United States District Court, W.D. Arkansas, Hot Springs Division
MEMORANDUM OPINION AND ORDER
O. Hickey, Chief United States District Judge.
the Court is Defendant Janssens Motor Express D/B/A JMX,
Inc.'s (“JMX”) Motion for Partial Summary
Judgment. (ECF No. 12). Plaintiff Thomas Gavin has not
responded to the motion, and the time to do so has passed.
The Court finds this matter ripe for consideration.
a negligence action arising out of a March 9, 2016,
automobile accident that occurred in the parking lot of a
rest area on Interstate 30 in Hot Spring County, Arkansas.
The accident involved a truck driven by Plaintiff and a truck
driven by Defendant Paul Acaley. Plaintiff sues to recover on
injuries allegedly sustained during the accident.
brought an individual negligence claim against Acaley.
Plaintiff further alleges that Acaley was acting as JMX's
agent at the time of the accident, and thus, that JMX is
vicariously liable for Acaley's alleged negligence.
Plaintiff has also brought individual claims against JMX for
negligent training and supervision. JMX has admitted that
Acaley was acting as its agent at the time of accident and
concedes that it is vicariously liable for any negligence on
October 21, 2019, JMX filed its Motion for Partial Summary
Judgment and supporting documents (ECF Nos. 12-14), arguing
that it is entitled to summary judgment on Plaintiff's
negligent training and supervision claims. Specifically, JMX
contends that under Arkansas law, when a principal such as
JMX admits to vicarious liability for the acts of its agent,
a plaintiff is barred from pursuing individual claims against
the principal, such as negligent hiring, training, and
supervision. Plaintiff did not respond to the motion, and his
time to do so expired on November 5, 2019.
Rule 7.2(b) of the United States District Courts for the
Eastern and Western District of Arkansas provides a
fourteen-day period for nonmoving parties to respond to a
summary judgment motion. Federal Rule of Civil Procedure
56(e) states that a court may deem undisputed a party's
asserted fact if it is not properly controverted by the other
party pursuant to Rule 56(c). Similarly, Local Rule 56.1(c)
states that all material facts asserted in the moving
party's statement of facts shall be deemed admitted if
they are not controverted by the nonmoving party's own
statement of facts. Federal Rule of Civil Procedure 56(c)(1)
provides that a party asserting a genuine dispute of material
fact must support the assertion by either citing to materials
in the record or by showing that the cited materials do not
establish the absence or presence of a genuine dispute.
noted above, Plaintiff did not respond to JMX's Motion
for Partial Summary Judgment or dispute any of JMX's
asserted facts within time prescribed by Local Rule 7.2(b).
Therefore, all facts asserted in JMX's statement of facts
are deemed admitted for the purpose of deciding the instant
motion. See Chaffin v. City of Fort Smith, No.
05-cv-2061 JLH, 2005 WL 3805977, at *1 (W.D. Ark. Oct. 19,
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Hess v.
Union Pac. R.R. Co., 898 F.3d 852, 856 (8th Cir. 2018)
(citation omitted). Summary judgment is a “threshold
inquiry of . . . whether there is a need for trial-whether,
in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because
they reasonably may be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A fact is material only when its
resolution affects the outcome of the case. Id. at
248. A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either
party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then
demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. Cnty. of
LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). However, a
party opposing a properly supported summary judgment motion
“may not rest upon mere allegations or denials . . .
but must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
The Elrod Rule
Elrod v. G &R Construction Company, the Arkansas
Supreme Court held that when a principal admits that it can
be held vicariously liable for the acts of its agent, a
plaintiff cannot pursue additional negligence theories such
as negligent entrustment, negligent hiring, or negligent
retention. See275 Ark. 151, 154, 628 S.W.2d 17, 19
(affirming dismissal of claims for negligent entrustment when
employer admitted to vicarious liability); see also Perry
v. Stevens Transp., Inc., No. 3:11-CV-48 JLH, 2012 WL
2805026, at *6 (E.D. Ark. July 9, 2012) (applying
Elrod to negligent hiring, training, supervision,
and retention claims). The only exception to the
Elrod rule arises when a plaintiff has asserted a