Cross v. Swift Transp. Co. Inc.

Citation616 F.3d 1074
Decision Date10 August 2010
Docket NumberNos. 09-3080, 09-3082.,s. 09-3080, 09-3082.
PartiesTerry L. FREDERICK; Donna F. Frederick, Plaintiffs-Appellees/Cross-Appellants, v. SWIFT TRANSPORTATION CO., Inc., Defendant-Appellant/Cross-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)





James R. Jarrow (John A. Watt with him on the briefs), of Baker Sterchi Cowden & Rice, LLC, Overland Park, KS, for Defendant-Appellant/Cross-Appellee.

Lynn R. Johnson of Shamberg, Johnson & Bergman, Chtd., Kansas City, MO, (Scott E. Nutter and Douglas R. Bradley of Shamberg, Johnson & Bergman, Chtd., Kansas City, MO, and Michael W. Blanton of the Law Offices of Michael W. Blanton, Leawood, KS, with him on the briefs) for Plaintiffs-Appellees/Cross-Appellants.

Before TACHA, McKAY, and GORSUCH, Circuit Judges.

McKAY, Circuit Judge.

In this appeal the Appellant, Swift Transportation, raises ten issues based on various rulings by the district court leading up to and during the course of a jury trial in which Swift was found liable on claims brought by the Appellees, Terry and Donna Frederick. Swift argues these rulings, individually and considered together, resulted in an unfair trial; and we should grant a new trial as to both liability and damages. The Fredericks, in turn, cross-appeal the district court's denial of their motion for prejudgment interest. 1

On the morning of March 16, 2006, a Yellow Freight tractor-trailer collided with a Swift Transportation tractor-trailer as the Swift tractor-trailer was attempting to enter a rest stop off of U.S. Highway 54 in New Mexico. Terry Frederick, who was in the sleeping berth of the Yellow Freight tractor-trailer at the time of the accident, and his wife, Donna, subsequently brought this action against Swift for the injuries he sustained. 2 Following a trial on the merits, the jury returned a verdict in favor of the Fredericks for a total of $23,500,000. After a reduction for comparative fault, the court entered judgment against Swift in the amount of $15,275,000. On appeal, Swift challenges the court's rulings on several jury instructions, as well as the court's rulings on the admissibility of certain witness testimony and evidence. The Fredericks, in their cross-appeal, argue the court's denial of prejudgment interest was contrary to the evidence and New Mexico law. We address each issue in turn. 3

Jury Instructions

We “review a district court's decision to give a particular jury instruction for abuse of discretion.” United States v. Platte, 401 F.3d 1176, 1183 (10th Cir.2005) (internal quotation marks omitted). However, we review de novo legal objections to the jury instructions.” Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1334 (10th Cir.1996). “Where an appellate court determines that the district court has given a legally erroneous jury instruction, the judgment must be reversed if the jury might have based its verdict on the erroneously given instruction.” Level 3 Commc'n, LLC v. Liebert Corp., 535 F.3d 1146, 1158 (10th Cir.2008) (emphasis omitted). We review the district court's interpretation of state law de novo. Daniel, 97 F.3d at 1332. It is undisputed New Mexico law governs the substantive merits of this dispute.

A. Course and scope of employment

At the close of the Fredericks' evidence, the court ruled as a matter of law that Swift's driver, who tested positive for methamphetamine on a drug test several hours after the accident, acted within the scope and course of employment. The court then instructed the jury that “Swift is liable for any negligence of [its driver].” (Appellant's App. at 2014.) On appeal, Swift argues the court erred in giving this instruction because whether its driver consumed methamphetamine before or after the accident is a disputed fact; thus, the jury could have found that the driver ingested the methamphetamine before the accident and that this action removed her from the course and scope of her employment.

In New Mexico, “whether an employee was acting within the scope of his employment is [generally] a question of fact for the jury.” Ovecka v. Burlington N. S.F. Ry., 145 N.M. 113, 194 P.3d 728, 732 (Ct.App.2008). However, “when no facts are in dispute and the undisputed facts lend themselves to only one conclusion, the issue may properly be decided as a matter of law.” Id. New Mexico's uniform jury instructions provide that

[a]n act of an employee is within the scope of employment if:
1. It was something fairly and naturally incidental to the employer's business assigned to the employee, and
2. It was done while the employee was engaged in the employer's business with the view of furthering the employer's interest and did not arise entirely from some external, independent and personal motive on the part of the employee.

UJI 13-407 NMRA. While this rule seems simple, “because of the ever-varying facts of each particular case,” it must nevertheless be applied variably, Tinley v. Davis, 94 N.M. 296, 609 P.2d 1252, 1253 (Ct.App.1980), “with reference to the time, place, and circumstances under which the injury occurred,” Ovecka, 194 P.3d at 733 (internal quotation marks omitted). In order for Swift “to escape liability, it must be shown that [its driver], when the wrongful act was committed, had abandoned h[er] employment and was acting for a purpose of h[er] own which was not incident to h[er] employment.” Hansen v. Skate Ranch, Inc., 97 N.M. 486, 641 P.2d 517, 521 (N.M.Ct.App.1982).

The undisputed facts in this case show that Swift's driver was specifically employed to drive Swift's tractor-trailer and, at the time of the accident, Swift's driver was on duty, driving on her assigned route under Swift's direction, and attempting to meet the deadline Swift established for the delivery of goods. While it is true that the exact time Swift's driver ingested narcotics-if she did in reality ingest them-is disputed, this fact is immaterial. Driving a tractor-trailer while under the influence of methamphetamine is a negligent act, “but this does not mean that [the] negligent act [was] outside the scope of [the driver's] employment.” Nichols v. United States, 796 F.2d 361, 365 (10th Cir.1986) (quoting Hansen, 641 P.2d at 521). At the time of the accident, Swift's driver was “engaged in [her] employer's business with the view of furthering [her] employer's interest.” UJI 13-407 NMRA. Indeed, even if the actual act of consuming methamphetamine were to constitute an abandonment of the driver's employment, Swift's driver resumed her employment as soon as she recommenced driving Swift's tractor-trailer on the assigned route. See Ovecka, 194 P.3d at 735 (recognizing that an employee may return to her employment after previously abandoning it). Nor has Swift argued there was evidence its driver was so severely impaired by methamphetamine that a jury could find she had not returned to her employment even after she had resumed driving, as New Mexico law would require in order for Swift to avoid liability. See id. While we certainly do not hold that ingesting illicit drugs can never remove an employee from the course and scope of employment, we conclude that, under these facts, the district court's instruction was proper. Indeed, as counsel for the Fredericks argued, to hold otherwise would be to hold that a professional driver who consumes narcotics can be considered as acting outside the scope of her employment for hours at a time, even if she has continued to drive her employer's vehicle on its prescribed route and in furtherance of her employer's interests.

B. Negligence per se under the Federal Safety Regulations

At trial the court instructed the jury that if it found Swift's driver violated any one of several Federal Motor Carrier Safety Regulations, including FMCSR §§ 382.213(a), 382.501(a), or 392.4(a), “then [the driver's] conduct constitutes negligence as a matter of law.” (Appellant's App. at 2021.) Swift argues this instruction was given in error because these regulations only apply to “drivers” and not “employers”; as such, Swift argues, a driver's violation is not a proper basis for holding the employer liable. However, as the trial court noted in its order denying Swift's motion for a new trial, this argument “conveniently overlooks that the court found as a matter of law that [Swift's driver] was its employee and acting within the course and scope of her employment when the accident occurred.” (Appellant's App. at 4465.) Under the doctrine of respondeat superior, Swift is liable for all the negligent behavior of its employee, which includes violations of the Federal Motor Carrier Safety Regulations. The court committed no error in providing this instruction.

C. Claims for negligent hiring and negligent retention

Swift claims the district court erred by instructing the jury as to its potential liability under the theory of negligent hiring or retention after it had already found, as a matter law, that Swift was liable for its driver's negligent acts under the doctrine of respondeat superior. 4 For support, Swift points to a line of cases from various jurisdictions holding that “when an employer admits the applicability of respondeat superior, it is entitled to summary judgment on claims for negligent entrustment, hiring, and retention.” Durben v. Am. Materials, Inc., 232 Ga.App. 750, 503 S.E.2d 618, 619 (1998). The reason for this rule is the view “that, since the employer would be liable for the employee's negligence under respondeat superior, allowing claims for negligent entrustment, hiring, and retention would not entitle the plaintiff to a greater recovery, but would merely serve to prejudice the employer.” Id. Despite this limitation, however, those courts that have adopted this rule have also generally recognized an exception to the rule whereby a plaintiff may bring a claim based on negligent hiring or retention along with its claims under respondeat superior when the...

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