Ford v. Barnas

          ORDER

          David G, Campbell Senior United States District Judge.

         Plaintiff Charnola Ford filed a complaint against Defendants Kazimierz Barnas, LIV Transportation, Inc. (“LIV”), and Gina Logistics Corp. (“Gina”), alleging various claims arising out of an automobile accident. Doc. 1-1 at 2-25. Defendants move for partial summary judgment. Doc. 58. The motion is fully briefed, and oral argument will not aid the Court's decision. Docs. 58-62. For the following reasons, the Court will grant the motion in part.

         I. Background.

         The following facts are undisputed unless otherwise noted.^[1] On July 23, 2015, Barnas rear-ended Plaintiff's truck while driving a commercial semi-truck. Doc. 59 at 7-12. LIV admits that Barnas was its agent at the time of the accident. Doc. 9 at 5 ¶ 34; Doc. 1-1 at 13. The parties dispute whether Gina played a role in hiring Barnas and whether Barnas was also Gina's agent. Id.; Doc. 61 at 12 ¶ 6, 58-59; Doc. 59 at 2 ¶ 12. Officers at the scene cited Barnas for failing to avoid the collision (Doc. 59 at 11-13), and Defendants admit that Barnas negligently collided into Plaintiff's vehicle (Doc. 9 at 8 ¶¶ 55-58). The parties dispute the cause of the accident, whether Barnas was adequately rested that day, whether he saw Plaintiff's vehicle before the collision, and whether he tried to maneuver around Plaintiff's truck before hitting it. Doc. 59 at 2 ¶¶ 5-6, 8-10; Doc. 61 at 2 ¶¶ 5-6, 8-10. The parties further dispute LIV's and Gina's direct negligence and whether LIV properly trained and supervised Barnas pursuant to federal regulations. Doc. 58 at 3 ¶¶ 13, 20-25; Doc. 61 at 4 ¶¶ 20-25.

         Barnas received help filling out his commercial driver employment application because he does not read English “too well.” Doc. 59 at 50, 3 ¶ 15; Doc. 61 at 3 ¶ 14. Barnas's employment application was incomplete when he was hired, omitting several fields including his education level, drug and alcohol history, driver's license information, and driving experience. Doc. 61 at 30-31. The field for “Company Name” on page one is blank (Doc. 61 at 30), but LIV's logo, watermark, and name appear several times throughout the application and on other employment materials Barnas signed (see, e.g., id. at 33-35, 37-40). Plaintiff asserts that “Barnas's driver qualification file [is] also missing page [three, ] which would have contained past employers' information” necessary for a federally required background check. Doc. 61 at 3 ¶ 16.

         In his deposition, Barnas stated that he has had a valid commercial driver's license (“CDL”) for sixteen years and has had only one prior accident thirteen to fifteen years ago. Doc. 59 at 56-57. Barnas also stated that LIV gave him a driving test before hiring him. Id. at 59. Plaintiff contends that LIV and Gina failed to obtain Barnas's driving history prior to hiring him. Doc. 61 at 3-4 ¶¶ 17, 19, 77. Plaintiff filed suit in state court in June 2017. Doc. 1-1 at 2-25. The case was removed to this Court based on diversity jurisdiction two months later. Doc. 1.

         II. Summary Judgment Standard.

         A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that 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). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome of the suit will preclude summary judgment, and the disputed evidence must be “such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).^[2]

         III. Discussion.

         Defendants move for summary judgment on (1) all claims against Gina; (2) the punitive damages claim against Barnas; and (3) the direct negligence claims and punitive damages claim against LIV. Doc. 58.

         A. Claims Against Gina.

         1. Negligent Hiring, Training, and Supervision and Retention.

         “For an employer to be held liable for . . . negligent hiring, retention, or supervision, ” one of its employees must commit a tort. See Kuehn v. Stanley, 91 P.3d 346, 352 (Ariz.Ct.App. 2004); Petty v. Arizona, No. CV-15-01338-PHX-DLR, 2016 WL 4095835, at *1 (D. Ariz. Aug. 2, 2016) (“To state a claim for negligent supervision, the plaintiff must allege that an employee committed a tort, that the defendant employer had a reason and opportunity to act, and that the defendant failed to perform its duty to supervise.”); id. (“To prevail on a negligent training claim, a plaintiff must show a [defendant employer's] training or lack thereof was negligent.”) (quoting Guerra v. State, 323 P.3d 765, 772 (Ariz.Ct.App. 2014), vacated on other grounds, 348 P.3d 423 (Ariz. 2015)).

         Gina argues it never hired or employed Barnas. Doc. 58 at 4. Gina admits that it leased the vehicle Barnas drove at the time of the accident, but asserts that LIV hired and employed Barnas. Doc. 58 at 4-5. In response, Plaintiff seems to conflate several theories of liability, arguing “Barnas was still driving Gina's truck under the color of its operating authority[, ] therefore Gina has to comply with the [federal regulations] and is directly liable under the [regulations].” Doc. 60 at 6. Plaintiff also states that “Gina's violation of properly qualifying, training[, ] and supervising Barnas prior to entrusting him with the truck he was to operate is a violation of the [federal regulations] and is negligence per se.” Id.

         Plaintiff's response brief cites no evidence in the record showing that Gina hired or employed Barnas. See Doc. 60 at 6. To the contrary, Barnas's commercial driver employment application and other employment materials repeatedly contain LIV's name, watermark, and logo. Doc. 61 at 33-35, 37-40. Plaintiff's statement of facts cites one of Defendants' disclosures which states that a “representative of Defendant Gina Logistic Corp is expected to testify regarding the company's hiring generally and specifically to Kazimerez Barnas.” Doc. 61 at 58-59. But Plaintiff's response brief does not cite this evidence or argue that this disclosure establishes that Gina hired or employed Barnas. See Doc. 60 at 6. And the disclosure does not indicate the Gina representative will testify that Gina hired and employed Barnas, only that the representative will testify “regarding the company's hiring generally and specifically to [Barnas].” Such a description could simply mean that the representative will testify that Gina did not hire Barnas.

         Plaintiff fails to present any evidence that Gina hired and employed Barnas - an essential element of her negligent hiring, training, supervision, and retention claims. The record shows only that LIV hired and employed Barnas. Plaintiff's conclusory assertions to the contrary are insufficient to create a triable issue. Anderson, 477 U.S. at 249-52. The Court will grant summary judgment on Plaintiff's negligent hiring, negligent training, and negligent supervision and retention claims against Gina. See Celotex, 477 U.S. at 322; Doc. 1-1 at 13-17.

         2. Negligent Entrustment.

         In addition to causation and damages, a plaintiff must establish four elements to prevail on a negligent entrustment claim: (1) the defendant owned or controlled the vehicle; (2) the defendant gave the driver permission to operate the vehicle; (3) the driver was incompetent to drive safely because of his physical or mental condition; and (4) the defendant knew or should have known that the driver was incompetent to drive safely. Verduzco v. Am. Valet, 377 P.3d 1016, 1019 (Ariz.Ct.App. 2016) (citing Acuna v. Kroack, 128 P.3d 221, 227 (Ariz.Ct.App. 2006)); see ...