Johnny v. Bornowski et al

Filing 140

ORDER granting 93 defendants' motion for judgment on the pleadings. Plaintiff's claims for negligent hiring, retention, training, supervision, and entrustment articulated in paragraph 42 of Count I of Plaintiffs Complaint are DISMISSED. Defendants' 94 motion for summary judgment on claim of punitive damages is provisionally granted. Count III of Plaintiff's Complaint asserting a right to punitive damages is hereby provisionally DISMISSED. Signed on 1/4/12 by Chief District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
OSCAR L. JOHNNY, JR.,
Plaintiff,
v.
LARRY BORNOWSKI and
STAMPEDE CARRIERS, LLC,
et al.,
Defendants.

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) Case No. 10-04008 -CV-FJG
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ORDER
Currently pending before the Court is Defendants Larry Bornowski and
Stampede Carriers, LLC’s (hereinafter “Defendants”) Motion for Judgment on the
Pleadings, or In the Alternative, Motion to Dismiss (Doc. No. 93) and Defendants’
Motion for Summary Judgment on the Claim of Punitive Damages (Doc. No. 94).
I.

Background
This is an action arising out of injuries sustained by Plaintiff Oscar Johnny

when a tractor trailer, driven by Defendant Bornowski, collided with Plaintiff’s 18wheeler in January 2008. Plaintiff’s complaint asserts negligence, negligence per se,
and aggravating circumstances warranting punitive damages.
Defendants submit the present Motion for judgment in their favor on the
pleadings or in the alternative, dismissal of Plaintiff’s liability claims (Doc. No. 93).
Defendants also submit a Motion for Summary Judgment in their favor on the claim for
punitive damages (Doc. No. 104).

II.

Facts
On January 26, 2008 along northbound United States Highway 69 in Pryor,

Mayes County, Oklahoma, at approximately 9:07 p.m., Plaintiff Oscar Johnny and
Defendant Larry Bornowski were involved in a motor vehicle accident. United States
Highway 69 is a divided highway generally running north and south with two lanes going
each direction divided by a grass and/or dirt median. The median was muddy on the
particular day in question. Plaintiff Johnny, while operating a tractor-trailer combination,
lost control of his vehicle and became stuck in the mud in the median (Doc. No. 95).1
Subsequently, Defendant Bornowski’s tractor-trailer combination left the roadway as the
left side of his vehicle was pulled into the median by the mud.2 The left front corner of
Defendant’s trailer collided with the back right corner of Plaintiff’s trailer (Doc. No. 94).3
At the time of the accident, Defendant Bornowski was an employee acting within the
scope of his employment with Defendant Stampede. It is disputed whether Defendant
Bornowski had a valid Class A Commercial Driver’s License issued by the state of
Missouri at the time of the accident. Plaintiff suffered injuries.
III.

Defendants’ Motion for Judgment on the Pleadings
Defendants submit the present Motion for Judgment on the Pleadings for this

Court to apply Oklahoma law to bar Plaintiff’s liability claims. In Count I of the
Complaint, Plaintiff alleges negligent hiring, training, supervision, entrustment, and
retention against Defendant Stampede. Defendants admit in their Answer that
1

Plaintiff disputes this fact and asserts that Oscar Johnny pulled off the shoulder and his vehicle was disabled and
legally stopped in the center median (Doc. No. 104).
2
Plaintiff does not dispute that there was mud on the shoulder. Plaintiff disputes the fact that Defendant
Bornowski’s wheels were “pulled” into the median to the extent it is used to indicate no fault on the part of
Defendant. Plaintiff asserts that Defendant Bornowski “lost sight of the shoulder” and was traveling at an unsafe
speed and failed to maintain control of his vehicle (Doc. No. 104).
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Plaintiff submits the impact was not limited to the corners of the trailers. To the contrary, the impact tore open the
left side of Defendant Bornowski’s trailer, spilling its contents (Doc. No. 104).
2

Defendant Bornowski was employed by Defendant Stampede on the date and at the
time of the accident in question. As such, Defendants contend that Plaintiff has pleaded
duplicative imputed liability claims because under Oklahoma law, once Defendants
admit that an agency relationship exists between Bornowski and Stampede, Plaintiff is
precluded from proceeding on any claim for negligent hiring, training, supervision,
entrustment, and/or retention against Defendant Stampede. To do otherwise, would be
superfluous. (Doc. No. 93).
Plaintiff submits that although it is aware of the general rule that an employer
cannot be held liable for negligent hiring or entrustment once an employer concedes
liability on the basis of respondeat superior, Missouri and Florida courts have
recognized that there are some exceptions to this rule. Plaintiff has pled seven
independent acts of negligence committed by Defendant Stampede, and these acts, as
well as Defendant Bornowski’s acts, jointly and severally caused harm to Plaintiff. As
such, Plaintiff asserts it may maintain these separate theories of negligence. (Doc. No.
101).
A. Standard of Review
When ruling on a motion for judgment on the pleadings, the Court must accept as
true all facts pleaded by the non-moving party and grant all reasonable inferences from
the pleadings in favor of the non-moving party. U.S. v. Any and all Radio Station
Transmission Equip., 207 F.3d 458 (8th Cir. 2000). Judgment on the pleadings is not
properly granted unless the moving party has clearly established that no material issue
of fact remains to be resolved and the party is entitled to judgment as a matter of law.
Id.

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B. Discussion
Under Oklahoma law, 4 once an employer admits vicarious liability for its
employee’s actions, no further theory of negligence associated with the particular
incident may be maintained against the employer. Landreville v. Joe Brown Co., Inc.,
No. CIV-8-171-KEW, 2009 WL 1437801, *3-4 (E.D. Okla. May 21, 2009). Because
vicarious liability can include liability for punitive damages, where a claim for punitive
damages is made against the employer based on negligence claims asserted directly
against it that are associated with its employee, only the conduct of the employee shall
be available to the jury for evaluation of Plaintiff’s claim. Id. citing Jordan v. Cates, 935
P.2d 289, 292-293 (Okla. 1997). To do otherwise would be unnecessary and
superfluous. Id. There has been no deviation from this established legal position by
Oklahoma courts. Id. In this case, Defendant Stampede admitted vicarious liability for
its employee’s actions. Therefore, no further theory of negligent hiring, training,
supervision, entrustment, and retention may be maintained against Defendant
Stampede. A claim for punitive damages based upon Defendant Stampede’s conduct is
also thus, not permitted.
Accordingly, Defendants’ Motion for Judgment on the Pleadings, or In the
Alternative, Motion to Dismiss (Doc. No. 93) is hereby GRANTED. Plaintiff’s claims for
negligent hiring, retention, training, supervision, and entrustment articulated in
paragraph 42 of Count I of Plaintiff’s Complaint are hereby DISMISSED.

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It is important to note that the Court ruled in its previous order analyzing the proper choice of law in this case.
Oklahoma substantive law applies to issues surrounding comparative fault and damages (Doc. No. 137).
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IV.

Defendants’ Motion for Summary Judgment
As noted above, under Oklahoma case law, the conduct of Defendant Stampede

may not be available to a jury on Plaintiff’s claim for punitive damages. However, the
question now becomes whether there is sufficient support in the record for the Court to
permit Plaintiff’s claim for punitive damages regarding Defendant Bornowski’s conduct
to be submitted to a jury. Defendants raise this issue in their Motion for Summary
Judgment (Doc. No. 94).
A. Standard of Review
Summary judgment shall be granted when the “movant shows that 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). Plaintiff’s evidence is to “be believed and all
justifiable inferences are to be drawn in [Plaintiff’s] favor.” Eastman Kodak Co. v. Image
Technical Serv., Inc., 504 U.S. 451 (1992). The moving party must carry the burden of
establishing both the absence of a genuine issue of material fact and that such party is
entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986).
B. Discussion
The trial court need not and indeed should not, submit the issue of punitive
damages to the jury, where there is no evidence that gives rise to an inference of actual
malice or conduct sufficiently outrageous to be deemed equivalent to actual malice or
reckless indifference. Kolstad v. American Dental Ass’n., 527 U.S. 526 (1999). It
should be presumed that a Plaintiff has been made whole for his injuries by
compensatory damages, so punitive damages should only be awarded if the

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Defendant’s culpability, after having paid compensatory damages is so reprehensible as
to warrant the imposition of further sanctions to achieve punishment or deterrence.
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003). The mere
happening of an accident as a result of inadvertence on the part of the responsible party
is insufficient. Hinds v. Warren Transp., 882 P.2d 1099 (Okla. App. 1994).
In this case, the parties dispute whether the accident in question was the result of
mere inadvertence on the part of Defendant Bornowski or whether it was the result of
reckless indifference to human life so as to warrant submission of punitive damages to
the jury. Plaintiff believes it was the result of reckless indifference to human life.
According to Plaintiff, at the time of the accident, Defendant Bornowski was not qualified
to operate a commercial motor vehicle because his medical examiner’s certificate had
expired (Doc. No. 104). Defendant Bornowski was aware of its expiration (Doc. No. 104
& Doc. No. 94-3 Ex. 3 p. 15). As such, he was in direct violation of Federal Motor
Carrier Safety Regulations (Doc. No. 104-3 Ex. C p. 4). This increased the odds of
having a wreck by eighteen percent (18%) (Doc. No. 104-3 Ex. C p. 4). Plaintiff argues
this showed reckless indifference to human life (Doc. No. 104).
Defendants contend that the accident was not the result of reckless indifference
to human life, but rather the result of mere inadvertence. Defendant Bornowski did not
know at the time of the accident that his medical examiner’s certificate had expired
(Doc. No. 94). It was something that had “just slipped past” him (Doc. No. 94-3 Ex. 3 p.
15). Furthermore, Defendants take issue with Plaintiff’s expert testimony that this was a
violation of the Federal Motor Carrier Safety Regulations that increased the odds of

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having a wreck (Doc. No. 73 & 90). As such, this accident was a result of mere
inadvertence, not reckless indifference (Doc. No. 94 & 108).
The Court provisionally GRANTS Defendants’ Motion for Summary Judgment.
The Court finds nothing currently in the record that meets the high threshold required for
submission of punitive damages to the jury. Therefore, Count III of Plaintiff’s Complaint
asserting a right to punitive damages is hereby provisionally DISMISSED.
V.

Conclusion
Accordingly, Defendants’ Motion for Judgment on the Pleadings, or In the

Alternative, Motion to Dismiss (Doc. No. 93) is hereby GRANTED. Plaintiff’s claims for
negligent hiring, retention, training, supervision, and entrustment articulated in
paragraph 42 of Count I of Plaintiff’s Complaint are hereby DISMISSED. Defendants’
Motion for Summary Judgment on the Claim of Punitive Damages (Doc. No. 94) is
hereby provisionally GRANTED. Count III of Plaintiff’s Complaint asserting a right to
punitive damages is hereby provisionally DISMISSED.
IT IS SO ORDERED.

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
Chief United States District Judge

Date: January 4, 2012
Kansas City, Missouri

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