2021 WL 1254682

United States District Court, W.D. Oklahoma.
KOHLER TRANSPORT, INC. Plaintiff,
v.
CENTRAL STATES TRUCKING CO., Defendant.
CIV-19-1019-R
|
Filed 04/05/2021

ORDER
DAVID L. RUSSELL UNITED STATES DISTRICT JUDGE
*1 Before the Court is Plaintiff Kohler Transport Inc.’s (“Kohler”) Motion for Partial Summary Judgment. Doc. No. 46. Defendant Central States Trucking Co. (“CST”) responded in opposition to the motion. Doc. No. 50. Kohler filed a reply in support of its motion. Doc. No. 57. Upon consideration of the parties’ submissions, the Court finds as follows.

Summary judgment should be granted “if the movant 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 resisting summary judgment, “[a] party asserting that a fact … is genuinely disputed must support the assertion by … citing to particular parts of materials in the record, including … affidavits or declarations.” Id. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Id. 56(c)(4).

According to Kohler, Christopher McCaleb was hired by “a company named ProDrivers to drive routes for the Kohler account transporting Kohler cargo.”1 Doc. No. 46, ¶ 7. On May 18, 2018, ProDrivers certified its completion of McCaleb’s annual review, explaining he met minimum requirements for safe driving. Doc. No. 46-2. On December 3, 2018, McCaleb drove northbound on Interstate 35 from Dallas towards Oklahoma City transporting Kohler’s cargo in a tractor-trailer. Doc. No. 46, ¶ 11; Doc. No. 50, p. 4, ¶ 1. Feeling fatigued, McCaleb parked his truck on the shoulder of I-35 and placed his hazard lights on. Doc. No. 46, p. 3 ¶ 11; Doc. No. 50, ¶ 19. Meanwhile, Carlos Escoto, also driving a semi-tractor trailer northbound on I-35, on behalf of Central States Trucking (“CST”), veered off to the right of the roadway and struck the rear of McCaleb’s tractor-trailer. Id. ¶ 13. The collision set both tractor-trailers on fire, killing Escoto and damaging both trucks’ cargo. Doc. No. 46, ¶ 12; Doc. No. 50, p. 2.

Seeking to recover the value of the lost cargo, Kohler filed suit against CST, alleging negligence under the theory of respondeat superior. Doc. No. 1, ¶¶ 9–17. CST then filed counterclaims against Kohler, alleging various theories of negligence.2 Doc. No. 9, pp. 5– 9. In this motion, Kohler moves for summary judgment on the negligent training and supervision and negligent entrustment counterclaims against it. Doc. No. 46. Pursuant to Jordan v. Cates, 935 P.2d 289, 293 (Okla. 1997), the parties agree that the negligent training and supervision claim fails as a matter of law because Kohler stipulated that McCaleb was acting within the scope of his employment for Kohler.3 Doc. No. 46, pp. 4– 6; Doc. No. 50, pp. 7-8. However, the parties dispute whether Kohler is entitled to summary judgment on CST’s negligent entrustment claim.

*2 CST argues that because McCaleb was diagnosed with sleep apnea and had been in a “preventable” accident, entrusting McCaleb with driving its cargo was negligent. Doc. No. 50, pp. 8, 11. Kohler responds, however, that delegating its staffing decision to ProDrivers relieved its duty to independently credential McCaleb and that even if such duty existed, no facts reveal McCaleb was a careless, reckless, and incompetent driver.4 Doc. No. 46, p. 9.

“Negligent entrustment of an automobile occurs when the automobile is supplied, directly or through a third person, for the use of another whom the supplier knows, or should know, because of youth, inexperience or otherwise, is likely to use it in a manner involving unreasonable risk of bodily harm to others, with liability for the harm caused thereby.”5 Sheffer v. Carolina Forge Co., L.L.C., 306 P.3d 544, 548 (Okla. 2013) (internal citations omitted). To establish a claim of negligent entrustment, the plaintiff must show that a reasonable person knew or should have known that the person entrusted with the vehicle would be likely to operate it in a careless, reckless, or incompetent manner. Green v. Harris, 70 P.3d 866, 868 (Okla. 2003).

CST provides no evidence that Kohler knew or should have known that McCaleb was likely to operate the tractor-trailer in a careless, reckless, or incompetent manner. First, ProDrivers certified that McCaleb met the minimum requirements for safe driving. Doc. No. 46-2. Pursuant to the relevant provisions of the Federal Motor Carrier Safety Regulations (“FMCSR”), a driver is physically qualified to drive a commercial motor vehicle if he 1) meets the physical qualification standards, and 2) has complied with the medical examination requirements. 49 C.F.R. § 391.41(a)(3)(i). Though McCaleb had been previously diagnosed with sleep apnea, his diagnosis did not render him unfit to drive. See, e.g., Butler v. Washington Metro. Area Transit Auth., 275 F. Supp. 3d 70, 76 (D.D.C. 2017) (finding that sleep apnea, which could be a disqualifying medical condition under the FMCSR, may be treated by regular use of a CPAP machine). Rather, his obligation to receive medical clearance simply increased in frequency from every twenty-four months to every twelve months. Doc. No. 50-2, p. 7. McCaleb received his annual medical clearance in August of 2018, thus, he was medically cleared to drive on the day of the accident—December 3, 2018. Doc. No. 50-2, pp. 7-8.

Second, one minor accident involving a stopped vehicle in a parking lot does not establish that McCaleb’s driving created an unreasonable risk of bodily harm to others. See e.g., Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 653 (S.D. Tex. 2016) (“A record with two moving violations or accidents within a two-year period prior to the accident is also insufficient.”). CST argues that McCaleb “falsely stated on a ProDrivers form that he had not been in any accidents in a twelve-month period.” Doc. No. 50, p. 11. However, the form reveals that McCaleb certified only that he had not been convicted of a traffic violation required to be listed in accordance with Section 391.27 of the FMCSR. Doc. No. 46-2. Further, the documentation of the accident reveals it was an unreportable offense. Doc. No. 50-1. Thus, neither McCaleb’s sleep apnea nor one minor accident in a parking lot rendered McCaleb an unreasonable risk to others.

*3 Lastly, CST alleges—citing McCaleb’s deposition testimony,—that McCaleb was unaware of the requirements of commercial drivers under Oklahoma law. Doc. No. 50, p. 13. During the deposition, CST’s counsel and McCaleb engaged in the following dialogue:
CST’s counsel: What does the Oklahoma law say about stopping on the shoulder of the interstate?
McCaleb: I’m not sure.
CST’s counsel: You don’t know the Oklahoma statutes, do you?
McCaleb: No sir, I do not.
CST’s counsel: […] you are required to know the rules of the road in every state that you travel in, correct?
McCaleb: No. I was told that I need to know the rules on where to park and what to do when I park.
Doc. No. 50-2, p. 20. CST attempts to establish that because McCaleb was unfamiliar with the statutes in Oklahoma, he was improperly trained, and therefore Kohler negligently entrusted him with driving its cargo because it should have known of his improper training. Doc. No. 50, p. 13. CST’s argument, however, is misleading. McCaleb was clearly trained regarding the federal regulations governing parking on the roadway’s shoulder because when questioned about setting out triangles after a stop, McCaleb answered that “the first [triangle] needs to go 10 feet, the next one is 100, 100 for the third one” and that “you have to have [the triangles] out by [ ] ten minutes.”6 Doc. No. 50-2, p. 21.

Further, it was unnecessary for McCaleb to learn different statutory rules for parking along the shoulder in Oklahoma and Texas, as CST’s counsel suggested. Id. As CST explains in its Answer to Kohler’s Complaint, “the State of Oklahoma ‘adopted the United States Department of Transportation regulations pertaining to motor carrier safety and hazardous materials transportation, as contained in Title 49 of the Code of Federal Regulations …’.” Doc. No. 9, ¶ 30 (citing Okla. Admin. Code § 595:35-1-4). Texas also adopted Title 49 of the Code of Federal Regulations. 37 Tex. Admin. Code tit. § 4.11(a). Thus, McCaleb’s deposition testimony—that at the time of the deposition, he was unfamiliar with the Oklahoma statutory requirement for parking along the shoulder—is insufficient to establish a genuine fact dispute because the training he received regarding the federal regulations for parking along the shoulder, 49 C.F.R. § 392.22, applied both in Oklahoma and in Texas.

*4 In conclusion, construing the evidence and all reasonable inferences in CST’s favor, CST fails to present any evidence that Kohler knew or should have known that McCaleb was likely to operate the tractor-trailer in a reckless or incompetent manner. Accordingly, Kohler is entitled to summary judgment on CST’s claim for negligent entrustment. Because CST concedes summary judgment is appropriate on its negligent training and supervision claim, as stated above, Kohler’s partial motion for summary judgment is GRANTED IN ITS ENTIRETY.

IT IS SO ORDERED on this 5th day of April 2021.

All Citations
Slip Copy, 2021 WL 1254682

Footnotes

1
CST disputes McCaleb’s employment with ProDrivers but provides no support for its position that ProDrivers did not employ McCaleb. Doc. No. 50, pp. 8–9.CST misunderstands Kohler’s argument as well. In its response motion, CST states that “Kohler argues that it is but a vendor of ProDrivers and thus has no duty to vet commercial drivers…”. Doc. No. 50, p. 8. However, in its motion, Kohler argues that ProDrivers is a vendor of Kohler. Doc. No. 46, p. 7 (“Kohler relied on ProDrivers to supply qualified drivers to transport Kohler cargo.”)

2
In its Answer to Kohler’s Complaint, CST’s negligence counterclaims include ordinary contributory negligence under the doctrine of respondeat superior, negligence per se of both Kohler and McCaleb, negligent training and supervision, and negligent entrustment. Doc. No. 9, pp. 5–9.

3
Kohler relies on this Court’s decision in Romero v. Pro Security, LLC, No. CIV-16-595-R, 2017 WL 2374365, at *2 (W.D. Okla. May 31, 2017) for its argument that Kohler was entitled to rely on ProDrivers’ assessment of McCaleb’s ability to s drive safely. Doc. No. 46, p. 7. However, it is unclear why the parties find it necessary to analyze Romero and whether a direct duty applies to Kohler because the claim in dispute in Romero was for negligent hiring, training and supervision. 2017 WL 2374365, at *1. Here, the parties agreed that CST’s negligent hiring and supervision claim is subject to dismissal because Kohler stipulated to an agency relationship with McCaleb. Doc. No. 46, pp. 4–6. Thus, the negligent hiring and supervision claim is subject to dismissal and the Court need not address Romero’s application to CST’s negligent entrustment claim.

4
McCaleb’s driving record begins with completing truck driving school and spending approximately nineteen months driving for multiple employers. Doc. No. 46, ¶¶ 1–3. During that period, McCaleb hit a stopped vehicle in a parking lot. The accident was preventable but was not “DOT reportable.” Doc. No. 50-1. CST also points to McCaleb’s sleep apnea as evidence that Kohler negligently entrusted him with its cargo. According to deposition testimony, McCaleb’s sleep apnea diagnosis required an annual medical clearance. Doc. No. 50-2, p. 7.

5
CST argues an additional duty exists whereby a commercial motor carrier must “qualify every driver operating commercial motor vehicles on its behalf.” Doc. No. 50, p. 10 (citing 49 C.F.R. § 391.11(a)).

6
McCaleb’s description aligns with 49 C.F.R. § 392.22, which states that
whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder […], the driver shall, […] within 10 minutes, place the warning devices […] in the following manner:
(i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet) from the stopped commercial motor vehicle in the direction of approaching traffic;
(ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and
(iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic.
49 C.F.R. § 392.22(b)(1) (i)–(iii) (emphasis added).

2021 WL 1292796

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
Superior Court of Delaware.
LEROY COOK, JR., and KIMBERLY A. COOK Plaintiffs,
v.
J AND V TRUCKING COMPANY, INC., and J & V TRUCKING, INC., Jointly and Severally, Defendants.
C.A. No. N17C-03-208 JRJ
|
Date Submitted: February 8, 2021
|
Date Decided: April 7, 2021
Upon Defendant J and V Trucking Company, Inc.’s Motion for Summary Judgment: GRANTED IN PART AND DENIED IN PART.
Attorneys and Law Firms
Leroy A. Tice, Esquire, and Charles H. Toliver, IV, Esquire, Leroy A. Tice, Esquire, P.A., 1203 North Orange Street, 2nd Floor Wilmington, Delaware 19801, Attorneys for Plainitffs.
Tiffany M. Shrenk, Esquire, MacElree Harvey, Ltd., 5721 Kennett Pike, Centreville, Delaware 19807; Attorney for Defendant J and V Trucking Company, Inc.
Amy M. Taylor, Esquire, Heckler & Fabrizzio, 800 Delaware Avenue, Suite 200, Wilmington, Delaware 19801, Attorney for Defendant J and V Trucking Company, Inc.

MEMORANDUM OPINION
Jan R. Jurden, President Judge
*1 Jurden, P.J.

I. INTRODUCTION
After a minor traffic collision, a physical altercation ensued between Plaintiff Leroy Cook, Jr. (“Cook”), and Cruz Garcia, a truckdriver formerly employed by Defendant J and V Trucking Company, Inc.1 Cook sued Garcia and Defendant for several torts. As the case developed, Garcia was dismissed, and the Court allowed Cook to amend his complaint to add his wife, Plaintiff Kimberly Cook (“Ms. Cook”), so that she could assert a loss of consortium claim.2 Pending before the Court is Defendant’s Motion for Summary Judgment. For the reasons explained below, Defendant’s Motion is GRANTED IN PART AND DENIED IN PART.

II. BACKGROUND

A. Factual Background
On or about February 24, 2014, Defendant hired Cruz Garcia as a truck driver.3 At the time he was hired, Garcia signed a document informing him that “fighting” or using “threatening or abusive language” were “reasons for immediate termination of employment.”4

On May 26, 2016, Cook was involved in a minor traffic collision with Cruz Garcia.5 Garcia was Defendant’s employee at the time of the collision.6 Cook and Garcia exited their vehicles and engaged in a physical altercation.7 Ultimately, Cook was found at fault for the traffic collision,8 and Garcia was arrested and faced criminal charges because of the physical altercation.9 Defendant no longer employs Garcia.10

B. Procedural History
*2 On November 30, 2020, Defendant filed the instant Motion for Summary Judgment challenging Plaintiffs’ claims based on the doctrine of respondeat superior and Plaintiffs’ negligent hiring, retention, and supervision claim.11 Briefing finished on February 2, 2021.12 On March 17, 2021, the Court issued an order stating that, for purposes of the instant Motion, it would consider the criminal dockets that Plaintiffs attached to their Responding Brief, even though those dockets were produced after the discovery cutoff.13

III. STANDARD OF REVIEW
Summary judgment is appropriate only if the moving party shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”14 “When the evidence shows no genuine issues of material fact in dispute, the burden shifts to the nonmoving party to demonstrate that there are genuine issues of material fact that must be resolved at trial.”15 “All facts are viewed in a light most favorable to the non-moving party.”16

IV. DISCUSSION

A. Respondeat Superior
Respondeat superior is a doctrine of agency law under which “an employer is subject to liability for torts committed by employees while acting within the scope of their employment.”17 To determine whether an employee acted within the scope of employment, the Court consults § 228 of the Restatement (Second) of Agency.18 If the Court finds that the employee did not act within the scope of employment, then the Court consults the exceptions in § 219.19 “When § 219’s exceptions apply, an employer can be held responsible under respondeat superior even if § 228 is not satisfied.”20

1. Garcia Was Not Acting Within the Scope of Employment When He Engaged in a Physical Assault with Cook
Section 228 provides:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.21
*3 Here, Defendant argues that Garcia was not acting within the scope of employment pursuant to § 228 when he engaged in a physical altercation with Cook after the vehicle collision.22 Defendant asserts that it hired Garcia as a truck driver, so Defendant expected Garcia merely to transport goods.23 Next, Defendant points out that it prohibited Garcia from using physical force or threatening words or conduct, so Garcia could not have been motivated by serving Defendant.24 Defendant also denies that it could have expected Garcia to use force in this situation because he had not exhibited violence or committed a disciplinary infraction while employed by Defendant.25

Plaintiffs agree that Defendant hired Garcia as a truck driver for the purpose of transporting goods but deny the remainder of Defendant’s argument.26 Plaintiffs also emphasize that, for purposes of § 228(1)(d), Defendant need not have expected the particular conduct but only the risk of general wrongdoing.27 Lastly, Plaintiffs argue that whether an employee acted within the scope of employment is usually a jury question.28

The Court finds that Garcia was not acting within the scope of employment when he engaged in a physical altercation with Cook. The elements in § 228(1) are conjunctive; each must be met to find that an employee was acting within the scope of employment.29 Here, Plaintiffs concede that § 228(1)(a) has not been met. Specifically, Plaintiffs “admit[ ] that Mr. Garcia was hired as a long-distance tractor-trailer driver to haul mushrooms from Pennsylvania to Massachusetts.”30 So Garcia was not engaging in the kind of conduct that he was employed to perform. In addition, the record shows that Garcia signed a document that provides, in boldface type, that fighting is a ground for immediate termination of employment.31 Accordingly, the Court finds that Garcia was not acting within the scope of employment pursuant to § 228, so the Court will move on to the exceptions in § 219.

2. Plaintiffs Cannot Satisfy Any of the Exceptions in § 219(2)
Section 219 provides:
(1) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.32
Defendant argues that there is no evidence in the record to support any of the exceptions in § 219(2).33 As for § 219(2)(a) in particular, Defendant asserts that there is evidence that it prohibited Garcia from engaging in forceful conduct.34 Plaintiffs respond that the record shows that Defendant “acted negligently or recklessly in [its] hiring, supervision[,] and training of Mr. Garcia”—invoking the language of § 219(2)(b).35

*4 It appears that Plaintiffs are attempting to “double dip” their negligent hiring and supervision claim. They assert negligent hiring and supervision as a direct claim against Defendant in their Amended Complaint.36 But now, they also seek to use that claim as a basis for imposing vicarious liability against Defendant through the doctrine of respondeat superior.37 The Court finds that Plaintiffs cannot do so.

Delaware law recognizes that the Restatement (Second) of Agency embraces negligent hiring and supervision claims—but in § 213, not in § 219.38 And the Court has suggested that § 219(2)(b) in particular does not apply to negligent hiring and supervision claims.39 Doe v. Bicking involved a negligent hiring and supervision claim, but the Court analyzed that claim separately from its discussion of respondeat superior, § 228, and § 219.40 And when the Court discussed the exceptions in § 219, it found that only § 219(2)(c) and § 219(2)(d) had “potential applicability.”41 The Court did not find that the presence of a negligent hiring and supervision claim made § 219(2)(b) potentially applicable. For these reasons, the Court finds that Plaintiffs cannot use their negligent hiring and supervision claim to meet the exception in § 219(2)(b). As for the other exceptions in § 219(2), Plaintiffs have neither argued nor shown that there is a genuine issue of material fact.

In sum, the Court finds that Garcia was not acting within the scope of employment pursuant to § 228, that Plaintiffs cannot use their negligent hiring and supervision claim to avail themselves of § 219(2)(b), and that Plaintiffs have not shown a genuine issue of material fact with respect to the other exceptions in § 219(2). Accordingly, the Court grants summary judgment as to Count IV of the Amended Complaint (respondeat superior). And because respondeat superior is the means by which Plaintiffs seeks to hold Defendant liable for tortious assault, tortious battery, and intentional infliction of emotional distress, the Court grants summary judgment as to Counts I, II, and III of the Amended Complaint as well.

B. Negligent Hiring, Retention, and Supervision
*5 “Under Delaware law, an employer is liable for negligent hiring and supervision in … ‘[giving] improper or ambiguous orders or in failing to make proper regulations, or in [employing] improper persons involving risk of harm to others, or in [supervising] the employee’s activity.’ ”42 “The negligence is based upon a failure to exercise the care that a reasonably prudent person would exercise under the circumstances.”43

Defendant argues that a jury could not find it negligent based on the evidence in the record.44 According to Defendant, nothing in the record shows that Garcia had any incidents of misconduct from the date he was hired (on or about February 24, 2014) to the date of the physical altercation (May 16, 2016).45 Nor is there any evidence, Defendant continues, that Garcia had been terminated by an employer prior to his joining Defendant.46 Lastly, Defendant contends that the record shows that Garcia had the proper credentials when he was hired and that he was made to sign a form indicating that Defendant prohibited him from fighting.47

Plaintiffs respond that there is evidence in the record that creates a genuine issue of material fact as to whether Defendant was negligent in hiring Garcia.48 Specifically, Plaintiff avers that Michael Cutone, “who hired Mr. Garcia, did not inquire, investigate[,] or research Mr. Garcia’s employment history, criminal past or motor vehicle record.” Rather, according to Plaintiffs, Cutone was concern only with whether Garcia “possessed a valid commercial driver’s license and a ‘TWIC’ card, the requisite baseline for hauling long distance.”49 Plaintiffs also point to various documents that they attached to their Responding Brief, which include incident reports from the Delaware Transit Corporation—a previous employer of Garcia’s—and criminal dockets that purport to show Garcia’s convictions for Simple Assault, Third-Degree Assault, and Unlawful Sexual Contact.50 Such documents, Plaintiffs believe, constitute “evidence of misconduct that would put the Defendants on notice of Mr. Garcia’s violent propensities in his past employment or personal life.”51

Defendant makes three points in reply. First, Defendant asserts that Plaintiffs have not produced an expert to establish the standard of care that an employer must meet when the hiring or supervising truck drivers.52 Second, Defendant maintains that Cutone did not perform his own background check before hiring Garcia because he believed that Garcia had undergone background checks by the federal government (to obtain his driving credentials) and by the insurance company.53 Third, Defendant argues that Garcia’s criminal history does not provide a basis for determining that Defendant was negligent in hiring or supervising Garcia.54 Defendant avers that Garcia’s most recent conviction was about nine years before he was hired, and he had no incidents of misconduct in the first two years of his employment with Defendant.55

*6 As an initial matter, the Court finds that Plaintiffs need not produce an expert to establish the standard of care governing the hiring and supervision of truck drivers. Defendant correctly notes that expert testimony is necessary to establish “the standard of care applicable to a professional.”56 A professional “is one who possesses a certain skill or other specialized knowledge that the average lay juror does not possess.”57 Common examples of professionals include physicians, attorneys, architects, and engineers.58 But it is sometimes difficult to distinguish between a professional and a non-professional.

Fortunately, the Court’s decision in White v. Mood provides guidance. In White, the Court contrasted the home inspector involved in that case with the property manager involved in a previous case, Vohrer v. Kinnikin:
In Vohrer v. Kinnikin, the court concluded that a property manager, whose duties included arranging and directing repair work, was not a professional in the sense that they were held to an elevated standard of care. The court reasoned that Kinnikin did not receive any specialized training in order to work as an apartment maintenance worker and, as a result of that determination, expert testimony was not required to establish the standard of care applicable to Kinnikin. Unlike the defendant in Vohrer, home inspectors are required, by Delaware law, to undergo specialized training and continue their education to maintain their licenses.59
Here, Cutone is more like the non-professional property manager in Vohrer than the professional home inspector in White. For example, nothing in the record suggests that Delaware law requires Cutone to undergo specialized training or continuing education to hire and supervise truck drivers. And Cutone’s responsibility of supervising truck drivers is similar to the property manager’s responsibility of “arranging and directing repair work.”60 Because Cutone is more like the non-professional property manager in Vohrer than the professional home inspector in White, the Court finds that Cutone is not a professional for purposes of establishing the standard of care governing the hiring and supervision of truck drivers. Thus, Plaintiffs need not produce an expert; the jury will determine the appropriate standard of care.61

The next issue is whether Cutone’s reliance on other entities excused Cutone from performing his own background check on Garcia. In essence, this is a question of whether Defendant—acting through Cutone—breached its standard of care. Because the jury will determine Defendant’s standard of care, it will also determine whether Defendant breached that standard of care in deciding not to perform an independent background check on Garcia.62

*7 Finally, reasonable minds may differ about whether Garcia’s criminal convictions are too old to put Defendant on notice of Garcia’s potential issues with violence. Although Defendant believes that “Mr. Garcia’s criminal history is insufficient to support knowledge of the need to control Mr. Garcia,” the Court cannot make this determination as a matter of law.63 Accordingly, the Court finds that there is a genuine issue of material fact as to whether Defendant was negligent in hiring and supervising Garcia, so the Court denies summary judgment as to Count V of the Amended Complaint.

C. Loss of Consortium
This leaves Count VI of the Amended Complaint, which is Ms. Cook’s loss of consortium claim. Defendant recognizes that this claim is “a derivative of Plaintiff[s’] causes of action.”64 Hence, Defendant does not contest the loss of consortium claim per se. Because the Court finds that Plaintiffs’ negligent hiring and supervision claim survives the instant Motion for Summary Judgment, the Court finds that the derivative loss of consortium claim survives as well.

V. CONCLUSION
In sum, the Court finds that Plaintiffs cannot invoke the doctrine of respondeat superior to establish Defendant’s liability. Pursuant to § 228 of the Restatement (Second) of Agency, Garcia was not acting within the scope of employment when he engaged in a physical altercation with Cook, and Plaintiffs cannot satisfy any of the exceptions in § 219. But the Court finds that there is a genuine issue of material fact as to whether Defendant was negligent in hiring and supervising Garcia. Accordingly, Defendant’s Motion for Summary Judgment is GRANTED as to Counts I, II, III, and IV of the Amended Complaint and DENIED as to Counts V and VI of the Amended Complaint.

IT IS SO ORDERED.

All Citations
Not Reported in Atl. Rptr., 2021 WL 1292796

Footnotes

1
Cook named two corporate defendants in his original Complaint, and both remain in this case. See generally Compl. (naming Cruz Garcia, J and V Trucking Company, Inc., and J & V Trucking Inc. as defendants) (Trans. ID. 60360174). J & V Trucking Inc. remains unrepresented. The Court assumes that J and V Trucking Company, Inc. and J & V Trucking Inc. refer to the same corporate entity. Accordingly, the Court uses the singular “Defendant,” which refers only to J and V Trucking Company, Inc., the represented entity.

2
On October 10, 2020, Cook and Ms. Cook (collectively, “Plaintiffs”) filed a six-count amended Complaint (“Amended Complaint”) against Defendant. See generally First Amended Complaint (Trans. ID. 66008889). Plaintiffs assert the following claims: tortious assault (Count I), tortious battery (Count II), and intentional infliction of emotional distress (Count III) on the doctrine of respondeat superior (Count IV); negligent hiring, retention, and supervision of Garcia (Count V); and loss of consortium (Count VI). Id. at 2–6, ¶¶ 10–39.

3
See Defendant J and V Trucking Company, Inc.’s Motion for Summary Judgment (“Opening Brief”), Exhibit B (Trans. ID. 66145588). Garcia possessed a commercial driver’s license and a Transportation Worker Identification Credential (“TWIC”) when he was hired. Opening Brief, Exhibit C, at 23:16–23 (Trans. ID. 66145588).

4
Opening Brief, Exhibit D (Trans. ID. 66145588).

5
Plaintiffs’ Response in Opposition to Defendants’ Summary Judgment Motion (“Responding Brief”), Exhibit A, at 36:14–19 (Trans. ID. 66145588).

6
See Opening Brief, Exhibit A, No. 38 (Trans. ID. 66145588).

7
See id.

8
Opening Brief, Exhibit E, at 47:6–13 (Trans. ID. 66145588).

9
Opening Brief, Exhibit A, No. 25 (Trans. ID. 66145588).

10
Opening Brief, Exhibit A, No. 43 (Trans. ID. 66145588).

11
See generally Opening Brief (Trans. ID. 66145588).

12
On January 25, 2021, Plaintiffs filed their Responding Brief. See generally Responding Brief (Trans. ID 66280763). On February 8, 2021, Defendant filed its Reply Brief. See generally Defendant J and V Trucking Company, Inc.’s Reply in Support of Motion for Summary Judgment (“Reply Brief”) (Trans. ID. 66318828).

13
See generally Order (Trans. ID 66428844); Cook v. J and V Trucking Company, Inc., 2021 WL 1016450 (Del. Super. Ct. Mar. 17, 2021).

14
Super. Ct. Civ. R. 56(c).

15
Tolliver v. U.S. Bank Nat’l Ass’n, 2020 WL 2095830, at *1 (Del. Apr. 29, 2020) (internal quotation marks omitted) (quoting Grabowski v. Mangler, 938 A.2d 637, 641 (Del. 2007)).

16
Preston Hollow Capital LLC v. Nuveen LLC, 2020 WL 7365808, at *4 (Del. Super. Ct. Dec. 15, 2020) (citing Burkhart v. Davies, 602 A.2d 56, 58–59 (Del. 1991)).

17
Verrastro v. Bayhospitalists, LLC, 208 A.3d 720, 724 (Del. 2019) (internal quotation marks and brackets omitted) (first quoting Restatement (Third) of Agency § 2.04 (2005); and then citing Restatement (Second) of Agency § 219 (1958)).

18
Sherman v. State Dep’t of Pub. Safety, 190 A.3d 148, 154 (Del. 2018) (citations omitted) (noting that “§ 228 … has been adopted as Delaware law”).

19
Id.

20
Id.

21
Restatement (Second) of Agency § 228 (1958).

22
Opening Brief, at 4, ¶ 7 (Trans. ID. 66145588).

23
Id.

24
Id.

25
Id.

26
Id.

27
Id. at 4, ¶ 7 (citing Sherman v. State Dep’t of Pub. Safety, 190 A.3d 148, 154 (Del. 2018)).

28
Id. (citing Sherman, 190 A.3d at 170).

29
See Sherman, 190 A.3d at 174 (suggesting that Doe would not have prevailed under § 228 because her complaint did not allege a violation of the “Motivation Prong” of § 228 (i.e., § 228(1)(c)).

30
Responding Brief, at 3, ¶ 7 (Trans. ID 66280763).

31
Opening Brief, Exhibit D (Trans. ID. 66145588).

32
Restatement (Second) of Agency § 219 (1958).

33
Opening Brief, at 5, ¶ 9 (Trans. ID. 66145588).

34
Id.

35
Responding Brief, at 4, ¶ 9 (Trans. ID 66280763).

36
First Amended Complaint, at 5–6, ¶¶ 25–35 (Trans. ID. 66008889)

37
This “double dipping” appears to be a recent development. The allegations in the respondeat superior section of the Amended Complaint make no mention of Defendant’s alleged negligence in hiring Garcia. Id. at 4, ¶¶ 21–24.

38
See Simms v. Christina School Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004) (citing Knerr v. Gilpin, Van Trump & Montgomery, Inc., 1998 WL 40009 (Del. Super. Ct. Apr. 8, 1988); Restatement (Second) of Agency § 213 (1958)); A.R. Anthony & Sons v. All-State Investigation Sec. Agency, Inc., 1983 WL 881979, at *2 (Del. Super. Ct. Sept. 27, 1983) (citations omitted); see also Restatement (Second) of Agency § 213, cmt. d (1958) (citation omitted) (“Agent dangerous. The principal may be negligent because he has reason to know that the servant or other agent, because of his qualities, is likely to harm others in view of the work or instrumentalities entrusted to him. If the dangerous quality of the agent causes harm, the principal may be liable under the rule that one initiating conduct having an undue tendency to cause harm is liable therefor.”).

39
See generally Doe v. Bicking, 2020 WL 374677 (Del. Super. Ct. Jan. 22, 2020).

40
Id. at *5; id. at *6–13.

41
Id. at *7.

42
Doe v. Bicking, 2020 WL 374677, at *5 (Del. Super. Ct. Jan. 22, 2020) (quoting Simms v. Christiana School Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004)).

43
Simms v. Christiana School Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004) (citation omitted).

44
Opening Brief, at 6, ¶ 11 (Trans. ID. 66145588).

45
Opening Brief, at 6, ¶ 11 (Trans. ID. 66145588).

46
Id.

47
Id.

48
Responding Brief, at 5–6, ¶ 11 (Trans. ID. 66145588).

49
Id.

50
Id. at 4–5, ¶ 9; id. at 6, ¶ 11. See generally id., Exhibit B; id., Exhibit C. In its Reply Brief, Defendant argued that Plaintiff should not be allowed to rely on the criminal dockets because they were produced after the discovery cutoff. Reply Brief, at 1–2, ¶ 2 (Trans. ID. 66318828). On March 17, 2021, the Court issued an order clarifying that it would consider these criminal dockets in ruling on the instant Motion for Summary Judgment. See generally Order (Trans. ID 66428844); Cook v. J and V Trucking Company, Inc., 2021 WL 1016450 (Del. Super. Ct. Mar. 17, 2021).

51
Responding Brief, at 6, ¶ 11 (Trans. ID. 66145588).

52
Reply Brief, at 4–5, ¶¶ 6–7 (Trans. ID. 66318828).

53
Id. at 4, ¶ 5 (citing Responding Brief, Exhibit A, at 23:16-23; 24:7-12; id. at Id. at 22:6-15 (Trans. ID. 66145588)).

54
Id. at 2–3, ¶ 3.

55
Id.

56
Id. at 4, ¶ 6 (internal quotation marks omitted) (quoting Seiler v. Levitz Furniture Co. of E. Region, Inc., 367 A.2d 999 (Del. 1976)).

57
White v. Mood, 2020 WL 996736, at *6 (Del. Super. Ct. Mar. 2, 2020) (internal quotation marks omitted) (quoting Vohrer v. Kinnikin, 2014 WL 1203270, at *3 (Del. Super. Ct. Feb. 26, 2014)).

58
See Seiler v. Levitz Furniture Co. of Eastern Region, Inc., 367 A.2d 999, 1007 (Del. 1976) (citations omitted).

59
White, 2020 WL 996736, at *6 (citing Vohrer v. Kinnikin, 2014 WL 1203270, at *3 (Del. Super. Ct. Feb. 26, 2014)).

60
Id.

61
Ridgeway v. Acme Mkts., Inc., 2018 WL 4212140, at *3 (Del. Sept. 5, 2018) (citation omitted) (“The jury typically decides the standard of care and its breach when the facts are within their common knowledge. But, when the standard of care requires resort to technical or other complex principles, the plaintiff must establish the standard of care through expert testimony.”); see also Roberts v. Daystar Sills, Inc., 2008 WL 8203205, at *2 (Del. Super. Ct. Dec. 8, 2008) (citing Delmarva Power & Light v. Stout, 380 A.2d 1365 (Del. 1977)) (“When a judicial decision or legislative enactment has not established the standard of care, the determination of that standard must be made by the jury.”).

62
Ridgeway, 2018 WL 4212140, at *3 (citation omitted).

63
Reply Brief, at 3, ¶ 3 (Trans. ID. 66318828).

64
Id. at 2, ¶ 4. (citation omitted).