In a personal injury case, when an employee is driving on behalf of an employer and a motor vehicle accident occurs, it is not uncommon, if suit is filed, for the employer to be named in the lawsuit under a theory of respondeat superior or simply an agency theory in order to attempt to establish a claim of vicarious liability. Then, at times, the employer may also be sued under direct negligence claims such as negligent hiring, negligent retention, failure to supervise, etc. But, there can only be one recovery, right?
Absent punitive damages, the injured party suing is limited to one recovery in the tort action against the defendants. What happens if the employee and the employer admit negligence for the auto accident and deny the direct negligence claims? Is there even a need for the plaintiff to pursue the direct negligence claims if negligent driving (common law and/or statutory claims) has already been admitted? The answer to this question requires an analysis of the “preemption rule,” which, as far as I can tell, has not yet been decided in Tennessee.
If an employee admits negligent driving (common law and/or statutory) and the employer admits the employee was acting on the employer's behalf and that the employee was negligent, hasn’t negligence been established? I think it has. If negligence has been established, what is the need for the additional negligence claims? How can pursuing a claim for negligent hiring, negligent retention, or failure to supervise benefit the plaintiff? I suggest that it cannot. In fact it may do just the opposite. Couldn’t pursuing these types of claims, even if meritorious, inflame the jury?
Without getting too far into the details there are, from what I can tell, a couple of helpful cases that suggest a plaintiff should not be permitted to pursue direct negligence claims when the employee and employer admit negligence (as I have previously identified in this blog).
In 2015, in the Eastern District of Tennessee, the federal court in Ryans v. Koch Foods, LLC, No. 1:13-cv-234-SKL, 2015 U.S. Dist. LEXIS 193054 (E.D. Tenn. July 8, 2015), addressed the preemption rule. The defendant’s employee crashed a tractor-trailer into an interstate construction zone in the course and scope of his employment resulting in a death. In addition to vicarious liability, the plaintiff brought direct negligence claims against the defendant employer for negligent hiring, entrustment, supervision, and training. The defendant argued it was entitled to summary judgment on all direct negligence claims due to admitting liability under respondeat superior for any negligence that may be attributed to the employee. Id. The plaintiff opposed dismissal and argued direct negligence claims should be treated as separate causes of action allowing the jury to compare the fault of the defendant employee and the defendant employer. The federal court held “[t]he majority of courts that have considered the question of where an employer has admitted liability for the acts of its employee under another theory of recovery, it is improper to allow the plaintiff to proceed under direct negligence theories, as those claims merge with the vicarious liability claim.” Id. at *22-23. “Underpinning the majority rule is the recognition that, in trying a direct negligence claim, proof will be admissible that is unduly prejudicial to the defendant, without expanding the potential recovery for the plaintiff.” Id. at *23. “Because the employer has admitted respondeat superior liability, the plaintiff may recover all of the damages to which he or she is entitled merely by establishing the driver’s negligence.” Id. “In such a case, evidence of direct liability can serve no other purpose than to inflame the jury.” Id.
In 2020, in the Middle District of Tennessee, in Freeman v. Paddack Heavy Transp., Inc., No. 3:20-cv-00505, 2020 (M.D. Tenn. Dec. 16, 2020), the court reached the same conclusion. In Freeman, the plaintiff filed suit in state court following a motor vehicle accident for vicarious liability and direct negligence for failure to properly hire, train, retain, and supervise the activities of its drivers. The defendant removed the lawsuit to federal court. Following a motion by the defendant, the court found “Tennessee state courts ‘have not yet addressed’ whether to adopt the preemption rule. This Court, therefore, must apply the law as it predicts the Tennessee Supreme Court would.” Id. at *5. The court dismissed the plaintiffs’ direct negligence claims.
What is the law in Tennessee? I don’t think we have it yet. But, from a reading of the cases addressing this issue, it appears Tennessee may be heading towards adopting the preemption rule.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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