2021 WL 1698743

United States District Court, E.D. Missouri, Southeastern Division.
DEANGELA FROST and JOHN SOTOFALCON, Plaintiffs,
v.
LUIS VALDEZ-GONZALEZ, et al., Defendants.
No. 1:18-cv-0088-SNLJ
|
04/29/2021

STEPHEN N. LIMBAUGH, JR., SENIOR UNITED STATES DISTRICT JUDGE

MEMORANDUM and ORDER
*1 Plaintiffs filed this lawsuit against defendants seeking damages for injuries sustained as the result of a motor vehicle accident. Plaintiffs named as defendants the driver of the tractor-trailer with which they collided, Luis Valdez-Gonzalez, and TMB Carriers, which employed defendant Valdez-Gonzalez. Although this lawsuit was filed in 2018, plaintiffs did not serve defendant Valdez-Gonzalez until 2020. Thus, the first Case Management Order was not entered in this case until April 2020.

Plaintiffs have since obtained new counsel. The new attorneys now seek to file an Amended Complaint adding new claims and theories. The original complaint included four counts — one count of negligence against defendant Valdez-Gonzalez on behalf of each plaintiff, and one count of respondeat superior against defendant TMB Carriers on behalf of each plaintiff.

The First Amended Complaints seeks to add the following allegations of negligence to Counts I and III against defendant Valdez-Gonzalez: Operating the tractor-trailer without adequate training and experience; operating the tractor-trailer when not properly qualified to do so; driving while tired and/or fatigued in violation of 49 CFR 392.3; and driving while under the unsafe side-effects of prescription medication.

The First Amended Complaint also seeks to add Counts V-VIII, all against defendant TBM Carriers: Count V–Independent Negligence against Defendant TBM Carriers; Count VI –Direct Negligence against Defendant TBM Carriers based on negligent hiring/retention; Count VII–Direct Negligence against Defendant TBM Carriers based upon negligent training; and Count VIII–Direct Negligence against Defendant TBM Carriers based upon negligent supervision.

Defendants oppose the motion to file the amended complaint.

As for the addition of counts against defendant TBM Carriers, under Missouri law, “[t]here are at least three distinct theories under which an employer might be held to have derivative or dependent liability for the conduct of an employee.” State ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. banc 1995) (citing Ransom v. Adams Dairy Co., 684 S.W.2d 915, 920 (Mo. App. E.D. 1985)). “Derivative or dependent liability means that one element of imposing liability on the employer is a finding of some level of culpability by the employee in causing injury to a third party.” Id.

However, “[t]he majority view is 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.” Id. at 826 (citations omitted). “[I]t is improper for a plaintiff to proceed against an owner of a vehicle on the independent theory of imputed negligence where respondeat superior is admitted.” Id. “Vicarious liability or imputed negligence has been recognized under varying theories, including agency, negligent entrustment of a chattel to an incompetent, conspiracy, the family purpose doctrine, joint enterprise, and ownership liability statutes.” Id.

*2 Defendant TBM Carriers has already admitted that defendant Valdez-Gonzalez was an employee of defendant TBM Carriers and was operating in the scope and course of his employment with defendant TBM Carriers at the time of this motor vehicle accident. The additional counts against TBM Carriers are therefore unnecessary, particularly because plaintiffs do not seek punitive damages from any party. See id. at 827.

Plaintiffs argue the additional allegations against defendant Valdez-Gonzalez should be allowed because he does not speak English and was operating without a valid Commercial Drivers License. The police report attached to plaintiffs’ complaint, however, shows defendant Valdez-Gonzalez possessed a valid CDL issued by the Country of Mexico. Defendant also had a valid Department of Transportation number.

Regardless, this and other allegations against defendant Valdez-Gonzalez could have been brought at the start of the lawsuit. Plaintiffs fail to address why they believe they should be permitted to add allegations of defendant Valdez-Gonzalez driving while tired and/or fatigued in violation of 49 C.F.R. § 392.3 and/or driving while under the unsafe side-effects of prescription medication. Defendants suggest these allegations are being added based on nothing more than speculation or an attempt to harass, annoy, embarrass, or intimidate defendants. Ultimately, plaintiffs do not bring punitive damages claims against the defendants, and they do not need these allegations added to the complaint for purposes of their claims.

And, critically, plaintiffs did not file a reply brief refuting any of the above reasons to deny their motion to amend their complaint nearly three years after the lawsuit was filed. The deadline for filing an amended complaint was April 30, 2020. Plaintiffs suggest that the entire delay can be blamed on the fact that service on defendant Valdez-Gonzalez was difficult because he lived in Mexico, but there was zero activity on the docket sheet in this case for nearly a year after the matter was removed. Defendant TMB Carriers has admitted its respondeat superior liability, the case has progressed through a year of discovery, and this Court is unwilling to add superfluous counts and claims that would further delay its progress.

Accordingly,

IT IS HEREBY ORDERED that plaintiffs’ motion to file first amended complaint [#61] is DENIED.

Dated this 29th day of April, 2021.

STEPHEN N. LIMBAUGH, JR.

SENIOR UNITED STATES DISTRICT JUDGE
All Citations
Slip Copy, 2021 WL 1698743

2021 IL App (3d) 200141-U
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appellate Court of Illinois, Third District.
EMMANUEL GUYON, Plaintiff-Appellant,
v.
JUAN HERNANDEZ, Individually and as President of LA CASA JALISCO, an Illinois Corporation, Defendant-Appellee.
Appeal No. 3-20-0141
|
Order filed May 13, 2021
Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois.
Circuit No. 19-L-86
The Honorable Eugene P. Daugherity, Judge, presiding.

ORDER
PRESIDING JUSTICE McDADE delivered the judgment of the court.
*1 ¶ 1 Held: The circuit court did not err when it granted the defendant’s motion to dismiss the plaintiff’s negligence complaint.

¶ 2 The plaintiff, Emmanuel Guyon, sued defendant, Stephen Dunning, and defendant-appellant, Juan Hernandez, after Dunning caused property damage to Guyon’s building. Hernandez filed a motion to dismiss counts III and IV of the complaint, which the circuit court granted. On appeal, Guyon argues that the court erred when it granted Hernandez’s motion to dismiss. We affirm.

¶ 3 I. BACKGROUND
¶ 4 On June 12, 2019, Guyon filed a four-count civil complaint against Dunning and Hernandez based on property damage caused to Guyon’s law office building. The complaint alleged that on May 7, 2018, at approximately 9:11 p.m., an intoxicated Dunning drove his pickup truck over parking blocks, off the parking lot of La Casa Jalisco, Inc., and into the west wall of Guyon’s law office building. Counts I and II of the complaint pertained to Dunning and are not at issue in this appeal.

¶ 5 Count III of the complaint alleged, inter alia, that Hernandez was negligent in that he failed to erect a barrier and arrange the parking spaces on his property to prevent “unauthorized encroachments of vehicles invited to his restaurant” onto Guyon’s property. Count IV of the complaint largely reasserted the same allegations but claimed that Hernandez was negligent in his capacity as owner of La Casa Jalisco, Inc.

¶ 6 On September 23, 2019, Hernandez filed a motion to dismiss counts III and IV of the complaint pursuant to section 2-615. Hernandez’s motion alleged, inter alia, that the complaint failed to plead a legally cognizable duty extending from Hernandez to Guyon.

¶ 7 On November 20, 2019, the circuit court held a hearing on Hernandez’s motion to dismiss. After hearing arguments, the court noted that the two counts filed against Hernandez were negligence-based, not trespass-based. The court found that the complaint failed to plead a legally cognizable duty running from of Hernandez to Guyon, in part because “the imposition of a general duty to anticipate and guard against the negligence of others would place an intolerable burden on society.” The court also found that proximate cause was lacking in the complaint. Accordingly, the court dismissed counts III and IV with prejudice.

¶ 8 After his motion for reconsideration was denied, Guyon appealed.

¶ 9 II. ANALYSIS
¶ 10 Initially, we note that Hernandez filed a motion to strike certain materials Guyon included on appeal. None of the materials to which Hernandez objects were a part of the record before the circuit court. Accordingly, we grant Hernandez’s motion to strike. See, e.g., Coley v. St. Bernard’s Hospital, 281 Ill. App. 3d 587, 594 (1996).

¶ 11 On appeal, Guyon argues that the circuit court erred when it granted Hernandez’s motion to dismiss.

¶ 12 A motion to dismiss brought pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2018)) claims that facial defects in the complaint render it legally insufficient and subject to dismissal. Id.; Marshall v. Burger King Corp., 222 Ill. 2d 422, 429 (2006). When reviewing the legal sufficiency of a complaint, “we accept as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts” and view the complaint’s allegations in the light most favorable to the plaintiff. Id. A complaint should not be dismissed unless it is clear that the plaintiff can prove no set of facts that would entitle him to judgment. Id. We review a circuit court’s decision on a section 2-615 motion to dismiss de novo. Id.

*2 ¶ 13 Guyon obfuscates the issue in his brief, advancing several irrelevant and inapplicable arguments. The circuit court remained focused on the law and ruled in part that the complaint failed to plead the existence of a legally cognizable duty from Hernandez to Guyon. Our analysis begins there.

¶ 14 “To state a cause of action for negligence, a complaint must allege facts that establish the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach.” Marshall, 222 Ill. 2d at 430. Regarding the duty element, our supreme court has stated that whether a duty exists depends on: (1) the reasonable foreseeability of the injury; (2) the likelihood of the injury; (3) the magnitude of the burden guarding against the injury; and (4) the consequences of placing that burden on the defendant.” Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 18. Policy considerations within these factors and the weight each factor holds are important to the determination of whether two individuals stand in a duty-bound relationship. Id. The determination of whether a duty exists is contextual. Id.

¶ 15 In Ziemba v. Mierzwa, 142 Ill. 2d 42 (1991), the plaintiff was injured when the bicycle he was riding on a road collided with a dump truck that was exiting a driveway owned by the defendant. Id. at 45. The plaintiff sued the defendant, in part, for negligence based on the condition of the defendant’s property. Id. The plaintiff claimed that foliage on the defendant’s property blocked his view of the driveway from the road on which he was riding. Id. In examining the duty element, the Ziemba court stated:
“We *** hold that under these facts defendant could not have reasonably foreseen that a driver would exit his driveway without first ascertaining whether any traffic was approaching on Riverdale Road. [Citation.] Rather, defendant had a right to expect that the truck driver would check for oncoming traffic before entering Riverdale Road. [Citation.] Because the condition on defendant’s land posed no danger to plaintiff absent the independent, negligent act of the driver, we find the accident in this case was not a reasonably foreseeable result of the condition on defendant’s land.” Id. at 52.

¶ 16 The Ziemba court further stated that even if the risk of the accident occurring was reasonably foreseeable, Illinois law was clear that “ ‘[the] imposition of a general duty to anticipate and guard against the negligence of others would place an intolerable burden on society.’ ” Ziemba, 142 Ill. 2d at 53 (quoting Dunn v. Baltimore & Ohio Railroad Co., 127 Ill. 2d 350, 366 (1989)). Imposing a duty on the property owner in that case would have required him to anticipate and forestall the negligent of the truck driver, which was “a considerably higher burden than guarding against dangers created solely by conditions on his land.” Id.

¶ 17 In Abdo v. Trek Transportation Co., Inc., 221 Ill. App. 3d 493 (1991), the plaintiff’s decedent was killed when his vehicle struck the flatbed trailer of a truck that was making a delivery to a facility owned by a different company. Id. at 496. The plaintiff sued the facility owner for negligence, alleging that it “had the duty to insure that deliveries to and pickups from its facility were made in a safe manner[.]” Id. at 495. The Abdo court noted that the plaintiff was attempting to impose a duty on the facility owner to ensure that its invitees used the ingress and egress in a reasonably safe manner. Id. at 497. In other words, the plaintiff was attributing the defendant’s liability “not to the foreseeability of an injury resulting from a condition of a landowner’s property, but rather resulting from the alleged negligent actions of another.” Id.

*3 ¶ 18 In examining the duty element, the Abdo court found that due to certain conditions of the facility owner’s property, it was reasonably foreseeable that the driver would violate his statutory duties not to obstruct traffic when using the property’s ingress and egress. Id. at 499. However, the court’s duty analysis did not end there. Rather, the Abdo court examined whether the facility owner was in the best position to prevent the plaintiff’s decedent’s injury and whether imposing such a duty would place an undue burden on the facility owner. Id. at 500.

¶ 19 The Abdo court concluded that the ultimate responsibility for the plaintiff’s decedent’s injuries, just like the plaintiff’s injuries in Ziemba, was the negligence of a third party. Id. The court found the trucking company and its driver were in the best position to prevent the plaintiff’s decedent’s injuries, not the facility owner. Id. Accordingly, the court ruled that the plaintiff failed to plead a legally cognizable duty. Id. 500-01.

¶ 20 In this case, Guyon essentially claims that Hernandez had a duty to maintain his property in such a fashion to prevent the trespass of Hernandez’s invitees onto Guyon’s property. However, just like the situation in Ziemba, the condition of Hernandez’s property—the parking lot that utilized parking blocks—posed no danger to Guyon absent the independent, negligent act of Dunning, and the damage caused to Guyon’s building was not reasonably foreseeable. See Ziemba, 142 Ill. 2d at 52. Indeed, in the decades Guyon and Hernandez had been neighbors, no such incident had previously occurred. Moreover, even if it were reasonably foreseeable, the magnitude of the burden required to guard against the occurrence of such an unlikely event would clearly be intolerable. See CSX Transportation, Inc., 2012 IL 110662, ¶ 18. Under these circumstances, we hold that the circuit court did not err when it found that the complaint had failed to plead a legally cognizable duty from Hernandez to Guyon. Accordingly, we hold that the court did not err when it dismissed counts III and IV with prejudice. See Marshall, 222 Ill. 2d at 429.

¶ 21 III. CONCLUSION
¶ 22 The judgment of the circuit court of La Salle County is affirmed.

¶ 23 Affirmed.

Justices Holdridge and Schmidt concurred in the judgment.
All Citations
Not Reported in N.E. Rptr., 2021 IL App (3d) 200141-U, 2021 WL 1924149