Opinion
No. 02-1030-T
July 25, 2003
ORDER GRANTING PARTIAL SUMMARY JUDGMENT
On June 13, 2003, Defendants Charles Horn Logging and Trucking, Inc. and Charles Horn, individually, filed a motion to dismiss and/or summary judgment. This action arises from an accident occurring on August 31, 2001, involving a Mack semi-truck driven by Defendant James Epperson and an Isuzu Trooper driven by Michael Holliday. While traveling on Highway 57 in southern Hardin County, Tennessee, the Holliday day's vehicle was struck by the empty log trailer being pulled by Defendant Epperson. Michael Holliday died as a result of the injuries sustained in the accident and Plaintiff Donna Holliday, a passenger in the Isuzu, sustained serious injuries requiring her to be airlifted to Vanderbilt Hospital. Subsequently, Plaintiff Donna Holliday filed this action on her own behalf and as Executrix of the Estate of Michael Holliday.
Plaintiff asserts that Defendant Epperson was an employee of Charles Horn Logging and Trucking at the time of the accident and was carrying the log trailer owned by Defendants. Consequently, Plaintiff alleges that Defendants are vicariously liable for the alleged negligence of Defendant Epperson as his employer. Plaintiff further alleges that Defendants negligently hired and supervised Defendant Epperson and negligently entrusted the log trailer to him. Additionally, Plaintiff alleges that the lights on the log trailer were improperly maintained by Defendants. Defendants Charles Horn and Charles Horn Logging and Trucking assert that the undisputed facts establish that Defendant Epperson was not an employee of Charles Horn Logging and Trucking and, consequently, they are entitled to summary judgment on Plaintiff's allegations of negligence based upon respondent superior, negligent hiring and supervision, and negligent entrustment For the following reasons, Defendants' motion for summary judgment is GRANTED.
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 asserts that Defendant Epperson was an employee of Charles Horn Logging and Trucking and acting in the scope of this employment on the day of the accident. Therefore, Plaintiff alleges that Defendants Charles Horn and Charles Horn Logging and Trucking are vicariously liable under the doctrine of respondeat superior for Defendant Epperson's alleged negligence. "In the typical case involving the doctrine of respondeat superior, an employer may be held liable for the torts committed by his or her employees while performing duties within the scope of employment." White v. Revco Discount Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000).
On August 31, 2001, Defendant Epperson met with William Mann to discuss hauling logs away from a piece of property Mr. Mann was clearing. During this meeting, Defendant Epperson contacted Mr. Huffman, an individual who pulled trailers for Charles Horn Logging and Trucking, to inquire whether there was an empty log trailer available that he could borrow. Mr. Huffman informed Defendant Epperson that a trailer was located across from a mill in Counce, Tennessee. Mr. Huffman told Defendant Epperson that he could use the log trailer if he agreed to empty it. Defendant Epperson located the trailer in Counce, Tennessee, emptied it, and then proceeded on his way in accordance with his agreement with Defendant William Mann.
Defendants contend that Defendant Epperson was using the log trailer for his own exclusive business or for that of Defendant William C. Mann, Inc. While Plaintiff acknowledges that Defendant Epperson took possession of the log trailer for the benefit of William C. Mann, Inc., she believes he also took possession for the benefit of Charles Horn Logging and Trucking. To support this assertion, Plaintiff details the history of Defendant Epperson's relationship with Charles Horn Logging and Trucking prior to the events surrounding the accident on August 31, 2001. Specifically, Plaintiff points to Defendant Epperson's tax returns indicating a substantial amount of his income came from work performed for Charles Horn Logging and Trucking. She further details their relationship under the factors designed to determine whether an individual is an employee or independent contractor. However, it is clear that Defendant Epperson was acting on his on behalf or for the benefit of William C. Mann when the accident involving the Hollidays occurred.
Defendant Epperson testified in his deposition that he contacted Charles Horn at least one week prior to the accident seeking to borrow a log trailer to be used for his or William C. Mann's benefit stating, "I just asked him, could I borrow a trailer to haul some logs with, and he said, sure, you know, if we're not using them." Epperson Depo, at p. 45. When asked why he needed to borrow a log trailer, Defendant Epperson testified that he needed it "[t]o pull some logs for William C. Mann — or whatever he had . . ." Id. at 44. Charles Horn testified in his affidavit that he had gratuitously loaned log trailers to Defendant Epperson in the past. Horn Affidavit at p. 3. Defendant Epperson was allowed to take possession of trailers owned by Charles Horn Logging and Trucking upon the presentation of proper verification of licenses and commercial insurance. Id. Both Defendant Epperson and Defendant Charles Horn testified that Epperson was not working as an agent, employee or for the benefit of Charles Horn Logging and Trucking in any manner when the accident on August 31, 2001, occurred. Epperson Depo. at 44-5; Horn Affidavit at 3-4.
When viewing the evidence in a light most favorable to Plaintiff as the non-movant, there are no disputed genuine issues of material fact regarding Defendant Epperson's relationship with Charles Horn and Charles Horn Logging and Trucking. The facts indicate that Defendant Epperson was not an employee of Charles Horn Logging and Trucking. The log trailer was gratuitously lent to Defendant Epperson for his own benefit or for the benefit of William C. Mann, Inc. Defendants are entitled to summary judgment as to negligence based upon respondeat superior because the evidence "is so one-sided" that Defendants must prevail as a matter of law. See Street, 886 F.2d at 1479. Accordingly, Defendants' motion for summary judgment as to negligence under the doctrine of respondeat superior is GRANTED.
b. Negligent Hiring and Supervision
Plaintiff alleges that Defendants negligently hired and supervised Defendant Epperson. "The tort of negligent hiring stems from the principle that a person conducting an activity through employees is liable for harm resulting from the negligent conduct in the employment of improper persons or instrumentalities in the work involving risk of harm to others." Phipps v. Walker, 1996 Tenn. App. LEXIS 210, at *5 (Tenn.Ct.App. April 4, 1996) (emphasis added). For the reasons discussed in section (a.) above, Defendant Epperson was not an employee of Charles Horn or Charles Horn Logging and Trucking when the accident with the Hollidays occurred. Because no employment relationship existed, Defendants cannot be liable under the theory of negligent hiring and supervision. Accordingly, Defendants' motion for summary judgment as to negligent hiring and supervision is GRANTED.
c. Negligent Entrustment
"Tennessee courts recognize a cause of action for the negligent entrustment of an automobile to one who is incompetent to use it." Harper v. Churn, 83 S.W.3d 142, 146 (Tenn.Ct.App. 2001) (citing among other cases Nichols v. Atnip, 844 S.W.2d 655, 661 (Tenn.Ct.App. 1992)). The elements of negligent entrustment are "(1) an entrustment of a chattel, (2) to a person incompetent to use it, (3) with knowledge that the person is incompetent, and (4) that is the proximate cause of injury or damage to another." Nichols, 844 S.W.2d at 659 (quoting Chiniche v. Smith, 374 So.2d 872, 876 (Ala. 1979)). "[L]iability 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." Rimer v. City of Collegedale, 835 S.W.2d 22, 24 (Tenn.Ct.App. 1992). If Plaintiff cannot establish that Epperson's incompetency was apparent, "it must be affirmatively shown that the entruster had at [the time of the entrustment], 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." Id.
Plaintiff notes that a toxicology report revealed marijuana metabolite in Defendant Epperson's blood and plans to present expert testimony that this was the result of smoking marijuana within one to two hours of the wreck. Regardless, it is undisputed that Defendants did not see Defendant Epperson on the day of the accident. Defendant Epperson testified that it "was weeks or a week" before he took possession of the log trailer when he asked for and received permission from Charles Horn to borrow a trailer. Epperson Depo, at 45. On the day of the incident, Defendant Epperson talked via telephone with Mr. Huffman regarding the location of the log trailer. Id. at 42-3. In short, Defendants could not have had knowledge of incompetency based upon "appearance or conduct . . . as to indicate [Defendant Epperson's] incompetency or inability to operate the vehicle with care." Rimer, 835 S.W.2d at 24. Consequently, Plaintiff must affirmatively show that the Defendants "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." See Rimer, 835 S.W.2d at 24.
Plaintiff alleges that if Defendants had complied with federal regulations when hiring Defendant, they would have known about Defendant Epperson's past driving record and his alleged incompetency. Code of Federal Regulations § 391.21 provides:
Application for employment — (a) Except as provided in subpart G of this part, a person shall not drive a commercial motor vehicle unless he has completed and furnished the motor carrier that employs him with an application for employment that meets the requirements of paragraph (b) of this section.
While an application for employment as required under § 391.21 may have provided information sufficient to find Defendants liable for negligent entrustment, this regulation is wholly inapplicable to the case at bar. As discussed in section (a.) above, Defendant Epperson was not an employee of Charles Horn or Charles Horn Logging and Trucking. Defendants did not have a duty under § 391.21, and Plaintiff provides no other authority that would impose such a duty, to investigate Defendant Epperson's driving record or perform drug testing. Plaintiff fails to affirmatively show that the Defendants "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." See Rimer, 835 S.W.2d at 24. Accordingly, Defendants' motion for summary judgment as to negligent entrustment is GRANTED.
d. Negligent Maintenance of the Log Trailer
As noted in the introductory section of this Order, Plaintiff alleges that Defendants negligently maintained the lights on the log trailer. Defendants have not addressed this claim and present no evidence for the Court's consideration. Accordingly, this issue is not before the Court and is the only remaining claim involving Charles Horn and Charles Horn Logging and Trucking.
Plaintiff disputes whether Defendant Charles Horn Logging and Trucking owns the log trailer involved in the August 31, 2001 accident. Plaintiff does attribute ownership to either Charles Horn, individually, or Charles Horn Logging and Trucking, but believes a jury question is presented regarding specific ownership. To support this position, Plaintiff notes that the title to the log trailer lists the owner as "Horn Charles Logging and Truckin." Defendants assert that Charles Horn Logging and Trucking was the owner of the log trailer at the time of the incident. Defendant attached a copy of the check issued by Charles Horn Logging and Trucking for the purchase of the trailer in issue. Additionally, the trailer is listed on the corporation's depreciation schedule reflecting ownership. Because the Court has determined that Defendant Epperson was not an employee of Charles Horn Logging and Trucking thereby relieving them of liability under the theories of negligence, negligent entrustment and negligent hiring, ownership of the truck is irrelevant. In short, this dispute fails to create a jury question that would preclude summary judgment as to these issues, but remains relevant to the extent this issue impacts Plaintiff's claim for negligent maintenance of the lights.
Summary
When viewing the evidence in a light most favorable to Plaintiff as the non-movant, the undisputed material facts establish that Defendant Epperson was not an employee of Charles Horn or Charles Horn Logging and Trucking when the truck he was driving struck the vehicle of Michael and Donna Holliday. Accordingly, Defendants' motion for summary judgment as to negligence under the doctrine of respondeat superior, negligent hiring and supervision, and negligent entrustment is GRANTED. Because Defendants' do not address Plaintiff's allegation concerning negligent maintenance of the log trailer, that issue is not before the Court.IT IS SO ORDERED.