Beardsley v. Jamark Constr., LLC
Superior Court of Connecticut, Judicial District of Waterbury At Waterbury
July 24, 2018, Decided; July 24, 2018, Filed
CV176037671S

Reporter
2018 Conn. Super. LEXIS 1498 *
Tara Beardsley, Executrix of the Estate of Ruth Grant v. Jamark Construction, LLC
Notice: THIS DECISION IS UNREPORTED AND MAY BE SUBJECT TO FURTHER APPELLATE REVIEW. COUNSEL IS CAUTIONED TO MAKE AN INDEPENDENT DETERMINATION OF THE STATUS OF THIS CASE.

MEMORANDUM OF DECISION RE MOTION TO STRIKE #109 INTRODUCTION
On December 14, 2017, the plaintiff, Tara Beardsley, Executrix of the Estate of Ruth Grant, commenced a six-count action against the defendant, Jamark Construction, LLC, alleging that the defendant’s dump truck fatally injured Ruth Grant in her vehicle at the intersection of Main Street and Old Waterbury Road in Southbury on May 13, 2016. The complaint contains six counts, count one alleging negligence, count two alleging negligent entrustment, count three alleging negligent hiring, count four alleging negligent supervision, count five alleging negligent training and count six alleging negligent retention.
On February 28, 2018, the defendant filed a motion to strike counts two through six of the complaint on the ground that the counts “fail to allege [facts] with adequate specificity” to state legal recognizable claims and instead “allege only” impermissible “conclusions of law.” On March 28, 2018, the plaintiff filed a memorandum of law in opposition to the motion. Thereafter, on May 14, 2018, the plaintiff filed an amended complaint pursuant to the court’s order to add William [*2] R. Foley III as a defendant to this action. While there is a split of authority in the Superior Court on whether the court may allow the plaintiff to amend the counts of its complaint that are subject to a motion to strike during the pendency of that motion, this court permits the amendment of those counts and applies the defendant’s motion to strike to counts two through six of the amended complaint.1
The plaintiff alleges the following facts to her amended complaint. On May 13, 2016, the defendant, William R. Foley III, an “agent and/or employee” of the defendant, Jamark Construction, LLC, was driving a dump truck north on Main Street in Southbury, but “ran a red Light” and struck and fatally injured Ruth Grant, who was operating her vehicle west on Old Waterbury Road in Southbury going through the green light at this intersection. Count one of the amended complaint alleges negligence against Jamark Construction for its inspection and maintenance of the dump truck and for allowing Mr. Foley to negligently operate that dump truck at the time of the accident. The count alleges the defendant was negligent in its hiring, training, and supervision of Mr. Foley. [*3] It also alleges that the defendant “aid[ed] . . . abbett[ed] and encourage[ed] its agent and/or employee to violates rules of the Federal Motor Vehicle Carrier Safety Regulations.”
Counts two through six incorporate the allegations of the first count into counts. Count two alleges negligent entrustment against Jamark Construction, LLC by additionally alleging that Jamark Construction, LLC negligently entrusted a dump truck to Mr. Foley “when they knew or should have known of Foley’s inexperience and/or incompetence as a truck driver, his background and his negligent driving habits.” The count alleges that the defendant’s negligent entrustment of its vehicle to Mr. Foley was a “substantial factor” in Ms. Grant’s death. Count three through six repeat the allegations that Jamark Construction, LLC “knew or should have known of Foley’s inexperience and/or incompetence as a truck driver, his background and his negligent diving habits,” and alleges that Jamark Construction, LLC negligently hired (count three), supervised (count four), trained (count five), and retained (count six) Mr. Foley. Counts seven and eight are alleged against Mr. Foley and are not subject to the motion to strike. The [*4] plaintiff seeks monetary damages in her prayer for relief.
II. DISCUSSION
“The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “[T]he moving party admits all facts well pleaded.” RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). “If facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
“[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court . . . [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint [*5] challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” (Internal quotation marks omitted.) Santoroso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
A. Negligent Entrustment
The issue is whether the plaintiff has pleaded sufficient facts to allege a claim of negligent entrustment against Jamark Construction, LLC argues that the plaintiff “fails to allege sufficient supporting facts to establish a viable cause of action” of negligent entrustment in count two. Specifically, the plaintiff “does not identify [facts as to] what [Mr. Foley’s negligent driving] habits” were and that those habits were “known or should have known” that Foley “was incompetent to drive a motor vehicle safely.”
The plaintiff counters that “courts have not required the plaintiff, as the defendant argues, to allege facts that show specific driving habits of the party to whom the vehicle was entrusted.” Instead, [*6] the plaintiff refers to the decision of Morillo v. Georges, Superior Court, judicial district of Hartford, Docket No. CV 15-6058761-S (December 31, 2015, Peck, J.) [61 Conn. L. Rptr. 541, 2015 Conn. Super. LEXIS 3191] for the proposition that allegations that an employer “failed to conduct a background check” into “driving history,” “contact former employers, ” and “failed to require [the employee] perform a “driving test” were sufficient to plead a negligent entrustment cause of action absent specific driving habits on behalf of the employee. The plaintiff contends that she has alleged facts in support of the Morillo factors in count one of the complaint, which was incorporated by reference, into count two. The plaintiff argues the additional allegations about Jamark’s failure to train and the vehicle’s defective condition bolster her negligent entrustment claim. Finally the plaintiff contends that the present case is factually or legally distinguishable from the authority relied upon by Jamark Construction, LLC in support of its motion to strike.
“The Connecticut Supreme Court first recognized a cause of action for negligent entrustment of an automobile in Greeley v. Cunningham, 116 Conn. 515, 165 A. 678 (1913) . . . Superior Court cases applying the negligent entrustment doctrine established in Greely note that Greely [*7] adopted the approach set forth in the Restatement of Torts . . . Section 390 of the Restatement (Second) of Torts provides that [o]ne who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience. Or otherwise to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them . . . More specifically, the Superior Court has determined that an entrustment can be considered negligent only if (1) there is actual or constructive knowledge that the entrustee is incompetent or has a dangerous propensity; and (2) the injury resulted from that incompetence or propensity . . . Actual knowledge is based on incompetency or a failure to appreciate some visible or demonstrable impairment . . . whereas constructive knowledge . . . is based on facts that are openly apparent or readily discernible . . . Whether actual or constructive, knowledge is the essential element of a cause of action for negligent entrustment.” (Citation omitted; internal quotation marks omitted.) Soto v. Bushmaster Firearms International, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-15-6048103-S, 2016 Conn. Super. LEXIS 2626 (October 14, 2016, Bellis, J.). [*8]
“Within Connecticut and other Restatement states, two general lines of negligent entrustment cases have emerged. The first line of cases involves the entrustment of an automobile to an incompetent driver, who then drives the vehicle in a dangerous way and injures another. In the automobile context, it has been stated that Connecticut law is clear that liability can only be imposed if the defendant entrusts the vehicle to the driver . . . [U]nder more attenuated circumstances, there remains the requirement that the original entrustor have knowledge of the entrustee’s propensities that caused harm to the plaintiffs. Other cases further support the conclusion that negligent entrustment claims must fail if the defendant lacked knowledge of the entrustee’s propensities . . . The second line of negligent entrustment decisions involves the entrustment of something other than a vehicle in a circumstance where an entrustor should know that there is cause why a chattel ought not to be entrusted to another.” (Citations omitted, internal quotation marks omitted.) [*9] Id.
In the present case, the plaintiff incorporates paragraphs one through twenty-seven of count one into count two, which alleges negligent entrustment. In paragraph 24 subparagraphs rr of the second count, the plaintiff alleges that Jamark Construction, LLC “fail[ed] to check its employee’s previous three-year driver history check with previous employers within the past 3 years minimum, check medical/physical qualifications, drug screening, continuing obligations with annual reviews/certifications, road test or equivalent and fail[ed] to have its employees demonstrate competence” in violation of 49 C.F.R. Section 391.
The plaintiff is correct that the court in Morillo v. Georges, supra, Superior Court, Docket No. CV-15-6058761, 2015 Conn. Super. LEXIS 3191, found that allegations that the employer failed to conduct adequate background checks and driving tests may be “sufficient to imply that driver’s status was readily discoverable.” By extension, the Morillo court in finding those factually allegations legally sufficient, in essence may be concluding that the plaintiff alleged that the employer had constructive notice of the driver’s propensities but chose to ignore that constructive notice. Nevertheless, the Morillo court found that “although [the] bare [*10] bones factual allegations are sufficient by implication to survive a motion to strike, at some point in the court of this litigation the plaintiffs herein will undoubtedly be required to present a more specific evidentiary foundation for their allegations of . . . negligent entrustment by the defendant . . .” Accordingly, the plaintiff’s allegations in paragraph 24 subparagraph rr are legally sufficient to allege that Jamark Construction, LLC had constructive notice of Foley’s driving propensities but chose to ignore that constructive notice by failing to check the appropriate background and driving history before allowing Foley to drive its vehicle. Such allegations are not conclusory. For these reasons, count two alleging negligent entrustment is legally sufficient under Morillo and the court denies the motion as to count two of the amended complaint.
B. Negligent Hiring, Supervision and Retention
The court next addresses whether the plaintiff has pleaded sufficient facts to state claims against Jamark Construction, LLC of negligent hiring in count three, negligent supervision in count four and negligent retention in count six, of the amended complaint, or whether those claims are [*11] conclusory. Jamark Construction, LLC argues that the plaintiff fails to plead sufficient facts to support claims for negligent hiring in count three, negligent supervision in count four, negligent retention in count six. The corporation argues that the plaintiff “has alleged no facts whatsoever that, if proven, would support a claim for negligent hiring, supervision and/or retention.” “[T]here is nothing in the Complaint that would, if proven, establish that Foley was somehow incompetent to perform the job specified, nor are any facts pleaded to establish that Jamark had the occasion to know of any incompetence on the part of Foley.” “The complete absence of any specific supporting allegations or any allegation of fact that would establish the foreseeability of defendants’ employees’ commission of an injury-causing tort is fatal to the Plaintiff’s claims for negligent hiring and retention.” Jamark Construction, LLC further argues that the pleaded allegations are conclusory.
“Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of (foreseeability). The ultimate test of the existence of the duty [*12] to use care is found in the foreseeability that harm may result if it is not exercised . . . It is well settled that defendants cannot be held liable for their alleged negligent hiring, training, supervision or retention of an employee accused of wrongful conduct unless they had notice of said employee’s propensity for the type of behavior causing the plaintiff’s harm.” (Citations omitted; footnote omitted; internal quotation marks omitted.) Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV-0100456879-S, 2004 Conn. Super. LEXIS 1924 (July 16, 2004, Arnold, J.). “By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position knowing what he knew or should have known anticipate that harm of the general nature of that suffered was likely to result[.]” (Citations omitted; internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 610, 942 A.2d 296 (2008). Beside the element of foreseeability, the additional elements necessary to support the claims of negligent hiring, negligent supervision and negligent retention are addressed [*13] below.
1. Negligent Hiring
“The tort of negligent hiring ‘extends to any situation where a third party is injured by an employer’s own negligence in failing to select an employee fit or competent to perform the services of employment.” Loglisci v. Stamford Hospital, Superior Court, judicial district of Stamford, Docket No. CV-08-5009309-S, 2011 Conn. Super. LEXIS 387 (February 27, 2011, Jennings J.T.R.) (dismissing how negligent hiring, supervision and retention are separate causes of action) citing Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982) (for the elements of negligent hiring). “[On the context of negligent hiring, courts generally rule that an employer cannot be held liable for the conduct of its employees that injure a third party if the employer could not have foreseen that the employee would engage in such conduct.” (Citation omitted, internal quotation marks omitted.) Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV-0200466339-S, 2007 Conn. Super. LEXIS 2500 (April 2, 2007, Licari, J.). “Our Supreme Court has interpreted this foreseeability requirement as one in which the employee knew or should have known of the employee’s propensity to engage in the alleged harmful conduct.” (Citation omitted, internal quotation marks omitted.) [*14] MoriIlo v. Georges, supra Superior Court, Docket No, CV-15-6058761-S, 2015 Conn. Super. LEXIS 3191.
In the present case, the plaintiff responds that count three is a legally sufficient pleading for negligent hiring against Jamark Construction, LLC. In support of its argument, the plaintiff references some Superior Court decisions which declined to strike negligent hiring counts where the plaintiff had alleged that the employer allowed the employee to operate a vehicle without first having conducted a background check or driving test. Like the negligent entrustment claim, the court in Morillo v. Georges, supra, Superior Court, Docket No. CV-15-0058761-S, 2015 Conn. Super. LEXIS 3191 “[c]onstru[ed] [those] allegations [in the negligent hiring claim] in the light most favorable to [the plaintiff], including those fact necessarily implied therefore,” and concluded that the allegations that the employer performed no driving test or adequate background check on the driver meant “the plaintiff [had] sufficiently alleged that [the employer] knew or should have known that its driver . . . was not fit or competent to operate a taxi-cab that pre-existed his hiring by [the employer].” Accordingly, the current plaintiff’s allegations that in paragraph 24 subparagraph rr that Jamark Construction, LLC failed [*15] to conduct a driving or adequate background checks are legally sufficient to imply that the employer had constructive knowledge of Foley’s fitness but chose to ignore it. Thus, the court finds that count three is legally sufficient in pleading Jamark Construction, LLC’s constructive knowledge of Foley’s fitness and disregard of the same and the motion to strike count three is denied.
2. Negligent Supervision
“Under Connecticut law, an employer may be liable for the negligent supervision of employees.” Seguro v. Cummiskey, 82 Conn. App. 186, 191, 844 A.2d 224 (2004). “In order to plead a cause of action sounding in negligent supervision, a plaintiff must plead injury by an employee whom the defendant had a duty to supervise; failed to supervise and whom the defendant knew or should have known would cause the injury.” (Citation omitted; internal quotation marks omitted.) Andreoni v. Forest Enterprises, Inc., Superior court, judicial district of Stamford, Docket No. CV 07-6000743-S, 2010 Conn. Super. LEXIS 1047 (April 21, 2010, Brazzel-Massaro, J.).
In the present case, the plaintiff responds that count four is legally sufficient in pleading a negligent supervision count against Jamark Construction, LLC. The plaintiff also references Ramirez v. Dietrich, Superior Court, judicial district of Waterbury, Docket No. CV-14-6024621-S, 2017 Conn. Super. LEXIS 378 (March 3, 2017) [*16] for the proposition that factual allegations, according to the plaintiff, in support of allegations that employers failed to advise instruct and/or supervise their respective employees in connection with how and when to operate tractor trailer trucks during snow storms were sufficient to allege a cause of action for negligent supervision. The plaintiff contends that she has alleged sufficient facts, in her negligent supervision count including the factual allegation that Jamark failed to investigate Foley’s background or to train him in the operation of the dump truck and failed to supervise his use of the defective out-of-service vehicle.
The court agrees with the plaintiff that count four is legally sufficient in pleading a negligent supervision count against Jamark Construction because it alleges that Jamark Construction, LLC, had a duty to train and supervise Foley in the operation of a dump truck and that defendant knew or should have known that its failure to train and supervise Foley in his operation of the dump truck could cause an injury. The court also notes that under Morillo v. Georges, supra, Superior Court, Docket No. CV-15-0058761-S, 2015 Conn. Super. LEXIS 3191, [*17] Jamark Construction, LLC had constructive knowledge of Foley’s fitness but chose to ignore it when Jamark Construction failed to conduct a driving or adequate background checks on Foley. Accordingly, the plaintiff has sufficiently alleged a negligent supervision count against Jamark Construction because the count alleges that Jamark’s failure to train and supervise Foley in the operation of a dump truck contributed to the motor vehicle accident and the plaintiff alleges facts that it could be foreseeable to Jamark that by failing to conduct a driving test or adequate background checks on Foley that Foley may not be fit to operate a dump truck, but Jamark Construction chose to ignore those factors.
3. Negligent Retention
“The claim of negligent retention has been recognized by Superior Court, but not by the appellate courts of the state . . . It requires a plaintiff to plead and prove that an employer, during the course of employment, became aware of problems that indicate a lack of fitness for the position and the unfitness was likely to cause the sort of harm incurred by the plaintiff[,] and that the employer failed to take action.” (Citation omitted, internal quotation marks omitted.) [*18] Loglisci v. Stamford Hospital, supra, Superior Court, Docket No. CV-08-5009309-S, 2011 Conn. Super. LEXIS 387.
In Lara v. Legionaries of Christ, Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X03-HHD-CV-10-6016974-S, 2011 Conn. Super. LEXIS 2166 (August 30, 2011, Miller, J.), the court declined to strike a negligent retention claim against a parish which employed a priest who was accused of sexually assaulting minors because the plaintiff alleged facts in the complaint that other priests made allegations of other sexual abuse against the priest. Those allegations were sufficient to allege that the parish had knowledge of the priest’s alleged sexual abuse such that a negligent retention claim could survive a motion to strike. Id. See also Doe v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV-11-5035749-S (January 7, 2014, Peck, J.) [58 Conn. L. Rptr. 132, 2014 Conn. Super. LEXIS 1137] (finding the plaintiff alleged the necessary element of foreseeability to withstand a motion to strike a negligent retention claim on that ground where plaintiff alleged “that the defendant Diocese failed to take appropriate steps to investigate and remove Rozini as a priest when [it] learned of his propensity for sexually abusing [minors].” But see, Seda v. Maxim Healthcare Services, Superior Court, judicial district of Hartford, Docket No. CV-07-5010811-S, 2008 Conn. Super. LEXIS 916 (April 8, 2008, Elgo, J.) [*19] (granting motion to strike negligent retention claim because plaintiff did not allege employer “became aware of any problems with [employee] and failed to take steps to remedy the problems or terminate [her] employment”).
In the present case, the plaintiff responds that count six is legally sufficient in pleading a negligent retention claim against Jamark Construction, LLC. The plaintiff argues that her negligent retention claim is legally sufficient because she has alleged numerous deficiencies in Foley’s training and supervision, that he was operating the vehicle while he was unfit and unqualified to do so, that he failed to properly plan and study his routes and that he failed to comply with federal safety regulations and yet Jamark retained him as an employee.
The plaintiff, however, has not alleged in count six that at any time subsequent to Foley’s employment at Jamark Construction, LLC was it actually or constructively aware of problems with Foley that indicated his lack of fitness for his positions as their truck driver. See Clark v. Knochenhauer, Superior Court, judicial district of Middlesex, Docket No. CV-14-6011914-S, 2015 Conn. Super. LEXIS 2816 (November 12, 2015, Aurigemma, J.) [*20] (striking negligent retention claim because “[t]here [was]no reference in the [c]omplaint to [the employee’s] driving during the six years he delivered the paper for the [employer] and therefore, no allegation that [employer] became aware of anything which made [employee] unfit for his position”). Accordingly, the plaintiff has not pleaded sufficient facts to allege the foreseeability element required in a negligent retention claim and the court grants the motion as to count six of the amended complaint alleging negligent retention.
4. Negligent Training
The next issue is whether count five, which includes the caption, negligent training, is legally sufficient cause of action to allege against Jamark Construction, LLC. Jamark Construction, LLC, contends that “negligent training” is not a recognized cause of action upon which relief may be granted and may be a component of a negligent supervision claim. In that case, because the plaintiff failed to state a claim for negligent supervision, count five alleging negligent training, is also legally insufficient. Alternatively, Jamark Construction, LLC argues that negligent training [*21] is already claimed in count one, alleging negligence, and is superfluous. The plaintiff does not address these arguments directly. Instead, the plaintiff references some unreported superior court decisions which declined to strike counts alleging negligent training.
This court agrees with Jamark Construction, LLC that allegations that it negligently trained Foley were alleged in count one, paragraph kk. Because a second allegation that Jamark Construction, LLC negligently trained Foley is duplicative of the negligence allegation in count one, paragraph kk, the court grants the motion to strike count five, captioned negligent training.
CONCLUSION
For the foregoing reasons, the court denies Jamark Construction, LLC’s motion to strike counts two, three, and four of the amended complaint, but the court grants the motion to strike counts five and six of the amended complaint.
THE COURT
Brazzel-Massaro, J.

2018 WL 3677920

United States District Court, D. Minnesota.
Ricardo Gaytan SOTO and Marisol Gaytan Soto, Plaintiffs,
v.
Anthony SHEALEY and Swift Transportation Co. of Arizona, LLC, Defendants.
Civil No. 17-124 (JRT/KMM)
|
Signed 08/02/2018
Attorneys and Law Firms
Brian E. Wojtalewicz, WOJTALEWICZ LAW FIRM, LTD, Post Office Box 123, Appleton, MN 56208, for plaintiffs.
Matthew D. Sloneker, LIND JENSEN SULLIVAN & PETERSON, PA, 901 Marquette Avenue South, Suite 1300, Minneapolis, MN 55402, for defendants.

MEMORANDUM OPINION AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
JOHN R. TUNHEIM, Chief Judge
*1 This diversity case is a personal-injury action brought by Ricardo and Marisol Gaytan Soto against Anthony Shealey and Swift Transportation Company of Arizona, LLC (“STC”). Shealey was driving a semi truck that overturned on Interstate 90 when he tried to avoid hitting six deer. Mr. Soto was driving a sedan that collided with the overturned trailer. The Sotos assert a negligence claim against Shealey (Count I) and a vicariousliability claim against STC for Shealey’s negligence (Count III). The Sotos also assert a direct negligence claim against STC (Count II) under multiple tort theories, including negligent hiring, retention, selection, supervision, and entrustment. STC moves for summary judgment on Count II, arguing that no reasonable jury could find STC negligent under any of those theories of tort liability. Because the Sotos neither allege nor present evidence that Shealey committed an intentional tort, the Court will grant Defendants’ motion with respect to the Sotos’ claims for negligent hiring and retention. But the Court will deny STC’s motion with respect to the Sotos’ claims for negligent selection, supervision, and entrustment because genuine disputes of material fact remain with respect to those claims.

BACKGROUND

I. FACTUAL BACKGROUND
Shealey was an STC employee in late 2007 and early 2008, driving an 18-wheeler semi truck. (Aff. of Michael T. Burke (“Burke Aff.”) ¶ 2, Ex. 1 (“Shealey Dep.”) at 14:20-15:23, May 1, 2018, Docket No. 106.) During that time, STC documented multiple violations by Shealey related to his speed and hours driven. (Burke Aff. ¶ 3, Ex. 2 (“Malchesky Dep.”) at 22:5-25:5.)

In early 2016, Shealey wanted to rejoin the truck-driving workforce, and so he completed truck-driving school and renewed his commercial driver’s license. (See Shealey Dep. at 16:3-17:11.) He rejoined STC in July 2016, and completed his training in August 2016. (Id. at 19:5-14.) During his training in August 2016, his truck’s on-board computer system logged a “Critical Event Report,” indicating that the truck’s “stability control yaw system [was] triggered,” which could have been caused by going around a turn too quickly or hard braking. (Malchesky Dep. at 27:19-30:22.)

During his training, Shealey was driving for STC as an employee. (Shealey Dep. at 21:11-22.) After that, Shealey purchased his own truck and became an owner-operator for STC. (Id. at 21:11-17; 63:14-20.) Shealey financed the truck through a company called Idealease, a subsidiary of STC. (Id. at 23:10-25.) Shealey’s monthly payments on the loan were deducted from his STC paycheck. (Id.) Shealey’s agreement with STC is titled “Contractor Agreement.” (Burke Aff. ¶ 6, Ex. 5 at 1.) Shealey was not permitted to haul for anyone other than STC. (Id. ¶ 5.A.) While Shealey operated under STC’s authority, STC had “exclusive possession, control and use” of the truck and trailer. (Id.) If Shealey failed to make on-time deliveries, STC could “temporarily take possession of the Equipment and complete the transportation.” (Id. ¶ 5.C.) STC also had the sole authority to bar Shealey from employing anyone that STC “deem[ed] unqualified” to operate the equipment. (Id. ¶ 7.D.) Shealey was required to comply with STC’s speed restrictions (which are different than posted speed limits on roadways). (Id. ¶ 5.A; see Shealey Dep. at 61:6-15.) STC also required Shealey to maintain an on-board electronic monitoring system (sometimes called a “Qualcomm Communication system”). (See Burke Aff. ¶ 6, Ex. 5 ¶ 5.D.)

*2 Shealey’s truck had a governor that limited its speed to 68 mph. (Shealey Dep. at 61:1-62:25.) STC’s company trucks – i.e., not owner-operator trucks – are governed at 62 or 64 mph. (Id.) STC’s “Driver Handbook” states that speeds of 67 to 70 mph are “excessive” and speeds above 70 mph are “flagrant.” (Decl. of Brian Wojtalewicz, ¶ 5, Ex. E (“Long Rep.”) at 7, Apr. 13, 2018, Docket No. 93.) STC’s Driver’s Handbook also warns of the danger of migrating deer. (Id. at 5.) It notes that there is a spike in deer-related crashes in May and June and in October and November each year. (Id.) It also twice warns drivers in all-capital letters: “NEVER SWERVE!” (Id.) It is unclear whether STC requires its drivers to read the handbook. (Burke Aff. ¶ 8, Ex. 7 (“Peyton Dep.”) at 23:1-24:13.) STC neither tests their drivers on the handbook nor has a process for ensuring that their drivers read or maintain familiarity with the handbook. (Id. at 19:1-20:3.)

On October 31, 2016, Shealey got a speeding ticket in Missouri. (Shealey Dep. at 25:4-18.) Shealey claims he was going 68 mph in a 60-mph zone. (Id.) STC records indicate that he was going 84 mph in a 60-mph zone. (Malchesky Dep. at 20:14-21:1.) It is unknown whether STC took any action in response to Shealey’s speeding ticket. (Id. at 21:2-12.) In the trucking industry, there is an expression called “out-running your headlights,” referring to a situation in which a driver is traveling at a speed such that the minimum stopping distance for the vehicle exceeds the distance the driver can see. (See Peyton Dep. at 14:18-15:14.) STC trains its drivers about such situations. (Id.)

II. THE ACCIDENT
Around 10:00 p.m. on November 15, 2016, Shealey was driving westbound in the right-hand lane of I-90 near Luverne, Minnesota, going 68 mph on cruise control in a 70-mph zone. (Shealey Dep. at 27:18-21; Burke Aff. ¶ 4, Ex. 3 (“Crash Report”).) It was a clear, calm night, and there was little traffic. (Shealey Dep. at 26:16-22; see also Crash Report.) At that time, Shealey would have needed about 300 yards to stop his truck; Shealey admitted he could not see that far and that “[e]ven in daylight it’s really hard” to see that far. (Shealey Dep. at 74:20-76:1.)

Shortly after 10:00 p.m., Shealey saw six deer in I-90’s westbound lanes, two in the middle of the road and four near the shoulder. (Id. at 27:9-28:5). When he saw the deer he tapped his brakes which released the cruise control, decelerated, and flashed his lights. (Id. at 27:9-28:5; 32:15-33:1; Malchesky Dep. at 61:24-63:24.) Flashing the truck’s headlights caused the deer to freeze and stare in his direction. (Shealey Dep. at 32:15-33:1.)

Shealey thought he could avoid a collision by moving to the left and missing the deer. (Id. at 29:22-30:8.) He moved over to the left-hand lane and then onto the left shoulder. (Id. at 27:9-28:11.) He made it around the deer without striking them, but there was a drop-off where the pavement ended, dropping down to the grassy median. (Id.) The truck’s left tires slipped off the road and into the median, but the right tires remained on the pavement. (Id. at 28:6-29:7.) Shealey felt his trailer pulling sideways into the median. (Id. at 28:12-24; 30:14-23.) He then steered hard to get his truck and trailer back up onto the pavement, which caused the whole rig to tip onto its left side and slide onto the freeway. (Id. at 29:98-18, 34:22-35:1.) The cab of the truck came to a rest in the north ditch, and the overturned trailer blocked both westbound lanes of traffic. (Id. at 39:3-9; see also Crash Report.) Shortly thereafter, a vehicle driven by Mr. Soto collided with the underside of the trailer. (Crash Report.)

III. PROCEDURAL HISTORY
The Sotos brought this action in January 2017. (Compl., Jan. 12, 2017, Docket No. 1.) The Sotos assert a direct negligence claim against Shealey, alleging that he was negligent by swerving to avoid the deer and trying to turn back up onto the road (Count I); a direct negligence claim against STC, alleging that STC was negligent in its hiring, selection, retention, and supervision of Shealey (Count II); and a vicarious-liability claim against STC for Shealey’s alleged negligence (Count III). (Am. Compl. ¶¶ 26-48, Nov. 1, 2017, Docket No. 35.) STC moves for summary judgment on Count II only, arguing that no reasonable jury could find STC negligent. (Defs.’ Mot. for Partial Summ. J., May 1, 2018, Docket No. 103.)

DISCUSSION

I. STANDARD OF REVIEW
*3 Summary judgment is appropriate where there are no genuine issues of material fact and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the lawsuit, and a dispute is genuine if the evidence could lead a reasonable jury to return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A court considering a motion for summary judgment must view the facts in the light most favorable to the non-moving party and give that party the benefit of all reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Count II of the Sotos’ Complaint embraces multiple tort theories of recovery: negligent hiring, negligent supervision, negligent selection, and negligent entrustment.1 The Court will address each theory in turn after first addressing the relationship between Shealey and STC.

A. Employee vs. Independent Contractor
Before evaluating the specific causes of action embraced by Count II of the Sotos’ Amended Complaint, there is a threshold issue that the Court must address: whether Shealey was an employee or an independent contractor. To determine whether a person is an employee or an independent contractor, courts evaluate the following factors: “(1) [t]he right to control the means and manner of performance; (2) the mode of payment; (3) the furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the right of the employer to discharge.” Boily v. Comm’r of Econ. Sec., 544 N.W.2d 295, 296 (Minn. 1996). “[U]nless the evidence is conclusive, the determination of whether a person is an independent contractor is a jury question.” Wild v. Rarig, 234 N.W.2d 775, 789 (Minn. 1975).

Here, there is more than sufficient evidence from which a reasonable jury could find that Shealey was an employee. For example, STC prohibited Shealey from hauling for other companies; STC maintained exclusive possession, control and use of the equipment; STC could take possession of the truck and trailer to complete a delivery if he was late; STC had the authority to bar Shealey from employing anyone that STC deemed unqualified to operate the equipment; Shealey was required to comply with STC’s speed restrictions; and STC required Shealey to maintain an on-board electronic monitoring system. Viewing the facts in the light most favorable to the Sotos, a reasonable jury could find that Shealey was an employee. See Doe v. Swift Transp. Co., No. 10-899, 2017 WL 67521, at *14-15 (D. Ariz. Jan. 6, 2017). Accordingly, the Court will evaluate the causes of action embraced in Count II assuming that the jury could find that Shealey was either an employee or an independent contractor.

B. Negligent Hiring & Retention
Minnesota law recognizes the direct-liability claims of negligent hiring and negligent retention. Ponticas v. K.M.S. Invs., 331 N.W. 2d 907, 910-11 (Minn. 1983). Claims for negligent hiring and negligent retention each impose direct liability on an employer for an employee’s intentional torts. Burt v. Winona Health, No. 16-1085, 2018 WL 1094289, at *2 (D. Minn. Feb. 28, 2018); see also Cook v. Greyhound Lines, Inc., 847 F. Supp. 725, 732 (D. Minn. 1994) (requiring an intentional tort as an element of a claim for negligent hiring/retention); M.L. v. Magnuson, 531 N.W. 2d 849, 857 (Minn. Ct. App. 1995) (same).

*4 Here, the Sotos do not present any evidence – or even allege – that Shealey committed an intentional tort. Thus, the Sotos cannot maintain claims against STC for negligent hiring or negligent retention. Accordingly, the Court will grant STC’s motion for summary judgment in this respect and dismiss the Sotos’ claims against STC for negligent hiring and negligent retention.

C. Negligent Selection
The Minnesota Supreme Court has not expressly adopted the tort of negligent selection. Larson v. Wasemiller, 738 N.W. 2d 300, 306 (Minn. 2007) (adopting the closely related tort of negligent credentialing). Thus, the Court must decide – pursuant to Erie – whether the Minnesota Supreme Court would recognize the tort of negligent selection of an independent contractor. The Court will conclude that it would. Moreover, there is sufficient evidence from which a jury could find STC liable for negligent selection. Accordingly, the Court will deny STC’s motion for summary judgment with respect to the Sotos’ claim for negligent selection.

1. The Tort of Negligent Selection in Minnesota
Federal courts sitting in diversity must apply state substantive law and defer to the highest court of the state whose substantive law the federal court is applying. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). If, however, the highest state court has not addressed a question of state law, a federal court should “apply what they find to be the state law after giving ‘proper regard’ to relevant rulings of other courts of the [s]tate.” Comm’r v. Estate of Bosch, 387 U.S. 456, 465 (1967). Additionally, federal courts must “ascertain from all the available data what the state law is.” West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236-37 (1940). Such “available data” includes the highest state court’s recent decisions on similar issues, lower-court decisions, and other jurisdictions’ precedents. Id.

“In determining whether Minnesota recognizes a particular cause of action,” the Minnesota Supreme Court “look[s] to the common law and any statutes that might expand or restrict the common law.” Larson, 738 N.W. 2d at 303. More precisely, “[i]n deciding whether to recognize a common law tort, [the Minnesota Supreme Court] looks to (1) whether the tort is inherent in, or the natural extension of, a well-established common law right, (2) whether the tort has been recognized in other common law states, (3) whether recognition of a cause of action will create tension with other applicable laws, and (4) whether such tension is out-weighed by the importance of the additional protections that recognition of the claim would provide to injured persons.” Id. at 304. The Minnesota Supreme Court also “relie[s] on the Restatement of Torts to guide [its] development of tort law in areas that [it has] not previously had an opportunity to address.” Id. at 306.

Here, the Court concludes that Minnesota Supreme Court would recognize the tort of negligent selection. First, negligent selection is inherent in, or the natural extension of, a well-established common law right. Negligent selection is the independent-contractor analogue to the tort of negligent hiring in an employee-employer relationship, the latter of which exists under Minnesota law. See id. at 305-06 (recognizing the tort of negligent credentialing because it is a natural extension of a hospital’s duty to protect its patients from harm by third persons). Second, the overwhelming majority of states recognize the tort of negligent selection. See Basic Energy Servs., L.P. v. Petroleum Res. Mgmt., Corp., 343 P.3d 783, 790 (Wyo. 2015) (collecting cases) (“[T]he theory of negligent hiring in the context of independent contractors has gained broad acceptance.”); see also Larson, 738 N.W.2d at 306 (noting “the general acceptance … of the tort of negligent selection of an independent contractor”). Third, recognition of the tort of negligent selection will not create tension with other applicable laws. In particular, recognizing the tort of negligent selection would not create tension with the baseline absence of liability for those who hire independent contractors . See Fed. Ins. Co. ex rel. Lecy Const. v. Westurn Cedar Supply, Inc., No. 06-0614, 2008 WL 686556, at *2 (D. Minn. Mar. 13, 2008) (“[T]here are so many exceptions to this general rule that seventy years ago the Minnesota Supreme Court was already warning that ‘it would be proper to say that the rule is now primarily important as a preamble to the catalog of its exceptions.’ ” (quoting Pac. Fire Ins. v. Kenny Boiler & Mfg., 277 N.W. 226, 228 (Minn. 1937) ) ).2 Finally, § 411 of the Restatement recognizes the well-established tort of negligent selection of an independent contractor. Restatement (Second) of Torts § 411.

*5 Therefore, the Court concludes that the Minnesota Supreme Court would recognize the tort of negligent selection of an independent contractor and incorporate § 411 of the Restatement into its common law.

2. The Sotos’ Claim for Negligent Selection
Having concluded that a claim for negligent selection is a viable cause of action under Minnesota law, the Court must next decide whether there remains a genuine dispute of material fact as to whether STC is liable to the Sotos for negligent selection of Shealey.
An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.
Restatement (Second) of Torts § 411.

Here, there is sufficient evidence from which a jury could find STC liable for negligent selection. For example, STC knew in 2016 that Shealey had previous speed and hours violations during his previous employment with STC. There are facts that suggest that speed might have been a factor in the accident because of the distance required to stop relative to the distance that Shealey could see. Moreover, it is unclear whether STC requires its drivers to be familiar with the Driver’s Handbook; STC has no process in place for ensuring that drivers read and maintain familiarity with the handbook; and that handbook recognizes the dangers associated with migrating deer and addresses how drivers should react to deer. Furthermore, Shealey had a Critical Event Report during his training with STC before he purportedly became an independent contractor. Viewing the facts in the light most favorable to the Sotos, a reasonable jury could find that STC failed to exercise reasonable care when it selected Shealey. Accordingly, the Court will deny STC’s motion for summary judgment on the Sotos’ claim for negligent selection.

D. Negligent Supervision
“[N]egligent supervision derives from the respondeat superior doctrine.” Cook, 847 F. Supp. at 732. Negligent supervision occurs when an employer fails to “exercise ordinary care to prevent [the] foreseeable misconduct of” its employee. Raleigh v. Indep. Sch. Dist. No. 625, 275 N.W.2d 572, 576 (Minn. 1978). “[A]n employer of an independent contractor may be found negligent when it retains detailed control over a project and then fails to exercise reasonably careful supervision over that project.” Anderson v. State, Dep’t of Nat. Res., 693 N.W.2d 181, 189 (Minn. 2005).

Here, there is sufficient evidence from which a jury could find STC liable for negligent supervision. For example, Shealey had a prior Critical Event Report and speed violations, and STC might not require its drivers to be sufficiently familiar with the Driver’s Handbook. Moreover, there is sufficient evidence that STC retained detailed control over Shealey. STC prohibited Shealey from hauling for other companies; STC maintained exclusive control of the equipment and could take possession of it if he was late; STC could bar Shealey from employing anyone that STC deemed unqualified; Shealey was required to comply with STC’s speed restrictions; and STC required Shealey to maintain an on-board electronic monitoring system. Viewing the facts in the light most favorable to the Sotos, a reasonable jury could find that STC failed to exercise ordinary care to prevent Shealey’s foreseeable conduct and that STC retained detailed control over Shealey’s performance. Accordingly, the Court will deny STC’s motion for summary judgment on the Sotos’ claim for negligent supervision.

E. Negligent Entrustment
*6 Claims for negligent entrustment impose direct liability on “[o]ne who supplies … a chattel for the use of another whom the supplier knows or has reason to know to be likely because of [the other’s] youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm.” Axelson v. Williamson, 324 N.W.2d 241, 243-44 (Minn. 1982) (quoting Restatement (Second) of Torts § 390). In the automobile-accident context, “negligent entrustment has been defined as a separate wrongful act when the negligence of the driver is reasonably foreseeable and the entrustor fails in the duty to take steps to prevent operation of the vehicle by the driver.” Lim v. Interstate Sys. Steel Div., Inc., 435 N.W.2d 830, 832 (Minn. Ct. App. 1989); accord Breeding v. Massey, 378 F.2d 171, 177-78 (8th Cir. 1967) (applying Arkansas law).

Here, there is sufficient evidence from which a jury could find STC liable for negligent entrustment. Assuming that Shealey was negligent on the night of the accident (a proposition on which STC does not move), the question then becomes whether Shealey’s negligence was foreseeable. STC knew or had reason to know of Shealey’s prior speed violations; STC knows about the danger of “outrunning” headlights; STC knows about the dangers of deer migration, including the times of year that pose an increased risk of deer-related crashes; and STC knew about Shealey’s Critical Event Report. Viewing the facts in the light most favorable to the Sotos, a reasonable jury could find that Shealey’s negligence, if proven, was reasonably foreseeable and that STC failed in its duty to take steps to prevent Shealey from operating his truck. Accordingly, the Court will deny STC’s motion for summary judgment on the Sotos’ claim for negligent entrustment.

This case will be placed on the Court’s next available trial calendar.

ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendants’ Motion for Partial Summary Judgment [Docket No. 103] is GRANTED in part and DENIED in part as follows:

1. Defendants’ motion is GRANTED with respect to Plaintiffs’ claims for negligent hiring, negligent retention, and negligent training embraced in Count II of the Plaintiffs’ Amended Complaint [Docket No. 35].

2. Defendants’ motion is DENIED with respect to Plaintiffs’ claims for negligent selection, negligent supervision, and negligent entrustment embraced in Count II of the Plaintiffs’ Amended Complaint [Docket No. 35].

All Citations
Slip Copy, 2018 WL 3677920

Footnotes

1
Minnesota law does not recognize a cause of action for the tort of negligent training. Lopez v. Minn. Vikings Football Stadium, LLC, No. 17-1179, 2018 WL 626529, at *2 (D. Minn. Jan. 30, 2018) (citing Johnson v. Peterson, N.W.2d 275, 277 (Minn. Ct. App. 2007). Therefore, to the extent that the Sotos assert a claim against STC for negligent training, the Court will grant STC’s motion with respect to this claim.

2
To the extent that recognition of the tort of negligent selection will create some tension with other applicable laws, that tension is outweighed by the importance of the additional protections that recognition of the tort of negligent selection would provide to injured persons.