United States District Court for the Eastern District of Texas, Marshall Division

December 19, 2022, Decided; December 20, 2022, Filed

Case No. 2:21-cv-00245-RSP

Reporter

2022 U.S. Dist. LEXIS 228808 *; 2022 WL 17823981

SARAH LYNNE HANSON, Plaintiff, v. WERNER ENTERPRISES, INC. and ANGELO MIGUEL FLORES, Defendants.

Subsequent History: Motion denied by Hanson v. Werner Enter., Inc., 2022 U.S. Dist. LEXIS 229734 (E.D. Tex., Dec. 21, 2022)

Core Terms

summary judgment, gross negligence, training, supervision, negligent hiring, entrustment, driver, genuine dispute, incompetent, hiring, retention, ordinary negligence, material fact, negligence per se, driving, respondeat superior, driving skills, nonmovant’s, competency, survive, fails, solo

Counsel:  [*1] For Sarah Lynne Hanson, Plaintiff: Joel Brent Goudarzi, Goudarzi & Young, Gilmer, TX; Keith Lamar Langston, Langston Law Firm, Longview, TX; Kristina Pierce Joseph, Marty Leon Young, Goudarzi & Young, LLP – Gilmer, Gilmer, TX.

For Werner Enterprises, Inc., Angelo Miguel Flores, Defendants: Adam J. Strange, Daniel M Karp, Fee Smith Sharp & Vitullo, LLP – Dallas, Three Galleria Tower, Dallas, TX; Brian James Cathey, Jessica Z Barger, Wright Close & Barger LLP – Houston, Houston, TX.

Judges: ROY S. PAYNE, UNITED STATES MAGISTRATE JUDGE.

Opinion by: ROY S. PAYNE

Opinion

MEMORANDUM ORDER

Before the Court defendants Werner Enterprises, Inc. and Angelo Miguel Flores move for entry of partial summary judgment. Dkt. No. 51. For the following reasons, the motion is GRANTED IN PART.

I. Background

This lawsuit arises out of a motor vehicle accident that occurred on August 13, 2019, in Morris County, Texas, wherein plaintiff Sarah Lynne Hanson alleges she was travelling south on U.S. Highway 259 and, as she approached the intersection with the I-30 West exit ramp, Flores failed to yield at a stop sign and struck her tractor-trailer causing bodily injury. At the time of this incident, Flores was operating a vehicle in the course and [*2]  scope of his employment with Werner Enterprises. Hanson alleges that Flores was negligent in the operation of his vehicle, that Werner Enterprises was negligent in hiring, training, supervising, retaining, and entrusting Flores. She further alleges that Werner Enterprises was negligent in failing to maintain the tractor-trailer in a reasonably safe and prudent manner in violation of the Texas Transportation Code and Federal Motor Carrier Safety Regulations, and that the actions of Flores and Werner Enterprises equate to gross negligence.

Werner Enterprises and Flores move for partial summary judgment claiming that the law does not support the claim of, and/or the evidence fails to establish (1) gross negligence by Flores and by Werner Enterprises, via respondeat superior, (2) gross negligence by Werner Enterprises directly, (3) direct negligence by Werner Enterprises, (4) negligent hiring, training, supervision, retention, and entrustment of Flores by Werner Enterprises, and (5) negligence per se. Dkt. No. 51. Hanson filed a response, Dkt. No. 55, to which defendants filed a reply, Dkt. No. 58. Accordingly, the motion is fully briefed.

II. Summary Judgment Standard

Summary judgment is [*3]  appropriate if the record shows “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).¹ “A fact is material only if its resolution would affect the outcome of the action.” Wiley v. State Farm Fire & Cas. Co., 585 F.3d 206, 210 (5th Cir. 2009). A genuine dispute for trial exists if the record taken as a whole could lead a reasonable trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010). Because there must be a genuine dispute of material fact, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party bears the initial burden of informing the court of the basis for the motion and of identifying those portions of the record which demonstrate the absence of a genuine dispute of material fact or the appropriateness of judgment as a matter of law. Celotex Corp. v. Catrett,477 U.S. 317, at 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265; Adams v. Travelers Indem. Co., 465 F.3d 156, 163 (5th Cir. 2006). The movant is not required to negate the elements of the nonmovant’s case and may satisfy its summary judgment burden by demonstrating the absence of facts supporting specific elements of the nonmovant’s causes of action. Little v. Liquid Air Corp., 37 F. 3d 1069, 1075, 1076 n.16 (5th Cir. 1994).

To satisfy this burden, the moving party must provide affidavits or identify any portion of the pleadings, discovery or admissions [*4]  that demonstrate the absence of a triable dispute of material fact. Celotex Corp., 477 U.S. at 323; Rodriguez, 980 F.2d at 1019. “If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant’s response.” Pioneer Expl., L.L.C. v. Steadfast Ins. Co., 767 F.3d 503, 511 (5th Cir. 2014).

If the movant carries its initial burden, the burden shifts to the nonmovant to present competent summary judgment evidence showing the existence of a genuine dispute of material fact. Matsushita, 475 U.S. at 586-87; see also Fed. R. Civ. P. 56(c). Upon the shifting burden, “unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.” Brown v. City of Houston, Tex., 337 F.3d 539, 541 (5th Cir. 2003); see also Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996). The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which this evidence raises a genuine dispute of material fact. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)).

In determining the merits of a motion for summary judgment, a court has no duty to search the record for material fact issues or to find a party’s ill-cited evidence. Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012); Ragas, 136 F.3d at 458. In addition, a court may not make credibility determinations or weigh the evidence and must view all evidence and draw all reasonable inferences in the light most favorable to the party opposing the motion. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000); Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 540 (5th Cir. 2005).

Finally, under the Court’s local rules, [*5]  a failure to respond “creates a presumption that the party does not controvert the facts set out by movant and has no evidence to offer in opposition.” E.D. Tex. L.R. CV-7(d).

III. Analysis

Defendants contend that they are entitled to summary judgment on Hanson’s claims of (1) gross negligence against Flores and via respondeat superior against Werner Enterprises, (2) gross negligence against Werner Enterprises, (3) direct negligence against Werner Enterprises, (4) negligent hiring, training, supervision, retention, and entrustment of Flores against Werner Enterprises, and (5) negligence per se. Dkt No. 51. Because gross negligence hinges on a finding of ordinary negligence, the Court will address each but in a different order than that presented.

A. Negligent Hiring, Training, Supervision, Retention, And Entrustment

Texas law recognizes a cause of action against employers for negligent hiring, training, supervision, retention and entrustment of an unfit or incompetent employee by third parties injured by the employee’s negligence. See, e.g., Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019) (discussing negligent hiring); Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010) (discussing negligent hiring, training, and supervision); Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 97 (Tex. App.—El Paso 2017, pet. denied) (discussing negligent hiring, supervision, and retention); Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (discussing negligent [*6]  hiring, training, and supervision); Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (discussing negligent entrustment).

The analysis will focus on the risk of harm to third parties resulting from the employer’s failure to exercise due care. Clark v. PFPP Ltd. P’ship, 455 S.W.3d 283, 287 (Tex. App.—Dallas 2015, no pet.). The employer’s negligent hiring, retention, supervision, training or entrustment must have been a proximate cause of the injury. Morris v. JTM, 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002 no pet.); Dieter v. Baker Serv. Tools, a Div. of Baker Int’l, Inc., 739 S.W. 2d 405, 408 (Tex. App.—Corpus Christi 1987, writ denied). However, the employee must also have acted negligently, and “both negligent acts must proximately cause the injury.” Endeavor Energy, 593 S.W.3d at 311.

Because the defendants do not seek summary judgment against the claim the Flores was negligent, the Court assumes for the purpose of this analysis that Flores was at least negligent.

i. Negligent Hiring

“An employer owes a duty to its other employees and to the general public to ascertain the qualifications and competence of the employees it hires, especially when the employees are engaged in occupations that require skill or experience and that could be hazardous to the safety of others.” Morris, 78 S.W.3d at 49. “Therefore, an employer is liable for negligent hiring … if it hires an incompetent or unfit employee, thereby creating an unreasonable risk of harm to others.” Id. (citations omitted). A prerequisite for liability is that Werner Enterprises knew or should [*7]  have known of Flores’ incompetence. See Moore Freight Servs. Inc., 545 S.W.3d at 98; Mireles v. Ashley, 201 S.W.3d 779, 783 (Tex. App.—Amarillo 2006 no pet.). In other words, to survive summary judgment Hanson must point to evidence in the record that Flores was incompetent, and that Werner Enterprises knew or should have known of the incompetence. Id.

“The possession of a valid, unrestricted driver’s license is evidence of a driver’s competency absent any evidence to the contrary.” Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex. App.—Dallas 2004, pet denied). The record shows that Flores was a recent graduate from a truck driving school and possessed a valid Florida commercial driver’s license. Dkt. No. 51-1 at 4; Dkt. No. 51-2. Hanson argues that Werner failed to properly screen Flores due to a policy to investigate a driver’s prior history only in the event of an accident. Dkt. No. 55 at 8-9. However, that argument fails to point to evidence suggesting that Flores was incompetent. Further, the uncontested record of Flores’ prior history demonstrates he had no prior accidents, traffic convictions, moving violations, or criminal history. Dkt. No. 51-1. Because Hanson has failed to point to evidence that Flores was incompetent, summary judgment is appropriate with respect to the negligent hiring claim against Werner Enterprises.

ii. Negligent Training

Werner Enterprises does [*8]  not contest the existence of a duty to adequately train. Thus, to survive summary judgment against a claim of negligent training, Hanson must point to evidence suggesting that “a reasonably prudent employer would have provided training beyond that which was given and that failure to do so caused [Hanson’s] injuries.” Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.). Hanson argues that Werner’s policies and procedures required it to provide Flores with 275 hours of training, but that Flores only received 84 hours of training; that Flores failed Werner Enterprises’ driving skills tests for safety awareness, speed and space management, and basic driving skills multiple times; that the passage of the driving skills test is a prerequisite to driving solo; that Werner Enterprises nonetheless allowed Flores to drive solo without additional training; that circumstantial evidence suggests that Werner Enterprises passed Flores despite unsatisfactory results; and that the mastery of the skills developed in Werner Enterprises’ training and testing would have prevented the accident. Dkt. No. 55 at 10-19. These facts are supported by the record and create a genuine dispute of fact. Accordingly, summary judgment is not appropriate on this claim. [*9] 

iii. Negligent Supervision

Werner Enterprises does not contest the existence of a duty to adequately supervise. Thus, to survive summary judgment against a claim of negligent supervision, Hanson must point to evidence suggesting that Werner Enterprises failed to supervise Flores and that “failure to supervise [Flores] caused [Hanson’s] injuries.” Dangerfield, 264 S.W.3d at 913. The evidence discussed above, specifically that Flores failed tests for safety awareness, speed and space management, and basic driving skills multiple times; that the passage of the driving skills test is a prerequisite to driving solo; that Werner Enterprise nonetheless allow Flores to drive solo without additional training, Dkt. No. 55 at 10-19, creates a genuine dispute of fact regarding Hanson’s claim of negligent supervision precluding summary judgment. Accordingly, summary judgment is not appropriate on this claim.

iv. Negligent Retention

“An employer is not negligent when there is nothing in the employee’s background that would cause a reasonable employer to not hire or retain the employee” Dangerfield, 264 S.W.3d at 912. As discussed supra Part III.A.i, the Court has already concluded that Hanson failed to create a genuine dispute of a material fact as to Flores’ [*10]  competence at hiring and that the record evidence does not indicate prior accidents, citations, or other issues relating to Flores’ ability to competently operate a motor vehicle. Further, the record does not indicate anything that would undermine Flores’ competency since hiring. Accordingly, summary judgment is appropriate on the negligent retention claim.

v. Negligent Entrustment

To survive summary judgment against a claim of negligent entrustment, Hanson must point to evidence suggesting (1) entrustment of a vehicle by Werner Enterprises; (2) to an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment, Werner Enterprises knew or should have known the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver’s negligence proximately caused the accident. Mayes, 236 S.W.3d at 758. The uncontested record demonstrates that Flores had a valid commercial driver’s license from Florida, the possession of which “is evidence of his competency absent any evidence to the contrary.” Batte, 137 S.W.3d at 791. Hanson has not pointed to record evidence to show that Flores was incompetent or reckless. In the absence of such, Hanson fails to create a genuine [*11]  dispute of material fact as to the second and third elements. Accordingly, summary judgment is appropriate on this claim.

B. Gross Negligence

Gross negligence is not a separate cause of action from negligence. Prati v. New Prime, Inc., 949 S.W.2d 552, 557 (Tex. App.—Amarillo, 1997, pet. denied). It is a measure of the degree of negligence and is relevant to the recovery of exemplary damages. RLI Ins. Co. v. Union Pac. R.R. Co., 463 F. Supp. 2d 646, 650 (S.D. Tex. 2006). Texas law provides “exemplary damages may be awarded only if the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from … gross negligence.” Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a). Gross negligence is an act or omission

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11).

“Under the objective component, ‘extreme risk’ is not a remote possibility or even a high probability of minor harm, but rather the likelihood of the plaintiff’s serious injury.” U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). The subjective prong of gross negligence “requires [*12]  that the defendant knew about the risk, but the defendant’s acts or omissions demonstrated indifference to the consequences of its acts.” Id. “Although the courts recognize that there is ‘no exact line’ that can be drawn between ordinary and gross negligence, in general, the situation must be ‘highly dangerous.'” Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 655 (S.D. Tex. 2016) (quoting Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993)). Evidence of ordinary negligence is not enough to establish either the objective or subjective elements of gross negligence. Id. (citing Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998)).

i. Flores

“Texas courts have repeatedly made clear that whether a driver is operating a car or a truck, acts that support a finding of ordinary negligence, such as a party’s failure to obey traffic laws, will not support a finding of gross negligence.” Phillips, 189 F. Supp. 3d at 656 (collecting cases). Here, the record suggests nothing more than a failure to yield. Defendants argue that a failure to yield, without more, does not support a finding of gross negligence. Hanson fails to rebut this position. Accordingly, summary judgment is appropriate.

ii. Werner Enterprises

A corporation may be liable for gross negligence under Texas law when it authorizes or ratifies an agent’s gross negligence, commits gross negligence through the actions of a vice principal, [*13]  or is grossly negligent in hiring an unfit agent. Mobil Oil Corp., 968 S.W.2d at 921-22 (citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387 (Tex. 1997)). However, as discussed supra Part III.B.i, the Court concludes that summary judgment is appropriate to preclude Hanson’s claim of gross negligence against Flores. Accordingly, there is no basis to find Werner Enterprises grossly negligent via respondeat superior. Furthermore, as discussed supra Parts III.A.i, iv, & v, the Court concludes that summary judgment is appropriate to preclude the claims of ordinary negligence against Werner Enterprises for hiring, retaining and entrusting Flores. Accordingly, there is no basis to find Werner Enterprises grossly negligent for hiring, retaining and entrusting Flores.

Regarding Hanson’s claims of gross negligence in training and supervision, the fact that Flores was driving a large vehicle does not establish an extreme risk. Phillips, 189 F. Supp. 3d at 656. Further, evidence of negligent training of the driver of an 18-wheeler also does not establish extreme risk. See Alpizar v. John Christner Trucking, LLC, 2019 U.S. Dist. LEXIS 64751, 2019 WL 1643743, at *7 (W.D. Tex. April 16, 2019) (“A general failure to create a ‘culture of safety’ through lack of ongoing training may in some circumstances create a fact issue on negligence but is not clear and convincing evidence of gross negligence). However, evidence that Werner Enterprises [*14]  did not provide Flores the scope of training mandated by company policy and that Werner Enterprises allowed Flores to drive solo prior to passage of driver safety test, is circumstantial evidence that is suggestive of dishonestly passing Flores. The sum of this evidence is sufficient to defeat summary judgment. Accordingly, summary judgment is not appropriate with respect to the claims of gross negligent in training and supervision.

C. Direct Negligence against Werner Enterprises

Some courts have held that when only ordinary negligence is advanced, a claim of negligent training and supervision and a claim of negligence via respondeat superior are mutually exclusive. See, e.g., Trinh v. Hunter, No. SA-20-CV-00725-JKP, 2022 U.S. Dist. LEXIS 185248, 2022 WL 6813293, at *5 (W.D. Tex. Oct. 11, 2022) (compiling and discussing state and federal Texas cases finding mutual exclusion when only ordinary negligence is advance). However, in the instant suit ordinary negligence against Flores was not challenged via summary judgment and a genuine issue of fact exists as to the claim of gross negligence in training and supervision of Flores by Werner Enterprises. Under these circumstances, the claims are not mutually exclusive. See, e.g., McDorman ex rel. Connelly v. Texas—Cola Leasing Co., 288 F.Supp.2d 796, 810 (N.D.Tex.2003) (noting that under Texas law where only ordinary negligence is alleged, negligent [*15]  hiring and respondeat superior are mutually exclusive modes of recovery, while, on the other hand, a claim of grossly negligent hiring will preclude the owner from stipulating to vicarious liability for its employee’s negligent acts so as to escape independent liability); Williams v. McCollister, 671 F. Supp. 2d 884, 888-889 (S.D. Tex. 2009) (same). Accordingly, summary judgment is not appropriate as to Hanson’s claim of direct negligence against Werner so long as the claims of gross negligence in training and supervision survive.

IV. Negligence Per Se

When a statute includes an ordinary-prudent-person standard, the negligence per se doctrine cannot apply to the case because the statute implicates the same standard of conduct as the common-law standard of ordinary care. Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 456 (Tex. App.—Texarkana 2002, pet. denied); see also Rivera v. Thanh Chi Nguyen, 2019 U.S. Dist. LEXIS 177643, 2019 WL 4999055, at *4 (W.D. Tex. July 22, 2019), report and recommendation adopted, 2019 U.S. Dist. LEXIS 177649, 2019 WL 5026928 (W.D. Tex. Aug. 6, 2019).

Hanson’s complaint cites violations of Section 521.459 of the Texas Transportation Code specifically and federal and state laws and regulations generally. Defendants argue that Section 521.459 of the Texas Transportation Code does not impose a standard beyond that of ordinary care and therefore fails as a basis for negligence per se. Dkt. No. 51 at 18. Regarding the more general citation to federal and state laws and regulations, defendants argue negligence per se is not appropriate in the absence of an identified statute. Hanson does [*16]  not rebut either argument. Accordingly, summary judgment is appropriate. While the doctrine of negligence per se will not be presented to the jury, they may be told of the statutes that Plaintiff contends were violated.

V. Conclusion

For the reasons discussed above, summary judgment is GRANTED IN PART dismissing Hanson’s claim against Flores for gross negligence and negligence per se and dismissing Hanson’s claims against Werner Enterprises for negligent hiring, retention, and entrustment of Flores. Otherwise, summary judgment is DENIED. SIGNED this 3rd day of January, 2012.

SIGNED this 19th day of December, 2022.

/s/ Roy S. Payne

ROY S. PAYNE

UNITED STATES MAGISTRATE JUDGE

End of Document

---

¹ Although 2010 amendments replaced “issue” with “dispute,” the summary judgment standard “remains unchanged.” Fed. R. Civ. P. 56 advisory committee notes (2010 amend.).

United States District Court for the District of Kansas

December 13, 2022, Decided; December 13, 2022, Filed

Case No. 21-2045-JAR

Reporter

2022 U.S. Dist. LEXIS 224613 *; 2022 WL 17612092

BRITTANY YAPLE, et al., Plaintiffs, v. JAKEL TRUCKING LLC, et al., Defendants.

Prior History: Yaple v. Jakel Trucking LLC, 2022 U.S. Dist. LEXIS 210019, 2022 WL 17082696 (D. Kan., Nov. 18, 2022)

Core Terms

Trucking, summary judgment, tractor-trailer, driving, punitive damages, willful, wanton, deer, reasonable jury, wanton conduct, uncontroverted, indifference, training, hitting, codes, posted speed limit, no evidence, inspection, imminence, traveling, Highway, brakes, hiring, fault, speed

Counsel:  [*1] For Brittany Yaple, individually and as heir-at-law of John Brian Yaple, deceased, Ralph Yaple, as Administrator of, estate of, John Brian Yaple, Plaintiffs: Daniel Adam Kopp, Jeffrey D. Rowe, R. Douglas Gentile, Randall L. Rhodes, LEAD ATTORNEYS, Rachel Nelson Boden, Rouse Frets White Goss Gentile Rhodes, PC – Leawood, Leawood, KS.

For Jakel Trucking LLC, a foreign corporation, Christopher James Erion, Defendants: Daniel H. Diepenbrock, LEAD ATTORNEY, Thompson-Hall, PA, Lawrence, KS.

Judges: JULIE A. ROBINSON, UNITED STATES DISTRICT JUDGE.

Opinion by: JULIE A. ROBINSON

Opinion

MEMORANDUM AND ORDER

Plaintiffs Brittany Yaple, individually and as heir-at-law of John Brian Yaple, and Ralph Yaple, as the Administrator of the Estate of John Brian Yaple, bring negligence claims under Kansas law in this diversity action against Defendants Jakel Trucking, Inc. and Christopher J. Erion arising out of a motor vehicle accident. Before the Court is Defendants’ Motion for Summary Judgment on Plaintiff’s Claims for Punitive Damages (Doc. 49). The motion is fully briefed, and the Court is prepared to rule. As described more fully below, the Court grants Defendants’ motion for summary judgment.

I. Summary Judgment Standard

Summary judgment [*2]  is appropriate if the moving party demonstrates that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.¹ In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.² “There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”³ A fact is “material” if, under the applicable substantive law, “it is essential to the proper disposition of the claim.”⁴ “An issue of fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the non-moving party on the issue.'”⁵

Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”⁶ In responding to a motion for summary judgment, “a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial.” [*3] ⁷

II. Uncontroverted Facts

The following facts are either uncontroverted, stipulated to, or viewed in the light most favorable to Plaintiffs. Defendants failed to specifically controvert Plaintiffs’ statements of additional material fact as required by Fed. R. Civ. P. 56(c)(1) and D. Kan. Rule 56.1. Therefore, to the extent such facts are material to the limited question before the Court and supported by the record, the Court deems them undisputed.⁸

On May 14, 2019, John Brian Yaple (“Decedent”) died at the age of forty-seven as a result of a collision with a Jakel Trucking LLC (“Jakel Trucking”) tractor-trailer operated by Defendant Christopher J. Erion. Plaintiff Brittany Yaple is the sole surviving adult child of Decedent. Ralph Yaple is the Administrator of Decedent’s estate.

At the time of the accident, Erion was employed by Jakel Trucking and was acting in the course and scope of his employment. Erion applied for a job with Jakel Trucking as a driver on January 24, 2019, and again on February 5, 2019. At the time he applied, Erion did not have a Class A commercial driver’s license (“CDL”). His only commercial driving experience was driving a straight truck; he had no experience driving a tractor-trailer. Erion obtained [*4]  a Class A CDL in late January or early February 2019, through the State of Minnesota.

On the night of May 13, 2019, Erion slept in the sleeper cab of the tractor-trailer overnight in La Cygne, Kansas. He woke up sometime between 4:00 and 5:00 a.m. the next morning to begin his haul job. Erion called his wife and then completed a 10-15 minute pre-trip inspection of the tractor-trailer. During the inspection, Erion looked for mechanical issues, safety issues, tire issues, loose or missing parts, and burnt-out lights. Erion testified at his deposition that he found no issues that needed to be addressed before his trip; he believed his brakes were in safe condition.

The wreck occurred around 5:35 a.m. on May 14, 2019. Erion was traveling westbound on K-68 Highway in Franklin, County, Kansas, when he struck a deer crossing the road while traveling at approximately 65 mph. Erion locked up his brakes and began an uncontrolled skid. Before hitting the deer, Erion steered left to avoid hitting it, which caused the front of the tractor to spin counterclockwise and impact the south guard rail of the Hickory Creek Bridge. This impact redirected the semi-tractor, facing it eastbound, into a jackknifed [*5]  position with the attached trailer covering both lanes of travel. The tractor-trailer became wedged at the entrance of the bridge—the cab on the south side of the bridge and the rear wheels of the trailer on the north side of the bridge. Decedent’s 1995 Ford F-150 pickup truck crashed into the rear of the trailer, resulting in Decedent’s death. The accident took place at a relative flat spot on the highway with no sight obstructions to drivers coming from the east or west. Decedent’s truck became engulfed in flames after impacting the tractor-trailer.⁹

Although the posted speed limit on K-68 Highway where the accident occurred was 65 mph, the posted speed limit is not necessarily an appropriate safe speed. According to one of Plaintiffs’ experts, 65 mph is too fast for a heavy duty tractor-trailer on a rural road in the dark, with sections of wooded environment, and an empty trailer that usually requires a greater stopping distance. When Erion saw the deer, he should have recognized it as a hazard and applied an appropriate driving defense that focused on maintaining his lane of travel by steering appropriately and maintaining control of his vehicle, rather than panic-braking [*6]  and steering in a manner to avoid hitting the deer.

The Kansas Highway Patrol arrived at the scene of the accident after it happened. Erion completed and passed both a field sobriety test from Officer Stanley at the scene, and breath alcohol and urine tests at Ransom Memorial Hospital. Erion does not recall being contacted by the Kansas Highway Patrol for additional information after the accident.

The 2009 Volvo Tractor is equipped with a Bendix EC-60 Antilock Braking System/Automatic Traction Control unit. There were multiple active trouble or fault codes related to the automatic break system (“ABS”) on Erion’s tractor-trailer before, at the time of, and after the March 14, 2019 accident. “When an error is detected by the self-testing program, the EC-60 controller will illuminate the appropriate indicator lamp and place related trouble code information in the ECU’s memory.”¹⁰

III. Discussion

Plaintiffs allege two claims for relief in the Pretrial Order. First, they allege a negligence claim based on Erion’s acts or omissions while acting in the course and scope of his employment with Jakel—a respondeat superior theory. Second, Plaintiffs allege a negligence claim against Jakel Trucking [*7]  based on its own conduct, including failure to exercise reasonable care in hiring Erion, entrusting and equipping him with the trucking rig used in the accident, and failing to properly train him. Plaintiffs’ prayer for relief seeks, among other things, “[p]unitive damages in an amount to punish Jakel Trucking and deter Jakel Trucking and others from similar conduct.”¹¹

Defendants move for summary judgment on Plaintiffs’ punitive damages claim only, arguing that Plaintiffs cannot demonstrate either that Erion acted willfully or wantonly, or that punitive damages may be assessed against Jakel Trucking. Plaintiff responds that genuine issues of material fact exist and preclude summary judgment.

The parties agree that Kansas law governs the negligence claims in this case, including the issue of punitive damages. Under Kansas law, “[p]unitive damages are awarded on the theory that the defendant deserves punishment for his or her wrongful acts.”¹² K.S.A. § 60-3702(c) requires that the plaintiff prove “by clear and convincing evidence in the initial phase of the trial, that the defendant acted toward the plaintiff with willful conduct, wanton conduct, fraud or malice.” In addition, the statute limits punitive damages [*8]  against an employer or principal as follows:

(d) In no case shall exemplary or punitive damages be assessed pursuant to this section against:

(1) A principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer; or

(2) an association, partnership or corporation for the acts of a member, partner or shareholder unless such association, partnership or corporation authorized or ratified the questioned conduct.¹³

Thus, an “employer’s or principal’s alleged negligent acts in hiring, training, supervising, or retaining the employee/agent may not be advanced as a separate claim for punitive damages.”¹⁴

Plaintiffs do not claim that Defendants acted with malice or fraud, which leaves willful or wanton conduct as the basis for their punitive damages claim. “A willful wrong involves an intentional act and intentional injury. A wanton wrong involves an intentional act but not an intentional injury; the act is intentional and purposeful, but the consequences of the act are not.”¹⁵ To show wanton conduct, Plaintiffs must first “show that the act was ‘performed with a [*9]  realization of the imminence of danger.”¹⁶ Second, Plaintiffs must show “that the act was performed with ‘reckless disregard or complete indifference to the probable consequences of the act.'”¹⁷ The Kansas Supreme Court describes “wanton” behavior as follows:

On a sliding scale, wanton behavior falls between negligent behavior and willful or malicious misconduct. Wanton acts are those showing that the defendant realized the imminence of injury to others and refrained from taking steps to prevent injury because of indifference to the ultimate outcome, not that the defendant lacked simple due care. In other words, “the actor [must] have reason to believe his act may injure another, and [commits the act anyway,] being indifferent to whether or not it injures [another].”¹⁸

A. Erion

Defendants argue that there is no evidence in the summary judgment record that Erion’s conduct was willful or wanton. According to Defendants, Erion confirmed the tractor-trailer‘s safe condition before driving it and was unaware of Decedent’s presence behind him at the time of the accident.¹⁹ Additionally, Defendants point to evidence that Erion drove the posted speed limit, and that his use of the brakes to avoid [*10]  hitting the deer was an involuntary loss of control, which does not satisfy the willful and wanton standard. Therefore, Defendants contend that there is an absence of evidence to support either prong of the test for wanton conduct.

Plaintiffs respond that a reasonable jury could find that Erion acted willfully or wantonly based on the following evidence: (1) his admitted lack of experience driving a tractor-trailer; (2) he operated the tractor-trailer at an excessive speed given the road conditions; (3) he responded to the deer by steering left to avoid hitting it, panic-braking, and losing control of the vehicle; and (4) he ignored the dysfunctional ABS system on the truck, which he should have been aware of during his pre-trip inspection. Plaintiffs must be able to demonstrate that this specific conduct was willful or wanton.²⁰ The Court agrees with Defendants that, on this record, a reasonable jury could not conclude that Erion’s conduct was willful or wanton.

Plaintiffs make no showing with respect to Erion’s knowledge of a dangerous condition. As for Erion’s experience, it is uncontroverted that he had no previous experience driving a tractor-trailer like the one he drove on May [*11]  14, 2019, before Jakel hired him as a driver. But it is also uncontroverted that by the time Jakel Trucking allowed him to drive the tractor-trailer, he had obtained a Class A CDL that authorized him to drive that vehicle. Plaintiffs offer no evidence upon which a jury could infer that, despite his CDL, Erion had reason to believe that his lack of experience placed others in imminent danger when he drove the tractor-trailer.

Erion testified that he believed he was traveling at the appropriate speed because he was driving the posted speed limit. And Plaintiffs offer no evidence that Erion knew he should hit the deer instead of avoid it when it darted into the road. While Plaintiffs submitted evidence about what Erion’s training should have been on the issue of animals in the roadway, there is no evidence he was aware of this guidance and ignored it. While evidence about Erion’s lack of training may form the basis of Plaintiffs’ negligence claim against Jakel Trucking for failure-to-train, for which punitive damages is not available, it does not support a finding of wantonness on “the questioned conduct” that proximately caused the accident.²¹

There is evidence that certain fault codes on [*12]  the truck’s ABS prior to May 14, 2019, were active but Plaintiffs offer no non-conclusory evidence that Erion was aware of these codes, or that the ABS itself was not functioning properly. Stanley B. Andrews, Plaintiffs’ accident reconstruction and vehicle dynamics expert, states in his report that the active fault codes should have triggered an alert on the truck’s dashboard, so Plaintiffs contend that a reasonable jury could infer that Erion saw and ignored the signal. Andrews also states in his report that if the ABS was “fully functioning,” and if Erion “had maintained his original heading position,” his loss of control that caused the accident could have been avoided.²² But there is no information in the report linking the fault codes to the conclusion that the ABS failed. Nor does Plaintiffs’ other expert, Paul Herbert, opine that the ABS failed, contributing to the accident. Herbert is a commercial motor vehicle safety and compliance expert. Most of his report concerns the industry standards that should have guided Erion’s actions on May 14, 2019, and the adequacy of the safety programs in place by Jakel Trucking. Herbert opines that it was Erion’s speed and improper reaction [*13]  to the deer in the road that caused him to lose control of the tractor-trailer; he does not opine that the ABS system was not functioning properly.

The test for wanton conduct is whether “the defendant realized the imminence of injury to others and refrained from taking steps to prevent injury because of indifference to the ultimate outcome,” not whether “the defendant lacked simple due care.”²³ The mere possibility of danger is not enough.²⁴ Erion testified that he had never experienced issues with the ABS, that he had no knowledge or information about the system not functioning properly, and that during his pre-trip inspection he did not notice any issues—he testified that he believed his brakes were in safe condition. Given this evidence, a reasonable jury could not find that Erion realized the imminence of injury to others based on the ABS fault codes and chose to drive anyway due to indifference on May 14, 2019.

There is likewise no evidence that Erion’s decisions to drive 65 mph and attempt to avoid the collision were made with indifference to the risks posed to a following vehicle. It is uncontroverted that Erion conducted a 10-15 minute pre-trip inspection to check on [*14]  safety and maintenance issues and that he determined there were none. It is also uncontroverted that Erion was driving the posted speed limit. Although a reasonable jury could determine that Erion should have reduced his speed and did not react properly to the sudden presence of a deer in the road, it is uncontroverted that he was unaware that he responded inappropriately, nor was he aware that he was driving too fast. Despite Plaintiffs’ evidence that these acts likely contributed to the collision, it is not enough for Plaintiffs to demonstrate negligence in order to submit punitive damages to the jury. They must show that Erion knew that his actions or inactions would likely or probably result in injury to others.²⁵ The evidence presented on summary judgment falls short of this threshold.

B. Jakel Trucking

Defendants next move for summary judgment on Plaintiffs’ punitive damages claim against Jakel Trucking. Plaintiffs respond that summary judgment on punitive damages should be denied because, when viewed in the light most favorable to Plaintiffs, a reasonable jury could find that (1) Jakel Trucking acted willfully or wantonly in hiring and failing to properly train Erion, and [*15]  (2) Jakel Trucking authorized or ratified Erion’s willful and wanton conduct.

As discussed above, Plaintiffs’ first punitive damages theory is foreclosed by the plain language of § 60-3701(b). Although Plaintiffs can proceed on its claim against Jakel Trucking for negligent hiring, training, retention, or supervision for purposes of compensatory damages, punitive damages are not available to them on that claim.²⁶ Jakel Trucking cannot be liable for punitive damages except to the extent Erion, its employee, engaged in willful and wanton conduct and Jakel Trucking authorized or ratified that conduct.²⁷ Because the Court grants summary judgment in favor of Defendants on the issue of Erion’s willful and wanton conduct, it must necessarily grant summary judgment in favor of Jakel Trucking on the punitive damages claim, as well.

IT IS THEREFORE ORDERED BY THE COURT that Defendants’ Motion for Summary Judgment on Plaintiff’s Claims for Punitive Damages (Doc. 49) is granted.

IT IS SO ORDERED.

Dated: December 13, 2022

/s/ Julie A. Robinson

JULIE A. ROBINSON

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).

² City of Herriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).

³ Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

⁴ Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).

⁵ Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson, 477 U.S. at 248).

⁶ Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 1).

⁷ Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

⁸ See Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion”); D. Kan. R. 56.1(b)(2), (c) (“All material facts set forth [in the non-moving party’s statement of additional material facts] will be deemed admitted for the purpose of summary judgment unless specifically controverted”). Nonetheless, many of Plaintiffs’ additional statements of fact are immaterial because they are only relevant to Plaintiffs’ punitive damages request against Jakel Trucking. For the reasons explained in Part III.B, punitive damages are unavailable against Jakel Trucking.

⁹ Defendants offer a report prepared by Technical Trooper Brian L. Horney at the conclusion of the Kansas Highway Patrol’s CHART team investigation and forensic map of the collision. Doc. 50-3. That report concludes that Decedent was the sole cause of the collision because he was following too closely and failed to apply his own brakes prior to striking the back of the trailer. The report opines that Decedent was either distracted by his dog in the vehicle, distracted by an electronic device, fell asleep while operating the vehicle, or had a medical issue. Id. at 6. Plaintiffs object to the admissibility of this report under Fed. R. Evid. 403, 702, 703, 704, and 801. They submit evidence that the report offered by Defendants was superseded by an amended report dated May 23, 2022. See Doc. 52-3. That amended report does not include the statements about the Decedent being the sole cause of the accident; it states that “[i]t is not known why the driver of the pickup truck failed to stop his vehicle prior to striking the rear of the trailer.” Id. at 5.

In the reply, Defendants do not respond to Plaintiffs’ objections to the superseded Horney Report. Because it is Defendants’ burden as the proponent of this evidence to show that it can be presented in an admissible form at trial, the Court sustains Plaintiffs’ objections for purposes of summary judgment and does not consider Doc. 50-3. See Fed. R. Civ. P. 56(c)(2) & advisory committee’s note to 2010 amendment; Brown v. Perez, 835 F.3d 1223, 1232 (10th Cir. 2016).

¹⁰ Doc. 52-5 at 12.

¹¹ Doc. 48 at 9.

¹² Adamson v. Bicknell, 295 Kan. 879, 287 P.3d 274, 280 (Kan. 2012) (citing Hayes Sight & Sound, Inc. v. ONEOK, Inc., 281 Kan. 1287, 136 P.3d 428 (2006)).

¹³ K.S.A. § 60-3702(d)(1)-(2).

¹⁴ Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1001 (Kan. 1993); see also Stallings v. Werner Enters., Inc., 598 F. Supp. 2d 1203, 1215 (D. Kan. 2009) (citing Smith, 866 P.2d at 1001).

¹⁵ McElhaney v. Thomas, 307 Kan. 45, 405 P.3d 1214, 1222 (Kan. 2017) (quoting Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112, 118 (Kan. 1984)).

¹⁶ Adamson, 287 P.3d at 281 (quoting Reeves v. Carlson, 266 Kan. 310, 969 P.2d 252, 254 (Kan. 1998)).

¹⁷ Id. (quoting Reeves, 969 P.2d at 254).

¹⁸ Id. at 281-82 (quoting Frazier v. Cities Serv. Oil Co., 159 Kan. 655, 157 P.2d 822 (Kan. 1945)) (citations omitted).

¹⁹ Defendants offer no statement of fact about Erion’s awareness of Decedent’s pickup truck behind him. Instead, they make the conclusory assertion that he did not see the truck in their argument only. Because Defendants did not offer this assertion as a statement of fact with a citation to the record, the Court does not consider it in ruling on summary judgment.

²⁰ Reeves, 969 P.2d at 256; Adamson, 287 P.3d at 281 (“[T]he inquiry should have focused on the act [the defendant] allegedly performed, i.e., his choice to drive under circumstances that would likely cause a collision.”).

²¹ Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1004 (Kan. 1993).

²² Doc. 52-5 at 18.

²³ Adamson, 287 P.3d at 281

²⁴ See, e.g., Finke v. Post Acute Med., LLC, No. 19-2056-DDC-KGG, 2021 U.S. Dist. LEXIS 81081, 2021 WL 1663925, at *4 (D. Kan. Apr. 28, 2021) (citations omitted).

²⁵ See id. (citation omitted).

²⁶ See Adamson, 287 P.3d at 280; Patterson v. Dahlsten Truck Line, Inc., 130 F. Supp. 2d 1228, 1233 (D. Kan. 2000).

²⁷ Smith v. Printup, 254 Kan. 315, 866 P.2d 985, 1001 (Kan. 1993); see also Stallings v. Werner Enters., Inc., 598 F. Supp. 2d 1203, 1215 (D. Kan. 2009) (citing Smith, 866 P.2d at 1001).