Fox v. Mize

• Decision Date: 18 September 2018
• Docket Number: Case Number: 116489
• Citation: 428 P.3d 314
• Parties: Donna FOX, as Personal Representative of Ronald J. Fox, Deceased, Plaintiff/Respondent, v. James R. MIZE and Van Eaton Ready Mix, Inc., Defendants/Petitioners, and Federated Mutual Insurance Company, Defendant.
• Court: Oklahoma Supreme Court

428 P.3d 314

Donna FOX, as Personal Representative of Ronald J. Fox, Deceased, Plaintiff/Respondent,

v. James R. MIZE and Van Eaton Ready Mix, Inc., Defendants/Petitioners,andFederated Mutual Insurance Company, Defendant.

Case Number: 116489

Supreme Court of Oklahoma.

Decided: September 18, 2018

As Corrected: October 2, 2018

Bart Jay Robey, Chubbuck Duncan & Robey, P.C., Oklahoma City, OK, for Defendants/Petitioners

Clyde A. Muchmore, Crowe & Dunlevy, Oklahoma City, OK, for Defendants/Petitioners

Monty L. Cain, Cain Law Office, Oklahoma City, OK, for Plaintiff/Respondent

Michael M. Blue, Blue Law, Oklahoma City, Oklahoma, for Plaintiff/Respondent

Michael F. Smith, Allison Verret, McAfee & Taft, Tulsa, OK, for Amicus Curiae The State Chamber of Oklahoma

GURICH, V.C.J.,

Facts & Procedural History

¶ 1 This cause arises from a motor vehicle accident between Ronald J. Fox and James R. Mize that occurred on July 29, 2015, near Sunnylane Road and Indian Hills Road in Norman, Oklahoma. Mr. Mize was traveling northbound on Sunnylane Road in a tractor-trailer owned by his employer, Van Eaton Ready Mix, Inc., when he made a left turn onto Van Eaton's property. According to the traffic collision report, Mr. Mize made an improper turn in front of oncoming traffic. Mr. Fox, who was travelling southbound on Sunnylane Road on a motorcycle, collided with Mr. Mize's tractor-trailer and was declared dead at the scene from a head injury

. The report provided that Mr. Fox made no improper driving action and that neither driver appeared to be speeding at the time of the collision. Mr. Mize held a Class "A" commercial driver's license subject to the Federal Motor Carrier Safety Regulations (FMCSR), and Van Eaton stipulated that Mr. Mize was acting in the course and scope of employment at the time of the collision. Mr. Mize was taken from the scene to Norman Regional for a blood test, which showed he was under the influence of a prescription narcotic banned by the FMCSR at the time of the accident.

¶ 2 Plaintiff, Donna Fox, filed this lawsuit as the personal representative of Ronald J. Fox's estate and brought claims against Mr. Mize for negligence and negligence per se. Plaintiff brought the same claims against Van Eaton under the theory of respondeat superior. Plaintiff also included direct negligence claims against Van Eaton for negligent hiring, training, and retention, and negligent entrustment.¹ Plaintiff contends Van Eaton had a duty to prohibit Mr. Mize from operating its commercial motor vehicle while under the banned narcotic and that Van Eaton knew or should have known Mr. Mize was taking the narcotic. Plaintiff alleges Van Eaton knew Mr. Mize was taking the substance because it was prescribed to Mr. Mize as a result of an on-the-job injury he suffered for which he filed a workers' compensation claim against Van Eaton.

¶ 3 Van Eaton filed a partial motion to dismiss, arguing the direct claims of negligent hiring and negligent entrustment were unnecessary, superfluous, and contrary to public policy because Van Eaton had already admitted to being Mize's employer for purposes of vicarious liability. The district court denied Van Eaton's motion as to the negligent entrustment claim and granted Van Eaton's motion as to the negligent hiring claim. Van Eaton filed a motion to reconsider, which was denied by the district court. Plaintiff amended her Petition to conform to the district court's partial dismissal so that the remaining claims included her negligence and negligence per se claims against Mr. Mize, the respondeat superior claim against Van Eaton, and the direct claim against Van Eaton for negligent entrustment. Thereafter, Van Eaton filed an application to certify the district court's order for immediate interlocutory appeal. The district court granted the application for immediate interlocutory appeal pursuant to 12 O.S. 2011 § 952(b)(3). Van Eaton timely filed a Petition for Certiorari to this Court.

¶ 4 On December 4, 2017, we granted certiorari review in this case to address a recurring issue in the state and federal district courts across the state; that is, whether an employer's stipulation that an employee was acting in the course and scope of employment at the time of a collision bars a plaintiff's negligent entrustment claim against the employer. State district courts have reached inconsistent results,² and the federal district courts of this state are likewise split on the issue.³ For the reasons set forth below, we conclude that an employer's stipulation that an employee was acting in the course and scope of employment at the time of a collision does not, as a matter of law, bar a plaintiff's negligent entrustment claim against the employer.

Standard of Review

¶ 5 A motion to reconsider does not technically exist as part of Oklahoma's statutory scheme of pleading. Smith v. City of Stillwater, 2014 OK 42, ¶ 10, 328 P.3d 1192, 1196. If timely filed, however, a motion to reconsider may be regarded as one for new trial under 12 O.S. 2011 § 651 (if filed within ten (10) days of the filing of the judgment, decree, or appealable order), or it may be treated as a motion to modify or to vacate a final order or judgment under the terms of 12 O.S. 2011 §§ 1031 and 1031.1 (if filed after ten (10) days but within thirty (30) days of the filing of the judgment, decree, or appealable order). Smith, 2014 OK 42, ¶ 10, 328 P.3d at 1196

¶ 6 The standard of review for both denial of a motion for a new trial and denial of a motion to modify or to vacate a final order or judgment is abuse of discretion. Capshaw v. Gulf Ins. Co., 2005 OK 5, ¶ 7, 107 P.3d 595, 600. A trial court abuses its discretion when a decision is based on an erroneous conclusion of law or where there is no rational basis in evidence for the ruling. Childers v. Childers, 2016 OK 95, ¶ 28, 382 P.3d 1020, 1027. However, "if the propriety of the trial court's denial of the ‘motion for reconsideration’ rests on the underlying correctness of its decision to dismiss," then the abuse of discretion question is settled by our de novo review. Smith, 2014 OK 42, ¶ 11, 328 P.3d at 1197. "De novo review involves a plenary, independent, and non-deferential examination of the trial court's legal rulings." Sheffer v. Buffalo Run Casino, PTE, Inc., 2013 OK 77, ¶ 3, 315 P.3d 359, 361.

Analysis

¶ 7 The purpose of a motion to dismiss "is to test the law that governs the claim, not the underlying facts." Cates v. Integris Health, Inc., 2018 OK 9, ¶ 7, 412 P.3d 98, 102. Van Eaton argues that, as a matter of law, any theory of direct liability against an employer, including negligent entrustment, must be dismissed when the employer stipulates that an employee was in the course and scope of employment at the time of the accident. According to Van Eaton, Mize's negligent entrustment claim was "legally barred as soon as vicarious responsibility was established."⁴ We disagree.

¶ 8 Oklahoma law has long recognized separate causes of action for respondeat superior and negligent entrustment.⁵ A respondeat superior cause of action is grounded in vicarious liability, which "is imposed by law when one person is made answerable for the actionable conduct of another."⁶ More specifically, respondeat superior holds the master liable for injury proximately resulting from the negligent act of a servant done while in the course and scope of the servant's employment with the master. Mid-Continent Pipeline Co. v. Crauthers, 1954 OK 61, ¶ 19, 267 P.2d 568, 571. Under a respondeat superior cause of action, "the servant's liability is an indispensable requisite for the master's liability." Hatcher v. Traczyk, 2004 OK CIV APP 77, ¶ 8, 99 P.3d 707, 710.

¶ 9 In contrast, a negligent entrustment cause of action is based on direct liability, or "nonvicarious" liability, as this Court has phrased it. Dayton Hudson Corp. v. Am. Mut. Liab. Ins. Co., 1980 OK 193, ¶ 15, 621 P.2d 1155, 1161. Negligent entrustment requires proof that "an individual supplies a chattel for the use of another whom the supplier knows or should know is likely to use the chattel in a way dangerous and likely to cause harm to others." Pierce v. Okla. Prop. & Cas. Ins. Co., 1995 OK 78, ¶ 17, 901 P.2d 819, 823. Negligent entrustment of a vehicle does not require proof of "agency or [an] employment relationship between the owner and the person entrusted to drive the vehicle."⁷ "Liability for negligent entrustment arises from the act of entrustment , not the relationship of the parties." Sheffer v. Carolina Forge Co., L.L.C., 2013 OK 48, ¶ 17, 306 P.3d 544, 550. The Restatement (Second) of Agency § 213 provides:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:

(a) in giving improper or ambiguous orders of [sic] in failing to make proper regulations; or

(b) in the employment of improper persons or instrumentalities in work involving risk of harm to others:

(c) in the supervision of the activity; or

(d) in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.⁸

Particularly relevant to the case before us, comment h to § 213 provides:

h . Concurrent negligence of master and servant. In addition to liability under the rule stated in this Section, a master may also be subject to liability if the act occurs within the scope of employment . See §§ 219-267. In a given case the employer may be liable both on the ground that he was personally negligent and on the ground that the conduct was within the scope of employment. In such cases, the fact that the employer was personally negligent may be important, however, in jurisdictions in which punitive damages are awarded. See § 217C. Likewise an employer may be subject to a penalty. See § 217D. Furthermore, in actions in which both the employer and the employee are joined because of conduct of

...