United States District Court, N.D. Illinois, Eastern Division.

Salvador Gutierrez, Plaintiff,

v.

Norfolk and Southern Railway Co., et al., Defendants.

 

No. 12 C 2396

1:12–cv–02396February 12, 2014

 

John S. Bishof, Jr., Patricia N. Gerberich, Zahra Sagha, Law Office of John S. Bishof, P.C., Chicago, IL, for Plaintiff.

 

Cynthia Ramirez, Mark Dinos, Matthew Joseph Kowals, Morse, Bolduc & Dinos, Brandon Robert Mita, Dana S. Connell, Houston Adams Stokes, Littler Mendelson, P.C., Chicago, IL, for Defendants.

 

MEMORANDUM OPINION

SAMUEL DER–YEGHIAYAN, District Judge

*1 This matter is before the court on Defendants Norfolk and Southern Railway Co.’s (NSRC) and H & M International Transportation, Inc.’s (H & M) motions for summary judgment. For the reasons stated below, NSRC’s and H & M’s motions for summary judgment are granted.

 

BACKGROUND

Plaintiff Salvador Gutierrez (Gutierrez) alleges that he was injured while working for H & M. H & M is allegedly a trucking company which provides terminal services to several railroad companies, including NSRC. H & M allegedly maintains an office within the Landers Yard (Landers) facility, which is owned and operated by NSRC. Gutierrez alleges that he was a driver/spotter for H & M assigned to Landers, and that his duties as a spotter included the removal and placement of containers on flatcars as ordered by NSRC. Gutierrez alleges that on January 28, 2011, he was transporting a container moving south to north while crossing Landers track 18 (Track 18), when he was struck by a train owned an operated by NSRC and sustained injuries as a result of the collision.

 

Gutierrez alleges that, since having worked at Landers for the past seventeen years, it was the standard operating procedure that spotters/drivers would cross over other tracks to get to another track in order to cut the travel time. Gutierrez alleges that NSRC safety and operating rules require that a “flag man” be assigned and equipped with flags, flares or other types of warning devices in order to give notice to spotters and other workers when a track is occupied by an active train or when a string of rail cars is being shoved by a locomotive engine into the yard on the track. Gutierrez alleges that on January 28, 2011, NSRC workers conducted a shove movement onto Track 18, and that no notice or warning was given. Gutierrez alleges that the shove movement caused the lead railcar to collide with Gutierrez’s truck, and that he sustained injuries as a result. Gutierrez alleges that NSRC was negligent in failing to provide proper safeguards and supervision at Landers so as to prevent his injuries.

 

In addition, Gutierrez alleges that he was terminated by H & M in retaliation for notifying H & M of the accident and that H & M violated his rights under the Federal Railroad Safety Act (FRSA). Gutierrez alleges that on February 7, 2011, H & M Terminal Manager, James Hamilton (Hamilton), sent Gutierrez a letter terminating his employment. Gutierrez alleges that he filed a grievance through his union against H & M to appeal his termination. Gutierrez alleges that shortly thereafter, Hamilton told Gutierrez that if he resigned, Hamilton would not contest his application for unemployment and would give Gutierrez a favorable reference for future potential employers. Gutierrez also alleges that on February 16, 2011, Hamilton told Gutierrez that if he gave up his intermittent family medical leave and his workers’ compensation claim against H & M, Gutierrez would be reinstated as an employee of H & M. Gutierrez further alleges that H & M delayed or precluded Gutierrez from receiving appropriate medical treatment for his injuries sustained in the accident.

 

*2 Gutierrez brought the instant action and includes in its complaint a negligence claim brought against NSRC (Count I), and a claim alleging a violation of the FRSA, 49 U.S.C. § 20109 et seq., brought against H & M (Count II). Both NSRC and H & M now move for summary judgment.

 

LEGAL STANDARD

Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that 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); Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009). A “genuine issue” in the context of a motion for summary judgment is not simply a “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Insolia v. Phillip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). In ruling on a motion for summary judgment, the court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).

 

DISCUSSION

I. Negligence Claim (Count I)

Gutierrez alleges in Count I that NSRC was negligent in failing to provide proper safeguards and supervision so as to prevent his injuries. Since this claim arises under diversity jurisdiction and Gutierrez’s alleged injuries occurred in Illinois, Illinois substantive law governs. See Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)(holding that in federal courts state law is applicable in cases not arising under federal law). To state a prima facie claim of negligence under Illinois law, a plaintiff must establish that: (1) “the defendant owed a duty to the plaintiff,” (2) “the defendant breached that duty,” and (3) “the plaintiff incurred injuries proximately caused by that breach.” Chandler v. Illinois Cent. R. Co., 798 N.E.2d 724, 728 (Ill. 2003). The first element of whether a duty existed is a question of law for the court to decide. Id. (citing to Thompson v. County of Cook, 609 N.E.2d 290 (Ill. 1993)).

 

A. Duty of Care

NSRC argues that it is entitled to judgment as a matter of law on Gutierrez’s negligence claim since NSRC did not owe Gutierrez a duty of care. (N SJ Mem. 3).

 

1. Independent Contractor

NSRC argues that it did not owe Gutierrez a duty of care because H & M was an independent contractor hired by NSRC and NSRC did not control the means and methods of H & M’s work. (N SJ Mem. 5). In general, liability cannot be imposed on an employer for the acts or omissions of its independent contractor. See Aguirre v. Turner Const. Co., 582 F.3d 808, 815 (7th Cir. 2009)(stating that “no liability will be imposed on the employer … unless the evidence shows the employer … retained control over the ‘incidental aspects’ of the independent contractor’s work”)(quoting Rangel v. Brookhaven Constructors, Inc., 719 N.E.2d 174, 177–78 (Ill. App. Ct. 1999)). Under Illinois law, this rule applies “even where the employer … ensures that safety precautions are observed and the work is done in a safe manner.”   Aguirre, 582 F.3d at 815 (citing to Rangel, 719 N.E.2d at 178). The Seventh Circuit has stated that, in such cases, an employer is “not in a good position to prevent negligent performance” since it “does not supervise the details of the independent contractor’s work.” Anderson v. Marathon Petroleum Co., 801 F.2d 936, 938 (7th Cir. 1986); see Rangel, 719 N.E.2d at 177–78 (reasoning that “[the employer] controlled the ends,” but “[the independent contractor] was responsible for the means by which those ends were achieved”)(quoting Fris v. Personal Products Co., 627 N.E.2d 1265 (Ill. App. 1994)).

 

*3 It is undisputed that NSRC had previously contracted with H & M for various services and that at the time of the January 28, 2011 incident, H & M was designated as an independent contractor. (R NSF Par. 8); (N Ex. A); (N Ex. A–1). It is also undisputed that pursuant to their contract, H & M was solely responsible for the employment and supervision of any employee it engaged to perform any of its contractual duties and obligations and that H & M was to provide all personnel, drivers, tractors, and equipment necessary to perform such tasks. (R NSF Par. 10); (N Ex. A–1, Par. 1.B, 1.D). It is undisputed that the agreement between NSRC and H & M was governed by the Operations Guidelines for Contractors (Guidelines). (R NSF Par. 9); (N Ex. A–2). It is further undisputed that pursuant to the Guidelines, the responsibility for safety could not be transferred, and that each contractor would be held accountable for its actions on the job. (R NSF Par. 11); (N Ex. A–2, p. iv). It is undisputed that H & M, as a contractor, had the sole responsibility of controlling the means and manner of the work done by its employees and for the safe performance of its employee’s job duties. (R NSF Par. 12); (N Ex. A–2, p. 3, par. 1.1). Finally, it is undisputed that Gutierrez was an employee of H & M, was expected to follow H & M’s own policies and procedures, was trained by H & M and not NSRC, and was provided the tools and truck he drove by H & M. (R NSF Par. 13–15).

 

In addition, it is undisputed that on January 28, 2011, H & M operated a “blue flag” system at Landers by raising blue flags to alert train personnel when workers were present on the track. (R NSF Par. 17); (N Ex. A, par. 11). It is undisputed that according to this system, if the blue flags were down, it indicated that H & M workers were not present on the track, and that the track could be “live,” meaning a train could use the track. Id. It is also undisputed that H & M informed its employees as to blue flag status by radio, and that NSRC and H & M employed different radio frequencies for their respective employees working at Landers. (R NSF Par. 20). Gutierrez admits that he did not hear that Track 18 was going live with a shove move because he was pulling pins on a container outside of his truck. (R NSF Par. 21). It is undisputed that prior to the accident, Guiterrez drove through a “cut through” which blocked his peripheral view of the general area, but as he exited and approached Track 18, he looked left and right and did not see a blue flag. (R NSF Par. 22, 24).

 

Pursuant to its contract, the regulating Guidelines, and general practice, H & M was solely responsible for the supervision of its employees, as well as the means and methods by which the employees performed their duties at Landers. Gutierrez has not pointed to sufficient evidence that NSRC exerted the requisite control over H & M’s work. Thus, no reasonable trier of fact could conclude other than that H & M was an independent contractor of NSRC and that NSRC did not control H & M’s work.

 

2. Open and Obvious Condition

NSRC also argues that it did not owe Gutierrez a duty of care because the presence of a train on the railroad tracks at the time of the accident constituted an open and obvious condition. (N SJ Mem. 9). The relevant factors to determine whether a duty existed are: (1) “the likelihood of injury,” (2) “the reasonable foreseeability of such injury,” (3) “the magnitude of the burden of guarding against injury,” and (4) “the consequences of placing that burden on the defendant.” Bucheleres v. Chicago Park Dist., 665 N.E.2d 826, 836 (Ill. 1996)(citing to Ward v. K Mart Corp., 554 N.E.2d 223 (Ill. 1990)). With regard to the foreseeability factor, under Illinois law, landowners “are not required to foresee and protect against injuries from potentially dangerous conditions that are open and obvious.” Sandoval v. City of Chicago, 830 N.E.2d 722, 727 (Ill. App. Ct. 2005)(including where “condition and risk are apparent to and would be recognized by a reasonable person exercising ordinary perception, intelligence and judgment in visiting an area”). Accordingly, “[Illinois] landowners owe no duty to protect people from open and obvious dangers.” Hoesly v. Chicago Cent. & Pac. R. Co., 153 F.3d 478, 481 (7th Cir. 1998)(citing to Bucheleres, 665 N.E.2d at 832)(stating that “[t]he open and obvious nature of the condition itself gives caution and therefore the risk of harm is considered slight,” as “people are expected to appreciate and avoid obvious risks”)).

 

*4 In this case, a train on railroad tracks is considered an open and obvious danger. See Park v. Ne. Illinois Reg’l Commuter R.R. Corp., 960 N.E.2d 764, 770–71 (Ill. App. Ct. 2011)(holding that a moving train is open and obvious where person who is aware of approaching train attempts to cross tracks). Gutierrez admits that when he exited the cut-through and looked to his right, he saw a train on Track 18. (R NSF Par. 25); (P Dep. 131). It is undisputed that when asked about the train’s relative distance to him, Gutierrez stated: “I’m moving and I wasn’t paying attention to that because I’m trying to get my job done.” (R NSF Par. 25); (P Dep. 132). Gutierrez was aware of the train on Track 18 when crossing the same tracks and has not pointed to sufficient evidence that would preclude the open and obvious exception. Thus, no reasonable trier of fact could conclude other than that the moving train posed an open and obvious danger to Gutierrez. Therefore, NSRC owed no duty to Gutierrez and NSRC cannot be liable for Gutierrez’s injuries. See Hoesly v. Chicago Cent. & Pac. R. Co., 153 F.3d 478, 481 (7th Cir. 1998)(recognizing “where there is no duty there is no liability”)(quoting Bucheleres, 665 N.E.2d at 832).

 

NSRC has pointed to sufficient evidence to support its motion for summary judgment on Count I. Therefore, NSRC’s motion for summary judgment on Count I is granted.

 

II. FRSA Claim (Count II)

Gutierrez alleges in Count II that H & M violated his rights under the FRSA. H & M argues that it is entitled to judgment as a matter of law on Gutierrez’s FRSA claim since Gutierrez’s claim is meritless. (H SJ Mem. 8). The FRSA is governed under the rules and procedures promulgated in the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (Whistleblower Act), 49 U.S.C. § 42121, including the burdens of proof. See 49 U.S.C. § 20109(d)(2)(A). Thus, in order to establish a FRSA claim, an employee must prove by a preponderance of the evidence that: (1) “[ ]he engaged in protected activity,” (2) “the employer knew that [ ]he engaged in the protected activity,” (3) “[ ]he suffered an unfavorable personnel action,” and (4) “the protected activity was a contributing factor in the unfavorable action.” Harp v. Charter Communications, Inc., 558 F.3d 722, 723 (7th Cir. 2009). However, even if the employee is able to establish these four elements, the employer may still avoid liability “if it can prove ‘by clear and convincing evidence’ that it ‘would have taken the same unfavorable personnel action in the absence of that [protected] behavior.’ ” Id.

 

A. Protected Activity

Gutierrez alleges that he engaged in a protected activity when he spoke with Hamilton on the phone while at the hospital on January 28, 2011. Under the FRSA, the employee must “reasonably” believe in the unlawfulness of the employer’s actions which he is reporting. Id. In addition, the “reasonableness must be scrutinized under both a subjective and objective standard.” Id. It is undisputed that Gutierrez told Hamilton during their phone conversation that he believed a “car man” should have been following the train into the yard. (R HSF Par. 31). However, Gutierrez admits that he was not certain what car men actually do, (R HSF Par. 31), and whether their duties were imposed by federal law. (P Dep. 2, p. 133). Gutierrez also admits that he was “not sure of” whether H & M violated a federal regulation, (P Dep. 2, p. 127), or even whether it violated one of its own safety rules or procedures. (P Dep. 2, p. 133–34). Therefore, under both an objective and subjective standard, Gutierrez has failed to point to sufficient evidence that he engaged in a protected activity.

 

B. Employer Knowledge

Gutierrez alleges that he was retaliated against after his “whistleblowing” conversation with Hamilton. However, an employer cannot retaliate if it does not know of the complaint. See Miller v. Am. Family Mut. Ins. Co., 203 F.3d 997, 1008 (7th Cir. 2000)(holder that an employer cannot retaliate in violation of Title VII when it is unaware of any complaints). It is undisputed that H & M utilizes the thirdparty administrator EGIS to administer workers’ compensation leaves of absence pursued by Landers employees. (R DSF Par. 39). It is also undisputed that Hamilton had not communicated with the EGIS Senior Claim Representative who had placed Gutierrez on workers’ compensation leave, Jaycee Stump (Stump). Id. Gutierrez has not pointed to sufficient evidence that Stump or Hamilton would otherwise have knowledge of Gutierrez’s alleged protected activity. Therefore, Gutierrez cannot establish the requisite knowledge to pursue his claim.

 

B. Causal Connection

*5 Gutierrez alleges that he was terminated as a result of his complaint to Hamilton. However, it is undisputed that H & M and Gutierrez settled his grievance by agreement. (R DSF Par. 37). It is also undisputed that H & M agreed to reduce Gutierrez’s termination to a final warning and Gutierrez had agreed to work when he was released to do so by his physician. Id. It is further undisputed that Hamilton told Gutierrez to get whatever medical treatment he needed in order to return to work at H & M. Id. It is undisputed that Gutierrez had no personal knowledge of whether H & M employees played a role in any of the decisions made by EGIS. (R DSF Par. 61). Therefore, Gutierrez has not pointed to sufficient evidence that a causal connection existed or that his own performance was not a contributing factor in his termination.

 

D. Termination

H & M argues that it would have terminated Gutierrez regardless of his alleged protected activity. The Seventh Circuit has held that if an employer can “articulate[ ] a reason for discharging the plaintiff not forbidden by law,” then it is not the court’s duty “to decide whether that reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff’s termination.” Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 411 (7th Cir. 1997). It is undisputed that Gutierrez knew it was his duty to perform his duties in a reasonably safe manner. (R DSF Par. 5). It is also undisputed that Gutierrez had a limited range of vision when approaching Track 18. (R DSF Par. 33). Gutierrez himself admits that he saw a train on Track 18, (P Dep. 131), but did not know how far it was because “[he was] moving and [he] wasn’t paying attention to that because [he was] trying to get [his] job done.” (P Dep. 132). Gutierrez was aware of the train on Track 18 when crossing the same tracks. Gutierrez has not pointed to sufficient evidence that he took reasonable measures to avoid the accident. Thus, no reasonable trier of fact could conclude other than that H & M had other reasons for his termination.

 

H & M has pointed to sufficient evidence to support its motion for summary judgment on Count II. Therefore, H & M’s motion for summary judgment on Count II is granted.

 

III. Motions to Bar

The court also notes that NSRC and H & M both move to bar Gutierrez’s expert Hank Best (Best) from offering expert testimony and from submitting his report into evidence, reasoning that the testimony and report contain speculative and unsubstantiated factual assertions. (N Excl. Mem. 1); (H Excl. Mem. 5). It is undisputed that Best did not speak with Gutierrez or any other individuals that were present at Landers on January 28, 2011, nor did Best visit the scene of the accident. (B Dep. 47–48). It is also undisputed that his proposed qualification is his former employment in the railroad industry, although Best has no experience working for H & M or NSRC. (B Dep. 38). It is further undisputed that Best had no familiarity with H & M’s or NSRC’s policies and procedures, nor did Best have any specific knowledge of the train that struck Gutierrez. (B Dep. 59–60, 72–80).

 

Therefore, Best’s expert testimony will not be considered since it would not “assist the trier of fact to understand or determine” the issues underlying Gutierrez’s claims. See Buckler v. Sam’s Club, Inc., 75 F.3d 290, 293–94 (7th Cir. 1996)(applying Daubert standard for expert evidence and holding that exclusion is proper where the “conclusion [of an expert affidavit] is only conjecture and is wholly without evidentiary support”)(citing to Dauber v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993)); see also Fed. R. Evid. 702 (qualifying an expert’s testimony if “specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue”). Therefore, the motions to bar are granted.

 

CONCLUSION

*6 Based on the foregoing analysis, NSRC’s and H & M’s motions to bar and motions for summary judgment are granted.

United States District Court,

N.D. Mississippi,

Oxford Division.

Bertrand DINGER, Barbara Dinger, Plaintiffs

v.

AMERICAN ZURICH INSURANCE CO., Kenan Advantage Group/Cryogenics, Intervenor Plaintiffs

v.

Pat Salmon & Sons, Inc., The Estate of Marcus Hardin, Defendants.

 

Civil Action No. 3:13–CV–46–MPM–SAA.

Feb. 13, 2014.

 

Ryan M. Hall, Markow Walker, P.A., Oxford, MS, W. Carlos Spaht, Jennifer Aaron Hataway, Richard Franklin Zimmerman, Jr., Kantrow Spaht Weaver & Blitzer, William R. Aaron, Sr., Aaron & Turner, Baton Rouge, LA, John L. Hinkle, IV, Markow Walker & Reeves, PA, Jackson, MS, for Plaintiffs.

 

H. Byron Carter, III, Carter Law Firm, P.A., Jackson, MS, for Intervenor Plaintiffs.

 

Carl Wyatt, Lori J. Keen, Todd B. Murrah, Glassman, Edwards, Wyatt, Tuttle & Cox, P.C., Memphis, TN, for Defendants.

 

Memorandum Opinion & Order

MICHAEL P. MILLS, Chief Judge.

*1 This cause comes before the court on defendants’ motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure [Doc. 58]. Defendants seek dismissal of plaintiffs’ independent negligence claims against Pat Salmon & Sons, Inc. (Salmon) and dismissal of the plaintiffs’ claim for punitive damages against Salmon based on vicarious liability for the acts of its employee. The plaintiffs have responded in opposition. Upon due consideration of the memoranda and relevant law, the court is now prepared to rule.

 

On April 9, 2011, Bertrand and Barbara Dinger (Dingers) were traveling together in a tractor-trailer on U.S. Highway 78 West in Lee County, Mississippi. Bertrand was driving and Barbara was in the sleeping cabin. Due to traffic conditions, they were stopped in their lane. Marcus Hardin was also driving on Highway 78 West in a tractor-trailer that was owned and operated by Salmon. Hardin failed to observe the traffic conditions and crashed into the rear of a Ford F–150 truck being operated by Dwight White. Plaintiffs allege Hardin was driving about 60 miles per hour and was distracted by a handheld electronic device. The force of the impact caused the F–150 to rear end the Dingers’ tractor-trailer, causing them injury.FN1

 

FN1. Hardin and White were fatally injured in the accident. White has settled his claims arising from the accident.

 

Hardin was employed by Salmon at the time of the accident. The Dingers were each employees of Kenan Advantage Group/Cryogenics at the time of the accident. Kenan and their workers compensation insurer, American Zurich, have intervened in the action seeking reimbursement of worker’s compensation benefits.

 

The second amended complaint alleges that Salmon is liable for compensatory and punitive damages on a vicarious liability/respondeat superior basis for the negligence and gross negligence of Hardin. Plaintiffs further allege that Salmon is liable for compensatory and punitive damages for its own negligence (including hiring, training, permitting use of handheld electronic devices, and other action or inactions). Salmon expressly states that Hardin was an employee and agent of Salmon at the time of the accident, was on or about the business of Salmon, and unequivocally admits that it is vicariously liable for compensatory damages for the negligence of Hardin.

 

Salmon first moves the court to dismiss the independent negligence claims against it; those not based on vicarious liability for the acts of its driver. Second, Salmon argues that the claim for punitive damages against Salmon based on the acts of its driver should also be dismissed.

 

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

 

Defendants argue that the independent negligence claims against Salmon should be dismissed because Salmon has admitted that Hardin was driving the tractor-trailer in the course and scope of his employment. The “non-respondeat superior claims” have consistently been dismissed by other courts in this state when an employer admits vicarious liability for their employee’s action. See Roberts v. Ecuanic Exp., Inc., 2012 WL 3052838 (S.D.Miss. July 25, 2012) (citing Welch v. Loftus, 776 F.Supp.2d 222, 225 (S.D.Miss.2011); Cole v. Alton, 567 F.Supp. 1084, 1085–86 (N.D.Miss.1983); Lee v. Harold David Story, Inc., 2011 WL 3047500 (S.D.Miss.2011); Curd v. W. Express, Inc., 2010 WL 4537936 (S.D.Miss.2010); Booker v. Hadley, 2009 WL 2225411 (S.D.Miss.2009)); See also Walker v. Smitty’s Supply, Inc., 2008 WL 2487793 (S.D.Miss.2008) (making an Erie guess that the Mississippi Supreme Court would approve the dismissal of a claim for negligent entrustment against an employer who has already confessed liability for its employee’s conduct under the theory of respondeat superior). The courts reason that once an employer admits that it is liable for their employee’s actions, evidence that pertains to issues of the employer’s own negligence in hiring or supervision becomes redundant and possibly unfairly prejudicial. Id.

 

*2 Other districts have noted that this “rule” overlooks the irreducible proposition that the doctrine of vicarious liability and the tort of negligent hiring and supervision address different conduct. See, Wright v. Watkins & Shepard Trucking, Inc., 2013 WL 5209044 (D.Nev. Sept.13, 2013):

 

The doctrine of vicarious liability restricts employer liability to employee conduct that “should be considered as one of the normal risks to be borne by the business.” Restatement (Second) of Agency § 229 comment a (1958). The tort of negligent hiring and supervision creates employer liability when the employer exacerbates the “normal risks to be borne by the business” through the employer’s own negligence. Thus, each theory of liability aims at different risky conduct: vicarious liability makes the employer responsible for the normal risks of doing business, while the tort makes the employer responsible for any abnormal risks that she herself creates.

 

Id. (citing McHaffie By & Through McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo.1995) (“[t]he majority view is that once an employer has admitted respondeat superior liability for a driver’s negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability.”) (citing numerous cases from other states and secondary sources)).

 

However, courts have also ruled that it is the driver’s conduct that caused the accident that is the issue at trial, and not the negligence of the employer. “Moore’s alleged negligence in the Accident, not Waste Connections’ alleged negligence in hiring, training, and supervising Moore, is the relevant issue at trial.” Young v. Waste Connections of Tennessee, Inc., 2013 WL 3974175 (W.D.Tenn. July 31, 2013) (applying Mississippi law and granting summary judgment on plaintiff’s claim based on negligent hiring, training, and supervision because defendants admitted vicarious liability for Mack–Truck driver speeding through school zone, resulting in a fatal accident). “Plaintiffs argue that Defendants are not entitled to summary judgment because there are genuine issues of material fact about Waste Connections’ hiring, training, and supervision of Moore. Admitting vicarious liability insulates Waste Connections from the factual disputes Plaintiffs have identified.” Id.

 

The Mississippi Supreme Court has not answered the question of whether an employer who admits vicarious liability should be entitled to dismissal of the independent negligence claims asserted against it. The Supreme Court has held, however, that it was error to admit testimony relevant to plaintiff’s negligent entrustment claim because the defendants had admitted that the employee had been within the scope of his employment at the time of accident. Nehi Bottling Co. v. Jefferson, 226 Miss. 586, 84 So.2d 684, 686 (Miss.1956).

 

Further, secondary sources in Mississippi do not address the exact scenario when an employer admits vicarious liability for the employee’s actions, but state that “[a]n employer can always be held directly liable for his own negligence in hiring, retaining, or supervising, regardless of whether an employee or independent contractor is involved, since the employer is being held liable for his own negligence and not vicariously liable for the negligence of another.” Mississippi Law of Torts § 7:23 (2d ed.). This seems to echo the concern announced by the Watkins & Shepard Trucking court. However, the federal courts in Mississippi have regularly held that when an employer admits that they are liable for their employee’s actions, the independent negligence claims against the employer should not be an issue at trial. This court does not deviate from the previous holdings in this state under the facts alleged in the complaint in this matter and agrees with the annunciation in Welch: “[a]lthough the Mississippi Supreme Court has not answered the legal question at hand, this Court is satisfied that where a defendant declines to protect himself against a claim of vicarious liability, he voluntarily enters the arena to entertain a claim of negligence.” Welch, 776 F.Supp.2d 222, 225 (S.D.Miss.2011) (granting summary judgment on negligent entrustment claim). “Proof of negligent entrustment or the like, then, is unnecessary and duplicitous at best, and at worst could provide unduly prejudicial evidence that is ultimately irrelevant.” Id.

 

*3 The plaintiffs seek to show that Salmon’s negligence exceeded Hardin’s negligence in this particular incident because Salmon knew that Hardin used handheld electronic devices while operating its tractor trailers and did little or nothing to stop it. However, this court does not find this argument persuasive enough to overcome the numerous cases in this state that have dismissed the ordinary negligence of the employer, even if the employer itself has a direct involvement in the distracted driver. In Gaddis v. Hegler, the court granted summary judgment in favor of the defendants with respect to plaintiff’s claims based on negligent entrustment, negligent hiring, failure to train, negligent supervision, and negligent retention even though the plaintiff alleged that the coowner of the business did not prohibit talking on the phone, knew it was dangerous to talk on the phone while driving, did not provide any safety training regarding deliveries, and the owner called employee’s cell phone while employee was on the road. Gaddis v. Hegler, 2011 WL 2111801 (S.D.Miss. May 26, 2011).

 

Therefore, the independent negligence claims for compensatory damages are dismissed. The gross negligence claims for punitive damages against Salmon remain.

 

If derivative liability is established, “other avenues—like punitive damages claims—will provide a route for recovery in the event an employer’s culpability exceeds that of its employee’s imputed negligence.” Watkins & Shepard Trucking, Inc., 2013 WL 5209044.

 

In Roberts, the court refused to dismiss a plaintiff’s independent claims for punitive damages against a truck driver’s employer even after it had dismissed the plaintiff’s independent negligence claims for compensatory damages against that employer. Roberts v. Ecuanic Exp., Inc., 2012 WL 3052838 (S.D.Miss. July 25, 2012) (ruling on motion to dismiss); See also Gaddis v. Hegler, 2011 WL 2111801 (court conducted punitive damages analysis for employer despite holding that admission of vicarious liability foreclosed negligence claims).

 

Any evidence of Salmon’s gross negligence shall only be admissible after an award of compensatory damages has been made by the jury and the court determines that the issue of punitive damages is to be submitted to the jury. Miss.Code Ann § 11–1–65.

 

Next, Salmon argues that the punitive damages claim against it based on vicarious liability and the acts of its employee should be dismissed because Mississippi Code Annotated Section 11–1–65 prohibits vicarious liability for punitive damages. Plaintiffs, without giving the court any authority on point, argue that “[i]n such a situation where punitive damages are not available against the employee because he is deceased, the employer should still be liable for all damages (compensatory and punitive) caused by the employee in the course and scope of his employment.”

 

Plaintiffs further argue that there is a split in authority in Mississippi because the Mississippi Supreme Court has not clearly answered the question of whether an employer can be vicariously liable for the punitive damages of its employees. The Dingers cite Morea v. Star Transp., 2012 U.S. Dist. LEXIS 154703 (S.D.Miss. Oct. 29, 2012) (noting that all the opinions from Mississippi federal courts rely on the dissenting opinion from Duggins v. Guardianship of Washington ex. rel. Huntley, 632 So.2d 420, 430 (Miss.1993)), and the court agrees that this authority comes from a dissenting opinion. However, as stated by the court in Morea, “if [the federal cases cited] are correct, as they appear to be, then summary judgment of the punitive claim naturally follows.” Plaintiffs next cite cases that were decided before the 1993 statutory enactment that prohibits vicarious liability for punitive damages to bolster their argument ( Cole v. Alton, 567 F.Supp. 1084 (N.D.Miss.1983); Hood v. Dealers Transport Co., 459 F.Supp. 684 (N.D.Miss.1978); Sandifer Oil Co. v. Dew, 220 Miss. 609, 71 So.2d 752 (1954); statute effective date of July 1, 1993)). The court finds these cases, as they pertain to this limited issue, to be inapplicable.

 

*4 Numerous federal courts in Mississippi have ruled that punitive damages are not recoverable from the employer based on their employee’s actions. FN2 See, e.g., Bradley v. Wal–Mart Stores, Inc., 2006 WL 2792338 (S.D.Miss. Sept.27, 2006) (finding that Wal–Mart did not formulate any policies or direct its employees to push televisions off of shelves at customers; therefore “[a]s Wal–Mart cannot not be held vicariously liable for punitive damages concerning the individual actions of non policy making employees, plaintiffs’ claims for punitive damages must be dismissed.”).

 

FN2. The Fifth Circuit has held “simply that punitive damages may not be imposed against a corporation when one or more of its employees decides on his own to engage in malicious or outrageous conduct. In such a case, the corporation itself cannot be considered the wrongdoer. If the corporation has formulated policies and directed its employees properly, no purpose would be served by imposing punitive damages against it except to increase the amount of the judgment.” See In the Matter of P & E Boat Rental, 872 F.2d 642 (5th Cir.1989) (sitting in admiralty and not addressing situation when vicarious liability admitted nor when policymaking officials knew of conduct that caused collision).

 

Finding that a driver’s conduct attempting an U-turn in a tractor-trailer which caused an accident did not rise to the level necessary to award punitive damages, the court in Dawson v. Burnette, 650 F.Supp.2d 583, 586 n. 1 (S.D.Miss. July 20, 2009) noted that the owner of the truck “would be entitled to summary judgment on [the punitive damage] claim in any event, inasmuch as it cannot be held vicariously liable for punitive damages on account of the conduct of its employee.” This analysis was followed two years later, albeit by the same judge, in Lee v. Harold David Story, Inc. ., 2011 WL 3047500 (S.D.Miss. July 25, 2011) (“[e]ven if there may be sufficient evidence of gross negligence by [the truck driver] to support the imposition of punitive damages against [driver], his actions cannot be imputed to [the employer] for purposes of imposing punitive damages.”).

 

This district, finding that a tractor-trailer driver’s conduct in causing a three vehicle accident did not rise to a level necessary to award punitive damages, also noted that the defendant truck-owner “would be entitled to summary judgment on this claim in any event, as it cannot be held vicariously liable for punitive damages on account of its employee.” Poe v. Ash Haulers, Inc., 2011 WL 2711283, * n. 2 (N.D.Miss. July 12, 2011) (citing Dawson, Bradley and Duggins ).

 

Even assuming that Hardin’s actions of using a handheld device in the cab of a tractor-trailer rise to the level necessary to justify punitive damages, as a matter of Mississippi statutory and case law, Salmon cannot be held vicariously liable for punitive damages based on his conduct.FN3

 

FN3. The court is aware of the recently filed and pending motion to dismiss the punitive damages claim against the Estate of Marcus Hardin and, if the need arises, will address that motion in a separate order. However, the court notes that in response to the present motion before the court, plaintiffs have admitted that “under the facts of this case, particularly the fact that the employee is deceased … punitive damages are not available against his estate” and “[a]s Hardin is deceased, punitive damages are not available against his estate under Mississippi law.”

 

Therefore, defendants’ motion to dismiss [Doc. 58] is hereby granted, with all other claims still pending.

 

IT IS SO ORDERED.