Monroe v. Freight All Kinds Inc.
| Decision Date | 10 November 2020 |
| Docket Number | Case No. 18-cv-03238-SRB |
| Parties | PETER MONROE, Plaintiff, v. FREIGHT ALL KINDS INC., et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Before the Court is Defendant Trans Pacific Transportation, Inc.'s ("Trans Pacific") Motion for Summary Judgment. (Doc. #159.) For the reasons set forth below, the motion is GRANTED IN PART and DENIED IN PART.
For the purpose of resolving the pending motion, the following facts are uncontroverted or deemed uncontroverted by the Court.1 Additional facts relevant to the parties' arguments are set forth in Section III. Defendant Herkon Productions, LLC ("Herkon") produces a traveling show known as Rudolph the Red Nosed Reindeer: The Musical (the "Musical"). Herkon requires trucking services in order to move stage equipment and sets from city to city.
Defendant American Productions d/b/a Janco Limited ("Janco") is a professional trucking company and interstate motor carrier that specializes in transporting equipment and sets for theatrical and musical tours. Janco provided—and Herkon accepted—a quote for picking up, transporting, and delivering stage equipment and sets for the Musical's 2017 tour. In order totransport all of the equipment, Janco needed two separate drivers to operate two separate tractor-trailers.
For the first tractor-trailer, Janco supplied its own driver, tractor, and trailer. For the second tractor-trailer, Janco supplied the trailer but needed to find a driver and tractor. Janco and Defendant FAK Logistics, Inc. ("FAK") entered into a broker agreement in which FAK agreed to supply the second tractor and driver. (Doc. #172-8.) FAK obtained the second tractor, and the second driver, Defendant Michael Johnson ("Johnson"), by contracting with Trans Pacific.2 Although Trans Pacific directly paid Johnson, his compensation was based on a percentage of what FAK paid to Trans Pacific.
The first tractor-trailer for the tour was operated by Janco employee Lee Radford ("Radford"). Radford was the designated "lead driver." Johnson operated the second tractor-trailer. During the times relevant to this lawsuit, Johnson testified that he did not use GPS to get to his destinations. Instead, he "just followed" Radford. (Doc. #173-6, p. 17.) On December 2, 2017, Radford and Johnson made their way through Springfield, Missouri, to deliver equipment for the Musical.
Meanwhile, Plaintiff Peter Monroe ("Monroe") was on a bicycle at an intersection. As Johnson made a right-hand turn from Walnut Street onto Hammons Parkway, his back wheels struck Monroe and drug him several yards. Monroe allegedly suffered severe injuries as a result of the accident.
On August 3, 2018, Monroe filed this suit against Defendants. Monroe's Third Amended Complaint asserts the following claims against Trans Pacific: negligence (Count VIII), negligenthiring/retention (Count IX), negligent training (Count X), negligent supervision (Count XI), negligent entrustment (Count XII), and negligence per se (Count XIII).3 Monroe alleges, in part, that Trans Pacific is vicariously liable for Johnson's acts and omissions under the doctrine of respondeat superior.
Trans Pacific now moves for summary judgment on each count. Trans Pacific argues that the facts of this case do not support vicarious liability, and that there is no evidence it owed or breached a duty to Monroe. Monroe opposes the motion, and the parties' arguments are addressed below.
Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party has the burden of identifying "the basis for its motion, and must identify those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc) (quotations and alterations omitted). Once the moving party makes this showing, "the nonmovant must respond by submitting evidentiary materials that set out specific facts showing that there is a genuine issue for trial." Id. (quotations omitted). If there is a genuine dispute as to the facts, those facts must "be viewed in the light most favorable to the nonmoving party." Id. "Credibility determinations, theweighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. (quotations omitted).
Trans Pacific's first argument is that it did not have control over Johnson and therefore cannot be liable under a respondeat superior theory. In part, Trans Pacific argues the record shows that Johnson was driving for and under the authority of FAK, that Trans Pacific did not control the manner in which Johnson worked, and that FAK assumed control over Johnson. Trans Pacific contends these facts show that Johnson was an independent contractor for Trans Pacific, such that vicarious liability does not apply. Monroe contends there is sufficient evidence in the record to hold Trans Pacific vicariously liable.
Under Missouri law, an employer or principal "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." McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. banc 1995). "In order to establish a principal/agent relationship, the principal must have a 'right to control' the agent." Blunkall v. Heavy & Specialized Haulers, Inc., 398 S.W.3d 534, 541 (Mo. App. S.D. 2013). A "principal does not need to control or direct every movement, rather only those necessary to accomplish the final result." Id. Additionally, a written agency contract is not required; an "agency relationship may be created by words and conduct." Id. "An agency relationship may . . . exist even if the parties did not intend the relationship." Id.
In contrast, respondeat superior does not attach if an individual is merely an independent contractor. "An independent contractor is one who contracts with another to do something for him but is neither controlled by the other nor subject to the other's control with respect to hisphysical conduct in the performance of the undertaking." Scott v. SSM Healthcare St. Louis, 70 S.W.3d 560, 566 (Mo. App. E.D. 2002) (citations, quotations, and alterations omitted). "If there is no right to control, there is no liability; those rendering services but retaining control over their own movements are not servants." Lee v. Pulitzer Pub. Co., 81 S.W.3d 625, 631 (Mo. App. E.D. 2002).4
"Whether a party is liable under the doctrine of respondeat superior depends on the facts and circumstances in evidence in each particular case and no single test is conclusive of the issue of the party's interest in the activity and the right to control." Id. In general, "the relationship of principal-agent or employer-employee is a question of fact to be determined by the jury when, from the evidence adduced on the question, there may be a fair difference of opinion as to the existence of the relationship." Johnson v. Bi-State Develop. Agency, 793 S.W.2d 864, 867 (Mo. banc 1990).
Upon review of the record, the Court finds disputed material facts on the issue of vicarious liability. Viewed in a light most favorable to Monroe, the evidence shows the following. At all relevant times, Jerry Busleta was the sole owner of Trans Pacific and testifiedas its corporate representative. Trans Pacific is in the business of providing tractors and/or drivers for hauling equipment for Broadway shows, rock-and-roll concerts, and similar events. Busleta testified that he arranged a meeting with Johnson, and met with him, before allowing Johnson to drive one of Trans Pacific's trucks. Busleta wanted to make sure Johnson was qualified to drive a truck and to "get to know him." (Doc. #171-1, p. 5.) In 2017, Trans Pacific and Johnson entered into a three-year agreement for Johnson to drive a truck owned by Trans Pacific. (Doc. #171-1, p. 14.) Trans Pacific financially benefitted from the work performed by Johnson. FAK paid Trans Pacific, and then Trans Pacific directly paid Johnson a percentage of that amount.
At the time of the accident, Johnson was operating a tractor that was owned and supplied by Trans Pacific. Johnson testified that he was operating the tractor on behalf of or in the course of his employment with FAK. However, Johnson was then asked whether he had any interest in Trans Pacific. Johnson responded "I'm just an employee." (Doc. #171-2, p. 9.) Johnson further testified that he "work[s] for Jerry" Busleta. (Doc. #171-2, p. 9.) Further, Busleta contacted Johnson every week while Johnson was out on the road. (Doc. #171-1, p. 14.) Finally, the contract between Trans Pacific and Johnson gave Trans Pacific the right to substitute Johnson with a third party if Johnson "fail[ed] to perform all of the duties within his . . . power required to keep the Carrier and the tour on schedule, causing a breach between all parties . . . ." (Doc. #171-8, p. 1, ¶ 7.)
Taken together, the evidence shows that Trans Pacific retained a degree of control over Johnson that would support a finding of vicarious liability. Although Trans Pacific offers evidence that could support a contrary finding, summary judgment is not warranted when more than "one reasonable conclusion can be drawn" regarding vicarious liability. Huggins v. FedExGround Pack. Sys., Inc., 592 F.3d 853, 857 (8th Cir. 2010) (applying Missouri law); see also Johnson, 793 S.W.2d at 867-68. Therefore, the Court denies Trans Pacific's request for summary judgment on vicarious liability.
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