United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE.
before the Court are various motions filed by the parties,
including defendants' motions for partial summary
judgment (Dkt. ## 70, 71), defendants' motion to
bifurcate the trial (Dkt. # 83), and defendants' motion
for “improved” voir dire (Dkt. # 201). The
parties have also filed numerous motions in limine (Dkt. ##
64, 112, 113, 114, 115, 116, 117, 119, 120, 122, 123) seeking
a pretrial ruling on the admissibility of witness testimony
31, 2017, two tractor-trailers were involved in an accident
on the Will Rogers Turnpike near Vinita, Oklahoma. Sai Wai
was driving a tractor-trailer owned by Swift Transportation
Co. of Arizona (Swift), and he had pulled into a rest stop
off of the highway. Dkt. # 71-5. Adam Cox was operating a
tractor-trailer and he was travelling eastbound on the
highway. Id. Wai was merging onto the highway and
his tractor-trailer had not reached highway speed, and his
tractor-trailer was rear-ended by Adam Cox's vehicle.
claim that Wai's tractor-trailer was accelerating as Wai
attempted to merge onto the highway, and Wai states that he
had his four-way emergency flashers were on when the accident
occurred. Dkt. # 71-1, at 5. Adam Cox testified in his
deposition that he moved into the lefthand lane to allow
another tractor-trailer onto the highway, and he merged back
into the righthand lane after the other tractor-trailer
signaled to him that the lane was clear. Dkt. # 71-2, at 2.
The collision occurred shortly after Adam Cox moved back into
the righthand lane, and he rear-ended Wai's tractor
trailer as Wai attempted to merge onto the highway. Dkt. #
70-1, at 5. Oklahoma Highway Patrol (OHP) Trooper Jason
McCarthy was called to the scene, and the evidence suggested
that there was a substantial difference in speeds between the
two vehicles. Id. He concluded that it was
“reasonable” for Wai's tractor-trailer not to
have reached highway speed, and he stated that Adam Cox
“was not able to give a reason for not seeing
[Wai's vehicle] sooner than he did.” Id.
However, McCarthy did not issue a citation to either driver.
argue that there is evidence tending to support an inference
that Wai did not have his four-way emergency flashers turned
on as he attempted to merge onto the highway. Dkt. # 90, at
11. Plaintiffs also argue that Wai has a history of being
involved in traffic accidents and other “at risk”
driving behavior that should have put Swift on notice that
Wai posed a risk to the safety of the driving public.
Id. at 8-10.
March 5, 2018, plaintiffs Adam and Kimberly Cox filed this
case alleging negligence and negligence per se claims against
Wai and Pyae Maung, a passenger in Wai's tractor-trailer
when the accident occurred. Dkt. # 2. Plaintiffs allege that
Swift is vicariously liable for the conduct of its employees,
and plaintiffs also allege that Swift is directly liable
under a theory of negligent entrustment. Plaintiff Kimberly
Cox seeks damages for loss of consortium. Maung filed a
motion for summary judgment (Dkt. # 26) on the ground that a
passenger cannot be held liable merely for being present when
an accident occurred, and the Court granted Maung's
motion. Dkt. # 60. The parties engaged in numerous discovery
disputes, and each side filed a motion for sanctions for
alleged spoliation of evidence. Dkt. ## 88, 118. The motions
for sanctions were referred to a magistrate judge, and the
magistrate judge denied the motions. Dkt. # 202.
and Sai Wai argue that there are no genuine issues of
material fact as to the possibility that plaintiffs may
recover punitive damages, because there is no evidence
suggesting that Sai Wai acted intentionally or with reckless
disregard for the rights of others. Dkt. # 71. Swift also
seeks summary judgment on plaintiffs' claim of negligent
entrustment against Swift, because Swift has admitted that it
can be held liable for any negligence of its employee, Sai
Wai. Dkt. # 70.
judgment pursuant to Fed.R.Civ.P. 56 is appropriate where
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848,
850 (10th Cir. 1993). The plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules
as a whole, which are designed ‘to secure the just,
speedy and inexpensive determination of every
action.'” Id. at 327.
the moving party has carried its burden under Rule 56(c), its
opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party, there is no
‘genuine issue for trial.'” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986) (citations omitted). “The mere existence
of a scintilla of evidence in support of the plaintiff's
position will be insufficient; there must be evidence on
which the [trier of fact] could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252. In
essence, the inquiry for the Court 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.” Id. at
250. In its review, the Court construes the record in the
light most favorable to the party opposing summary judgment.
Garratt v. Walker, 164 F.3d 1249, 1251 (10th Cir.
and Wai ask the Court to enter summary judgment on the issue
of punitive damages, because they claim that the undisputed
facts would not support an award of punitive damages in favor
of plaintiffs. Punitive damages may be awarded only if the
plaintiff shows by clear and convincing evidence that the
defendant has been “guilty of reckless disregard for
the rights of others.” Okla. Stat. tit. 23, § 9.1.
A person acts in reckless disregard for the rights of others
if he “was either aware, or did not care, that there
was a substantial and unnecessary risk that [his] conduct
would cause serious injury to others.” Gowens v.
Barstow, 364 P.3d 644, 652 (Okla. 2015). The trial court
must determine as a matter of law whether the plaintiff has
produced sufficient evidence that a reasonable jury could
find that a defendant acted with reckless disregard before
instructing the jury as to punitive damages. Badillo v.
Mid Century Ins. Co., 121 P.3d 1080, 1106 (Okla. 2005).
Court must view the evidence in a light most favorable to the
non-moving party and, under this standard, defendants'
motions for summary judgment should be denied on the issue of
punitive damages. The parties rely on essentially the same
facts and evidence to support their characterization of the
accident, but the evidence supports more than one reasonable
interpretation as to the cause of the accident. The Court
cannot rule out Adam Cox's deposition testimony that he
did not believe that Wai turned his four-way emergency
flashers on when he pulled onto the highway. Dkt. # 87-5, at
3. There is no dispute that Wai was not moving at highway
speed when the accident occurred. Plaintiffs have also
offered evidence that Wai had been involved in prior
accidents and this could be relevant to an award of punitive
damages under a negligent entrustment theory. Dkt. # 87-6.
The evidence is not so one-sided in this case that the Court
can find that plaintiffs' demand for punitive damages has
no likelihood of success, and this issue is not appropriate
for summary judgment.
argues that it has admitted that it is liable for Wai's
conduct and, under Oklahoma law, it can no longer be held
liable under direct theories of negligence such as negligent
entrustment or negligent hiring. “Negligent entrustment
of an automobile occurs when the automobile is supplied,
directly or through a third person, for the use of another
whom the supplier knows, or should know, because of youth,
inexperience, or otherwise, is likely to use it in a manner
involving unreasonable risk of bodily harm to others . . .
.” Sheffer v. Carolina Forge Co., LLC, 306
P.3d 544, 548 (Okla. 2013). To establish a claim of negligent
entrustment, the plaintiff must show that a reasonable person
knew or should have known that the person entrusted with the
vehicle would be likely to operate it in a careless,
reckless, or incompetent manner. Green v. Harris, 70
P.3d 866, 869 (Okla. 2003). A necessary element of a
negligent entrustment claim is that the plaintiff's
injury result from the driver's careless or reckless
operation of the vehicle. Clark v. Turner, 99 P.3d
736, 743 (Okla.Civ.App. 2004).
raises two separate arguments in its motion for summary
judgment as to plaintiff's claim of negligent
entrustment. First, Swift cites Jordan v. Cates, 935
P.2d 289 (Okla. 1997), and argues that an employer cannot be
held liable under theories of direct negligence if it has
admitted to respondeat superior liability. Dkt. # 70, at
6-12. Second, Swift argues that plaintiffs have not offered
sufficient evidence to support a claim of negligent
entrustment. The Court can easily dispose of the first
argument, because the Oklahoma Supreme Court has limited
Jordan to its facts and has since recognized that a
plaintiff can bring claims of direct negligence even after an
employer has stipulated to respondeat superior liability. In
Fox v. Mize, 428 P.3d 314 (Okla. 2018), the Oklahoma
Supreme Court found that an employer's stipulation to
respondeat superior liability does not bar a plaintiff from
bringing a separate claim for negligent entrustment.
Id. at 322-23. Swift argues that plaintiffs'
claim of negligent entrustment serves “no practical
purpose, ” and plaintiffs will not prevail on a
negligent entrustment claim unless they can show that Wai was
at fault for the accident. Dkt. # 133, at 4. Even if it is
not practical, plaintiffs are the masters of their own case
and the Court will not prevent them from bringing all viable
claims they wish to assert against defendants.
also argues that there is no evidence tending to support
plaintiffs' claim of negligent entrustment. Dkt. # 70, at
13-15. However, Swift does not dispute that Wai has
previously been involved in traffic accidents and that at
least two of the accidents were deemed
“preventable.” Id. at 4; Dkt. # 72, at
19. Plaintiffs cite eleven prior incidents concerning Wai
that allegedly qualify as “at-risk” driving under
Swift's standards. Dkt. # 90-5. These incidents include
accidents, traffic tickets, and an incident in which Wai
nearly caused an accident due to fatigue. Id. As
will be explained in this Opinion and Order, many of these
incidents do not bear a close similarity to the accident in
this case, and not all of this evidence may be admissible at
trial. However, the Court is ruling on a motion for summary
judgment and it would be premature to assume that certain
evidence will not be admissible at trial. Plaintiffs have
offered evidence that Wai had been involved in prior traffic
accidents and that Swift was aware of Wai's driving
record, and there are genuine disputes as to material facts
that preclude the entry of summary judgment on
plaintiffs' negligent entrustment claim.
ask the Court to bifurcate the trial into separate phases on
the issues of liability and damages. Dkt. # 83. Plaintiffs
respond that there is no disproportionality as to the amount
of evidence as to liability and damages, and there will be no
benefit in terms of judicial economy or conservation of the
parties' resources if the trial is bifurcated. Dkt. #
104, at 3. Plaintiffs state that they intend to put on
evidence as to defendants' liability for punitive damages
in the first phase of trial, and they will offer evidence as
to the amount of punitive damages in a second stage trial.
Id. at 5.
argue that bifurcation of the trial as to issues of liability
and damages will conserve the parties' resources and
avoid the risk of jury sympathy impacting the verdict. Dkt. #
83. Under Fed.R.Civ.P. 42(b), a court may order separate
trials of “one or more separate issues” for
convenience, to avoid prejudice, or to expedite the
proceedings. District courts have substantial discretion to
determine whether bifurcation of a trial will further the
convenience of the parties or avoid prejudice. Aragon v.
Allstate Ins. Co., 185 F.3d 1281, 1285 (D.N.M. 2016).
The party moving for bifurcation has the burden to
demonstrate the need for bifurcation, because a single trial
on all issues ordinarily lessens the expense and
inconvenience of litigation for the parties. Id.
Bifurcation is not warranted if there will be substantial
overlap of the same facts and witnesses in both phases of the
case or if any savings of time and expense is speculative.
Pinon Sun Condominium Assoc., Inc. v. Atain Specialty
Ins. Co., 2018 WL 5312881 (D. Colo. Oct. 26, 2018).
have not shown that bifurcation of the trial into liability
and damages phases will conserve the parties' resources
or promote judicial economy. The trial would undoubtedly be
shorter if the Court bifurcated the issues of liability and
damages and defendants were to prevail at the liability
stage. However, defendants have not shown that the evidence
weighs strongly in favor of either party, and the Court has
no basis to find that a shorter trial will likely result if
the trial is bifurcated. As to possible jury sympathy, there
is always a risk that jurors will sympathize with an injured
plaintiff, and that is why the Court always instructs the
jury not to allow sympathy for any party to affect their
deliberations. The Court declines to bifurcate the trial into
separate phases for liability and damages. The parties are
advised the Court will follow its standard procedure for
cases involving the possibility of punitive damages, and the
trial will be divided into two phases. In the first phase,
the jury will consider defendants' liability,
plaintiffs' compensatory damages, and whether defendants
acted with requisite level of reckless disregard or malice to
justify a second phase for punitive damages. The jury will
answer a special interrogatory with regard to reckless
disregard or ...