Isso et al v. Western Express Inc et al

Filing 59

ORDER granting 38 Motion for Summary Judgment, as more fully set out. Signed by Honorable David L. Russell on 7/15/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JIMMY ISSO and BUSHRA ISSO,
Plaintiffs,
v.
WESTERN EXPRESS, INC. and
THOMAS RJ SCHNEIDER,
Defendants.

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CIV-14-109-R

ORDER
This matter comes before the Court on the Motion for Summary Judgment filed by
Defendant Western Express, Inc. (“Western”). Doc. No. 38. Plaintiffs responded in
opposition to the motion. Having considered the parties’ submissions, the Court finds as
follows.
This case stems from a multi-vehicle accident near the Oklahoma-Texas border on
March 31, 2012. The Defendants named in this suit, which is one of many actions arising
from this accident, are Western and its employee, Thomas Schneider. Plaintiffs have
alleged that Defendants were negligent in causing the accident, Western in part because it
negligently and recklessly hired, trained, supervised and retained Schneider. Western has
admitted that at the time of the accident Schneider was acting within the scope of
employment, and therefore contends that pursuant to Jordan v. Cates, 935 P.2d 289, 293
(Okla. 1997), Plaintiffs’ claims that it negligently and recklessly hired, trained,
supervised, retained and entrusted Schneider should be dismissed.

In response Plaintiffs argue that they are entitled to pursue alternative theories of
recovery and that the Oklahoma Constitution guarantees them a remedy for every wrong.
Plaintiffs further contend the behavior of both employer and employee should be
separately evaluated for punitive damages purposes and that Jordan v. Cates does not
apply to the independent negligence of a federal motor carrier or to non-intentional torts.
Pursuant to Federal Rule of Civil Procedure 56, summary judgment shall be
granted if the movant establishes there are no genuine issues of material fact and the
movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). In determining whether a genuine issue of material fact exists, the Court must
construe the evidence in the light most favorable to the non-movant. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970).
Generally the Court will address the arguments in the order set forth by Plaintiffs
in their response to the motion. Although not presented first, the Court will address the
primary issue underlying Western’s motion, the impact of Jordan v. Cates on any claim
Plaintiffs might seek to pursue on theories of negligent hiring, supervision, and retention
or entrustment.1 See Jordan v. Cates, 935 P.2d 289 (Okla. 1997).
Jordan involved a claim of battery by a customer against an employee of a
convenience store and the store owner. The customer alleged both respondeat superior
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Plaintiffs did not specifically plead a claim for negligent entrustment. Throughout their brief Plaintiffs
include negligent entrustment in the litany of grounds for holding Western directly liable along with the
negligent hiring, training, supervision and retention claims. Even if the Court were to construe Plaintiffs’
petition as including negligent entrustment claims against the movants, or the Court were to permit
Plaintiffs to add such a claim, the Court would nevertheless grant Western summary judgment on the
issue.

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liability and a direct claim of negligent hiring, because the employer knew or should have
known the employee had violent tendencies. The Oklahoma Supreme Court held that
summary judgment was appropriate in favor of the employer on the negligent hiring
claim, “because the negligent-hiring theory imposes no additional liability on the
employer where it stipulates its employee was acting within the scope of his employment
when the harm-dealing altercation occurred.” 935 P.2d at 291. The court distinguished
cases cited by the plaintiff that permitted recovery for negligent hiring, because those
cases did not involve stipulations by employers that employees were acting within the
scope of their employment. As a result, the plaintiffs were permitted to pursue alternative
theories of direct and respondeat superior liability. Id. at 292. “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.” Id. at 293.
Plaintiffs contend Jordan v. Cates does not apply herein because Jordan involved
an intentional tort, not a negligence based claim. The Court disagrees. First, the Court
cannot conceive of the nature of the tort as dispositive. There is no logic to the notion that
an employer would be directly liable for negligent hiring if its employee acted
negligently, but not be liable if it negligently hires a person with a lengthy history of
violence and the employee assaults a customer. Furthermore, the federal courts in
Oklahoma generally have extended Jordan to negligence claims. See Huntley v. City of
Owasso, 497 F. App’x 826, 834 (10th Cir. 2012); Fisher v. National Progressive, Inc.,
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No. CIV-12-853-C, 2014 WL 7399185, at *2 (W.D. Okla. Dec. 29, 2014); Bryson v.
Sierra Metals, Inc., No. CIV–12–839–C, 2013 WL 1397826, at *1 (W.D. Okla. Mar. 25,
2013) (describing the distinction as “artificial”); Dowuona-Hammond v. Integris Health,
No. CIV-10-965-C, 2011 WL 134923, at *3 (W.D. Okla. Jan. 14, 2011) (“Because there
is vicarious liability there can be no negligent hiring, retention, or supervision claim.”);
Landreville v. Joe Brown Co., Inc., No. CIV-08-171-KEW, 2009 WL 1437801, at *3-4
(E.D. Okla. May 21, 2009) (“The language of Jordan is unequivocal and not limited in its
scope of negligence theory. The Oklahoma Supreme Court expressly stated that when an
employer admits liability for its employee, the act of admission makes any other theory
for imposition [of] liability on the employer unnecessary and superfluous.”) (citation and
internal quotation marks omitted)); Henderson v. Choctaw Cnty. City of Hugo Hosp.
Auth., No. CIV-09-125-KEW, 2010 WL 2104670, at *4 (E.D. Okla. May 25, 2010)
(accord); Aldridge v. Indian Elec. Cooperative, No. 07-CV-633-HDC-PJC, 2008 WL
1777480, at *8 (N.D. Okla. Apr. 17, 2008) (same). These cases have refused to limit
Jordan to intentional torts, and this Court concurs with this conclusion.
Plaintiffs also contend that a recent decision of the Oklahoma Supreme Court
emphasized that negligent entrustment is not dependent on the existence of the employeremployee relationship and therefore, pursuant to Sheffer v. Carolina Forge Company,
L.L.C., 306 P.2d 544 (Okla. 2013), summary judgment is not appropriate. In Sheffer,
unlike Jordan and the instant action, the employer did not stipulate that its employees
were acting within the scope of their employment at the time of an automobile accident.
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As such, the direct claim for negligent entrustment was not superfluous. If the plaintiffs
failed to prove that the employees were acting within the scope of their employment, they
could nevertheless prevail on a theory of negligent entrustment. The court’s finding that
“whether the negligent act was done during the course and scope of an employee’s
employment is not relevant to the negligent entrustment analysis,” id. at 550, was
therefore not unexpected or inconsistent with Jordan. Indeed it does not appear that the
Supreme Court of Oklahoma was concerned with the issues raised in Jordan, which was
not referenced in the opinion, likely because it did not apply in light of the dispute
regarding the scope of employment. This Court’s conclusion in this regard is consistent
with the majority of jurisdictions to have considered the issue. See Bass v. Hirschbach
Motor Lines, Inc., No. 3:14CV360TSL-JCG, 2014 WL 5107594, at *2 (S.D. Miss. Oct.
10, 2014) (“Defendant Hirschbach, after admitting vicarious liability for the accident,
previously moved the court to dismiss as redundant plaintiff’s claims against it for
negligent . . . entrustment . . . and the like. The court granted the motion.”). The Court
finds that Western is entitled to summary judgment on Plaintiffs’ claims for negligent
hiring, training, supervision and retention based on Jordan, notwithstanding the
following arguments.
Plaintiffs argue that the Court granting partial summary judgment will preclude
them from seeking a remedy for each wrong and injury in violation of the Oklahoma
Constitution, Article 2, § 6 and Article 23, § 7. Plaintiffs, however, will not be deprived
of any remedy. Western has conceded that if Schneider was negligent, liability will
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automatically attach based on its status as employer. Furthermore, the granting of the
motion does not constitute a statutory limitation on the amount of recovery so as to
violate § 7.
Plaintiffs also contend they are entitled to plead alternative causes of action, which
indeed they are, and they have done. The Court, however, is permitted to remove those
claims that are superfluous in accordance with Oklahoma law as set forth above.
The Court similarly rejects Plaintiffs’ argument that partial summary judgment is
inappropriate because they seek punitive damages.
Despite Plaintiff’s contention that Jordan did not address punitive damages,
the Jordan court expressly held that “[b]ecause vicarious liability can
include liability for punitive damages, the theory of negligent hiring and
retention imposes no further liability on employer.” 1997 OK 9, ¶ 16, 935
P.2d at 293; see also Landreville, 2009 WL 1437801 at *4.
Bryson v. Sierra Metals, Inc., No. CIV-12-839-C, 2013 WL 1397826, *2 (W.D. Okla.
Mar. 25, 2013).
Plaintiffs also contend that Western, a federal motor carrier, may not stipulate
away its liability. Western, of course, has not made any such stipulation. If Plaintiffs
prove that Schneider was negligent then Western will be liable without the need for
further proof against Western. Furthermore, although Plaintiffs assert in response to the
motion for summary judgment that certain federal safety regulations provide for
independent causes of action against Western, there is no citation in the petition to any

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regulation or federal statute so as to give notice of such a claim.2
Finally, the Court rejects Plaintiffs’ contention that the elimination of joint and
several liability impacts application of Jordan to this case. As noted by Judge Heaton in
Chamberlain v. Thomas, No. CIV-11-1430-HE, 2012 WL 4355908 (W.D. Okla. Sept. 12,
2012):
Defendant’s negligence in hiring, training or supervising its agent would
result in liability to a plaintiff only if plaintiff could establish the negligence
proximately caused his injury, which would presumably also require a
showing of negligence or other wrongful conduct by the agent.
Id. at *1 n.3. Thus, Plaintiffs’ concern that the jury could assign fault solely for
independent negligence of the employer and that elimination of that defendant from the
apportionment process could impact the verdict is without merit.
For the reasons set forth above, the motion for summary judgment filed by
Defendant Western Express, Inc., Doc. No. 38, is hereby GRANTED and judgment will
be entered in its favor with regard to Plaintiffs’ claims for negligent supervision, hiring,
training, and retention when the remaining claims are resolved.3
IT IS SO ORDERED this 15th day of July, 2015.

2

The Court is also dubious that either the Motor Car Act or Federal Motor Carrier Safety Act provides a
cause of action. See Courtney v. Ivanov, 41 F. Supp. 3d 453 (W.D. Pa. 2014) (collecting cases concluding
there is no such right); Schramm v. Foster, 341 F. Supp. 2d 536, 547 (D. Md. 2004) (same).

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To the extent Plaintiffs argue that Western has not submitted binding stipulations, the Court accepts the
representations in the motion filed by Western as binding statements regarding scope of employment from
which it will not be permitted to retreat.

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