United States District Court, D. New Mexico
operative complaint in this proceeding is Plaintiffs'
Second Amended Complaint for Personal Injuries and Damages,
see Doc. No. 1 at 64-67, which was filed November
18, 2016 in the First Judicial District Court, County of
Santa Fe. Plaintiffs allege that as a result of a
motor vehicle accident on December 11, 2015, Plaintiffs
suffered injuries and damages due to the negligence of
Defendants. Specifically, Plaintiffs assert claims of
negligence, negligence per se, and negligent entrustment
against Defendants and Plaintiffs seek an award of punitive
damages against Defendants. Second Amended Complaint
¶¶ 6, 9, 13, 14, 17, 21.
have moved for partial summary judgment on the claims of
negligent entrustment and punitive damages (Negligent
Entrustment Motion). Defendants contend that the negligent
entrustment claim should be dismissed as a matter of law
because the undisputed material facts show that Cody Wyckoff,
driver of the tractor trailer owned by Defendant Old Dominion
Freight Line, Inc. (Old Dominion), had no record of having
been cited previously for traffic violations, had never
failed a drug test and had passed the drug test on the day in
question, had only been in one earlier traffic accident when
another vehicle backed into Mr. Wyckoff's truck, had
conducted a pre-trip inspection of the pertinent tractor
trailer, was not using his cell telephone at the time of the
accident, was using low beam lights on his tractor, was not
exceeding the speed, and tried to avoid Plaintiffs'
vehicles before the collision occurred. Thus, according to
Defendant Old Dominion, Plaintiffs cannot satisfy the
required elements of a negligent entrustment claim because
there is no evidence that Old Dominion knew or should have
known that Mr. Wyckoff was likely to use the tractor trailer
in a manner that would create an unreasonable risk of harm to
others. Negligent Entrustment Motion at 6.
addition, Defendants assert that the punitive damage claim
against Mr. Wyckoff should be dismissed as a matter of law
because there is no evidence that Mr. Wyckoff possessed the
culpable mental state required to support a punitive damage
award. Id. at 7. In other words, Defendants argue
that Plaintiffs cannot demonstrate that Mr. Wyckoff acted
willfully, wantonly, recklessly, or with conscious
indifference. Id. at 8. Without any evidence showing
that Mr. Wyckoff acted with the requisite culpable state,
Defendants maintain that the punitive damages claim must be
dismissed as a matter of law. Id.
did not file any Response in opposition to the Negligent
Entrustment Motion and sent an email to defense counsel,
dated October 5, 2017, stating that Plaintiffs “will
not oppose your motion for summary judgment as to negligent
entrustment.” Because Plaintiffs agree to the dismissal
of the negligent entrust claim and have not filed any
opposition to Defendants' request that the punitive
damages claim also be dismissed,  the Court will grant
Defendants' Negligent Entrustment Motion and dismiss,
with prejudice, both the claim of negligent entrustment and
the claim of punitive damages. Moreover, the Court concludes
that Defendants have met their “initial
responsibility” of demonstrating that no genuine issue
of material fact exists and that [they are] entitled to
summary judgment as a matter of law” as to the claims
of negligent entrustment and punitive damages. See Reed
v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002).
THEREFORE ORDERED that DEFENDANTS' MOTION FOR PARTIAL
SUMMARY JUDGMENT ON PLAINTIFFS' CLAIM FOR NEGLIGENT
ENTRUSTMENT AND PUNITIVE DAMAGES (Doc. No. 45) is GRANTED
with the result that Plaintiffs' claims of Negligent
Entrustment and Punitive Damages against Defendants will be
dismissed with prejudice in a separate Order.
 Although Defendants included Plaintiff
in Intervention State Farm Automobile Insurance Co. in the
caption of their Motion, the Court had removed State Farm
from the caption since the notes from the August 14, 2017
Settlement Conference indicate that State Farm's claims
were settled. Clerk's Minutes (Doc. No. 39).
 This proceeding was removed to federal
court on December 9, 2016, on the basis for diversity
jurisdiction. Notice of Removal (Doc. No. 1).
 DEFENDANTS' MOTION FOR PARTIAL
SUMMARY JUDGMENT ON PLAINTIFFS' CLAIM[S] FOR NEGLIGENT
ENTRUSTMENT AND PUNITIVE DAMAGES (Doc. No. 45).
 Although the Second Amended Complaint
and caption spell Mr. Wyckoff's name “Wycoff,
” the Court will use Wyckoff since that is how
Defendants spell the name.
 DEFENDANTS' REPLY FOR ITS MOTION
FOR PARTIAL SUMMARY JUDGMENT ON PLAINTIFFS' CLAIM FOR
NEGLIGENT ENTRUSTMENT AND PUNITIVE DAMAGES, Ex. A (Doc. No.
 “The failure of a party to file
and serve a response in opposition to a motion within the
time prescribed for doing so constitutes consent to grant the