Cardenas v. Ori et al
Filing
134
ORDER granting 96 Motion for Summary Judgment; granting 97 Motion for Partial Summary Judgment; granting 123 Motion for Partial Summary Judgment, as more fully set out. Signed by Honorable David L. Russell on 5/11/15. (jw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
VICTORIA CARDENAS,
DENNIS BUTLER, as Special
Administrator of the Estate of
Carlos DeSantiago, deceased,
Plaintiffs,
v.
GORGIS H. ORI, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
CIV-14-386-R
ORDER
This matter comes before the Court on the Motion for Summary Judgment filed by
Defendant Western Express, Inc. [Doc. No. 96], the Motion for Partial Summary Judgment
filed by Defendant YRC, Inc. [Doc. No. 97], and the Motion for Partial Summary Judgment
filed by Defendant Western Freight Carrier, Inc [Doc. No. 123]. Plaintiffs responded in
opposition to each of the motions. Because the three movants raise the same issue, whether
an employer can be held liable for negligent hiring, training, supervision, retention or
entrustment in light of stipulating that the individual employee was acting within the scope
of employment, the Court addresses all three of the motions in a single order. 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. Among the Defendants named in this suit, which is one of many actions
arising from this accident, are Western Express, Inc. and its employee, Thomas Schneider,
TRC, Inc., and its employee James Crittenden, and Western Express Freight Carrier, Inc and
its employee Augustin Vargas a/k/a Augustin Sahagun. Plaintiffs have alleged that
Defendants and their respective employees were negligent in causing the accident, the
carriers in part because they each negligently and recklessly hired, trained, supervised and
retained their respective drivers. Western Express, YRC, Inc. And Western Freight Carrier,
Inc., have admitted that at the time of the accident their respective drivers were acting within
the scope of employment, and therefore each contend 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 its driver 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 is 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
2
their responses to the motions. Although not presented first, the Court will address the
primary issue underlying Defendants' motions, 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
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 harmdealing 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, 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,
1
Plaintiffs did not specifically plead a claim for negligent entrustment. Throughout their brief
Plaintiffs include negligent entrustment in the litany of grounds for holding the company Defendants 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 Defendants summary judgment
on the issue.
3
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 Fed.Appx. 826,
834 (10th Cir. 2012); Fisher v. National Progressive, Inc., 2014 WL 7399185; *2
(W.D.Okla. 2014); Bryson v. Sierra Metals, Inc., No. CIV–12–839–C, 2013 WL 1397826,
*1
(W.D.Okla.
Mar.
25,
2013)
(describing
the
distinction
as
“artificial”);
Dowuona-Hammond v. Integris Health, 2011 WL 134923 at *3 (W.D. Okla. 2011)
(“[b]ecause there is vicarious liability there can be no negligent hiring, retention, or
supervision claim”); Landreville v. Joe Brown Co., Inc., 2009 WL 1437801 at *3-4 (E.D.
Okla. 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.”)(citations and quotations
omitted); Henderson v. Choctaw County City of Hugo Hosp. Authority, 2010 WL 2104670
at *4 (E.D. Okla. 2010) (accord); Aldridge v. Indian Elec. Cooperative, 2008 WL 1777480
4
at *8 (N.D. Okla. 2008) (same). These cases have refused to limit Jordan to intentional torts,
and this Court concurs with such 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 with in
the scope of their employment at the time of an automobile accident. 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 Oklahoma Supreme Court 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., 2014 WL 5107594 ("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 the movants are entitled to summary
5
judgment on Plaintiffs' claims for negligent hiring, training, supervision and retention based
on Jordan, and notwithstanding the following arguments.
Plaintiffs argue that if the Court's grants partial summary judgment, it 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. The movants each have conceded that if their respective employee was negligent,,
liability will automatically attach based on its status as employer. Furthermore, the granting
of the motions 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., 2013 WL 1397826, *2 (W.D.Okla. March 25, 2013).
Plaintiffs also that Defendants, federal motor carriers, may not stipulate away their
liability. Defendants, of course, have not made any such stipulation. If Plaintiffs prove that
any of the individual drivers were negligent then the respective employer will be liable
6
without the need for further proof against the employer. Furthermore, although Plaintiffs
assert in response to the motion for summary judgment that certain federal safety regulations
provide for independent causes of action against the employers, there is no citation in the
petition to any regulation or federal statute so as to give notice of such a claim.2
Finally, the Court rejects Plaintiff's 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, 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 motions for summary judgment filed by Defendant
Western Express, Inc. [Doc. No. 96], Defendant YRC [Doc. No. 97] and Defendant Western
Freight Carrier, Inc., [Doc. No. 123] are hereby GRANTED and judgment will be entered
in their favor with regard to Plaintiff's claims for negligent supervision, hiring, training, and
retention when the remaining claims are resolved.3
2
The Court is also dubious that either the Motor Car Act or Federal Motor Carrier Safety Act
provides a cause of action. See Schramm v. Foster, 341 F.Supp.2d 536, 547 (D.Md. 2004)(collecting cases
concluding there is no such right); Courtney v. Ivanov, 41 F.Supp.3d 453 (W.D.Pa. 2014)(same).
3
To the extent Plaintiffs argue that Defendants have not submitted binding stipulations, the Court
(continued...)
7
IT IS SO ORDERED this 11th day of May, 2015.
3
(...continued)
accepts the representations in the motions filed by Defendants as binding statements regarding scope of
employment from which they will not be permitted to retreat.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?