Lucas v. Schneider Nat. Carriers, Inc.

• Decision Date: 22 January 1992
• Docket Number: 90-6570,Nos. 90-6569,s. 90-6569
• Citation: 1992 WL 9027,953 F.2d 644
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Robbie LUCAS, Plaintiff-Appellant, v. SCHNEIDER NATIONAL CARRIERS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 644

953 F.2d 644

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Robbie LUCAS, Plaintiff-Appellant, v. SCHNEIDER NATIONAL CARRIERS, INC., Defendant-Appellee.

Nos. 90-6569, 90-6570.

United States Court of Appeals, Sixth Circuit.

Jan. 22, 1992.

On Appeal from the United States District Court for the Eastern District of Tennessee, No. 89-00243; Jordan, D.J.

E.D.Tenn.

AFFIRMED.

Before NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges, and JOINER, Senior District Judge. ^*

CHARLES W. JOINER, Senior District Judge.

In this diversity tort action plaintiff, Robbie Lucas, brings consolidated appeals from the trial court's grant of defendant's summary judgment motion, and denial of plaintiff's motion for leave to amend her complaint and to set aside summary judgment. We conclude that the trial court correctly determined that plaintiff failed to demonstrate a genuine issue of material fact in response to defendant's motion for summary judgment; that defendant was entitled to judgment as a matter of law; and the trial court correctly found that plaintiff's proposed amended complaint would not survive a summary judgment motion and properly denied plaintiff's motion to amend. Accordingly, we affirm.

I.

Plaintiff's husband, Estill Lucas, worked as a truck driver for defendant from December 1986 to April 8, 1988. On April 8, 1988, plaintiff was traveling with her husband in a truck owned by defendant. While westbound on Interstate 40 in Tennessee the truck, for reasons unknown, left the roadway and overturned. Plaintiff, asleep in the rear compartment of the truck's cab, was ejected from the cab and pinned between the overturned trailer and the roadway. Plaintiff's left leg was amputated by the trailer, and her right leg was severely injured. Estill Lucas was killed.

Plaintiff filed her complaint on March 31, 1989, alleging that her deceased husband's negligence in driving defendant's truck was the proximate cause of her injuries, and that his negligence could be imputed to defendant by theories of express or apparent authority and agency. Because plaintiff could advance no explanation for the accident, she relied upon the doctrine of res ipsa loquitur to establish the negligence of Estill Lucas.

Defendant filed a summary judgment motion pursuant to Fed.R.Civ.P. 56(c), arguing (1) that plaintiff was an unauthorized passenger in defendant's truck; (2) that in transporting an unauthorized passenger, Estill Lucas acted outside the scope of his employment such that his negligence could not be attributed to defendant; and (3) that as an unauthorized passenger, plaintiff had trespasser status, such that only wanton or willful negligence on the part of defendant's employee could make defendant liable for plaintiff's injuries.

Prior to the trial court's grant of defendant's motion, plaintiff filed a motion for leave to amend her complaint, pursuant to Fed.R.Civ.P. 15(a), to add claims of negligent entrustment and negligence per se. The trial court's memorandum opinion accompanying the order granting defendant's summary judgment motion made no mention of plaintiff's motion to amend, although the order contained a denial of the motion as moot. Contending that the trial court failed to consider her proposed amendments, plaintiff brought a motion to set aside summary judgment. The trial court denied plaintiff's motion, stating that the court had considered plaintiff's proposed amendments in granting summary judgment for defendant, but found that to grant leave to amend would have been futile, as the new claims could not survive a summary judgment motion.

In granting defendant's summary judgment motion, the trial court concluded that plaintiff was an unauthorized passenger in defendant's truck, and, therefore, her status was that of a trespasser as to defendant. The trial court found Tennessee law to hold that, as to a trespasser, a principal in a negligence action will only be liable for injuries proximately caused by the wanton, willful or reckless negligence of its agent. Because wanton or willful negligence, as opposed to simple negligence, cannot be established under Tennessee law through the doctrine of res ipsa loquitur, plaintiff could not impute Estill Lucas's negligence to defendant. In analyzing plaintiff's motion for leave to amend, the trial court found that the principles applicable to the analysis of plaintiff's imputed negligence claims also applied to claims of negligent entrustment and negligence per se, such that, in the absence of a showing of wanton or willful negligence, those claims must likewise fail.

On appeal, plaintiff contends that the trial court erred in its analysis of both motions. Addressing each motion in turn, we find no error.

II.

Under Fed.R.Civ.P. 56(c), the moving party is entitled to judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court explained the operation of Rule 56(c):

In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Id. at 322-23 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). The moving party bears the burden of proving the absence of a material issue of fact and the evidence produced must be viewed in a light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Unless there is evidence favoring the nonmoving party sufficient for a jury to return a verdict for that party, there is no issue for trial. Anderson, 477 U.S. at 249 (citing First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 252, 288-89 (1968)). If the evidence presented is merely colorable, or not significantly probative, summary judgment may be granted. Id. at 249-50 (citing Dombrowski v. Eastland, 387 U.S. 82 (1967) (per curiam )). For purposes of a summary judgment motion, the substantive law identifies the facts which are material. Id.

Plaintiff argues that a genuine issue of material fact exists as to whether plaintiff had defendant's permission, whether express in the form of a "rider's pass," or implied by defendant's alleged knowledge of Estill Lucas's practice of having plaintiff travel with him, to be aboard defendant's truck on April 8, 1988. Plaintiff's status relative to defendant defines the duty owed to plaintiff. Duty is an essential element of plaintiff's negligence claim that plaintiff must prove.

In support of its summary judgment motion defendant presented, inter alia, the deposition testimony of its employee, Donald Frieson. Frieson testified to his knowledge of defendant's written policy regarding the transportation of passengers in defendant's vehicles, and his knowledge of Estill Lucas's awareness of the policy.

Accompanying Frieson's testimony, defendant presented the "authorized passenger policy" itself. The policy, adopted to establish conformance with federal regulations, ¹ permits employee drivers to transport their spouses (and only their spouses) if they meet particular criteria, and then, only for a limited period. In order for an employee to transport a spouse, that employee must make a written application. The application is reviewed (as part of his job duties, Frieson reviewed such applications) and, if the employee has not been involved in an accident that was adjudged "preventable" within six months of the application, then the application may be approved. Approval is also contingent upon the employee obtaining insurance coverage for the spouse and signing a hold harmless agreement. In no circumstance is approval granted to transport a spouse for a period greater than two weeks.

Frieson testified, and the policy itself states, that a blanket grant of permission to transport a spouse is never available. No employee was expressly authorized to extend an invitation to ride without satisfying the provisions of the policy. Having reviewed defendant's records, Frieson testified that Estill Lucas had not applied for permission to transport his spouse prior to April 8, 1988, and, even if Lucas had done so, his application would have been denied under the policy because of his involvement in a preventable accident within six months of that date. Therefore, defendant argues, plaintiff was a trespasser in its truck and was owed only a duty not to be subjected to wanton or willful misconduct. See Ball v. Whitaker, 342 S.W.2d 67, 70 (Tenn.App.1960), Reynolds v. Knowles, 206 S.W.2d 375, 377 (Tenn.1947). As plaintiff could not establish such conduct on defendant's part, she failed to establish an essential element of her claim, entitling defendant to judgment. Anderson, 477 U.S. at 250. Further, plaintiff could present no evidence showing that Estill Lucas had the authority to transport passengers without meeting the criteria of the policy.

In response, plaintiff stated that she had been given a "rider's pass" by Estill Lucas,...