United States District Court, D. Minnesota
E. Wojtalewicz, for plaintiffs.
Matthew D. Sloneker, for defendants.
MEMORANDUM OPINION AND ORDER ON DEFENDANT'S
MOTION FOR PARTIAL SUMMARY JUDGMENT
R. TUNHEIM CHIEF JUDGE
diversity case is a personal-injury action brought by Ricardo
and Marisol Gaytan Soto against Anthony Shealey and Swift
Transportation Company of Arizona, LLC (“STC”).
Shealey was driving a semi truck that overturned on
Interstate 90 when he tried to avoid hitting six deer. Mr.
Soto was driving a sedan that collided with the overturned
trailer. The Sotos assert a negligence claim against Shealey
(Count I) and a vicarious-liability claim against STC for
Shealey's negligence (Count III). The Sotos also assert a
direct negligence claim against STC (Count II) under multiple
tort theories, including negligent hiring, retention,
selection, supervision, and entrustment. STC moves for
summary judgment on Count II, arguing that no reasonable jury
could find STC negligent under any of those theories of tort
liability. Because the Sotos neither allege nor present
evidence that Shealey committed an intentional tort, the
Court will grant Defendants' motion with respect to the
Sotos' claims for negligent hiring and retention. But the
Court will deny STC's motion with respect to the
Sotos' claims for negligent selection, supervision, and
entrustment because genuine disputes of material fact remain
with respect to those claims.
was an STC employee in late 2007 and early 2008, driving an
18-wheeler semi truck. (Aff. of Michael T. Burke
(“Burke Aff.”) ¶ 2, Ex. 1 (“Shealey
Dep.”) at 14:20-15:23, May 1, 2018, Docket No. 106.)
During that time, STC documented multiple violations by
Shealey related to his speed and hours driven. (Burke Aff.
¶ 3, Ex. 2 (“Malchesky Dep.”) at 22:5-25:5.)
early 2016, Shealey wanted to rejoin the truck-driving
workforce, and so he completed truck-driving school and
renewed his commercial driver's license. (See
Shealey Dep. at 16:3-17:11.) He rejoined STC in July 2016,
and completed his training in August 2016. (Id. at
19:5-14.) During his training in August 2016, his truck's
on-board computer system logged a “Critical Event
Report, ” indicating that the truck's
“stability control yaw system [was] triggered, ”
which could have been caused by going around a turn too
quickly or hard braking. (Malchesky Dep. at 27:19-30:22.)
his training, Shealey was driving for STC as an employee.
(Shealey Dep. at 21:11-22.) After that, Shealey purchased his
own truck and became an owner-operator for STC. (Id.
at 21:11-17; 63:14-20.) Shealey financed the truck through a
company called Idealease, a subsidiary of STC. (Id.
at 23:10-25.) Shealey's monthly payments on the loan were
deducted from his STC paycheck. (Id.) Shealey's
agreement with STC is titled “Contractor
Agreement.” (Burke Aff. ¶ 6, Ex. 5 at 1.) Shealey
was not permitted to haul for anyone other than STC.
(Id. ¶ 5.A.) While Shealey operated under
STC's authority, STC had “exclusive possession,
control and use” of the truck and trailer.
(Id.) If Shealey failed to make on-time deliveries,
STC could “temporarily take possession of the Equipment
and complete the transportation.” (Id. ¶
5.C.) STC also had the sole authority to bar Shealey from
employing anyone that STC “deem[ed] unqualified”
to operate the equipment. (Id. ¶ 7.D.) Shealey
was required to comply with STC's speed restrictions
(which are different than posted speed limits on roadways).
(Id. ¶ 5.A; see Shealey Dep. at
61:6-15.) STC also required Shealey to maintain an on-board
electronic monitoring system (sometimes called a
“Qualcomm Communication system”). (See
Burke Aff. ¶ 6, Ex. 5 ¶ 5.D.)
truck had a governor that limited its speed to 68 mph.
(Shealey Dep. at 61:1-62:25.) STC's company trucks -
i.e., not owner-operator trucks - are governed at 62 or 64
mph. (Id.) STC's “Driver Handbook”
states that speeds of 67 to 70 mph are
“excessive” and speeds above 70 mph are
“flagrant.” (Decl. of Brian Wojtalewicz, ¶
5, Ex. E (“Long Rep.”) at 7, Apr. 13, 2018,
Docket No. 93.) STC's Driver's Handbook also warns of
the danger of migrating deer. (Id. at 5.) It notes
that there is a spike in deer- related crashes in May and
June and in October and November each year. (Id.) It
also twice warns drivers in all-capital letters: “NEVER
SWERVE!” (Id.) It is unclear whether STC
requires its drivers to read the handbook. (Burke Aff. ¶
8, Ex. 7 (“Peyton Dep. ”) at 23:1-24:13.) STC
neither tests their drivers on the handbook nor has a process
for ensuring that their drivers read or maintain familiarity
with the handbook. (Id. at 19:1-20:3.)
October 31, 2016, Shealey got a speeding ticket in Missouri.
(Shealey Dep. at 25:4-18.) Shealey claims he was going 68 mph
in a 60-mph zone. (Id.) STC records indicate that he
was going 84 mph in a 60-mph zone. (Malchesky Dep. at
20:14-21:1.) It is unknown whether STC took any action in
response to Shealey's speeding ticket. (Id. at
21:2-12.) In the trucking industry, there is an expression
called “out-running your headlights, ” referring
to a situation in which a driver is traveling at a speed such
that the minimum stopping distance for the vehicle exceeds
the distance the driver can see. (See Peyton Dep. at
14:18-15:14.) STC trains its drivers about such situations.
10:00 p.m. on November 15, 2016, Shealey was driving
westbound in the right-hand lane of I-90 near Luverne,
Minnesota, going 68 mph on cruise control in a 70-mph zone.
(Shealey Dep. at 27:18-21; Burke Aff. ¶ 4, Ex. 3
(“Crash Report”).) It was a clear, calm night,
and there was little traffic. (Shealey Dep. at 26:16-22;
see also Crash Report.) At that time, Shealey would
have needed about 300 yards to stop his truck; Shealey
admitted he could not see that far and that “[e]ven in
daylight it's really hard” to see that far.
(Shealey Dep. at 74:20-76:1.)
after 10:00 p.m., Shealey saw six deer in I-90's
westbound lanes, two in the middle of the road and four near
the shoulder. (Id. at 27:9-28:5). When he saw the
deer he tapped his brakes which released the cruise control,
decelerated, and flashed his lights. (Id. at
27:9-28:5; 32:15-33:1; Malchesky Dep. at 61:24-63:24.)
Flashing the truck's headlights caused the deer to freeze
and stare in his direction. (Shealey Dep. at 32:15-33:1.)
thought he could avoid a collision by moving to the left and
missing the deer. (Id. at 29:22-30:8.) He moved over
to the left-hand lane and then onto the left shoulder.
(Id. at 27:9-28:11.) He made it around the deer
without striking them, but there was a drop-off where the
pavement ended, dropping down to the grassy median.
(Id.) The truck's left tires slipped off the
road and into the median, but the right tires remained on the
pavement. (Id. at 28:6-29:7.) Shealey felt his
trailer pulling sideways into the median. (Id. at
28:12-24; 30:14-23.) He then steered hard to get his truck
and trailer back up onto the pavement, which caused the whole
rig to tip onto its left side and slide onto the freeway.
(Id. at 29:98-18, 34:22-35:1.) The cab of the truck
came to a rest in the north ditch, and the overturned trailer
blocked both westbound lanes of traffic. (Id. at
39:3-9; see also Crash Report.) Shortly thereafter,
a vehicle driven by Mr. Soto collided with the underside of
the trailer. (Crash Report.)