Shafer v. TNT Well Serv., Inc.

• Decision Date: 26 September 2012
• Docket Number: No. S–11–0258.,S–11–0258.
• Parties: Rodney SHAFER, individually and d/b/a Reno Transport, and Brenda Shafer, Appellants (Plaintiffs), v. TNT WELL SERVICE, INC., Appellee (Defendant).
• Court: Wyoming Supreme Court

285 P.3d 958

2012 WY 126

Rodney SHAFER, individually and d/b/a Reno Transport, and Brenda Shafer, Appellants (Plaintiffs),

v.TNT WELL SERVICE, INC., Appellee (Defendant).

No. S–11–0258.

Supreme Court of Wyoming.

Sept. 26, 2012.

Representing Appellants: Brian J. Marvel and Ryan J. Schwartz, Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Schwartz.

Representing Appellee: Terry L. Armitage and Curtis B. Buchhammer, Buchhammer & Kehl, P.C., Cheyenne, Wyoming. Argument by Mr. Armitage.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Rodney Shafer, was injured when his tractor-trailer collided with a pickup owned by Appellee, TNT Well Service, Inc. (“TNT”), and driven by Melvin Clyde. Mr. Shafer and his wife, Brenda, brought suit against TNT, asserting theories of negligence and vicarious liability for damages resulting from the accident. The district court granted summary judgment to TNT on all of the Shafers' claims. The Shafers challenge that decision in this appeal. We reverse.

ISSUES

[¶ 2] The parties raise the following issues:

1. Did the district court properly determine there was no genuine issue of material fact that Mr. Clyde's employment with TNT Well Service, Inc. was terminated prior to the accident?

2. Should this Court adopt the duty recognized in Restatement (Second) of Torts § 317 and, if so, whether a duty of reasonable care can be imposed on the Appellee under the facts of this case?

3. Did the district court properly determine that the entrustment of a vehicle to Mr. Clyde was terminated prior to the accident and, if not, is there a genuine issue as to whether the entrustment was negligent?

FACTS

[¶ 3] Mr. Clyde was hired as a rig operator by TNT in early 2008. In order to perform his duties, Mr. Clyde was required to travel to various well sites within approximately 100 miles of Gillette, Wyoming. He was provided with a TNT pickup, which he also used to travel to and from his home in Upton.

[¶ 4] On February 12, 2009, at approximately 5:30 p.m., Mr. Clyde was driving to Newcastle, Wyoming in the TNT pickup when it crossed the centerline of Highway 16 and collided head-on with Mr. Shafer's tractor-trailer. Mr. Clyde was pronounced dead at the scene. A post-accident blood test revealed the presence of controlled substances in his blood. Mr. Shafer was injured in the collision, and his tractor-trailer was damaged beyond repair.

[¶ 5] The Shafers brought suit against TNT claiming that (1) TNT was vicariously liable for Mr. Clyde's negligence under the doctrine of respondeat superior, (2) TNT was negligent in hiring and supervising Mr. Clyde, and (3) TNT was negligent in entrusting a company vehicle to Mr. Clyde. Following discovery, TNT filed a motion for summary judgment, claiming that Mr. Clyde was not employed by TNT at the time of the accident. TNT asserted that Mr. Clyde's employment had been terminated “at least one hour before the subject collision occurred.” TNT also claimed that it could not be vicariously liable for Mr. Shafer's damages because Mr. Clyde was not acting within the course and scope of his employment at the time of the accident.

[¶ 6] The district court granted TNT's motion for summary judgment on all of the Shafers' claims. With regard to the respondeat superior claim, the court concluded that there was no genuine issue as to whether Mr. Clyde's employment had been terminated prior to the accident. Additionally, after finding that “it is undisputed that Mr. Clyde was traveling in a direction in which his employer conducted no business, outside of working hours, on a day he had been absent from work and after he had been informed someone from the company was coming to collect the truck and he was to leave the truck in Upton,” the court held that “even if an employer-employee relationship had existed between Mr. Clyde and TNT at the time of the accident, the undisputed facts would lead to only one reasonable inference—Mr. Clyde had deviated from the course and scope of his employment and was upon a personal errand when the accident occurred.”

[¶ 7] The district court also granted summary judgment on the Shafers' direct liability claims. With respect to the Shafers' claim of negligent supervision, the court concluded that summary judgment was appropriate because no employment relationship existed at the time of the accident. Similarly, the court concluded that summary judgment was appropriate on the Shafers' negligent entrustment claim because Mr. Clyde's authorization to use the TNT pickup terminated concurrently with the termination of his employment. The Shafers filed a timely appeal.

STANDARD OF REVIEW

[¶ 8] Motions for summary judgment are governed by W.R.C.P. 56(c), which provides that “The judgment sought shall be rendered forthwith 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 a judgment as a matter of law.” We apply the following standard of review to the decision to grant summary judgment:

We treat the summary judgment movant's motion as though it has been presented originally to us. We use the same materials in the record that was before the district court. Using the materials in the record, we examine them from the vantage point most favorable to the nonmoving party opposing the motion, giving that party the benefit of all favorable inferences which may fairly be drawn from the materials.... If doubt exists about the presence of genuine issues of material fact after we have reviewed the record, we resolve that doubt against the movant.

Lamar Outdoor Adver. v. Farmers Co–Op Oil Co., 2009 WY 112, ¶ 10, 215 P.3d 296, 300 (Wyo.2009) (quoting Bangs v. Schroth, 2009 WY 20, ¶ 20, 201 P.3d 442, 452 (Wyo.2009)) (internal citations omitted).

DISCUSSION

[¶ 9] The district court granted summary judgment after determining there was no genuine issue as to whether Mr. Clyde's employment with TNT had been terminated prior to the collision with Mr. Shafer's vehicle. The Shafers contend that Mr. Clyde's employment had not been terminated prior to the accident. The Shafers do not, however, challenge the district court's conclusion that Mr. Clyde was not acting within the course and scope of his employment at the time of the accident in this case, and, accordingly, they do not pursue their claim for recovery under a respondeat superior theory of vicarious liability. Rather, Appellants assert that TNT is directly liable, first, based on a duty to supervise Mr. Clyde's use of the TNT vehicle, founded in Restatement (Second) Torts § 317, and second, under a theory of negligent entrustment. The Shafers assert that these claims are viable despite the fact that an employee acts outside the scope of his employment when harm is caused. We examine the appropriateness of summary judgment on each of these theories in turn, focusing on whether the Shafers have raised a genuine issue with respect to each of the elements of their respective claims.

I. Negligent Supervision

[¶ 10] The Shafers contend that TNT is subject to direct liability for its own negligence in failing to adequately supervise Mr. Clyde. Relying on Restatement (Second) of Torts § 317, the Shafers urge this Court to hold that TNT is directly liable for failing to exercise due care when Mr. Clyde was acting outside the scope of his employment. Section 317 provides as follows:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if

(a) the servant

(i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or

(ii) is using a chattel of the master, and

(b) the master

(i) knows or has reason to know that he has the ability to control his servant, and

(ii) knows or should know of the necessity and opportunity for exercising such control.

(Emphasis added.) Unlike a claim of respondeat superior, a negligent supervision claim under Section 317 is not based on imputed or vicarious liability, but rather on the employer's own negligence in failing to exercise due care to protect third parties from the foreseeable tortious acts of an employee. E.g., Rausch v. Pocatello Lumber Co., 135 Idaho 80, 14 P.3d 1074, 1080 (App.2000). Essentially, the Shafers contend that TNT is an “actor” whose fault must be apportioned along with the fault of all other actors in this case pursuant to Wyoming's system of comparative fault, set forth at Wyo. Stat. Ann. § 1–1–109 (LexisNexis 2011).

[¶ 11] In Killian v. Caza Drilling, Inc., 2006 WY 42, ¶¶ 28 n. 5, 32, 131 P.3d 975, 987 n. 5, 988 (Wyo.2006), we acknowledged that “imposition of employer liability for employee negligence has been recognized under [Section 317],” but we did not adopt or reject the duty because we determined that it was not applicable to the facts of that case. In keeping with our approach in Killian, before we determine whether to recognize a duty of reasonable care under the specific circumstances identified in Section 317, we first consider whether those circumstances are present in this case. Our initial task is to determine whether TNT has demonstrated the absence of a genuine issue as to the existence of each of the elements set forth in Section 317.

A. Termination of Mr. Clyde's Employment

[¶ 12] Because Section 317 assumes the existence of an employment relationship as a predicate to liability, we first examine whether Mr. Clyde was a TNT employee when the harm in this case occurred. It is undisputed that Mr. Clyde was hired by TNT in 2008 and had worked for TNT for approximately one year before the accident occurred. It is also undisputed that TNT provided a...