United States District Court for the Eastern District of Texas, Sherman Division

March 10, 2022, Decided; March 10, 2022, Filed

Civil Action No. 4:20-CV-00929

Reporter

2022 U.S. Dist. LEXIS 42749 *

STEVEN WHITTLEY, Plaintiff, v. JOSEPH KELLUM, et al., Defendants.

Core Terms

summary judgment, tractor-trailer, Collision, negligent entrustment, time of a collision, supervise, driver, leased, train, respondeat superior, foreseeable, nonmovant, material fact, deliveries, genuine, movant

Counsel:  [*1] For Steven Whittley, Plaintiff: John Robert Loar , Jr., LEAD ATTORNEY, Witherite Law Group, Dallas, TX; Shelly Tomlin Greco, Eberstein & Witherite, LLP – Dallas, Dallas, TX.

For Joseph Kellum, GAT Global Solutions, Inc., Defendants: Erik Edward Ekvall, Ekvall & Byrne LLP – Dallas, Dallas, TX.

Judges: AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

Opinion by: AMOS L. MAZZANT

Opinion

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants GEX Trans Group, Inc. and Prime Carrier, Inc.’s Motion for Summary Judgment (Dkt. #35). Having considered the relevant pleadings, the Court finds the motion should be GRANTED.

BACKGROUND

On March 18, 2019, Plaintiff Steven Whittley (“Whittley”) and Defendant Joseph Kellum (“Kellum”) were involved in a motor vehicle collision (the “Collision”). The Collision occurred in Denton County, Texas. At the time of the Collision, Kellum was driving a tractor-trailer owned by Defendant GEX Trans Group, Inc. (“GEX”). However, GEX had previously leased the tractor-trailer to Defendant GAT Global Solutions, Inc. (“GAT”). Kellum was operating the tractor-trailer at the direction of GAT. Kellum possessed a valid West Virginia commercial driver’s license at the time of the Collision.

Whittley [*2]  filed suit on December 3, 2020, for personal injuries arising out of the Collision (Dkt. #1). Whittley asserts a claim for negligence against Kellum. Whittley also asserts claims for negligence, negligent entrustment, and respondeat superior against GEX, GAT, and Defendant Prime Carrier, Inc. (“Prime Carrier”).

On January 12, 2022, GEX and Prime Carrier moved for summary judgment (Dkt. #35). Whittley has not responded.

LEGAL STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.

The party moving for summary judgment has the burden to show that there is [*3]  no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). Where the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant’s case. Celotex, 477 U.S. at 325; Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No “mere denial of material facts nor . . . unsworn allegations [nor] arguments and assertions in briefs or legal memoranda” will suffice to carry this burden. Moayedi v. Compaq Computer Corp., 98 F. App’x 335, 338 (5th Cir. 2004). Rather, the Court requires “significant probative evidence” from the nonmovant in order to dismiss a request for summary judgment supported appropriately by the movant. United States v. Lawrence, 276 F.3d 193, 197 (5th Cir. 2001). The Court must consider all of the evidence but must refrain from making any credibility determinations or weighing the evidence. [*4]  See Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007).

ANALYSIS

Whittley has asserted claims for negligent entrustment, respondeat superior, and negligence against GEX and Prime Carrier. GEX and Prime Carrier argue Whittley has insufficient, or no, evidence to support his claims against them. Because Whittley has not responded, assuming GEX and Prime Carrier show there is an absence of evidence to support Whittley’s case against them, then the motion necessarily succeeds.¹ The Court will begin with the negligent entrustment claim.

A. Negligent Entrustment

“To make out a negligent-entrustment claim, a plaintiff generally must show each of the following: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver’s negligence proximately caused the accident.” Wright v. Weaver, 516 F. App’x 306, 309 (5th Cir. 2013). GEX argues there is no evidence it entrusted the tractor-trailer to Kellum because GEX merely leased the vehicle to GAT, and the tractor-trailer came into Kellum’s possession through GAT. The Court agrees.

Mere ownership of a vehicle is not conclusive to demonstrate entrustment.  [*5] Cf. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 52 (Tex. App.—Fort Worth 2002, no writ) (holding the employer of the negligent driver, who did not own the vehicle being operated at the time of the collision, could be held liable for negligent entrustment because it had the right to control the vehicle). “In fact, lessees of vehicles generally assume complete responsibility for the operation of the leased vehicles for the duration of the lease.” McDorman v. Texas-Cola Leasing Co. LP, LLLP, 288 F. Supp. 2d 796, 802 (N.D. Tex. 2003) (citations omitted). Whittley has not presented any evidence that GEX maintained control over the tractor-trailer involved in the Collision. The lease was signed in 2017, and GEX maintains it did not exercise any control over the location, or driver, of the tractor-trailer on the date of the Collision (Dkt. #25, Exhibit 2 ¶¶ 8-9). Whittley has failed to show a genuine issue of material fact that would give rise to liability on GEX’s part for negligent entrustment, and summary judgment is therefore proper.

As for Prime Carrier, Whittley must establish entrustment of the tractor-trailer by the owner. Wright, 516 F. App’x at 309. If Prime Carrier neither owned nor controlled the vehicle, there can be no liability for negligent entrustment. Atl. Indus. v. Blair, 457 S.W.3d 511, 518-19 (Tex. App.—El Paso 2014), rev’d on other grounds, 482 S.W.3d 57 (2016) (per curiam). GEX is the undisputed owner of the tractor-trailer. Prime Carrier never owned [*6]  or leased the tractor-trailer (Dkt. #35, Exhibit 4 ¶¶ 7-9). Kellum was not in Prime Carrier’s employment at the time of the Collision (Dkt. #35, Exhibit 4 ¶¶ 5-6). Kellum has admitted he was an independent contractor of GAT, was in route to make a delivery for GAT at the time of the Collision, and GAT gave Kellum directions on the details of deliveries Kellum was required to make (Dkt. #35, Exhibit 3 ¶¶ 2-3). There is simply no evidence Prime Carrier had any control over the tractor-trailer Kellum drove at the time of the Collision. Without evidence of ownership or control, Prime Carrier may not be held liable for negligent entrustment. Blair, 457 S.W.3d at 518-19. Summary judgment is therefore proper as to Prime Carrier as well.

B. Respondeat Superior

GEX and Prime Carrier argue there is no evidence to support a claim of Respondeat Superior against it because Kellum was an independent contractor of GAT.

Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of a driver employee committed in the course of employment. Newspapers, Inc v. Love, 380 S.W.2d 582, 588-589 (Tex. 1964). Proving an employer’s vicarious liability for a worker’s negligent driving or other conduct involves a two-step process. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018). The plaintiff must show that at the [*7]  time of the negligent conduct, the worker: (1) was an employee; and (2) was acting in the course and scope of employment. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). The first step depends on whether the employer has the overall right to control the progress, details, and methods of operations of the work, whether or not it chooses to exercise that right as to any particular task. Painter, 561 S.W.3d at 131.

In determining the existence of an employer-employee relationship for purposes of imposing vicarious liability on the employer for the physical conduct of the employee that causes physical harm to the person or property of a third party, the crucial test is the existence of the contractual right to control the details of the manner and method by which the employee conducts the employer’s business. Newspapers, 380 S.W.2d at 588-89 (Tex. 1964); see also Perryman v. Self, 546 S.W.2d 670, 671 (Tex. App.—Waco 1977, no writ). In an employer-employee relationship, the employer normally will control when and where to begin work, the regularity of hours and the amount of time spent on particular aspects of work, the physical method or manner of accomplishing an end result, and the type of tools and appliances used to perform the work. Dougherty v. Gifford, 826 S.W.2d 668, 678 (Tex. App.—Texarkana 1992, no writ). In his affidavit, Kellum states he had no communication with GEX regarding any of his deliveries (Dkt. #35, Exhibit 3 ¶ 6). Without [*8]  evidence that GEX had any control whatsoever over Kellum, there is no support establishing that Kellum was an employee of GEX. Therefore, GEX may not be held vicariously liable for Kellum’s conduct under a theory of respondeat superior.

As for Prime Carrier, Kellum states in his affidavit that he worked for Prime Carrier through December 2018 (Dkt. #35, Exhibit 3 ¶ 7). However, Kellum began an employment relationship² with GAT on January 15, 2019 (Dkt. 35, Exhibit 3 ¶ 8). The Collision occurred on March 18, 2019, months after Kellum’s work relationship with Kellum ended, and the relationship with GAT began. There is no evidence Prime Carrier exercised any control over Kellum’s deliveries or other job duties as of the date of the Collision. Accordingly, summary judgment is proper.

C. Negligence

The final claim Whittley asserts against GEX and Prime Carrier is for negligence. Whittley alleged GEX and Prime Carrier failed to properly train and/or supervise Kellum. GEX and Prime Carrier argue neither had a duty to train or supervise Kellum since Kellum was not affiliated with GEX or Prime Carrier in any capacity at the time of the Collision. Both sides appear to argue under a theory of negligent [*9]  training and supervision, which are recognized causes of action in Texas, but have not been asserted here. Thus, the Court proceeds with its analysis of the asserted negligence claim.

To prevail on his negligence cause of action, Whittley must establish the existence of a legal duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). In general, one person has no liability for the acts of another because a person ordinarily has no duty to control the conduct of another, even if the ability to control that person exists. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983); see also Restatement (Second) of Torts, § 315(a) (no duty to control conduct of third person unless special relationship exists between actor and third person that imposes duty to control).

The ordinary duty of care has been defined as “a duty to act as a reasonably prudent person under the same or similar circumstances, considering the reasonably foreseeable risk or probability of injury to persons situated as the plaintiff.” Nw. Mall, Inc. v. Lubri-Lon Intern., 681 S.W.2d 797, 802 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). Texas courts have emphasized that a number of factors must be considered in determining whether a duty exists, but it is generally agreed that the most important of these factors is foreseeability. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). The precise nature of the harm actually incurred need not be [*10]  foreseeable, only its general nature. Berry Prop. Mgmt. v. Bliskey, 850 S.W.2d 644, 654 (Tex. App.—Corpus Christi 1993, writ dism’d agr.). Foreseeability is judged under a two-part test: (1) whether the injury is of such a general character as might reasonably have been anticipated; and (2) whether the injured party is so situated with relation to the wrongful act that injury to the party or one similarly situated might reasonably have been foreseen. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999).

Prime Carrier was in no position to foresee the Collision. It did not own, lease, or operate the tractor-trailer. It no longer utilized Kellum’s delivery services. It has no relationship with GAT or GEX. Imposing a duty on Prime Carrier would be unreasonable give the circumstances of this case. Whittley cannot establish Prime Carrier owed a duty to train or supervise Kellum, and therefore he cannot succeed on a negligence claim against Prime Carrier. Summary judgment is thus appropriate.

For GEX, it is at least foreseeable that someone from GAT would use and operate the tractor-trailer, and that the tractor-trailer could be involved in an automobile collision. That said, other factors considered in determining whether a duty exists include the degree of risk of injury to the plaintiff, the probability of injury balanced against the [*11]  social utility of the actor’s conduct, the magnitude of the burden that would be imposed if a duty to guard against or avoid the activity is imposed, and the consequences of placing that burden on the defendant. Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994). It would be unreasonable for this Court to expect the owner-lessor of a vehicle to train and supervise its lessee’s employees. Such a burden would be likely impossible—or at least onerous—to meet as any training or supervision falls within GAT’s purview. This consideration, taken together with the general rule precluding liability for the conduct of another, leads the Court to find GEX did not owe a duty to Whittley to train or supervise Kellum. Thus, summary judgment is also appropriate for Whittley’s negligence claim against GEX.

CONCLUSION

It is therefore ORDERED that Defendants’ Motion for Summary Judgment (Dkt. #35) is hereby GRANTED.

It is further ORDERED that all claims against GEX Trans Group, Inc. and Prime Carrier, Inc. are dismissed with prejudice.

IT IS SO ORDERED.

SIGNED this 10th day of March, 2022.

/s/ Amos L. Mazzant

AMOS L. MAZZANT

UNITED STATES DISTRICT JUDGE

End of Document

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¹ A party’s failure to file a response “creates a presumption that the party does not controvert facts set out by movant and has no evidence to offer in opposition to the motion.” E.D. Tex. Civ. R. 7(d).

² Kellum states in his affidavit that he began work as an “independent contractor” for GAT (Dkt. #35, Exhibit 3). However, the Court does not find Kellum qualified to make that determination, and the Court does not take up at this time whether Kellum was an employee or an independent contractor of GAT.

United States District Court for the Southern District of Illinois

March 7, 2022, Decided; March 7, 2022, Filed

Case No. 3:20-cv-1355-JPG

Reporter

2022 U.S. Dist. LEXIS 39945 *; 2022 WL 672460

LERON LEWIS, JR, Plaintiff, v. HIRSCHBACH MOTOR LINES, INC. and ERIC JEROME CAMPELL, SR., Defendants.BRANDON JAMAL MOFFETT, Plaintiff, v. HIRSCHBACH MOTOR LINES, INC. and ERIC JEROME CAMPELL, SR., Defendants/Third Party Plaintiffs, v. BRANDON JAMAL MOFFETT, LERON LEWIS, JR., DATWAY LLC, MOTOR CARRIER CONSULTANTS, LLC., J.B. HUNT TRANSPORT, INC., MCGRIFF TIRE, CO., INC., NAVISTAR, INC., BENDIX, COMMERCIAL VEHICLE SYSTEMS LLC, and BIG TEX TRAILER MANUFACTURING, LLC, Third Party Defendants.

Prior History: Lewis v. Hirschbach Motor Lines, Inc., 2020 U.S. Dist. LEXIS 240965 (S.D. Ill., Dec. 22, 2020)

Core Terms

willful, wanton conduct, motion to dismiss, complaints, respondeat superior, gross negligence, allegations, entrustment, training, negligent hiring, wanton, punitive damages, supervising, misconduct, discovery, retention, motions, courts, cause of action, recitation, semi-truck

Counsel:  [*1] For Leron Lewis, Jr., Plaintiff: Danylo Y. Terleckyj, John A. Stefani, Kenneth H. Levinson, Levinson & Stefani, Chicago, IL.

Judges: J. PHIL GILBERT, DISTRICT JUDGE.

Opinion by: J. PHIL GILBERT

Opinion

MEMORANDUM AND ORDER

I. Introduction

This matter comes before the Court on Defendant Hirschbach Motor Lines, Inc. (“Defendant” or “Hirschbach”) and Eric Campbell (“Defendant” or “Campbell”) (collectively, “Defendants”) Motions to Dismiss against Plaintiff Leron Lewis, Jr. (“Plaintiff” or “Lewis”) and Plaintiff Brandon Moffett’s Complaint (“Plaintiff” or “Moffett”), (collectively, “Plaintiffs”). Defendants have filed two separate motions — a Motion to Dismiss Count III of Lewis’ Complaint (Doc. 52), and Motion to Dismiss Count III and VI of Plaintiff Moffett’s Complaint (Doc. 53)¹ . Moffett and Lewis submitted their joint responses at Doc. 71 and 72, respectively.

II. Background

Plaintiffs allege they were injured in an accident with a semi-truck driven by Defendant Campbell on December 13, 2020, in Franklin County, Illinois on Interstate 57. Plaintiffs allege that they were injured when a tractor-trailer, operated by Defendant Campbell, [*2]  driving within the scope of his employment with Hirschbach, collided with their stopped vehicle on Interstate 57. Lewis alleges he sustained severe injuries to the right side of his body, along with other bodily injuries and suffers pain as a result of this accident. Moffett alleges bodily injury, mental suffering, disfigurement and other damages. Lewis filed this suit eight days after the accident (Doc. 1). Plaintiff Moffett filed suit 22 days after the accident. Their suits were then consolidated (Doc. 25).

In Count I, Lewis asserts a claim against Campbell, alleging he was negligent in operating his semi-truck at a speed too great for conditions, failing to keep a proper lookout, failing to avoid a collision with the vehicle operated by Lewis, striking Lewis’ vehicle, failing to slow or stop, failing to adhere to 49 CFR 300, and failing to maintain his semi-truck. Lewis Compl at ¶ 4. Count II of Lewis’ Complaint asserts a negligence claim against Hirschbach under a theory of respondeat superior. Count III asserts a claim of direct negligence under a theory of negligent hiring, training, supervision, retention, and/or entrustment that Hirschbach allowed Campbell to operate the semi-truck in [*3]  violation of federal regulations, failed to properly train Campbell, failed to ensure he was properly trained to operate the semi-truck, failed to discipline or re-train Campbell when it should have known Campbell failed to comply with rules and regulations, failed to remove Campbell from his duties after it knew Campbell was unfit for the job, failed to supervise Campbell, and failed to train Campbell regarding driving rules, regulations and industry customs. Lewis Compl ¶¶ 7-8. In Count III, Hirschbach admitted Campbell was acting within the scope of his employment and admitted respondeat superior is applicable.

In Count I of Moffett’s Complaint, Moffett alleges the same negligence against Campbell, negligence against Hirschbach in Count II under a theory of respondeat superior, and a claim of direct negligence against Hirschbach for negligent hiring, training, supervision, retention, and/or entrustment. Moffett Compl at ¶¶ 22-26. Count IV alleges that Defendant’s conduct amounts to gross negligence. Moffett Compl at ¶¶ 24-26.

Defendants move to dismiss Count III of Lewis’ Complaint and Count III and Count IV of Moffett’s Complaint under Federal Rule of Civil Procedure 12(b)(6).

III. Law and Analysis

A Rule 12(b)(6) motion challenges the [*4]  “sufficiency of the complaint.” Berger v. Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

While “detailed factual allegations” are not required, “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. The complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “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.” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). The plaintiff “must do more in the complaint than simply recite the elements of a claim.” Zellner v. Herrick, 639 F.3d 371, 378 (7th Cir. 2011). Complaints that offer “[t]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

In applying this standard, the Court accepts all well-pleaded facts as true and draws all reasonable inferences in favor [*5]  of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

a. Motion to Dismiss Count III of Lewis and Moffett’s Complaint

Defendants move to dismiss Count III of Lewis and Moffett’s Complaint under Rule 12(b)(6). Specifically, Defendants state that Count III should be dismissed on the grounds it is “duplicative and improper under Illinois law given that Hirschbach has admitted respondeat superior for Mr. Campbell’s relevant acts or omissions.” (Doc. 52, p. 5); (Doc. 53, p. 6). Plaintiffs respond with two arguments. First, they state that Defendants’ motions are not properly brought before the Court under 12(b)(6), because Defendants’ motion relies on material outside of the complaint, namely Defendant’s answer. Additionally, Plaintiffs state that the Court should not dismiss Count III for direct negligence against Hirshbach because Plaintiffs Lewis and Moffett meet the exception of “willful and wanton misconduct.” (Doc. 71, p. 11); (Doc. 72, p. 11).

In Illinois, a plaintiff who is injured in a motor vehicle accident cannot maintain a claim for negligent hiring, negligent retention, or negligent entrustment against an employer where the employer admits responsibility for the conduct of the employee under respondeat superior. Gant v. L.U. Transport, Inc., 331 Ill. App. 3d 924, 928, 264 Ill.Dec. 459, 770 N.E.2d 1155 (2002). The reasoning [*6]  behind this principle is that additional liability should not be imposed on the employer where the employer’s liability “is predicated initially on, and therefore is entirely derivative of, the negligence of the employee” and so “cannot exceed the liability of the employee.” Id.

But an exception exists where a principal’s culpability may be greater than that of the agent. Lockett v. Bi-State Transit Auth., 445 N.E.2d 310, 314, 94 Ill. 2d 66, 67 Ill.Dec. 830 (1983). “Unlike the situation in negligent-entrustment cases, where the misconduct of the defendant-principal is of the same level of culpability as that of the tortfeasor-agent, defendants-principals may be found guilty of willful and wanton misconduct even though the tortfeasors-agents to whom the instrumentality causing the injury was entrusted may have been only negligent.” Id. As a result, “the necessity of proof of the defendant-principal’s misconduct in connection with willful-and-wanton entrustment actions is not eliminated simply because that party acknowledges an agency relationship with the tortfeasor.” Id; see also Neuhengen v. Glob. Experience Specialists, Inc., 2018 IL App (1st) 160322, ¶ 90, 424 Ill. Dec. 718, 109 N.E.3d 832, 852 (“there is no sound reason for such a rule where a plaintiff has pled a viable claim for punitive damages based on allegations of willful and wanton conduct against an employer for its independent [*7]  actions in hiring and retaining an employee or entrusting a vehicle to an unfit employee”).

In order to recover damages based on “willful and wanton conduct,” a plaintiff must plead and prove the basic elements of a negligence claim, i.e., that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach was a proximate cause of the plaintiff’s injury, and must additionally allege either a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare. Neuhengen, 2018 IL App (1st) 160322, 109 N.E.3d 832.

Illinois courts have attempted to define “willful and wanton conduct” throughout the years. Papadakis v. Fitness 19 IL 116, LLC, 2018 IL App (1st) 170388, ¶ 23, 148 N.E.3d 648, 653 (“How, precisely, to define that heightened state of mind has proven elusive”). Such conduct can mean “only degrees more than ordinary negligence,” while under other facts, willful and wanton acts may be only “degrees less than intentional wrongdoing.” Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275-76, 204 Ill.Dec. 178, 641 N.E.2d 402 (1994). In addition, the Illinois Supreme Court describes such acts as “a deliberate intention to harm or a conscious disregard for the plaintiff’s welfare.” Jane Doe-3 v. McLean Cty. Unit Dist. No. 5 Bd. of Directors, 2012 IL 112479, ¶ 1, 973 N.E.2d 880, 884 see also Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497, 518, 136 Ill.Dec. 47, 544 N.E.2d 733 (1989). Further, “utter indifference or conscious disregard can include the failure to take reasonable precautions after knowledge of impending danger.” Barr v. Cunningham, 2017 IL 120751, ¶ 20, 417 Ill.Dec. 667, 89 N.E.3d 315 (internal citations omitted). [*8] 

Plaintiffs first argue that, because Defendants rely on their answer to Plaintiffs’ complaints, motion is improperly brought as a 12(b)(6) and should therefore be dismissed. First, the Court notes that courts view Rule 12(c) and 12(b) motions the same, where “[b]oth motions permit a party to request the district court to dispense a matter at the initial stage of the proceedings.” N. Indiana Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998). The primary difference between these two are that a party may file a 12(b) before its answer. Id. Thus, the Court will not dismiss Defendants’ motions for bringing this claim under a 12(b)(6). The Court will note that federal courts within the Seventh Circuit have also properly addressed similar type motions addressing a dismissal based off a duplicative claim under respondeat superior and direct negligence under a Rule 12(b)(6) standard. Wilson v. City of Springfield, 449 F. Supp. 3d 826 (C.D. Ill. 2020); Love v. City of Chicago, 363 F. Supp. 3d 867 (N.D. Ill. 2019); Doe I v. Bd. of Educ. of City of Chicago, 364 F. Supp. 3d 849, 858 (N.D. Ill. 2019). As such, the Court’s analysis does not change in evaluating Defendants’ and Plaintiffs’ arguments.

Thus, the central question is whether Plaintiff Lewis and Plaintiff Moffett have alleged “willful and wanton conduct” against Hirschbach. Upon review of Plaintiffs’ briefs and Moffett and Lewis’ respective complaints, they do not point to facts which the Court can reasonable infer willful or wanton conduct. Plaintiff [*9]  argue that they have alleged “willful or wanton conduct” by stating that “Defendants conduct, acts/or omissions show an utter indifference and/or wanton or conscious disregard for the Plaintiff’s safety and the safety of others.” Moffett Compl at ¶ 25. The Lewis Complaint does not allege any conduct that the Court can infer as willful or wanton. The Plaintiff admit the Lewis Complaint fails to allege gross negligence. (Doc. 71, p. 12-13). Plaintiffs argue that it does not matter because “Plaintiffs have stated a viable claim of direct negligence against Defendant Hirschbach.” (Doc. 72, p. 13). In short, this is not enough to plead “willful or wanton conduct.” Plaintiffs’ pleading amounts to recitation of elements of a cause of action that this Twombly and Iqbal progeny caution against. Iqbal, 556 U.S. at 678 (“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do”). Reviewing the complaints as a whole, the Court cannot find inference of willful or wanton conduct. The law is clear. Because Plaintiffs’ complaints do not adequately allege willful or wanton conduct, Plaintiffs negligent hiring, negligent retention, or negligent entrustment against Hirschbach [*10]  must be dismissed as duplicative because it admitted responsibility under respondeat superior. Gant, 331 Ill. App. 3d 924, 928, 264 Ill.Dec. 459, 770 N.E.2d 1155.

The Court does not find this situation similar to Swanson. Swanson v. Murray Bros., LLC, No. 19-CV-3220, 2021 WL 782273, at *7 (C.D. Ill. Mar. 1, 2021) (“Stretching Neff and Gant to stand for Defendant’s proposition that an employer can never be found liable for its own independent negligent acts that cause a plaintiff injury is too far reaching”). The Swanson court stated that the Swanson Plaintiffs were suing the employer for negligence outside of “negligent hiring, retention, or entrustment” such as negligent maintenance of the brakes of the truck and negligent inspection. Id. The same is not the case for the complaints by Lewis and Moffett. The Plaintiffs only provide allegations against the employer for negligent hiring, training, supervising, and qualifying Defendant Campbell. Moffett Compl at ¶ 25; Lewis Comp at ¶ 22. Illinois law is clear that once an employer admits liability under respondeat superior, courts prohibit pleading negligent hiring, training, supervising, and retention. Finding that the Plaintiffs insufficiently allege “willful or wanton conduct,” the Court must dismiss Count III of the Lewis and Moffett complaints.

Plaintiffs argue that “Plaintiffs could uncover evidence that [*11]  proves (through the framework of the Complaint) Defendant Hirschbach committed acts of gross negligence or willful and wanton misconduct in hiring, training, supervising, and qualifying Defendant Campbell.” (Doc. 71, p. 12-13). The Court disagrees. It must be the other way around. Once Plaintiffs develop factual allegations that plausibly suggest “willful or wanton conduct,” the Court liberally allows amendments of complaints if Plaintiffs can allege those facts.

The Court also addresses one of Plaintiffs’ points regarding discovery (Doc. 72, p. 14). Like Illinois courts, this Court agrees that “[w]e recognize the practical reality that the plaintiff may be unable to plead sufficient facts alleging willful and wanton conduct when the necessary information is solely within the defendant’s control.” Winfrey v. Chicago Park Dist., 274 Ill. App. 3d 939, 949, 654 N.E.2d 508, 516, 211 Ill. Dec. 46 (1995). However, the Court also acknowledges that there are liberal discovery rules in federal court. Discovery under the federal rules aims to be broad. According to Fed. Rul. Civ. Proc. 26(b)(1), parties “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Plaintiffs have several tools for getting information — interrogatories, depositions, and requests for admission. [*12]  Also, parties may compel the other party to give them access to documents, real property, and other matters for review or testing. The Court agrees with Plaintiffs that courts favor discovery. (Doc. 72, p. 14-15). However, the Court cannot look at discovery tactics when evaluating a motion to dismiss; the Court will only look at the complaints at hand.

The Court hereby GRANTS Defendants’ Motion to Dismiss Count III of Lewis and Moffett’s Complaints.

b. Motion to dismiss Count IV for gross negligence

Defendants argue that Count IV of Plaintiff Moffett’s Complaint fails to state a claim upon which relief can be granted because “gross negligence” is not a recognized cause of action in Illinois (Doc. 53, p. 8). Plaintiff argues that Illinois law allows ordinary negligence and willful and wanton conduct to be plead as separate counts. (Doc. 72, p. 16); McCoy v. Iberdrola Renewables, Inc., No. 11 C 592, 2013 U.S. Dist. LEXIS 110960, 2013 WL 4027045, at *3 (N.D. Ill. Aug. 7, 2013); see also McQueen v. Green, 2020 IL App (1st) 190202, ¶ 55, 178 N.E.3d 700, 714, appeal allowed, 444 Ill. Dec. 164, 163 N.E.3d 727 (Ill. 2021) (“Willful and wanton conduct is not an independent tort and is considered an aggravated form of negligence”). The Court agrees. Pleading ordinary negligence and gross negligence as separate counts is not detrimental to Plaintiffs’ claims. The Court sees the “gross negligence” claim as “no more than a supplemental [*13]  allegation of negligence.” Id.

While the amount of punitive damages is a question of fact, the issue of whether the particular facts of a case justify punitive damages is a question of law. Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 359 (Ill.1978). When a corporate defendant’s liability “is predicated upon a theory of respondeat superior, the imposition of punitive damages is narrowly circumscribed.” Kennan v. Checker Taxi Co., 250 Ill.App.3d 155, 189 Ill.Dec. 891, 620 N.E.2d 1208, 1212 (Ill.App.Ct.1991) (citation omitted). In Illinois, punitive damages “may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others[.]” Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 359 (Ill.1978).

Finding that Plaintiffs have insufficiently alleged “willful or wanton conduct”, the Court cannot allow punitive damages to move forward at this juncture. In light of the fact the Court found that Plaintiffs have failed to allege willful or wanton conduct, their claim of gross negligence cannot move forward. The Court hereby GRANTS Defendants’ Motion to Dismiss Count VI of Plaintiff Moffett’s Complaint.

IV. Conclusion

The Court hereby GRANTS Defendants’ Motion to Dismiss Count III of Lewis’ Complaint (Doc. 52), and GRANTS Defendants’ Motion to Dismiss Count III and [*14]  VI of Plaintiff Moffett’s Complaint (Doc. 53). Count III of Lewis’ Complaint and Count III and Count IV of Moffett’s Complaint is DISMISSED.

IT IS SO ORDERED.

Dated: March 7, 2022

/s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

End of Document

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¹ Lewis v. Hirschbach Motor Lines, Inc. et. al. was consolidated with Moffett v. Hirschbach Motor Lines, Inc. et. al., Case No. 21-cv-00001-JPG. The complaint in the Moffett’s case is at Doc. 1. The complaints by Lewis and Moffett will be referred to as “Lewis Complaint” and “Moffett Complaint,” respectively.