It’s the end of the year and time for wishlists. Here is one item from my legal wishlist.
In many of the transportation cases I handle, the complaint typically alleges as separate causes of action negligence and then something akin to negligent hiring, training, supervision, retention and/or entrustment. Locally, the prevailing thought seems to have been these are separate and distinct causes of action, although to date the Supreme Court of Nevada has not ruled on this topic. A large number of other jurisdictions deem these claims one in the same because they seek the same goal: to hold one party vicariously liable for the negligence of another. Once this is accomplished, say if the defendant company admits the driver was within the course and scope of employment, the negligent hiring, training, supervision, retention and/or entrustment cause of action is extinguished.
The doctrine has been considered at least three times in local, unpublished federal orders. USDJ Jones applied it in Cruz v. Durbin, 2011 U.S. Dist. LEXIS 51057, 2011 WL 1792765 (D. Nev. 2011), USDJ George in Adele v. Dunn, 2013 U.S. Dist. LEXIS 44602, 2013 WL 1314944 (D. Nev. Mar. 27, 2013) and USDJ Hicks indicated he would likely apply it in Wright v. Watkins & Shepard Trucking, Inc., 2013 U.S. Dist. LEXIS 146762, 2013 WL 5585005 (D. Nev. Oct. 10, 2013). There is also relatively recent legal commentary exploring the issue from both sides. Richard A. Mincer, The Viability of Direct Negligence Claims Against Motor Carriers in the Face of an Admission of Respondeat Superior, 10 Wyo. L.Rev. 229 (2010).
Why discuss this on a discovery blog? My experience is the far more expensive claim to prosecute and defend is typically negligent hiring, training, supervision, retention and/or entrustment. Plaintiff must conduct extensive discovery as to the corporate defendant’s policies and procedures and likely retain experts. The defendant must respond to what are likely voluminous discovery requests and then retain rebuttal experts. If it can be admitted the driver was within the course and scope of employment, eliminating as a matter of law the negligent hiring, training, supervision, retention and/or entrustment claim, then discovery can significantly narrowed and focused on the true dispute: was the driver negligent?
The idea is to help restrict the time and cost of litigation and help to “secure the just, speedy, and inexpensive determination of every action.” NRCP 1.