United States District Court, E.D. Arkansas, Eastern Division
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE.
McCaslin commenced this action after a French Trucking, Inc.,
truck driven by John Landers collided with her vehicle. She
alleges that Landers was negligent and that French Trucking
was both directly negligent and vicariously liable for the
negligence of its employee, Landers. McCaslin seeks
compensatory and punitive damages from the defendants. The
defendants have moved for partial summary judgment on the
direct negligence claim against French Trucking and the
punitive damages claims. Their motions are granted.
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
facts of the accident are undisputed. On September 22, 2013,
McCaslin was driving westbound on Interstate 40 in St.
Francis County, Arkansas. She was stuck in traffic and her
vehicle was at a complete stop in a construction zone when
Landers's truck collided with the rear of her vehicle.
Landers was traveling 41.5 miles per hour when he began
braking just before the collision. It is undisputed that
Landers was driving the truck in the course and scope of his
employment with French Trucking. Landers and French Trucking
admit that Landers was at fault for the accident and that
French Trucking is vicariously liable for Landers's
negligence. Document #20 at ¶¶ 19, 20.
defendants argue that the facts, viewed in the light most
favorable to McCaslin, do not show that they acted in a
manner to justify an award of punitive damages. The recovery
of punitive damages in Arkansas is governed by statute:
In order to recover punitive damages from a defendant, a
plaintiff has the burden of proving that the defendant is
liable for compensatory damages and that either or both of
the following aggravating factors were present and related to
the injury for which compensatory damages were awarded:
(1) The defendant knew or ought to have known, in light of
the surrounding circumstances, that his or her conduct would
naturally and probably result in injury or damage and that he
or she continued the conduct with malice or in reckless
disregard of the consequences, from which malice may be
(2) The defendant intentionally pursued a course of conduct
for the purpose of causing injury or damage.
Ark. Code Ann. § 16-55-206. These factors must be proved
by clear and convincing evidence. Id. §
16-55-207. Neither negligence nor gross negligence justifies
punitive damages. Alpha Zeta Chapter of Pi Kappa Alpha
Fraternity by Damron v. Sullivan, 293 Ark. 576, 587, 740
S.W.2d 127, 132 (1987).
first argues that it would be unfair and unjust to adjudicate
her punitive damages claim before the close of evidence at
trial. Document #22 at 3. McCaslin presents no affidavit or
declaration under Federal Rule of Civil Procedure 56(d) to
support her request that the Court refrain from deciding the
motion until the close of evidence. Moreover, the parties
jointly proposed a discovery deadline of December 29, 2016,
in their Rule 26(f) report. Document #5. The Court later
ordered discovery to be completed by August 10, 2017.
Document #13. The summary judgment motion is ripe. See
Ray v. Am. Airlines, Inc., 609 F.3d 917, 922 (8th Cir.
also addresses the substance of the defendants' punitive
damages motion as to each named defendant. She argues that
punitive damages are warranted against both Landers and
French Trucking. She says that Landers was aware of his duty,
that Landers was aware of the potential harm he and his truck
could cause, and that Landers agreed the accident was
preventable. McCaslin describes nothing more that simple
negligence. Arkansas requires more than simple negligence to
support an award of punitive damages in vehicle accident
cases. Nat'l Bank of Commerce v. McNeill Trucking
Co., 309 Ark. 80, 88, 828 S.W.2d 584, 588 (1992)
(Dudley, J., concurring) (detailing history of vehicle
accident cases); Perry v. Stevens Transp., Inc., No.
3:11CV00048 JLH, 2012 WL 2805026, at *4 (E.D. Ark. July 9,
French Trucking, she argues that it had an inadequate hiring
process, failed to equip its truck with a safe sun visor, and
failed to require Landers to wear glasses while driving.
French Trucking acknowledges that during thirty-three years
of driving Landers was involved in three minor accidents; in
one, Landers was rear-ended by a utility vehicle while he was
stopped at a red light. Document #20 at ¶6. Landers,
however, did not disclose these accidents when he applied
with French Trucking because they were more than three-years
old, nor did they appear on Landers's motor vehicle
record. Id. ¶¶8-11. A driving history with
three minor accidents-all more than three years old-during
thirty-three years of driving is insufficient to warrant
punitive damages. See Nat'l By-Prods., Inc. v. Searcy
House Moving Co., 292 Ark. 491, 494-95, 731 S.W.2d 194,
196-97 (1987); Elrod v. G & R Constr. Co., 275
Ark. 151, 155, 628 S.W.2d 17, 19 (1982); see also
Perry, 2012 WL 2805026 at *6; Wheeler v.
Carlton, No. 3:06CV00068 GTE, 2007 WL 30261 at *10 (E.D.
Ark. Jan. 4, 2007). McCaslin points to nothing that shows
that French Trucking knew or should have known that allowing
Landers to drive naturally and probably would result in
injury or damage and that it recklessly disregarded these
a punitive damages claim, French Trucking argues that because
it has admitted vicarious liability, McCaslin cannot maintain
an action for direct negligence against it. When a
defendant-employer admits that it is vicariously liable for
the negligence of its employee, a plaintiff is allowed to
maintain a claim on only one theory of recovery. See
Kyser v. Porter, 261 Ark. 351, 358, 548 S.W.2d 128, 132
(1977) (“Our cases hold that a negligent entrustor,
though guilty of a separate tort, is only liable to a third
party for his entrustee's negligence, if any.”);
Elrod, 275 Ark. at 154, 628 S.W.2d at 19
(“[W]e are inclined to follow the majority view which
allows plaintiff[s] to proceed on only one theory of recovery
in cases where liability has been admitted as to one theory
of recovery.”). Nevertheless, this rule does not
foreclose direct negligence claims when a plaintiff has a
valid claim for punitive damages against the employer or when
a plaintiff has a valid claim for negligence against the
employer based on the employer's policies and
procedures. See Regions Bank v. White, No.
4:06CV01475 JLH, 2009 WL 3148732, at *4-*5 (E.D. Ark. Sept.
24, 2009); accord McLane v. Rich Transp., Inc., No.
2:11-CV-00101 KGB, 2012 WL 3257658, at *4 (E.D. Ark. Aug. 9,
McCaslin's punitive damages claim does not survive
summary judgment, she cannot maintain direct-negligence
claims against French Trucking for negligent hiring,
retention, or entrustment. See Regions Bank, No.
4:06CV01475 JLH, 2009 WL 3148732, at *5. Her negligence
claims based on French Trucking's policies and
procedures, though, fit within the exception set out above.
The defendants argue that even so, McCaslin fails to proffer
evidence to support her sun-visor and eyeglasses theories.
McCaslin cites Landers's testimony that the sun was in
his eyes immediately before the accident and that he
sometimes wears glasses but was not wearing them at the time
of the accident. That the sun was in Landers's eyes does
not show that the sun visor was substandard. More to the
point, it says nothing of French Trucking's policy on
providing necessary equipment in its trucks. McCaslin has the
burden of proof on these issues, but she has presented no
evidence as to the adequacy of the sun visor or the policies
of French Trucking. With respect to the eyeglasses, Landers