Judge Robin Cauthron in the United States District Court for the Western District of Oklahoma explained, in a March 2019 slip copy opinion and order, that Jordan v. Cates has not been overruled, but rather was only limited to its facts. Judge Cauthron’s order was addressing the effect of a more recent Oklahoma Supreme Court case from last year, the case of Fox v. Mize, 2018 OK 75, ¶ 14, 428 P.3d 314, 322. Some have characterized the Fox case as at least calling into question the older rule in Jordan v. Cates. The opinion in Jordan indicates that when an employer in a personal injury case arising from an employee’s conduct stipulates to respondeat superior liability—i.e., that the employee was acting in the course and scope of the employment—then an additional, alternative theory of negligent hiring by the employer were “unnecessary and superfluous.” Jordan v. Cates, 1997 OK 9, 935 P.2d 289, 293. The injury in Jordan resulted from an altercation that ensued between the injured customer and a worker at the employer’s store. The customer brought a claim of battery against the employee and employer, along with a claim of negligent hiring by the employer. The employer had stipulated that the battery was within the course and scope of employment, thus the Court ruled that the negligent hiring claim was merely superfluous and would not be permitted, especially when punitive damages were already permissible against the employer under the battery claim.
A little over a decade later, this principle came under scrutiny by the Oklahoma Supreme Court in the Fox v. Mize case. But unlike the Jordan case, Fox v. Mize involved a plaintiff’s attempt to bring concurrent claims of respondeat superior liability against the employer, as well as negligent entrustment liability against the employer. 2018 OK 75, ¶ 14, 428 P.3d 314, 322. The injury was a death that resulted from a motor vehicle accident involving a motorcycle. The employer stipulated to respondeat superior liability and argued that this rendered the other theory (here, negligent entrustment) “unnecessary and superfluous” under the Jordan rule. The Court disagreed. It distinguished Jordan and described the negligent entrustment theory of liability as a separate claim, stemming from different conduct from that of the alleged negligent driving itself. The Court declined to address whether Jordan v. Cates should be overruled entirely or whether the decision in Fox would apply to negligent hiring claims as well.
This issue was addressed again in the Annese decision in the Western District from March of this year. The Annese case involved a car accident as well, with personal injury and an employee driving within the course and scope of employment. Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 WL 1246207, at *3 (W.D. Okla. Mar. 18, 2019) (Slip Copy). The plaintiff asserted respondeat suprerior liability, negligent hiring, and negligent entrustment. Following Fox, the negligent entrustment claim was permitted by the District Court. However, the District Court granted summary judgment on the negligent hiring claim under the rule of Jordan v. Cates. The Court explained:
In Mize, the court concluded that the plaintiff was permitted to pursue her negligent entrustment claim in addition to her respondeat superior claim against an employer—even though she would not ultimately be permitted to prevail and recover on both. 2018 OK 75, ¶ 12, 428 P.3d at 321. Notably, however, the court distinguished its holding from Jordan by noting that Jordan involved a claim of negligent hiring—not entrustment. Id. at ¶ 14, 322. The court declined to take up the question of negligent hiring, since that claim was not before the court on appeal. Id. Nevertheless, the court took the opportunity “to expressly state that, for now, the holding in Jordan is limited to its facts.” Id., n.12.
The Court finds that Plaintiff’s negligent hiring claim against Defendant Xpress should be dismissed. First, Jordan has not been overruled. Thus, it still remains good law and, in applying Oklahoma law, this Court is bound to follow it. Moreover, by limiting Jordan to its facts, Mize bolsters the result here because the same facts present here were at issue in Jordan. Indeed, the particular claim at issue in Jordan was a negligent hiring claim—the same claim at issue here. As a result, the Court finds that Plaintiff’s negligent hiring claim against Defendant Xpress should be dismissed.Annese v. U.S. Xpress, Inc., No. CIV-17-655-C, 2019 WL 1246207, at *3 (W.D. Okla. Mar. 18, 2019) (Slip Copy) (emphasis in original).
