
(Doc. # 129-5 at 20).
3) On his Trillium employment application, Turner indicated that he quit certain jobs, but the DAC reports that
he was “discharged” or that the “company terminated lease.” (Doc. # 129-5). Scott testified that these
phrases can denote a variety of occurrences besides simple firing. (Doc. # 131-1 at 16-25).
5
and diagnosis. (Id.). Instead, the examiner only recorded one blood pressure reading,
instead of the required two readings. (Id.). The form states that a driver is qualified if his
blood pressure reading is less than 140/90. (Id.). Turner’s blood pressure was 146/91.
(Id.). Scott did not know why the examiner had left these parts of the Report blank. (Id.).
When asked why Trillium did not follow up on Turner’s conditions, Scott stated that
“[a]pparently somebody missed it.” (Id.).
Upon hiring, Turner sat through orientation, watched a driver safety video, and
received alcohol awareness and hazardous materials training. (Doc. # 131-1 at 13-15).
He was also given a hiring packet, employee handbook, and a copy of the National Motor
Federal Safety Regulations. (Id. at 16). Some of Trillium’s clients also required temporary
drivers to undergo additional training. (Id. at 38-39). For example, Turner completed
Protread safety training while on assignment to Ryder Logistics. (Id.; Doc. # 129-2 at 2).
IFCO did not have any additional training requirements. (Id.).
On August 1, 2013, Gordon filed this negligence action against Turner and IFCO.
(Doc. # 1). She amended the complaint on two occasions to assert additional claims
against Trillium and Universal Fleet.4 (Doc. # 32 and 51). The parties completed their
discovery efforts almost two years after the filing of this action. (Doc. # 86). Defendants
then filed their Motions for Summary Judgment (Docs. # 123, 125, 128 and 129), which are
fully briefed and ripe for the Court’s review. (Docs. # 132,133, 134, 135, 139, 140, 141 and
142).
4) In her Second Amended Complaint (Doc. # 51), Gordon named Penske Leasing and Rental Company as
a Defendant. IFCO leased the tractor involved in the accident from Penske. (Doc. # 129-6). However,
Penske was later dismissed from this action by agreement of the parties. (Doc. # 122).
6
III.
Analysis
A.
Applicable Law
Federal courts sitting in diversity apply federal procedural law. Hanna v. Plumer,
380 U.S. 460, 465 (1965). The substantive law of the forum state governs the claims
asserted. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); Moore v. Coffey, 992 F.2d 1439
(6th Cir. 1993); Gafford v. Gen. Elec. Co., 997 F.2d 150, 165 (6th Cir. 1993). Accordingly,
the Court will evaluate Defendants’ Motions in accordance with the Federal Rules of Civil
Procedure and apply substantive Kentucky law to Gordon’s negligence-based claims.
B.
Standard of Review
Summary judgment is appropriate when there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). If there is a dispute over facts that might affect the outcome of the case under
governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading
the court that there are no disputed material facts and that he is entitled to judgment as a
matter of law. Id. Once a party files a properly supported motion for summary judgment
by either affirmatively negating an essential element of the non-moving party’s claim or
establishing an affirmative defense, “the adverse party must set forth specific facts showing
that there is a genuine issue for trial.” Id. at 250. “The mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the [non-moving party].” Id. at 252.
7
C.
Negligence Claim Against Universal Fleet
1.
Breach of Duty
“A common law negligence claim requires proof of (1) a duty owed by the defendant
to the plaintiff, (2) breach of that duty, (3) injury to the plaintiff, and (4) legal causation
between the defendant’s breach and the plaintiff’s injury.” Wright v. House of Imports, Inc.,
381 S.W.3d 209, 213 (Ky. 2012) (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88-89
(Ky. 2003) (referring to the third and fourth elements jointly as “consequent injury”)).
“Kentucky courts recognize a universal duty of care under which every person owes
a duty to every other person to exercise ordinary care in his activities to prevent
foreseeable injury.” Lee v. Farmer’s Rural Elec. Co-op Corp., 245 S.W.3d 209, 212 (Ky.
Ct. App. 2007) (internal quotations omitted). Ordinary care is “such care as a reasonably
prudent person would exercise under the circumstances.” Slusher v. Brown, 323 S.W.2d
870, 872 (Ky. 1959). Foreseeability is “determined by viewing the facts as they reasonably
appeared to the party charged with negligence, not as they appear based on hindsight.”
James v. Wilson, 95 S.W.3d 875, 891 (Ky. Ct. App. 2002). The existence of a duty is a
question of law for the Court to decide. Pathways, Inc., 113 S.W.3d at 88-89.
By contrast, whether a duty has been breached is a question of fact for the jury to
decide. Pathways, Inc., 113 S.W.3d at 88-89. So long as there is a genuine dispute as
to a material fact concerning breach, such that a reasonable jury could find that the
defendant was negligent, the Court is precluded from granting summary judgment. Id.; see
also Simons v. Strong, 978 F. Supp. 2d 779, 783-84 (E.D. Ky. 2013) (stating that summary
judgment is only appropriate if there is a “complete absence” of evidence that the
8
defendant breached a duty owed to the plaintiff).
Under Kentucky law, Universal Fleet had a duty to exercise ordinary care in
inspecting and servicing IFCO’s trailer. Lee, 245 S.W.3d at 212. This begs the question:
Is there genuine issue of material fact regarding breach, such that a reasonable jury could
find that Universal Fleet was negligent in servicing IFCO’s trailer? Universal Fleet answers
this question in the negative, insisting that there is a complete lack of evidence regarding
breach. Gordon counters with two pieces of evidence, which the Court will consider in turn.
Gordon first relies on the testimony of Universal Fleet’s owner, Michael Terry, to
establish a breach of duty. According to her, Terry admitted that his mechanics may have
overlooked the brake conditions while servicing the trailer. (Doc. # 132 at 2). This is an
oversimplification of Terry’s testimony. To be precise, Terry expressed confidence in the
work of his mechanics, stating that he did not believe they were negligent. (Doc. # 127-2
at 42). However, when repeatedly pressed about the possibility of a mistake, Terry
acknowledged that “[a]nything is possible.” (Id.). Contrary to Gordon’s assertion, this
statement does not qualify as an admission of faulty service.
Next, Gordon asserts that Terry “admitted to allowing the trailer, without an up-todate FHWA inspection, to go on the road without notifying IFCO that it was not up-to-date,
performing the inspection, and/or sidelining the trailer until the inspection was complete.”
(Doc. # 132 at 3-4). This is an incomplete summary of the testimony provided. During the
deposition, Gordon’s attorney produced evidence that IFCO’s trailer went without an
annual FHWA inspection from April 12, 2011 to February 11, 2013, a period of twenty-two
months. (Doc. # 127-2 at 45). However, the record indicates that IFCO switched
maintenance companies during this time period. (Id. at 44). Dickinson Fleet Services
9
performed the April 2011 inspection. (Id.). Then, in November of that year, Universal Fleet
repaired roof damage to the trailer. (Id.). The trailer was already six months overdue for
an inspection at that time, but that fact may not have been readily apparent to Universal
Fleet. After all, Universal Fleet was not yet familiar with this client or this trailer. (Id.).
Although Michael Terry testified that his mechanics could have checked a database
to determine whether the trailer was due for an FHWA inspection, he indicated that
Universal Fleet was not solely responsible for keeping trailers up-to-date on FHWA
inspections.5 (Id.). Sometimes Universal Fleet notified clients that they were due for an
annual inspection, but clients often contacted Universal Fleet with inspection requests as
well. (Id.). IFCO’s representative, LeRoi Cochran, testified to the same effect. (Doc. #
131-2 at 32-34, 72).
Even if Universal Fleet was negligent in allowing the trailer to go on the road without
a current FHWA inspection in November 2012, that conduct has no temporal connection
to Gordon’s alleged injuries, nor is it factually similar to the negligence alleged in this case.
The record reflects that Universal Fleet performed an FHWA inspection in February 2013,
and again on April 16, 2013. (Id.). Therefore, the trailer was up-to-date on its annual
inspection at the time of the accident.6 (Id.). Gordon is simply trying to demonstrate that
Universal Fleet must have been negligent in servicing the brakes on April 16, 2013
because it negligently overlooked the need for an FHWA inspection in November of 2012.
5) Terry also explained that companies commonly let their annual inspections lapse while the trailer was sitting
on the lot. (Id.). When it came time to use the trailer, someone from the companies would contact Universal
Fleet and a mechanic would go to their place of business and conduct the FHWA inspection. (Id.).
6) It is unclear why two FHWA inspections were performed on the trailer within a two-month period. (Doc. #
127-2 at 45).
10
This anecdotal evidence is of limited value, at best.
In sum, Gordon’s flimsy suppositions are insufficient to create a genuine issue of
material fact as to Universal Fleet’s alleged breach of duty. However, even Gordon’s
assertions were sufficient to create a genuine issue of material fact, her claim would
nevertheless fail on the issue of causation, as the Court will explain below.
2.
Causation
The Kentucky Supreme Court has adopted the substantial factor test for causation,
set forth in the Restatement (Second) of Torts § 431. Pathways, Inc., 113 S.W.3d at 92.
Under this test, the “actor’s negligent conduct is a legal cause of harm to another if his
conduct is a substantial factor in bringing about the harm.” Id. (quoting Restatement
(Second) of Torts § 431). The term “substantial factor” is explained as follows:
In order to be a legal cause of another’s harm, it is not enough that the harm
would not have occurred had the actor not been negligent. . . [T]his is
necessary, but it is not of itself sufficient. The negligence must also be a
substantial factor in bringing about the plaintiff’s harm. The word
“substantial” is used to denote the fact that the defendant’s conduct has such
an effect in producing the harm as to lead reasonable men to regard it as a
cause, using that word in the popular sense, in which there always lurks the
idea of responsibility, rather than in the so-called “philosophic sense,” which
includes every one of the great number of events without which any
happening would not have occurred. Each of these events is a cause in the
so-called “philosophic sense,” yet the effect of many of them is so
insignificant that no ordinary mind would think of them as causes.
Restatement (Second) of Torts § 431, cmt. a.
The Restatement further provides that lapse of time is an important consideration
“in determining whether the actor’s conduct is a substantial factor in bringing about harm
to another.” Restatement (Second) of Torts, § 433(3). “Experience has shown that where
a great length of time has elapsed between the actor’s negligence and harm to another,
11
a great number of contributing factors may have operated, many of which may be difficult
or impossible of actual proof.” Id. at cmt. f. In some cases, “the effect of the actor’s
conduct may thus have become so attenuated as to be insignificant and unsubstantial as
compared to the aggregate of the other factors which have contributed.” Id. “However,
where it is evident that the influence of the actor’s negligence is still a substantial factor,
mere lapse of time, no matter how long, is not sufficient to prevent it from being the legal
cause of the other’s harm.” Id.
Causation is a mixed question of law and fact. Pathways, Inc., 113 S.W.3d at 89.
“The court has a duty to determine ‘whether the evidence as to the facts makes an issue
upon which the jury may reasonably differ as to whether the conduct of the defendant has
been a substantial factor in causing the harm to the plaintiff.’” Id. “[C]ausation should not
go to the jury unless the inference of causation is reasonable: it must “indicate the
probable, as distinguished from a possible cause.” Bailey v. N. Am. Refractories Co., 95
S.W.3d 868, 873 (Ky. Ct. App. 2001).
Gordon asserts that the brakes “are the most obvious and most likely cause of the
crash.” (Doc. # 132 at 2). In support of this proposition, she cites the deputies’ field
inspection, as well as her expert witness’s testimony. Gordon’s expert, Dr. Noll, rejected
the notion that the accident caused the brakes to slip out of alignment, opining instead that
the misaligned brakes caused the accident on June 14, 2013. (Doc. # 127-3 at 16).
Because Universal Fleet was the last entity to service the brakes, Gordon concludes that
there must be a causal connection between the maintenance performed in April and the
accident in June. She insists that “[a]rguing that a causal link between the two is
12
impossible is like arguing that showing a causal link between a puddle of water and a slip
and fall is impossible.” (Id.).
Even if Gordon is correct in asserting that the misaligned brakes were a substantial
factor in causing the accident, she has not produced any evidence attributing their
defective condition to Universal Fleet’s repair work. If the accident had occurred a day or
even a week after Universal Fleet inspected the brakes, then perhaps a reasonable juror
could infer that there is a causal connection between these two events. Here, by contrast,
two months passed between Universal Fleet’s maintenance and the accident. Because
the record is silent as to how the trailer was used during those two months, if at all, there
are “a great number of contributing factors may have operated, many of which may be
difficult or impossible of actual proof.” See Restatement (Second) of Torts § 433, cmt. f.
Under these circumstances, Gordon can only contend that a causal connection is possible.
She certainly has not established that a causal connection is probable.
3.
Res Ipsa Loquitur
Although she does not explicitly identify it as such, Gordon last advances a res ipsa
loquitur theory of liability. “A res ipsa loquitur case is ordinarily merely one kind of case of
circumstantial evidence, in which the jury may reasonably infer both negligence and
causation from the mere occurrence of the event and the defendant’s relation to it.”
Restatement (Second) of Torts, § 328D, cmt. b; see also Perkins v. Hausladen, 828
S.W.2d 652, 654 (Ky. 1992) (citing the Restatement and explaining further that “res ipsa
loquitur is a Latin phrase, which means nothing more than the thing speaks for itself, and
is simply one type of circumstantial evidence”) (internal quotations omitted). Specifically,
13
Gordon argues that Universal Fleet must have been negligent because it was the last entity
to service the trailer’s brakes, which she characterizes as the “most likely” cause of the
crash. (Doc. # 132 at 2).
“Reliance upon the doctrine of res ipsa loquitur is predicated upon a showing that
(1) the defendant had full control of the instrumentality which caused the injury; (2) the
accident could not have happened if those having control had not been negligent; and (3)
the plaintiff’s injury resulted from the accident.” Ryan v. Fast Lane, Inc., 360 S.W.3d 787,
790 (Ky. 2012) (citing Sadr v. Hager Beauty School, Inc., 723 S.W.2d 886, 887 (Ky. Ct.
App. 1987)).
As for the first element, the trailer may have been within Universal Fleet’s control
at the time of maintenance, two months before the accident, it had been in IFCO’s custody
ever since.7 Kentucky law suggests that this is not sufficient to satisfy the first prong of the
res ipsa loquitur test. See, e.g., Ryan, 360 S.W.3d at 790 (finding that the defendant gas
station did not have exclusive control over the allegedly defective gas pump because the
plaintiff was operating it at the time of the accident). However, even if the Court were to
assume that Gordon satisfied the first element, she would not be able to meet the second.
In analyzing the second element, the Kentucky Court of Appeals made the following
observations:
7) The Restatement (Second) of Torts, § 328D suggests a more nuanced approach to the first element in
Comment g. It states that the defendant may be responsible where he shares control of the instrumentality
with another, where he is under a duty to control the conduct of a third person, or where he was formerly in
control of the instrumentality, provided that there is sufficient evidence to eliminate the responsibility of
intermediaries. However, Kentucky courts have cited § 328D and several of its Comments with approval, but
the Court is unaware of any case relying on Comment g. Instead, Kentucky courts seem to have utilized the
more direct analysis exemplified in Ryan. However, even if the Court were to examine Gordon’s res ipsa
loquitur theory under Comment g’s rubric, it would fail. Although Universal Fleet may have once had control
of the instrumentality, Gordon has not presented sufficient evidence to eliminate the responsibility of
intermediaries, as the Court has already explained.
14
The fact that some mystery accompanies an accident does not justify the
application of the doctrine of res ipsa loquitur. The fact that we cannot
pinpoint an act of omission or commission wherein one fails to respect the
rights of others does not summon its use. A lack of knowledge as to the
cause of the accident does not call for application of the doctrine. The
separate circumstances of each case must be considered and from them it
must be first decided whether according to common knowledge and
experience of mankind, this accident could not have happened if there had
not been negligence.
Cox v. Wilson, 267 S.W.2d 83, 84 (Ky. 1954).
Having reviewed the evidence in detail, the Court simply cannot conclude that this
car accident could not have happened, absent some negligence on the part of Universal
Fleet. The record reflects that a number of factors may have contributed to this accident,
such as driver inattention, wear and tear or unknown factors that came into play after IFCO
regained control of the trailer. As the case law cited above indicates, a mere mystery
surrounding an accident does not justify the use of res ipsa loquitur. Because Gordon has
failed to convince this Court that a jury may reasonably infer both negligence and causation
from the mere occurrence of the accident and Universal Fleet’s relation to it, Universal
Fleet is entitled to summary judgment on Gordon’s negligence claim.
D.
Negligence Per Se Claim Against Universal Fleet
“Negligence per se is merely a negligence claim with a statutory standard of care
substituted for the common law standard of care.” Pile v. City of Brandenburg, 215 S.W.3d
36, 41 (Ky. 2006) (citing Ky. Rev. Stat. Ann. § 446.070 (“[A] person injured by the violation
of any statute may recover from the offender such damages as he sustained by reason of
the violation.”)). In order to sustain a claim for negligence per se, the plaintiff must
establish that he or she is a member of the class of persons the statute was designed to
15
protect and that his or her injury is the type of injury that the statute was designed to
prevent. Simons, 978 F. Supp. 2d at 784.
First, Gordon attempts to establish that Universal Fleet violated KRS § 189.224,
which makes it unlawful for “the owner, or any other person, employing or otherwise
directing the operator of any vehicle, to require or knowingly to permit the operation of such
vehicle upon a highway in any manner contrary to law.” As a preliminary matter, Universal
Fleet does not own the trailer, nor does it employ or otherwise direct the operation of the
trailer. (Doc. # 127-2 at 14, 27 and 42-46). It acts merely as a maintenance provider,
servicing and inspecting the trailer on an as-needed basis. (Id.). Moreover, because the
term “knowingly modifies ‘in any manner contrary to law,’” Universal Fleet can only be liable
under KRS § 189.224 if it knowingly gave the trailer back to IFCO with misaligned brakes.
Christensen v. ATS, Inc., 24 F. Supp. 3d 610, 615 (E.D. Ky. 2014). Such allegations are
not only inconsistent with Gordon’s negligence-based claims against Universal Fleet, they
are devoid of factual support in the record. Accordingly, Gordon’s negligence per se claim
fails, to the extent that it is predicated on a breach of KRS § 189.224.
Gordon next seeks to prove that Universal Fleet violated a number of federal
regulations. However, Kentucky law clearly states that neither “[v]iolations of federal laws
and regulations” nor violations of “the law of other states” create a cause of action based
on KRS § 446.070. St. Luke Hosp., Inc. v. Straub, 354 S.W.3d 529, 534 (Ky. 2011); see
also Alderman v. Bradley, 957 S.W.2d 265, 266 (Ky. Ct. App. 1997). Because Gordon
failed to establish that Universal Fleet breached any duties imposed by Kentucky statutes,
16
her negligence per se claim cannot survive.
Even if Gordon could demonstrate that Universal Fleet breached a statutory duty,
Kentucky law still requires her to prove cause and injury. Stivers v. Ellington, 140 S.W.3d
599, 601 (Ky. Ct. App. 2004). As the Court explained above, Gordon has fallen far short
of establishing a causal connection between the maintenance performed by Universal Fleet
on April 16, 2013 and the injuries Gordon suffered on June 14, 2013. Universal Fleet is
therefore entitled to summary judgment on Gordon’s negligence per se claim.
E.
Vicarious Liability Against Trillium
“[T]he doctrine of respondeat superior, or vicarious liability, imposes strict liability
upon an employer by virtue of its relationship with a tortfeasing employee.” Ten Broeck
Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009). Specifically, “[a] principal is
vicariously liable for damages caused by tort of commission or omission of an agent or
subagent, other than an independent contractor, acting on behalf of and pursuant to the
authority of the principal.” Williams v. Ky. Dept. of Ed., 113 S.W.3d 145, 151-52 (Ky.
2003); see also Roethke v. Sanger, 68 S.W.3d 352, 360-61 (Ky. 2001) (explaining that the
test is the same regardless of whether the agency relationship is a partnership,
principal/agent or master/servant relationship).
Under the loaned servant doctrine, “[a] servant may be loaned or hired by his master
for some special purpose so as to become, as to that service, the servant of the person to
whom he is loaned or hired, and to impose on the latter, the usual liabilities of a master,
the general or original master being correspondingly relieved.” Carnes v. Dep’t of Econ.
Sec., 435 S.W.3d 758, 761 (Ky. Ct. App. 1968); see also Duckwall-Kennady v. United
17
States, Civ. A. No. 5:13-cv-68-JMH, 2013 WL 3480739, at *3 (E.D. Ky. July 10, 2013)
(explaining that “the original employer actually loans the employee to the special
employer”). “In borrowed servant cases, agency for one party is only destroyed by agency
for another if the fulfillment of one role requires the abandonment of the other.” Nazar v.
Branham, 291 S.W.3d 599, 607 (Ky. 2009). Thus, “a person may be the servant of two
masters, not joint employers, at one time as to one act, if the service to one does not
involve the abandonment of the service to the other.” See City of Somerset v. Hart, 549
S.W.2d 814, 817 (Ky. 1977).
Trillium admits that it employed Turner at the time of the accident. (Doc. # 129).
However, it argues that it is not vicariously liable for Turner’s negligence because he was
driving IFCO’s trailer on IFCO’s behalf at the time of the accident. (Id.). While Turner was
“loaned” to IFCO at the time of the accident, his driving duties for IFCO did not require him
to abandon his role at Trillium. Because Trillium’s business is staffing temporary drivers
to its clients, Turner was actually furthering its enterprise by fulfilling his duties for IFCO.
Accordingly, Trillium is not entitled to summary judgment on Gordon’s vicarious liability
claim.8
F.
Negligent Hiring and Retention Claim Against Trillium 9
While the above-mentioned claim involved the imposition of strict liability on the
employer, this negligent hiring or retention claim “focuses on the direct negligence of the
8) IFCO has already accepted liability for this accident. Although it is unclear whether it accepted liability on
a respondeat superior basis or direct liability basis, the Court’s analysis does not necessarily undermine this
admission of liability, as indicated by City of Somerset.
9) Gordon also asserted claims for negligence and negligence per se against Trillium, based on its alleged
failure to maintain the trailer. (Doc. # 51). She has since conceded that summary judgment is appropriate
on this claim, as Trillium did not own or maintain the trailer at issue in this case. (Doc. # 135).
18
employer which permitted an otherwise avoidable circumstance to occur.” Brooks, 283
S.W.3d at 734. Under Kentucky law, “a plaintiff may assert and pursue in the same action
a claim against an employer based under respondeat superior upon the agent’s
negligence, and a separate claim based upon the employer’s own direct negligence in
hiring, retention, supervision or training.” MV Transp., Inc. v. Allgeier, 433 S.W.32 324,
337 (Ky. 2014). After all, “[t]he employer’s admission to the existence of an agency
relationship from which vicarious liability may arise does not supplant the claim that the
employer’s own negligence, independent of the negligence of the employee, may have
caused or contributed to the injury.” Id.
“In order for an employer to be held liable for negligent hiring or retention . . . the
employee must have committed a tort.” Brooks, 283 S.W.3d at 727 (explaining further that
the underlying tort may be intentional or negligent). To prevail on a claim for negligent
hiring and retention, the plaintiff must prove that: (1) the employer knew or reasonably
should have known that an employee was unfit for the job for which he was employed; and
(2) the employee’s placement or retention at that job created an unreasonable risk of harm
to the plaintiff. Oakley v. Flor-shin, Inc., 964 S.W.2d 438, 442 (Ky. Ct. App. 1998) (finding
that there were genuine issues of material fact as to whether an employer was negligent
in hiring an employee who assaulted a young woman, where the employer allegedly knew
that the employee had an extensive criminal record and would be locked alone in the store
with the victim).
According to Gordon, Trillium reasonably should have known that Turner was unfit
to drive a commercial vehicle based on his employment history. Turner indicated that he
19
quit two of his last three jobs, but his DAC report listed “Reason for Leaving” as “Discharge
or Company Terminated Lease.” (Doc. # 129-5). Gordon sees this as a discrepancy that
Trillium should have investigated further. However, Debarah Scott testified that the
notation “Discharge or Company Terminated Lease” denotes a variety of circumstances
besides firing. (Doc. # 131-1 at 17-23). For this reason, Trillium allowed Turner to explain
the circumstances of his departure from these jobs. (Id.). Kentucky law acknowledges that
an employer “‘must have a modicum of faith and trust in a job applicant’ and is entitled to
rely on an applicant’s ostensibly truthful answers in an application for employment.” M.T.
v. Saum, 3 F. Supp. 3d 617, 629 (W.D. Ky. 2014). Therefore, even assuming that Turner’s
discharge explanations were not entirely accurate, Trillium’s “failure to discover an
applicant’s dishonesty does not constitute even ordinary negligence.” Id. (citing Carberry
v. Golden Hawk Transp. Co., 402 S.W.3d 556, 563 (Ky. Ct. App. 2013) (dealing with an
employer’s failure to discover an applicant’s outright dishonesty)).
Gordon next contends that Trillium had notice of Turner’s failings because his
driving record revealed a misdemeanor for exceeding maximum load, two speeding tickets,
and two accidents involving stationary objects, one of which was DOT-recordable. (Doc.
# 135 at 3-4). Despite these blemishes on Turner’s MVR, the record reflects that was still
eligible for hire under federal regulations and Trillium’s hiring standards. (Doc. # 131-1 at
17-23). Trillium also complied with the federal regulations requiring it to obtain copies of
Turner’s CDL, MVR, and DAC. (Id.). While this is not conclusive evidence of due care,
courts have generally been unwilling to find that there were genuine issues of material fact
as to negligent hiring and retention, so long as the employer complied with the hiring
20
practices prescribed by the Federal Motor Carrier Safety Administration. See Saum, 3 F.
Supp. 3d at 629 (finding that there was not a genuine issue of material fact as to negligent
hiring and retention because the employer obtained a FMCSA screening report, which
indicated that the employee was qualified to operate a commercial vehicle); Carberry, 402
S.W.3d at 563 (reaching the same conclusion based on the fact that the employer
complied with all federal motor vehicle regulations before hiring the employee).
Gordon also notes that Trillium failed to obtain complete medical records for Turner
and allowed him to drive with elevated blood pressure. (Doc. # 135 at 4). Scott seems to
concede that Trillium was deficient in this respect. (Doc. # 131-1 at 30-33). However,
there is no evidence in the record to suggest that Turner’s elevated blood pressure caused
or even contributed to the accident. While Kentucky law does not explicitly identify
causation as an element of a negligent hiring and retention claim, the seminal cases
suggest that such a connection is necessary.
See Brooks, 283 S.W.3d at 731
(incorporating the issue of causation into the proposed jury instruction for negligent hiring
and retention).
Finally, Gordon cites a laundry list of Turner’s failings on the day of the accident as
evidence that he was unfit to drive a commercial vehicle. (Doc. # 135 at 5). She claims
that a driver with Turner’s experience would have known to brake before exiting the
highway and to honk or swerve upon realizing that the brakes did not function properly.
(Id.). She further asserts that an experienced driver would not have pumped the brakes
in an effort to stop the vehicle, nor would he have reconnected the detached brake line
21
following the accident. (Id.). Even if Gordon’s assertions are true, she cannot establish
that Trillium knew or had reason to know of Turner’s failings. Because these acts and
omissions occurred contemporaneously with the accident, they could not have put Trillium
on notice of Turner’s deficiencies as a driver. There being no genuine issues of material
fact as to whether Trillium knew or had reason to know that Turner was unfit for the job or
created an unreasonable risk of harm to others, Trillium is entitled to summary judgment
on this claim.
G.
Negligent Training and Supervision Claim Against Trillium
Kentucky has also “recognized and acknowledged the existence of negligent training
and supervision” claims. Turner v. Pendennis Club, 19 S.W.3d 117, 121 (Ky. Ct. App.
2000). To succeed on such a claim, the plaintiff must establish that (1) the employer knew
or had reason to know of the risk that the employee created; (2) the employee injured the
plaintiff; and (3) the supervision and/or retention of the employee proximately caused the
injury. Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 844 (Ky.
2005).
Gordon insists that Trillium failed to adequately train or supervise Turner, as it only
offered him a brief orientation and courses in hazardous material training and drug and
alcohol awareness. (Id. at 6). Specifically, she faults Trillium for not administering a road
test or conducting a defensive driving course, as required by federal law. (Id.). However,
the record reflects that Turner received Protread safety training, which included a road test
and defensive driving instruction, while on assignment to Ryder Logistics. (Doc. # 131-1
22
at 26-27). Because Turner ultimately received such training, Gordon cannot demonstrate
that Trillium’s failure to directly provide such instruction proximately caused the accident.
There is also no evidence in the record to suggest that Trillium was negligent in
supervising Turner while he was working under their purview. Instead, Gordon must
predicate her negligent supervision claim on Trillium’s alleged failure to ensure that Turner
conducted a pre-trip inspection of the tractor-trailer. (Doc. # 135 at 7). This argument fails
because Trillium was not in a position to supervise Turner while he was at IFCO’s facility
preparing to drive IFCO’s trailer loaded with IFCO’s product to another facility. (Doc. #
131-1 at 12-14, 25; 131-2 at 3-4). For this very reason, Trillium and IFCO agreed that
IFCO was responsible for supervising temporary drivers on assignment from Trillium. (Id.).
Accordingly, Trillium is entitled to summary judgment on Gordon’s negligent training and
supervision claims.
H.
Punitive Damages Claim Against Trillium, IFCO, and Turner
Under Kentucky law, punitive damages are available if the plaintiff can prove by
clear and convincing evidence that the defendant acted with oppression, fraud, or malice.10
Ky. Rev. Stat. Ann. § 411.184(2). Punitive damages may also be awarded upon a showing
of gross negligence. Williams v. Wilson, 972 S.W.2d 260, 262-65 (Ky. 1998). “[T]he
prevailing understanding defines gross negligence as a wanton or reckless disregard for
the safety of other persons.” Kinney v. Butcher, 131 S.W.3d 357, 359 (Ky. Ct. App. 2003).
10) Although the Kentucky Supreme Court held KRS § 411.184(1)© unconstitutional in Williams v. Wilson,
it expressed “no opinion herein as to the constitutionality of KRS § 411.184(2).” 972 S.W.2d at 268. “In
subsequent decisions, the Kentucky Supreme Court has reiterated that KRS § 411.184(1)© is unconstitutional,
but has applied other sections of the statute, specifically, KRS § 411.184(2).” Anderson v. Wade, 33 F. App’x
750, 758-59 (6th Cir. 2002) (surveying Kentucky case law). Therefore, the Court will follow the lead of the
Sixth Circuit and the Kentucky Supreme Court and apply KRS § 411.184(2).
23
“It is not necessary that the jury find the defendant to have acted with express malice;
rather, it is possible that a certain course of conduct can be so outrageous that malice can
be implied from the facts of the situation.” Id.
In Kinney, the Kentucky Court of Appeals held that “traveling at a possible speed
of ten miles per hour in excess of the posted speed limit and failing to complete a pass
before entering a no-passing zone constitute nothing more than ordinary negligence.” Id.
The court reasoned as follows:
Were we to accept Kinney’s argument that [this conduct] amounts to wanton
or reckless disregard for the safety of others, it would effectively eliminate the
distinction between ordinary negligence and gross negligence in the context
of automobile accidents. Nearly all auto accidents are the result of negligent
conduct, though few are sufficiently reckless as to amount to gross
negligence, authorizing punitive damages. We are of the opinion that
punitive damages should be reserved for truly gross negligence as seen in
cases such as Shortridge v. Rice, Stewart v. Estate of Cooper, and Phelps
v. Louisville Water Company. In Shortridge and Stewart, the defendant
tortfeasors were driving while intoxicated; and, in Phelps, the jury was
presented with eighteen instances where Louisville Water Co.
misrepresented the dangerous nature of a highway condition, violated its
own safety policies, and disregarded the Manual on Uniform Traffic Control
Devices, all of which evidenced a conscious disregard for public safety.
Id.
Having reviewed the record in detail, the Court sees no evidence that Turner’s
conduct amounts to anything more than ordinary negligence. His alleged decisions on the
day of the accident include failing to conduct a pre-trip inspection, failing to honk or swerve,
pumping the brakes in an effort to stop, and reconnecting the detached brake line at the
accident scene. (Doc. # 135 at 5). There is no evidence in the record to suggest that he
made these decisions with a wanton and reckless disregard for the safety of other persons.
Stated simply, Turner’s conduct is akin to that at issue in Kinney, rather than that
24
discussed in Shortridge, Stewart and Phelps.
Nevertheless, Gordon believes that these acts and omissions, considered together,
are sufficient to support an award of punitive damages. (Id.). To support this position,
Gordon cites MV Transportation, Inc. v. Allgeier for the proposition that “[e]ven where a
single act of negligence might not constitute gross negligence, gross negligence may result
from the several acts.” MV Transp. v. Allgeier, 433 S.W.3d 324, 338 (Ky. 2014) (quoting
Horton v. Union Light, Heat & Power Co., 690 S.W.2d 382, 388 (Ky. 1985)). However,
Allgeier presented an unusual and much more egregious set of facts than this case. Id.
In Allgeier, a handicapped passenger’s wheelchair tipped over as she was
attempting to disembark from a para-transit bus. Id. at 328. Because the wheelchair was
connected to the vehicle by a safety strap, and because the passenger was wearing a
safety belt, she was essentially suspended in midair. Id. The bus driver released the
passenger’s safety belt, causing her to fall to the ground and fracture both femurs. Id.
Instead of calling 911, the driver called her company’s dispatcher, who sent two of
supervisors to the accident scene. Id. Upon arrival, these supervisors sought emergency
medical assistance, but minimized the urgency of the situation by telling first responders
that the passenger was only experiencing back pain. Id. They then “busied themselves
with taking pictures and sequestering [the passenger] from any inquiries about the
incident[,]” paying “little attention to [her] plight.” Id.
The court relied heavily on these facts in determining that an award of punitive
damages was warranted, reasoning as follows:
25
From the evidence a jury could have reasonably concluded that in the
aftermath of [the driver’s] initial ordinary negligence that caused Allgeier to
fall, MV agents, including [the driver], following policies put in place by MV,
placed its own financial self-interests ahead of Allgeier’s urgent need for
medical assistance, and callously left Allgeier suffering helplessly in dire pain
and distress in subfreezing weather for an unnecessarily prolonged period
of time.
Id.
Even considered in toto, Turner’s acts and omissions do not constitute gross
negligence. There is simply no indication that Turner did anything more than make poor
driving choices that left him unable to avoid a collision. This is not a situation like Allgeier,
where the defendants failed to seek emergency care for a fellow human being in severe
pain for the sake of financial self-preservation. Accordingly, Turner is entitled to summary
judgment on Gordon’s punitive damages claim.
Under Kentucky law, punitive damages cannot be assessed “against a principal or
employer for the act of an agent or employee11 unless such principal or employer
authorized or ratified or should have anticipated the conduct in question.” Ky. Rev. Stat.
Ann. § 411.184(3); see also Berrier v. Bizer, 57 S.W.3d 271, 283 (Ky. 2001) (noting that
“Kentucky is the only state with a statute that so broadly limits vicarious liability for punitive
damages”). Because the Court has already concluded that Turner’s actions do not rise to
the level of gross negligence, neither IFCO nor Trillium can be liable for punitive damages
11) Gordon asserts vicarious liability and direct liability claims against IFCO and Trillium. It is unclear whether
her claim for punitive damages against those two Defendants is predicated solely on vicarious liability, or
whether she also seeks punitive damages in relation to her direct liability claims. If Gordon does indeed seek
punitive damages for IFCO’s and Trillium’s alleged negligence in hiring, training, retaining, and supervising
Turner, her request must fail because the Court has granted summary judgment in IFCO and Trillium’s favor
on those claims. See Russell v. Rhodes, Nos. 2003-CA-000923-MR, 2004-CA-000492-MR, 2005 WL 736612
at *5 (Ky. App. Apr. 1, 2005) (explaining that dismissal of a punitive damages count is proper when the
underlying tort claims have been dismissed).
26
on a vicarious liability theory.12 Therefore, they are also entitled to summary judgment on
Gordon’s punitive damages claim.
IV.
Conclusion
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
(1)
Defendant Universal Fleet & Tire Service, Inc.’s Motion for Summary
Judgment (Doc. # 123) be, and is, hereby GRANTED IN FULL. Accordingly, summary
judgment is entered in Universal Fleet’s favor as to Count III (negligence), Count V
(negligence per se), and Count XI (punitive damages).
(2)
Defendant Pallet Companies, Inc., d/b/a IFCO Systems, LLC’s Motion for
Summary Judgment on the Issue of Punitive Damages (Doc. # 125) be, and is, hereby
GRANTED IN FULL. Summary judgment is therefore entered in IFCO’s favor as to Count
XI (punitive damages);
(3)
Defendant Tenorris F. Turner’s Motion for Summary Judgment on the Issue
of Punitive Damages (Doc. # 128) be, and is, hereby GRANTED IN FULL. Summary
judgment is therefore entered in Turner’s favor as to Count XI (punitive damages);
(4)
Defendant Midwest Construction Services, Inc., d/b/a Trillium Driver
Solutions’ Motion for Summary Judgment (Doc. # 129) be, and is, hereby GRANTED IN
PART and DENIED IN PART. Trillium is entitled to summary judgment as to Count III
(negligence), Count V (negligence per se), Count VI (negligent hiring), Count VII
12) Gordon also sought punitive damages against Universal Fleet. (Doc. # 51). This claim fails because the
Court granted summary judgment in Universal Fleet’s favor on the negligence and negligence per se claims.
See Russell, 2005 WL 736612 at *5.
27
(negligent training), Count VIII (negligent supervision), Count X (negligent retention), and
Count XI (punitive damages). Trillium is not entitled to summary judgment as to Count
II (vicarious liability);
(5)
Plaintiff Tiffany Gordon’s Motion for Hearing (Doc. # 143) be, and is, hereby
DENIED AS MOOT;
(6)
The following claims remain in this action: Count I (negligence) against
Turner; Count II (vicarious liability) against Trillium and IFCO; Count III (negligent
maintenance) against IFCO; Count IV (negligence per se) against Turner; Count V
(negligence per se) against IFCO; Count VI (negligent hiring) against IFCO; Count VII
(negligent training) against IFCO; Count VIII (negligent supervision) against IFCO; Count
IX (negligent entrustment) as to IFCO; and Count X (negligent retention) against IFCO;
and
(7)
Because none of the remaining claims pertain to Defendant Universal Fleet,
it be, and is, hereby DISMISSED as a Defendant in this action.
This 29th day of June, 2016.
K:\DATA\Opinions\Covington\2013\13-136 MOO Granting in Part and Denying in Part MSJs.wpd
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