Mafua v. McKenzie et al

Filing 30

MEMORANDUM DECISION AND ORDER granting in part and denying in part 12 Motion for Summary Judgment. See order for details. Signed by Judge Howard C. Nielson, Jr. on 10/21/2019. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

SIOLIMI MAFUA,
Plaintiff
v.

MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT
KLOEPFER, INC.’S MOTION FOR
SUMMARY JUDGMENT

KENT B. MCKENZIE; KLOEPFER, INC.;
and DOES I–X,

Case No. 1:18-cv-00064-HCN

Defendants

Howard C. Nielson, Jr.
United States District Judge

Plaintiff Siolimi Mafua was injured when a commercial truck driven by Defendant Kent
B. McKenzie collided into the rear of Plaintiff’s vehicle. McKenzie failed to notice that traffic in
front of him had slowed, and he collided with Mafua while traveling more than seventy miles per
hour. McKenzie is employed by Defendant Kloepfer, Inc.
Plaintiff alleges that Kloepfer is vicariously liable for McKenzie’s negligence under the
doctrine of respondeat superior. In addition, Plaintiff alleges that Kloepfer is liable for its own
negligence in hiring and supervising McKenzie and in entrusting him with a company truck.
Kloepfer has moved for summary judgment on each of Plaintiff’s claims. For the reasons that
follow, the court grants the motion for summary judgment as to Plaintiff’s respondeat superior
and negligent hiring claims but denies the motion as to the negligent supervision and negligent
entrustment claims.

I.
Viewed in the light most favorable to Plaintiff (the nonmoving party), see Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005), the facts are as follows.
On December 15, 2017, McKenzie was traveling southbound on I-15. Pl. Comp. at ¶¶ 8.
McKenzie was driving a Ford F-350 pickup truck owned by Kloepfer. Pl. Comp. at ¶¶ 12 and 16;
McKenzie Depo. at 68:19–69:23 (“Defendant’s Exhibit 1”). McKenzie failed to notice that
traffic had slowed because of congestion and hit Plaintiff’s vehicle from behind while traveling
more than 70 miles per hour. Pl. Comp. at ¶ 13; Pl. Opp. Mot. at ¶ 28.
At the time of the I-15 collision, McKenzie was not performing work for Kloepfer. Def.
Ex. 1 at 58–61 He was driving from Twin Falls, Idaho, to his daughter’s house in Syracuse,
Utah, to deliver personal Christmas presents. Id. at 59. McKenzie was able to use a company
vehicle for this personal errand because of “special privileges” that allowed him, as well as other
select Kloepfer employees, to drive company vehicles not only for work but also for unrestricted
personal use. Def. Ex. 1 at 21:22–25; 22:1–24; and 23:9–24:14.
Kloepfer did not suspend, terminate, or reprimand McKenzie following the collision.
Def. Ex. 1 at 28:5–25; 119:9–13; and 125:10–17; Landrum Depo. at 29:20–24 and 31:7–9
(“Defendant’s Exhibit 2”). Kloepfer did withhold a six-month, $100 safety bonus. Def. Ex. 1 at
28:5–25; Def. Ex. 2 at 29:20–24. Kloepfer repaired the F-350 (at the company’s expense) and
returned it to McKenzie, who retained his special driving privileges. Def. Ex. 1 at 28:5–25;
119:9–13; and 125:10–17. Kloepfer did not require McKenzie to be retrained or to take additional

driver safety classes. Id. at 28:5–25; 119:9–13; and 125:10–17.
Prior to the I-15 collision, Kloepfer knew that McKenzie had been involved in a series of
moving violations, including a serious at-fault collision for which he received a traffic citation.

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Def. Ex. 1 at 27:17–28:4. The at-fault collision occurred on March 25, 2016. Id. McKenzie was
driving the same company-owned F-350 truck and made an improper left turn, failing to yield
to—and colliding with—an oncoming vehicle. Id. at 24:24–25:12 and 26:13–15. McKenzie’s
supervisor arrived on scene immediately following the accident. Id. at 27:17–28:4. McKenzie
was cited by the authorities for failing to yield the right of way. Def. Ex. 1 at 25:4–14. After the
March 2016 collision, Kloepfer withdrew a six-month, $100 safety bonus but took no further
disciplinary action. Def. Ex. 1 at 28:5–25; Def. Ex. 2 at 29:20–24. Kloepfer did not require
McKenzie to be retrained or to take additional safe driving classes. Def. Ex. 1 at 28:5–25; 119:9–
13; and 125:10–17. McKenzie received back the F-350 after it had been repaired by Kloepfer at
the company’s expense and retained his special driving privileges. Def. Ex. 1. at 28:5–25; 119:9–
13; and 125:10–17. Kloepfer was also aware that McKenzie had received citations for two
additional moving violations. Oral Argument 6:06–6:48. At some point in 2016, McKenzie was
cited for failing to stop at a stop sign. Pl. Ex. D: Idaho’s Interactive Drivers License Record for
Kent McKenzie. And on November 28, 2016, McKenzie was cited for speeding. Id.
In addition to these moving violations, McKenzie had backed his company-owned F-350
truck into a light pole at a job site on May 14, 2014. Pl. Supplemental Ex. A (Dk. 27). This
incident involved only a single vehicle and did not occur on a public roadway. Id. Kloepfer was
of course aware of this incident prior to the I-15 collision as well. Id.
II.
Summary judgment is appropriate when the moving party 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). In applying this standard, the court must view the factual record and draw all

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reasonable inferences in the manner most favorable to the nonmoving party. See Adler v. WalMart Stores, 144 F.3d 664, 670 (10th Cir. 1998).
III.
The parties agree that Utah law governs this diversity action. As noted above, Kloepfer
seeks summary judgment on Plaintiff’s claims for (1) vicarious liability under the doctrine of
respondeat superior, (2) negligent hiring, (3) negligent supervision and training, and (4)
negligent entrustment. The Court addresses each claim in turn.
A.
To establish that an employer is vicariously liable for its employee’s acts under the
respondeat superior doctrine, a party must establish that the employee’s conduct was (1) “of the
general kind the employee is employed to perform” and (2) “motivated, at least in part, by the
purpose of serving the employer’s interest.” Salo v. Taylor, 417 P.3d 581, 589 (Utah 2018). 1
Here, the undisputed facts show that McKenzie was driving from Twin Falls, Idaho, to Syracuse,
Utah, to deliver Christmas presents to his daughter. Delivering personal presents is obviously not
the general kind of conduct that McKenzie is employed to perform as a project manager for
Kloepfer, an asphalt and paving company. It is also undisputed that McKenzie was not in any
part motivated by the purpose of serving Kloepfer’s interest on this trip. Plaintiff thus fails to
establish a prima facie case of respondeat superior liability.

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Relying on Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989), Kloepfer
asserts that the employee’s conduct must also occur “within the hours of the employee’s work
and spatial boundaries of employment.” Def. Mot. at 4. But in more recent decisions, the Utah
Supreme Court has repudiated this requirement “on the grounds that spatial and time boundaries
are no[t] . . . essential hallmarks of an agency relationship.” Salo, 417 P.3d at 589 n.4 (Utah
2018) (quoting M.J. v. Wisan, 371 P.3d 21, 31 (Utah 2016)).
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Rather than disputing this, Plaintiff argues that, pursuant to the law of agency, an
employer can be liable for an employee’s tortious conduct that falls outside the scope of the
employee’s actual authority if that conduct is ratified by the employer. Pt. Opp’n at 12–13.
Plaintiff argues that Kloepfer has ratified McKenzie’s tortious conduct in this case.
Dillon v. S. Mgmt. Corp. Ret. Tr., 326 P.3d 656 (Utah 2014), the case on which Plaintiff
relies, demonstrates that Plaintiff cannot prevail on a ratification theory here. In Dillon, the Utah
Supreme Court held that “an essential fact . . . implicit to a finding of ratification is the
principal’s knowledge than an individual has acted purportedly on behalf of the principal or as
the principal’s agent.” Id. at 665.
Plaintiff’s theory is that by not discipling McKenzie after the I-15 collision, Kloepfer
ratified his tortious conduct. 2 Pt. Opp’n at 15–17; see also Oral Argument 26:04–30:12. This is
wrong for three reasons. First, at the time of the collision, McKenzie was not purporting to act on
behalf of Kloepfer. To the contrary, he was delivering Christmas presents to his daughter on a
personal trip. Second, Plaintiff cites no authority holding that failure to discipline constitutes
ratification, and courts have rejected that proposition. See, e.g., McCann v. Miller, 502 Fed.
App’x 163, 169–170 (3d Cir. 2012); Capalbo v. Goldenberg, 1994 WL 373188 (Conn. Super.
Ct. July 7, 1994) (“The mere failure to discipline or demote an employee . . . is not enough to
establish a ratification claim. These acts must be done with the intent to ratify the prior action

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Plaintiff initially argued that actions taken by Kloepfer before the I-15 accident should
also be considered in determining whether Kloepfer had ratified that accident. See Oral
Argument 25:37-26:42. Plaintiff subsequently acknowledged, however, that ratification turns on
Kloepfer’s conduct after the I-15 accident. See id. 26:45-26:55. The court agrees that actions
taken by Kloepfer before this accident could not establish ratification of his involvement in that
accident given the undisputed facts here.
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taken by the agent[.]”). Finally, Kloepfer did discipline McKenzie by revoking his $100, sixmonth safety bonus. Pl. Opp’n Mot. at 10.
Plaintiff also argues that Kloepfer may be held liable for McKenzie’s negligence because
the company’s name was painted on the vehicle and because McKenzie was required to follow
company policy while driving it. Pl. Opp’n Mot. at 12–15. Plaintiff cites no authority finding a
company vicariously liable based on the fact that its name appears on a vehicle driven by an
employee for personal use and persuasive authority appears to reject vicarious liability on similar
facts. See, e.g., Sharp v. Egler, 658 F.2d 480, 486–87 (7th Cir. 1981) (concluding that a dealer
sticker on a company car did not provide enough benefit to employer to place employee driving
the car for personal use within the scope of employment at the time of accident); Nulle v.
Krewer, 872 N.E.2d 567, 571 (Ill. App. 2007); Atlanta Blue Print & Photo Reproduction Co. v.
Kemp, 204 S.E.2d 515, 516 (Ga. App. 1974). Plaintiff has likewise failed to identify any
authority holding that a company’s car policy can expand the rights of third parties such as
Plaintiff here. Cf. Lane v. Messer, 731 P.2d 488, 491 (Utah 1986) (Opinion of Howe., J.)
(rejecting this proposition).
For these reasons, the court grants Kloepfer’s motion for summary judgment on
Plaintiff’s respondeat superior claim.
B.
Even if an employer is not vicariously liable for an employee’s negligence under the
doctrine of respondeat superior, the employer may still be “directly liable for its [own] acts or
omissions in hiring or supervising its employees.” J.H. v. West Valley City, 840 P.2d 115, 124
(Utah 1992); accord Clover v. Snowbird Resort, 808 P.2d 1037, 1048 (Utah 1991). The Utah
Court of Appeals has favorably cited Black’s Law Dictionary’s definition of “negligent hiring”

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as “[a]n employer’s lack of care in selecting an employee who the employer knew or should have
known was unfit for the position, thereby creating an unreasonable risk that another person
would be harmed.” Castellanos v. Tommy John, LLC, 321 P.3d 218, 234 (Utah Ct. App. 2014)
(citing Black’s Law Dictionary 1135 (9th ed. 2009)) (modification in original).
In J.H., the plaintiff alleged that he had been sexually abused by Police Officer Jene
Lyday while participating in a youth program organized by West Valley City and supervised by
Lyday. See 840 P.2d at 117. Plaintiff alleged that the City had been negligent in hiring Lyday
and putting him in charge of this program without adequate supervision. See id. In affirming
summary judgment for the City on the plaintiff’s negligent hiring claim, the Utah Supreme Court
reasoned that the plaintiff had “produced no evidence that [the City] knew or had reason to know
that Lyday had deviant characteristics that would make him a risk as a police officer or while
working with youths.” Id. at 124.
Here as well, Plaintiff has produced no evidence that Kloepfer knew or had reason to
know of any problem with McKenzie’s driving before it hired McKenzie. See J.H., 840 P.2d at
124 (“[P]laintiff has not produced any evidence to create a factual issue as to whether Lyday’s
problem even existed prior to the time he was hired by West Valley . . . .”). The only evidence
Plaintiff offers is that Kloepfer knew that McKenzie had been convicted of felony fraud in 2008.
Pl. Opp’n at 3. As a matter of law, the court finds this insufficient to support a finding that
Kloepfer knew or should have known that McKenzie was an unfit driver at the time he was hired
and thus by hiring him created an unreasonable risk that Plaintiff (or others) might be harmed in
a vehicular collision. Cf. Oral Argument 32:00–33:45 (acknowledgement by Plaintiff’s counsel
that McKenzie’s felony fraud conviction does not “get us there” under a negligent hiring theory).

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The court accordingly grants Kloepfer’s motion for summary judgment on the Plaintiff’s
negligent hiring claim.
C.
An employer may be liable under a negligent supervision or training theory if the
“employer could reasonably be expected, consistent with the practical realities of an employeremployee relationship, to appreciate the threat to a plaintiff of its employees’ actions and to act
to minimize or protect against that threat.” Jackson v. Righter, 891 P.2d 1387, 1392 (Utah 1995).
Clover v. Snowbird Resort, 808 P.2d 1038 (Utah 1991) is instructive here. The plaintiff in
that case was injured by an off-duty Snowbird employee while skiing at Snowbird Ski Resort. Id.
at 1039 (Utah 1991). The employee, who was skiing using a free season pass provided by
Snowbird, collided with the plaintiff after taking a jump that contained a significant drop-off
rendering it impossible for skiers above the crest to see skiers below. Id. The plaintiff brought
suit against Snowbird, claiming, inter alia, that Snowbird had failed to supervise its employees
adequately. Id. In support of that contention, the plaintiff provided evidence that “Snowbird
furnished its employees with ski passes as partial compensation for employment, was aware of
the dangerous condition created by the jump, and was aware that its employees often took the
jump, but did not take any measures to alleviate the dangers.” Id. at 1048. The Utah Supreme
Court found that the plaintiff had presented sufficient evidence to proceed to trial on that claim.
See 808 P.2d at 1039, 1048; see also Moradian v. Deer Valley Resort Company, 2012 WL
3544820 at *6 (D. Utah Aug. 16, 2012) (“In Clover, there was ample evidence presented to
create a material issue of fact regarding the defendant’s failure to train and supervise its
employees.”).

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Here, the court concludes that a jury could reasonably find that McKenzie was a
frequently inattentive and potentially dangerous driver, that Kloepfer knew or should have
known of the threat posed by McKenzie’s driving, and that Kloepfer failed to supervise
McKenzie in a manner that would protect Plaintiff (and others) against this threat. It is
undisputed that during a 31 month period, McKenzie had been involved in two collisions—a
serious at-fault collision as well as a workplace driving accident—and had received traffic
citations for the at-fault collision as well as for speeding and ignoring a stop sign. 3 A reasonable
jury certainly could dismiss these incidents as nothing more than bad luck (or, perhaps more
accurately, a string of bad luck). But the court believes that a jury could also reasonably find in
them a pattern of carelessness.
A reasonable jury could also conclude that Kloepfer knew or should have known of
McKenzie’s proclivity for careless driving. As the record demonstrates and as Kloepfer’s
counsel admitted at oral argument, Kloepfer’s senior management was aware of McKenzie’s
prior citations and his supervisor was on-scene immediately after the at-fault collision. No doubt
Kloepfer was also aware that McKenzie had backed his company pickup truck into a light pole at
a worksite.
Finally, a reasonable jury could find that the steps taken by Kloepfer in response to these
incidents failed adequately to protect third parties from the risks posed by McKenzie’s driving.

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Plaintiff has submitted supplemental exhibits documenting numerous complaints lodged
with Kloepfer by members of the public against Kloepfer employees for improper cell-phone use
while driving. Given that none of the complaints appears specifically to identify McKenzie as the
offender and that Kloepfer employs more than thirty drivers, the court does not consider this
evidence for purposes of deciding the motion for summary judgment. The court does not address
whether these complaints could be admitted as relevant evidence at trial under the lenient
standard of Federal Rule of Evidence 401.
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Kloepfer issued no warnings, required no special training, and made no other response to any of
the incidents other than revoking a $100 safety response after the at-fault collision. At all times
McKenzie remained one of the select few Kloepfer employees allowed to drive company
vehicles for unrestricted personal use. And except for a brief period after the at-fault collision
while the vehicle was repaired at Kloepfer’s expense, McKenzie retained continuous access to
the company-owned F-150, a commercial vehicle weighing over 10,000 gross pounds and
therefore subject to Department of Transportation regulations.
To be sure, the court agrees with Kloepfer that the I-15 collision occurred outside the
scope of McKenzie’s employment. But the accident occurred while McKenzie was exercising
special privileges that allowed him unrestricted personal use of a company truck. A reasonable
jury could conclude that these special privileges, like the ski passes in Clover, were a benefit
provided by Kloepfer as partial compensation for McKenzie’s employment and that Kloepfer,
like the employer in Clover, was cognizant of the dangers posed to others by its employee’s
personal use of the benefit it had provided. Thus, as in Clover, this court declines to reject the
“negligent supervision claim on the ground that an employer does not have a duty to supervise an
employee whose actions are outside the scope of employment.” 808 P.2d at 1048.
The court denies the motion for summary judgment on Plaintiff’s negligence supervision
claim.
D.
Under Utah law, “an automobile may be regarded as [a dangerous instrumentality] in the
hands of an incompetent driver, and an owner thereof who knowingly entrusts its operation to
such a driver is liable, even in the absence of statute, for the proximate consequences of its
operation in such hands.” Herland v. Izatt, 345 P.3d 661, 670 (Utah 2015) (citations and internal

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quotation marks omitted); see also Model Utah Jury Instructions (2d), § 631. The Utah Supreme
Court has made clear that a claim for negligent entrustment may lie against an employer that
allows its employee to use a motor vehicle for personal reasons outside the scope of his or her
employment. See id.
As explained above, a jury could reasonably find that McKenzie was a frequently
careless and potentially dangerous driver. Although it is a close question, the court concludes
that a jury could also reasonably find, based on the same undisputed series of accidents and
traffic violations, that McKenzie was an “incompetent” driver as that term has been understood
by the Utah courts. As further explained above, a reasonable jury could find that Kloepfer knew
or should have known of the risks posed by McKenzie’s driving. Kloepfer nevertheless entrusted
him with special privileges to drive a 10,000-pound commercial truck for unrestricted personal
use. A reasonable jury could accordingly find that Kloepfer is responsible for the proximate
consequences of entrusting McKenzie with this vehicle.
Relying on out-of-State precedent, Kloepfer argues that “[o]ne prior accident, standing
alone . . . is not substantial evidence of incompetence.” Trinidad v. Moore, 2016 WL 7423398
(M.D. Ala. Dec. 22, 2016). But here, of course, McKenzie had not only been cited for one
serious at-fault collision, he had also been involved in a workplace collision and received
citations for speeding and ignoring a stop sign—all within a 31-month period.
Kloepfer also cites Alabama precedent for the proposition that for purposes of negligententrustment liability, “[n]egligence is not synonymous with incompetency. The most competent
[driver] may be negligent.” Pritchett v. ICN Medical Alliance, Inc., 938 So.2d 833, 941 (Ala.
2006). But the Utah Supreme Court’s opinion in Herland seems to indicate that the standard for
“incompetence” in this context is not as high as Kloepfer suggests. In that case, the court appears

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to equate incompetence with carelessness: “a duty raises as a matter of common law where the
owner should know about the entrustee’s incompetence: If [a parent] ha[s] reason to believe that
his son [is] a carless driver, from observation of his habits or otherwise, it would be his duty to
deny the son the use of the car.” 345 P.3d at 670 (citations and internal quotation marks omitted).
In addition, the court in Herland favorably cites the following example of negligent entrustment
from the Restatement (Second) on Torts: “A permits B, his chauffeur, who to his knowledge is in
the habit of driving at an excessive speed, to use his car to take B’s family to the seashore. While
driving the care for this purpose, B drives at an excessive rate of speed and harms C. A is subject
to liability to C.” 345 P.3d at 670 (quoting Restatement (Second) on Torts § 390). Indeed, in
summarizing the circumstances in which a motor-vehicle owner may be held liable under Utah
law for injury caused by a permissive driver, Judge Howe concluded in Lane v. Messer that the
owner will be liable if he “has negligently entrusted the vehicle to a driver that he knows or in
the exercise of reasonable care should have known to be an incompetent, careless, reckless, . . .
inexperienced” or “intoxicated.” 731 P.2d 488, 491 (Utah 1986) (opinion of Howe, J.).
For these reasons, the court denies Kloepfer’s motion for summary judgment on
Plaintiff’s negligent entrustment claim.
*

*

*

The Court GRANTS Kloepfer’s motion for summary judgment with respect to Plaintiff’s
respondeat superior and negligent hiring claims but DENIES that motion with respect to
Plaintiff’s negligent supervision and negligent entrustment claims. IT IS SO ORDERED.

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DATED this 21st Day of October, 2019.

BY THE COURT:

Howard C. Nielson, Jr.
United States District Judge

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