Hodge et al v. Stan Koch & Sons Trucking, Inc. et al
Filing
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OPINION AND ORDER by Magistrate Judge Kimberly E. West GRANTING (Dkt No 37 ) Defendant Stan Koch & Sons Trucking, Inc.'s Motion for Summary Judgment. (neh, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LAUREN HODGE and
DELORES MCDANIEL,
Plaintiffs,
v.
STAN KOCH & SONS
TRUCKING, INC. and
NICK BRESHEARS,
Defendants.
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Case No. CIV-13-071-KEW
OPINION AND ORDER
This matter comes before the Court on Defendant Stan Koch &
Sons Trucking, Inc.’s Motion for Summary Judgment (Docket Entry
#37).
On February 7, 2011, Plaintiffs were involved in a traffic
accident with Defendant Breshears in a tractor trailer owned and
operated by Defendant Stan Koch & Sons Trucking, Inc. (“Stan
Koch”).
In their Petition removed to this Court on February 14,
2013, Plaintiffs allege the accident was as a result of Defendant
Breshears’
negligence.
Plaintiffs
also
brought
claims
for
negligence and negligence per se against Defendant Stan Koch for
(1)
failing
to
properly
screen,
test,
and
qualify
drivers,
including Defendant Breshears; (2) negligent hiring, employing, and
retention of unqualified drivers; (3) filing to properly train and
supervise drivers; and (4) failing to properly implement and
enforce policies, procedures, and protocols to properly screen,
test, train, qualify, supervise, and retain drivers to operate
motor vehicles.
Plaintiffs expressly state in their Petition that
their claims against Defendant Stan Koch are based upon vicarious
liability for Defendant Breshears’ actions.
In its answer to the Petition, Defendant Stan Koch admitted
that Defendant Breshears was acting within the course and scope of
his employment at the time of the accident. In so doing, Defendant
Stan Koch stipulated to the potential respondeat superior liability
for Defendant Breshears’ conduct while in its employ.
Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law."
Universal Money Centers v. A.T. & T., 22 F.3d
1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct. 655,
130 L.Ed.2d 558 (1994).
The moving party bears the initial burden
of showing that there is an absence of any issues of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 255354, 91 L.Ed.2d 265 (1986).
A genuine issue of material fact exists
when "there is sufficient evidence favoring the nonmoving party for
a jury to return a verdict for that party."
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed 2d
202 (1986).
In determining whether a genuine issue of a material
fact exists, the evidence is to be taken in the light most favorable
to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144,
2
157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).
Once the moving
party has met its burden, the opposing party must come forward with
specific evidence, not mere allegations or denials of the pleadings,
which demonstrates that there is a genuine issue for trial. Applied
Genetics v. Fist Affiliated Securities, 912 F.2d 1238, 1241 (10th
Cir. 1990); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.
1983).
With regard to the material facts set forth above, this Court
finds no significant dispute.
In their response to the summary
judgment request, Plaintiffs “reluctantly” concedes that Oklahoma
law does not permit additional negligence claims when vicarious
liability is admitted by the employer.
By virtue of the pending Motion, Defendant Stan Koch contends
the Oklahoma Supreme Court has not permitted claims for negligent
hiring, supervision, and retention to proceed to trial in the
circumstance where an employer has admitted vicarious liability.
In support of this proposition, Defendant cites to the seminal case
of Jordan v. Cates, 935 P.2d 289 (Okla. 1997).
In Jordan, an
individual who went to a convenience store to pay off a returned
check.
Id. at 291.
During the course of an alleged altercation
with an employee of the store, the individual contended the
employee assaulted and battered him.
Id.
He brought suit against
the convenience store, as the employer of the offending employee,
under the theory of respondeat superior liability for the negligent
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hiring and retention of the employee.
Recognizing
the
required
Id.
elements
to
confer
respondeat
superior liability, the employer stipulated that the altercation
occurred while its employee was acting within the course and scope
of his employment and that it would be liable for any damages
awarded by a jury.
Id. at 292.
As a result, the trial court
granted the employer summary judgment, dismissing the claims of
negligent
hiring
and
retention,
in
light
of
the
employer’s
admission that it’s employee was acting within the scope of his
employment during the altercation.
Id.
The Oklahoma Supreme Court reviewed the controlling prior case
authority and concluded
that the theory of negligent hiring and retention is
available in a nonvicarious liability case or in a case
where vicarious liability has not been established. In
the case at bar, vicarious liability has been established
through stipulation.
* * *
Our holding today is limited to those situations where
the employer stipulates that liability, if any, would be
under the respondeat superior doctrine, thereby making
any other theory for imposing liability on the employer
unnecessary and superfluous. Because vicarious liability
can include liability for punitive damages, the theory of
negligent hiring and retention imposes no further
liability on employer.
Id. at 293 (emphasis in original).
The same court recognized this legal limitation in the later
case of N.H., a minor v. Presbyterian Church (U.S.A.), 998 P.2d
592,
600
(Okla.
1999)(“In
Oklahoma,
4
the
theory
of
recovery
[employer negligence] is available if vicarious liability is not
established.”)
The defendant church did not admit vicarious
liability in that case, however, causing the court to also consider
whether the defendant church was put on sufficient notice of the
propensity for its employee to molest so as to confer liability
upon the church.
The law appears clearly established in Oklahoma
that once an employer, such as Defendant Stan Koch in this case,
has admitted vicarious liability for its employee’s actions, no
further
theory
of
negligence
associated
with
the
particular
incident may be maintained against the employer.
After conceding the holding in Jordan, Plaintiffs contend in
a section of their responsive brief entitled “Plaintiffs’ Public
Policy Point” that Defendant Stan Koch maintains a corporate policy
which allegedly demonstrates a “willful and deliberate refusal ...
to review the preventability of collisions that could minimize the
risk of repeat occurrences.”
Jordan rationale.
This argument does not alter the
Such claims remain barred by the admission of
vicarious liability by Defendant Stan Koch.
IT IS THEREFORE ORDERED that Defendant Stan Koch & Sons
Trucking, Inc.’s Motion for Summary Judgment (Docket Entry #37) is
hereby GRANTED. As a result, Plaintiffs’ claims for negligence and
negligence
per
se
associated
with
the
hiring,
training,
supervision, retention, and policies and procedures established by
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Defendant Stan Koch are hereby DISMISSED.
IT IS SO ORDERED this 20th day of January, 2015.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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