2021 UT 30

IN THE

SUPREME COURT OF THE STATE OF UTAH

ANTHONY RAMON,

Appellant,

v.

NEBO SCHOOL DISTRICT,

Appellee.

No. 20190036

Heard February 8, 2021

Filed July 15, 2021

On Direct Appeal

Fourth District, Utah County

The Honorable Kraig Powell

No. 160401271

Attorneys:

Freyja Johnson, Emily Adams, Bountiful, for appellant

Sean D. Reyes, Att’y Gen., Peggy E. Stone, Asst. Solic. Gen., 

Salt Lake City, for appellee

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE HIMONAS, and JUSTICE PETERSEN joined.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 A Nebo School District (Nebo or the school district) school 

bus filled with children turned in front of Anthony Ramon’s car,

causing a crash. Ramon sued Nebo, claiming that Nebo was liable 

for its driver’s negligence under principles of respondeat superior. 

Ramon also claimed that Nebo was independently negligent because 

it continued to employ the driver even after he had been involved in 

multiple accidents. Nebo admitted it would be liable for the driver’s 

actions under respondeat superior principles, but denied that its 

driver was negligent. Nebo later moved for judgment on the 
RAMON v. NEBO SCHOOL DISTRICT

Opinion of the Court

2

pleadings of the negligent employment claim. Nebo argued that the 

employment claim was redundant with the negligence claim and 

that Ramon was not entitled to pursue a claim directly against it 

after it conceded vicarious liability. The district court granted that 

motion.

¶2 Ramon argues that the district court erred in two ways. 

Ramon posits that the motion for judgment on the pleadings was 

untimely and that the district court should have denied it on that 

basis. Ramon also avers that the district court’s decision was 

incompatible with fundamental principles of Utah law and the Utah 

Liability Reform Act. We conclude that the district court did not 

abuse its discretion by entertaining the motion when it did, but it 

erred in granting it. We reverse.

BACKGROUND

¶3 A Nebo bus driver, Duane Ludlow, turned the school bus he 

was driving in front of Ramon’s car. The bus and car collided, 

injuring Ramon. Ramon alleges that even before the collision, 

Ludlow’s driving record was far from pristine.1 When he renewed 

his commercial driver license in 2007, 2009, 2012, and 2013, Ludlow

was criticized for not stopping long enough before entering 

intersections, rolling past stop signs, and speeding around corners. 

In 2011, he hit a construction barrel, hit another car, and clipped a 

concrete headgate. And in 2013, a year prior to the collision with 

Ramon, Ludlow sideswiped several cars with a school bus.

¶4 Ramon sued Nebo. He brought a claim for negligence based 

on Ludlow’s driving, and he sought to hold Nebo liable under the 

doctrine of respondeat superior. He also brought a claim for 

negligence based on Nebo’s own conduct, asserting that Nebo acted 

negligently in its hiring, training, supervision, and retention of 

_____________________________________________________________

1 In fairness to Ludlow, against whom these allegations have 

been leveled, we remind the reader that when we talk about a 

motion for judgment on the pleadings, we take the factual 

allegations as true and consider them in the light most favorable to 

the non-moving party. See Golding v. Ashley Cent. Irrigation Co., 793 

P.2d 897, 898 (Utah 1990).
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Opinion of the Court

3

Ludlow, as well as its continued entrustment of school buses to 

Ludlow.2

¶5 In its answer to the complaint, Nebo admitted that the 

doctrine of respondeat superior applied. But it denied that Ludlow 

was negligent. The school district also contended that Ludlow had 

not caused the accident. In addition, Nebo raised a comparative 

negligence defense.

¶6 More than a year after it filed its answer, and two months 

before trial was scheduled to commence, Nebo moved for judgment 

on the pleadings. Nebo argued that, because it had admitted to 

respondeat superior liability, Ramon could not sustain a negligent 

employment claim alongside his negligence claim. Nebo also filed a 

motion in limine requesting that all evidence relating to the negligent 

employment claim be excluded from the trial.

¶7 Ramon opposed the motion, arguing that it was untimely. 

He also argued that, in Utah, a negligent employment action is 

distinct from an action seeking to hold an employer liable under 

respondeat superior.

¶8 The district court concluded that Nebo’s motion for 

judgment on the pleadings was timely. It granted Nebo’s motion, 

reasoning that “vicarious liability and negligent employment claims 

are concurrent forms of negligence; when one is proven, the other 

becomes obsolete and unnecessary.” It further reasoned that Nebo’s 

liability was “fixed by the amount of liability of its employee when 

vicarious liability is admitted, and it cannot be increased by 

[Ramon’s] separate negligent employment claim.”

¶9 At Ramon’s request, the district court indefinitely continued 

the trial and therefore did not rule on Nebo’s motion in limine. The 

court entered a final judgment under Utah Rule of Civil Procedure

54(b). Ramon appealed.

STANDARD OF REVIEW

¶10 We review the district court’s determination that the motion 

on the pleadings was timely for abuse of discretion. State v. Gonzalez,

2015 UT 10, ¶ 21, 345 P.3d 1168. A district court’s decision on a 

_____________________________________________________________

2 For ease in discussion, we refer to this claim as the “negligent 

employment claim,” but it encompasses the multiple sub-types of 

employment-related claims the complaint alleges.
RAMON v. NEBO SCHOOL DISTRICT

Opinion of the Court

4

motion for judgment on the pleadings raises a legal issue that we 

review for correctness. See Peck v. State, 2008 UT 39, ¶ 7, 191 P.3d 4.

ANALYSIS

I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

WHEN IT FOUND THAT NEBO’S MOTION FOR JUDGMENT

ON THE PLEADINGS WAS TIMELY

¶11 Ramon argues that Nebo’s motion for judgment on the 

pleadings was untimely. Utah Rule of Civil Procedure 12(c) allows 

that “[a]fter the pleadings are closed but within such time as not to 

delay the trial, any party may move for judgment on the pleadings.” 

Ramon argues that the district court erred when it granted the 

motion because Nebo’s motion delayed the trial. Ramon argues that 

the motion “resulted in the scheduled trial being indefinitely 

continued mere weeks before it was to begin.”

¶12 Ramon neglected to include a detail in his analysis that 

Nebo helpfully points out: the trial was continued at Ramon’s 

request. Ramon then asked the district court to certify the decision so 

that he could appeal the court’s dismissal of the negligent 

supervision claim. That matters. Ramon cannot now argue the 

motion was untimely because it delayed the trial when he requested 

the delay. And Ramon offers nothing to suggest that the motion for 

judgment on the pleadings would have delayed the trial in the 

absence of Ramon’s request to continue it. As such, Ramon has not 

met his burden of establishing that the district court acted outside

the bounds of its discretion when it heard Nebo’s motion.

II. THE DISTRICT COURT ERRED IN DISMISSING

RAMON’S NEGLIGENT EMPLOYMENT CLAIM

¶13 The district court granted Nebo’s motion to dismiss 

Ramon’s negligent employment claim, concluding that Nebo’s 

admission that Nebo was vicariously liable for Ludlow’s actions 

rendered the negligent employment claim superfluous. The district 

court reasoned that Ramon’s vicarious liability and negligent 

employment claims “are concurrent forms of negligence,” such that 

“when one is proven, the other becomes obsolete and unnecessary.” 

It further concluded that because Nebo’s liability “is fixed by the 

amount of liability of its employee when vicarious liability is 

admitted,” Nebo’s liability could not be increased by Ramon’s 

negligent employment claim. It also reasoned that Ramon’s 

negligent employment claim is “unfairly prejudicial” because it 

“creates a danger that a jury will assess [Nebo’s] liability twice and 

award duplicative damages to [Ramon].”
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Opinion of the Court

5

¶14 Ramon argues this was error. He posits that he is entitled to 

proceed to trial on alternative claims. He also argues that the district 

court’s ruling conflicts with the Utah Liability Reform Act (Act),

which provides that a party can request to have fault allocated

among multiple defendants and third parties. UTAH CODE § 78B-5-

819(1). And he contends that denying him the chance to have the 

jury allocate fault between Ludlow and the school district violates 

the Act. Ramon is right.

A. Ramon is Entitled to Proceed on Alternate Claims

¶15 Ramon first argues that he is entitled to proceed to trial on 

both his vicarious liability and negligent employment claims. In 

Ramon’s view, the district court’s ruling conflicts with the 

fundamental principle that the plaintiff is the master of her

complaint. We agree.

¶16 “Our adversary system of justice relies on the parties to 

identify the ‘claims’ presented for judicial decision. At the trial court 

level, we treat the plaintiff as the ‘master of the complaint.’ That 

means that the plaintiff has the prerogative of identifying the claims 

or causes of action she seeks to sustain in court. And we honor the 

plaintiff’s prerogative.” State v. Johnson, 2017 UT 76, ¶ 67, 416 P.3d 

443 (Lee, A.C.J., concurring in the judgment) (citation omitted). Our 

rules recognize this principle. A party asserting a claim “may join

either as independent or as alternate claims as many claims . . . as he 

[or she] may have against an opposing party.” UTAH R. CIV. P. 18(a).

¶17 Here, Ramon pled viable alternate claims of negligent 

employment and negligence. Contrary to Nebo’s assertions, Ramon’s 

negligent employment and negligence claims are not redundant. The 

two claims have distinct elements. And we have said that plaintiffs 

may proceed separately on both claims. See J.H. ex rel. D.H. v. West

Valley City, 840 P.2d 115, 124 (Utah 1992).

¶18 In J.H., a plaintiff sued West Valley City under various 

theories, including respondeat superior, negligent hiring, and 

negligent supervision, for the conduct of a West Valley City law 

enforcement officer. Id. at 117. After dismissing the respondeat 

superior claim, this court considered the claim for negligent hiring. 

Id. at 123–24. The court explained that, “[r]egardless of whether an 

employer may be held liable under the doctrine of respondeat 

superior, an employer may be directly liable for its acts or omissions 

in hiring or supervising its employees.” Id. at 124.

¶19 Nebo argues that J.H. is distinguishable because West Valley 

City did not concede respondeat superior liability, as Nebo has in 
RAMON v. NEBO SCHOOL DISTRICT

Opinion of the Court

6

this case. But even so, J.H. makes clear that negligent employment 

and respondeat superior claims are distinct. And because they are 

distinct claims, Ramon is entitled to assert them both if there is a 

factual basis for doing so.

¶20 Nebo counters with two main arguments in support of the

district court’s ruling. First, Nebo urges us to affirm the district court 

by adopting the “McHaffie rule.” The McHaffie rule provides that 

“once an employer has admitted respondeat superior liability for a 

driver’s negligence, it is improper to allow a plaintiff to proceed 

against the employer on any other theory of imputed liability.” 

McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995). 

Nebo may be correct when it asserts that a majority of jurisdictions 

that have considered the question have adopted some form of the 

rule. See, e.g., Bogdanski v. Budzik, 408 P.3d 1156, 1162–64 (Wyo. 2018); 

Ferrer v. Okbamicael, 390 P.3d 836, 844 (Colo. 2017); Diaz v. Carcamo, 

253 P.3d 535, 540–44 (Cal. 2011); Gant v. L.U. Transp., Inc., 770 N.E.2d 

1155, 1159–60 (Ill. App. Ct. 2002); Jordan v. Cates, 935 P.2d 289, 293

(Okla. 1997); Bartja v. Nat’l Union Fire Ins. Co. Pittsburgh, 463 S.E.2d 

358, 361 (Ga. Ct. App. 1995); Wise v. Fiberglass Sys., Inc., 718 P.2d 

1178, 1182 (Idaho 1986); Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 

Dist. Ct. App. 1977). But a sizeable number of other jurisdictions 

have reached the opposite conclusion and held that plaintiffs may 

proceed simultaneously on claims under theories of negligent 

employment and respondeat superior. See, e.g., MV Transp., Inc. v. 

Allgeier, 433 S.W.3d 324, 336 (Ky. 2014); James v. Kelly Trucking Co., 

661 S.E.2d 329, 330–32 (S.C. 2008) (noting also that a plaintiff is not 

precluded from maintaining a negligent employment cause of action 

even “after an employer stipulates that it is vicariously liable for its 

employee’s negligence”); Poplin v. Bestway Express, 286 F.Supp.2d 

1316, 1320 (M.D. Ala. 2003); Marquis v. State Farm Fire & Cas. Co., 961 

P.2d 1213, 1224–25 (Kan. 1998); Lim v. Interstate Sys. Steel Div., Inc., 

435 N.W.2d 830, 832–33 (Minn. Ct. App. 1989); Quinonez ex rel. 

Quinonez v. Andersen, 696 P.2d 1342, 1346 (Ariz. Ct. App. 1984).

¶21 Jurisdictions that adopt the rule appear to be motivated, at 

least in part, by a belief that the rule prevents a plaintiff from 

enjoying a double recovery. See, e.g., Ferrer, 390 P.3d at 845 (“[T]here 

is a danger that a jury will assess the employer’s liability twice and 

award duplicative damages to the plaintiff if it hears evidence of 

both a negligence claim against an employee and direct negligence 

claims against the employer.”). Nebo echoes this rationale in its 

briefing. The McHaffie rule is, however, a blunt instrument to deal 

with that potential issue. A district court has myriad other tools to 

address a potential double recovery: it can instruct the jury, provide
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Opinion of the Court

7

special verdict forms, or even remove the doubly-covered portion 

through post-trial motions. See UTAH R. CIV. P. 49, 51, 59, 60; James, 

661 S.E.2d at 331 (“[T]he argument that the court must entirely 

preclude a cause of action to protect the jury from considering 

prejudicial evidence gives impermissibly short-shrift to the trial 

court’s ability to judge the admission of evidence and to protect the 

integrity of trial, and to the jury’s ability to follow the trial court’s 

instructions.”). As a result, refusing to allow a plaintiff to move 

forward with a well-pled claim is an unnecessarily harsh method to 

solve the problem that the McHaffie rule jurisdictions identify.

¶22 Some jurisdictions with the McHaffie rule also justify it as a 

bulwark against unfairly turning the jury against a party. See, e.g.,

Ferrer, 390 P.3d at 845 (“[E]vidence necessary to prove direct 

negligence claims is likely to be unfairly prejudicial to the 

employee.”). Nebo echoes this concern, predicting that the jury 

might be inflamed by the evidence that it continued to permit 

Ludlow to drive a school bus with knowledge of his apparently lessthan-stellar driving record. Nebo claims that because it has admitted 

respondeat superior liability, any evidence of Ludlow’s prior driving 

incidents serves only to prejudice the jury. It therefore urges us to 

adopt the bright-line McHaffie rule to prohibit such evidence where 

employers have admitted respondeat superior liability.

¶23 Much like the South Carolina Supreme Court, “we think the 

argument that an independent cause of action against an employer 

must be precluded to protect the jury from considering prejudicial 

evidence presumes too much.” James, 661 S.E.2d at 331. “Our court 

system relies on the trial court to determine when relevant evidence 

is inadmissible because its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the 

issues, or misleading the jury.” Id. We agree with the James court that 

in most instances the best course is to rely on our district courts’ 

discretion to determine whether evidence should be admitted.

¶24 Utah Rule of Evidence 403 permits a court to “exclude 

relevant evidence if its probative value is substantially outweighed 

by a danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting time, 

or needlessly presenting cumulative evidence.” Unlike the courts 

that embrace the McHaffie rule, we prefer a system that permits a 

district court to review the specific items of evidence in context to 

decide whether rule 403 should prevent their admission. Adopting 

the McHaffie rule would, in essence, take away a district court’s 

discretion. We do not think we can accurately predict that the 
RAMON v. NEBO SCHOOL DISTRICT

Opinion of the Court

8

evidence needed to prove a negligent employment claim will always 

flunk the rule 403 balancing test. Instead, we leave the evidentiary 

concerns Nebo presents to the district court to consider under the 

bounds of the Utah Rules of Evidence.3

¶25 All that having been said, we ultimately reject the McHaffie

rule for an even more basic reason: it is incompatible with Utah’s 

Liability Reform Act. The Act provides that “[a] person seeking 

recovery may recover from any defendant or group of defendants 

whose fault, combined with the fault of persons immune from suit 

and nonparties to whom fault is allocated, exceeds the fault of the 

person seeking recovery.” UTAH CODE § 78B-5-818(2). And the trial 

court may, at any party’s request, direct a jury to determine the 

“percentage or proportion of fault attributable to each person 

seeking recovery, to each defendant, to any person immune from

suit, and to any other person . . . for whom there is a factual and 

legal basis to allocate fault.” Id.4

¶26 Ramon has alleged that the accident was caused in part by 

Nebo’s own negligence in failing to properly screen, train, discipline, 

and supervise Ludlow. Utah law recognizes the tort of negligent 

employment, see, e.g., J.H., 840 P.2d at 123–26, and that provides a 

legal basis to allocate fault for the accident to the school district. That 

any fault attributable to Ludlow may pass through to Nebo under 

principles of respondeat superior does not alter the fact that there 

exists a factual and legal basis to allocate fault for the accident to 

both Nebo and Ludlow. Under the Act’s plain language, Ramon is 

entitled to request that the jury determine the proportion of fault 

attributable to Ludlow’s negligence in driving and Nebo’s 

negligence in its supervision of Ludlow.5

_____________________________________________________________

3 We note that this case comes to us without any specific evidence 

being placed before the court. If the probative value of that evidence 

is substantially outweighed by a danger of unfair prejudice, the 

district court may exclude it. UTAH R. EVID. 403.

4 “Fault” is “any actionable breach of legal duty, act, or omission 

proximately causing or contributing to injury or damages sustained 

by a person seeking recovery, including negligence in all its degrees, 

[and] comparative negligence . . . .” UTAH CODE § 78B-5-817(2).

5 Nebo also argues that the Act does not apply to respondeat 

superior claims “because those claims do not depend on any 

showing of fault by the party subject to such liability.” (quoting M.J. 

(continued ...)
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Opinion of the Court

9

¶27 Nebo pushes back, arguing that the jury might wind up 

assigning more fault to the combination of Nebo and Ludlow than 

the jury would if it was only asked to consider the fault of Ramon 

and Ludlow. This may or may not be so.6 But even if Nebo has 

correctly handicapped the jury’s behavior, that result is what the Act 

envisions. The statute allows a plaintiff, or a defendant, to ask the 

jury to apportion fault to anyone a party identifies as being legally 

responsible for the injury.7 As we recognized in J.H., there exists a 

_____________________________________________________________

v. Wisan, 2016 UT 13, ¶ 36, 371 P.3d 21). True, but Nebo’s argument 

doesn’t speak to the relevant question. Respondeat superior kicks in 

after the jury has allocated fault. At that point, respondeat superior 

will require Nebo to shoulder the share of the damages attributable 

to Ludlow’s fault in causing the accident. Nothing in the Act allows 

Nebo to use respondeat superior as an off-ramp from having fault 

apportioned to it directly for its own negligent acts.

6 It is worth noting that Nebo’s argument is premised on the 

assumption that the jury will start by assigning a portion of fault to 

Ludlow and allocate the rest to Ramon. This permits Nebo to 

conclude that if its negligent employment is included in the calculus, 

any fault allocated to it will necessarily come from what the jury 

would have otherwise attributed to Ramon. This assumption is 

faulty, because the jury could just as easily start with Ramon’s own 

fault and attribute the rest to Ludlow. In that scenario, the addition 

of Nebo’s own negligence means that the amount of fault assigned to 

Ludlow alone would be the same amount assigned to the 

combination of Ludlow and Nebo.

7 To be clear, we are not suggesting that a separate theory of 

liability against Nebo increases the amount of damages Ramon could 

recover. Ultimately, Ramon’s damages will be the losses he can 

convince a jury he suffered because of the accident. But we reject the 

argument that because a separate theory of liability against Nebo 

cannot increase the amount of damages Ramon suffered in the 

accident, a jury cannot consider that theory of liability and assign 

fault accordingly. And we reject the related argument that because 

Nebo concedes that it will ultimately be financially responsible for 

any damages, Ramon loses the ability to ask the jury to apportion 

fault between Nebo and Ludlow. As explained above, the Act does 

not support that conclusion. There are good reasons why the 

legislature might want a jury to apportion fault between responsible 

parties, even if it does not impact the amount of damages the 

(continued ...)
RAMON v. NEBO SCHOOL DISTRICT

Opinion of the Court

10

legal basis to hold Nebo liable for its own role in continuing to 

entrust a school bus to Ludlow. The Act allows Ramon to ask a fact 

finder to allocate fault accordingly.

CONCLUSION

¶28 We affirm the district court’s conclusion that Nebo timely 

moved for judgment on the pleadings. But we reverse the district 

court’s dismissal of Ramon’s negligent employment claim. We reject 

the bright-line approach some other jurisdictions employ to bar 

negligent employment claims where an employer has admitted that 

it is financially responsible for its employee’s liability. We remand 

for further proceedings.

_____________________________________________________________

plaintiff can recover. For example, fault allocation can shine a light 

on negligent practices and promote corrective behavior. Moreover, 

the rule Nebo advocates might distort the fault allocation in cases 

where more than the employer and employee are alleged to have 

contributed to the accident.