Appellate Case: 21-8009 Document: 010110655734 Date Filed: 03/11/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 11, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
NICOLE PAUNA, on her own behalf and
as personal representative for Constantin
Cristian Pauna,
Plaintiffs - Appellants,
v. No. 21-8009
(D.C. No. 2:19-CV-00137-SWS)
SWIFT TRANSPORTATION CO OF (D. Wyo.)
ARIZONA LLC, a company,
Defendant - Appellee,
and
ROGER DALELEE BROWNELL, an
individual,
Defendant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BACHARACH, BRISCOE, and ROSSMAN, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,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: 21-8009 Document: 010110655734 Date Filed: 03/11/2022 Page: 2
Plaintiffs Constantin Cristian Pauna and Nicole Pauna sued Swift
Transportation Company of Arizona, LLC, after a Swift truck driver assaulted
Mr. Pauna at a truck stop in Laramie, Wyoming. The district court granted summary
judgment in Swift’s favor, and the Paunas appealed. 1 Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. Background
Mr. Pauna was a commercial truck driver passing through Wyoming on
March 15, 2019. He pulled into a line of trucks waiting to refuel at a gas station in
Laramie. As he waited, he observed Roger Dalelee Brownell, a truck driver
contracted with Swift, cut in line ahead of him. Mr. Pauna took exception, so he got
out of his truck and approached Mr. Brownell. A heated argument ensued, which
ended with Mr. Brownell beating Mr. Pauna unconscious. Mr. Brownell was arrested
and later pleaded guilty to misdemeanor assault. Mr. Pauna alleged he was so
severely injured that he was unable to return to work.
The Paunas filed a lawsuit against Swift and Mr. Brownell in Wyoming federal
district court, invoking diversity jurisdiction under 28 U.S.C. § 1332 because the
Paunas and the defendants are from different states. The Paunas sought to hold Swift
vicariously liable for Mr. Brownell’s actions. They also asserted claims against Swift
1
During the pendency of this appeal, Mr. Pauna passed away. Accordingly,
Nicole Pauna is pursuing her own derivative claims and has been substituted as her
husband’s personal representative in this appeal. This opinion refers to the plaintiffs
collectively as “the Paunas.”
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for negligent hiring, negligent supervision, and negligent retention. Finally, the
Paunas asserted a claim for punitive damages against both defendants.
Swift moved for summary judgment, and the district court granted the motion.
It held that Swift could not be held liable for Mr. Brownell’s actions because he was
not acting within the scope of his employment when he assaulted Mr. Pauna. The
district court rejected the Paunas’ claims for negligent hiring, negligent supervision,
and negligent retention because Swift had no legal duty to Mr. Pauna—that is, it was
not reasonably foreseeable based on the information available to Swift that
Mr. Brownell might attack members of the public.
After the Paunas filed their notice of appeal, they moved to dismiss with
prejudice their remaining claims against Mr. Brownell. The district court granted
that motion, thus preserving our appellate jurisdiction.
II. Discussion
We review de novo a district court’s grant of summary judgment under
Fed. R. Civ. P. 56. Burnett v. Sw. Bell Tel., L.P., 555 F.3d 906, 907 (10th Cir. 2009).
We must “view the evidence and draw reasonable inferences therefrom in the light
most favorable to the nonmoving party.” Talley v. Time, Inc., 923 F.3d 878, 893
(10th Cir. 2019) (internal quotation marks omitted).
A. Scope of Employment
The Paunas argue the district court erred in holding that Mr. Brownell was not
acting within the scope of his employment. In addressing this question, we apply
Wyoming state law. See McGehee v. Forest Oil Corp., 908 F.3d 619, 624 (10th Cir.
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2018) (“in a federal court diversity case . . . the law to be applied in any case is the
law of the forum state” (brackets and internal quotation marks omitted)). “The
conduct of an employee is within the scope of his employment only if it is of the kind
he is employed to perform; it occurs substantially within the authorized time and
space limits; and it is actuated, at least in part, by a purpose to serve the master.”
Worman v. BP Am. Prod. Co., 248 P.3d 644, 649 (Wyo. 2011) (internal quotation
marks omitted). Whether an employee’s acts fall within the scope of his employment
is generally a question of fact, except “when but one reasonable inference can be
drawn from the facts.” Eklund v. PRI Envt’l, Inc., 25 P.3d 511, 515 (Wyo. 2001).
The Paunas contend that Mr. Brownell was acting within the scope of his
employment because at the time of the attack he was trying to refuel his truck, which
was a necessary part of his job as a driver for Swift. But the process of refueling
does not require any truck driver to assault another. See Sage Club v. Hunt, 638 P.2d
161, 163 (Wyo. 1981) (relevant factors in scope-of-employment analysis include
whether the nature of the employment contemplates the use of force and whether the
use of force is foreseeable). Mr. Brownell’s relevant conduct—beating Mr. Pauna
unconscious—is wholly unconnected to the separate act of refueling and was not
conduct “of the kind he [was] employed to perform.” Worman, 248 P.3d at 649;
compare Sage Club, 638 P.2d at 162-63 (holding bouncer’s use of force against
plaintiff was within scope of employment because the job necessarily contemplated
use of force to remove disruptive customers). Indeed, Mr. Brownell’s conduct was
specifically excluded from his job description. Swift’s employee handbook prohibits
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any “[u]nauthorized physical contact . . . with . . . a member of the motoring public;
assault, battery, violence, or threats of violence against one’s self or others.”
R. Vol. 3 at 633. Consistent with the handbook, Mr. Brownell later signed a
statement admitting that his conduct violated company policy.
The conclusion that Mr. Brownell was not acting within the scope of his
employment is supported by the Wyoming Supreme Court’s decision in Worman.
There, an oil company employee attacked the plaintiff on an oil rig, and the plaintiff
sought to hold the company liable for the employee’s conduct. The plaintiff argued
that the employee was motivated, at least in part, by an employment-related purpose,
because he was at the oil rig observing the drilling operations on behalf of the
company and was “generally engaged in activities within the scope of his
employment.” 248 P.3d at 650. The court rejected this argument, holding that
although the employee was on the premises for work-related activities, he was not
employed to use force on other employees and in doing so “was not actuated by any
purpose to serve” the oil company. Id. Similarly, in this case, although
Mr. Brownell was at the gas station for purposes related to his employment, once he
got out of his truck to attack Mr. Pauna, he was no longer acting to further Swift’s
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interests. 2 Indeed, given that Mr. Brownell’s arrest delayed delivery of the freight,
his actions were contrary to Swift’s interests. 3
The cases the Paunas rely on in support of their scope-of-employment
argument—Garcia v. Sam Tanksley Trucking, Inc., 708 F.2d 519 (10th Cir. 1983) and
Condict v. Condict, 664 P.2d 131 (Wyo. 1983)—do not require a different result. In
Garcia, we applied New Mexico law to hold that a truck driver who intentionally
drove his truck into the side of a car on the highway was acting within the scope of
his employment because he “was physically engaged in the activity he was hired to
perform when the incident occurred.” Garcia, 708 F.2d at 521. Similarly, in
Condict, an employee rammed a company vehicle into the plaintiff’s truck while the
employee was “on his way to perform haying operations,” which the Wyoming
Supreme Court held gave rise to “a fact issue for the jury as to scope of
employment.” 664 P.2d at 135. Here, by contrast, Mr. Brownell left the cab of his
truck in order to assault Mr. Pauna, and was not physically engaged in the activity he
2
The Paunas argue for the first time in their Reply Brief that Mr. Brownell’s
conduct was only a slight deviation from his job duties and therefore still sufficiently
related to his work-related responsibilities to fall within the scope of his employment.
See O’Shea v. Welch, 350 F.3d 1101, 1105 (10th Cir. 2003) (holding that a “slight
deviation” for “personal business” is still within the scope of employment if it “is
sufficiently related to the employment”). As discussed above, Mr. Brownell’s attack
on Mr. Pauna was entirely unrelated to his job duties, not a “slight deviation.”
3
The Paunas argue that the district court “improperly determined Brownell’s
intent.” Aplt. Br. at 21. We agree with the district court that the Paunas’ argument
about intent is contrary to the evidence and entirely speculative.
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was hired to perform. See Garcia, 708 F.2d at 521 (contrasting cases in which bus
drivers committed assaults “after stopping and alighting from their buses”).
In short, we hold that the only reasonable inference to be drawn from the facts
was that Mr. Brownell was not acting within the scope of his employment when he
assaulted Mr. Pauna.
B. Negligent Hiring and Negligent Retention
The Paunas next argue that the district court erred in granting summary
judgment in Swift’s favor on their claims of negligent hiring and negligent retention. 4
Wyoming courts have adopted the tort of negligent hiring and negligent retention as
set forth in § 213 of the Second Restatement of Agency. See Cranston v. Weston
Cnty. Weed & Pest Bd., 826 P.2d 251, 258 (Wyo. 1992). To establish a claim for
negligent hiring or negligent retention, the plaintiff must prove that the defendant
owed a duty of reasonable care to the plaintiff and that the plaintiff’s injuries were
foreseeable. Connes v. Molalla Trans. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992);
see Carabajal v. City of Cheyenne, 847 F.3d 1203, 1214 n.4 (10th Cir. 2017)
(“Because Colorado and Wyoming both premise the tort of negligent hiring on the
Restatement (Second) of Agency § 213, we find Colorado law instructive.”).
The district court held that Mr. Brownell’s criminal history was not sufficient
to put Swift on notice that he posed a danger to the public, and we agree.
Mr. Brownell’s two convictions were misdemeanors for shooting a neighbor’s dog
4
The district court also granted summary judgment to Swift on the Paunas’
negligent supervision claim, but the Paunas have not pursued that claim on appeal.
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with a BB gun, and for disorderly conduct involving Mr. Brownell drunkenly
showing belligerence to an arresting officer. Swift’s duty to the public required it to
determine whether Mr. Brownell would safely transport freight. See Connes,
817 P.2d at 571 (“[W]hether harm from hiring a person with a criminal record is
foreseeable necessarily depends on whether the nature of the employment and the
type of contact the employee has with the public . . . is such that a prudent person
would have anticipated that harm would have occurred as a result of the
employment.”). The convictions, which occurred more than five years before
Mr. Brownell applied to Swift, bore no relationship to the job of transporting freight.
C. Punitive Damages
The Paunas also appealed the district court’s determination that they are not
entitled to punitive damages. But in light of our resolution of the first two issues on
appeal, we need not address this argument. See Cook v. Shoshone First Bank,
126 P.3d 886, 897 (Wyo. 2006) (a claim for punitive damages is an element of a
cause of action and summary judgment on the underlying claims effectively disposes
of the punitive damages claim).
III. Conclusion
For the foregoing reasons, we affirm the decision of the district court.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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