Opinion
Case No. 3:03CV7216
March 16, 2004
ORDER
This is a diversity personal injury case. The plaintiff, a Michigan resident driving a truck owned by his Michigan employer, and registered and insured in Michigan, was injured when struck by a truck driven by a Canadian citizen, owned by his Canadian employer, registered in Canada, and insured by a Canadian insurance company. The collision occurred in Ohio.
In addition to a negligence claim against the driver and his employer, plaintiffs have brought claims of negligent entrustment and negligent hiring against the Canadian employer, the defendant Rossignol Transport, Ltd. Those claims are based on the contention, inter alia, that the Canadian driver was not qualified to operate a vehicle in this country (because he does not speak English), his Canadian employer had falsified his qualifications, and, at the time of the accident, the driver's hours of service had exceeded United States regulations regarding such hours.
As to the Canadian driver's negligence, the defendants have admitted liability. They have moved to dismiss the claims of negligent entrustment and negligent hiring. They contend that the plaintiffs can only recover their damages once, and thus it is not necessary, appropriate, or permissible for them to continue to maintain their claims of negligent entrustment and hiring.
I disagree. In view of the representations that have been made by plaintiffs about the Canadian employer's conduct, neither the allegation of misconduct and demand for punitive damages is implausible or unfounded on its face. Those claims, moreover, are distinct and have elements that differ from the claim based on the driver's independent acts of negligence.
Proof of negligence on the driver's part and resulting causation are a precondition to establishing claims of negligent entrustment and hiring, fee, e.g., Gulla v. Strauss, 154 Ohio St. 193 (1950) (Syllabus ¶ 3) ("The owner of a motor vehicle may be held liable for an injury to a third person upon the ground of [negligent entrustment] if the owner knowingly, either through actual knowledge or through knowledge implied from known facts or circumstances, entrusts its operation to an inexperienced or incompetent operator whose negligent operation results in the injury."); Linder v. Am. Nat'l Ins. Co., 155 Ohio App.3d 30 (2003) (elements of negligent hiring and retention are: 1) an employment relationship, 2) the employee's incompetence, 3) the employers actual or constructive knowledge of such incompetence, 4) the employee's act or omission causing plaintiff's injuries, and 5) the employer's negligence in hiring or retaining the employee as the proximate cause of plaintiffs injury).
Proof of a driver's underlying negligence does not, however, foreclose recovery on these alternative theories against the Canadian employer. Such recovery would be similar to that which can be obtained in another context through a claim of civil conspiracy or other jointly conducted tort. See Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 475 (1998) (citing Prosser Keeton on Torts (5th ed. 1984) 323, § 46 ("All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer's act done for their benefit, are equally liable.")). In this case, therefore, the trucking company, if it sent an incompetent or incapable driver abroad on its errand, can be held accountable for injuries caused by such incompetence or incapacity on the driver's part.
The defendants have also filed a motion seeking a ruling that Michigan, rather than Ohio, law should apply. Defendants base their motion on the fact that the plaintiff Mark Shook is a Michigan resident, was driving a Michigan-based truck in the course and scope of his employment for Michigan company, and began and was to have ended his day's travels in Michigan. Defendants also point out that Michigan workers' compensation benefits have been paid to plaintiff. Thus, according to defendants, Michigan, rather than Ohio, has the prevailing interest in the outcome of this litigation.
In response, plaintiffs contend that Ohio, as the situs of an accident involving a driver and company from Canada, has the paramount interest in this case.
The parties agree that the controlling Ohio decision is Morgan v. Biro Mfg. Co., Inc., 15 Ohio St.3d 339, 341-42 (1984), in which the Ohio Supreme Court applied principles enunciated in the Restatement 2d of Conflict of Laws to choice of law issues in personal injury cases. The court's opinion recited the following provisions from the Restatement:
Section 146 of 1 Restatement of the Law 2d, Conflict of Laws (1971) provides:
"In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and to the parties, in which event the local law of the other state will be applied."
Section 145 of 1 Restatement of the Law 2d, Conflict of Laws, states:
"(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence of the parties under the principles stated in § 6.
"(2) Contracts [sic] to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
"(a) the place where the injury occurred,
"(b) the place where the conduct causing the injury occurred,
"(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
"(d) the place where the relationship, if any, between the parties is centered.
"These contacts are to be evaluated according to their relative importance with respect to the particular issue."
Section 6 of 1 Restatement of the Law 2d, Conflict of Laws, provides as follows:
"(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
"(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
"(a) the needs of the interstate and international systems,
"(b) the relevant policies of the forum,
"(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
"(d) the protection of justified expectations,
"(e) the basic policies underlying the particular field of law,
"(f) certainty, predictability and uniformity of result, and
"(g) ease in the determination and application of law to be applied."Id.
As the parties indicate, there appears to be no Ohio case or case decided under Ohio choice of law doctrines directly on point. Nonetheless, I conclude, applying the pertinent choice of law principles as enunciated in Biro and the Restatement, that the law of Ohio controls the outcome of this case. Thus, I disagree with the defendants that Michigan some "has a more significant relationship to the occurrence" (i.e., the accident) than that of Ohio.
Applying § 145, I conclude that the defendants have not overcome the presumption favoring application of the law of the place of injury, which is the first factor to be considered under that section. Ohio is, moreover, the "place where the conduct causing the injury occurred," at least insofar as that conduct was the admitted negligence of the defendant truck driver. While conduct on the part of the defendant trucking company appears to have occurred elsewhere — namely, in Canada — that conduct did not, in any event, occur in Michigan.
The primary hook on which defendants hang their claim that Michigan, rather than Ohio law should apply, is the fact that plaintiff is a resident of Michigan and was operating a Michigan registered and insured truck in the course of his employment for a Michigan company subject to the operation of Michigan's workers compensation laws. The other parties have as much connection, at least, with Ohio, as with Michigan — i.e., they were transiting Ohio after having come through Michigan from Canada.
These Michigan-related factors, unique as they are to only one party, are not, without more, enough to outweigh the other factors. Aside from the accident in Ohio, there is, moreover, no "relationship" between the parties.
Thus, I conclude that the § 145 factors favor application of the law of Ohio.
With regard to § 6, I conclude that, first, the needs of both interstate and international systems will be furthered if the law of Ohio controls this case. As international commerce, and, correspondingly, the role of trucks from other countries in that commerce, increase, the law of the jurisdictions traversed by vehicles should play a principal role in regulating that traffic, consonant with the legitimate purposes of such regulation. Otherwise, an immunity or other privileges may be extended to carriers from elsewhere that is not shared by domestic carriers. The state's citizens would, moreover, be exposed to an increased risk of injury, and perhaps a lessened prospect of recovery for such injuries, if their domestic law were not applicable to all carriers uniformly, regardless of their origin or destination.
Second, the relevant polices of the forum also favor Ohio. Each of the two states has an equivalent interest in ensuring that vehicles, especially commercial vehicles, from elsewhere comply with its laws. Ohio's fault-based jurisprudence is, however, more likely to ensure full recovery on plaintiff's part, and thus acts as an inducement to foreign carriers to operate lawfully and safely while traversing this state. From the standpoint of Ohio, allowing Michigan's no-fault doctrine to control, and in all probability to reduce a potential recovery, would eliminate this inducement.
Third, Michigan's ability to implement its no fault system will not be impaired by applying Ohio law in this case. Had some part of the conduct giving rise to this suit occurred in Michigan, or had all parties been residents of Michigan, the demand to apply Michigan law would be strengthened. But neither of those circumstances is present; nor are there any other circumstances indicating that any interest on the part of the State of Michigan will be enhanced or impaired by applying Ohio law in this case.
Fourth, motorists operating on a state's highways should reasonably expect that the laws of that state will define the circumstances in which they are liable for injury they may cause to others, just as such motorists necessarily expect that the state's laws controlling how fast they may drive, when they can turn on red, and whether they have to wear seatbelts are controlling. Cf. Sabell v. Pacific Intermountain Express Co., 536 P.2d 1160, 1165 (Colo.App. 1975) ("a state in which [a] motor vehicle collision and the conduct which caused such collision occurs has an overriding interest in regulating the minimum standards of acceptable conduct by motorists using its roads").
I acknowledge that there may be some limits as to whether the host state's liability laws are controlling: thus, the Restatement posits a case in which the plaintiff and defendant embark from their home state on a round trip that will take them through other states before they return home. Restatement, supra, § 145, Comment e, Illustration 1. In such circumstances, the Restatement would permit the home state's law to apply. That approach would make sense where the driver and passenger were residents of Michigan, the car was registered and insured in Michigan and was being used by the parties on behalf of a Michigan employer, and they were covered by Michigan's no fault and workers compensation laws.
But those are not the facts of this case. There is no basis for believing that the parties, had they been queried as they were about to meet one another in Ohio, would have expressed an expectation that the consequences of their accidental encounter would be governed by Michigan law.
Fifth, the basic policy underlying the law of torts in Ohio is that injured parties recover fully for their losses. The policy of full recovery does not depend on citizenship. It would not be furthered by allowing or requiring motorists from Michigan or any other state to have the right to recovery, as defined in Ohio, affected by the law of their home state.
Sixth, certainty, predictability and uniformity of result are increased through application of the law of the place of injury, unless some reason not to do so clearly appears. No such reason appears in this case.
Finally, with regard to the ease of determining and applying the law: there can be no doubt that it will be easier for this court to apply the law of Ohio, rather than that of Michigan — which, as noted by the plaintiffs (who are represented by Michigan counsel) — has its unique and sometimes baffling complexities.
Though, as noted, there is no Ohio case directly in point, case law in Ohio nonetheless supports the decision to apply Ohio law in this case. In Kurent v. Farmers Ins. of Columbus, Inc., 62 Ohio St.3d 242, 247 (1991), for example, the Ohio Supreme Court was confronted with the obverse of the situation in this case, and held that the law of the place of the accident controlled.
In that case, a collision occurred in Michigan between Ohio residents and a Michigan driver insured by a no-fault policy issued by a Michigan insurance company. The court held that the interests of Ohio were not "sufficient to override the presumption that the place where the injury occurred determines the rights and liabilities of the parties."
The court emphasized:
A motorist traveling in Michigan accepts Michigan law as it pertains to accidents occurring in Michigan. That motorist does not have the option, for example, of claiming that Ohio's speed limit or traffic laws govern simply because the motorist resides in Ohio. The notion that Ohio law somehow controls the amount of damages flowing from torts committed on Michigan highways is akin to a contention that a Michigan resident who commits murder in Ohio is exempt from the death penalty because Michigan does not recognize capital punishment.Id. at 246.
Likewise, plaintiff in this case did not bring Michigan law with him when he crossed its border and came into Ohio. He was bound to follow Ohio's law while operating his vehicle, and he is entitled to benefit from the favorable aspects of that law — at least when compared with the law of his home state — when he was injured as a result of the defendants' negligence.
I conclude, accordingly, that Ohio law governs this case.
Conclusion
In light of the foregoing, it is
ORDERED THAT:
1. Defendants' motion to dismiss plaintiffs' negligent entrustment and negligent hiring claims be, and the same hereby is overruled; and
2. Defendants' motion to apply the law of Michigan be, and the same hereby is overruled.
So ordered.