Herndon v. Torres, 102919 FED6, 19-3054

Docket Nº:19-3054
Party Name:ANTHONY HERNDON, Plaintiff-Appellant, v. CARLOS V. TORRES, et al., Defendants-Appellees.
Judge Panel:Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.
Case Date:October 29, 2019
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

ANTHONY HERNDON, Plaintiff-Appellant,


CARLOS V. TORRES, et al., Defendants-Appellees.

No. 19-3054

United States Court of Appeals, Sixth Circuit

October 29, 2019



Before: KETHLEDGE, BUSH, and NALBANDIAN, Circuit Judges.



This appeal arises from road rage at a truck stop in northern Ohio. Carlos Torres attacked Anthony Herndon with a long metal rod, fracturing his femur and leaving him permanently disabled. Herndon brought suit against Torres and the company for which he worked, Avrora Express, Inc. Avrora is no longer in business, but Herndon hopes for recovery under Avrora's insurance. The district court held that, under the governing Ohio law, Torres was an independent contractor, rather than an employee, of Avrora, and therefore granted Avrora summary judgment on Herndon's claim that Avrora was vicariously liable for Torres's intentional tort. Also, the court granted Avrora summary judgment on Herndon's claims that Avrora was negligent in hiring, retaining, training, and supervising Torres, finding no evidence that Avrora had actual or constructive knowledge before the attack of any criminal or violent tendencies of Torres. We AFFIRM.


The following facts are not in dispute. Avrora was a Massachusetts corporation that specialized in intracontinental automobile transport from the east coast to the west coast of the United States.1 It was owned in equal shares by Ilya Khotsin and Dmitriy Salagornik. Avrora was formed in January 2012 as a subsidiary of another corporation, Vitaly's Auto Transportation, which was owned by Salagornik and his father. In late 2012, Salagornik dissolved Vitaly's and sold or leased all of its trucks to Avrora. Avrora operated a fleet of eight trucks, but employed no full-time drivers. Rather, Avrora contracted the delivery jobs out to part-time drivers who often worked for other transportation companies.

Torres began working for Vitaly's in early 2012, at which point he enrolled in a federal Department of Transportation (DOT) drug screening program, was drug tested, and represented to Vitaly's that he had no prior arrests or convictions. Vitaly's also engaged a third-party human resources firm to ensure that Torres was properly licensed and DOT-compliant in regards to his driving record. Torres began working for Avrora in late 2012 after he was transferred from Vitaly's. Avrora did not conduct new drug tests or any background check.

Torres intermittently hauled loads for Avrora from late 2012 to June 2014. According to Khotsin's description of the nature of the work relationship, Torres was free to accept or decline jobs as he saw fit, and he was paid on a job-by-job basis. Oftentimes during his trips, Avrora would contact Torres and ask him to make an additional pick-up. However, Torres had discretion to accept or decline the additional work as he saw fit. Also, in hauling cars across the country, Torres had discretion to select his own routes. Although Avrora might suggest routes for him to take, the final decision always rested with Torres.

When he accepted a job, Torres drove a truck that Avrora owned or leased, but he used his own cell phone to communicate with customers and his own tools to attach the cars to the trailer he hauled. He could accept jobs from other companies mid-trip, or he could leave the haul altogether, provided he found a replacement driver to return to Massachusetts. Further, Torres was free to manage all aspects of his hauls. Although Avrora provided him with the destination and a time frame for delivery, Torres decided the routes and the number of days he drove per week, and he was never required to check in with Avrora mid-trip. Federal regulations alone limited the number of hours he worked per day. For income tax purposes, Avrora provided Torres with an IRS form-1099.

Until the date of the attack, Torres's tenure at Avrora was uneventful and tame. Avrora's owners do not recall having any problems with Torres. For example, in April 2014, Torres and Khotsin embarked on a seven-day, almost non-stop journey from Massachusetts to California. Khotsin did not witness Torres exhibit any violent or criminal tendencies during their week in the truck. Further, Avrora received no reports of criminal, threatening, or violent behavior exhibited by Torres during or outside of his engagements with Avrora.

That changed in June 2014, when the violent attack at issue occurred. Torres was making a cross-country delivery from Massachusetts to San Francisco. In Perrysburg, Ohio, he encountered Herndon as the latter attempted to turn into a truck stop for refueling. When Herndon pulled into the left-hand lane, Torres suddenly merged his truck into the same lane, cutting Herndon off and causing him to swerve off the road onto the grass shoulder. Later, after the two men had parked their trucks at the truck stop, Herndon remarked to Torres that he should be more careful driving. That comment set Torres off. He reached into his truck, grabbed a metal rod, and furiously beat Herndon. The attack left Herndon with a fractured femur and a permanent disability. Torres was arrested, pleaded guilty to attempted felonious assault, and spent a year in prison.

Herndon brought suit in the United States District Court for the Northern District of Ohio, seeking compensatory and punitive damages from both Torres and Avrora under theories of negligence and intentional torts. Thereafter, the parties agreed to entry of a consent judgment against Torres. The district court then entered summary judgment in favor of Avrora, holding that (1) Ohio, rather than Massachusetts, law applied; (2) Torres was an independent contractor of Avrora; and (3) Avora did not negligently hire, retain, train, or supervise Torres. Herndon filed a timely appeal.

"We review a district court's grant of summary judgment de novo." Jackson v. City of Cleveland, 925 F.3d 793, 806 (6th Cir. 2019) (internal quotations omitted). Summary judgment is appropriate if "no...

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