Hirst Applegate attorneys Richard Mincer and Erin Berry recently won an appeal to the 10th Circuit Court of Appeals. The decision, Pauna v. Swift Transportation Co of Ariz. LLC, 2022 U.S. App. LEXIS 6381 (10th Cir. 2022), affirmed the district court’s grant of summary judgment in favor of Hirst Applegate’s client, Swift Transportation Company of Arizona, LLC (“Swift”).
The plaintiff was a commercial truck driver. The plaintiff was waiting in line to refuel at a gas station in Laramie, Wyoming when Swift’s driver allegedly cut the plaintiff in line to refuel his tractor trailer. The plaintiff, upset because he believed Swift’s driver cut him in line, approached Swift’s driver’s tractor trailer. After a heated argument over who was in line first for fuel, Swift’s driver exited his tractor trailer and beat the plaintiff unconscious. Swift’s driver was arrested and later pleaded guilty to misdemeanor assault.
Subsequently, the plaintiff asserted claims of vicarious liability, negligent hiring, negligent supervision, negligent retention, and punitive damages against Swift. The plaintiff argued Swift’s driver was fueling his truck prior to the altercation and was thus within the scope of his employment with Swift at the time of the assault. Hirst Applegate attorneys moved for summary judgment in the district court, arguing Swift could not be held liable for its driver’s actions because he was not acting within the course and scope of his employment when he assaulted the plaintiff.
The 10th Circuit Court of Appeals agreed with Hirst Applegate attorneys and affirmed the district court’s grant of summary judgment. The Court held the driver’s relevant conduct—assaulting another truck driver—was “wholly unconnected to the separate act of refueling and was not the conduct of the kind he was employed to perform.” Pauna, 2022 U.S. App. LEXIS 6381 at *5. The Court additionally held Swift could not be liable for plaintiff’s direct negligent claims as Swift’s driver’s criminal history, which included misdemeanors for shooting a neighbor’s dog with a BB gun and disorderly conduct for becoming belligerent with a police officer, had no relationship to the job of transporting freight.
Richard Mincer and Erin Berry both represent transportation companies in negligence actions and can be reached at (307) 632-0541.