A teenage driver was intoxicated when he was involved in a hit and run accident with a woman and her daughter. The woman’s husband was driving nearby and witnessed the collision. The family filed a personal injury lawsuit against the driver and his employer, Sergio’s El Ranchito (a restaurant). The court granted the defendants’ motion for summary judgment, and the California Court of Appeal for the Fourth District affirmed the judgment in this California car accident case.
On appeal, the family did not challenge the court’s legal analysis of the issues. Instead, they maintained that the court should reverse the judgment because the ruling was based on procedural defects. Namely, the restaurant’s moving papers did not specifically address the negligent supervision allegations and therefore did not properly shift the burden of proof to the family. Additionally, they contended the restaurant’s efforts to address negligent supervision for the first time in its reply brief were improper, and the trial court should not have considered this argument when deciding the motion for summary judgment. The appeals court concluded that neither contention had merit.
The complaint alleged the restaurant negligently supervised its underage employees because the driver either had access to, or was directly provided, alcoholic beverages on the premises. Thus, the family’s theory for recovery was that the restaurant should have known their unsupervised underage employees were going to drink while at work, and therefore it was foreseeable they would drive while intoxicated and injure a third party. To prove this claim, the family needed proof the restaurant was aware the underage employees had access to, or were provided, alcohol during work hours, and it failed to adequately supervise these underage employees by locking up the alcohol.
The appeals court concluded that the restaurant’s moving papers adequately addressed the negligent supervision allegation raised in the complaint. The restaurant satisfied its initial burden by showing the family’s discovery responses were inadequate to prove negligent supervision. Although the restaurant did not use the words “negligent supervision” in the moving papers, it did discuss the total lack of evidence supporting all allegations in the complaint. It argued there was no evidence suggesting liability under any direct theory of liability or vicarious liability. The separate statement of undisputed facts noted there was no evidence the driver became intoxicated while at work or after his shift. In addition, the separate statement explained why there was nothing to support the allegation the driver was coming from work when he was driving while intoxicated. The restaurant affirmatively established it had policies and procedures in place to prevent employees from consuming alcohol while at work. Absent evidence to the contrary, it could be inferred the restaurant did not know or expect the driver or other employees were violating the terms of their employment.
The dearth of evidence supported the reasonable inference there was nothing connecting the driver’s dishwashing duties to any foreseeable misconduct. Indeed, in the vicarious liability discussion, the restaurant specifically stated being intoxicated “was not incidental to his employment.” Negligent supervision was not a viable theory of recovery because there were no facts suggesting the restaurant knowingly supplied the driver with alcohol as part of his duties as a dishwasher, no facts proving the driver was drinking at work, no facts the managers were aware that employees were drinking on the job and then driving home, and no facts indicating the restaurant knew the driver was an “unfit employee” in any respect.
For these reasons, the appeals court concluded that since the family’s discovery responses failed to state specific facts showing there was negligent supervision, the burden shifted to them to establish a triable issue of material fact regarding this claim. The court found no procedural error with respect to the restaurant’s moving papers or the court’s decision to shift the burden of proof to the family.
The family further argued the restaurant was untimely when it included an argument regarding the negligent supervision claim in its reply. They asserted the topic was not covered in the moving papers or separate statement. They acknowledged the arguments raised in the reply did not constitute late filed evidence but improperly discussed evidence not included in the separate statement.
The appeals court explained that the topic was covered in the moving papers. The restaurant’s motion was based on the lack of evidence produced during discovery to support all direct theories of liability raised in the complaint, which included the claim of negligent supervision. The burden of proof then shifted to the family, who produced new evidence in their opposition in attempting to save their claim for negligent supervision. Under the circumstances of this case, it would have been unfair to prohibit the restaurant from offering a rebuttal argument in its reply brief. The restaurant had the right to respond to the family’s arguments and object to new evidence submitted in their opposition.
In addition, there was nothing in the record to show the family objected to the reply brief, sought to continue the hearing to file supplemental opposition briefs, or desired to present new evidence or arguments in response to the reply brief. The family did not assert they alerted the trial court to their concerns about the reply. They also did not suggest what more they could have submitted or argued in response to the reply brief. The appeals court rejected the family’s suggestion the court had a sua sponte duty to issue an order permitting them to file supplemental papers and to take any further discovery that may have been necessary to properly oppose these never-before-raised issues. The contention lacked legal support.
For these reasons, the judgment was affirmed.
The car accident lawyers at Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.
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