Opinion
8:16-CV-296
07-17-2017
Gary GIBSON, Jr. and Shawna Gibson, Plaintiffs, v. Brieson JENSEN and Farmers Co-Operative, Defendants.
Alexander D. Boyd, David C. Mullin, Fraser, Stryker Law Firm, Omaha, NE, for Plaintiffs. Randall L. Goyette, Baylor, Evnen Law Firm, Lincoln, NE, for Defendants.
Alexander D. Boyd, David C. Mullin, Fraser, Stryker Law Firm, Omaha, NE, for Plaintiffs.
Randall L. Goyette, Baylor, Evnen Law Firm, Lincoln, NE, for Defendants.
MEMORANDUM AND ORDER
John M. Gerrard, United States District Judge
This dispute arises from a 2013 motor vehicle accident between plaintiff Gary Gibson and defendant Brieson Jensen. At the time of the accident, Jensen was operating a fertilizer spreader within the scope of his employment with defendant Farmers Co-Operative. Gibson claims that Jensen was negligent in several respects, and that Farmers is liable for Jensen's negligence under the doctrine of respondeat superior. Gibson also claims that Farmers was directly negligent in its hiring, retention, and supervision of Jenson. Farmers moves for partial summary judgment on Gibson's direct negligence claims, arguing that they are foreclosed by Farmers' admission of vicarious liability. For the reasons explained below, Farmers' motion will be granted.
BACKGROUND
In 2013, Gary Gibson was driving northbound on Highway 57 in Wayne County, Nebraska when his vehicle collided with a fertilizer sprayer. Filing 51 at 1. The sprayer was operated by Brieson Jensen, an employee of Farmers Co-Operative, who was attempting to make a left-hand turn. Filing 51 at 1; filing 45 at 3-4. According to Gibson, Jensen was distracted in the moments leading up to the accident, and had "a limited understanding of where he was going and how he was going to get there." Filing 51 at 4. Following impact, Gibson's vehicle allegedly veered off the road, hit a tree, and caught fire. Filing 51 at 5. Gibson suffered severe personal injuries from the crash. Filing 4 at 3.
Gibson claims that Jensen was operating the fertilizer sprayer within the scope of his employment. So, Gibson says, the doctrine of respondeat superior applies, and Farmers is vicariously liable for Jensen's alleged negligence. Filing 4 at 4. Gibson also alleges that Farmers itself was negligent. Specifically, Gibson claims that Farmers hired Jensen despite knowing that he was "unfit" to operate heavy machinery, and then failed to train and supervise him in the use of such equipment. Filing 4 at 4. Accordingly, Gibson claims that Farmers is liable for negligent hiring, retention, training and supervision.
Famers admits that Jensen was operating the fertilizer sprayer within the scope of his employment, and that the doctrine of respondeat superior applies. Filing 45 at 1-2. But it moves for partial summary judgment on Gibson's direct negligence claims. It argues that where, as here, vicarious liability is admitted, the plaintiff "cannot pursue claims of negligent hiring, retention, training and supervision." Filing 45 at 2.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a genuine dispute as to those facts. Id. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the evidence are jury functions, not those of a judge. Id. But the nonmovant must do more than simply show that there is some metaphysical doubt as to the material facts. Id. In order to show that disputed facts are material, the party opposing summary judgment must cite to the relevant substantive law in identifying facts that might affect the outcome of the suit. Quinn v. St. louis County, 653 F.3d 745, 751 (8th Cir. 2011). The existence of a mere scintilla of evidence in support of the nonmovant's position will be insufficient; there must be evidence on which the jury could conceivably find for the nonmovant. Barber v. CI Truck Driver Training, IIC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
ANALYSIS
As noted above, Gibson claims that Jensen was negligent in his operation of the fertilizer sprayer, and that Jensen's employer, Farmers, is vicariously liable for the negligence. Filing 4 at 3-4. Farmers admits that Jensen was operating the machinery within the scope of his employment, and that vicarious liability applies. Filing 45 at 1-2. So, the issue on summary judgment is whether Gibson—in light of Farmers' admission of vicarious liability—can pursue separately-pled claims for negligent hiring, retention, training and supervision.
Both parties acknowledge that, under Nebraska law, a civil plaintiff may assert multiple causes of action against a tortfeasor (or other responsible party) who is potentially liable for his negligence. This may include a claim for vicarious liability under the doctrine of respondeat superior, which holds an employer liable for the negligent acts of an employee committed within the course of his or her employment. Kocsis v. Harrison, 543 N.W.2d 164, 168-69 (Neb. 1996). The plaintiff may also sue an employer for direct negligence if the employer was negligent in hiring, supervising, or training an employee. See Kime v. Hobbs, 562 N.W.2d 705, 713 (Neb. 1997). But the Nebraska Supreme Court has yet to decide the issue presented here: whether claims for negligent hiring or supervision should be dismissed when the employer admits responsibility for its employee's actions under respondeat superior.
This Court, sitting in diversity, must apply Nebraska's substantive law. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 437 (2010). In the absence of controlling state precedent, this Court must predict how the state's highest court would decide the issue. See Packard v. Darveau, 759 F.3d 897, 901 (8th Cir. 2014). In doing so, this Court may consider relevant state precedent, analogous decisions, considered dicta, and "any other reliable data." Id. However, "[i]t is not the role of a federal court to expand state law in ways not foreshadowed by state precedent." Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 673 (8th Cir. 2009).
Farmers argues that the Nebraska Supreme Court would likely adopt a rule which prohibits a plaintiff from pursuing claims against an employer for negligent hiring, supervision, training and retention when the employer admits respondeat superior liability. See filing 45 at 16. This rule, followed by the majority of courts, derives in part from the Missouri Supreme Court's decision in McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). In McHaffie, the plaintiff filed suit against the driver of a tractor-trailer and his employer following a motor vehicle accident. The plaintiff claimed that the employer was vicariously liable for the driver's negligence (which the employer admitted) and directly liable under a theory of negligent hiring. The jury, which considered liability under both theories, assessed the employer's fault at 20 percent: 10 percent based on the imputed negligence of its employee, and 10 percent based on negligent hiring. Id. at 825.
On appeal, the employer argued that it was improper to permit claims based on both respondeat superior liability and negligent hiring. The Missouri Supreme Court agreed, holding that once vicarious liability is admitted, it is improper to allow a plaintiff to proceed on additional theories of imputed liability, such as negligent hiring or supervision. Id. at 827.
In reaching its decision, the court first observed that to prevail on a negligent hiring claim, the plaintiff must prove that the employer's agent engaged in tortious conduct. Id. at 826. In other words, the liability of the principal is dependent on, and derivative of, the underlying negligence of the agent. As such claims for negligent hiring or supervision—like claims for respondeat superior—are simply a form of imputed liability. Id. at 826; see Ferrer v. Okbamicael, 390 P.3d 836, 844 (Colo. 2017). This is significant, the court reasoned, because once respondeat superior is admitted, alternative theories of imputed liability (e.g., negligent hiring) become superfluous:
If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the imputation of negligence is admitted, the evidence laboriously submitted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended.McHaffie, 891 S.W.2d at 826. Additionally, the court noted that a contrary rule would permit "inflammatory evidence ... into the record which is irrelevant to any contested issue in the case." Id. Thus, the court held, once an agency relationship is admitted, a plaintiff cannot pursue additional (and redundant) theories of imputed liability. Id. at 827.
Several courts have adopted or applied a similar rule. See e.g., Ferrer, 390 P.3d at 849; Sanchez v. Home Depot, Inc., 2014 WL 2986672, at *3-4 (D. Wyo. 2014); Dinger v. American Zurich Ins. Co., 2014 WL 580889, at *2 (N.D. Miss. 2014); lee v. J.B. Hunt Transport, Inc., 308 F.Supp.2d 310, 315 (S.D.N.Y. 2004); Gant v. L.U. Transp., Inc., 770 N.E.2d 1155, 1160 (111. App. Ct. 2002); Elrod v. G & R Const. Co., 628 S.W.2d 17, 18-19 (Ark. 1982); Armenta v. Churchill, 267 P.2d 303, 309 (Cal. 1954); Houlihan v. McCall, 78 A.2d 661, 665 (Md. 1951). These courts generally agree that once the principal has admitted its liability under respondeat superior, evidence relevant to negligent hiring or supervision—for instance, evidence of the employee's previous misconduct—becomes unnecessary, irrelevant, and prejudicial. Farmers urges the Court to apply this reasoning here, claiming that Nebraska's highest court, if presented with the issue, would likely do the same.
But Gibson argues otherwise. He claims that the Nebraska Supreme Court would likely reject the majority position as inconsistent with Nebraska's system of comparative fault. Filing 51 at 6-7. He also claims that the principles set forth above do not apply in Nebraska, because negligent hiring, retention, and supervision claims are "not derivative of the employee's negligence[.]" See filing 51 at 6-7. So, he argues, the Court should reject the majority position and deny Farmers' pending motion.
Gibson first contends that the majority position is inconsistent with Nebraska's system of comparative fault. Under that system, jurors assess percentages of fault for a plaintiff's injuries by evaluating the amount of responsibility attributable to each respective party. See, Neb. Rev. Stat. § 25-21, 185.09; Baldwin v. City of Omaha, 607 N.W. 2d. 841, 853 (Neb. 2000). To properly do so, Gibson says, the jury must consider each act or omission which proximately caused the underlying injury. Filing 51 at 10. And here, Gibson argues, that includes evidence which "establishes" Farmers' negligence in hiring and supervising Jensen. Filing 51 at 10. Removing or otherwise excluding that evidence, Gibson says, would "arbitrarily limit[ ] the scope of [the jurors'] inquiry." Filing 51 at 10.
This argument proceeds in part on Gibson's related contention regarding the nature of negligent hiring, retention, training and supervision claims in Nebraska. On this point, Gibson argues that such claims are "direct," as opposed to "derivative," and are therefore distinct from principles of vicarious liability. Filing 51 at 8. Indeed, Gibson says, whereas respondeat superior liability derives from the employer's relationship with the employee, direct negligence flows exclusively from the employer's "wrongful conduct." Filing 51 at 8. Thus, Gibson argues that because his direct negligence claims are independent of his respondeat superior claim, the jury must consider both in determining the percentage of fault attributable to Farmers.
But Gibson's argument is misplaced. Indeed, while a claim for negligent hiring is undeniably different from a claim for respondeat superior, both are dependent on, and derivative of, the employee's underlying negligence. In other words, if Jensen wasn't negligent on the day in question, then all of Gibson's theories of recovery necessarily fail. Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907, 923 (Neb. 1993) ("[i]f there is no tort liability to the plaintiff against [the agent] individually, it follows that the [principal] cannot be held liable for [the agent's] conduct"). Stated another way:
It is axiomatic that for the doctrine of respondeat superior to apply, an employee must be liable for a tort committed in the scope of his employment. Likewise, an underlying requirement in actions for negligent supervision and negligent training is that the employee is individually liable for a tort or guilty of a claimed wrong against a third person, who then seeks recovery against the employer. Because no action can be maintained against [the agent] in the instant case, it is obvious that any imputed actions against the [principal] are also untenable.Id. at 923 (quoting Strock v. Pressnell, 527 N.E.2d 1235, 1244 (Ohio 1988)). Thus, Nebraska law simply does not support the contention that Farmers' alleged negligence is, or may have been, an independent cause of Gibson's claimed injuries.
And because Gibson's direct negligence claims are entirely derivative of Jensen's alleged negligence, it cannot be said that the majority rule is inconsistent with Nebraska's system of comparative fault. After all, given the derivative nature of the claims, Farmers' liability will be entirely fixed by the percentage of fault attributable to Jensen. Ferrer, 390 P.3d at 846; McHaffie, 891 S.W.2d at 826; see also Diaz v. Carcamo, 253 P.3d 535, 543-44 (Cal. 2011). So, as noted above, if Jensen was not negligent, then Farmers is not liable to Gibson—even if it knew, or should have known, that Jensen was unfit to operate heavy machinery. Schieffer, 508 N.W.2d at 923. Accordingly, the submission of additional theories of imputed liability "serves no real purpose," and risks confusing the jury on the appropriate (and legally permissible) allocation of fault. McHaffie, 891 S.W.2d at 826; Diaz, 253 P.3d at 543-44. The better rule, at least on these facts, is to have the jury apportion fault only among those directly involved in the accident.
Nebraska law does not permit punitive damages over and above full compensation for the plaintiffs injuries. Golnick v. Callender, 860 N.W.2d 180, 190 (Neb. 2015).
Gibson also appeals to the fact-specific nature of this case in urging the Court to deny Farmers' motion. To this end, Gibson contends that Farmers, by hiring an employee with a history of driving infractions, "created a significant risk of harm to other drivers on the road." See filing 51 at 11-15. He then cites to evidence which, he claims, supports this position, such as Jensen's alleged inability to obtain a commercial driver's license, and his limited training in the operation of heavy machinery. But as Farmers correctly points out, much of this evidence is both irrelevant and prejudicial, particularly in light of Farmers' admission of vicarious liability. Indeed, the issue here is not whether Jensen acted negligently in the past—it is, rather, whether he was negligent on the day in question, and if so, whether that negligence proximately caused the parties' accident. This Court will not permit the introduction of such prejudicial evidence based on a theory of recovery that is no longer in dispute. See Holberg v. McDonald, 289 N.W. 542, 543 (Neb. 1940) (the reputation of a driver's conduct at other times and places are not reliable criteria by which to determine what his or her conduct was at a particular time and place).
In sum, the Court concludes that the Nebraska Supreme Court would apply the majority rule to bar Gibson's claims for negligent hiring, retention, training and supervision. That rule is consistent with established Nebraska case law, and ensures that the jury receives relevant, non-prejudicial evidence in its ultimate determination of fault. Accordingly, Farmers' motion for partial summary judgment will be granted.
IT IS ORDERED:
1. Farmers' motion for partial summary judgment (filing 44) is granted.
2. Gibson's claims for negligent hiring, retention, training and supervision are dismissed.