McHaffie By and Through McHaffie v. Bunch, 76840

• Decision Date: 24 January 1995
• Docket Number: No. 76840,76840
• Citation: 891 S.W.2d 822
• Parties: Laura L. McHAFFIE, by and through Her Guardian and Conservator, Rita Diane McHAFFIE, Appellant, v. Cindy D. BUNCH, and Donald R. Farmer, et al., Respondents.
• Court: Missouri Supreme Court

Page 822

891 S.W.2d 822

Laura L. McHAFFIE, by and through Her Guardian and Conservator, Rita Diane McHAFFIE, Appellant, v. Cindy D. BUNCH and Donald R. Farmer, et al., Respondents.

No. 76840.

Supreme Court of Missouri En Banc.

Jan. 24, 1995.

Rehearing Denied Feb. 21, 1995.

Thomas Strong, Cynthia O. MacPherson, Jeffrey Bates, Springfield, for appellant.

Randy Cowherd, William W. Francis, Jr., Springfield, for respondents.

HOLSTEIN, Judge.

An automobile accident on Interstate Highway 44 in Greene County, Missouri, in February of 1989, left Laura McHaffie with permanent mental and physical disabilities. Her guardian brought this action. Following a verdict and judgment, the parties appealed. The Missouri Court of Appeals, Southern District, concluded that a claim for "negligent hiring" against the employer of the driver of one vehicle involved in the accident was improvidently submitted to the jury and, therefore, a new trial was ordered on all issues. This Court granted transfer. Rule 83.03. Affirmed in part and reversed and remanded in part.

I.

McHaffie was a passenger in a vehicle driven by Cindy D. Bunch. The Bunch vehicle left the eastbound lanes of Interstate 44, crossed the median, travelled across the westbound lanes, struck a guardrail, and collided with a westbound tractor-trailer. The tractor-trailer was operated by Donald R. Farmer. Bruce Transport and Leasing was the owner-lessor of the truck, and Rumble Transport was the operator-lessee of the truck. The plaintiff's claim against Bunch was that she was negligent for failing to drive on the correct side of the road. Farmer was alleged to have failed to keep a careful lookout or failed to stop, swerve or slacken his speed when he should have done so. Claims were made that Farmer was an employee of Bruce and Rumble and, as such, those two defendants were vicariously liable for Farmer's negligence.

In a separate count it was charged that Bruce and Rumble had negligently hired and supervised Farmer. However, the plaintiff only submitted this theory against Rumble. Although Rumble and Bruce conceded Farmer was their employee acting in the course and scope of employment at the time of the collision, plaintiff introduced evidence that Rumble did not require Farmer to have adequate experience, testing, training, and medical evaluations before driving their trucks. In addition, evidence was introduced that the employers did not adequately enforce regulations requiring Farmer to maintain log books. However, nothing in the pleadings or the evidence suggests that the employer's lack of care in hiring the driver might have caused plaintiff's injuries in the absence of negligence by the driver.

The jury found McHaffie's total damages to be $5,258,000. The jury assessed percentages of fault as 70% to Bunch, 10% to Farmer, Bruce and Rumble based on Farmer's negligence and Bruce and Rumble's vicarious liability, 10% to Rumble based on negligent hiring, and 10% to plaintiff based on riding with an intoxicated person. Judgment was entered consistent with the verdict. By way of a later amended entry, prejudgment interest was added.

Defendants Farmer, Bruce and Rumble argue nine points, including that it was improper to pursue a claim against Rumble based on both respondeat superior and negligent hiring. Defendant Bunch appeals, arguing two evidentiary matters and that the court erred in awarding prejudgment interest. The plaintiff filed a cross-appeal and argues that the court erred in submitting a comparative fault instruction against her.

II.

Defendants Farmer, Bunch and Rumble argue in Point I that it is improper for a plaintiff in a motor vehicle accident to submit a claim of negligent entrustment or negligent hiring against a defendant driver's employer when the employer admits that the driver was acting within the scope and course of his employment at the time of the collision and when the plaintiff's claim is dependent on the existence of the driver's negligence. In Point V they argue that submission of respondeat superior and negligent hiring theories are inconsistent theories and cannot both be submitted.

There are at least three distinct theories under which an employer might be held to have derivative or dependent liability for the conduct of an employee under Missouri law. Ransom v. Adams Dairy Co., 684 S.W.2d 915, 920 (Mo.App.1985). Derivative or dependent liability means that one element of imposing liability on the employer is a finding of some level of culpability by the employee in causing injury to a third party.

First, an employer is liable under the theory of respondeat superior for damages attributable to the misconduct of an employee or agent acting within the course and scope of the employment or agency. Burks v. Leap, 413 S.W.2d 258, 266 (Mo.1967). In this case, Bruce and Rumble both admitted that Farmer was their agent and employee working within the scope of his employment at the time of the accident. Therefore, agency was not a contested issue in the case.

A second theory under which an employer may be held liable is that of "negligent entrustment." That theory requires proof that (1) the entrustee is incompetent, (2) the entrustor knew or had reason to know of the incompetence, (3) there was an entrustment of a chattel, and (4) the negligence of the entrustor concurred with the negligence of the entrustee to harm the plaintiff. Evans v. Allen Auto Rental and Truck Leasing, Inc., 555 S.W.2d 325, 326 (Mo. banc 1977). This theory permits imputation of negligence without requiring a finding that the employee was acting in the course or scope of employment. The verdict directing instruction submitted by plaintiff regarding Rumble's separate liability comes close to submitting the elements of negligent entrustment although it fails to require a finding that Farmer was incompetent or unqualified to drive commercial vehicles.

Third, Missouri has recognized a cause of action for "negligent hiring." Gaines v. Monsanto Co., 655 S.W.2d 568, 570-71 (Mo.App.1983). The cases seem to suggest that its elements do not include a requirement that the offending conduct occur within the course and scope of employment. Rather, liability turns on whether there are facts from which the employer knew or should have known of a particular dangerous proclivity of an employee followed by employee misconduct consistent with such dangerous proclivity by the employee. See Butler v. Circulus, Inc., 557 S.W.2d 469, 475 (Mo.App.1977), quoting Restatement (Second) of Torts, Sec. 302B, comment e, note D; see also Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 512 (1947); Gaines v. Monsanto Co., 655 S.W.2d 568, 571-72 (Mo.App.1983); and Strauss v. Hotel Continental Co., Inc., 610 S.W.2d 109, 112-16 (Mo.App.1980). In each of these cases, the employee's misconduct was intentional or criminal. In addition, most of the cases involve a "special relationship"

between the employer and the injured party. Thus, it is at least arguable that to establish negligent hiring in Missouri the employee's misconduct must be intentional or criminal in nature or that such "special relationship" exists. Nevertheless, it will be assumed that the facts in this case are sufficient to establish a cause of action for negligent hiring, although the pleadings, evidence and instruction seem to more closely track the negligent entrustment theory. One element of negligent hiring is some form of misconduct by the employee that caused damages to the plaintiff. Like respondeat superior or negligent entrustment, this is a form of imputed liability because the employer's duty is dependent on and derivative of the employee's misconduct.

A.

The majority view is that once an employer has admitted respondeat superior liability for a driver's negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability. Elrod v. G & R Construction Co., 275 Ark. 151, 628 S.W.2d 17, 19 (1982); Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303, 308-09 (bank 1954); Clooney v. Geeting, 352 So.2d 1216, 1220 (Fla.App.1977); Willis v. Hill, 116 Ga.App. 848, 159 S.E.2d 145, 157 (1967), rev'd on other grounds, 224 Ga. 263, 161 S.E.2d 281 (1968); Wise v. Fiberglass Systems, Inc., 110 Idaho 740, 718 P.2d 1178, 1181 (1986); Houlihan v. McCall, 197 Md. 130, 78 A.2d 661, 664-65 (1951); see also 7A Am.Jur.2d, Automobiles and Highway Traffic § 643 (1980), and Debra E. Wax, Annotation, Propriety of Allowing Persons Injured in Motor Vehicle Accident to Proceed Against Vehicle Owner Under Theory of Negligent Entrustment Where Owner Admits Liability Under Another Theory of Recovery, 30 A.L.R. 4th 838 (1984). This appears to be the better reasoned view.

The reason given for holding that it is improper for a plaintiff to proceed against an owner of a vehicle on the independent theory of imputed negligence where respondeat superior is admitted has to do with the nature of the claim. Vicarious liability or imputed negligence has been recognized under varying theories, including agency, negligent entrustment of a chattel to an incompetent, conspiracy, the family purpose doctrine, joint enterprise, and ownership liability statutes. If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the imputation of negligence is admitted, the evidence laboriously submitted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended. In addition, potentially inflammatory evidence comes into the record which is irrelevant to any contested issue in the case. Wise v. Fiberglass Systems, Inc. 718 P.2d at 1181-82, and Willis v. Hill, 159 S.E.2d at 158. Once vicarious liability for negligence is admitted under respondeat superior, the person to whom negligence is imputed becomes strictly liable to the third party for damages attributable to the...