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Cox v. Swift Transportation Co. of Arizona

United States District Court, N.D. Oklahoma

August 7, 2019

ADAM COX and KIMBERLY COX, Plaintiffs,



         Now 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 and evidence.


         On July 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. Id.

         Defendants 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.

         Plaintiffs 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.

         On 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.


         Swift 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.


         Summary 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.

         “When 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. 1998).


         Swift 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).

         The 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.


         Swift 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).

         Swift 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.

         Swift 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.


         Defendants 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.

         Defendants 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).

         Defendants 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 ...

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