Ramon v. Nebo School District

2021 UT 30

IN THE

SUPREME COURT OF THE STATE OF UTAH

ANTHONY RAMON,
Appellant,
v.
NEBO SCHOOL DISTRICT,
Appellee.

No. 20190036
Heard February 8, 2021
Filed July 15, 2021

On Direct Appeal

Fourth District, Utah County
The Honorable Kraig Powell
No. 160401271

Attorneys:
Freyja Johnson, Emily Adams, Bountiful, for appellant
Sean D. Reyes, Att’y Gen., Peggy E. Stone, Asst. Solic. Gen.,
Salt Lake City, for appellee

JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.

JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A Nebo School District (Nebo or the school district) school
bus filled with children turned in front of Anthony Ramon’s car,
causing a crash. Ramon sued Nebo, claiming that Nebo was liable
for its driver’s negligence under principles of respondeat superior.
Ramon also claimed that Nebo was independently negligent because
it continued to employ the driver even after he had been involved in
multiple accidents. Nebo admitted it would be liable for the driver’s
actions under respondeat superior principles, but denied that its
driver was negligent. Nebo later moved for judgment on the
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Opinion of the Court

pleadings of the negligent employment claim. Nebo argued that the
employment claim was redundant with the negligence claim and
that Ramon was not entitled to pursue a claim directly against it
after it conceded vicarious liability. The district court granted that
motion.
¶2 Ramon argues that the district court erred in two ways.
Ramon posits that the motion for judgment on the pleadings was
untimely and that the district court should have denied it on that
basis. Ramon also avers that the district court’s decision was
incompatible with fundamental principles of Utah law and the Utah
Liability Reform Act. We conclude that the district court did not
abuse its discretion by entertaining the motion when it did, but it
erred in granting it. We reverse.
BACKGROUND
¶3 A Nebo bus driver, Duane Ludlow, turned the school bus he
was driving in front of Ramon’s car. The bus and car collided,
injuring Ramon. Ramon alleges that even before the collision,
Ludlow’s driving record was far from pristine. 1 When he renewed
his commercial driver license in 2007, 2009, 2012, and 2013, Ludlow
was criticized for not stopping long enough before entering
intersections, rolling past stop signs, and speeding around corners.
In 2011, he hit a construction barrel, hit another car, and clipped a
concrete headgate. And in 2013, a year prior to the collision with
Ramon, Ludlow sideswiped several cars with a school bus.
¶4 Ramon sued Nebo. He brought a claim for negligence based
on Ludlow’s driving, and he sought to hold Nebo liable under the
doctrine of respondeat superior. He also brought a claim for
negligence based on Nebo’s own conduct, asserting that Nebo acted
negligently in its hiring, training, supervision, and retention of

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1 In fairness to Ludlow, against whom these allegations have
been leveled, we remind the reader that when we talk about a
motion for judgment on the pleadings, we take the factual
allegations as true and consider them in the light most favorable to
the non-moving party. See Golding v. Ashley Cent. Irrigation Co., 793
P.2d 897, 898 (Utah 1990).

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Ludlow, as well as its continued entrustment of school buses to
Ludlow. 2
¶5 In its answer to the complaint, Nebo admitted that the
doctrine of respondeat superior applied. But it denied that Ludlow
was negligent. The school district also contended that Ludlow had
not caused the accident. In addition, Nebo raised a comparative
negligence defense.
¶6 More than a year after it filed its answer, and two months
before trial was scheduled to commence, Nebo moved for judgment
on the pleadings. Nebo argued that, because it had admitted to
respondeat superior liability, Ramon could not sustain a negligent
employment claim alongside his negligence claim. Nebo also filed a
motion in limine requesting that all evidence relating to the negligent
employment claim be excluded from the trial.
¶7 Ramon opposed the motion, arguing that it was untimely.
He also argued that, in Utah, a negligent employment action is
distinct from an action seeking to hold an employer liable under
respondeat superior.
¶8 The district court concluded that Nebo’s motion for
judgment on the pleadings was timely. It granted Nebo’s motion,
reasoning that “vicarious liability and negligent employment claims
are concurrent forms of negligence; when one is proven, the other
becomes obsolete and unnecessary.” It further reasoned that Nebo’s
liability was “fixed by the amount of liability of its employee when
vicarious liability is admitted, and it cannot be increased by
[Ramon’s] separate negligent employment claim.”
¶9 At Ramon’s request, the district court indefinitely continued
the trial and therefore did not rule on Nebo’s motion in limine. The
court entered a final judgment under Utah Rule of Civil Procedure
54(b). Ramon appealed.
STANDARD OF REVIEW
¶10 We review the district court’s determination that the motion
on the pleadings was timely for abuse of discretion. State v. Gonzalez,
2015 UT 10, ¶ 21, 345 P.3d 1168. A district court’s decision on a

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2For 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.

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Opinion of the Court

motion for judgment on the pleadings raises a legal issue that we
review for correctness. See Peck v. State, 2008 UT 39, ¶ 7, 191 P.3d 4.
ANALYSIS
I. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
WHEN IT FOUND THAT NEBO’S MOTION FOR JUDGMENT
ON THE PLEADINGS WAS TIMELY
¶11 Ramon argues that Nebo’s motion for judgment on the
pleadings was untimely. Utah Rule of Civil Procedure 12(c) allows
that “[a]fter the pleadings are closed but within such time as not to
delay the trial, any party may move for judgment on the pleadings.”
Ramon argues that the district court erred when it granted the
motion because Nebo’s motion delayed the trial. Ramon argues that
the motion “resulted in the scheduled trial being indefinitely
continued mere weeks before it was to begin.”
¶12 Ramon neglected to include a detail in his analysis that
Nebo helpfully points out: the trial was continued at Ramon’s
request. Ramon then asked the district court to certify the decision so
that he could appeal the court’s dismissal of the negligent
supervision claim. That matters. Ramon cannot now argue the
motion was untimely because it delayed the trial when he requested
the delay. And Ramon offers nothing to suggest that the motion for
judgment on the pleadings would have delayed the trial in the
absence of Ramon’s request to continue it. As such, Ramon has not
met his burden of establishing that the district court acted outside
the bounds of its discretion when it heard Nebo’s motion.
II. THE DISTRICT COURT ERRED IN DISMISSING
RAMON’S NEGLIGENT EMPLOYMENT CLAIM
¶13 The district court granted Nebo’s motion to dismiss
Ramon’s negligent employment claim, concluding that Nebo’s
admission that Nebo was vicariously liable for Ludlow’s actions
rendered the negligent employment claim superfluous. The district
court reasoned that Ramon’s vicarious liability and negligent
employment claims “are concurrent forms of negligence,” such that
“when one is proven, the other becomes obsolete and unnecessary.”
It further concluded that because Nebo’s liability “is fixed by the
amount of liability of its employee when vicarious liability is
admitted,” Nebo’s liability could not be increased by Ramon’s
negligent employment claim. It also reasoned that Ramon’s
negligent employment claim is “unfairly prejudicial” because it
“creates a danger that a jury will assess [Nebo’s] liability twice and
award duplicative damages to [Ramon].”

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¶14 Ramon argues this was error. He posits that he is entitled to
proceed to trial on alternative claims. He also argues that the district
court’s ruling conflicts with the Utah Liability Reform Act (Act),
which provides that a party can request to have fault allocated
among multiple defendants and third parties. UTAH CODE § 78B-5-
819(1). And he contends that denying him the chance to have the
jury allocate fault between Ludlow and the school district violates
the Act. Ramon is right.
A. Ramon is Entitled to Proceed on Alternate Claims
¶15 Ramon first argues that he is entitled to proceed to trial on
both his vicarious liability and negligent employment claims. In
Ramon’s view, the district court’s ruling conflicts with the
fundamental principle that the plaintiff is the master of her
complaint. We agree.
¶16 “Our adversary system of justice relies on the parties to
identify the ‘claims’ presented for judicial decision. At the trial court
level, we treat the plaintiff as the ‘master of the complaint.’ That
means that the plaintiff has the prerogative of identifying the claims
or causes of action she seeks to sustain in court. And we honor the
plaintiff’s prerogative.” State v. Johnson, 2017 UT 76, ¶ 67, 416 P.3d
443 (Lee, A.C.J., concurring in the judgment) (citation omitted). Our
rules recognize this principle. A party asserting a claim “may join
either as independent or as alternate claims as many claims . . . as he
[or she] may have against an opposing party.” UTAH R. CIV. P. 18(a).
¶17 Here, Ramon pled viable alternate claims of negligent
employment and negligence. Contrary to Nebo’s assertions, Ramon’s
negligent employment and negligence claims are not redundant. The
two claims have distinct elements. And we have said that plaintiffs
may proceed separately on both claims. See J.H. ex rel. D.H. v. West
Valley City, 840 P.2d 115, 124 (Utah 1992).
¶18 In J.H., a plaintiff sued West Valley City under various
theories, including respondeat superior, negligent hiring, and
negligent supervision, for the conduct of a West Valley City law
enforcement officer. Id. at 117. After dismissing the respondeat
superior claim, this court considered the claim for negligent hiring.
Id. at 123–24. The court explained that, “[r]egardless of whether an
employer may be held liable under the doctrine of respondeat
superior, an employer may be directly liable for its acts or omissions
in hiring or supervising its employees.” Id. at 124.
¶19 Nebo argues that J.H. is distinguishable because West Valley
City did not concede respondeat superior liability, as Nebo has in

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this case. But even so, J.H. makes clear that negligent employment
and respondeat superior claims are distinct. And because they are
distinct claims, Ramon is entitled to assert them both if there is a
factual basis for doing so.
¶20 Nebo counters with two main arguments in support of the
district court’s ruling. First, Nebo urges us to affirm the district court
by adopting the “McHaffie rule.” The McHaffie rule provides that
“once an employer has admitted respondeat superior liability for a
driver’s negligence, it is improper to allow a plaintiff to proceed
against the employer on any other theory of imputed liability.”
McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 826 (Mo. 1995).
Nebo may be correct when it asserts that a majority of jurisdictions
that have considered the question have adopted some form of the
rule. See, e.g., Bogdanski v. Budzik, 408 P.3d 1156, 1162–64 (Wyo. 2018);
Ferrer v. Okbamicael, 390 P.3d 836, 844 (Colo. 2017); Diaz v. Carcamo,
253 P.3d 535, 540–44 (Cal. 2011); Gant v. L.U. Transp., Inc., 770 N.E.2d
1155, 1159–60 (Ill. App. Ct. 2002); Jordan v. Cates, 935 P.2d 289, 293
(Okla. 1997); Bartja v. Nat’l Union Fire Ins. Co. Pittsburgh, 463 S.E.2d
358, 361 (Ga. Ct. App. 1995); Wise v. Fiberglass Sys., Inc., 718 P.2d
1178, 1182 (Idaho 1986); Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla.
Dist. Ct. App. 1977). But a sizeable number of other jurisdictions
have reached the opposite conclusion and held that plaintiffs may
proceed simultaneously on claims under theories of negligent
employment and respondeat superior. See, e.g., MV Transp., Inc. v.
Allgeier, 433 S.W.3d 324, 336 (Ky. 2014); James v. Kelly Trucking Co.,
661 S.E.2d 329, 330–32 (S.C. 2008) (noting also that a plaintiff is not
precluded from maintaining a negligent employment cause of action
even “after an employer stipulates that it is vicariously liable for its
employee’s negligence”); Poplin v. Bestway Express, 286 F.Supp.2d
1316, 1320 (M.D. Ala. 2003); Marquis v. State Farm Fire & Cas. Co., 961
P.2d 1213, 1224–25 (Kan. 1998); Lim v. Interstate Sys. Steel Div., Inc.,
435 N.W.2d 830, 832–33 (Minn. Ct. App. 1989); Quinonez ex rel.
Quinonez v. Andersen, 696 P.2d 1342, 1346 (Ariz. Ct. App. 1984).
¶21 Jurisdictions that adopt the rule appear to be motivated, at
least in part, by a belief that the rule prevents a plaintiff from
enjoying a double recovery. See, e.g., Ferrer, 390 P.3d at 845 (“[T]here
is a danger that a jury will assess the employer’s liability twice and
award duplicative damages to the plaintiff if it hears evidence of
both a negligence claim against an employee and direct negligence
claims against the employer.”). Nebo echoes this rationale in its
briefing. The McHaffie rule is, however, a blunt instrument to deal
with that potential issue. A district court has myriad other tools to
address a potential double recovery: it can instruct the jury, provide
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special verdict forms, or even remove the doubly-covered portion
through post-trial motions. See UTAH R. CIV. P. 49, 51, 59, 60; James,
661 S.E.2d at 331 (“[T]he argument that the court must entirely
preclude a cause of action to protect the jury from considering
prejudicial evidence gives impermissibly short-shrift to the trial
court’s ability to judge the admission of evidence and to protect the
integrity of trial, and to the jury’s ability to follow the trial court’s
instructions.”). As a result, refusing to allow a plaintiff to move
forward with a well-pled claim is an unnecessarily harsh method to
solve the problem that the McHaffie rule jurisdictions identify.
¶22 Some jurisdictions with the McHaffie rule also justify it as a
bulwark against unfairly turning the jury against a party. See, e.g.,
Ferrer, 390 P.3d at 845 (“[E]vidence necessary to prove direct
negligence claims is likely to be unfairly prejudicial to the
employee.”). Nebo echoes this concern, predicting that the jury
might be inflamed by the evidence that it continued to permit
Ludlow to drive a school bus with knowledge of his apparently 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. It therefore urges us to
adopt the bright-line McHaffie rule to prohibit such evidence where
employers have admitted respondeat superior liability.
¶23 Much like the South Carolina Supreme Court, “we think the
argument that an independent cause of action against an employer
must be precluded to protect the jury from considering prejudicial
evidence presumes too much.” James, 661 S.E.2d at 331. “Our court
system relies on the trial court to determine when relevant evidence
is inadmissible because its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury.” Id. We agree with the James court that
in most instances the best course is to rely on our district courts’
discretion to determine whether evidence should be admitted.
¶24 Utah Rule of Evidence 403 permits a court to “exclude
relevant evidence if its probative value is substantially outweighed
by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” Unlike the courts
that embrace the McHaffie rule, we prefer a system that permits a
district court to review the specific items of evidence in context to
decide whether rule 403 should prevent their admission. Adopting
the McHaffie rule would, in essence, take away a district court’s
discretion. We do not think we can accurately predict that the

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evidence needed to prove a negligent employment claim will always
flunk the rule 403 balancing test. Instead, we leave the evidentiary
concerns Nebo presents to the district court to consider under the
bounds of the Utah Rules of Evidence. 3
¶25 All that having been said, we ultimately reject the McHaffie
rule for an even more basic reason: it is incompatible with Utah’s
Liability Reform Act. The Act provides that “[a] person seeking
recovery may recover from any defendant or group of defendants
whose fault, combined with the fault of persons immune from suit
and nonparties to whom fault is allocated, exceeds the fault of the
person seeking recovery.” UTAH CODE § 78B-5-818(2). And the trial
court may, at any party’s request, direct a jury to determine the
“percentage or proportion of fault attributable to each person
seeking recovery, to each defendant, to any person immune from
suit, and to any other person . . . for whom there is a factual and
legal basis to allocate fault.” Id. 4
¶26 Ramon has alleged that the accident was caused in part by
Nebo’s own negligence in failing to properly screen, train, discipline,
and supervise Ludlow. Utah law recognizes the tort of negligent
employment, see, e.g., J.H., 840 P.2d at 123–26, and that provides a
legal basis to allocate fault for the accident to the school district. That
any fault attributable to Ludlow may pass through to Nebo under
principles of respondeat superior does not alter the fact that there
exists a factual and legal basis to allocate fault for the accident to
both Nebo and Ludlow. Under the Act’s plain language, Ramon is
entitled to request that the jury determine the proportion of fault
attributable to Ludlow’s negligence in driving and Nebo’s
negligence in its supervision of Ludlow. 5

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3 We note that this case comes to us without any specific evidence
being placed before the court. If the probative value of that evidence
is substantially outweighed by a danger of unfair prejudice, the
district court may exclude it. UTAH R. EVID. 403.
4 “Fault” is “any actionable breach of legal duty, act, or omission
proximately causing or contributing to injury or damages sustained
by a person seeking recovery, including negligence in all its degrees,
[and] comparative negligence . . . .” UTAH CODE § 78B-5-817(2).
5Nebo also argues that the Act does not apply to respondeat
superior claims “because those claims do not depend on any
showing of fault by the party subject to such liability.” (quoting M.J.
(continued …)
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¶27 Nebo pushes back, arguing that the jury might wind up
assigning more fault to the combination of Nebo and Ludlow than
the jury would if it was only asked to consider the fault of Ramon
and Ludlow. This may or may not be so. 6 But even if Nebo has
correctly handicapped the jury’s behavior, that result is what the Act
envisions. The statute allows a plaintiff, or a defendant, to ask the
jury to apportion fault to anyone a party identifies as being legally
responsible for the injury. 7 As we recognized in J.H., there exists a

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v. Wisan, 2016 UT 13, ¶ 36, 371 P.3d 21). True, but Nebo’s argument
doesn’t speak to the relevant question. Respondeat superior kicks in
after the jury has allocated fault. At that point, respondeat superior
will require Nebo to shoulder the share of the damages attributable
to Ludlow’s fault in causing the accident. Nothing in the Act allows
Nebo to use respondeat superior as an off-ramp from having fault
apportioned to it directly for its own negligent acts.
6 It is worth noting that Nebo’s argument is premised on the
assumption that the jury will start by assigning a portion of fault to
Ludlow and allocate the rest to Ramon. This permits Nebo to
conclude that if its negligent employment is included in the calculus,
any fault allocated to it will necessarily come from what the jury
would have otherwise attributed to Ramon. This assumption is
faulty, because the jury could just as easily start with Ramon’s own
fault and attribute the rest to Ludlow. In that scenario, the addition
of Nebo’s own negligence means that the amount of fault assigned to
Ludlow alone would be the same amount assigned to the
combination of Ludlow and Nebo.
7 To be clear, we are not suggesting that a separate theory of
liability against Nebo increases the amount of damages Ramon could
recover. Ultimately, Ramon’s damages will be the losses he can
convince a jury he suffered because of the accident. But we reject the
argument that because a separate theory of liability against Nebo
cannot increase the amount of damages Ramon suffered in the
accident, a jury cannot consider that theory of liability and assign
fault accordingly. And we reject the related argument that because
Nebo concedes that it will ultimately be financially responsible for
any damages, Ramon loses the ability to ask the jury to apportion
fault between Nebo and Ludlow. As explained above, the Act does
not support that conclusion. There are good reasons why the
legislature might want a jury to apportion fault between responsible
parties, even if it does not impact the amount of damages the
(continued …)
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legal basis to hold Nebo liable for its own role in continuing to
entrust a school bus to Ludlow. The Act allows Ramon to ask a fact
finder to allocate fault accordingly.
CONCLUSION
¶28 We affirm the district court’s conclusion that Nebo timely
moved for judgment on the pleadings. But we reverse the district
court’s dismissal of Ramon’s negligent employment claim. We reject
the bright-line approach some other jurisdictions employ to bar
negligent employment claims where an employer has admitted that
it is financially responsible for its employee’s liability. We remand
for further proceedings.

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plaintiff can recover. For example, fault allocation can shine a light
on negligent practices and promote corrective behavior. Moreover,
the rule Nebo advocates might distort the fault allocation in cases
where more than the employer and employee are alleged to have
contributed to the accident.

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