NEGLIGENCE-MOTOR VEHICLES-VICARIOUS LIABILITY-NEGLIGENT ENTRUSTMENT

December 8th, 2022 by Rieders Travis in Negligence

Shultz v. Barnes, et al., Pa. No. CV-18-01308 (Lycoming C.P. December 2, 2022) (Linhardt, J.)  The court in this case relied upon Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021).  In Spencer, In Spencer, an employer provided its employee with a company vehicle but did not institute a written policy for the use of that vehicle; two years after the employee received the vehicle, the employee’s husband operated it while under the influence of alcohol, grievously injuring the plaintiff. All parties agreed that the plaintiff was not at fault and that the employee’s husband was negligent in his operation of the vehicle. The employee and employer disagreed, however, over the scope of permissible use of the company vehicle and the extent to which the employer had explained this unwritten policy to the employee. The plaintiff contended that 1) the employee’s husband used the vehicle with the employee’s express or implied permission; 2) the employer owed a duty of care to the plaintiff “to ensure that its vehicle was operated in a non-negligent manner”; 3) the employer should have known that the employee was careless in her use of the vehicle and had given permission to family members to operate the vehicle; and 4) that other of employer’s employees regularly used company vehicles for personal use and permitted their family members to operate those vehicles. The jury ultimately found each defendant liable to the plaintiff, apportioning 45% liability to the employer, 19% liability to the employee, and 36% liability to the employee’s husband; both the employer and employee appealed from this determination. In rejecting the employer’s argument that the jury’s apportionment was against the weight of the evidence, the Superior Court noted that “the [trial] court found it was not unreasonable for a jury to decide that if [the employer] would have enforced stricter supervision of the company vehicle, [the employee’s husband] would not have been in control of the vehicle on the night in question.” The Superior Court reviewed the record, which indicated that employees: “were allowed to possess the vehicle at all times, but were not supposed to drive the cars for personal reasons. However, [the employer] administered minimal oversight of vehicle usage by employees … had no employee handbook or manual, and gave little to no vehicular safety training. [The employer] had a two-page vehicle policy document. .. that was reviewed orally with employees when they received the car and at meetings. [The employer] failed to produce any documentation at trial that [the employee] had signed acknowledging the policy, or even indicated that she had attended any of those meetings when the vehicle policy was discussed.” On these facts, the Superior Court found that “[t]he jury could reasonably find that [the employer’s] failure to manage [the employee] led to her allowing [the employee’s husband] to regularly drive the company vehicle without their knowledge or authorization,” thus subjecting them to liability. The Court agrees with Plaintiff that the facts of Spencer are similar enough to those alleged by Plaintiff in this case that, if Plaintiff proves his allegations at trial, the factfinder could reach a similar conclusion. In Spencer, the employer asserted that it “provided verbal instructions to employees that the only permissible personal use of company cars was for commuting to and from work and job sites,” but had not memorialized these instructions in a written policy. The employee, however, “alleged that [the employer] did not inform her of these policies” and “was not told or given anything from [the employer] that family members were not permitted to use [the employer’s] vehicles.” Even so, the employee stated that she did not let her husband drive the vehicle except once for “an emergency,” though another family member testified that the employee’s husband had driven the car on numerous occasions. On these facts, both the trial court and the Superior Court found that the jury was permitted to find the employer directly liable to the plaintiff for failing to enact and enforce policies to prevent his harm. Here, Plaintiff alleges, and Shannon Tire admits, that there was no written policy regarding the use of company vehicles as of June 22, 2017. Plaintiff highlights portions of the deposition testimony of Steven Shannon, Kelly Shannon, and Thomas Barnes that a factfinder could construe as contradictory, creating a question of what exactly Shannon Tire’s unwritten policy was and whether it was clearly communicated to employees. As Plaintiff notes, “Kelly Shannon testified that the company did not check the mileage on the vehicles, they did not monitor the company credit cards provided to employees for gas for the company vehicles, nor did they take any other steps to ensure that the company vehicles were being used only for work purposes as the alleged unwritten policy purported to require.” The Superior Court in Spencer found that similar factors were relevant and supported the verdict against the employer in that case. Additionally, Plaintiff notes that shortly after the collision, Alec told a State Trooper that he had asked Thomas for permission to use the company vehicle on that night. Alec has since claimed that he was lying when he made that statement, and every other witness to address the matter has indicated that Alec did not ask Thomas for permission to use the company vehicle on June 22, 2017. The question of whether Alec was lying at the time of the collision or lying when he gave an inconsistent statement at his deposition is a quintessential “material issue of fact,” however, and is precisely the sort of credibility determination that a jury must make. Upon a review of the record, the Court cannot conclude as a matter of law that Plaintiff will be incapable of establishing each of the elements of direct negligence against Shannon Tire.  In terms of vicarious liability, the court found that a material issue of fact exists as to whether the employee was acting within the scope of his employment when he allegedly gave his drunk son permission to operate the company vehicle.  The parties dispute the scope of Shannon Tire’s vehicle use policy and whether it was communicated to Thomas. Thus, a jury could conclude that Shannon Tire’s failure to communicate a policy forbidding use of its company vehicles for personal use or by family members, coupled with a failure to ensure that the vehicle was not used in such a manner, amounted to a policy of tacit approval of such uses. Under Spencer, when a company acquiesces to personal and family uses of company vehicles provided to employees for around-the-clock use, an employee utilizing the vehicle in that manner by allowing a family member to operate it while intoxicated may support a finding that the use of the vehicle was within the scope of employment. Regardless of the Court’s assessment of the likelihood that Thomas was acting within the scope of his employment on June 22, 2017, the presence of disputed issues of fact renders that determination the jury’s to make in the first instance.  In terms of negligent entrustment, the court reviewed the criteria.  The Court concludes that a genuine issue of material fact exists as to whether Thomas knew or should have known that Alec was likely to operate the company vehicle in a manner that created an unreasonable risk of harm to others. Whether mere awareness of all or part of a driver’s history of violations is sufficient to meet the knowledge standard of negligent entrustment is a fact-specific question that depends upon the frequency, severity, and recency of the various violations. Exactly which portions of Alec’s driving record Thomas was aware of, and whether that awareness should have given him knowledge that Alec was likely to operate the company vehicle in an unreasonably risky manner, is a question for the jury. Thus, the Court will deny the Motion for Summary Judgment on the negligent entrustment claim as it relates to Thomas. The Court finds, however, that the record is devoid of facts that would allow a jury to conclude that Christine “entrusted” Alec with the company vehicle. Although Alec initially claimed that Thomas gave him permission to operate the company vehicle, Plaintiff has pointed to no evidence of record suggesting that Alec asked Christine for permission to use the company vehicle or that she granted him permission. Therefore, the Court will grant the Motion for Summary Judgment as to the claim for negligent entrustment against Christine.  In terms of punitive damages, the court said that it might find punitive damages as a matter of law, but it would not grant summary judgment on that. The Court cannot conclude that the record establishes the availability of punitive damages to a legal certainty, such that it would be appropriate to remove the question from the jury’s consideration in the first instance. Certainly, if Plaintiff proves his allegations concerning the circumstances of the collision, the award of punitive damages will be justified; it is even possible that a jury’s failure to award such damages may be against the weight of the evidence. Alec’s admission of negligence and his criminal plea, however, are not sufficient by themselves to require an award of punitive damages as a matter of law. Although Alec has testified that he does not remember the circumstances of the collision and therefore is unable to supply his own specific version of events, it does not follow that a jury is required to accept the findings of law enforcement as conclusively true. Ultimately, the Court may only remove issues of fact from jury consideration in the clearest of cases; in the absence of controlling case law establishing that the circumstances presented here mandate a finding of punitive damages, the Court will allow the jury to consider the issue.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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