“In that punitive damages are only allowable under § 9.1 when, at a minimum, there is competent evidence of a reckless disregard by the defendant of the plaintiff's rights from which malice and evil intent may be inferred.”
How later courts described this case
- “In that punitive damages are only allowable under § 9.1 when, at a minimum, there is competent evidence of a reckless disregard by the defendant of the plaintiff's rights from which malice and evil intent may be inferred.”
- dismissing negligence per se claim against employer
Written by the judges who cited it.
The opinion
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SCOTT THURMOND and )
JOCELYN SHEALY MCGEE, )
)
Plaintiffs, )
)
v. ) CIV-18-1142-R
)
CRST EXPEDITED, INC. and )
DEONTAY EILAND, )
)
Defendants. )
ORDER
Before the Court is Defendants’ Motion for Partial Summary Judgment (Doc. No.
44) to which Plaintiffs responded (Doc. No. 49) and Defendants filed a reply. (Doc. No.
52). Upon consideration of the parties’ submissions, the Court finds as follows.
Plaintiffs filed this case following a January 6, 2017 accident on I-35 near
Wynnewood, Oklahoma. Plaintiffs were stopped in traffic southbound for icy and snowy
conditions. Defendant Eiland, driving a truck for his employer CRST, Expedited, Inc.
(“CRST”), was unable to stop and hit Plaintiffs from behind. Plaintiffs allege Defendant
Eiland was negligent and that CRST is liable for his negligence under a theory of
respondeat superior. Plaintiffs also seek relief from CRST directly, asserting negligent
hiring, training, screening, supervision and entrustment. Both Defendants seek summary
judgment on Plaintiffs’ request for punitive damages; Defendant CRST seeks summary
judgment on Plaintiffs’ direct negligence claims.
Summary judgment is proper where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if any, show there is no
genuine issue as to any material fact, and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c). The presence of a genuine issue of material fact defeats
the motion. An issue is “genuine” if the evidence is significantly probative or more than
merely colorable such that a jury could reasonably return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if proof
thereof might affect the outcome of the lawsuit as assessed from the controlling substantive
law. Id. at 249.
Citing Jordan v. Cates, 935 P.2d 289 (Okla. 1997), Defendant CRST seeks summary
judgment on Plaintiffs’ claims that it was negligent with regard to the hiring, training,
screening, and supervision of Mr. Eiland, arguing that because it has conceded that Mr.
Eiland was acting within the scope of his employment with CRST at the time of the
accident, these direct liability claims are superfluous. Plaintiff cites Fox v. Mize, 428 P.3d
314 (2018), wherein the Oklahoma Supreme Court concluded that negligent entrustment
cases are separate and distinct from respondeat superior negligence liability. Quoting the
Honorable Joe Heaton, the court noted the tension between not permitting negligent hiring
claims, as set forth in Jordan v. Cates, 935 P.2d 289 (Okla. 1997), and permitting negligent
entrustment claims to proceed, ‘“It is difficult to discern a persuasive basis for treating a
claim for negligent entrustment differently from a claim for negligent hiring’ because both
‘presumably rely on the employer's own acts or negligence.’” Id. at p. 322, n.12 (quoting
Warner v. Miller, 5:16-cv-00305-HE (W.D. Okla. Feb. 10, 2017). The court did not
overrule Jordan, specifically noting the issue was not before the Court. Id.
This Court, accordingly, maintains the prior status of the law that claims for
negligent hiring, training, and supervision are superfluous, where, as here, the employer
has stipulated that its employee was acting within the scope of employment at the time of
the accident. See Soto v. DCP Inc., No. CIV-16-1410-M, 2018 WL 3016922 (W.D. Okla.
June 15, 2018); Smith v. Brown, 17-cv-631-R, 2017 WL 4248852, *1 (W.D. Okla. Sept.
25, 2017).
In response to the instant motion Plaintiffs assert, in part, that the Federal Motor
Carrier Safety Regulations ("FMCSR"), preempt application of Jordan v. Cates,
acknowledging the Court’s prior determination that there is no preemption because the
regulations do not provide a private cause of action. Plaintiffs contend, however, that both
Defendants can be held directly liable under a theory of negligence per se for violation of
the FMCSR. In Jordan, the Oklahoma Supreme Court broadly stated that when an
employer admits liability for the acts of its employee “any other theory for imposition of
liability on the employer [is] unnecessary and superfluous.” Landreville v. Joe Brown Co.,
Inc., No. CIV-08-171-KEW, 2009 WL 1437801, *3 (E.D. Okla. May 21, 2009)(quoting
Jordan, 935 P.2d at 293 (dismissing negligence per se claim against employer); see also
Bales v. Green, No. 16-cv-106-GFK-JFJ, 2018 WL 1144980, *3 (N.D. Okla. Mar 2,
2018)(Employer’s admission of respondeat superior liability foreclosed direct liability
claims including negligent hiring, retention, training and negligence per se. Accordingly,
Defendants CRST’s motion for summary judgment is granted as to Plaintiff’s direct claims
of negligence, including negligence per se, with the exception of negligent entrustment in
light of CRST’s concession that Mr. Eiland was acting within the scope of his employment.
CRST contends that summary judgment is appropriate on Plaintiffs’ negligent
entrustment claims because Plaintiffs lack evidence to support such a claim.1 Included in
Plaintiff’s response is a Rule 56(d) affidavit, wherein Christopher Brinkley, counsel for
Plaintiff, indicates that evidence was not available to Plaintiffs at the time their response to
the motion for summary judgment was due because Plaintiffs had yet to depose Defendant
Eiland or the corporate representative of Defendant CRST. In its Reply, Defendant did not
address Plaintiffs’ Rule 56(d) affidavit.
Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition [to a motion
for summary judgment], the court may: (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other
appropriate order.” Fed. R. Civ. P. 56(d). The Court hereby holds Defendants’ Motion for
Partial Summary Judgment in abeyance with regard to Plaintiffs’ claims for negligent
entrustment pending the filing of a supplemental response by Plaintiffs. Plaintiffs’
supplement shall be filed not later than December 5, 2019. Defendant CRST may file a
supplemental reply not later than December 11, 2019.
1 Defendant CRST concedes that a negligent entrustment claim is not automatically precluded by an employer’s
admission that an employee was acting within the scope of his employment. See Fox v. Mize, 428 P.3d 314, 321-22
(Okla. 2018).
Finally, Defendants seek summary judgment on Plaintiffs’ request for punitive
damages.2 This case is before the Court pursuant to the Court's diversity jurisdiction and
Plaintiffs’ claims are governed by Oklahoma law. See Martinez v. Angel Expl., LLC, 798
F.3d 968, 973) (10th Cir. 2015) (internal citations omitted). Oklahoma's punitive damages
statute, 23 O.S. § 9.1, provides for the recovery of punitive damages only where there is
clear and convincing evidence that the defendant acted, at a minimum, with reckless
disregard for the rights of others. See Badillo v. Mid Century Ins. Co., 121 P.3d 1080, 1106
(Okla. 2005) (“In that punitive damages are only allowable under § 9.1 when, at a
minimum, there is competent evidence of a reckless disregard by the defendant of the
plaintiff's rights from which malice and evil intent may be inferred.”) (emphasis in
original). “Whether that showing has been made remains an issue of law for the trial court
in its role as gatekeeper to determine, upon a defendant's challenge ... whether there is
competent evidence upon which a reasonable jury could find reckless disregard, from
which malice and evil intent may be inferred.” Robinson v. Sunshine Homes, Inc., 291 P.3d
628, 638 (Okla. Civ. App. 2010) (internal footnote omitted).
As with Plaintiffs’ negligent entrustment claim, the Court cannot fully assess
whether punitive damages are available in light of the Rule 56(d) affidavit. The Court
accordingly holds this portion of the motion in abeyance pending the filing of the
supplemental briefs as set forth above.
2 The Court notes that “[p]unitive damages, like compensatory damages, do not stand alone as a separate cause of
action; they constitute an element of damage subject to proof in connection with” Plaintiffs’ negligence claims. Nelson
v. Am. Hometown Publ'g, Inc., 333 P.3d 962, 974 (Okla. Civ. App. 2014).
For the reasons set forth herein, Defendants’ Motion for Partial Summary Judgment
is GRANTED as to Plaintiffs’ direct negligence claims against Defendant CRST, except
the claim for negligent entrustment. In all other regards, the motion is held in abeyance
pending the supplements ordered herein.
IT IS SO ORDERED this 25" day of November 2019.
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE