Estate of Laura Ratley v. Awad

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 22, 2025
• Docket: 23-6169
• Status: Unpublished

Opinion

Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 22, 2025 _________________________________ Christopher M. Wolpert Clerk of Court THE ESTATE OF LAURA RATLEY, by and through its duly appointed administrator Robert Ratley; LEAH RATLEY; THE ESTATE OF REBECCA FULCHER, by and through its duly appointed special administrators John Fulcher and Amy Fulcher; RYAN FULCHER,

Plaintiffs - Appellants,

and

AMY RATLEY; ROBERT RATLEY; AMY FULCHER; JOHN FULCHER,

Plaintiffs, No. 23-6169 v. (D.C. No. 5:19-CV-00265-PRW) (W.D. Okla.) DHAFER M. AWAD; SHAMROCK FOODS COMPANY, LLC,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT* _________________________________

Before CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 2

A federal court sitting in diversity must predict what the state supreme court

would decide when no applicable state law exists. But when the state supreme court

has already spoken on the matter, a federal court’s task is simply to ascertain and

apply existing state law.

Sitting in diversity, the Western District of Oklahoma held that Defendant

Dhafer Awad’s truck, parked entirely out of the highway travel lane but atop the

shoulder rumble strips, was not the proximate cause of a collision that killed Rebecca

Fulcher and Laura Ratley and injured Ryan Fulcher and Leah Ratley (collectively,

Plaintiffs). It also granted Awad’s employer, Defendant Shamrock Foods, judgment

on the pleadings, holding that Oklahoma law precluded Plaintiffs from asserting a

claim for negligent hiring, training, supervision, and retention against Shamrock

Foods because it stipulated that Awad was acting within the scope of his employment

at the time of the accident.

Plaintiffs appeal the district court’s orders granting Defendants’ motions for

summary judgment and judgment on the pleadings. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, we affirm. We deny Plaintiffs’ motion to certify its question to

the Oklahoma Supreme Court.

I.

In the early hours of April 5, 2017, Plaintiff Ryan Fulcher drove his minivan

westbound on the Cimarron Turnpike with his sister, Rebecca Fulcher, his girlfriend,

Leah Ratley, and his girlfriend’s sister, Laura Ratley. The roadway was dark and

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wet, but the minivan’s headlights were bright and the road was level and straight.

Fulcher’s view of the road was unobstructed and spanned a half mile.

At around 1:30 a.m., Fulcher fell asleep at the wheel and veered outside the

traffic lane onto the right shoulder of the turnpike where Awad parked his Shamrock

Foods semi-truck. Awad deployed no warning devices or lights before parking.

And, although he parked entirely out of the travel lane, the truck covered the rumble

strips on the highway’s shoulder. The minivan’s electronic data shows that one

second before impact, the vehicle drifted onto the rumble strips on the right shoulder

and that 0.2 seconds before impact, Fulcher started to correct his steering. But he

corrected too late. Fulcher’s minivan, traveling at 74 miles per hour, collided with

the back of the semi-truck, killing Laura and Rebecca and injuring Fulcher and Leah.

Fulcher and Leah Ratley, along with the estates of Laura and Rebecca, sued

Shamrock Foods and Awad (collectively, Defendants) in the Western District of

Oklahoma alleging (1) negligence against Shamrock Foods and Awad; (2) negligent

hiring, training, supervision, and retention against Shamrock Foods; and (3) negligent

entrustment against Shamrock Foods. Defendants moved for judgment on the

pleadings on Plaintiffs’ negligent hiring, training, supervision, and retention claim

(negligent hiring claim). On May 7, 2021, the district court granted that motion,

concluding that Jordan v. Cates, 935 P.2d 289, 294 (Okla. 1997) precluded Plaintiffs

from asserting the claim. The district court denied Plaintiffs’ motion for

reconsideration of that order.

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On September 28, 2023, the district court granted summary judgment to

Defendants on the remaining claims and dismissed the case. In its order, the district

court concluded that after considering Oklahoma’s myriad of “parked car cases,” a

jury would have no evidence from which it could reasonably find a causal nexus

between Awad’s actions and Plaintiffs’ resulting injuries.

Plaintiffs now appeal, arguing that the district court erred in granting summary

judgment when it (a) concluded that Awad was not the proximate cause of Plaintiffs’

injuries, and (b) determined causation based on disputed material facts. Plaintiffs

also argue that the district court erred by granting judgment on the pleadings as to

their negligent hiring claim. And Plaintiffs now move to certify a question to the

Oklahoma Supreme Court concerning the scope of Jordan v. Cates. We first address

the district court’s summary judgment order, then its order granting judgment on the

pleadings. We also consider Plaintiffs’ motion to certify its question to the

Oklahoma Supreme Court.

II.

We review a district court’s grant of summary judgment de novo, applying the

same standard as the district court. Adamson v. Multi Cmty. Diversified Servs., Inc.,

514 F.3d 1136, 1145 (10th Cir. 2008) (citing Trujillo v. Univ. of Colo. Health

Sciences Ctr., 157 F.3d 1211, 1213 (10th Cir. 1998)). We affirm a grant of summary

judgment only if no genuine issue as to any material fact exists and the moving party

is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). Facts are

“material” if, under the governing law, they could affect the outcome of the lawsuit.

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Adamson, 514 F.3d at 1145 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)). Disputes are “genuine” if a rational jury could find for the nonmoving

party on the evidence presented. Id. The moving party is entitled to summary

judgment when the nonmoving party fails to make a “sufficient showing on an

essential element of her case” for which she bears the burden of proof. Savant

Homes, Inc. v. Collins, 809 F.3d 1133, 1137–38 (10th Cir. 2016) (quoting Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

On the merits, we apply Oklahoma negligence law. See Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 78 (1938); Racher v. Westlake Nursing Home Ltd. P’ship,

871 F.3d 1152, 1162 (10th Cir. 2017). Oklahoma courts define negligence as

“(1) the existence of a duty on the part of a defendant to protect the plaintiff from

injury; (2) a violation of that duty; and (3) injury proximately resulting from the

violation.” Dirickson v. Mings, 910 P.2d 1015, 1018 (Okla. 1996) (citing Sloan v.

Owen, 579 P.2d 812, 814 (Okla. 1977)).

Proximate cause is “the efficient cause which sets in motion the chain of

circumstances leading to the injury.” Id. (quoting Thur v. Dunkley, 474 P.2d 403,

405 (Okla. 1970)). But if the defendant “merely furnishes a condition by which the

injury was made possible and a subsequent independent act caused the injury,” the

condition is not the injury’s proximate cause. Dunkley, 474 P.2d at 405. We

distinguish between proximate cause and conditions based on foreseeability.

Dirickson, 910 P.2d at 1019. A defendant’s negligence is the proximate cause of an

injury, rather than a condition, if the injury was “reasonably anticipated as the

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probable result of the breach.” Id. This standard requires courts to consider what

injuries the defendant could foreseeably cause in the context of a particular case. The

Oklahoma Court of Appeals has offered this guidance in parked-car cases: injuries

are foreseeable, and the defendant’s negligence is the proximate cause of a plaintiff’s

injuries if the plaintiff “is unable to avoid the parked vehicle.” Hinds v. Warren

Transp., Inc., 882 P.2d 1099, 1101 (Okla. Civ. App. 1994). Whether any evidence

can establish a causal connection between the negligence of the parked car and a

plaintiff’s injuries is a question of law for the court. Jackson v. Jones, 907 P.2d

1067, 1073 (Okla. 1995).

Oklahoma courts have analyzed proximate cause in a slew of “parked car

cases” decided over the last several decades. Dirickson, 910 P.2d at 1017–18. The

district court observed that the “sheer variety of negligent acts” and “ambient

circumstances” have made it “impossible to divine a single rule” to determine when a

parked car is a mere condition or the proximate cause of a plaintiff’s injuries. Ratley

v. Awad, 2023 WL 7221360, at *2 (W.D. Okla. Sept. 28, 2023). That said,

Oklahoma courts have repeatedly “den[ied] recovery to a plaintiff whose vehicle

collides [with] a defendant’s vehicle parked in the roadway if the plaintiff should

have seen the parked vehicle and was able to avoid the collision.”1 Hinds, 882 P.2d

at 1101 (emphasis omitted).

1 In 1973, the Oklahoma legislature abandoned its contributory negligence scheme and instead adopted a comparative negligence law. Smith v. Jenkins, 873 P.2d 1044, 1047 n.15 (Okla. 1994). At oral argument, Plaintiffs argued for the first time that Defendants’ Oklahoma Supreme Court cases decided before 1973 are not 6 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 7

In Sturdevant v. Kent, 322 P.2d 408, 410 (Okla. 1958), a driver collided with

the back of a parked pickup truck because he looked away from the road. Although

the rear of the truck jutted several feet into the street, in violation of a city ordinance,

the Oklahoma Supreme Court reversed the jury’s verdict for the driver, holding that

the driver was the proximate cause of the injury because he could have seen the truck

had he “look[ed] where he was going.” Id. The Court agreed that a “motorist

colliding with an automobile parked on the highway is guilty of negligence

proximately causing the collision if he could have seen the parked automobile in time

to avoid the collision.” Id. (quoting De Witt Blashfield, Blashfield’s Cyclopedia of

Automobile Law and Practice, Perm. Ed., sec. 2641).

Likewise in Mote v. Hilyard, 358 P.2d 844, 845 (Okla. 1961), the Oklahoma

Supreme Court again held that a driver proximately caused an automobile collision

where he had an unobstructed view of the accident area and could have avoided

hitting the parked car. The driver came over the crest of a hill, saw that two cars

were parked on the sides of the highway, and attempting to avoid hitting the car on

the right side of the road, the driver swerved his car to the left, colliding with the car

on the left. Id. at 844. Because the driver had an unobstructed view of the area more

controlling and do not bar the possibility of Plaintiffs’ recovery. But, Plaintiffs did not develop this argument either in the briefs they filed in the district court or the appellate briefs they filed in this appeal. Because Plaintiffs raised this theory for the first time at oral argument, we deem the argument waived and decline to consider it. See In re: Motor Fuel Temperature Sales Pracs. Litig., 872 F.3d 1094, 1110 n.4 (10th Cir. 2017) (explaining that failure to raise an argument in an opening brief waives the argument as the “general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief”). 7 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 8

than 2,100 feet away but applied his breaks when he was only about 250 or 300 feet

from the parked cars, the driver proximately caused the accident. Id. at 845.

The Oklahoma Supreme Court reached the same conclusion in Ryel v. B. F.

Walker, Inc., 527 P.2d 584, 585–86 (Okla. 1974). The driver in Ryel saw the illegally

parked truck when he was 600 feet away but did not apply his breaks until 60 or 70

feet before impact. Id. at 585. The Court concluded that the driver’s own negligence

proximately caused the incident because the driver could have stopped before hitting

the truck but did not. Id. at 586.

Like the drivers in Sturdevant, Mote, and Ryel, Fulcher’s view of Awad’s

truck was unobstructed. The particular part of the turnpike was level and straight,

and despite the rain and darkness, Plaintiffs’ own expert opined that Fulcher’s

unobstructed view spanned more than a half mile. Fulcher testified that, if he hadn’t

fallen asleep, he would have seen the truck parked on the shoulder of the turnpike.

And unlike the parked cars in Sturdevant, Mote, and Ryel, Awad parked his truck

entirely outside the travel lane. Plaintiffs’ expert admitted that “if [Fulcher]

remained within the lane of travel, he would not have hit the truck.” So even

assuming that Awad’s actions were negligent, Fulcher would have seen the truck

parked on the shoulder and would not have collided with it. Under the venerable

Sturdevant, Mote, and Ryel decisions, Awad’s truck was a mere condition and

Fulcher proximately caused Plaintiffs’ injuries.

Plaintiffs contend, however, that unintentional veering out of a highway lane,

whether because of distraction or drowsiness, is foreseeable. According to Plaintiffs,

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this is the precise purpose of rumble strips on highway shoulders—to alert drowsy or

distractive drivers that they are no longer in the lane by communicating something

that the drifting driver can feel. Plaintiffs argue that when a driver parks on the

rumble strips on the highway shoulder, as Awad did, he takes away a drowsy driver’s

opportunity to regain control and return to the travel lane.

We don’t necessarily disagree with Plaintiffs’ contentions. But, even if

Plaintiffs are correct that distracted or drowsy drivers are likely to benefit from

rumble strips on a highway shoulder, that fact is largely irrelevant. Oklahoma law

requires us to consider the specific underlying negligent act and consider whether the

plaintiff’s injury was foreseeable or reasonably anticipated as the probable result of

that negligent act. Dirickson, 910 P.2d at 1019. We do not ask whether a drowsy

driver using the rumble strips on the highway shoulder is reasonably foreseeable but

whether Plaintiffs’ injuries were a reasonably foreseeable result of Awad’s decision

to park his truck on the shoulder of the highway, on the rumble strips.

According to Oklahoma law, injuries resulting from a parked car are not

foreseeable if a plaintiff is able to avoid the parked vehicle. Hind, 882 P.2d at 1101;

see also Sturdevant, 322 P.2d at 410; Mote, 358 P.2d at 845; Ryel, 527 P.2d at 585–

86. Fulcher could have avoided Awad’s truck—parked entirely out of the travel

lane—had he been awake. Therefore, under Oklahoma law, Plaintiffs’ injuries from

the collision were not a foreseeable result of Awad’s conduct. Thus, Awad’s conduct

created a condition, not a cause. The district court therefore did not err in granting

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summary judgment by concluding that the Plaintiffs failed to establish an essential

element of their negligence claim. 2

2 After carefully analyzing Oklahoma supervening-cause law, the dissent concludes that the district court erred by granting summary judgment on supervening cause as a matter of law. The dissent reaches this conclusion even though the Plaintiffs briefed only a portion of the supervening-cause issue. Plaintiffs discussed only whether Fulcher’s drowsiness was foreseeable. But a supervening cause must not only be (1) foreseeable but also (2) “independent of the original act” and (3) “adequate of itself to bring about the result.” Robinson v. Okla. Nephrology Assocs., Inc., 154 P.3d 1250, 1256 (Okla. 2007) (quoting Graham v. Keuchel, 847 P.2d 342, 348 (Okla. 1993)). We can affirm on any ground supported by the record. Elkins v. Comfort, 392 F.3d 1159, 1162 (10th Cir. 2004) (citing Stillman v. Tchrs. Ins. & Annuity Ass’n Coll. Ret. Equities Fund, 343 F.3d 1311, 1321 (10th Cir. 2003)). But we generally will not reverse the district court’s judgment based upon a ground not raised by the parties. Petrini v. Howard, 918 F.2d 1482, 1483 n.4 (10th Cir. 1990) (citing Pell v. Azar Nut Co., 711 F.2d 949, 950 (10th Cir. 1983)). Indeed, we carefully avoid bypassing the adversarial nature of the legal system and exercise our power to reverse on a theory not addressed by the parties only rarely and where “exceptional circumstances” exist. United States v. Caro, 965 F.2d 1548, 1558 (10th Cir. 1992) (citing United States v. McNulty, 729 F.2d 1243, 1269 (10th Cir. 1983)); see also United States Sec. & Exch. Comm’n v. Young, 2022 WL 2977080, at *4 (10th Cir. July 28, 2022), adhered to, 121 F.4th 70 (10th Cir. 2024)). Here, Plaintiffs did not brief or argue the basis for the dissent’s conclusion before the district court or in their opening brief, instead pressing their case in a more limited fashion. “In our adversary system . . . in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Denver Homeless Out Loud v. Denver, Colo., 32 F.4th 1259, 1280 (10th Cir. 2022) (Rossman, J., dissenting) (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)). Consistent with this principle, “[w]e have cautioned that ‘our discretion to hear issues for the first time on appeal’ is to be exercised ‘only in the most unusual circumstances,’ such as ‘where the proper resolution of the issue is beyond any doubt’ or where ‘injustice might otherwise result.” Id. at 1281 (quoting Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993)). Plaintiffs give no persuasive reason to use our limited authority to reverse based upon an issue they did not present. Indeed, they failed to make the arguments underlying the dissent’s reasoning in either the district court or in their opening brief. Without developed briefing on all three supervening-cause components, reversal would tread unnecessarily on the adversary process—an especially imprudent 10 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 11

****

Plaintiffs also argue that the district court erred in granting summary judgment

in light of genuinely disputed material facts. Plaintiffs list twenty-one disputed facts

in their opening brief. Almost all these facts relate to Awad’s alleged negligence in

parking his truck on the shoulder of the highway and failing to use hazard lights. But

Awad’s truck did not proximately cause Plaintiffs’ injuries. And even if Awad

negligently failed to employ his emergency parking lights, Plaintiff would not have

seen the lights because he was asleep. Disputed facts related to Awad’s negligence

in parking and failing to use hazard lights, therefore, are immaterial.

Plaintiffs’ other facts relate to Awad’s failure to use emergency triangles.

Plaintiffs argue that it is both disputed and material whether Fulcher would have

“seen, hit and felt, or otherwise encountered the warning triangles if truck driver

Awad properly placed them at 200 and 100 feet as required by law.” According to

Plaintiffs, “if Awad had deployed the mandated safety triangles the Fulcher minivan

would have hit them and they would have exploded in front of him,” and that “[a]

decision given that the proper resolution of the supervening-cause issue is certainly not beyond any doubt. Moreover, existing precedent resolves the case at hand. When a plaintiff’s vehicle collides with a defendant’s vehicle parked in or out of the roadway, and if he should have seen the parked vehicle and could have avoided the collision, Sturdevant, Mote, and Ryel require we hold the plaintiff to be the proximate cause of the accident as a matter of law. Sturdevant’s, Mote’s, and Ryel’s rules are not merely “relevant” to our decision, they are binding. Fulcher collided with Awad’s vehicle parked outside the roadway. Fulcher also could have seen the parked vehicle and could have avoided the collision had he been alert. We conclude that under Oklahoma law Fulcher proximately caused the collision. 11 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 12

reasonable juror could conclude that hitting a safety triangle . . . would have alerted

Ryan Fulcher to a semi being parked on the emergency shoulder.”

Despite Plaintiffs’ representations, whether the emergency triangles would

have awoken Fulcher, thereby allowing him to avoid Awad’s truck, is not genuinely

disputed. While Plaintiffs’ expert opined that emergency triangles would have

exploded as Fulcher hit them, the expert also admitted the triangles are “too flimsy”

to “disturb a driver who’s asleep.” Plaintiffs’ allegations do not show a factual

dispute sufficient to preclude summary judgment.

In sum, the district court did not err in granting Defendants’ motion for

summary judgment.3

III.

Plaintiffs argue that the district court erred in granting Defendants’ motion for

judgment on the pleadings and dismissing their claims against Shamrock Foods for

negligently hiring, training, supervising, and retaining Awad.

We review de novo a district court’s judgment on the pleadings under Federal

Rule of Civil Procedure 12(c), applying the same standards used for motions to

3 In its order granting Defendants summary judgment on proximate cause, the district court also concluded that Plaintiffs no longer had a viable negligent- entrustment claim. Because we affirm the district court’s grant of summary judgment to Awad, we, like the district court, need not reach the merits of Plaintiffs’ negligent- entrustment claim. Without an actionable negligence claim against the employee, Plaintiffs’ negligent-entrustment claim against the employer fails. See Clark v. Turner, 99 P.3d 736, 743 (Okla. App. 2004) (explaining that it is actionable negligence “of the driver that provides the causal connection necessary to establish liability in tort between the negligence of the entrusting owner and injuries sustained by the plaintiff”). 12 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 13

dismiss under Rule 12(b)(6). BV Jordanelle, LLC v. Old Republic Nat’l Title Ins.

Co., 830 F.3d 1195, 1200 (10th Cir. 2016). We uphold a district court’s decision to

grant judgment on the pleadings only when a plaintiff cannot prove facts entitling her

to relief. Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1160

(10th Cir. 2000) (quoting Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 529 (10th

Cir. 1992)). We may affirm on any basis supported by the record, even those

grounds not reached by the district court. Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1130 (10th Cir. 2011) (citing United States v. Davis, 339 F.3d 1223, 1227

(10th Cir. 2003)).

The district court granted Defendants’ motion for judgment on the pleadings

holding that under Jordan v. Cates, 935 P.2d 289, 294 (Okla. 1997), courts must

dismiss a plaintiff’s negligent-hiring claim when the employer admits the employee

acted in the scope of their employment, as Shamrock Foods did here. On appeal,

Plaintiffs argue that the Oklahoma Supreme Court in Fox v. Mize, 428 P.3d 314, 322

(Okla. 2018), substantially limited Jordan’s applicability to only cases involving a

battery claim against an employee and a negligent-hiring claim against the employer.

Plaintiffs contend that because they assert a negligence claim against Awad and a

negligent-hiring claim against Shamrock Foods, Jordan does not control.

We need not decide whether Jordan controls here because even if Plaintiffs

could bring their negligent-hiring claim, they cannot satisfy the elements of negligent

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hiring.4 To state a claim for negligent hiring under Oklahoma law, a plaintiff must

show that “at the critical time of the tortious incident,” the employer “had reason to

believe that the [employee] would create an undue risk of harm to others” based on

the employer’s “prior knowledge of the [employee’s] propensity to commit the very

harm for which damages are sought.” N.H. v. Presbyterian Church (U.S.A.), 998

P.2d 592, 600 (Okla. 1999). The claim is “based on an employee’s harm to a third

party from employment.” Le v. Total Quality Logistics, LLC, 431 P.3d 366, 375

(Okla. Civ. App. 2018).

Here, Awad did not proximately cause Plaintiffs’ injuries. Thus, as a matter of

law, there is no tortious incident for which Awad is responsible. Because negligent

hiring claims are based on an employee’s harm to a third party, without a tort, there is

4 Plaintiffs move to certify to the Oklahoma Supreme Court the question of whether Jordan v. Cates precludes a plaintiff from asserting a negligent hiring claim against a defendant employer when (a) the plaintiff asserts negligence against a defendant employee, and (b) the employer stipulates that its employee acted within the scope of their employment at the time of the incident, assuming vicarious liability under the doctrine of respondeat superior. We deny this motion for three reasons. First, the Oklahoma Supreme Court’s answer to Plaintiffs’ question would not affect this case because Plaintiffs cannot establish the required elements of negligent hiring. Second, the United States District Court for the Northern District of Oklahoma issued an order certifying this exact question to the Oklahoma Supreme Court in Richardson v. Sibley, No. 23-59 (N.D. Okla.). See Richardson v. Sibley, 2024 WL 709206, *1 (N.D. Okla. Feb. 21, 2024). Third, we rarely certify questions to a state supreme court when a party does not initially seek certification from the district court but raises the certification for the first time on appeal after adverse district court rulings. See In re Midpoint Dev. LLC, 466 F.3d 1201, 1207 (10th Cir. 2006). In this case, Plaintiffs waited until it received two adverse district court rulings to move to certify their question to the Oklahoma Supreme Court. For these reasons, we deny Plaintiffs’ motion.

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no negligent-hiring claim. See N.H., 998 P.2d at 600. So regardless of whether

Jordan precludes Plaintiffs’ claim, their negligent hiring claim would still inevitably

fail. And although our reasoning differs from the basis of the district court’s Rule

12(c) ruling, we can affirm on any basis supported by the record. Richison, 634 F.3d

at 1130. We hold therefore that the district court did not err in granting Defendants’

motion for judgment on the pleadings. 5

IV.

The judgments of the district court are AFFIRMED.

Entered for the Court

Joel M. Carson III Circuit Judge

5 After the district court issued its Rule 12(c) order, Plaintiffs submitted a motion entitled “Motion for Leave to Amend Pleading and/or Motion for Reconsideration to Reassert Plaintiffs’ Claims of Negligent Hiring, Training, and Supervision, and Brief in Support.” The district court stated in its May 11, 2022 order that it construed Plaintiffs’ motion as a motion for reconsideration. Plaintiffs argue on appeal that the district court erred in denying Plaintiffs’ motion for leave to amend their complaint. Because we determined that no matter how Jordan applied to Plaintiffs’ claim Plaintiffs could not establish the required elements of a negligent- hiring claim, we need not reach the merits of whether the district court erred in denying Plaintiffs’ motion for leave to amend their complaint. 15 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 16

Estate of Ratley, et al. v. Awad, et al., No. 23-6169 FEDERICO, Circuit Judge, dissenting:

Under Oklahoma law, “‘[p]arked car cases’” do not have special rules, but

are controlled by the general rules of negligence law.” Dirickson v. Mings, 910

P.2d 1015, 1017-18 (Okla. 1996). For decades, Oklahoma courts and this court

have wrestled with fact-patterns of plaintiff-drivers suing defendant-

truckers/trucking companies for injuries sustained after plaintiffs crashed

their cars into defendants’ parked trucks on Oklahoma roads and highways.

From the many judicial opinions that have risen from these cases, the district

court correctly discerned that “the sheer variety of negligent acts” in “parked

car cases . . . make it impossible to divine a single rule” when it comes to

distinguishing “a stopped vehicle that is a ‘mere condition’ from one that is a

proximate cause.” Aplt. App. VII at 75.

However, despite the acknowledgement that there is not “a single rule”

from Oklahoma law that applies to “parked car” cases, first the district court,

and now the majority, adopted and applied a hard-and-fast rule to conclude

the defendants are entitled to a summary judgment. Their rule is thus: if a

driver can see and should have avoided hitting a parked car, then the driver of

the parked car is effectively immune from suit because the parked car as a

matter of law is deemed a mere condition and not a proximate cause of the

injuries. Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 17

But Oklahoma negligence law is more nuanced than the categorical rule

declared by the majority. Ultimately, I conclude this case should proceed to

trial before a jury and should not have been dismissed by the district court at

summary judgment. I respectfully dissent.

I. Oklahoma Negligence Law

A plaintiff pursuing a negligence claim under Oklahoma law must

satisfy three elements: (1) a duty owed by the defendant, (2) breach of that

duty, and (3) injuries to the plaintiff proximately caused by the defendant’s

failure to meet that duty. Fargo v. Hays-Kuehn, 352 P.3d 1223, 1227 (Okla.

2015). When evaluating negligence claims, the Oklahoma Supreme Court has

expressed a clear preference for juries to evaluate a defendant’s actions. Id.

The district court acknowledged the elements of a negligence claim and

then zeroed-in on proximate cause, assuming the other elements to be

satisfied. It found that all evidence of visibility of the parked truck was “beside

the point,” because “Plaintiff Fulcher’s uncontroverted testimony is that he

closed his eyes and fell asleep.” Aplt. App. VII at 78. So according to the district

court, proximate cause was lacking, as a matter of law, and “road conditions

played no role in Plaintiff’s Fulcher’s failure to see the truck.” Id. at 79.

The majority also focuses solely on the proximate cause element of the

negligence claim. It frames the question on appeal as “whether Plaintiff’s

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injuries were a reasonably foreseeable result of Awad’s decision to park his

truck on the shoulder of the highway, on the rumble strips.” Maj. Op. at 9. The

majority is right to also focus on Awad’s actions, but, in my view, it glosses over

the duty and breach elements of negligence, which is where I begin.

II. Duty & Breach – Awad’s Negligence

We should first consider the duty owed by Awad to Fulcher and other

motorists who were traveling on the Cimarron Turnpike the night of the

accident. “Concerning duty of care, a driver of a motor vehicle must, at all

times, use that degree of care which is reasonable and prudent under the

circumstances.” Dirickson, 910 P.2d at 1018 (citing Agee v. Gant, 412 P.2d 155,

159 (Okla. 1966)).

In opposing summary judgment, Plaintiffs established that Awad, a

commercial truck driver, owed a duty of care to not park on the shoulder in a

non-emergency situation. Likewise, they demonstrated that by using the

shoulder of the highway as an overnight parking spot without taking any steps

to warn oncoming motorists, Awad violated both state and federal commercial

trucking regulations that required him to use lights or flares and safety

triangles. See 47 Okl. Stat. § 12-408 (requiring the display of “warning devices”

by a disabled commercial vehicle, including those on the highway “shoulder”);

49 C.F.R. § 392.22 (same; federal regulation).

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Awad compounded his negligence by parking on top of the rumble strips,

disabling them from warning Fulcher in time for him to correct his lane

departure. It also is relevant, given that he is a commercial truck driver, that

the facts taken in the light most favorable to the nonmovants show that Awad

used the shoulder as a parking spot only because he had no planned route, had

no planned stops, and was within thirty seconds of exceeding the limit on his

allowable driving time when he abruptly parked his commercial truck on the

shoulder. Aplt. App. VI at 12-15.

Given these facts, Plaintiffs showed why Awad’s failure to warn

oncoming drivers was unreasonable and a breach of his duty of care. At a

minimum, “whether [Awad]’s actions meet the standards of due care, is

exclusively a question for the jury unless under the facts, reasonable minds

could not differ.” Fargo, 352 P.3d at 1227.

In consideration of the duty and breach, take the Sturdevant case, which

defendants argued is “controlling here” because of its conclusion regarding

proximate cause. OA at 15:50-55. Sturdevant was decided in 1958 and involved

a “pick-up truck, loaded with tools and roofing materials,” that was parked in

a city “drivein entrance into the school grounds” with “the rear of the truck out

in the street several feet.” Sturdevant v. Kent, 322 P.2d 408, 409 (Okla. 1958).

The duty owed by a driver of a commercial pickup truck attempting to park off

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a city street on school grounds differs from the duty of a licensed commercial

trucker who parks on a highway shoulder (especially in a non-emergent

situation and in disregard of the current safety laws and regulations that apply

to a truck driver, commercial trucking, and highways).

The Plaintiffs spelled this out before the district court and again on

appeal, to demonstrate why there are genuine disputes of material facts

regarding the duty, breach, and causation elements of the negligence claim

such that summary judgment is not warranted. The majority found that any

disputed “facts related to Awad’s negligence in parking and failing to use

hazard lights” are “immaterial.” Maj. Op. at 11.

But negligence is a holistic claim under Oklahoma law, and “[i]n

evaluating the evidence of causation for purposes of summary judgment, a trial

court should view the totality of the evidence and not focus on a single word—

‘causation’—or a single piece of evidence.” Jones v. Mercy Health Ctr., Inc., 155

P.3d 9, 15–16 (Okla. 2006) (reversing summary judgment); see also Fargo, 352

P.3d at 1227 (emphasizing that “whether [one driver in a collision] acted

reasonably cannot be answered without considering the actions of” the other

driver” they collided with). Which is to say, the facts relevant to duty and

breach are also necessary and relevant to a consideration of proximate cause

and foreseeability, which is the heart of this appeal and where I now turn.

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III. Proximate Cause

“Proximate cause is always a question for the jury unless there is no

evidence from which a jury could reasonably find a causal connection.” Fargo,

352 P.3d at 1227. As stated, both the district court and the majority conclude

that a jury should not determine proximate cause in this case because, as they

view it, “Awad’s truck was a mere condition and Fulcher proximately caused

Plaintiff’s injuries.” Maj. Op. at 9.

In other words, the district court and majority decide this case by

applying Oklahoma’s “mere condition” rule to proximate cause. John Long

Trucking, Inc. v. Greear, 421 F.2d 125, 127 (10th Cir. 1970). This court long

ago said that this rule “does not mean that everyone who negligently parks his

vehicle is relieved of all liability when some other person even negligently

collides with his vehicle. The intervening act may or may not supersede the

antecedent negligence depending upon a variety of situations . . . .” Id.

Here, that means we must look to whether the intervening or

supervening act (Fulcher falling asleep and drifting onto the shoulder)

superseded Awad’s negligence. Put differently, the issue is whether Fulcher

falling asleep and drifting onto the shoulder was a supervening cause that

broke the chain of causation, relieving Awad of liability.

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A. Oklahoma Law – Supervening Cause

Under Oklahoma law, “a supervening cause is a legal mechanism that

breaks the chain of causation between an original actor and the injury to a

plaintiff.” Evers v. FSF Overlake Assocs., 77 P.3d 581, 586 (Okla. 2003). “A

supervening cause is a new, independent and efficient cause of the injury which

was neither anticipated nor reasonably foreseeable.” Akin v. Mo. Pac. R.R. Co.,

977 P.2d 1040, 1054–55 (Okla. 1998). A supervening cause arises when the

“causal chain between a negligent act and an injury [is] broken by an

intervening event.” Johnson v. Hillcrest Health Ctr., Inc., 70 P.3d 811, 819

(Okla. 2003).

Yet supervening cause is an exception to proximate cause, not the rule.

“Not every intervening event severs the causal link between the negligent act

and injury.” Id. Indeed, “[w]hen a cause merely combines with another act to

produce injury, or several events coincide to bring about a single injury, each

negligent actor may be held accountable.” Id. The mere fact that the second

cause is sequentially after the first cause does not render it a supervening

cause. See Lockhart v. Loosen, 943 P.2d 1074 (Okla. 1997) (explaining that

“where the primary act of negligence is not superseded by a second cause—i.e.,

continues to operate concurrently, so that damage is the result of both causes

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acting in concert—each act may be regarded as the proximate cause and the

wrongdoers [will each be] liable for the plaintiff's compensable harm.”).

The majority opinion does not mention, let alone analyze, a supervening

cause, opting instead to skip to the end and address only foreseeability. The

district court acknowledged the supervening cause analysis to find that

Fulcher “falling asleep at the wheel and drifting off the road constitutes a

supervening act.” Aplt. App. VII at 80. However, although the district court

mentions the “relative foreseeability framework applicable to supervening

causes in Oklahoma[,]” it then curiously takes a detour towards Tennessee

law.1

The district court, in fact, did not cite any Oklahoma case in support of

its ruling on supervening cause. The failure to apply controlling Oklahoma law

makes a difference here. Oklahoma law and Tennessee law on proximate cause

1 The district court stated: “[b]ut such generalized foreseeability theories

hold little weight under the relative foreseeability framework applicable to supervening causes in Oklahoma and many other states.” Aplt. App. VII at 79. To support this statement, it cited Kellner v. Budget Car & Truck Rental, Inc., 359 F.3d 399, 403–07 (6th Cir. 2004) (applying Tennessee law), without analyzing Tennessee law or explaining why it declined to cite to or rely on Oklahoma law. It did this despite spending the several pages (correctly) setting forth Oklahoma law on proximate cause and supervening cause. It also mentioned a Wyoming case on negligence, Wood v. CRST Expedited, Inc., 419 P.3d 503, 511–12 (Wyo. 2018), which is also inapplicable in the face of controlling Oklahoma law.

8 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 24

and superseding cause depart in at least two material ways. First, under

Tennessee law, supervening cause is governed by a four-factor test, see Borne

v. Celadon Trucking Servs., Inc., 532 S.W.3d 274, 298–99 (Tenn. 2017), not

three factors, as in Oklahoma.

Second, under Tennessee law, supervening cause is an affirmative

defense. Davis v. McGuigan, 325 S.W.3d 149, 161 (Tenn. 2010).2 The district

court, however, failed to place any burden on Defendants, nor did it cite any

evidence (or fact or expert witness testimony) offered by Defendants in support

of summary judgment.

The failure to properly apply Oklahoma law regarding supervening

causes was error. Moreover, the application of this law also demonstrates why

summary judgment was not warranted for Defendants.

2 The Oklahoma Supreme Court does not appear to have confronted this

question, but many other jurisdictions have. Most courts have held that supervening or superseding cause is an affirmative defense for which the defendant bears the burden. See, e.g., Roberts v. Printup, 595 F.3d 1181, 1189– 90 (10th Cir. 2010) (describing superseding cause as an affirmative defense); Poincon v. Offshore Marine Contractors, Inc., 9 F.4th 289, 298 (5th Cir. 2021) (same); In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 45 (1st Cir. 2013) (same); BCS Servs., Inc. v. Heartwood 88, LLC, 637 F.3d 750, 757 (7th Cir. 2011) (same); Bouriez v. Carnegie Mellon Univ., 585 F.3d 765, 773 n.4 (3d Cir. 2009) (same); Kane v. Lewis, 604 F. App’x 229, 240 (4th Cir. 2015) (Harris, J., concurring) (“In tort law, a superseding cause acts as an affirmative defense, and the defendant bears the burden of proving its existence.”).

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B. Supervening Cause Analysis

For an intervening cause to “qualify” as a supervening cause, it “must be

(1) independent of the original act, (2) adequate of itself to bring about the

result and (3) one whose occurrence was not reasonably foreseeable to the

original actor.” Robinson v. Okla. Nephrology Assocs., Inc., 154 P.3d 1250, 1256

(Okla. 2007) (quoting Graham v. Keuchel, 847 P.2d 342, 348 (Okla. 1993)).

Unless all three elements of supervening cause are satisfied, judgment as a

matter of law is improper. See id. at 1256–57. Rephrased to this case, to obtain

summary judgment based on supervening cause, Defendants were required to

prove as a matter of law that Fulcher’s falling asleep at the wheel and drifting

onto the Cimarron Turnpike shoulder was (1) independent of Awad’s parking

on the shoulder; (2) adequately capable of causing the collision without any

negligence by Awad, and (3) not foreseeable. Id.

Defendants met the first element of supervening cause. No one

challenges that Fulcher’s drifting onto the shoulder was independent of Awad’s

decision to park on the shoulder. Regarding the second and third elements,

however, the district court sidestepped material facts that precluded summary

judgment.

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1. Adequacy

As to the adequacy of Fulcher’s negligence, this is not a case where

Fulcher’s negligence alone could have caused a collision. Rather, it was Awad’s

concurrent negligence of parking on the shoulder that blocked Fulcher from

returning to the highway after his momentary, two-second swerve onto the

highway shoulder. Aplt. App. VI at 15. As the majority recounts, “one second

before impact, [Ryan Fulcher’s] vehicle drifted onto the rumble strips on the

right shoulder and . . . 0.2 seconds before impact, Fulcher started to correct his

steering.” Maj. Op. at 3.

If we “consider all of the evidence in the record” and draw all inferences

“in the light most favorable to” the nonmovants, as our summary judgment

standard requires, Forth v. Laramie Cnty. Sch. Dist. No. 1, 85 F.4th 1044, 1052

(10th Cir. 2023), a reasonable jury could conclude that Fulcher would have

corrected his course and returned to his lane of travel, but for Awad’s

commercial truck being unlawfully parked on top of the rumble strips. The

district court’s summary judgment decision, in fact, cites no evidence – fact or

expert – offered by Awad to prove that Fulcher’s drifting onto the shoulder was

on its own adequate to cause the collision. As we have recognized, a second

actor’s negligence “becomes the supervening cause only if ‘[their] actions were

the proximate cause’ of the injury, as opposed to merely a proximate cause of

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the injury.” BNSF Ry. Co. v. C.A.T. Constr., Inc., 679 Fed. App’x. 646, 656

(2017) (quoting Hamilton v. Allen, 852 P.2d 697, 700 (Okla. 1993)).3

Plaintiffs introduced sufficient evidence to reach a jury on the second

element of supervening cause. As illustrated by Figure 14 below, a reasonable

jury could find that Fulcher’s negligence, on its own, was not the sole cause of

the collision. Both before and after Fulcher dozed off, it remains a material fact

question whether Fulcher could have avoided the collision but for Awad’s

negligence. In other words, it is factually unclear whether Awad might have

also been a proximate (and, thus, along with Fulcher, a concurrent) cause of

the collision by (1) not using flares, lights, or hazard triangles, and (2) parking

on top of the rumble strips:

3 We cite an unpublished opinion only for its persuasive value. See 10th

Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their persuasive value.”). 4 Figure 1 was not created by the parties and does not appear in the

record of the case.

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The district court either did not address the facts supporting Plaintiffs

or it improperly construed the facts and inferences taken from them in the light

most favorable to Defendants, the movants. Our summary judgment standard

under Federal Rule of Civil Procedure 56 requires the opposite approach, and

we are obligated to reverse summary judgment if a district court has “failed to

credit evidence favorable to the nonmovant and draw all reasonable inferences

in the nonmovant’s favor.” Forth, 85 F.4th at 1052 (collecting cases).

We corrected nearly the same legal errors in Lazy S Ranch Properties,

LLC v. Valero Terminaling & Distribution Co., 92 F.4th 1189 (10th Cir. 2024).

There, as here, the district court wrongly granted summary judgment after

failing to credit the nonmovant’s causation evidence and not drawing all

13 Appellate Case: 23-6169 Document: 89-1 Date Filed: 04/22/2025 Page: 29

reasonable inferences on causation in the nonmovant’s favor. Id. at 1206. We

reversed, explaining that “[g]iven the contested evidence, a reasonable jury

could decide [the disputed issue] either way, depending upon its view of the

evidence and the credibility of the experts.” Id. We should reverse here for the

same reasons.

2. Foreseeability

Even if the majority concludes that Defendants met the second element

of supervening cause, the third element, foreseeability, was affirmatively

disproven against Awad.

In Oklahoma, “whether the injuries flowing from the original negligence

could have been foreseen is a question within the realm of fact and not law.”

Fargo, 352 P.3d at 1228–29 (reversing summary judgment); see also Jackson

v. Jones, 907 P.2d 1067, 1073 (Okla. 1995) (“If the intervening force is of a

character which (under the circumstances) would induce belief that it might

be reasonably expected to occur, the final element is not met and the causal

chain will remain unbroken.”); Dirickson, 910 P.2d at 1017–20 (reversing

summary judgment on proximate cause and once again admonishing that

under Oklahoma law foreseeability “is to be determined by the jury”).

During oral argument in this case, Defendants admitted that it is (and

was) foreseeable that another driver might veer onto a highway shoulder and

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collide with a parked commercial truck. Oral Arg. at 20:19–23:26. That

admission is dispositive; a foreseeable cause can never become a supervening

cause because “[f]oreseeability” is “the standard by which proximate cause, as

distinguished from the existence of a mere condition, is to be tested.” Dirickson,

910 P.2d at 1019 (emphasis added) (quoting Atherton v. Devine, 602 P.2d 634,

636 (Okla. 1979)); accord John Long Trucking, Inc., 421 F.2d at 127 (same).

The district court concluded that Plaintiff’s “vehicle’s foray off the

roadway at a speed of 74 miles per hour, and the injuries that followed, were a

direct, foreseeable result of Plaintiff Fulcher falling asleep.” Aplt. App. VII at

80. But this analysis is incomplete. The driver, Fulcher, may have corrected

the foray off the roadway and avoided a fatal collision but for Awad’s decision

to use the highway shoulder as his overnight parking lot without giving proper

warnings (flares, triangles, flashers) to sleepy drivers. The question is whether

the foray and resulting injuries were foreseeable to Awad, which Defendant

admitted at oral argument that it was.

This leaves little doubt that at trial a reasonable jury could conclude that

Fulcher’s negligence in drifting onto the shoulder was foreseeable to Awad – a

commercial truck driver. See, e.g., Oakley v. A. L. Logistics, LLC, No. 20-85,

2024 WL 1120107, at *4 (M.D. Ala. Mar. 14, 2024) (“The foreseeability of such

collisions is precisely the reason why Department of Transportation

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regulations require the use of flashers and warning triangles and why rules

are in place requiring the removal of vehicles from the shoulder of busy

interstate highways after a certain period, why rumble strips and guardrails

are used, and why trees and other stationary structures are generally

prohibited within a certain area around an interstate.”).

By Oklahoma statute and federal regulation, a commercial truck driver

parked on the shoulder is required to use flares or lights and hazard triangles

to alert oncoming drivers. Plaintiffs also introduced testimony from Oklahoma

State Trooper Todd Punneo, who testified that a truck driver should use a

truck stop and not park on a shoulder,5 along with evidence that truck drivers

are trained that parking on the shoulder is dangerous. Expert testimony

further established that the trucking industry has long trained commercial

truck drivers to avoid parking on the shoulder, because doing so exposes truck

drivers and other motorists to avoidable accidents. Here, Awad chose

expediency over the safety of others.

5 Trooper Punneo testified that a highway shoulder is an “emergency

lane” that should be reserved for true emergencies and that it would be improper for a truck driver to use the shoulder (the “emergency lane”) as a parking spot. Aplt. App. IV at 100:22–102:16; see also id. at 82:13–20 (same).

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As previously discussed, there are no special negligence rules for “parked

car”6 cases under Oklahoma law. But as the district court and majority

recognize, visibility is at least a relevant through-line in these cases when it

comes to foreseeability.

In Dirickson, the Oklahoma Supreme Court reversed summary

judgment because there was “a fact question as to whether or not” the

plaintiff’s “ability to see” the defendant’s “pickup was obscured by the vehicle

in front of” the plaintiff. Dirickson, 910 P.2d at 1020. And citing Dirickson, the

Oklahoma Supreme Court reversed summary judgment in a later case because

“[t]he extent to which [a] tree obscured or obstructed [a] stop sign from the

view of motorists” on the road created a disputed fact question for a jury.

Iglehart v. Bd. of Cnty. Comm’rs of Rogers Cnty., 60 P.3d 497, 504 (Okla. 2002).

In this case, both before and after Fulcher dozed off, Plaintiffs raised material

fact issues regarding Awad’s visibility to Fulcher at the key fractions of seconds

before impact.

To ascertain Oklahoma law, “we look first to ‘the most recent decisions

of the state’s highest court.’” Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989

6 In Dirickson, the Oklahoma Supreme Court uses the phrase “parked

car” cases to refer to all types of automobiles (including trucks), not simply cars. 910 P.2d at 1017.

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F.3d 747, 765–66 (10th Cir. 2021) (quoting Wade v. EMCASCO Ins. Co., 483

F.3d 657, 665–66 (10th Cir. 2007)). That is why Dirickson, a 1996 case from

the Oklahoma Supreme Court, is key to this analysis.

The majority relies on older cases, such as Sturdevant (1958), Mote v.

Hilyard, 358 P.2d 844 (Okla. 1961), Ryel v. B.F. Walker, Inc., 527 P.2d 584

(Okla. 1974), to conclude that “injuries resulting from a parked car are not

foreseeable if a plaintiff is able to avoid the parked vehicle.” Maj. Op. at 9.

These earlier cases have relevance too, but they do not evince the brightline

rule of foreseeability and proximate cause that is the foundation of the district

court and majority opinions.

In sum, the district court erred by granting summary judgment on

supervening cause as a matter of law. Accord First Tennessee Bank, N.A. v.

Wilson Freight Lines, Inc., 907 F.2d 1122, 1124–25 (11th Cir. 1990) (reversing

summary judgment on proximate cause because “the district court should have

given a jury an opportunity to decide whether [the truck driver’s] (alleged)

failure to activate his warning signal proximately caused the accident”).

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IV. Vicarious Liability and Negligent Entrustment

The failure to allow Plaintiffs to reach a jury on the negligence claim

against Awad resulted in several other errors. Because the district court held

that the negligence claim failed, it also entered summary judgment on the two

negligence-dependent claims against the employer, Shamrock Foods Company,

LLC (Shamrock Foods), for vicarious liability and negligent entrustment. The

district court’s decision does not offer any reason beyond the mechanical

conclusion that Awad’s negligence is a necessary ingredient for both negligence

claims against Shamrock Foods. These two claims do require underlying

negligence by an employee. But importantly, reversal on the negligence claim

establishes that we should also reverse summary judgment on these claims.

V. Negligent Hiring and Supervision

The district court also erred by disposing of the negligent hiring and

supervision claim against Shamrock Foods at the pleadings stage on a Federal

Rule of Civil Procedure 12(c) motion for judgment on the pleadings. To justify

doing so, the district court pointed to the Oklahoma Supreme Court’s decision

in Jordan v. Cates, which holds: “[b]ecause vicarious liability can include

liability for punitive damages, the theory of negligent hiring and retention

imposes no further liability on [an] employer.” 935 P.2d 289, 293 (Okla. 1997).

From that line, the district court ruled as a matter of law at the Rule 12(c)

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pleadings stage that the negligent hiring and retention claim should be

dismissed. It did so before any discovery, summary judgment, or trial.

The district court erred for several reasons. First, allowing a plaintiff to

pursue a duplicative or inconsistent claim for relief past a motion to dismiss

and into discovery does not run afoul of Jordan; it only has the potential to

impose “further liability on [an] employer.” Id. Jordan is concerned with a

plaintiff recovering duplicative damages for both vicarious liability and

negligent hiring and supervision. But at the pleadings stage, no liability is

imposed, and until discovery occurs, a plaintiff should not arbitrarily be forced

to commit to a singular theory of the case. In other words, Defendant Shamrock

Foods might have stipulated to vicarious liability, but it did not stipulate to

the entry of a judgment on vicarious liability. Until “the entry of judgment”

occurs in a case, no “binding election” of remedies must occur. Boulware v.

Baldwin, 545 F. App’x 725, 729, (10th Cir. 2013) (collecting cases); see also

Homeland Training Ctr., LLC v. Summit Point Auto. Rsch. Ctr., 594 F.3d 285,

293 (4th Cir. 2010) (same). As a result, the district court erred by prematurely

dismissing merely a potentially duplicative claim at the pleadings stage.

Second, allowing a plaintiff to proceed on inconsistent or duplicative

claims has long been ensconced in the Federal Rules of Civil Procedure. See,

e.g., Boulware, 545 F. App’x at 729 (“Federal pleading rules have for a long

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time permitted the pursuit of alternative and inconsistent claims.”). Federal

Rule of Civil Procedure 8(d) guarantees a plaintiff the opportunity to plead in

the alternative by raising inconsistent claims. See Fed. R. Civ. P. 8(d)(2)

(allowing a plaintiff to plead “alternatively or hypothetically”) and 8(d)(3) (“A

party may state as many separate claims or defenses as it has, regardless of

consistency.”). And Rule 8(a)(3) authorizes a plaintiff to demand relief that

“may include relief in the alternative or different types of relief.” Id. As a result,

the district court erred by concluding that an inconsistent or duplicative claim

must be dismissed at the pleadings stage. See Cline v. Clinical Perfusion Sys.,

Inc., 92 F.4th 926, 935 (10th Cir. 2024) (reversing pleadings-stage Rule 12(b)(6)

dismissal and explaining that a plaintiff is “entitled” to plead “inconsistent

legal theories and inconsistent facts.”).

And although we apply the Federal Rules of Civil Procedure to this

federal diversity case,7 Oklahoma law is even more generous in allowing a

plaintiff to pursue potentially duplicative claims and not be forced to

7 Oklahoma law likely does apply, however, because the state law issue

of election of remedies is intertwined with the pleading standard in Federal Rule 8(d). See Boulware v. Baldwin, 545 F. App’x 725, 729 n.5 (10th Cir. 2013) (“Federal pleading rules generally control in federal court. But as this alternative-pleading principle is integrally related to the election-of-remedies analysis here, which may in turn be controlled by state law, we note for completeness’ sake that Utah law likewise allows for the pursuit of inconsistent claims at the pleading stage.”).

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prematurely commit to an election of remedies. See Cranford v. Bartlett, 25

P.3d 918, 923 (Okla. 2001) (“A party litigant may plead, and rely on at trial,

alternative and inconsistent theories or defenses under the Oklahoma

Pleading Code[.] Although inconsistent judgments or double recovery may not

be permissible, [Oklahoma law] generally allows a party to fully litigate

inconsistent theories or defenses at trial.”) (citations omitted); see also State

ex rel. Okla. Corp. Comm’n v. McPherson, 232 P.3d 458, 464 (Okla. 2010) (“It

is certainly true that a party litigant may plead, and rely on at trial,

alternative and inconsistent theories or defenses under the Oklahoma

Pleading Code.”).

Third, as a practical matter, different evidence regarding the two

different claims against the two different defendants might be uncovered in

discovery, and foreclosing discovery on one but not the other is unfair and

inefficient, especially when a plaintiff has yet to reach discovery, summary

judgment, or trial on either claim. See, e.g., Sports Racing Servs., Inc. v. Sports

Car Club of Am., Inc., 131 F.3d 874, 890 (10th Cir. 1997) (In antitrust case

involving duplicative theories for tying and monopolization, reversing

summary judgment for defendant because “it would be inappropriate to bar

[the plaintiff’s] claim at this point because of the possibility of multiple liability

in this case.”).

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For these reasons, we should reverse the district court’s decision to grant

the motion for judgment on the pleadings.

VI. Conclusion

For all the above reasons, this is not an “extreme case” that “may permit

a conclusion on proximate cause as a matter of law.” Blanke v. Alexander, 152

F.3d 1224, 1235 (10th Cir. 1998). Rather, a jury should decide this case, not

the court through summary judgment and dismissal on the pleadings. I

respectfully dissent.