JAMES L. GRAHAM, District Judge.
Plaintiffs Michael J. Boyd, Sr., and Sherry R. Boyd filed this action alleging personal injury and property damage on August 3, 2012, in the Common Pleas Court of Franklin County, Ohio. The named defendants are Fremont Contract Carriers, Inc. ("Fremont")
In Count One of the complaint, plaintiffs allege that Michael Boyd sustained bodily injuries as a result of the reckless and/or negligent actions of Fremont and Smith. Count Two asserts a claim for loss of consortium on behalf of Sherry Boyd, the wife of Michael Boyd. Count Three is a claim for damages to plaintiff's residence and real property, including diminution of value. Count Four states that as a result of the fuel spill and remaining fuel residue allegedly caused by the reckless and/or negligent actions of Fremont and Smith, a continuing nuisance exists on the property. Count Five alleges that Fremont failed to adequately train, supervise and control Smith and negligently retained him as an employee. Plaintiffs allege that in failing to adequately train, supervise and control Smith, Fremont acted willfully, wantonly maliciously and with conscious disregard for the safety of others, thereby rendering the defendants liable to plaintiff for punitive damages. Count 6 asserts claims against Jane and John Doe Defendants 1-10 under a variety of theories, including negligence, recklessness, willful and/or wanton conduct, negligence per se, strict liability and vicarious liability. Count 7 is a request for declaratory judgment against Liberty Mutual concerning the subrogation rights of Liberty Mutual, plaintiffs' property insurer, and plaintiffs' obligations to reimburse Liberty Mutual for the sums it has paid on plaintiffs' claims for property damage to their house foundation and driveway.
On September 6, 2012, defendants Fremont and Smith filed a notice of removal of the action to this court based on diversity of citizenship. On September 23, 2013, a suggestion of death was filed as to defendant Smith, indicating that Smith died on September 1, 2013. This matter is now before the court on the motion for partial summary judgment filed on behalf of defendants Fremont and Smith. The motion seeks summary judgment on Counts 1 and 3 through 7. As to Count 1, the motion seeks summary judgment only on the punitive damages aspect of Michael Boyd's personal injury claim.
"The court shall grant summary judgment 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 central issue is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law."
The moving party has the burden of proving the absence of a genuine dispute and its entitlement to summary judgment as a matter of law.
The nonmovant must "do more than simply show that there is some metaphysical doubt as to the material facts[.]"
As noted above, on September 23, 2013, a suggestion of death was filed on the record as to defendant Smith. Under Fed. R. Civ. P. 25(a)(1), if a party dies and the claim is not extinguished, the court may order substitution of the proper party upon the filing of a motion for substitution. "If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed." Rule 25(a)(1). Almost six months have passed since the filing of the suggestion of death, and no motion for substitution has been filed. The claims against defendant Smith must be dismissed pursuant to Rule 25(a)(1), and the partial summary judgment motion filed on his behalf is moot.
Fremont has moved for summary judgment on Count Six, in which plaintiffs assert claims against Jane and John Doe Defendants 1-10. None of these defendants have been identified. Count Six does not allege that the Jane and John Doe defendants are agents or employees of Fremont, nor does it specifically allege a claim against Fremont. The complaint in the instant case was filed on August 3, 2012. In an order filed on February 14, 2014, the magistrate judge noted that the Jane and John Doe defendants in Count Six have never been identified or served with process.
Rule 4(m) requires completion of service of process within 120 days after the filing of the complaint. Rule 4(m);
Fremont has moved for summary judgment on Count Seven. In Count Seven, plaintiffs seek declaratory judgment solely against Liberty Mutual concerning the extent to which plaintiffs are obligated to reimburse Liberty Mutual for sums it paid to plaintiffs for their property damage claims in the event that plaintiffs recover additional sums for property damage in this case. The record shows that Liberty Mutual paid plaintiffs' claims for damage to plaintiffs' residence, driveway, and yard. Liberty Mutual then reached a settlement on those claims with Northland Insurance Company ("Northland"), Fremont's insurer, and signed a release in favor of Northland, Fremont, and Smith as to any and all current and future property damage claims and causes of action arising from the accident on August 14, 2010. Doc. 25, Exs. D-F. Liberty Mutual is only named as a defendant in Count Seven. Liberty Mutual was served by sending a copy of the complaint in this case by certified mail sent to the address where Liberty Mutual does business, and has not appeared in this case. Fremont is not named as a defendant in Count Seven, nor has Fremont asserted any cross-claims against Liberty Mutual.
On February 7, 2014, the magistrate judge entered an order pursuant to S.D. Ohio Local Rule 55.1, which provides in part:
The magistrate judge ordered plaintiffs to show cause within fourteen days from the date of the order why their claims against Liberty Mutual should not be dismissed, accompanied, if appropriate, by a request to enter default and a separate motion for default judgment.
Fremont has moved for summary judgment on Count Five. In that count, plaintiffs claim that Fremont was negligent in hiring, supervising, training and/or retaining Smith as a driver, and in entrusting its vehicle to him. The elements of a claim of negligent hiring, supervision, training or retention under Ohio law are: (1) the existence of an employment relationship; (2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act causing the plaintiff's injuries; and (5) the employer's negligence in hiring, supervising, training and/or retaining the employee as the proximate cause of the plaintiff's injuries.
To prove a claim of negligent entrustment of a motor vehicle, a plaintiff must prove: 1) that the motor vehicle was driven with the permission and authority of the owner; 2) that the entrustee was in fact an incompetent driver; and 3) that the owner knew at the time of the entrustment that the entrustee had no driver's license, or that he was incompetent or unqualified to operate the vehicle, or had knowledge of such facts and circumstances as would imply knowledge on the part of the owner of such incompetency.
In support of its motion, Fremont has presented the affidavit of Ann Dostal, Vice President of Safety for Fremont. Ms. Dostal stated in her affidavit that Smith had been a truck driver since 1969, and that when he applied to work for Fremont on February 1, 2009, he had no accidents, citations or forfeitures in the preceding three years. Dostal Aff., ¶¶ 9-12. The only accident Smith had while working for Fremont was the accident on August 14, 2010, which is the subject of this case. Dostal Aff., ¶ 13. At the time of his application and during his employment with Fremont, Smith had a valid commercial drivers license. Dostal Aff., ¶ 14. Fremont contacted Smith's prior employers, including United Transport, Inc., where Smith worked from January 1, 2008, to February 21, 2009, and learned that Smith had no moving violations and one log-book violation while working for United Transport, and never tested positive for drugs or alcohol during that time. Dostal Aff., ¶¶ 15-17.
Dostal further stated that Smith passed a physical examination, a drug test, a road test, and a written test during the application process. Dostal Aff., ¶¶ 19-22. Smith also passed a test on cargo securement. Dostal Aff., ¶ 24. After thirty days, Fremont conducted a driver review of Smith that was satisfactory. Dostal Aff., ¶ 23. Smith reviewed the Northland Safe Driving Video Series at orientation on March 2, 2009, and attended regular safety meetings during his time with Fremont. Dostal Aff., ¶¶ 25-26. Smith was required to submit to a random controlled substances test on July 10, 2010, and the result was negative. Dostal Aff., ¶ 27.
On August 14, 2010, Smith had been driving seven hours and fifty-two minutes when the accident occurred. Drivers are permitted to drive up to ten consecutive hours. Dostal Aff., § 28. Fremont was notified of the accident on August 14, 2010, at 6:52 p.m. Dostal Aff., ¶ 30. Because Smith was cited for the accident, regulations required that he submit to a drug and alcohol test. Dostal Aff., ¶ 31. Samples were collected at the hospital emergency room where Smith was being treated for cuts to his head and knee. Dostal Aff., ¶¶ 32, 34. Michael T. Kelly, a medical review officer, found that the test was positive for opiates. Dostal Aff., ¶ 35. As a result of this test, Fremont terminated Smith. Dostal Aff., ¶ 36. However, Dostal was not then aware that Smith had been treated with narcotic pain medication at the hospital following the accident. Dostal Aff., ¶ 37. After reviewing Smith's emergency room records, the medical review officer issued a report dated March 18, 2011, finding that Smith was not under the influence of any drugs or alcohol at the time of the accident. Dostal Aff., ¶ 40. Dostal further stated that Smith was never cited by the Columbus Police Department for driving under the influence of drugs or alcohol on August 14, 2010. Dostal Aff., ¶ 43. Dostal also had no information indicating that Smith was speeding, driving recklessly, talking on the cell phone, or otherwise distracted at the time of the accident on August 14, 2010. Dostal Aff., ¶ 42.
As applied to the elements of the negligent hiring, supervising, training and/or retaining claim, the evidence shows that an employment relationship existed between Smith and Fremont, and that the actions of Smith caused injuries to the plaintiffs. However, there is no evidence that Smith was an incompetent driver, that Fremont knew or had any reason to know that Smith was incompetent, or that there was any negligence on the part of Fremont in hiring, supervising, training or retaining Smith which proximately resulted in plaintiffs' injuries. Smith had worked as a truck driver for over forty years. He had not had an accident in the three years prior to being hired by Fremont, and he passed several tests during the application process. Smith also attended regular training sessions at Fremont. The accident on August 14, 2010, was the first and only accident he had while employed by Fremont, and he was terminated following the accident. As to the elements of negligent entrustment, the evidence shows that Smith drove the truck with Fremont's permission. However, there is no evidence that Smith was an incompetent driver, nor is there any evidence which shows, or from which it could be inferred by a jury, that Fremont knew or should have known that Smith was incompetent or unqualified to operate the vehicle.
Plaintiffs did not address the claims in Count Five in their response to Fremont's motion for partial summary judgment, nor have they submitted any evidence which disputes the information provided by Dostal in her affidavit. The only evidence submitted by plaintiffs is an unauthenticated copy of a traffic crash report purportedly completed by a Columbus police officer. Doc. 28, Ex. 1. This report, which is neither sworn nor certified, fails to meet the requirements of Fed.R.Civ.P. 56(e) and is inadmissible.
No reasonable jury could find that all of the elements of the negligent hiring, supervising, training, retaining or entrustment claims have been satisfied, and no genuine dispute has been shown to exist in that regard. Fremont is entitled to summary judgment on Count Five.
Fremont seeks summary judgment on Count Three, which alleges damage caused to plaintiffs' real property due to fuel spilled from the truck, and damage to the yard, fencing, driveway, trees, and foundation of the residence. Fremont has also moved for summary judgment on Count Four, which alleges a claim for nuisance due to spilled fuel residue. Plaintiffs have not addressed Fremont's motion for summary judgment on Counts Three and Four in their response.
In addition to a claim for damage to real property, plaintiffs have asserted a claim for nuisance. The term "nuisance" describes a tort consisting of anything wrongfully done or permitted that unreasonably interferes with another in the enjoyment of his property.
Fremont has presented the affidavit of Ann Dostal, Vice President of Safety for Fremont, who stated that Fremont spent $37,000 to clean up the diesel fuel spilled near plaintiffs' property on August 14, 2010. Dostal Aff., ¶ 44. The record also includes a copy of an article concerning plaintiffs' property which appeared on the local 10TV website on March 6, 2011. Doc. 25, Ex. B. According to the article, there had been nine crashes at the top of the hill by plaintiffs' property during the preceding six months, the August 14, 2010, accident at issue in this case being the first of these accidents, and that a hazardous materials crew was called to clean up fuel that leaked as the result of a tractor-trailer cab rolling down the hill into plaintiffs' back yard the previous Saturday.
Fremont has also submitted a report from plaintiffs' expert, Larry M. Dehus, a forensic scientist with Law-Science Technologies, Inc., who evaluated the scene of "repeated truck accidents which have resulted in the contamination of the soil adjacent to Mr. Boyd's property[.]" Doc. 25, Ex. A. In his report dated April 30, 2013, Dehus stated that he conducted a preliminary site inspection at plaintiffs' property, and saw no visible physical evidence of diesel fuel or other contaminants on the property. Dehus stated that extensive cleanup was done after the accidents and that the only way to determine whether or not any contaminants remained was to take multiple core samples in the area and do chemical testing for the presence of diesel fuel. Dehus noted the presence of cracks in the west basement wall adjacent to the driveway which were likely caused by lateral forces on the foundation from equipment traffic. Dehus did not review any documents regarding the cleanup of the diesel fuel spills that had occurred. Doc. 25, Ex. A.
Finally, Fremont has submitted the affidavit of Carol J. Mielke, a technical specialist with Northland regarding the accident of August 14, 2010. Doc. 25, Ex. 3. Mielke stated that Shannon Volk of Liberty Mutual sent a letter to Northland dated April 6, 2011, requesting that Northland reimburse Liberty for amounts that Liberty paid to its insured, Michael Boyd, for damage to grass, a tree, the driveway, and the foundation of the house. Mielke Aff., ¶¶ 5-6; Exs. D, F. Northland agreed to pay $3,636.96 to settle all of Liberty Mutual's claims for reimbursement, and Liberty Mutual accepted that offer. Mielke Aff., ¶ 7. Liberty Mutual also signed a property damage release whereby Liberty Mutual, as subrogee of the Boyds, released Northland, Fremont, and Smith from all claims and causes of action which have or may accrue or grow out of "any and all known and unknown, foreseen and unforeseen property damage and the consequences thereof resulting or to result from the occurrence on or about August 14, 2010 in Columbus, OH." Doc. 25, Ex. E.
Plaintiffs have made no argument and produced no evidence to refute Fremont's arguments and evidence that it is entitled to summary judgment on plaintiffs' property damages claims alleged in Counts Three and Four. Under Ohio law, an injured party is entitled to only one satisfaction for an injury.
Fremont argues that it is entitled to summary judgment on plaintiffs' punitive damages claims. Under Ohio Rev. Code §2315.21(C)(1), "punitive or exemplary damages are not recoverable from a defendant in question in a tort action unless ... (1) [t]he actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate." Ohio Rev. Code §2315.21(C)(1);
Punitive damages are available upon a finding of actual malice on the part of the employer.
An employer may also be held liable for punitive damages where the employer authorized or subsequently adopted the employee's wrongful act or where the employer participated in the wrongful conduct.
This court notes that in
The First District Court of Appeals stated:
104 Ohio App.3d at 406 (internal citations omitted). The court then held that jury instruction was erroneous.
The language quoted above may be read as suggesting that punitive damages may be awarded against an employer solely on the ground that the employee was acting within the scope of his employment. However, as noted by Judge French, writing for the Tenth District Court of Appeals in
This court agrees with the analysis in
Plaintiffs rely on the police report of the accident, which indicates that Smith was charged with failure to control the vehicle. Plaintiffs argue that the failure to control a tractor trailer weighing over 26,000 pounds by driving off the roadway indicates a disregard for the rights and safety of others and poses others to a great probability of causing substantial harm. Plaintiffs then contend, with no evidentiary support, that because Smith was acting within the scope of his employment while driving the tractor trailer with Fremont's permission, "Fremont authorized the driving, and subsequent failure to control, by Defendant Smith." Doc. 28, p. 6.
Plaintiffs have produced no evidence concerning what caused the accident, other than the unauthenticated and inadmissible police report. Even if the report is considered, the facts related in the report would not support a finding of intentional or even reckless disregard for the safety of others. At most, the report suggests that Smith may have been negligent in losing control of his vehicle. Mere negligence is not sufficient to support an award of punitive damages.
More importantly, there is no evidence that Fremont knowingly authorized, participated in, or ratified Smith's loss of control of the vehicle. Plaintiffs in essence argue that the mere fact that Smith was driving the tractor trailer within the scope of his employment with Fremont was enough to support an award of punitive damages. However, this is not the law of Ohio. An employer cannot not be held liable for punitive damages for the acts of its employee merely because the employee undertook actionable conduct while acting within the scope of his employment.
Negligent hiring may constitute evidence of wantonness, oppression, or malicious intent.
There is also no evidence that Fremont ratified Smith's conduct after the accident; rather, Fremont terminated Smith's employment following the accident. In contrast to an employer who ratifies its employee's conduct by retaining the employee after knowledge of the employee's malicious conduct, the fact that the employer discharged the employee upon learning of his actions may show the employer's disapproval of the employee's conduct and relieve him from liability for exemplary damages.
Plaintiffs have not produced evidence sufficient to support a jury award for punitive damages against Fremont, and no genuine dispute has been demonstrated in that regard. Fremont is entitled to summary judgment on plaintiffs' punitive damages claims.
In accordance with the foregoing, the claims against Donald Smith are dismissed pursuant to Rule 25(a)(1), and the motion for partial summary judgment (Doc. 25) is moot as to Smith. Count Six is dismissed without prejudice pursuant to Rule 4(m) for failure to perfect service of process, and Jane and John Doe Defendants 1-10 are dismissed without prejudice as parties. Count Seven is dismissed without prejudice for failure to prosecute, and Liberty Mutual is dismissed as a party without prejudice. Fremont Contract Carriers' motion for partial summary judgment (Doc. 25) is granted in part. Fremont is awarded summary judgment on Counts Three, Four and Five, and on plaintiffs' claims for punitive damages. Fremont's motion for partial summary judgment on Counts Six and Seven is denied as moot.
