2021 WL 5762800

United States District Court, W.D. Oklahoma.
HANNAH NICHOLS, individually; A.N., a minor child, individually; G.N., a minor child, individually; Plaintiffs,
v.
JONATH GIPSON, individually; LOADTEX, INC., a foreign corporation; Defendants.
Case No. CIV-21-779-D
|
Filed 12/03/2021

ORDER
TIMOTHY D. DeGIUSTI Chief United States District Judge
*1 Before the court is Defendants’ Second Partial Motion to Dismiss for Failure to State a Claim [Doc. No. 11]. Plaintiffs have responded in opposition to the motion [Doc. No. 13], and the time for reply has passed. The matter is at issue.

BACKGROUND
This negligence action originally commenced in Oklahoma County District Court. Defendants removed the action to this Court based upon the existence of diversity jurisdiction. Plaintiffs seek to recover damages for injuries sustained from a motor vehicle accident involving a semi tractor-trailer unit driven by Defendant Jonath Gipson (“Gipson”). According to Plaintiffs, Gipson caused the accident “in attempting to make [a] negligent and/or reckless left turn in front of Plaintiffs’ vehicle[.]” Doc. No. 8, ¶ 24. At the time of the accident, Gipson was operating the semi tractor-trailer unit within the course and scope of his employment with Defendant, Loadtex Inc. (“Loadtex”). Id. at ¶ 16; see also Doc. No. 10 at ¶¶ 10, 27, 28, 33, 40.

In the Amended Complaint, Plaintiffs allege negligence and negligence per se claims against Gipson. They allege negligence, negligent entrustment, negligent hiring, training, supervision, and retention and negligence per se claims against Loadtex.1 Defendants move for dismissal under Fed. R. Civ. P. 12(b)(6) of the negligent entrustment claim and the negligent hiring, training, supervision, and retention claims. They also seek Rule 12(b)(6) dismissal of the negligence per se claims to the extent they are based upon alleged violations of the Federal Motor Carrier Safety Regulations (FMCSR) and the Commercial Driver’s License (CDL) Manual. Defendants assert the claims are factually and legally defective and fail to meet the federal pleading standard.2

STANDARD OF DECISION
“To survive a motion to dismiss [under Rule 12(b)(6)], a 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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a complaint “does not need detailed factual allegations,” it does require “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The factual allegations must be enough to “raise a right to relief above the speculative level.” Id.

DISCUSSION

I. Negligent Entrustment
*2 “A ‘claim for negligent entrustment exists when a person who owns or has possession and control of an automobile allows another driver to operate the automobile when the person knows or reasonably should know that the other driver is careless, reckless and incompetent, and an injury results therefrom.’ ” Johnson v. Loutzenhiser, Case No. CIV-20-704-D, 2020 WL 7327320, at *1 (W.D. Okla. Dec. 11, 2020) (quoting Green v. Harris, 70 P.2d 866, 868 (Okla. 2003). “Knowledge of the driver’s incompetence is a necessary component of a negligent entrustment claim.” Id. (citing Green and Sheffer v. Carolina Forge Co., 306 P.3d 544, 548 (Okla. 2013)).

In the Amended Complaint, Plaintiffs allege Loadtex “knew or should have known, or had reason to believe that [ ] Gipson was incompetent, careless and/or reckless at the time of the entrustment of the subject power unit as to create an undue risk of harm to others” and “had prior knowledge (actual and/or constructive) of the risk of entrusting the subject power unit to Gipson.” Doc. no. 8, ¶ 42. These allegations are, however, merely “labels and conclusions” that will not suffice to state a claim. See, Johnson, 2020 WL 7327320, at *1 (citing Twombly, 550 U.S. at 555). Setting aside these allegations, Plaintiffs have not alleged any facts related to Loadtex’s knowledge of Gipson’s incompetence, carelessness or recklessness. Consequently, the Court finds Plaintiffs have failed to adequately plead a claim for negligent entrustment against Loadtex, and Defendants’ motion with respect to that claim must be granted.

Having determined that dismissal of the negligent entrustment claim is warranted, the Court must consider whether Plaintiffs should be granted leave to amend to correct the specified deficiencies. “Ideally, if it is at all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief, the court should dismiss with leave to amend.” Johnson, 2020 WL 7327320, at *2 (quotations omitted). “However, leave to amend is not automatic and may be properly denied where an amendment would be futile.” Id. (citation omitted).

It appears that the deficiencies of the negligent entrustment claim are capable of being cured by amendment. At this stage, the Court cannot conclude that an amendment would be futile. The Court will therefore dismiss the negligent entrustment claim without prejudice and permit Plaintiffs to file a second amended complaint to cure the specified deficiencies of the negligent entrustment claim.

II. Negligent Hiring, Training, Supervision and Retention
An employer “may be held liable for negligence in hiring, supervising or retaining an employee.” N.H. v. Presbyterian Church (U.S.A.), 998 P.2d 592, 600 (Okla. 1999). A claim against an employer for negligent hiring, training, supervision, or retention is “based on the employee’s harm to a third party through employment.” Id. An employer is found liable if “at the critical time of the tortious incident[ ], the employer had reason to believe that the employee would create an undue risk of harm to others.” Id. Prior knowledge of the employee’s “propensity to commit the very harm for which damages are sought” is a necessary component of the negligent hiring, training, supervision, and retention claims. Id.

In the Amended Complaint, Plaintiffs allege Loadtex “had prior knowledge or should have known and/or had reason to believe that Gipson had a propensity to commit the very harm to which damages are sought by Plaintiffs.” Doc. no. 8, ¶ 49. Again, these allegations are merely “labels and conclusions” that will not suffice to state a claim. Setting aside these allegations, Plaintiffs have not alleged any facts related to Loadtex’s prior knowledge of Gipson’s propensity to commit the very harm for which damages are sought. Thus, the Court finds Plaintiffs have failed to adequately plead claims for negligent hiring, training, supervision, and retention against Loadtex, and Defendants’ motion with respect to the claim must be granted.

*3 While Plaintiffs may be able to cure the specified deficiencies, the Court concludes that leave to amend is not warranted. In their motion, Defendants assert the negligent hiring, training, supervision, and retention claims are superfluous given Loadtex’s concession of vicarious liability for any negligence attributed to Gipson. Plaintiffs represent in response that they are not asserting separate claims for negligent hiring, training, supervision, and retention. Doc. no. 13, ECF p. 4. According to Plaintiffs, those allegations “are nothing more than components of a negligent entrustment claim.” Id. Contrary to Plaintiffs’ representations, however, the Amended Complaint clearly alleges separate claims of negligent entrustment and negligent hiring, training, supervision, and retention. See Doc. No. 8, ¶¶ 42-46; ¶¶ 47-56. This Court has previously determined that “separate negligent hiring, training, and supervision claims are superfluous in a case where vicarious liability has been established through stipulation.” Sinclair v. Hembree & Hodgson Construction, L.L.C., Case No. CIV-18-938-D, 2020 WL 3965010, at *3 (W.D. Okla. July 13, 2020). Because Loadtex has admitted vicarious liability, the Court finds the negligent hiring, training, supervision, and retention claims are superfluous. Because any attempt to amend the negligent hiring, training, supervision, and retention claims would be futile,3 the Court finds leave to amend the claims should be denied. Therefore, Plaintiffs’ claims for negligent hiring, training, supervision, and retention by Loadtex will be dismissed with prejudice.

III. Negligence Per Se
For their negligence per se claims, Plaintiffs rely in part on Defendants’ alleged violations of the FMCSR, specifically, 49 C.F.R. § 392.2, and the CDL Manual, specifically, §§ 2.4, 2.4.1, 2.7, 2.7.6, 2.8 and 2.8.3. Defendants contend Plaintiffs’ negligence per se claims cannot be premised on violations of the FMCSR or the CDL Manual.

The Oklahoma Supreme Court has allowed a negligence per se claim based on violation of a federal regulation. See Howard v. Zimmer, Inc., 299 P.3d 463, 467-68, 472-73 (Okla. 2013). Nonetheless, the Court agrees with the Honorable Claire V. Eagan that 49 C.F.R. § 392.2 which provides: “Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated[,]” is “too vague to meet the positive objective standard test under Oklahoma … law” to support a negligence per se claim. Conway v. Lone Star Transporation, LLC, Case No. 19-CV-0658-CVE-FHM, 2020 WL 609750, at *5 (N.D. Okla. Feb. 7, 2020) (citing Smith v. Barker, 419 P.3d 327, 333 (Okla. Civ. App. 2017)). Thus, the Court finds Plaintiffs cannot rely upon a violation of § 392.2 to support the negligence per se claims.

Plaintiffs do not specifically address Defendants’ challenge to their claims with respect to the alleged violations of the CDL Manual. Pursuant to LCvR 7.1(g), the Court deems Defendants’ motion confessed as to that issue. Upon independent review, the Court finds dismissal of the negligence per se claims based upon alleged violations of the CDL Manual is warranted. The Court has not found any relevant authority recognizing the CDL Manual as having “the full force and effect of law.” Howard, 299 P.3d at 468 (citation omitted).

As it appears any amendment to the challenged negligence per se claims would be futile, Plaintiffs’ negligence per se claims to the extent they are based upon violations of the FMCSR, specifically, 49 C.F.R. § 392.2 and the CDL Manual, specifically, §§ 2.4, 2.4.1, 2.7, 2.7.6, 2.8 and 2.8.3., will be dismissed with prejudice.

CONCLUSION
Based upon the foregoing, the Court GRANTS Defendants’ Second Partial Motion to Dismiss [Doc. No. 11]. Plaintiffs’ “Fourth Cause of Action – Negligent Hiring, Training, Supervision, and Retention by Loadtex,” and Plaintiffs’ “Fifth Cause of Action – Negligence Per Se” to the extent based upon violations of the FMCSR, specifically, 49 C.F.R. § 392.2 and the CDL Manual, specifically, §§ 2.4, 2.4.1, 2.7, 2.7.6, 2.8 and 2.8.3, are DISMISSED WITH PREJUDICE. Plaintiffs’ “Third Cause of Action – Negligent Entrustment by Loadtex” is DISMISSED WITHOUT PREJUDICE.

Plaintiffs are GRANTED leave to file a second amended complaint to cure the specified deficiencies of the negligent entrustment claim against Loadtex within 14 days from the date of this Order. The second amended complaint shall not include the dismissed negligent hiring, training, supervision, and retention claims or the dismissed negligence per se claims based upon violations of the FMCSR and the CDL Manual. Defendants’ response to the second amended complaint shall be filed in accordance with the deadline established by the Federal Rules of Civil Procedure. If Plaintiffs do not file a second amended complaint within 14 days from the date of this Order, this action shall proceed on the claims in the Amended Complaint which have not been dismissed by this Order.

*4 IT IS SO ORDERED this 3rd day of December, 2021.

All Citations
Slip Copy, 2021 WL 5762800

Footnotes

1
The negligence and negligence per se claims against Loadtex are based upon the doctrine of respondeat superior.

2
Defendants filed their Rule 12(b)(6) motion after they filed their answer to Plaintiffs’ Amended Complaint. See, Doc. No. 10. Generally, if a defendant makes a Rule 12(b)(6) motion after filing the answer, the motion should be treated as a motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 n. 2 (10th Cir. 2002) (citing Fed. R. Civ. P. 12(c) and 12(h)(2)). However, in keeping with the parties’ designation, the Court refers to the motion as a Rule 12(b)(6) motion. Id. The Court applies the same standard when evaluating Rule 12(b)(6) and Rule 12(c) motions. Id.

3
“A proposed amendment is futile if the complaint, as amended, would be subject to dismissal.” Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008).

2021 WL 5762094

United States District Court, W.D. Arkansas, Texarkana Division.
SAMANTHA EDWARDS, Individually, and as SPECIAL ADMINISTRATRIX of the ESTATE of WILLIAM BOBBY WRAY EDWARDS, Deceased, and ARLEIGH GRAYCE EDWARDS, Deceased; and as PARENT and NEXT FRIEND for PEYTON HALE, a Minor PLAINTIFFS
v.
ERIC JAMES CORNELL THOMAS and MCELROY TRUCK LINES, INC. DEFENDANTS
Civil No. 4:19-cv-4018
|
Filed 12/03/2021

ORDER
Susan O. Hickey Chief United States District Judge
*1 Before the Court is Plaintiffs’ Motion for Partial Summary Judgment. (ECF No. 153). Defendants have filed a response (ECF No. 170), and Plaintiffs have filed a reply. (ECF No. 183). The Court finds the matter ripe for consideration.

I. BACKGROUND
This wrongful death and survival action arose out of an August 2, 2018, two-vehicle accident that took place in Howard County, Arkansas. Defendant Eric James Cornell Thomas failed to obey a stop sign while driving a tractor trailer in the course and scope of his employment with Defendant McElroy Truck Lines, Inc. The tractor Mr. Thomas was operating collided with a truck driven by William Bobby Wray Edwards, in which Mr. Edwards’ daughter, Arleigh, and stepson, Peyton, were riding. Arleigh was ejected from the cab of the pickup during the accident. Mr. Edwards and Arleigh were killed as a result of the accident.

At the time of the collision, Arleigh was two years old and weighed less than sixty pounds. Although a child safety seat was located in the pickup on the date of the accident, it is undisputed that Arleigh was not restrained in any child passenger safety seat or any other passenger restraint system at the time of the collision. Mr. Edwards was also not wearing any passenger restraint device at the time of the accident.

For the purposes of this civil action, Defendant Thomas admits he was negligent in running the stop sign and that his negligence was the cause of the collision between the tractor trailer and the pickup. Defendant McElroy admits the same and admits it is vicariously liable for any injuries proximately caused by Mr. Thomas’ negligence. However, both Defendants allege fault on the part of Mr. Edwards for failing to secure Arleigh in a child passenger safety seat as a defense in this action. Defendants seek to offer expert testimony at trial showing that if Arleigh had been properly restrained in a child safety device, she would not have been ejected from the pickup and would have survived the incident.

Plaintiffs previously filed a Motion for Summary Judgment arguing that Defendants’ apportionment of fault defense is barred by Arkansas’s Child Passenger Protection Act (“CPPA”), which prohibits parties from offering the failure to provide or use a child safety restraint as evidence of comparative or contributory negligence. (ECF No. 60). The Court denied the motion on the grounds that there was a genuine issue of material fact regarding whether Arleigh weighed sixty pounds, which would determine whether she was required to be secured in a child safety seat under the CPPA.1 (ECF No. 86). However, the Court also noted that “if subsequent evidence shows that Arleigh weighed less than sixty pounds at the time of the incident, the Court is unlikely to let Defendants argue at trial for apportionment of fault[.]” (ECF No. 86). It is now undisputed that Arleigh weighed less than sixty pounds. (ECF No. 171, ¶ 3).

*2 In the Order denying Plaintiffs’ original summary judgment motion, the Court declined to rule on Defendants’ separate argument that the CPPA was unconstitutional under Arkansas law. Instead, the Court certified the following question to be answered by the Arkansas Supreme Court:
Under the facts of this case, whether Ark. Code Ann. § 27-34-106(a) violates the separation-of-powers doctrine under article 4, section 2, and Amendment 80, section 3, of the Arkansas Constitution.
(ECF No. 93). The Arkansas Supreme Court held that the CPPA was not unconstitutional. See Edwards v. Thomas, 625 S.W.3d 226 (Ark. 2021).

After the Arkansas Supreme Court rendered its decision, Defendants filed an Amended Answer that again alleged defenses premised on the fact that Arleigh was not restrained in a child safety device at the time of the accident. Defendants specifically present the following defenses: (1) Mr. Edwards is at fault for Arleigh’s death because he failed to secure Arleigh in a child safety restraint; (2) the failure to secure Arleigh in a child safety restraint was the proximate cause of Arleigh’s death; and (3) claims relating to Arleigh’s death are barred by the doctrine of failure to mitigate damages because Arleigh was not properly secured in a child safety restraint. (ECF No. 131). Plaintiffs have again moved for summary judgment with respect to each defense on the grounds that the CPPA precludes Defendants from introducing evidence that Arleigh was not restrained in a child safety device at the time of the accident.

II. STANDARD
The standard for summary judgment is well established. When a party moves for summary judgment, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). This is a “threshold inquiry of … whether there is a need for trial—whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because they reasonably may be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is material only when its resolution affects the outcome of the case. Id. at 248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.

In deciding a motion for summary judgment, the Court must consider all the evidence and all reasonable inferences that arise from the evidence in a light most favorable to the nonmoving party. Nitsche v. CEO of Osage Valley Elec. Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then demonstrate the existence of specific facts in the record that create a genuine issue for trial. Krenik, 47 F.3d at 957. However, a party opposing a properly supported summary judgment motion “may not rest upon mere allegations or denials … but must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.

III. DISCUSSION
*3 It is undisputed that the Court, sitting in diversity, must apply the substantive law of Arkansas to this case. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The Eighth Circuit has held that the CPPA is “a classic example of the type of substantive rule of law binding upon a federal court in a diversity case.” Potts v. Benjamin, 882 F.2d 1320, 1324 (8th Cir. 1989). Accordingly, the Court will first outline the CPPA and the Arkansas Supreme Court decision regarding its constitutionality before turning to whether the CPPA entitles Plaintiffs to judgment on Defendants’ child safety restraint defenses as a matter of law.

A. CPPA
In general, the CPPA places a duty on motor vehicle operators to secure children less than six years of age and who weigh less than sixty pounds in a child passenger safety seat. See Ark. Code Ann. § 27-34-104. However, the CPPA also states that “[t]he failure to provide or use a child passenger safety seat shall not be considered, under any circumstances, as evidence of comparative or contributory negligence, nor shall failure be admissible as evidence in the trial of any civil action with regard to negligence.” Ark. Code Ann. § 27-34-106(a). In addition to finding section 106(a) constitutional, the Arkansas Supreme Court specifically held that “section 27-34-106(a) is a legislative pronouncement that failing to use a child safety seat is not a negligent act and therefore cannot be used to compare the injured plaintiff’s fault to the fault of the defendant. Edwards, 625 S.W.3d at 229. Additionally, the Eighth Circuit has also held that the CPPA “may [not] be skirted by claiming that” the failure to use a child safety restraint “is the ‘failure to mitigate damages’ rather than contributory negligence.” Potts, 882 F.2d at 1324. The court in Potts specifically observed that by passing the CPPA, the Arkansas legislature adopted the policy that an apportionment of damages defense is inapplicable within the context of a failure to use child safety restraints. Id. Accordingly, courts should afford that policy “proper scope by refusing to permit a defense which, however denominated, would … undermine[ ] it.” Id. at 1324-25.

Defendants acknowledge that the CPPA forecloses their ability to rely on child safety restraint nonuse to prove comparative fault.2 However, Defendants maintain that the CPPA does not bar them from introducing evidence of child safety seat nonuse to support their proximate cause and failure to mitigate damages defenses. The Court will consider each defense in turn.

1. Proximate Cause
In a negligence case, plaintiff must prove that a defendant’s negligent act was the proximate cause of plaintiff’s injuries. See Scott v. Central Arkansas Nursing Centers, Inc., 278 S.W.3d 587, 595 (Ark. 2008). “Proximate cause is defined as ‘that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ ” Ouachita Wilderness Institute, Inc. v. Mergen, 947 S.W.2d 780, 785 (Ark. 1997) (quoting Craig v. Traylor, 915 S.W.2d 257, 260 (Ark. 1996)). “Although proximate causation is usually a question of fact for a jury, where reasonable minds cannot differ, a question of law is presented for determination by the court.” Neal v. Sparks Regional Medical Center, 422 S.W.3d 116, 121 (Ark. 2012).

*4 Defendants oppose summary judgment on the grounds that there is a disputed issue of material fact regarding whether the lack of a child safety restraint proximately caused Arleigh’s death. Defendants acknowledge that Mr. Thomas’s negligence caused the collision out of which Arleigh was ejected from the vehicle driven by Mr. Edwards. However, Defendants maintain that Arleighs’ lack of a child safety restraint was the proximate cause of her death because, but for the lack of a child safety restraint, Arleigh would have likely survived the collision. Indeed, Defendants specifically argue that Mr. Edwards chose not to secure Arleigh in a child safety device and should have known that restraining Arleigh could save her from serious injury or death in the event of a car accident.

“The original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is in itself sufficient to stand as the cause of the injury.” State Farm Mut. Auto. Ins. Co. v. Pharr, 808 S.W.2d 769, 771 (Ark. 1991). “The intervening cause must be such that the injury would not have been suffered except for the act, conduct, or effect of the intervening cause totally independent of the acts or omissions constituting the primary negligence.” Id. “The mere fact that other causes intervene between the original act of negligence and the injury for which recovery is sought is not sufficient to relieve the original actor of liability if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable.” Id.

Plaintiffs argue that they are entitled to judgment on Defendants’ proximate cause defense because Defendants have admitted that Mr. Thomas’ negligence caused the collision in which Arleigh was killed, and there is no admissible evidence showing that any act or omission other than that collision caused Arleigh’s death. The Court notes that Defendants’ proximate cause defense is grounded entirely on evidence that Arleigh was not secured in a child safety restraint at the time of the accident. Therefore, Plaintiffs’ argument on summary judgment turns entirely on whether evidence of child safety restraint nonuse is admissible to support a proximate cause defense under the CPPA. Indeed, if such evidence is admissible, whether the absence of a child safety restraint proximately caused Arleigh’s death is certainly a question of fact for the jury. Accordingly, Plaintiffs are only entitled to summary judgment on Defendants’ proximate cause defense if the CPPA renders Defendants’ evidence regarding Arleigh’s lack of a child safety restraint inadmissible.

The Court finds that, based on the facts presented, evidence that Arleigh was not restrained in a child safety seat is inadmissible to show that the lack of such a safety device proximately caused Arleigh’s death. Although denominated as a proximate cause defense, the evidence upon which Defendants attempt to create a genuine issue of material fact in support of that defense places blame for Arleigh’s death directly on Mr. Edwards and his decision not to secure Arleigh in a child safety device. Indeed, Defendants specifically argue that the following establishes a genuine issue of material fact regarding their proximate cause defense: “(1) Bobby Edwards knew that Arleigh was not secured in her childseat shortly before the accident; (2) he chose to allow Arleigh to remain unsecured for what would have been an 8-mile drive; and (3) based on recent experience with another accident, he would have known that restraining Arleigh in a childseat could save her from serious injury or death in a car accident.” (ECF No. 170, pg 13). Without more, the Court cannot discern any meaningful distinction between Defendants’ proximate cause defense and one which apportions fault upon Mr. Edwards because both attribute Arleigh’s death as being caused by, or the fault of, Mr. Edwards’ failure to secure Arleigh in a child safety restraint.

*5 As noted above, the Eighth Circuit has specifically held that a defendant cannot present a defense, “however denominated,” which undercuts the policy articulated by the Arkansas legislature that the failure to use a child safety seat is insufficient grounds to apportion fault upon a plaintiff. See Potts, 882 F.2d at 1324-25. Defendants’ argument that Arleigh’s death was proximately caused by Mr. Edwards’ failure to secure Arleigh in a child safety restraint apportions fault to Mr. Edwards for Arleigh’s death, regardless of whether that apportionment of fault is denominated as the “proximate cause” rather than being “at fault” for her death.

Based on the forgoing, evidence that Arleigh was not restrained in a child safety device at the time of the accident is inadmissible to show that the lack of a child safety restraint proximately caused Arleigh’s death. The fact that Arleigh was not situated in a child safety restraint at the time of the collision is the sole grounds upon which Defendants oppose Plaintiffs’ summary judgment motion. Therefore, there is no admissible evidence upon which Defendants can demonstrate a genuine issue of material fact with regard to their proximate cause defense and Plaintiffs are entitled to judgment on this defense as a matter of law. Accordingly, Plaintiffs’ summary judgment motion is granted with regard to Defendants’ proximate cause defense.3

2. Failure to Mitigate Damages
Defendants also argue that the CPPA does not apply to its defense that Arleigh’s lack of a child safety device mitigates Plaintiffs’ damages to such a degree that Defendants cannot be held liable for those damages. However, as noted above, the Eighth Circuit has specifically held that “§ 27-34-106(a) may [not] be skirted by claiming that the defense interposed is the ‘failure to mitigate damages’ rather than contributory negligence.” Potts, 882 F.2d at 1324. Therefore, evidence that Arleigh was not restrained in a child safety device is inadmissible to show that Plaintiffs failed to mitigate their damages related to Arleigh’s death. Because Defendants’ failure to mitigate damages defense is premised entirely on Arleigh’s lack of a child safety restraint, there is no admissible evidence upon which Defendants can show a genuine issue of material fact with regard to Defendants’ failure to mitigate damages defense. Accordingly, Defendants are entitled to judgment on Defendants’ failure to mitigate damages defense as a matter of law.

IV. CONCLUSION
The CPPA prevents Defendants from introducing evidence which apportions fault to Plaintiffs for Arleigh’s death based on Mr. Edwards’ failure to restrain Arleigh in a child safety device. Defendants’ defenses of comparative fault, proximate cause, and failure to mitigate damages are all premised on evidence that Mr. Edwards failed to restrain Arleigh in a child safety device. Accordingly, Plaintiffs are entitled to judgment on these defenses as a matter of law.

Based on the forgoing, Plaintiffs’ Renewed Motion for Partial Summary Judgment (ECF No. 153) is GRANTED.

IT IS SO ORDERED, this 3rd day of December, 2021.

All Citations
Slip Copy, 2021 WL 5762094

Footnotes

1
See Ark. Code Ann. § 27-34-104(b), which states that “[a] child who is less than six (6) years of age and who weighs less than sixty pounds (60 lbs.) shall be restrained in a child passenger safety seat properly secured to the vehicle.”

2
Because Defendants specifically claim comparative fault in their Amended Answer, the Court finds that, based on Defendants’ concession, Plaintiffs are entitled to summary judgment on Defendants’ comparative fault defense as a matter of law.

3
The Court notes that nothing in this ruling should be construed as a ruling on Plaintiffs’ affirmative burden to prove that Mr. Thomas’ negligence was itself the proximate cause of the damages alleged.