STATE OF IDAHO TRANSPORTATION COMPENDIUM OF LAW

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1 STATE OF IDAHO TRANSPORTATION COMPENDIUM OF LAW Keely E. Duke Kevin J. Scanlan Kevin A. Griffiths Duke Scanlan & Hall, PLLC 1087 W. River St., Ste. 300 Boise, ID Tel: (208) Website: Update

2 A. Derivative Negligence Claims The issue of an employer s liability for acts of an employee is governed by state law in Idaho. Typically, the common law rules of agency determine whether such liability exists. In Idaho, the general rule is that the employer s vicarious liability for the acts of the employee extends to any and all tortious conduct that is within the scope of employment. Richard J. & Esther E. Wooley Trust v. DeBest Plumbing, Inc., 133 Idaho 180, 183, 983 P.2d 834, 837 (1999). An employer may also be liable for acts of the employee outside of the scope of employment arising from failure to exercise due care in hiring employees, entrusting them with the employer s vehicles, or arising directly from the employer s ownership of vehicles used by the employees. 1. Respondeat Superior Under the doctrine of respondeat superior, an employer is liable in tort for the tortious conduct of an employee committed within the scope of employment. Nava v. Rivas-Del Toro, 151 Idaho 853, 857, 264 P.3d 960, 964 (2011) (quoting Finholt v. Cresto, 143 Idaho 894, 897, 155 P.3d 695, 698 (2007)). The term scope of employment refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment. Id. (quoting Richard J. and Esther E. Wooley Trust, 133 Idaho at , 983 P.2d at ). Therefore, if the employee s purpose is purely personal, it does not matter that the employee is using the employer s tools or driving the employer s vehicle or some other activity that merely resembles his or her employment. The employee must be engaged in some type of work that is assigned to him or her in the general sense of doing something to serve the employer. Id. at 184, 983 P.2d at 838. As the Idaho courts have explained: [I]n general the servant s conduct is within the scope of his employment if it is of the kind which he is employed to perform, occurs substantially within the authorized limits of time and space, and is actuated, at least in part, by a purpose to serve the master. An employee s purpose or intent, however misguided in its means, must be to further the employer s business interests. If the employee acts from purely personal motives... in no way connected with the employer s interest... then the master is not liable. Here again, it is apparent that serving the master is required in order for the conduct to be within the scope of employment. Id. (citations omitted). Generally, the issue of whether an employee acted within the scope of employment is a factual question to be decided by the trier of fact. Podolan v. Idaho Legal Aid Servs., Inc., 123 Idaho 937, 945, 854 P.2d 280, 288 (Ct. App. 1993); Manion v. Waybright, 59 Idaho 643, 656, 86 P.2d 181, 186 (1938). If the evidence, however, shows conduct clearly outside the scope of 2

3 employment, the issue may be decided as a matter of law. Podolan, 123 Idaho at 945, 854 P.2d at 288; Manion, 59 Idaho at 656, 86 P.2d at 186. In transportation cases, service to the employer need not have been the employee s only purpose in order to give rise to respondeat superior liability. See Van Vranken v. Fence-Craft, 91 Idaho 742, 430 P.2d 488 (1967) (finding that an employee s slight deviation from a trip to get parts for work to take his wife pain medication was not sufficient to defeat respondeat superior liability); Manion v. Waybright, 59 Idaho 643, 86 P.2d 181 (1938) (finding that even though employee s primary purpose in driving was to take his friend home, he was traveling home from performing business services, which was in the course and scope of employment). 2. Negligent Entrustment Under the theory of negligent entrustment, [a]n owner or other person in control of a vehicle and responsible for its use may be held liable for damages resulting from use of the vehicle by another... where such person knew or should have known that such use may create an unreasonable risk of harm to others. Taft v. Jumbo Foods, Inc., 155 Idaho 511, 518, 314 P.3d 193, 200 (2013) (quoting Lopez v. Langer, 114 Idaho 873, 875, 761 P.2d 1225, 1227 (1988). Generally, it is the title owner who entrusts a vehicle to another. Id. The Idaho Supreme Court, however, has recognized that [r]igid and formalistic conceptions of ownership based upon the issuance of certificates of title are disfavored by the courts. Id. (quoting Lopez, 114 Idaho at 875, 761 P.2d at 1227). Instead, the paramount requirement for liability... is whether or not the defendant had a right to control the vehicle. Id. (quoting Lopez, 114 Idaho at 875, 761 P.2d at 1227). In other words, a carrier will be held liable if it entrusts a vehicle to an incompetent or reckless driver. It follows that if there is no right to control, there can be no liability under the negligent entrustment theory. Id. at 519, 314 P.3d at 201. The right to control, however, does not end the inquiry. Id. The person or entity in control of the vehicle must allow the use of the vehicle in circumstances in which he knows or should have known the user is likely to use the vehicle in a manner that creates an unreasonable risk of harm to others. Id. This most commonly arises where the person [to whom the object is entrusted] is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Id. This rule may also apply where the third person s known character or the peculiar circumstances of the case are such as to give the actor good reason to believe that the third person may misuse it, i.e. where an automobile is entrusted to an obviously intoxicated person. Id. 3. Negligent Hiring/Retention While the Idaho Supreme Court has recognized the potential viability of causes of action for negligent hiring and retention, it has never articulated the elements of those claims. See, e.g., Cook v. Skyline Corp., 135 Idaho 26, 34, 13 P.3d 857, 865 (2000) ( When the allegations are read together, the complaint would seem to support a cause of action for both negligent selection and negligent retention of Norwest. We therefore hold that the district court erred in ruling that the Cooks failed to sufficiently plead their negligence cause of action. ). 3

4 In a neighboring jurisdiction, Washington, Plaintiffs alleging negligent hiring must show that (1) the employer knew or, in exercising ordinary care, should have known of its employee s incompetence when the employee was hired, and (2) that the negligently hired employee caused the plaintiff s injuries. Crisman v. Pierce County Fire Protection District No. 21, 60 P.3d 652 (Wash. Ct. App. 2002) (trial court properly granted summary judgment to employer where plaintiff failed to demonstrate a proximate cause relationship between the unfitness of a county employee and the tortious campaign practice that injured plaintiff). Where, however, the injury arises from circumstances other than those reasonably foreseeable by the employer, no claim for negligent hiring can be sustained. Betty Y. v. Al-Hellou, 988 P.2d 1031 (Wash. Ct. App. 1999) (assault of child not foreseeable from hiring laborer to rehabilitate vacant apartments). 4. Negligent Supervision A negligent supervision claim is based on the employer s own negligence in failing to exercise due care to protect third parties from the foreseeable tortious acts of an employee. Rausch v. Pocatello Lumber Co., Inc., 135 Idaho 80, 86, 14 P.3d 1074, 1081 (Ct. App. 2000). A negligent supervision claim encompasses conduct of the employee that is outside the scope of employment. Id. An employer s duty of care requires that an employer who knows of an employee s dangerous propensities control the employee so that he or she will not injure third parties. Id. 5. Statutory Liability for Vehicle Owners Vicariously liability may also be imputed to the owner of a motor vehicle based upon the negligence of its operator by statute. Pursuant to Idaho Code (1), [e]very owner of a motor vehicle is liable and responsible for the death of or injury to a person... resulting from negligence in the operation of his motor vehicle... by any person using or operating the vehicle with the permission, expressed or implied, of the owner. Taft, 155 Idaho at , 314 P.3d at (quoting I.C (1)). An owner is someone having the property in or title to a vehicle. Id.at 517, 314 P.3d at 199 (quoting I.C (3)). The owner of a vehicle is not automatically liable for the negligence of just any person driving it. Id. Idaho Code (1) imputes a driver s negligence to the owner of an automobile only when a person using or operating the same with the permission, expressed or implied, of such owner, is driving. Id. (quoting Colborn v. Freeman, 98 Idaho 427, 428, 566 P.2d 376, 377 (1977)). Thus, an owner s liability is dependent upon a finding that the negligent driver was operating with permission of the owner. Id. [I]mplied permission is a question of fact for the jury, unless the evidence is subject to only one reasonable conclusion that may be deduced from the evidence. Id. (quoting Allied Group Ins. Co. v. Allstate Ins. Co., 123 Idaho 733, 738, 852 P.2d 485, 490 (1993)). However, [n]o meaningful permission can be given by one without the right to control, or in possession of, the vehicle. Id. (quoting Lopez, 114 Idaho at , 761 P.2d at (1988). In making a determination of ownership, courts look to factors including, but not limited to: (1) the location where the vehicle is normally kept, (2) the title owner of the vehicle, (3) possession of the keys to the vehicle, (4) the party insuring the vehicle, (5) exclusivity of possession of the vehicle, and (6) subjective belief concerning vehicle ownership. Id. 4

5 Under this statutory scheme, a situation could arise where, even if the employee is not operating a vehicle owned by the employer within the course and scope of employment, liability could still attach to the employer outside of respondeat superior based upon ownership of the vehicle. B. Defenses 1. Attacking Respondeat Superior/Vicarious Liability Idaho courts have not yet spoken on the issue of whether the defenses of the employee may be relied upon, in all situations, by the employer in respondeat superior claims. In other jurisdictions, to be the basis for dismissal of the principal/employer under vicarious liability, the dismissal of the agent/employee must be a determination on the merits, rather than a dismissal based upon a defense personal to the agent. See, e.g., Bank of America NT & SA v. Hubert, 101 P.3d 409 (Wash. 2004) (dismissal of the defendant s employee did not justify dismissal of the defendant, since it was without prejudice rather than on the merits); Glover for Cobb v. Tacoma General Hosp., 658 P.2d 1230 (Wash. 1983) (trial court should have dismissed claim against employer where plaintiff settled with employee and claim against employer was based solely on vicarious liability theory). 2. Statutory Provisions Concerning Vicarious Liability Idaho has enacted a statute that codifies the concept of respondeat superior and imposes pretrial procedures for the assertion of claims against an employer under the theory, Idaho Code Idaho Code section does not change the standard for determining whether a current employee was acting within the scope of his or her employment. Nava, 151 Idaho at 857, 264 P.3d at 964. After discovery has been conducted, a party seeking to assert vicarious liability claims must demonstrate, at a pretrial hearing, a reasonable likelihood of proving facts at trial sufficient to support a finding that liability for damages should be apportioned to the employer under the standards set forth in section I.C (3). Otherwise, the claim for vicarious liability will be dismissed and the employer will not appear on the special verdict form. Id. The standards set forth in Idaho Code mirror the common law rules for respondeat superior. Idaho Code (2) provides that an employer is not liable in tort based upon an employer/employee relationship for any act or omission of a current employee unless the employee was wholly or partially engaged in the employer s business, reasonably appeared to be engaged in the employer s business, was on the employer s premises when the allegedly tortious act or omission of the employee occurred, or was otherwise under the direction or control of the employer when the act or omission occurred. I.C (2). This presumption may be rebutted only by clear and convincing evidence that the employer s acts or omissions constituted gross negligence or, reckless, willful and wanton conduct as those standards are defined in section 6-904C, Idaho Code, and were a proximate cause of the damage sustained. Id. Further, Idaho Code (1) creates a presumption that an employer is not liable for the acts of employee occurring after the termination of the employer/employee relationship unless it is shown by clear and convincing evidence that the acts or omissions of the employer itself constitute gross negligence or reckless, willful and wanton conduct as those standards are defined in section 6-904C, Idaho Code, and were a proximate cause of the damage sustained. I.C (1). 5

6 3. Traditional Tort Defenses Depending on the case, traditional tort defenses may also apply such as: failure to mitigate damages, superseding and intervening cause, etc. In particular, the following affirmative defenses are recognized and often pled in Idaho: a. Contributory Negligence/Comparative Fault At one time, contributory negligence was a valid defense where at the time and place alleged in plaintiff s complaint, the plaintiff so carelessly and negligently conducted himself that he contributed directly and proximately to his own alleged injuries and damages. With the adoption of Idaho Code 6-801, Idaho became a modified comparative fault jurisdiction and abolished contributory negligence as an absolute bar to negligence claims. I.C Inherent within the adoption of this statute is the abolition of the concept of assumption of the risk, which previously served as a bar to some transportation law claims. See Harrison v. Taylor, 115 Idaho 588, , 768 P.2d 1321, (1989) (recognizing that the adoption of comparative fault abolished assumption of the risk). Under Idaho s current modified comparative fault statute, a plaintiff will not be barred from recovery due to her own fault, unless the defendant can demonstrate that the plaintiff s negligence was greater than that of the defendant, i.e. that the plaintiff was 51% at fault. I.C b. Plaintiff s Intoxication In Idaho, the plaintiff s intoxication, standing alone, does not automatically constitute contributory negligence, but it can provide the basis for comparative fault. See Geist v. Moore, 58 Idaho 149, 70 P.2d 403, 409 (1937). The question of whether the plaintiff s intoxication contributed to his claimed injuries is a question of fact for the injury. Id. In making this determination, the jury is required to hold the allegedly intoxicated plaintiff to the same standard of care as an ordinary person who is not intoxicated. Id. c. Failure to Use Seatbelts Idaho Code requires the use of seatbelts by the operators and occupants of motor vehicles. The Idaho Legislature passed H.B. No. 457 on March 27, 2014, which details the circumstances under which evidence of failure to wear a seatbelt can now be introduced for purposes of apportionment of damages. Previously, evidence regarding use of a safety restraint was not admissible as evidence in any civil action in Idaho. This provision became effective July 1, 2014, and is now found in Idaho Code Pursuant to Idaho Code (1), if the defendant wishes to introduce evidence concerning seatbelts, the defendant shall prove, by clear and convincing evidence, that the claimant s failure to wear a safety restraint was a contributing cause of the particular injury or damage sustained by the claimant. I.C (1). Such evidence may not be used to determine comparative fault for purposes of section 6-801, Idaho Code, but only for apportionment of damages. Id. 6

7 The affirmative defense of failure to use a safety restraint may only be asserted with the leave of the court, pursuant to a pretrial motion by the defendant. I.C (2). The court shall allow the motion to amend the pleadings if, after weighing the evidence presented, the court concludes that the moving party has established at such hearing a reasonable likelihood of proving facts at trial sufficient to support a finding of damages apportionment caused by the failure to wear a safety restraint. Id. This evidence is not admissible in under- or uninsured motorist claims, I.C (3), or in those cases for recovery of damages for and on behalf of a minor who is not old enough to qualify for driver s training. I.C (4). 4. Punitive Damages Punitive damages are available in tort actions arising from transportation claims. Unlike compensatory damages, punitive damages are damages awarded to a claimant, over and above what will compensate the claimant for actual personal injury and property damage, to serve the public policies of punishing a defendant for outrageous conduct and of deterring future like conduct. I.C (9). Entitlement to punitive damages requires something beyond ordinary negligence, requiring instead conduct implicating some degree of moral culpability. In any action seeking recovery of punitive damages, the claimant must prove, by clear and convincing evidence, oppressive, fraudulent, malicious or outrageous conduct by the party against whom the claim for punitive damages is asserted. I.C (1). In Idaho, a plaintiff may not seek punitive damages as a matter of right, but must instead seek the leave of the court to assert a punitive damage claim, which requires the plaintiff to show a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages. I.C (2). The jury sets the amount of a punitive damage award. See Myers v. Workman s Auto Ins. Co., 140 Idaho 495, 95 P.3d 977 (2004). An award of punitive damages is limited to the greater of two hundred fifty thousand dollars ($250,000) or an amount which is three (3) times the compensatory damages. I.C (3). C. Merger of Vicarious Liability Claims The Idaho Supreme Court has held that in situations in which the owner has already admitted liability under the doctrine of respondeat superior, it is improper to also allow a plaintiff to proceed against the owner of a vehicle on the independent negligence theories of negligent entrustment and negligent hiring or training. Wise v. Fiberglass Sys., Inc., 110 Idaho 740, 743, 718 P.2d 1178, 1181 (1986). In those situation, admitted vicarious liability merges with independent negligence claims and, under Idaho law, it is improper to allow the plaintiff to present evidence of both theories. This Compendium outline contains a brief overview of certain laws concerning various litigation and legal topics. The compendium provides a simple synopsis of current law and is not intended to explore lengthy analysis of legal issues. This compendium is provided for general information and educational purposes only. It does not solicit, establish, or continue an attorney-client relationship with any attorney or law firm identified as an author, editor or contributor. The contents should not be construed as legal advice or opinion. While every effort has been made to be accurate, the contents should not be relied upon in any specific factual situation. These materials are not intended to provide legal advice or to cover all laws 7

8 or regulations that may be applicable to a specific factual situation. If you have matters or questions to be resolved for which legal advice may be indicated, you are encouraged to contact a lawyer authorized to practice law in the state for which you are investigating and/or seeking legal advice. 8