2019 WL 3842376

United States District Court, D. Oregon.
NORMAN POE, an individual, Plaintiff,
v.
RYAN COOK, an individual; and OLD DOMINION FREIGHT LINE, INC., a Virginia corporation, Defendants and Third-Party Plaintiffs,
v.
SWIFT TRANSPORTATION COMPANY OF ARIZONA, a foreign corporation; and ZAKEE WATSON, an individual, Third-Party Defendants.
Case No. 2:17-cv-00062-SU
|
Filed 08/14/2019

OPINION AND ORDER
PATRICIA SULLIVAN United States Magistrate Judge
*1 This case concerns a multi-vehicle accident on Interstate 84. Plaintiff Norman Poe, an employee of third-party defendant Swift Transportation Company of Arizona (“Swift”), has brought a negligence action against another trucker, defendant Ryan Cook, and his employer, Old Dominion Freight Line, Inc. (“Old Dominion”). Compl. (Docket No. 1). Defendants have filed a Third-Party Complaint against Swift and another Swift employee, Zakee Watson, a trucker trainee under Poe’s supervision. Ans. (Docket No. 14). Plaintiff has moved for partial summary judgment on two of defendants’ affirmative defenses. (Docket No. 43). Defendants oppose. (Docket No. 44). The Court heard oral argument on May 22, 2019 (Docket Nos. 55, 61), after which it received supplemental briefing (Docket Nos. 58-60, 65).1 For the following reasons, the Court DENIES plaintiff’s Motion for Partial Summary Judgment.

FACTUAL BACKGROUND
Because plaintiff’s Motion considers the viability of defendants’ affirmative defenses as a matter of law, and does not dispute the facts or evidence underlying them, the Court lays out the following facts, which the parties have largely agreed upon in their submissions (Docket Nos. 1, 14, 43, 44, 49, 51, 58-60), as background to its analysis of the legal questions presented.

On January 17, 2015, Ryan Cook was driving an Old Dominion semi-truck, pulling two trailers, driving eastbound on Interstate 84 near Baker City, Oregon. Compl. ¶ 6. Cook was an Old Dominion employee. Id. Behind Cook’s truck, Zakee Watson was driving a Swift semi-truck/trailer combination, in which Norman Poe, Watson’s trainer, was a passenger. Ans. ¶ 3. Watson, a trainee, and Poe were Swift employees. Id.

Road conditions were hazardous that day due to dense fog and ice. Compl. ¶ 7. Cook lost control of the semi-truck/trailer and it jackknifed, blocking the highway’s eastbound lane. Id. ¶ 8. Watson’s truck collided with Cook’s. Id. Several other semi-trucks then struck Watson and Poe’s truck. Def. Opp’n, at 3 (Docket No. 49). Poe was seriously injured. Compl. ¶ 11. Because Poe’s injuries occurred during the course of his employment, he was covered by and received benefits from Swift’s workers’ compensation. Pl. MPSJ, at 2 (Docket No. 58).

PROCEDURAL BACKGROUND
In their Answer, defendants state three affirmative defenses, including:
FIRST AFFIRMATIVE DEFENSE
(Comparative Negligence)
5.
Defendants reallege paragraphs 1-4 of their answer and further allege that, at all material times, plaintiff Poe was employed by Swift Transportation as a driver/trainer and supervised Swift Transportation employee Watson, a driver/trainee. Plaintiff Poe was aware of the adverse weather and road conditions in sufficient time to prevent the Swift Transportation semi-truck and trailer from colliding with the [Old Dominion] trailer(s). Any injuries and damages he sustained were caused by his own negligence in one or more of the following ways:
*2 a) In failing to instruct trainee Watson to slow down sufficiently to bring the Swift Transportation tractor-trailer to a stop before the collision;
b) In failing to instruct trainee Watson to promptly pull the Swift Transportation tractor-trailer over to the shoulder of the road prior to the collision;
c) In failing to instruct trainee Watson to refrain from down-shifting the Swift Transportation tractor-trailer instead of applying its brakes, resulting in the collision with the [Old Dominion] trailer(s);
d) In failing to secure himself with a safety harness once he was aware of the adverse weather and road conditions.
and
THIRD AFFIRMATIVE DEFENSE
(Fault of Others)
7.
Plaintiff’s injuries and damages were caused by the fault of others, including Watson.
Ans., at 3-4 (Docket No. 14).2

LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(a). The burden is on the moving party to point out the absence of any genuine issue of material fact; once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In opposing summary judgment, a party may not rely on mere allegations or denials in pleadings, but must set forth specific facts supported by competent evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999). “A fact issue is genuine if the evidence is such that a reasonable [fact finder] could return a verdict for the nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quotation omitted). “The non-moving party has failed to meet its burden if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) (quotation omitted). The substantive law governing a claim or defense determines whether a fact is material. Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 369 (9th Cir. 1998). In evaluating a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. Anderson, 477 U.S. 242, 248 (1986).

ANALYSIS

I. First Affirmative Defense: Comparative Negligence
Defendants’ first affirmative defense, comparative negligence, asserts that Poe’s injuries were caused in part by his own negligence, specifically in his failing to properly instruct or to train Watson, and in failing to secure himself with a safety harness.

Plaintiff’s argument against this defense goes as follows: First, workers’ compensation is an employee’s exclusive remedy against an employer for injuries arising in the course of employment, and so an employer who provides workers’ compensation is immune from liability to an injured employee. Or. Rev. Stat. § 656.018(1)(a); Nancy Doty, Inc. v. WildCat Haven, Inc., 297 Or. App. 95, 97 (2019). Because Poe worked for Swift, Swift could not be liable in tort for Poe’s injuries; Poe could recover only through workers’ compensation. Second, “the exemption from liability given an employer under this section is also extended to the … employees … of the employer ….” Or. Rev. Stat. § 656.018(3). Watson, the driver and a Swift employee, would also be immune from civil liability as to Poe. Third, plaintiff argues, because Poe too is a Swift employee, the immunity from liability that Swift and Watson enjoy must also extend to Poe. Finally, because Or. Rev. Stat. § 31.600(2) provides that “there shall be no comparison of fault with any person: (a) Who is immune from liability to the claimant,” plaintiff, because he is immune from liability, cannot have his fault compared with defendants’, i.e., cannot be subject to a comparative negligence defense.

*3 This argument is unsuccessful, as it misconstrues the nature of the comparative negligence affirmative defense. At its core, plaintiff’s argument is that because that plaintiff is a Swift employee, he is immune from liability to himself, due to workers’ compensation. That is, plaintiff could not seek recovery from himself, only from workers’ compensation. Such a conclusion is both peculiar and incongruous. “[T]he purpose of” workers’ compensation is “is to promote workers’ compensation coverage, not to create technicalities ….” Robinson v. Omark Indus., 46 Or. App. 263, 611 (1980). Defendants, in their first affirmative defense, argue that plaintiff’s own negligence, in part, caused plaintiff’s claimed injuries and that defendants are not entirely at fault for plaintiff’s injuries. While it makes sense that the workers’ compensation structure would prevent plaintiff from otherwise recovering against Swift, or against his coworker Watson, it makes no sense that it would preclude defendant from arguing that a plaintiff is partially at fault for his injuries. Workers’ compensation immunity is not enacted to shield an employee from his own negligence. Although plaintiff cites broad legal principles about workers’ compensation exclusivity, he offers no legal authority for the premise that workers’ compensation absolves an individual from his own negligence or precludes an affirmative defense of comparative negligence.3

That three of the bases for the alleged comparative negligence are Poe’s alleged failure to instruct trainee Watson (although, notably, the fourth basis is not; it is Poe’s alleged “failing to secure himself with a safety harness”) does not undermine this conclusion. Plaintiff argues that a negligent supervision claim “is merely another way of saying that both Watson and Swift were negligent, and this effort to convince the jury to find Poe at fault for the liabilities of his immune employer and co-employee should not be allowed.” Pl. MPSJ, at 5 (Docket No. 43). This argument is not well taken. Defendants’ argument is that plaintiff, in part, caused his own injuries, by failing to train Watson properly. This is not a disguised claim against Watson or Swift, but rather a claim about Poe’s actions (or inactions), that is, a duty plaintiff would have owed to others, including those on the road, to prevent injuries that his trainee could have caused. Any negligence by Watson for how he drove, or any negligence by Swift as the employer of Watson or plaintiff, is distinct from the argument that plaintiff himself, through his own actions, partially caused his injuries.4

Although Or. Rev. Stat. § 31.600(2) provides that “there shall be no comparison of fault with any person: (a) Who is immune from liability to the claimant,” it does not make sense to read the statute as saying a plaintiff cannot be charged with comparative negligence. More importantly, the statute also reads, “The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought ….” Id. (emphasis added). Thus, Oregon law is mandatory that the fault of plaintiff as “the claimant” must be compared with those of defendants, i.e., those “against whom recovery is sought”.5

*4 Lyons v. Walsh & Sons Trucking Co., 183 Or. App. 76, 78 (2002), supports this conclusion. Plaintiff Lyons was a passenger in an Oregon State Police (“OSP”) Jeep driven by Sergeant Rector. Defendant Walsh owned a tractor-trailer that struck the Jeep and killed both Lyons and Rector. Lyons sued Walsh. Walsh sought to introduce evidence of Rector’s potential fault or negligence in contributing to the accident. Id. at 79. Lyons argued that because workers’ compensation made Rector and OSP immune from suit, Walsh could not introduce evidence of their potential fault. The Court of Appeals rejected this argument, holding that Or. Rev. Stat. § 31.600 (then § 18.470) restricted only the jury’s apportionment of fault, but did not address the jury’s determination of causation. 183 Or. App. at 83. Thus, Walsh could introduce evidence of Rector’s conduct despite his immunity from liability. Although Lyons addressed jury instructions and the introduction of evidence, and not affirmative defenses, it is nonetheless instructive because of the parallel facts: a plaintiff passenger seeking to prevent a defendant from consideration of the passenger’s driver’s conduct, where that driver was immune from liability.

Thus, workers’ compensation, and the immunity it affords Swift and Watson, do not bar an affirmative defense alleging Poe’s own comparative negligence.

II. Third Affirmative Defense: “Fault of Others”
Defendants’ third affirmative defense, “fault of others,” alleges that plaintiff’s injuries “were caused by the fault of others, including Watson.”

Plaintiff argues that Watson is immune from liability under the workers’ compensation principles discussed above, and thus there cannot be an affirmative defense that considers Watson’s fault or negligence. If this affirmative defense were merely a way to assign Watson liability for plaintiff’s injuries or potentially recover damages from Watson, plaintiff might be correct. However, this affirmative defense in fact operates differently, not by invoking comparative negligence as to Watson, and not merely by denying defendants’ liability or alleged negligence, but by introducing new facts, a new theory, and “new matter” that undermine the allegation that defendants’ negligence caused plaintiff’s injuries. That is, it asserts that defendants did not cause Poe’s injuries, because Watson in fact caused them, wholly or partially.

In a diversity action such as this, “the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.” Healy Tibbitts Const. Co. v. Ins. Co. of N. Am., 679 F.2d 803, 804 (9th Cir. 1982). Fed. R. Civ. P. 8(c)(1) states that a party “must affirmatively state any avoidance or affirmative defense[.]” In a diversity case, “state law defines the nature of the defenses ….” Healy Tibbitts, 679 F.2d at 804. “Under Oregon pleading rules, evidence which controverts facts necessary to be proved by plaintiff may be shown under a general denial.” Deering v. Alexander, 281 Or. 607, 613 (1978). “[W]here the defendant desires to present evidence which does not directly controvert a fact necessary to be established by plaintiff, it is new matter which must be pleaded as an affirmative defense.” Id. (italics added).

Watson’s alleged negligence is a “new matter” that defendants must plead as an affirmative defense. The claim of Watson’s negligence goes beyond defendants merely claiming that they were not negligent, or that their actions did not cause plaintiff any injury. It introduces a new theory of liability that Watson engaged in negligent conduct. That workers’ compensation immunity would prevent plaintiff from assigning liability to Watson does not mean that defendants may not introduce evidence of Watson’s alleged negligence in order to defeat a claim of causation or negligence on their part. This affirmative defense does not seek to allow recovery against Watson, but merely to provide an alternative explanation for the events at issue.

Lasley v. Combined Transport, Inc., 351 Or. 1 (2011), supports this conclusion. The plaintiff brought a wrongful death action against two defendants: an intoxicated driver, and a trucking company. Id. at 4. Plaintiff alleged that the driver defendant was negligent, but did not allege anything about the driver’s intoxication. Id. at 25. The trucking company defendant sought to raise the driver’s intoxication as a defense to negligence and to apportion fault. Id. at 26. The Oregon Supreme Court held that the proper means for the trucking company to raise the negligence of a co-defendant was through an affirmative defense, because it was not simply a denial of its own liability, but introduction of a “new matter,” namely, the wrongful conduct of a co-defendant and its role in causing the alleged injury. Id. at 22. A defendant who
*5 seeks to avoid paying the full damages that a plaintiff has alleged on the basis that a codefendant is more at fault in a way that was not alleged by the plaintiff, must plead the specification of negligence on which the defendant relies as an affirmative defense in its answer to the plaintiff’s complaint and not in a separate cross-claim against the codefendant.
Id. at 22-23. Further,
This court has defined “new matter” as consisting of “a statement of facts different from those averred by the plaintiff and not embraced within the judicial inquiry into their truth.” When a defendant seeks to avoid liability for the damages that a plaintiff claims by asserting that a codefendant engaged in more blameworthy negligent conduct not pleaded by the plaintiff, the defendant relies for that defensive posture on facts different from those averred by the plaintiff.
Id. at 17 (citation omitted). Although Lasley considered evidence of a co-defendant’s fault, not that of a non-party as in this case, it nonetheless supports the conclusion that introduction of another’s negligence or fault in causing the alleged injury, as a theory that falls outside plaintiff’s allegations, is to be raised by an affirmative defense.6

Thus, defendants are entitled to raise the fault of others, including Watson, as an affirmative defense.7

CONCLUSION
For these reasons, the Court DENIES plaintiff’s Motion for Partial Summary Judgment re: Defendant’s Affirmative Defenses. (Docket No. 43).

IT IS SO ORDERED.

DATED this 14th day of August, 2019.

All Citations
Slip Copy, 2019 WL 3842376

Footnotes

1
At the hearing, the Court also considered plaintiff’s Motion to Bifurcate (Docket No. 45), which it denied (Docket No. 57).

2
The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636. (Docket Nos. 12, 27, 40, 42).

3
For instance, in the recent Oregon Supreme Court case of Vasquez v. Double Press Manufacturing, Inc., 364 Or. 609, 614 (2019), comparative negligence served to reduce plaintiff’s damages by 40% despite the presence of workers’ compensation in that matter.

4
Plaintiff argues that because he was acting as Swift’s agent, he enjoys the same immunities as Swift, his principal. However, this self-reflexive argument fails for the same reasons as the workers’ compensation immunities argument. It would be highly anomalous if Swift’s immunity from liability shielded plaintiff from his own negligence. See also Vaughn v. First Transit, Inc., 346 Or. 128, 140 (2009) (discussing when a principal may be liable for actions of agent employee despite principal’s immunity); Johnson v. Gibson, 358 Or. 624, 633 (2016) (same).

5
In fact, in the context of plaintiff’s Motion to Bifurcate, plaintiff’s counsel stated at oral argument:
I believe that the jury would be presented with virtually all of the evidence regarding the facts of the accident. They would probably be presented subject to motions in limine, but all of the evidence regarding the potential causes of the accident, including from the defendants’ side, I think they would be entitled to present evidence about Mr. Watson’s conduct, for example.
May 22, 2019, Tr. 5:12-18 (Docket No. 61) (emphasis added). This comment recognizes the possible introduction of evidence of Watson’s own actions in contributing to his injuries, and suggests the viability of comparative negligence and fault of others as affirmative defenses.

6
Contrary to plaintiff’s argument, International Longshore & Warehouse Union v. ICTSI Oregon, Inc., No. 3:12-cv-1058-SI, 2019 WL 267714 (D. Or. Jan. 17, 2019), does not hold otherwise. The court there distinguished “negative defenses” from “affirmative defenses.” “A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.” Id. at *15 (citation omitted). “An affirmative defense raises matters extraneous to the plaintiff’s prima facie case …. On the other hand, some defenses negate an element of the plaintiff’s prima facie case; these defenses are excluded from the definition of affirmative defense in Fed. R. Civ. P. 8(c).” Id. (citation omitted). Here, defendants are not simply arguing that plaintiff cannot meet his burden of proof, but that even if plaintiff were to succeed in showing defendants’ causation for negligently causing the accident, the fault of others, including Watson, should be considered in determining liability.

7
For the same reasons, defendants do not misuse the affirmative defense to attribute negligence to unnamed “others.” Although the jury may assign fault only to defendants and third-party defendants, Or. Rev. Stat. § 31.600(2), and may not assign fault to non-parties such as “others,” the defense here is not that comparative fault and liability should be assigned to some other non-parties, but simply that defendants seek to argue that their alleged negligence as a factual matter must be considered alongside the other individuals’ and entities’. Defendants do not need to join the “others” as third-party defendants in order to argue that those “others” were negligent in causing plaintiff’s injuries, because defendants are not trying to apportion fault and liability to these “others.”

2019 WL 3765426

United States District Court, M.D. Pennsylvania.
JEWEL JENSON, Individually and as Administratrix of the Estate of JOSHUA CORREA, deceased, and CYNTHIA BATES, Plaintiffs
v.
BRETT ST. LOUIS and POWER PALLET, INC., Defendants
No. 3:19cv515
|
08/09/2019
Opinion

JUDGE JAMES M. MUNLEY, United States District Court

*1 ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

MEMORANDUM
Before the court for disposition is a motion to dismiss portions of plaintiffs’ complaint filed by Defendants Brett St. Louis and Power Pallet, Inc. The parties have briefed their respective positions and the matter is ripe for disposition.

Background
Plaintiffs instituted the instant action regarding an automobile accident on September 12, 2018 which caused the death of plaintiffs’ decedent Joshua Correa. (Doc. 1, Compl.). On that day, Defendant Brett St. Louis operated a tractor trailer owned by his employer, Defendant Power Pallet, Inc. (Id. ¶ 16). He had pulled the tractor trailer to the side of I-476 South in Carbon County, Pennsylvania. (Id. ¶¶ 21-22). The tractor trailer did not have proper lamps, reflective devices or other items required to make it easily seen. (Id. ¶ 23).

Plaintiffs’ decedent was driving down the same road, when defendant pulled the tractor trailer out from the shoulder and into the lane of travel. (Id. ¶ 24). Because the tractor trailer was improperly illuminated, oncoming traffic such as Correa could not see him. (Id. ¶ 26). Correa’s automobile collided with the tractor trailer and Correa was killed. (Id. ¶ 25).

The complaint asserts that Defendant St. Louis’s decision to enter Correa’s lane of travel without clearance and with deficient illumination caused the accident. (Id.) Defendant St. Louis drove recklessly, carelessly and negligently according to the plaintiff. (Id. ¶ 27).

Based upon these allegations, the plaintiffs instituted the instant action by filing a seven-count complaint. The complaint raises the following causes of action: Count I- Negligence/Recklessness against Defendant St. Louis; Count II- Negligence/Recklessness against Power Pallet under vicariously liability; Count III- Negligent and/or Reckless Hiring/Supervision/Retention against Defendant Power Pallett, Inc.; Count IV- Negligent Entrustment against Defendant Power Pallet, Inc.; Count V- Negligent Infliction of Emotion Distress against all defendants; Count VI-Wrongful Death against all defendants and Count VII- Survival Action.1 Defendants now move to dismiss, in part, Counts I, II, and III and dismissing Counts IV and V completely. Defendants also move to dismiss plaintiffs’ claim for punitive damages. The parties have briefed their respective positions, bringing the case to its present posture.

Jurisdiction
The court has jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332. Plaintiffs are citizens of Pennsylvania. (Doc. 1, Compl. ¶¶ 1-3). Defendants are citizens of New York. (Id. ¶¶ 5-6). Additionally, the amount in controversy exceeds $75,000. Because complete diversity of citizenship exists among the parties and the amount in controversy exceeds $75,000, the court has jurisdiction over this case. See 28 U.S.C. § 1332 (“district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between…citizens of different states[.]”). As a federal court sitting in diversity, the substantive law of Pennsylvania shall apply to the instant case. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tomkins, 304 U.S. 64, 78 (1938)). Standard of review

*2 Defendants filed their motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The court tests the sufficiency of the complaint’s allegations when considering a Rule 12(b)(6) motion. All well-pleaded allegations of the complaint must be viewed as true and in the light most favorable to the non-movant to determine whether, “ ‘under any reasonable reading of the pleadings, the plaintiff may be entitled to relief.’ ” Colburn v. Upper Darby Twp., 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Oare v. Cnty. of York, 768 F.2d 503, 506 (3d Cir. 1985)). The plaintiff must describe “ ‘enough facts to raise a reasonable expectation that discovery will reveal evidence of’ [each] necessary element” of the claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Moreover, the plaintiff must allege facts that “justify moving the case beyond the pleadings to the next stage of litigation.” Id. at 234-35. In evaluating the sufficiency of a complaint the court may also consider “matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)).

Discussion
As noted above, the defendants’ motion to dismiss is aimed at various counts. Defendants’ arguments fall into three categories. First, they argue that Count V, negligent infliction of emotional distress fails as a matter of law. Second, defendants argue that Counts I through IV violate the Federal Rules of Civil Procedure in that they do not provide a short and plain statement of the claim showing that the pleader is entitled to relief. Third, defendants seek dismissal of the plaintiffs’ punitive damages claim. We shall discuss each separately beginning with Count V.

I. Count V
Count V asserts a cause of action for negligent infliction of emotional distress against all defendants on behalf of Plaintiff Cynthia Bates, decedent’s fiancée. (Doc. 1, Compl. ¶¶ 64-74).

Negligent infliction of emotion distress addresses “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another[.]” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544 (1994). Courts have recognized that “a cause of action for negligent infliction of emotional distress holds out the very real possibility of nearly infinite and unpredictable liability for defendants. Courts therefore have placed substantial limitations on the class of plaintiffs that may recover for emotional injuries and on the injuries that may be compensable.” Id.

For example, only certain categories of plaintiffs may recover for negligent infliction of emotion distress under Pennsylvania law. Specifically,
In order to recover, the [p]laintiff must prove one of four elements: (1) that the [d]efendant had a contractual or fiduciary duty toward him; (2) that [p]laintiff suffered a physical impact; (3) that [p]laintiff was in a “zone of danger” and at risk of an immediate physical injury; or (4) that [p]laintiff had a contemporaneous perception of tortious injury to a close relative. In all cases, a [p]laintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm.
Doe v. Phila. Community Health Alternatives AIDS Task Force, 745 A.2d 25, 27-28 (Pa. Super. Ct. 2000).

Here, the decedent’s fiancée alleges that she falls under category (4) in that she had a contemporaneous perception of tortious injury to a close relative. Defendants attack this claim on two bases. First, they allege that Plaintiff Cynthia Bates did not have a “contemporaneous perception” of the accident, and second that plaintiff is not considered a “close relative” under the law. After a careful review, we agree with the defendants the Count V should be dismissed.

*3 Under Pennsylvania law, for the tort of negligent infliction of emotional distress to apply, the plaintiff must have had a contemporaneous perception of the accident. This element has been described by the Pennsylvania Superior Court as follows: “To recover the plaintiff must have observed the defendant traumatically inflicting the harm on the plaintiff’s relative, with no buffer of time or space to soften the blow.” Bloom v. Dubois Regional Med. Ctr., 597 A.2d 671, 682 (Pa. Super. Ct. 1991).

The facts regarding this claim as set forth in the complaint are as follows:
Plaintiff Cynthia Bates was the fiancée of the decedent. Every day when the decedent arrived at work he would telephone Plaintiff Bates. (Doc. 1, Compl. ¶ 67). On the day of the accident, Bates waited for the call, but it never came. (Id. ¶¶ 67-68). She used a smartphone application to locate the decedent’s cellular telephone. (Id. ¶ 68). The application displayed a map that indicated that the telephone, and hence the decedent, were located at the scene of the crash. (Id. ¶ 69). Plaintiff alleges that she “suffered direct and immediate emotional shock and distress as a result of his contemporaneous and sensory observance of the fatal collision through her iPhone.” (Id. ¶ 70). She has suffered “a direct emotional impact, including: severe fear, anxiety, depression, nightmares, nervousness, insomnia, and hysteria.” (Id. ¶ 72).

Despite the allegations of severe emotional distress, plaintiff cannot recover for negligent infliction of emotional distress. As noted above, to recover under this theory of liability, the plaintiff must have had a contemporaneous perception of the accident. Here, plaintiff did not witness the accident. She witnessed the aftermath of the accident in that at some point after the accident occurred, her smartphone indicated that the decedent’s automobile was stopped at the crash site. These alleged facts are insufficient to meet the requirement that the plaintiff have a “contemporaneous perception” of the accident. This case is analogous to the case of wife who receives a phone call from the hospital indicating that her husband has been injured in an automobile accident. See Armstrong v. Paoli Mem. Hosp., 633 A.2d 605, 615 (Pa. Super. Ct. 1993). In that situation, the wife does not have a cause of action for emotional distress because she did not witness the accident. Id. at 615. Similarly, in this case, the plaintiff has not established that she contemporaneously perceived the accident. She has not cited to any case law which holds that viewing the accident scene on a map on a phone meets the “contemporaneously” perceived requirement, and our research has uncovered none.

Thus, under Pennsylvania law, plaintiff did not “perceive” or witness the accident. At most, she observed the fact that her fiancée’s telephone was located at the crash site at some point after the accident happened. Although, no doubt plaintiff could be very upset by viewing the map on her telephone, it is not covered under the tort of negligent infliction of emotional distress. Accordingly, Count V of the complaint, negligent infliction of emotional distress, will be dismissed.2 Because Count V is the only cause of action asserted on behalf of Plaintiff Bates, she will be dismissed completely from the case.

II. Counts I, II, III and IV
*4 Next, the defendants challenge Counts I, II, III and IV as violating the pleading requirements set forth in Rule 8 of the Federal Rules of Civil Procedure. Rule 8 requires that a plaintiff provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” a standard which “does not require detailed factual allegations,” but a plaintiff must make “a showing, rather than a blanket assertion, of entitlement to relief that rises above the speculative level.” McTernan v. N.Y.C., 564 F.3d 636, 646 (3d Cir. 2009) (citations and internal quotations and quotation marks omitted). The “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

Defendants assert that Counts I through IV are comprised of well over one hundred “kitchen sink” or “shotgun” allegations. Not all of these allegations amount to viable claims supported by the facts and law. Defendants seek the dismissal of these claims and the inclusion only of claims to which they can readily respond. We will discuss each in turn.

A. Count 1
Count 1 of the complaint alleges Defendant St. Louis’s negligence consisted of, inter alia, the following:
a. Failing to maintain proper and adequate control of his Tractor Trailer;
…
d. Failing to clear his mirrors;
e. Failed to obey road signs;
…
g. Failing to pay proper attention while operating his Tractor Trailer on Interstate I-476 South;
h. Failing to take proper precautions in the operation of his Tractor Trailer so as to avoid the collisions that occurred;
i. Operating his Tractor Trailer in a negligent, careless and reckless manner without due regard for the rights and safety of Mr. Correa;
j. Failing to exercise due care and caution under all of the existing circumstances;
…
l. Failing to remain alert;
…
n. Violating the applicable rules, regulations and law pertaining to the safe and proper operation of motor vehicles and/or tractor trailers;
o. Failing to operate his Tractor Trailer in accordance with Federal Motor Carrier Safety
Regulations; p. Failing to properly control his Tractor Trailer in light of the circumstances then and there existing, including traffic patterns existing on the roadway;
q. Failing to make necessary and reasonable observations while operating his Tractor Trailer;
…
w. Violating both the written and unwritten policies, rules, guidelines and regulations of Power Pallet;
x. Failing to apprise himself of and/or abide by the Federal Motor Carrier Safety Regulations;
y. Failing to apprise himself of and/or abide by the regulations and laws pertaining to the operation of commercial vehicles;
…
ee. Acting with conscious disregard for the rights and safety of Mr. Correa;

(Doc. 1, Compl. ¶ 31).
Defendants argue that these allegations are broad and vague. They do not inform the defendants as to the factual claims against which they will need to defend. After a careful review, we disagree.

A complaint must provide the defendant fair notice of what the claim is and the grounds upon which it rests. Erickson v. Paradus, 51 U.S. 89, 93 (2007). The plaintiff need not “have to set out in detail the facts upon which a claim is based, but must merely provide a statement sufficient to put the opposing party on notice of the claim.” Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001). We find that a review of the allegations of Count I does provide the defendants with sufficient factual averments to put them on notice of the claims. While the complaint may not be specific with regard to, for example, what regulations, policies, rules, or guidelines were violated, such matters should become clear during discovery and the allegations need not be dismissed.

B. Count II
*5 Count II merely asserts vicariously liability as to Defendant St. Louis’s employer and repeats the same allegations. Defendants challenge the allegations for the same reasons they challenged the assertions in Count I. Because we found that Count I need not be dismissed we find that Count II need not be dismissed either.

C. Count III and IV
Counts III and IV of plaintiffs’ complaint include claims for negligent hiring/supervision/retention and negligent entrustment. Defendants assert that the allegations are so vague that it does not allow them to prepare a proper defense. After a careful review, we disagree.

While the complaint’s allegations are to a certain extent vague, we find that they are sufficient to overcome a motion to dismiss. For example, with respect to the negligent hiring/supervision/retention plaintiffs allege that the defendants were negligent in failing to properly train, monitor and/or supervise Defendant St. Louis. Also, defendants negligently hired and/or continued to employ Defendant St. Louis despite knowing that his violation of FMCSA hours rendered him unfit to safely operator a commercial vehicle, and despite his propensity for violating the Rules of the Road and FMCSR. (Doc. 1, Compl. ¶ 45). Additionally, with regard to negligent entrustment the complaint generally claims that Defendant Power Pallet was negligent in entrusting a tractor trailer to Defendant St. Louis on the day in question when it should have known that Defendant St. Louis had a propensity to violate the motor vehicle code and had a propensity to cause motor vehicle collisions. (Id. ¶ ¶ 53, 54). At this point in the litigation, it may not be possible for the plaintiffs to be more specific with regard to the allegations of negligent hiring/supervision/retention and negligent entrustment. As the case moves through discovery, however, these causes of action should become more focused for the plaintiffs as well as the defendants. Accordingly, this portion of the motion to dismiss will be denied.

III. Punitive damages
As part of their demand for damages, plaintiffs seek punitive damages against the defendants. Under Pennsylvania law, punitive damages “are awarded only for outrageous conduct, that is, for acts done with a bad motive or with reckless indifference to the interests of others.” Martin v. Johns-Manville Corp., 494 A.2d 1088, 1097-98 (Pa. 1985). Reckless indifference refers to a conscious disregard of a risk known to the defendant or a risk “so obvious that he must…have been aware of it, and so great as to make it highly probable that harm would follow.” Evans v. Phila. Transp. Co., 212 A.2d 440, 443 (Pa. 1965). In evaluating the appropriateness of a punitive damages claim, the Court must consider not only the offense itself, but also the circumstances surrounding it, including the wrongdoers’ motives and the relations between all the parties involved. Schwartz v. Rockey, 932 A.2d 885, 890 (Pa. 2007); see also Feld v. Merriam, 485 A.2d 742, 747 (Pa. 1984) (citing Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963)). “[T]o justify an award of punitive damages, the fact-finder must determine that the defendant acted with a culpable state of mind. Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. Ct. 2005).

Here, the plaintiff alleges that Defendant St. Louis drove recklessly, failing to take any different precautions, using inadequate lighting on his vehicle, and violating many regulations and laws relating to the operation of commercial vehicles. (Doc. 1, Compl. ¶¶ 31(a) – (gg)). Additionally, the complaint alleges that, inter alia, Defendant Power Pallet knew or should have known that entrusting the tractor trailer to Defendant St. Louis would likely cause harm to the motoring public. (Id. ¶ 57). These factual allegations could evince a reckless disregard to the rights of others and support a claim for punitive damages. Accordingly, we will not dismiss the claim for punitive damages.

Conclusion
*6 For the reasons set forth above, the defendants’ motion to dismiss will be granted in part and denied in part. The motion will be granted with regarding to Count V, negligent infliction of emotional distress. It will be denied in all other respects. An appropriate order follows.

BY THE COURT:
Date: August 9, 2019 s/ James M. Munley

JUDGE JAMES M. MUNLEY

United States District Court
All Citations
Slip Copy, 2019 WL 3765426

Footnotes

1
The Wrongful Death cause of action is listed in the complaint as “Count V.” This labeling is evidently a typographical error as it is in fact the sixth cause of action. We will, therefore, refer to it as “Count VI” and we will refer to Count VI, as Count VII.

2
Because we find that plaintiff did not witness the accident, we need not address the issue of whether a fiancée is a close enough relation to sustain a negligent infliction of emotional distress cause of action.