Negligent Entrustment Claim Held To Survive Admission Of Respondeat Superior Liability
Diaz v. Carcamo, et al, No. B211127 (February 25), is a decision from Division Six of the Second Appellate District dealing with these facts: Diaz was seriously injured when she was struck by a car that had jumped a freeway center divider following its collision with a truck. She sued Tagliaferri, the driver of the car that hit her, and Carcamo, the driver of the truck with which Tagliaferri had collided. She also sued Carcamo’s employer, Sugar Transport, alleging it was vicariously liable as Carcamo’s employer. In addition, she alleged that Sugar Transport was liable for its independent negligence in hiring and retention of Carcamo. The jury returned a verdict against each defendant awarding plaintiff a total of $22,566,373 in damages. Pursuant to Proposition 51, it apportioned fault among Tagliaferri, Carcamo, and Sugar Transport.
Sugar Transport appealed. It contended that because it admitted it was vicariously liable for Carcamo’s conduct on a theory of respondeat superior, the trial court erred in permitting Diaz to proceed against it for its negligent hiring and retention of Carcamo. It claimed that this error was compounded by the admission of evidence as to Carcamo’s background. Relying on Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal. App. 4th 853, Sugar Transport contended that its concession of vicarious liability removed all questions of its independent fault and rendered evidence of Carcamo’s character and prior conduct inadmissible. Sugar Transport also asserted that the trial court erred by giving a spoliation of evidence instruction regarding a missing tachograph chart.
The Court of Appeal affirmed. It determined that Jen-Weld was a negligent entrustment case that did not discuss negligent hiring and retention. Furthermore, a recent case from the Second Appellate District, it said, Bayer-Bel v. Litovsky (2008 159 Cal. App. 4th 396, 400 held that Jeld-Wen’s conclusion that a pre-trial admission of respondeat superior liability bars a negligent entrustment claim was erroneous and that, in fact, negligent entrustment is an independent tort imposing direct liability. Even more importantly, the Court went on, Jeld-Wen does not even purport to deal with apportionment of liability under Proposition 51. The Court then cited Fernelius v. Pierce (1943) 22 Cal. 2nd 226, 233-234 for the proposition that negligent retention is a theory of direct liability independent of vicarious liability. The Court viewed the evidence about Carcamo’s background relevant to his employer’s knowledge and opportunity to prevent what occurred and found the instruction given with respect to the tachograph appropriate given Sugar Transport’s knowledge of its use and importance to the key factual issues in the case.
February 25, 2010
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