United States District Court, W.D. Louisiana, Lake Charles Division
D. CAIN, JR. UNITED STATES DISTRICT JUDGE
the Court is a "Motion for Partial Summary
Judgment" (Doc. 29) filed by Defendant Nu Line
Transport, LLC ("Nu Line") wherein Nu Line seeks to
have the claims for direct or independent negligence against
it dismissed with prejudice because Plaintiffs have asserted
a claim for vicarious liability under respondeat
superior. For the reasons that follow, the motion will
Petition for Damages alleges that Defendant, Simon E.
Brumfield, failed to observe three (3) marked emergency
vehicles in the left lane while traveling in that lane.
Plaintiff, Benjamin Fox, was working an automobile crash with
the Louisiana Office of State Police when Brumfield's
vehicle hydroplaned on the icy road and collided with the
vehicle in which Mr. Fox was sitting causing bodily injuries.
Brumfield was in the course and scope of his employment with
Defendant Nu Line at the time the incident sued upon
should grant a motion for summary judgment when 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." FED. R. Civ. P. 56. The party moving for
summary judgment is initially responsible for identifying
portions of pleadings and discovery that show the lack of a
genuine issue of material fact. Tubacex, Inc. v. M/V
Risan, 45 F.3d 951, 954 (5th Cir. 1995), The court must
deny the motion for summary judgment if the movant fails to
meet this burden. Id.
movant makes this showing, however, the burden then shifts to
the non-moving party to "set forth specific facts
showing that there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (quotations omitted). This requires more than mere
allegations or denials of the adverse party's pleadings.
Instead, the nonmovant must submit "significant
probative evidence" in support of his claim. State
Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 118 (5th
Cir. 1990). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be
granted." Anderson, 477 U.S. at 249 (citations
may not make credibility determinations or weigh the evidence
in ruling on a motion for summary judgment. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150
(2000). The court is also required to view all evidence in
the light most favorable to the non-moving party and draw all
reasonable inferences in that party's favor. Clift v.
Clift, 210 F.3d 268, 270 (5th Cir. 2000). Under this
standard, a genuine issue of material fact exists if a
reasonable trier of fact could render a verdict for the
nonmoving party. Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir.
allege that Brumfield was in the course and scope of his
employment with Nu Line when his Freightline Tractor collided
with Plaintiffs vehicle. In addition to alleging that
Brumfield was negligent, Plaintiffs also allege that Nu Line,
as Mr. Brumfield's employer, is vicariously liable for
Mr. Brumfield's alleged negligence.Plaintiffs also
allege direct negligence claims against Nu Line for negligent
training, hiring and supervision, and other acts of
negligence which may be revealed through discovery, allowing
drivers to operate in icy conditions, failure to warn drivers
of icy conditions, and failure to design and enforce a
standard operating procedure for driving in icy conditions.
Nu Line admits that Mr. Brumfield was in the course and scope
of his employment when the incident sued upon
occurred. Nu Line maintains that it is entitled to
summary judgment as a matter of law as to Plaintiffs'
direct negligence claims because a plaintiff cannot
simultaneously maintain both a direct negligence claim and a
claim for vicarious liability under respondeat
superior citing Dennis v. Collins II, et al,
2016 WL 6637973 (W.D. La. 2016)(Chief Judge S. Maurice Hicks,
Dennis, Judge Hicks addressed this same argument and
concluded that a plaintiff cannot simultaneously pursue both
(1) a negligence cause of action against an employee for
which the employer is vicariously liable, and (2) a direct
negligent training and supervision cause of action against
the employer when the employer stipulates that the employee
was in the course and scope of employment when he committed
the alleged negligence. Noting that there is no binding
precedent on this issue in Louisiana and making his best
Erie guess under Louisiana's civilian
methodology, Judge Hicks dismissed plaintiffs negligent
training and supervision causes of action. Judge Hicks
concluded that the negligent hiring claim against the
employer was subsumed in a direct negligence claim against
the employee. In other words, the driver's negligence
includes any negligence of the defendant employer in training
or supervision reasoning that if the driver was not
negligent, then no amount of negligence on the part of the
employer could have been the cause-in-fact or legal cause of
the collision. Id. at *8. Other courts have been
persuaded to cite and follow the Dennis court. See
Vaughn v. Taylor, 2019 WL 171697 (January 10, 2019);
Wright v. National Interstate Insurance Co., 2017 WL
5157537 (E.D. La. November 7, 2017); Wilcox v. Harco
International Insurance, 2017 WL 2772088, at *3 (M.D.
La. June 26, 2017);.
Court finds no reason to part with Judge Hicks'