United States District Court for the Middle District of Pennsylvania

April 20, 2022, Decided; April 20, 2022, Filed

No. 4:21-CV-01609

Reporter

2022 U.S. Dist. LEXIS 72748 *

PATRICIA M. KOZAK and BRIAN D. KOZAK, Plaintiffs, v. EDWARD J. KLIKUSZEWSKI and BARLOW TRUCKING LINES, Defendants.

Core Terms

Trucking, allegations, motion to dismiss, claim for punitive damages, Regulations, negligence per se claim, reckless conduct, alleged facts, Recklessness, assertions, conclusory, exceeding, traveling, driving

Counsel:  [*1] For Patricia M. Kozak, Brian D. Kozak, Plaintiffs: Andrew R Rehmeyer, LEAD ATTORNEY, Rehmeyer & Allatt, State College, PA.

For Edward J. Klikuszewski, Barlow Trucking Lines, Defendants: Wade D. Manley, Johnson, Duffie, Stewart & Weidner, Lemoyne, PA.

Judges: Matthew W. Brann, Chief United States District Judge.

Opinion by: Matthew W. Brann

Opinion

MEMORANDUM OPINION

Edward Klikuszewski and Barlow Trucking Lines have moved to dismiss parts of Patricia and Brian Kozaks’ Complaint, which alleges that Klikuszewski and Barlow Trucking’s negligent and reckless conduct caused the parties’ car accident. The Kozaks’ Complaint, like many others in this area of law, bumps up against the outer bounds of our modern pleading standard. But for the reasons detailed below, it is sufficient. The Defendants’ motion is therefore denied.

I. THE ALLEGED FACTS

On December 18, 2019, Patricia and Brian Kozak were traveling west on Interstate 80 in White Deer Township, Pennsylvania.¹ When traffic slowed due to snow squall, Edward Klikuszewski, who was driving a semi-trailer for Barlow Trucking Lines, merged into their lane, hooking their Chevy Suburban, and dragging it until it crashed into a disabled vehicle in the median—which left the couple [*2]  with substantial, life-threatening injuries.² The Kozaks allege that this accident occurred because the ill-trained and ill-supervised Klikuszewski was distracted, traveling too fast for conditions, and driving while fatigued in violation of federal hours-of-service regulations.³

II. THE MOTION TO DISMISS STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint, in whole or in part, if the plaintiff has failed to “state a claim upon which relief can be granted.” Following the landmark decisions Bell Atl. Corp. v. Twombly⁴ and Ashcroft v. Iqbal,⁵ “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”⁶ In its assessment, the Court must “accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to [the plaintiff].”⁷ Still, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.”⁸ “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”⁹

III. ANALYSIS

A. The Kozaks’ Recklessness [*3]  and Punitive Damages Claims

Barlow Trucking and Klikuszewski first move to dismiss the Kozaks’ claim for punitive damages and to strike their allegations of conduct exceeding mere negligence.¹⁰ Relying on the various pleading standard cases and Elmi v. Kornilenko,¹¹ the Defendants contend that the Kozaks’ allegations of willful, wanton, or reckless conduct is conclusory, devoid of factual support, and inadequate to support a claim for punitive damages.¹² As “[r]eckless claims in tort suits are, in a way, claims for punitive damages,” I will consider these assertions together.¹³

The fate of these twin claims depends on the defendant’s state of mind. To warrant punitive damages, plaintiffs must show that the defendant’s conduct was “outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others”;¹⁴ and this in turn requires showing that the defendant acted or intentionally failed to act, creating an “unreasonable risk of physical harm to another.”¹⁵ Because of this initially unknowable quality’s centrality to these claims, it has been the practice of this Court and “the weight of authority in our circuit” to refrain from dismissing them at the pleading [*4]  stage.¹⁶

I see no reason to depart from this approach here.¹⁷ The Defendants’ motion to dismiss the Kozaks’ claim for punitive damages and strike the allegations of conduct exceeding negligence is therefore denied.

B. The Kozaks’ Negligence Per Se Claims Based on Alleged Violations of the Federal Motor Carrier Safety Regulations

Barlow Trucking and Klikuszewski also move to dismiss the Kozaks’ claims that they violated the Federal Motor Carrier Safety Regulations Act. In making out negligence per se claims under this Act, the Kozaks assert that Klikuszewski lacked requisite skills, was tired, had driven too many hours, and failed to follow basic rules of the road—deficiencies that Barlow Trucking allegedly knew, or should have known about, and then corrected.¹⁸ The Defendants argue that these allegations are simply conclusions.¹⁹ But the Kozaks have done enough. They allege facts showing that the truck’s lane merger violated the statute; and their further assertions that Klikuszewski, through the negligence of his employer, was undertrained and overworked have as much of a basis as any plaintiff could have at this early stage in the litigation. As a result, the Defendants’ motion [*5]  on this ground is denied as well.

IV. CONCLUSION

It is more likely than not that the Kozaks’ case against Barlow Trucking and Klikuszewski amounts to nothing more than negligence. But at this pre-discovery stage, it is too soon to prevent the Kozaks from trying to uncover something more.

An appropriate Order follows.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

ORDER

In accordance with the accompanying Memorandum Opinion, IT IS HEREBY ORDERED that:

1. Defendants Edward J. Klikuszewski and Barlow Trucking Lines’ motion to dismiss (Doc. 5) Plaintiffs Patricia M. Kozak and Brian D. Kozak’s Complaint (Doc. 1) is DENIED.

2. The Defendants shall file an answer to the Plaintiffs’ Complaint within 21 days of this Order.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge

End of Document

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¹ Doc. 1 ¶¶ 15-16.

² Id. ¶¶ 17-18, 29.

³ Id. ¶¶ 26-28.

⁴ 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

⁵ 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

⁶ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

⁷ Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

⁸ Iqbal, 556 U.S. at 678; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will no longer survive a motion to dismiss.”).

⁹ Iqbal, 556 U.S. at 678.

¹⁰ Doc. 6 at 5-7, 10-12. The Defendants brief only the 12(b)(6) standard, see id. at 3-5; so throughout, I assume that they use “strike” colloquially, rather than as a motion to strike under Federal Rule of Civil Procedure 12(f), an infrequently used device that is “not favored and [which] usually will be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.” Hay v. Somerset Area Sch. Dist., 2017 U.S. Dist. LEXIS 100637, 2017 WL 2829700, at *3 (W.D. Pa. June 29, 2017) (quoting Tennis v. Ford Motor Co., 730 F. Supp. 2d 437, 443 (W.D. Pa. 2010)).

¹¹ 287 F. Supp. 3d 438, 2018 WL 1157966 (W.D. Pa. 2018).

¹² Doc. 6 at 8, 11-12.

¹³ Maturo v. Pugh, 2020 U.S. Dist. LEXIS 124868, 2020 WL 4015240, at *2 (E.D. Pa. July 16, 2020) (citing Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (Pa. 1984)).

¹⁴ Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005) (citing Feld, 485 A.2d at 747).

¹⁵ Id.

¹⁶ Maturo, 2020 U.S. Dist. LEXIS 124868, 2020 WL 4015240, at *2; see also Stahlnecker v. Morris, 2019 U.S. Dist. LEXIS 114003, 2019 WL 3003415 (M.D. Pa. July 10, 2019); Alexander v. W. Express, 2019 U.S. Dist. LEXIS 181822, 2019 WL 6339907 (M.D. Pa. Oct. 18, 2019) (Carlson, M.J.); Kerlin v. Howard, 2018 U.S. Dist. LEXIS 144152, 2018 WL 4051702 (M.D. Pa. Aug. 24, 2018); Wydra v. Bah, 2016 U.S. Dist. LEXIS 7780, 2016 WL 297709 (M.D. Pa. Jan. 22, 2016) (Conaboy, J.); Cobb v. Nye, 2014 U.S. Dist. LEXIS 172087, 2014 WL 7067578 (M.D. Pa. Dec. 12, 2014).

¹⁷ Barlow Trucking and Klikuszewski argue that I ought to apply the stricter approach adopted in Elmi v. Kornilenko, 2018 U.S. Dist. LEXIS 33950, 2018 WL 1157996 (W.D. Pa. Mar. 2, 2018), which found that plaintiffs must do more than assert recklessness when their pleadings evidence no more than negligence. 2018 U.S. Dist. LEXIS 33950, [WL] at *5 (“Pennsylvania law requires ‘something more’ than negligence . . . . [And] Elmi’s Complaint alleging nothing more than a failure to safely pass another lacks the ‘something more’ necessary to state a claim of punitive damages.”). Whether this approach takes hold remains to be seen. But I’ll note that Elmi‘s application here would not change the outcome because the case notes that this “something more” may include fatigued driving. 2018 U.S. Dist. LEXIS 33950, [WL] at *4 (citing Darden-Munsell v. Dutch Maid Logistics, 2011 U.S. Dist. LEXIS 84569, 2011 WL 3325863 (W.D. Pa. July 13, 2011) and Logue v. Logano Trucking Co., 921 F. Supp. 1425, 1428 (E.D. Pa. 1996)). No doubt aware of this lesson, the Kozaks’ have pleaded that Klikuszewski “was fatigued, driving in violation of the hours-of-service regulations and/or distracted”—of which they further allege Barlow Trucking was aware. Doc. 1 ¶¶ 27-28. I am not unsympathetic to the Defendants’ plight; regardless of approach, it seems that garden-variety negligence cases will be saddled with unwarranted claims for punitive damages. But the fact remains, some at first ordinary cases are undergirded by serious wrongdoing that warrants punitive damages. And it is better that these claims rise or fall on the facts discovery reveals, rather than on plaintiffs’ assertions about a defendants’ then-unknowable state of mind.

¹⁸ See Doc. 1 ¶¶ 39, 40, 44, 62, 63, 65.

¹⁹ Doc. 6 at 10.

United States District Court for the Northern District of Ohio, Western Division

April 18, 2022, Filed

CASE NO. 3:21 CV 2393

Reporter

2022 U.S. Dist. LEXIS 71063 *; 2022 WL 1136771

TARA JACKSON, Plaintiff, v. ARKA EXPRESS, INC., et al., Defendants.

Core Terms

negligence per se, Regulations, punitive damages, asserts, actual malice, violations, pleadings, administrative rule, Defendants’, allegations, conscious, driver

Counsel:  [*1] For Tara Jackson, Plaintiff: J. Pierre Tismo, Dyer, Garofolo, Mann & Schultz, Dayton, OH.

For Arka Express, Inc., BJT Express, Inc., doing business as Bullpen Express, Inc., Spider Logistics, Salabai Roman, Defendants: David R. Hudson, Reminger Co. – Toledo, Toledo, OH.

For Geico Casualty Company, Defendant: Jennifer L. Hill, Myrl H. Shoemaker, III, Freund, Freeze & Arnold – Columbus, Columbus, OH.

For Geico Casualty Company, Cross-Claimant: Jennifer L. Hill, Myrl H. Shoemaker, III, Freund, Freeze & Arnold – Columbus, Columbus, OH.

For Arka Express, Inc., BJT Express, Inc., Salabai Roman, Spider Logistics, Cross Defendants: David R. Hudson, Reminger Co. – Toledo, Toledo, OH.

Judges: James R. Knepp II, UNITED STATES DISTRICT JUDGE.

Opinion by: James R. Knepp II

Opinion

MEMORANDUM OPINION AND ORDER

Introduction

This case involves a motor vehicle accident between Defendant Salbadi Roman (driving for Defendants Arka Express, Inc., Spider Logistics, and/or BJT Express, Inc.) and the car in which Plaintiff Tara Jackson was a passenger. See Doc. 1-1. Currently pending before the Court is Defendants’ Motion for Partial Judgment on the Pleadings (Doc. 13), to which Plaintiff has not responded, and the time in which to do so has [*2]  expired. See Local Civ. R. 7.1(d) (providing 30 days to respond to a case-dispositive motion). Jurisdiction is proper under 28 U.S.C. § 1332. For the following reasons, the Court grants Defendants’ motion.

Background

In her Complaint, Plaintiff asserts that on December 3, 2019 at approximately 2:40 P.M., she was the passenger in a vehicle stopped in traffic on the 1600 block of East Fourth Street in Lima, Ohio. (Doc. 1-1, at ¶ 1). Defendant Roman, who was operating a semi-truck and trailer in the course of his employment, “negligently backed into the front of the vehicle the Plaintiff was a front seat passenger in.” Id.

Count One of Plaintiff’s Complaint asserts negligence against Arka Express, BJT Express, Spider Logistics and Roman.¹ See Doc. 1, at 2-5. It asserts Arka Express, BJT Express, and Spider Logistics are vicariously liable for Roman’s actions and that they negligently hired and/or retained, and/or supervised, and/or trained Roman. Id. at ¶¶ 5, 13, 22. It further asserts Arka Express, BJT Express, and Spider Logistics negligently entrusted the vehicle to Roman, who was an “inexperienced and incompetent driver.” Id. at ¶¶ 2, 10, 19. The Complaint further asserts all Defendants negligently inspected, maintained, [*3]  and/or repaired the semi-truck to be safe and roadworthy. Id. at ¶¶ 7-8, 15-16, 24-25. Count One brings a claim for negligence per se against Arka Express, BJT Express, and Spider based on “violations of Federal Motor Vehicle Carrier Regulations.” Id. at ¶¶ 6, 14, 23. Finally, the Complaint asserts each Defendant’s actions were undertaken with “actual malice in a wanton, and reckless manner evidencing a conscious disregard for the rights and safety of other persons and having a great probability of substantial harm.” Id. at ¶¶ 9, 17, 18, 26, 27. As a result, Plaintiff asserts she suffered severe and permanent injuries, pain and suffering, medical expenses, lost wages, and property damage. Id. at ¶ 28.

Defendant answered the Complaint (Doc. 11) and then filed the pending motion for partial judgment on the pleadings (Doc. 13).

Standard of Review

Rule 12(c) motions for judgment on the pleadings are subject to the same standard as a Rule 12(b)(6) motion to dismiss. JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007). The pleadings must demonstrate sufficient factual matter that, when taken as true, states a claim which is “plausible on its face.” Bell Atl. Corp. v. Twombly 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A court construes the complaint in the light most favorable to the plaintiff and accepts as true well-pleaded factual [*4]  allegations. Daily Servs., LLC v. Valentino, 756 F.3d 893, 896 (6th Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Legal conclusions and unwarranted factual inferences are not entitled to a presumption of truth. Twombly, 550 U.S. at 555 (a “formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss)

Discussion

Defendants move for judgment on the pleadings as to Plaintiff’s claims based on negligence per se, and for punitive damages. (Doc. 11). They assert Plaintiff has only recited the elements of a punitive damages claim, but has not pled any facts in support, and has failed to state a claim for negligence per se. (Doc. 8). For the following reasons, the Court grants Defendants’ motion.

Punitive Damages

Punitive damages are available on tort claims under Ohio law only when “the actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.” Ohio Rev. Code § 2315.21(C)(1). “Actual malice”, for these purposes, is “(1) that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great [*5]  probability of causing substantial harm.” Preston v. Murty, 32 Ohio St. 3d 334, 336, 512 N.E.2d 1174 (1987). The actions of a defendant must rise above mere negligence to be considered actual malice. Id. at 335. “The focus is on the actor’s conscious disregard of an almost certain risk of substantial harm. This distinguishes ‘malicious’ from ‘non-malicious’ conduct.” Kuebler v. Gemini Transp., 2013 U.S. Dist. LEXIS 172769, 2013 WL 6410608, at *5 (S.D. Ohio). Because punitive damages are assessed as punishment and not for purposes of compensation, it is necessary that defendants’ conduct was “conscious, deliberate or intentional” and that defendants “possess[ed] knowledge of the harm that might be caused by [their] behavior.” Preston, 32 Ohio St. 3d at 335.

In the motor vehicle accident context, such actions that may be sufficient to award punitive damages “may include intoxication and deliberate actions to flee the scene or evade responsibility.” MacNeill v. Wyatt, 917 F. Supp. 2d 726, 730 (S.D. Ohio 2013) (citing Cabe v. Lunich, 70 Ohio St. 3d 598, 1994- Ohio 4, 640 N.E.2d 159, 163 (Ohio 1994); Cappara v. Schibley, 85 Ohio St. 3d 403, 1999 Ohio 278, 709 N.E.2d 117, 120 (Ohio 1999); Estate of Beavers v. Knapp, 175 Ohio App. 3d 758, 773-74, 2008- Ohio 2023, 889 N.E.2d 181 (Ohio Ct. App. 2008)); see also Parker v. Miller, 2017 U.S. Dist. LEXIS 135661, 2017 WL 3642372, at *2 (S.D. Ohio) (allegations defendant failed to stop before hitting a vehicle, despite having sufficient time and adequate visibility to do so, sufficient to state a claim for actual malice); Lyons v. Estes Express Lines, Inc., 2015 U.S. Dist. LEXIS 79199, 2015 WL 3796384, at *2 (N.D. Ohio) (allegations of distracted driving alone do not support actual malice but failing to avoid an accident after numerous warnings may amount to actual malice).

“Courts have clearly held that a claim for punitive damages cannot survive if [*6]  a plaintiff only requests such damages in a prayer for relief without supporting the pleading with factual content that, if proven, would warrant punitive damages.” Reber v. Lab Corp. of Am., 2015 U.S. Dist. LEXIS 153838, 2015 WL 7076608, at*5 (S.D. Ohio) (citing Flex Homes, Inc. v. Ritz-Craft Corp. of Mich., Inc., 721 F. Supp. 2d 663, 675-76 (N.D. Ohio 2010)); see also Bonner v. Reliable Transp. Specialists, Inc., 2018 U.S. Dist. LEXIS 164208, 2018 WL 4586924, at *2 (N.D. Ohio) (plaintiff had not “offered any allegations concerning [defendant’s] mindset at the time of the accident” and stating defendant acted with “conscious disregard” was simply a legal conclusion, and “[l]egal conclusions ‘masquerading’ as factual allegations are not sufficient.”) (quoting Twombly, 550 U.S. at 555).

Here, Plaintiff’s Complaint merely repeats the legal standard for a punitive damages claim, but does not plead facts that, if proven, would support such a claim. See Doc. 1-1, at ¶¶ 9, 17, 18, 26, 27. As such, the Court grants Defendant’s motion for judgment on Plaintiff’s claim for punitive damages.

Negligence Per Se

Defendants also contend they are entitled to judgment on Plaintiff’s claims for negligence per se. In the first claim for relief, Plaintiff asserts Defendants were negligent per se:

“for violations of the Federal Motor Vehicle Carrier Regulations, including, but not limited to: failing to follow the regulations by its hiring of an incompetent driver; by its retention of an incompetent driver; by its failure [*7]  to supervise its driver; by its failure to properly train its driver; and by failure to inspect, maintain and repair their tractor and/or trailer equipment to be safe and roadworthy.

(Doc. 1-1, at ¶¶ 6, 14, 23).

As Defendants point out, the Ohio Supreme Court has held that “the violation of an administrative rule does not constitute negligence per se.” Chambers v. St. Mary’s School, 82 Ohio St. 3d 563, 568, 1998- Ohio 184, 697 N.E.2d 198 (1998). “[H]owever, such a violation of an administrative rule may be admissible as evidence of negligence.” Id.

“In Chambers, the Court recognized that allowing violation of administrative rules to constitute negligence per se would ‘in effect bestow upon administrative agencies the ability to propose and adopt rules which alter the proof requirements between litigants. Altering proof requirements is a public policy determination more properly determined by the General Assembly.'” Ok Yeon Yoon v. K-Ltd. Carrier, Ltd., 2020 U.S. Dist. LEXIS 36161, 2020 WL 1031486, at *7 (N.D. Ohio) (quoting Chambers, 82 Ohio St. 3d at 568)).

Relying on Chambers, federal courts applying Ohio law have found violations of federal regulations, including Federal Motor Carrier Safety Regulations, cannot serve as a separate claim for negligence per se. See Ok Yeon Yoon, 2020 U.S. Dist. LEXIS 36161, 2020 WL 1031486, at *7 (finding violations of Federal Motor Carrier Safety Regulations could not support a finding of negligence per se); Gruenbaum v. Werner Enters., 2011 U.S. Dist. LEXIS 9888, 2011 WL 563912, at *4 (S.D. Ohio) (“While the Federal Motor Carrier Safety [*8]  Regulations do not establish a heightened standard of care in Ohio, evidence of a violation of the Safety Regulations may be considered by the trier of fact as evidence of negligence.”); Earley v. United Airlines, 2006 U.S. Dist. LEXIS 70439, 2006 WL 2794971 (S.D. Ohio) (“the violation of a Federal Aviation Administrative regulation, which is an administrative rule, is only evidence of negligence”). Ohio courts have held similarly. See Sheldon v. Kettering Health Network, 2015-Ohio-3268, ¶ 30, 40 N.E.3d 661 (Ohio Ct. App.) (“under Ohio case law the HIPAA administrative rules that appellants argue are applicable cannot be the basis of a negligence per se theory of recovery”) (Ohio Ct. App.); Lang v. Beachwood Pointe Care Ctr., 2017-Ohio-1550, ¶ 74, 90 N.E.3d 102 (Ohio Ct. App.) (“Violations of governmental regulations may not be used to establish negligence per se[.]”).

Defendants are thus entitled to judgment on Plaintiff’s negligence per se claims. Evidence of such violations may, however, be considered by the trier of fact as evidence of negligence. Gruenbaum, 2011 U.S. Dist. LEXIS 9888, 2011 WL 563912, at *4; see also Chambers, 82 Ohio St. 3d at 568.

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion for Judgment on the Pleadings as to Plaintiff’s punitive damages and negligence per se claims be, and the same hereby is, GRANTED.

/s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Plaintiff’s Complaint also asserts other claims that are not relevant to the instant motion.