The opinion of the court was delivered by: Alan B. Johnson, District Judge.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter is before the court on defendant's Motion for Partial Summary Judgment. Plaintiff's claim for simple negligence is not subject to this motion. Plaintiff concedes her claims for negligent hiring and negligent retention. Defendant moves for summary judgment on the claims for negligent training, negligent supervision, negligence per se and for punitive damages. The parties have stipulated to some of the facts. Plaintiff does not contest the facts as set forth in defendant's motion except as noted in the disputed fact section below. See Pl.'s Response at 1.
On May 14, 1996, the District Court of Lyon County, Kansas issued a warrant for the arrest of plaintiff Carolyn Sue Glover on the charge of taking her daughter from the state and away from the daughter's guardian, Ms. Glover's ex-husband. Ms. Glover was apprehended in Oregon and waived extradition to Kansas.
Defendant TransCor America is a Tennessee Corporation engaged in the business of transporting prisoners and detainees throughout the United States. TransCor is a for-profit corporation.
On May 22, 1996, plaintiff Carolyn Sue Glover was turned over to the custody of TransCor, in Roseburg, Oregon for the purpose of her extradition to Lyon County, Kansas where the criminal charge was pending. Ms. Glover was transported from Roseburg to Emporia, Kansas in a Ford E–350 van operated by two of TransCor's employees, David Dufer and David Kirkland. At all times relevant to this case, Mr. Dufer was acting in the course and scope of his employment by TransCor. The van did not have seatbelts in the prisoner seat areas.
The van proceeded from Roseburg to Cody, Wyoming via Spokane, Washington and various Montana towns. After stopping to pick up a prisoner in Cody, Wyoming on May 24, 1996, at 11:00 p.m. the van left for Jackson, Wyoming via U.S. Highways 14 and 89/287, going through Yellowstone National Park for part of the trip. Dufer Aff. at ¶¶ 2 and 3.
While driving down the highway in the Park, the van came to a "T" intersection with a stone wall along the cross road opposite the van. Mr. Duffer applied the brakes abruptly and brought the van to a stop at the stop sign. At the time, Ms. Glover was seated in the van on bench seat behind Mr. Dufer and Mr. Kirkland. There was a chain link fence forming a rectangular surrounding the area around Ms. Glover's bench seat. In the corner where the perpendicular lengths of chain length formed a right angle, there was some hardware. The van was traveling at approximately 20 to 25 miles per hour at the time of Mr. Dufer's sudden stop. Pl.'s Dep. at 104.
When the van stopped abruptly, Ms. Glover fell forward and to her left off the seat, and struck the bridge of her nose on a hinge. She suffered a cut which Mr. Dufer and Mr. Kirkland washed off and treated with aspirin. The extent and seriousness of her injuries are disputed as set forth below. The van continued on to Emporia, Kansas where Ms. Glover was delivered to the Lyon County Sheriff.
Defendant permits its van drivers one overnight rest period following 24 hours on the road. During the 1,500 mile trip from Roseburg, Oregon to Jackson, Wyoming, the drivers had one overnight rest period and several restroom and food breaks and stops to pick up and to deliver prisoners. The remaining time they took turns driving and, per defendant's policy, they could sleep in the front passenger seat when not needed "to take care of something else." Townsel Dep. at 49–51. The drivers had an overnight rest period when they reached Jackson, Wyoming, at 3:05 a.m. on the morning of May 25, 1996, sometime after the sudden stop at issue.
Defendant provides its employees with 40 hours of training including one hour of defensive driving training. Id. at 15. In addition, defendant's drivers are subject to a 90–day on-the-job training and probationary period during which the new employee works with a senior employee. Id. at 22–24.
Mr. Dufer has a good driving history with only one $25 traffic ticket in the three years prior to his employment with TransCor in October of 1984. When TransCor hired Mr. Dufer, it determined that he had been honorably discharged upon his retirement from the United States Army, where he had obtained the rank of master sergeant. In the army he had driven trucks without any history of driving problems. Prior to this incident he had no traffic violations and had not been involved in any other traffic accidents.
Defendant does not allow its passenger/prisoners to use seat belts.
Ms. Glover alleges that the reason Mr. Dufer braked suddenly was that he had nodded off in sleep and woke just in time to brake when he saw the wall. Ms. Glover alleges that the injuries she suffered were serious and produced long-term health problems, including seizures and that she suffered disfigurement. Ms. Glover alleges defendant's policy of not providing seat belts for prisoner/passengers is unsafe and violates various state or federal laws or regulations.
Defendant denies Mr. Dufer fell asleep and denies that Ms. Glover could have suffered serious or long-term injuries in the incident. Defendant's position is that the use of seat belt would present greater safety hazards because the prisoners can use the metal portion of the seatbelt to break off handcuffs. Townsel Dep. at 28.
Plaintiff filed her Complaint on November 5, 1998. On April 19, 1999, and again April 26, 1999, plaintiff filed Amended Complaints. By her second Amended Complaint she brings the following causes of action: first cause of action for negligence; second cause of action for negligent training, retention and supervision; third cause of action negligent hiring and fourth claim for relief negligent per se; and, fifth claim for relief for negligence per se. Plaintiff alleges she suffered injury in the sudden stop and seeks damages, including past and future pain and suffering, disfigurement, physical disability, permanent physical impairment, past and future medical expenses, past and future income and monetary loss, loss of consortium, punitive damages, emotional and compensatory damages, loss of enjoyment of life, costs, and pre-and post-judgment interest.
Defendant moves for summary judgment on plaintiff's second, third and fourth claims for relief and on plaintiff's claim for punitive damages. As noted above, plaintiff concedes her claims for negligent hiring and retention and therefore this motion involves plaintiff's claims for negligent training, negligent supervision, negligence per se, and for punitive damages.
Because defendant concedes that Mr. Dufer was acting within the scope of his employment at the time of the sudden stop at issue, defendant will be liable for any damages under the doctrine of respondeat superior if the jury should find that plaintiff was injured as a result of Mr. Dufer's alleged negligence.
The standard for consideration of motions for summary judgment is well known:
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We review the district court's grant of summary judgment de novo, applying the same standard as it applied. See McKnight v. Kimberly Clark Corp., 149 F.3d 1125, 1128 (10th Cir.1998). This standard requires us to examine the record in order to determine whether any genuine issue of material fact was in dispute; if not, we determine whether the district court correctly applied the substantive law. See id. In doing so we examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposing the motion. See id. Where the nonmovant will bear the burden of proof at trial on a dispositive issue, however, that party must go beyond the pleadings and designate specific facts so as to make a showing sufficient to establish the existence, as a triable issue, of an element essential to that party's case in order to survive summary judgment. See id.
UMLIC–Nine Corp. v. Lipan Springs Development Corp., 168 F.3d 1173, 1176 (10th Cir.1999).
The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In so doing, a movant that will not bear the burden of persuasion at trial need not negate the nonmovant's claim. See id. Such a movant may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim. See id.
If the movant carries this initial burden, the nonmovant that would bear the burden of persuasion at trial may not simply rest upon its pleadings; the burden shifts to the nonmovant to go beyond the pleadings and "set forth specific facts" that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant. Fed.R.Civ.P. 56(e); See Lujan v. National Wildlife Fed'n, 497 U.S. 871, 888–89, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific ...