# McGinley v. American Dump Trucks Inc

> District Court, W.D. Oklahoma · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10389172

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

EMILY MCGINLEY, individually )
and as mother and next friend of )
M.O.M., a minor, )
)
Plaintiffs, )
)
v. ) Case No. CIV-20-408-G
)
AMERICAN DUMP TRUCKS, INC. )
et al., )
)
Defendants. )

OPINION AND ORDER

Before the Court are the Motions for Partial Summary Judgment filed by Defendant
Bruno Diaz (Doc. No. 44) and Defendant ADT Trailers, Inc. d/b/a Safe Connection
Interstate (“ADT Trailers”) (Doc. No. 45). Plaintiff has submitted responses in opposition
to the Motions (Doc. Nos. 55, 68) and Defendants ADT Trailers and Bruno Diaz have
replied (Doc. Nos. 60, 69).
Plaintiff seeks damages in relation to a motor vehicle accident that occurred on
February 17, 2020. See Pet. (Doc. No. 1-2) at 2-3. Plaintiff claims that Defendant Diaz
negligently operated a semitractor-trailer and wrongfully fled the scene, that Diaz’s
conduct warrants both compensatory and punitive damages, and that Defendants ADT
Trailers and American Dump Trucks, Inc. are liable for Diaz’s conduct under the theory of
respondeat superior. See id. at 3, 5-7. Plaintiff also brings claims of negligent entrustment
against ADT Trailers and American Dump Trucks, Inc. and a claim of negligent selection
of a motor carrier against American Dump Trucks, Inc.1 See id. at 7-8.
I. SUMMARY JUDGMENT STANDARD
Summary judgment is a means of testing in advance of trial whether the available

evidence would permit a reasonable jury to find in favor of the party asserting a claim. The
Court must grant summary judgment when “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).
A party that moves for summary judgment has the burden of showing that the
undisputed material facts require judgment as a matter of law in its favor. Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). To defeat summary judgment, the nonmovant need
not convince the Court that it will prevail at trial, but it must cite sufficient evidence
admissible at trial to allow a reasonable jury to find in the nonmovant’s favor—i.e., to show
that there is a question of material fact that must be resolved by the jury. See Garrison v.
Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005). The Court must then determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Parties may establish the existence or nonexistence of a material disputed fact by:
• citing to “depositions, documents, electronically stored information, affidavits

1 In her pleading, Plaintiff additionally raised a claim of negligent maintenance against all
three defendants. See id. at 8-9. Defendants Diaz and ADT Trailers each sought summary
judgment on the claim. Plaintiff, in her Responses, advised that she is “no long[er]
pursuing” this claim. Pl.’s Resp. to Diaz (Doc. No. 55) at 9; Pl.’s Resp. to ADT (Doc. No.
68) at 14. In view of Plaintiff’s representations and failure to respond to Defendants’
arguments, the Court grants summary judgment on the negligent maintenance claim in
favor of Defendants Diaz and ADT Trailers. See Hinsdale v. City of Liberal, Kan., 19 F.
or declarations, stipulations . . . admissions, interrogatory answers, or other
materials” in the record; or

• demonstrating “that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence and the inferences
drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola
Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he
mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be
insufficient; there must be evidence on which the jury could reasonably find for the
[nonmovant].” Liberty Lobby, 477 U.S. at 252.
II. DEFENDANT BRUNO DIAZ’S MOTION
Plaintiff brings claims of negligence and negligence per se against Diaz in relation
to his operation of the semitractor-trailer, as well as a claim for treble damages under title
47, section 10-103 of the Oklahoma Statutes in relation to his alleged failure to stop at the
scene.
A. Undisputed Facts
On February 17, 2020, Plaintiff and her two children were in a vehicle traveling
south in the right lane of a service road. Defendant Diaz, operating a semitractor-trailer,
merged into the right lane from the left, causing contact with Plaintiff’s vehicle. Diaz
proceeded, turning right onto an interstate highway. Kyle Pound, a witness to the collision,
followed Diaz until he stopped at a tollbooth to pay his toll, at which point Pound blocked

Diaz’s exit and informed Diaz that he had been in an accident. Diaz denied knowledge of
the collision.
B. Negligence
Plaintiff claims that Diaz was negligent in his operation of the semitractor-trailer.
See Pet. at 5 (alleging that Diaz failed to operate the vehicle in a careful manner, failed to

devote his full attention to driving, and failed to determine if he could safely change lanes).
To succeed on her claim of negligence, Plaintiff must establish that Diaz failed to exercise
ordinary care when he changed lanes and collided with Plaintiff’s vehicle. See Fargo v.
Hays-Kuehn, 352 P.3d 1223, 1227 & n.11 (Okla. 2015).
The record before the Court includes Diaz’s deposition testimony that he never saw

Plaintiff’s vehicle and that the mirrors on his semitractor-trailer are “properly located” such
that he “can see the entire side of [the] trailer.” Diaz Dep. (Doc. No. 44-1) 83:3-18. A
reasonable jury could determine from this evidence that Diaz failed to properly look in his
mirrors prior to changing lanes. Plaintiff has also submitted evidence suggesting that the
collision was so severe in nature that Diaz should have been aware of it at the time. See

McGinley Dep. (Doc. No. 55-2) 19:8-11 (“I lay on my horn, slam on my brakes, brace for
impact, . . . and I just feel my car shake and then the entire side of the vehicle is hit from
back to front.”); Pound Dep. (Doc. No. 55-3) 38:3-5, 125:17-126:5, 129:4-25 (Pound
testifying that McGinley’s vehicle “traveled the whole distance from the front all the way
to the rear” of the semitractor-trailer, that there was “pressure pushing [McGinley’s

vehicle] down, like it should have popped the tire,” and that he “couldn’t imagine” that
Diaz was unaware he had hit something). A jury could reasonably find from this evidence
that Diaz was aware of the collision as it happened but failed to immediately correct his
position upon impact in the manner expected of a reasonably careful driver.
For these reasons, the Court determines that genuine factual disputes exist that
preclude summary judgment on the negligence claim against Diaz.
C. Negligence per se

To establish negligence per se under Oklahoma law, a plaintiff must prove the
following elements: “(1) the violation of a statute must have caused the injury, (2) the harm
sustained must be of the type intended to be prevented by the statute[,] and (3) the injured
party must be one of the class intended to be protected by the statute.” Nye v. BNSF Ry.
Co., 428 P.3d 863, 873 (Okla. 2018) (internal quotation marks omitted). In her pleading,

Plaintiff based her negligence per se claim on the following statutes: title 47, section 11-
601 of the Oklahoma Statutes, which addresses turns at an intersection; and title 47,
sections 11-604(A) and 11-604(B) of the Oklahoma Statutes, which address turning
movements and required signals. See Pet. at 5-6.
Diaz argues that these statutes are not implicated by the facts or evidence in the case.

In her Response, Plaintiff agrees with Defendant that sections 11-601 and 11-604 are
inapplicable but argues that negligence per se instead can be established under a separate
statute, title 47, section 11-309 of the Oklahoma Statutes. See Pl.’s Resp. (Doc. No. 55) at
10. Section 11-309(2) provides that “[w]henever any roadway has been divided into two
or more clearly marked lanes for traffic, . . . [a] vehicle shall not be moved from the lane

until the driver has first ascertained that the movement can be made with safety and then
given a signal, not less than the last one hundred (100) feet traveled by the vehicle, of his
intention to change lanes.” Okla. Stat. tit. 47, § 11-309(2). Diaz objects that Plaintiff’s
reliance on a statute not addressed in her pleading is improper. See Diaz’s Reply (Doc.
No. 60) at 7.
“Issues raised for the first time in a plaintiff’s response to a motion for summary

judgment may be considered a request to amend the complaint, pursuant to Fed. R. Civ. P.
15.” Viernow v. Euripides Dev. Corp, 157 F.3d 785, 790 n.9 (10th Cir. 1998).
As a general rule, a plaintiff should not be prevented from pursuing a claim
merely because the claim did not appear in the initial complaint. However,
a court properly denies leave where a late shift in the thrust of the case will
prejudice the other party in maintaining his defense upon the merits. The
liberalized pleading rules do not allow plaintiffs to wait until the last minute
to ascertain and refine the theories on which they intend to build their case.
In addition, untimeliness alone is a sufficient reason to deny leave to amend.
. . when the party filing the motion has no adequate explanation for the delay.

Pater v. City of Casper, 646 F.3d 1290, 1299 (10th Cir. 2011) (alteration, citations, and
internal quotation marks omitted).
Neither Plaintiff nor Diaz addressed these considerations in their summary
judgment briefing. While a negligence per se claim based on section 11-309(2) would not
appear to “raise[] substantially different factual issues after the close of discovery,”
Plaintiff has not “give[n] a reason for [her] delay” in raising the alternate theory. Id.
Accordingly, insofar as Plaintiff’s reference to section 11-309(2) in her Response may be
construed as a motion to amend her pleading, the Court denies the request without prejudice
based on its unexplained untimeliness.
Because Plaintiff expressly conceded Diaz’s argument that summary judgment is
appropriate as to sections 11-601 and 11-604, the Court grants summary judgment on the
negligence per se claim. In doing so, the Court makes no finding as to the applicability of
these provisions to the facts or the validity of the claim under these provisions.
D. Treble Damages under Okla. Stat. tit. 47, § 10-103
Title 47, section 10-103 of the Oklahoma Statutes requires the driver of a vehicle
“involved in an accident resulting only in damage to a vehicle which is driven or attended

by any person” to immediately stop at the scene of the accident and to remain until he has
provided certain required identifying information to the other driver. Okla. Stat. tit. 47, §
10-103. Any driver who violates section 10-103 may be sued in a civil action for three
times the value of the damage caused by the accident. See id.; McIntosh v. Watkins, 441
P.3d 1094, 1096 (Okla. 2019).

Diaz argues that no evidence has been presented suggesting he knowingly left the
scene of the accident. Diaz contends that, instead, the evidence demonstrates that he did
not learn of the accident until Kyle Pound blocked Diaz’s vehicle at the tollbooth and
advised him of what had happened. See Diaz’s Mot. at 13-14. Plaintiff, in turn, has
produced testimony that the collision was significant, that Plaintiff honked her horn at Diaz

during the collision, that Pound recalled Diaz slowing down after making contact with
Plaintiff’s vehicle, and that Pound “couldn’t imagine” that Diaz was unaware he had hit
something. See McGinley Dep. (Doc. No. 55-2) 19:8-11, 29:13-16; Pound Dep. (Doc. No.
55-3) 38:3-5, 125:17-126:5, 129:4-25. Given this evidence, the Court determines that
reasonable minds could differ as to whether Diaz had knowledge of the accident at the time

it occurred. The Court therefore denies summary judgment on the claim.
E. Punitive Damages
Diaz seeks summary judgment on the issue of punitive damages, which Plaintiff
seeks against Diaz in relation to the negligence and negligence per se claims. Under
Oklahoma law, punitive damages may be awarded if the plaintiff proves by clear and
convincing evidence that “[t]he defendant has been guilty of reckless disregard for the
rights of others,” or that “[t]he defendant has acted intentionally and with malice towards

others.” See Okla. Stat. tit. 23, § 9.1(B)-(D). Reckless disregard is established by showing
that the defendant “was either aware, or did not care, that there was a substantial and
unnecessary risk that [his] conduct would cause serious injury to others.” Gowens v.
Barstow, 364 P.3d 644, 652 (Okla. 2015) (internal quotation marks omitted).
As previously stated, evidence has been presented in this case from which

reasonable factfinders could conclude that Diaz did not properly look in his mirrors when
he merged into Plaintiff’s lane or correct his position upon impacting Plaintiff’s vehicle.
Particularly in view of the fact that Diaz was driving a semitractor-trailer, a reasonable
factfinder could conclude from the evidence that this conduct created a substantial and
unnecessary risk of serious injury to smaller vehicles and their occupants and that Diaz was

aware of or did not care about this risk.
Accordingly, Diaz’s request for summary judgment on the issue of punitive
damages is denied.
III. DEFENDANT ADT TRAILERS’ MOTION
In her pleading, McGinley brings a claim of negligent entrustment against

Defendant ADT Trailers and alleges that ADT Trailers is vicariously liable for certain acts
of negligence allegedly committed by Diaz.
A. Undisputed Facts
As a precondition to driving for ADT Trailers, Diaz completed a driver qualification
process with a separate entity. ADT Trailers did not see or review Diaz’s driver

qualification documents. Diaz was not subject to any disciplinary action in the year
preceding the accident and did not receive any motor vehicle citations in the three years
preceding the accident.
B. Negligent Entrustment
Plaintiff alleges in her Petition that ADT Trailers negligently entrusted the

semitractor-trailer to Diaz in violation of title 47, section 6-307 of the Oklahoma Statutes,
which prescribes that “[a]ny person . . . who is the owner of any motor vehicle and
knowingly permits such motor vehicle to be operated by any person who is not qualified
to operate a motor vehicle under the provisions of this act, shall be held civilly liable as a
joint tortfeasor for any unlawful act committed by such operator.” Okla. Stat. tit. 47, § 6-

307. Neither party addresses section 6-307 in their briefing. Rather, they address the claim
as a common law claim of negligent entrustment of a vehicle. Liability for such a claim
may be imposed “when a person who owns or has possession and control of an automobile
allows another driver to operate the automobile when the person knows or reasonably
should know that the other driver is careless, reckless[,] and incompetent, and an injury

results therefrom.” Green v. Harris, 70 P.3d 866, 868 (Okla. 2003).
Regardless of whether Plaintiff’s claim of negligent entrustment arises under section
6-307 or the common law, Plaintiff must demonstrate the element of knowledge. It is
undisputed that Diaz was not subject to disciplinary action in the year prior to the accident
and did not receive any motor vehicle citations in the three years prior to the accident. It
is further undisputed that Diaz had completed a driver qualification process before working
for ADT Trailers. Though Plaintiff protests that ADT Trailers failed to keep a record of

Diaz’s driving qualifications or other pertinent documents, she does not argue or otherwise
demonstrate that their contents would have put ADT Trailers on notice that Diaz was
careless, reckless, or unqualified. See Cordero Diaz Dep. (Doc. No. 68-1) 79:25-80:2
(testimony of ADT Trailers’ owner that the agency handling Diaz’s driver qualification
process advised ADT Trailers that Diaz “was ready to start working”).

Accordingly, Plaintiff has failed to demonstrate a genuine factual dispute on the
issue of ADT Trailers’ knowledge, and ADT Trailers is entitled to summary judgment on
Plaintiff’s negligent entrustment claim.2
C. Respondeat Superior Liability
ADT Trailers argues that it is not liable under a theory of respondeat superior in

relation to Plaintiff’s negligence per se claim. The Court has granted summary judgment
on the negligence per se claim against Defendant Diaz. Accordingly, Plaintiff’s attendant
claim of respondeat superior liability against ADT Trailers for negligence per se likewise
fails as a matter of law. See Fox v. Mize, 428 P.3d 314, 319 (Okla. 2018).

2 ADT Trailers also seeks summary judgment on the issue of punitive damages in relation
to the negligent entrustment and negligent maintenance claims. See ADT Trailers’ Mot. at
22-23. As the Court has granted summary judgment on the negligent entrustment and
negligent maintenance claims, punitive damages in relation to those claims are unavailable.
See Rodebush ex rel. Rodebush v. Okla. Nursing Homes, Ltd., 867 P.2d 1241, 1247 (Okla.
1993) (“The plea for punitive damages rests on the underlying claim, and if there is no
ADT Trailers also seeks summary judgment as to its respondeat superior liability
premised on Diaz’s alleged violation of title 47, section 10-103 of the Oklahoma Statutes,
for which Plaintiff seeks treble damages. See ADT Trailers’ Mot. at 25-26. ADT Trailers

argues that no evidence has been presented that Diaz knowingly left the scene of the
accident. The Court, however, has already rejected this theory. See supra Part II.D. ADT
Trailers then argues that Diaz was not its employee at the time of the accident and that,
“[g]iven the nature of the statute, . . . any violation of [section 10-103] should not flow
through to ADT as the hirer/employer of Diaz.” ADT Trailers’ Mot. at 25 n.6. ADT

Trailers fails, however, to provide any explanation or meaningful support for its argument,
and factual disputes exist as to the nature of the relationship between ADT Trailers and
Diaz. The Court cannot properly conclude, based on ADT Trailers’ cursory argument, that
summary judgment on this claim is warranted.
CONCLUSION

For the foregoing reasons, the Court ORDERS that:
(1) Defendant Bruno Diaz’s Motion for Partial Summary Judgment (Doc. No. 44)
is GRANTED IN PART AND DENIED IN PART. The Motion is granted as to
Plaintiff’s claims against Diaz of negligent maintenance and negligence per se.
The Motion is denied in all other respects.

(2) Defendant ADT Trailers’ Motion for Partial Summary Judgment (Doc. No. 45)
is GRANTED IN PART AND DENIED IN PART. The Motion is granted as to
Plaintiff’s claims against ADT Trailers of negligent maintenance and negligent
entrustment and corresponding requests for punitive damages. The Motion is
further granted as to Plaintiff's claim of respondeat superior liability in relation
to the negligence per se claim. The Motion is denied in all other respects.
With the issuance of this decision, the following claims remain: (1) Plaintiff's claim
of negligence against Defendant Diaz and corresponding claim of respondeat superior
liability against ADT Trailers and American Dump Trucks, Inc.; (2) Plaintiff's claim for
treble damages under title 47, section 10-103 of the Oklahoma Statutes and corresponding
claim of respondeat superior liability against ADT Trailers and American Dump Trucks,
Inc.; (3) Plaintiff's claim of negligent entrustment against American Dump Trucks, Inc.;
(4) Plaintiff's claim of negligent maintenance against American Dump Trucks, Inc.; and
(5) Plaintiff's claim of negligent selection of a motor carrier against American Dump
Trucks, Inc.
IT IS SO ORDERED this 30th day of September, 2021.

(Barba B. Kadota
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389172. Public record. Not legal advice.