# Trekell v. Target Corporation

> District Court, W.D. Missouri · September 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10241668

## Case

- **Court:** District Court, W.D. Missouri
- **Decided:** September 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10241668

## How later opinions describe it (automated extraction)

- recognizing that the carrier’s placard or signage had to be attached to the truck-tractor for vicarious liability to attach to the carrier
- applying logo liability when the carrier’s logo was identified on the truck-tractor as well as the trailer

## Opinion text

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

KENNETH TREKELL )
)
Plaintiff, )
)
v. ) No.: 4:18-CV-00662-DGK
)
)
TARGET CORPORATION, )
)
Defendant. )

ORDER DENYING SUMMARY JUDGMENT

This personal injury case arises from a motorcycle accident. Plaintiff Kenneth Trekell
alleges a tractor-truck pulling a Target branded trailer caused the accident that resulted in his foot
being fractured. The tractor-truck and trailer that allegedly caused the accident drove away
without stopping, and the driver of the tractor-truck is unknown. Plaintiff argues Defendant
Target Corporation is responsible. Target denies any liability.
Now before the Court is Defendant’s Motion for Summary Judgment (Doc. 74). Finding
that Defendant has failed to create a record showing it is entitled to summary judgment as a
matter of law, the motion is DENIED.
Standard
A movant is entitled to summary judgment if it “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). Material facts are those facts “that might affect the outcome of the suit under the
governing law,” and a genuine dispute over material facts is one “such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A court makes this determination by viewing the facts in the light most favorable to
the nonmoving party and drawing all reasonable inferences in that party’s favor. Tolan v.
Cotton, 572 U.S. 650, 656 (2014); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 588–89 (1986). To survive summary judgment, the nonmoving party must “substantiate
[her] allegation with sufficient probative evidence [that] would permit a finding in [her] favor

based on more than mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d 822,
825 (8th Cir. 2007) (internal quotations and citations omitted).
Undisputed Material Facts
For purposes of resolving the pending summary judgment motion, the Court finds the
undisputed material facts to be as follows.1
Plaintiff Kenneth Trekell was injured in a vehicular accident at or near the intersection of
27th Street and Southwest Trafficway in Kansas City, Missouri, at approximately 4:12 p.m. on
February 18, 2018. Plaintiff was riding a motorcycle when a tractor-trailer turned onto
Southwest Trafficway in front of the car that was in front of Plaintiff’ motorcycle, forcing the car
to stop suddenly. This, in turn, caused Plaintiff to stop suddenly, launching him off his

motorcycle, over the car, and into the tractor-trailer’s path. The tractor-trailer then drove over
Plaintiff’s foot.
The tractor-trailer drove away from the accident without stopping, and the driver has not
been identified. No witness to the accident identified any Target logo on the truck-tractor.
Several witnesses, however, including one familiar with Target’s branding, saw a Target logo on
the side of the trailer. Target does not lease its trailers to other entities.

1 The Court has limited the facts to those that are undisputed and material to the pending summary judgment motion.
The Court has excluded legal conclusions, argument presented as fact, proposed facts that are not properly supported
by admissible evidence, and proposed facts that are properly controverted. The Court has included inferences from
undisputed material facts. See Fed. R. Civ. P. 56(c); L.R. 56.1(a).
Target did not own any truck-tractors located in, or traveling through, the Kansas City,
Missouri, metropolitan area on February 18, 2018, nor did Target employ any truck drivers that
were located in, or travelling through, the Kansas City, Missouri metropolitan area that day. The
drivers of the truck-tractors that pull Target trailers are not Target employees.
The existing record does not establish whether Target was a certified carrier2 on or before

February 18, 2018.3 The record is also silent as to whether Target placed on the trailer any signs
identifying Target as a certified carrier.4
Target had contracted with three certified carriers, Dart Transit Company, Hogan
Dedicated Services, LLC, and Ruan Transportation Corporation (collectively “the Carriers”), to
make deliveries to its stores in the Kansas City, Missouri metropolitan area in February 2018.
Each of the Carriers had contracts with Target on the day of the accident, and they have been
carriers for Target for at least eight years.
The Amended Complaint (Doc. 38), alleges that at the time of the accident, the driver of
the truck-tractor was driving in the course and scope of his employment with Target or at

Target’s direction and control. ¶ 9. It contends that under Missouri Law, Target is vicariously
liable for the driver’s actions. Id. at ¶ 12. It alleges Target is responsible for the driver’s
negligence based on either a master/servant relationship, the doctrine of respondeat superior, or
as a joint-venturer. Id. ¶ 10.

2 The parties’ briefing does not explain what they mean by “certified carrier.”

3 The portion of the record cited by Target does not support its proposed fact: “Target was not a certified carrier on
or before February 18, 2018.” Nor can the Court cannot find anything else in the record supporting this proposed
fact.

4 The portion of the record cited by Target does not support its proposed fact: “Target did not place signs of any
kind on any trailer stating that Target was a certified carrier or identifying Target as a certified carrier.” Nor can the
Court cannot find anything else in the record supporting the proposed fact.
Facts relevant to determining Target’s right to control the Carriers.
Included in Plaintiff’s proposed additional uncontroverted facts are numerous proposed
facts concerning the degree to which Target had a right to control the Carrier’s actions on the day
of the accident. Target objects to these proposed facts on the grounds that they are “irrelevant

and not material to the legal basis on which Target seeks summary judgment in that it is wholly
immaterial to the identity of the carrier associated with the alleged tractor.” Reply at 9-15 (Doc.
77). The Court holds that insofar as these facts inform the degree to which Target had a right to
control the Carrier’s actions, they are relevant to determining whether Target could have
respondeat superior liability under Missouri law. Thus, Target’s objections are denied, and the
following facts are undisputed for purposes of summary judgment.
Target gives the Carriers a weekly schedule of routes. Target prepares and sets the time
and locations for these routes. Target expects the Carriers to be on time 99 percent of the time.
It monitors their performance, and when they are late, the Carriers are “dinged” for
performance.

Target’s trailers are required to comply with regulations of the United States Department
of Transportation Federal Motor Carrier Safety Administration. Target tractor-trailers have
Target license plates on them. Target is not aware of any other businesses, companies, or
organizations that use trailers with the Target logo on them. Target trailers carry only regulated
freight.
Target’s operating procedures are given to the Carriers. Target and the Carriers are
“transportation partners.” If a carrier is in an accident, major or minor, it is required to be
reported to Target.
Target trains the Carriers in the use of Target’s portal for information and tools on how to
ship goods for Target. Target provides delivery procedures and responsibilities for the carriers.
The Carriers’ employees sit in the Target Distribution Center and the carriers have an on-site
manager at the Target Distribution Center. Target holds bi-weekly meetings with Target market
leaders5 and the Carriers’ management.

Target’s agreements with the Carriers provide that it can take corrective action against a
Carrier if it is not meeting expectations. Target allows the Carriers to subcontract out but can
prohibit or limit a carrier’s ability to perform services through a substitute or a subcontractor.
Target requires the Carriers to enroll as a transportation provider on the website “Target’s
Partners Online,” and Target trains the Carriers on the website’s use. Target can audit, review
and copy the Carriers’ records at all reasonable times. Target also pays for the tolls incurred by
the Carriers during transportation.
Target has some dedicated carriers that are specific to Target deliveries and loads. There
are also times when Target trailers are stored at the Carriers’ locations.

Target has shipping visibility requirements and an electronic data interchange with data
that is required of the Carriers and business rules providing notification to Target that the
Carriers’ drivers have reached the pickup locations.
Target’s contracts with the Carriers require them to: perform repairs on Target trailers
upon request, comply with Target’s requests to reconsign or divert shipments enroute,
appropriately secure goods in transit, and not leave trailers unattended. They dictate submission
of invoices and times, and provide that Target and the Carriers will share in losses.
Target provides a claims process for loss or damage as set forth in the contracts, which
dictate that the Carriers investigate claims. At Target’s request, the Carriers participate in

5 The briefing does not explain what “Target market leaders” are.
periodic business reviews scheduled by Target and, at Target’s direction, to be held at a Target
location.
Discussion
Target moves for summary judgment on all three of Plaintiff’s theories.

I. The existing record does not establish whether Target was a certified carrier, and
thus the Court cannot grant summary judgment to Defendant on “logo liability.”

“‘Logo liability’ is a species of vicarious liability by which a carrier is liable as a matter
of law for injuries caused by a leased truck’s negligence, where that truck bears the carrier’s ICC
logo.” Reliance Nat. Ins. Co. v Royal Indem. Co., No. 99 Civ. 1092 NRB, 2001 WL 984737, at
*7 (S.D.N.Y. Aug. 24, 2001). Logo liability applies only against a certified carrier, and only
where the certified carrier’s logo or placard is identified on the truck-tractor. See id.; Hearn v.
ABF Freight Sys., --- S.W.3d ---, 2020 WL 4590171, at *1 (Mo. Ct. App. Aug. 11, 2020) (the
“doctrine only applies to carrier-lessees”); Robertson v. Cameron Mut. Ins. Co., 855 S.W.2d 442,
449-50 (Mo. Ct. App. 1993) (recognizing that the carrier’s placard or signage had to be attached
to the truck-tractor for vicarious liability to attach to the carrier); Parker v. Midwestern
Distribution, Inc., 797 S.W.2d 721, 722 (Mo. Ct. App. 1990) (applying logo liability when the
carrier’s logo was identified on the truck-tractor as well as the trailer). A company’s logo found
solely on a trailer is not enough to base logo liability against that company. Cf. Robertson, 855
S.W.2d at 449-50.
Target argues it cannot be liable under a “logo liability” theory for two reasons: (1) it has
never been a certified carrier, and (2) it has never possessed any signs or placards identifying it
as a certified carrier, nor has it ever placed signs of any kind on any truck or trailer identifying it
as a certified carrier. The existing record, however, does not establish that Target has never been
a certified carrier, nor does it establish that it never placed any signs on a truck-tractor
identifying it as a certified carrier. For summary judgment purposes, the record is silent on these
facts. Thus, the Court cannot grant Target summary judgment on this claim.
This ruling, however, that does not mean Plaintiff’s logo liability claim will ultimately be
submitted to a jury. The Court will not submit the issue at trial unless there is evidence

presented during trial that Target was a certified carrier on the day of the accident and there was
a Target sign on the truck-tractor involved in the accident.
II. Target has not established it is entitled to summary judgment on Plaintiff’s claim of
respondeat superior.

Next, Target argues it is entitled to summary judgment on Plaintiff’s claim of respondeat
superior liability because it “is not a carrier nor does it employ any truck drivers and as such, a
claim of respondeat superior cannot be supported.” Suggestions in Supp. (Doc. 75) at 10.
Plaintiff responds that whether Missouri law treats the driver of the truck as a Target employee
under the doctrine of respondeat superior is a question for the jury.
The doctrine of respondeat superior holds an employer liable for the torts committed by
its employees while they are acting within the scope of employment. Noah v. Ziehl, 759 S.W.2d
905 (Mo. App. E.D. 1988). An employer generally is not held vicariously liable, however, for
the acts of independent contractors, who are not considered employees for purposes of
respondeat superior. Kaplan v. U.S. Bank, N.A., 166 S.W.3d 60, 66 (Mo. App. 2003).
Under Missouri law, whether an individual is an employee or an independent contractor
is generally a question of fact. Huggins v. FedEx Ground Package System, Inc., 592 F.3d 853,
857 (8th Cir. 2010). But when the facts are undisputed and “only one reasonable conclusion can
be drawn” from those facts, the issue may be decided as a matter of law. Id. (reversing district
court’s determination that under Missouri law defendant FedEx could not be liable under
respondeat superior for the actions of a third-party driver it characterized as an independent
contractor, holding enough facts suggesting defendant had a right to control the driver so that the
jury could find he was an employee for respondeat superior purposes.) The right to control “is
the pivotal factor in distinguishing between employees and other types of workers. If the
employer has a right to control the means and manner of a person’s service—as opposed to

controlling only the results of that service—the person is an employee rather than an independent
contractor.” Leach v. Board of Police Com'rs of Kansas City, 118 S.W.3d 646, 649 (Mo. Ct.
App. 2003).
“The concept of the ‘right to control’ is more intricate in Missouri than most other
states.” In re FedEx, 273 F.R.D. 424, 474 (N.D. Ind. 2008) (applying Missouri law). Courts
applying Missouri law consider eight factors: “(1) the extent of control, (2) the actual exercise of
control, (3) the duration of the employment, (4) the right to discharge, (5) the method of
payment, (6) the degree to which the alleged employer furnished equipment, (7) the extent to
which the work is the regular business of the employer, and (8) the employment contract.” Wells
v. Fedex Ground Package System, Inc., 979 F. Supp. 2d 1006, 1014 (E.D. Mo. 2013) (citing In

re FedEx, 273 F.R.D. at 474; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726, 729–30
(1937); Trinity Lutheran Church v. Lipps, 68 S.W.3d 552, 559 (Mo. Ct. App. 2001)). No one
factor is dispositive; a court considers the facts as a whole. Id. (citing Hamilton v. Palm, 621
F.3d 816, 818–19 (8th Cir. 2010) (“Under Missouri law, the critical right-to-control issue is
affected by many factors “none of which is in itself controlling.”))
Unfortunately, the Court cannot apply this test on the existing record. While Plaintiff
arguably alludes to the eight-factor test (by citing long passages from Huggins which mentions
that Missouri courts consider the factors set forth in the Restatement (Second) of Agency, which
are similar to those in the eight-factor test), and has placed some facts relevant to the issue on the
record, Plaintiff has not applied these facts to the law. For example, Plaintiff observes Huggins
discussed factors for the jury to consider “including safety and quality procedures, daily
documentation, place of work, itineraries, what terminals were used for departure and return,
[and] length of time of employment,” but Plaintiff does not explain how these factors apply in to

this case. Resp. at 16 (Doc. 76). Instead, Plaintiff summarily concludes, “there is an abundance
of evidence that would support Plaintiff’s claim of respondeat superior as set forth in Plaintiff’s
additional facts and the language of the contracts themselves.” Resp. at 16.
Similarly, Target’s brief, instead of identifying the relevant test and applying it to the
facts, restates its prior argument that it cannot be liable because (1) it is not a carrier, (2) Plaintiff
has not identified a carrier logo on the tractor, and (3) “the identification of the carrier by its logo
on the tractor is required to establish vicarious liability for the negligence of the driver.” This
argument is unavailing because Missouri law concerning respondeat superior does not have
special rules that apply in the context of tractor-truck drivers. While Missouri law on logo
liability conditions a defendant’s liability on the defendant being a carrier and the tractor bearing

the carrier’s logo, it does not condition a defendant’s responsibility under a theory of respondeat
superior on it being a carrier and the tractor bearing its logo. Whether a defendant can be liable
under a respondeat superior theory turns on the eight-factor test outlined above.
While both parties’ briefs are somewhat lacking on this issue, Defendant has the burden
of showing that it is entitled to judgment as a matter of law. It has failed to demonstrate that the
truck driver could not as a matter of law be its employee for respondeat superior purposes, so its
motion is denied with respect to this claim.
III. Target has not established it is entitled to summary judgment on Plaintiff’s joint
venture claim.

Finally, Target argues it is entitled to summary judgment on Plaintiff’s joint venture
claim. Generally speaking, “[a] joint venture is an association of two or more persons to carry
out a single business enterprise for profit, for which purpose they combine their property, money,
effects, skill, and knowledge.” Barfield v. Sho-Me Power Elec. Coop., No. 11-CV-04321-NKL,
2013 WL 12145822, at *2 (W.D. Mo. Apr. 15, 2013) (internal quotation omitted). The elements
of a joint venture are: “(1) an express or implied agreement among members of the association;
(2) a common purpose to be carried out by the members; (3) a community of pecuniary interest
in that purpose; and, (4) each member has an equal voice or an equal right in determining the
direction of the enterprise.” Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377,
387 (Mo. Ct. App. 1999). While the existence of a joint venture may be implied or inferred from
the acts and conduct of the parties showing that they entered into one, the parties must intend to
create a joint venture. Barfield, 2013 WL 12145822, at *2.
Particularly relevant to whether Target could be liable in this case under a joint venture
claim are the following: “[C]ourts applying Missouri law have been especially hesitant to imply
the existence of a joint venture where the parties are corporations.” Id. at 3 (collecting cases).
Further, the “community of pecuniary interest” element “requires that the parties have a right to

share in the profits and a duty to share in the losses.” Id. at 4. Sharing an economic interest is
not enough. Id. Finally, the requirement that each member has an equal voice or equal right in
determining the direction of the enterprise means each member in the joint venture must share
equal control over the enterprise. Id. at 5.
The existing factual record is too undeveloped for the Court to grant Defendant summary
judgment on this claim. There are simply insufficient facts here. Thus, this claim survives
summary judgment. That said, at trial the Court will not submit the question of joint venture
liability to the jury unless sufficient evidence is presented on each element.
Conclusion
Defendant Target’s Motion for Summary Judgment (Doc. 74) is DENIED.

IT IS SO ORDERED.
Date: September 16, 2020 /s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10241668. Public record. Not legal advice.