ORDER PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANT WILLIAM C. MANN, INC.'S MOTION FOR SUMMARY JUDGMENT

JAMES TODD, Magistrate Judge

On June 13, 2003, Defendant William C. Mann, Inc. filed a motion for summary judgment. Plaintiff responded to the motion and Defendant replied. For the following reasons, Defendant's motion for summary judgment is PARTIALLY GRANTED and PARTIALLY DENIED.

Facts

This is a diversity action that arose from a traffic accident that occurred in Hardin County, Tennessee, on August 31, 2001. The defendant William C. Mann, Inc. ("Mann") is a common carrier and operates under the authority of the Department of Transportation, On August 31, 2001, defendant James Epperson ("Epperson") entered into a "Permanent Lease Agreement" with Mann, whereby Epperson was to haul Mann's equipment, such as his dozer and excavator, to various locations. As part of the lease agreement, Epperson leased his 1991 Mack tractor to Mann. Epperson was to use his tractor to perform his responsibilities under the lease agreement.

The lease provided that Mann "shall have exclusive possession, control, and use of the equipment for the duration of the lease and shall assume complete responsibility for the operation of the equipment for the duration of the lease." The lease also provided that Mann "is to maintain insurance coverage for the protection of the public pursuant to the commission regulations." Under the lease agreement, Epperson was responsible for the truck's maintenance (i.e., materials, tools, and labor costs for repair), any cargo shortages, damages on his loads, fuel bills, and any out-of-town living expenses. Epperson was also responsible for reporting his own income and social security taxes. Epperson had the right to set his own hours and to perform work for others without Mann's permission. Epperson had total control over how he accomplished his task of either hauling Mann's equipment or hauling for others.

On August 31, 2001, shortly after Mann and Epperson entered into the lease, Epperson was involved an accident that resulted in Michael Holliday's death and severely injured Plaintiff Donna Holliday (Plaintiff). At the time of the accident, Epperson was operating his 1991 Mack tractor under Mann's ICC MC number and under the authority granted to Mann by the Department of Transportation. Plaintiff brought this wrongful death and personal injury action on her own behalf and as Executrix of the Estate of Michael Holliday.

In its' motion for summary judgment, Mann maintains that the relationship between it and Epperson was that of an independent contractor and that, as a result, Mann is not responsible for the acts of Epperson and is entitled to summary judgment as a matter of law.

Plaintiff alleges that Mann is vicariously liable for any negligence attributable to Epperson. Plaintiff maintains that Mann is vicariously responsible for Epperson's acts pursuant to the lease agreement and to federal statutes and regulations. The Plaintiff further maintains that Mann negligently hired and supervised Epperson, as well as negligently entrusted the Mack tractor to Epperson.

Summary Judgment

Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. To prevail on a motion for summary judgment, the moving party has the burden of showing the "absence of a genuine issue of material fact as to an essential element of the nonmovant's case." Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The moving party may support the motion with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The opposing party may not rest upon the pleadings but, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

"If the defendant . . . moves for summary judgment . . . based on the lack of proof of a material fact, . . . [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 252 (1986). The court's function is not to weigh the evidence, judge credibility, or in any way determine the truth of the matter. Anderson, 477 U.S. at 249. Rather, "[t]he inquiry on a summary judgment motion . . . is . . . `whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Street, 886 F.2d at 1479 (quoting Anderson, 477 U.S. at 251-52). Doubts as to the existence of a genuine issue for trial are resolved against the moving party.Adickes v. S. H. Kress Co., 398 U.S. 144, 158-59 (1970).

Analysis

A. Vicarious Liability

Plaintiff alleges that Mann is vicariously liable for Epperson's negligence pursuant to the lease agreement and federal statutes and regulations. In its' motion for summary judgment, Mann maintains that the relationship between it and Epperson was that of an independent contractor and, as a result, Mann may not be held vicariously responsible for the acts of Epperson. This court finds, as a matter of law, that Mann maybe held vicariously responsible for Epperson's actions.

In 1956, Congress amended the Interstate Common Carrier Act to protect the public from the abuse and confusion surrounding responsibility for accidents which involved a vehicle leased to an interstate carrier. 49 U.S.C. § 14102(a)(4) (2003); see Baker v. Roberts Express. Inc., 800 F. Supp. 1571, 1574 (S.D. Ohio 1992) (citations omitted). Today, an authorized carrier is required to:

(4) have control of and be responsible for operating those motor vehicles in compliance with requirements prescribed by the Secretary of Transportation on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carriers.

Federal regulations mandate that the written lease for interstate common carriers contain a provision that requires the carrier-lessee to "assume complete responsibility for the operation of the equipment for the duration of the lease." 49 C.F.R. § 376.12(c) (2003). Additionally, the regulation requires the carrier-lessee to have "exclusive possession, control, and use of the equipment for the duration of the lease." Id. The regulation also requires that a carrier "maintain insurance coverage for the protection of the public pursuant to the commission regulations." 49 C.F.R. § 376.12(j) (2003).

In this case, Mann and Epperson signed a written lease that contained provisions that complied with the federal regulations. (Lease Agreement, p. 2, sections (d) and (k).) Mann acknowledges that it did, in fact, agree to these federally mandated terms in the written lease that he signed. (Aff. of William C. Mann, Inc. ¶ 2; Dep. of William C. Mann, Inc. pp. 13-25.) Mann, nevertheless, maintains that it may not be held vicariously liable for Epperson's actions because Epperson operated as an independent contractor. Mann points to several undisputed facts to support this contention, including Epperson's compensation, his ability to determine his own hours and haul for anyone that he wished, his furnishing his own tools and equipment, and Mann's lack of authority to control the course, method, manner or conduct of Epperson's work. (See Aff. Mann; Dep. Mann pp. 26-27; Lease Agreement.)

Although the Sixth Circuit has not directly addressed this question, most courts have concluded as a matter of federal law that the regulatory scheme for carrier-lessees imposes an irrebuttable statutory employment relationship between the driver and the carrier-lessee, Gilstorff v. Top Line Express. Inc., No. 96-3081. 1997 U.S. APP. LEXIS 780 at*7. n. 6 (6th Cir. Jan. 14, 1997): see e.g., Baker v. Roberts Express, Inc., 800 F. Supp. 1571 (S.D. Ohio 1992) (finding that a statutory employment relationship exists because the applicable federal statutes and regulations "create an irrebuttable presumption of an employment relationship between a driver of a leased vehicle furnished by a contractor-lessor and a carrier-lessee."); Laux v. Juillerat, 680 F. Supp. 1131 (S.D.Ohio 1987), aff'd, 860 F.2d 1079 (6th Cir. 1988; (holding that federal regulations require a carrier-lessee to assume legal control of the leased vehicle and driver, and should be held vicariously liable for the negligence of the driver and the resulting damages); see also Judy v. Tri-State Motor Transit Co., 844 F.2d 1496, 1501 (11th Cir. 1988) (holding that "federal law creates a statutory employment relationship between interstate carriers and the drivers of the trucks leased to them"); Planet Ins. Co. v. Transport Indemnity Co., 823 F.2d 285, 288 (9th Cir. 1987) (noting that "the special interstate character of the authorized carrier industry underscores the need to refer to the federal scheme to determine when mandatory coverage comes into effect"); Price v. Westmoreland, 727 F.2d 494, 497 (5th Cir. 1984) (holding that "[a carrier-lessee is] vicariously liable as a matter of law for [lessor's] negligence and the traditional common law doctrine of master-servant relationships and respondeat superior does not apply.");Proctor v. Colonial Refrigerated Transp., Inc., 494 F.2d 89 (4th Cir. 1974) (stating that "[t]he statute and regulatory pattern clearly eliminates the independent contractor concept from such lease arrangements and casts upon [the carrier-lessee] full responsibility for the negligence of [the driver] of the leased equipment."); Ryder Truck Rental Co., Inc. v. UTF Carriers. Inc., 719 F. Supp. 455,458 (W.D. Va. 1989) (holding that "federal law requires a driver furnished by a lessor-contractor to be considered a statutory employee of the lessee-carrier, thereby preempting traditional common law doctrines of master-servant relationships and respondeat superior when the driver injures a member of the public while the lease is in effect.").

In dictum, the Sixth Circuit has stated that "[u]ndoubtedly, 49U.S.C. § 1107(a)(4) and 49 C.F.R. § 1057.12(c) render lessee carriers vicariously liable, notwithstanding traditional principles of agency, for injuries sustained by third parties resulting from the negligence of the drivers of leased vehicles." Johnson v. S.O.S. Transport, Inc., 926 F.2d 516, 521 (6th Cir. 1991) (emphasis added). Moreover, inGilstorff, the Sixth Circuit seems to have adopted the majority view that a carrier-lessee is the statutory employer of a driver. See Gilstorff, 1997 U.S. App. LEXIS 780 at *7, n. 6. This court finds that Mann, as a carrier-lessee, maybe considered the statutory employer of Epperson and held vicariously liable for any of Plaintiff's injuries attributable to Epperson's negligence. Accordingly, Mann's motion for summary judgment as a matter of law with respect to vicarious liability is DENIED.

B. Negligent Hiring and Negligent Supervision Claims

Plaintiff alleges that Mann negligently hired and negligently supervised Epperson. (First Amended Complaint, ¶¶ 33-34.) The Tennessee Court of Appeals has identified three elements necessary for recovery under a negligent hiring theory: "(1) evidence of unfitness for a particular job, (2) evidence that the applicant for employment, if hired, would pose an unreasonable risk to others, [and] (3) evidence that the prospective [employer] knew or should have known that the historical criminality of the applicant would likely be repetitive." Phipps v. Walker, C.A. No. 03A01-9508-CV-00294, 1996 Tenn. App. LEXIS 210 at *10 (Tenn.Ct.App. April 4, 1996) (citing Gates v. McQuiddy Office Prods., 02 A01-9410-CV-00240, 1995 Tenn. App. LEXIS 210 at *5 (Tenn. Ct. APP. Nov. 2, 1995). Although Tennessee courts have not specifically defined the elements of negligent supervision, this tort, like a negligent hiring claim, generally arises when an employee's wrongful conduct causes injury to a third party. Hays v. Patton-Tully Transportation, 844 F. Supp. 1221, 1222 (W.D. Tenn. 1993): see Doe v. Coffee County Bd. of Educ., 852 S.W.2d 899, (Tenn.Ct.App. 1992) (finding that a claim against school board arising from teacher's alleged sexual abuse of students properly submitted to jury);Wishone v. Yellow Cab Co., 97 S.W.2d 452 (Tenn, Ct. App. 1936) (finding that a claim against taxicab company arising from retaining a driver with a history of epileptic seizures properly submitted to jury).

Mann first contends that he did not act as an employer in hiring or supervising Epperson because Epperson was not an employee, but rather an independent contractor. As previously discussed, however, Mann is considered to be Epperson's statutory employer. (See Part A, supra, Alternatively, Mann asserts that he personally knew Epperson very well, worked with him prior to their employment relationship, and knew him to be a competent truck driver. (See Dep. Mann. pp. 16-18.) Mann also scheduled a drug test for Epperson. (See Dep. Mann pp. 34-36.) Finally, Mann submits that it was not negligent in hiring Epperson because Epperson possessed a valid Commercial Drivers License. (Dep. Epperson, April 4, 2003, p. 17.)

Plaintiff maintains that Mann negligently hired Epperson because it did not have Epperson take a drug test before the wreck occurred and failed to investigate Epperson's driving record. The facts indicate that Epperson tested positive for marijuana following the accident. (See TBI Toxicology Report.) Plaintiff submits that Mann knew or should have known that Epperson was prone to use illegal drugs (or that he used marijuana on August 31, 2001) and that Mann purposefully delayed Epperson's drug test until after Epperson performed a job for Mann on September 1, 2001.

Plaintiff also contends that Mann did not investigate Epperson's driving record. Plaintiff has presented evidence showing that Epperson had a significant number of traffic offenses (See Pl.'s Resp. Ex. D.) Mann testified that Epperson told him that "he had some speeding tickets," but denied having any that were over 70 miles per hour. (Dep. Mann p. 33.) Epperson, on the other hand, denies discussing his traffic tickets with Mann. (Dep. Epperson pp. 129-130.)

When viewing the evidence in a light most favorable to Plaintiff as the non-moving party, the court cannot determine that Mann is entitled to summary judgment. A reasonable jury could disagree as to whether Mann knew of Epperson's drug use. Further, the conflicting accounts of Mann's investigation into Epperson's driving history could lead a reasonable jury to conclude that Mann failed to properly investigate Epperson's driving record. Accordingly, Mann's motion for summary judgment is DENIED.

C. Negligent Entrustment

The Plaintiff also alleges that Mann negligently entrusted the truck to Epperson and failed to train Epperson, which the Plaintiff claims is a component of negligent entrustment. A claim of negligent entrustment, in the automobile context, requires proof that a person entrusts an automobile to one who is incompetent to use it with knowledge of the incompetence, and that its use was the proximate cause of injury or damage to another. Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 907 (Tenn. 1996). The person entrusting the vehicle must have control of the vehicle or at least the right to control the vehicle at the time it was entrusted. Harper v. Churn, 83 S.W.3d 142, 146 (Tenn.Ct.App. 2001). The Tennessee Court of Appeals has stated:

the liability of an owner . . . is generally imposed only where the owner entrusts the vehicle to one whose appearance or conduct is such as to indicate his incompetency or inability to operate the vehicle with care, and that to impose liability in other cases, where the incompetency of the entrustee is not apparent to the entruster of the vehicle at the time of the entrustment, it must be affirmatively shown that the entruster had at that time knowledge of such facts and circumstances relating to the incompetency of the entrustee to operate the motor vehicle as would charge the entruster with knowledge of such incompetency.

In the present case, Plaintiff has failed to show that Mann entrusted the truck to Epperson. Although Epperson is considered to be a statutory employee pursuant to the Lease Agreement and federal regulations, Epperson owned the truck. Plaintiff has not submitted any evidence showing that Mann had title to the truck, or exercised any control over the truck. See Nichols v. Atnip, 844 S.W.2d 655 (Tenn.Ct.App. 1992) (holding that parents could not be held liable for negligently entrusting to their son an automobile which son had purchased with his own funds and held title in his own name). Accordingly, Mann's motion for summary judgment regarding Plaintiff's negligent entrustment claim is GRANTED.

Conclusion

For the reasons set forth above, Defendant William C. Mann, Inc.'s motion for summary judgment is DENIED with respect to its vicarious liability for any negligence attributable to Epperson, and Plaintiff's negligent hiring and negligent supervision claims. Defendant William C. Mann, Inc.'s motion for summary judgment is GRANTED with respect to Plaintiff's negligent entrustment claim.

IT IS SO ORDERED.