United States District Court, D. Arizona
G, Campbell Senior United States District Judge.
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.
following facts are undisputed unless otherwise
noted. 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.
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.
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.
Summary Judgment Standard.
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
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.
Claims Against Gina.
Negligent Hiring, Training, and Supervision and
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)).
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.”
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
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.
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 ...