202 1 UT 30

IN THE



## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

A NTHONY R AMON , Appellant,

v.

N EBO S CHOOL D ISTRICT , 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

J USTICE P EARCE authored th e opinion of the Court in which

C HIEF J USTICE D URRANT , A SSOCIATE C HIEF J USTICE L EE , J USTICE H IMONAS , and J USTICE P ETERSEN joined.

J USTICE P EARCE , opinion of the Court:

INTRODUCTION

¶1 A Nebo School District (Nebo or the school district ) school
b us 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 princ i ples 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 princip les

, but denied that its driver was negligent. Nebo later moved for judgment on theR AMON v. N EBO S CHOOL D ISTRICT
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 co urt 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 t he 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 e ven 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 t he 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 fo r negligence based on Nebo’s own conduct, asserting that Nebo acted negligently in its hiring, training, supervision , and retention of

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1 I n fairness to Ludlow, against whom these allegations have been leveled, we remind th e 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)

.Cite as: 2021 UT 30

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 th at 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 clai m 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 “vicari ous liability and negligent employment claims are concurrent forms of negligence; when one is prove n , the other becomes obsolete and unnecessary.” It further reasoned that Nebo’s liability was “fixed by the amount of liability of its employee when

vicariou s liability is admitted, and it cannot be increased by [Ramon’s] separate negligent employment claim.”

¶9 At Ramon’s request, t he 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.R AMON v. N EBO S CHOOL D ISTRICT
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 “ r esulted in the scheduled trial being i ndefinitely continued mere weeks before it was to begin.”

¶12 Ramon ne glected to include a detail in hi s 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 DIS TRICT 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 th e negligent employment claim superfluous. The district

court reasoned that Ramon’s vicarious liability and negligent employment claims “are concurrent forms of negligence

, ” s uch that

“ when one is proven, the other becomes obsolete and unnecessary.”
It furt her concluded that b ecause 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 e mployment claim is “unfairly prejudicial” because it “creates a danger that a jury will assess [Nebo’s] liability twice and award duplicative damages to [Ramon]

. ”Cite as: 2021 UT 30

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. U TAH C ODE § 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

bot h his vicarious liability and negligent employment claims. In Ramon’s view, the district court’s ruling conflicts with the fundamental principle that th e 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 t o 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 alternat e claims as many claims

. . . as he [or she] may have against an opposing party.” U TAH R. C IV

. 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. W est 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 supervis ion , 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 l i ability, as Nebo has inR AMON v. N EBO S CHOOL D ISTRICT
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 p laintiff 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 h ave 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. S ee , 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, 33 0

– 3 2 (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, 122 4

– 2 5 (Kan. 1998); Lim v. Interstate Sys. Steel Div., Inc.

, 435 N.W.2d 830, 83 2

– 3 3 (Minn. Ct. App. 1989); Quinonez ex rel. Quinonez v. Andersen , 696 P.2d 1342, 1346 (Ariz. Ct. App. 198 4).

¶21 J urisdictions 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 duplicat ive 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, provid eCite as: 2021 UT 30

Opinion of the Court

7 special verdict forms, or even remov e the doubly

- covered portion
thro ugh post

- trial motions. See U TAH R. C IV

. 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 u nnecessarily harsh method to solve the problem that the McHaffie rule jurisdictions identify

. ¶22 Some j urisdictions with the Mc Ha ffie 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 less

than

- 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. I t therefore urges us to adopt the bri ght

- 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 pr otect 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 th e 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 Ru le 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 r ule 403 should prevent their admission. Ad opting
the McHaffie rule would, in essence, take away a district court ’s
discretion

. W e do not think we can accurately predict that theR AMON v. N EBO S CHOOL D ISTRICT
Opinion of the Court

8 evidence needed to prove a negligent employment claim will always
flunk the r ule 403 balancing test . Instead, we leave t he evidentiary concerns Nebo presents to the district court to consider under the
bounds of the Utah Rules of E vidence. 3

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

r ule for an even more basic reason: it is incompatible with Utah’s
Liabili ty 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

per son seeking recovery.” U TAH C ODE § 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 pri nciples 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 proporti on of fault attributable to Ludlow’s negligence in driving and Nebo’s negligence in its supervision of Ludlow

. 5

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3 We note that this case comes to us without any specific evidence being p laced before the co urt. If the probative value of th at evidence is substantially outweighed by a danger of unfair prejudice, the district court may exclude it. U TAH R. E VID

. 403.

4 “Fault” is “any actionable breach of legal duty, act, or omission proximate ly causing or contributing to injury or damages sustained by a person seeking recovery, including negligence in all its degrees, [and] comparative negligence

. . . . ” U TAH C ODE § 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 ...)Cite as: 2021 UT 30

Opinion of the Court

9 ¶27 Nebo pus hes 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 o nly 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 argumen t 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. Not hing 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 p ortion 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 Ramo n. 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

con vince 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 abo ve, 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 ...)R AMON v. N EBO S CHOOL D ISTRICT
Opinion of the Court

10 legal basis to h old Nebo liable for its own role in continuing to
entrust a school bus to Ludlow . T he Act allows Ramon to ask a fact
finder to allocate fa ul t accordingly

.
CONCLUSION

¶28 We affirm the district court’s conclusion that Nebo timely moved for judgment on the plead ings. But we reverse the district court’s dismissal of Ramon’s negligent employment claim

. We reject the bright

- line approach some other jurisdictions empl o y to bar negligent employment claims where an employer has admitted that it is financially responsib le for its employee’s liability. We remand for further proceedings.

_____________________________________________________________ plaintiff can recover

. For example, fault alloca tion 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
contribu ted to the accident.