United States District Court for the Western District of North Carolina, Asheville Division

September 18, 2023, Decided; September 18, 2023, Filed

CIVIL CASE NO. 1:21-cv-00158-MR-WCM

Reporter

2023 U.S. Dist. LEXIS 165649 *; 2023 WL 6120913

CHRISTOPHER LYNN WILSON, TYANNA ARLENE WILSON, CHRISTOPHER GEORGE WOODBY, and JENNIFER G. WOODBY, Plaintiff, vs. ASSOCIATED PETROLEUM CARRIERS, INC., PETROLEUM CARRIERS, INC., CD ENERGY, LLC, and CHRISTOPHER LEWIS SCOTT, Defendants.

Prior History: Wilson v. Associated Petroleum Carriers, Inc., 2021 U.S. Dist. LEXIS 216177, 2021 WL 5225633 (W.D.N.C., Nov. 9, 2021)

Core Terms

gross negligence, driving, punitive damages, wanton conduct, phone, forecast, collision, willful, hazardous, partial summary judgment, construction zone, summary judgment, speed limit, distracted

Counsel:  [*1] For Christopher Lynn Wilson, Tyanna Arlene Wilson, Christopher George Woodby, Jennifer G Woodby, Plaintiffs: Brian Forrest Davis, LEAD ATTORNEY, Davis Law Group, P.A., Asheville, NC; Joshua Owen Harper, The Harper Law Firm, PLLC, Sylva, NC.

For Associated Petroleum Carriers, Inc., Petroleum Carriers, Inc., CD Energy, LLC, Christopher Lewis Scott, Defendants: James G Welsh, Jr., Winston-Salem, NC; Jilliann L. Tate, Davis and Hamrick LLP, Winston Salem, NC; H. Lee Davis, Jr., Davis & Hamrick, L.L.P., Winston-Salem, NC.

Judges: Martin Reidinger, Chief United States District Judge.

Opinion by: Martin Reidinger

Opinion

MEMORANDUM OF DECISION AND ORDER

THIS MATTER is before the Court on Defendant’s Motion for Partial Summary Judgment. [Doc. 71].

I. PROCEDURAL BACKGROUND

On June 17, 2021, Plaintiffs Christopher Lynn Wilson, Tyanna Arlene Wilson, Christopher George Woodby, and Jennifer G. Woodby (collectively, “Plaintiffs”) brought this action against Defendants Associated Petroleum Carriers, Inc., Petroleum Carriers, Inc., CD Energy, LLC, and Christopher Lewis Scott (“Scott”) (collectively, “Defendants”), alleging claims for negligence, gross negligence, willful or wanton negligence, and recklessness, and seeking both compensatory [*2]  and punitive damages [Doc. 1].

On September 10, 2021, the Plaintiffs filed an amended complaint asserting negligence and gross negligence against all Defendants, negligent training against the Corporate Defendants, and punitive damages against Scott. [Doc. 23]. Plaintiff Jennifer G. Woodby, Christopher Lynn Wilson, and Tyanna Arlene Wilson subsequently dismissed their claims, leaving Christopher George Woodby as the sole remaining Plaintiff. The Plaintiff dismissed his claims against Defendant CD Energy, LLC, on July 12, 2023. [Docs. 36, 65, 70].

On July 14, 2023, the remaining Defendants moved for partial summary judgment on the Plaintiff’s claims for gross negligence and punitive damages only. [Doc. 71]. The Plaintiff filed a Response to the Defendants’ Motion for Partial Summary Judgment [Doc. 73], and the Defendants filed a Reply Brief in Support of Defendants’ Motion for Partial Summary Judgment [Doc. 74]. Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant [*3]  is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “As the Supreme Court has observed, ‘this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)) (emphasis in original).

A genuine issue of fact exists if a reasonable jury considering the evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994), cert. denied, 513 U.S. 813, 513 U.S. 814, 115 S. Ct. 67, 130 L. Ed. 2d 24 (1994). “Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact.” Bouchat, 346 F.3d at 522. If this showing is made, the burden then shifts to the nonmoving party who must convince the Court that a triable issue does exist. Id. In considering the facts on a motion for summary judgment, the Court will view the pleadings and material presented in the light most favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

III. FACTUAL BACKGROUND

Viewing the forecast of evidence in the light most favorable to the Plaintiff, the following is a recitation of the relevant facts.

On December 28, 2019, [*4]  Defendants’ tractor trailer struck a vehicle that caused another vehicle to strike the Plaintiff’s vehicle, resulting in significant injuries to the Plaintiff. [Doc. 72 at 3]. The Defendant Scott was driving the tractor trailer carrying hazardous flammable liquid. [Doc. 73 at 2-3]. The crash occurred in a construction zone on I-26 West in Asheville, North Carolina. [Doc. 72 at 2]. The Defendant Scott, who stated he was aware of the construction project as it had been ongoing for a few months, was unable to stop and caused the collision. [Doc. 73 at 3]. The speed limit at the crash location was 55 miles per hour (“mph”); Defendant Scott stated that he was driving 60 mph and that the cars in front of him were six to seven seconds ahead of him. [Doc. 73 at 4]. Given these statements, the Plaintiff’s accident reconstruction expert opined that Defendant Scott could have brought his vehicle to a complete stop in 367 feet and avoided the collision. [Doc. 73-2 at 7]. Further analysis, including of tire impressions at the scene of the accident, led the same expert to conclude that the Defendant Scott’s vehicle was traveling at approximately 50 mph at impact with the line of cars and Plaintiff’s [*5]  vehicle. [Id. at 5].

The Defendant Scott testified that he was on a phone call shortly before¹ the crash occurred; this call was confirmed by his cell phone records. [Doc. 73 at 4]. He also testified that he would use one earbud in one ear to talk on the phone while he was driving and did so on the day of the collision. [Doc. 72 at 5]. Both of the Plaintiff’s experts opined that the cause of the crash was the Defendant Scott being distracted by his cell phone. [Doc. 73 at 14]. The Defendant’s expert also stated that “drivers should have a heightened awareness when traveling through a construction zone,” while the Plaintiff’s vehicle safety expert opined that “driving and transporting hazardous material can be very hazardous that requires ‘a lot more caution than you would if you were just transporting dry goods, or perishables.'” [Doc. 73 at 3].

The Plaintiff has suffered severe injuries and has undergone four surgeries to date as a result of the collision. [Doc. 73 at 7]. He has incurred over $230,000.00 in medical bills and continues to be treated for physical and mental injuries. [Doc. 73 at 7].

IV. DISCUSSION

A. Gross Negligence

The North Carolina Supreme Court has distinguished between [*6]  ordinary negligence and gross negligence as follows:

[T]his Court, in references to gross negligence, has used that term in the sense of wanton conduct. Negligence, a failure to use due care, be it slight or extreme, connotes inadvertence. Wantonness, on the other hand, connotes intentional wrongdoing. Where malicious or wilful [sic] injury is not involved, wanton conduct must be alleged and shown to warrant the recovery of punitive damages. Conduct is wanton when in conscious and intentional disregard of and indifference to the rights and safety of others.

Thus, the difference between the two is not in degree or magnitude of inadvertence or carelessness, but rather is intentional wrongdoing or deliberate misconduct affecting the safety of others. An act or conduct rises to the level of gross negligence when the act is done purposely and with knowledge that such act is a breach of duty to others, i.e., a conscious disregard of the safety of others. An act or conduct moves beyond the realm of negligence when the injury or damage itself is intentional.

Yancey v. Lea, 354 N.C. 48, 53, 550 S.E.2d 155, 158 (2001) (emphases in original) (citation omitted). In Yancey, the North Carolina Supreme Court surveyed motor vehicle negligence cases and found that [*7]  gross negligence, a less culpable standard than willful and wanton conduct, “has been confined to circumstances where at least one of three rather dynamic factors is present: (1) defendant is intoxicated; (2) defendant is driving at excessive speeds; or (3) defendant is engaged in a racing competition.” 354 N.C. 48, 53-54, 550 S.E.2d 155 (2002) (citations omitted). While these factors do not “comprise an exhaustive list” in determining gross negligence, this is a starting point to determine the level of culpability required for gross negligence. Mikos v. Clark, No. 1:19-CV-00309-MR-WCM, 2020 U.S. Dist. LEXIS 169906, 2020 WL 5549605, at *2 (W.D.N.C. Sept. 16, 2020). The Fourth Circuit has interpreted Yancey and other North Carolina cases as “requir[ing] a showing of intentional wrongdoing in order to sustain a claim of gross negligence” under North Carolina law. FDIC v. Rippy, 799 F.3d 301, 314 (4th Cir. 2015).

The Plaintiff’s forecast of evidence fails to show that the Defendant was intoxicated, driving at excessive speeds, or engaged in a racing competition at the time of the accident. Nor has any of the forecasted evidence suggested that the Defendants acted with the intent to cause injury or damage. The Plaintiff’s claims are based on the following alleged facts: the Defendant Scott was distracted on his cell phone, was carrying hazardous flammable liquid, and drove above the speed limit in [*8]  a construction zone. [Doc. 73 at 1]. Taking each of these circumstances in turn, this Court finds they do not meet the demanding standard for gross negligence.

The forecasted evidence shows that while the speed limit at the location of the accident was 55 miles per hour, Defendant Scott was going 60 miles per hour before the accident and 50 miles per at the time of impact. [Doc. 73 at 4-5]. Driving five miles above the speed limit, even in a construction zone, is not even close to driving at an “excessive speed.” Transporting a hazardous flammable liquid, while posing certain unique risks, also is not determinative here since nothing in the forecasted evidence suggests that the Defendants failed to properly secure the hazardous materials or that any materials were spilled or otherwise contributed to the collision.

Furthermore, even assuming, as the Plaintiffs allege, that Defendant Scott was distracted by being on the phone at the time of the collision and that this distraction was the cause of the collision, these facts would not be sufficient to rise to the level of intentional wrongdoing. Talking on the phone while driving to the point of being distracted may very well give rise to [*9]  a claim of ordinary negligence but cannot on its own establish gross negligence. Indeed, the Plaintiff has forecast evidence that talking on the phone while driving might be “risky,” but this is not the applicable standard. [Doc. 73-6 at 5]. Therefore, the forecasted evidence is insufficient for a jury to find that the Defendants were grossly negligent, and accordingly, the Plaintiff’s claim for gross negligence must fail.

B. Punitive Damages

Because the standard for punitive damages is even more demanding than for gross negligence, the Plaintiff’s punitive damages claim is unfounded for essentially the same reasons. Punitive damages are available to plaintiffs in North Carolina to punish defendants for egregiously wrongful acts and to deter the commission of similar wrongful acts. N.C. Gen. Stat. § 1D-1. A plaintiff can recover punitive damages only by proving the existence of one of three aggravating factors by clear and convincing evidence: (1) fraud; (2) malice; or (3) willful or wanton conduct. Id. at § 1D-15. “Willful and wanton conduct” is defined as the “conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely [*10]  to result in injury, damage, or other harm.” Id. at § 1D-5(7). “[W]illful or wanton conduct is ‘more’ than gross negligence in the sense that willful or wanton conduct requires, in addition to breach of a known duty, an aggravating factor.” Justice v. Greyhound Lines, Inc., No. 5:16-CV-132-FL, 2018 U.S. Dist. LEXIS 54285, 2018 WL 1570804, at *4 (E.D.N.C. Mar. 30, 2018). “[C]ourts must determine whether the plaintiff produced clear and convincing evidence from which a jury could reasonably find willful or wanton conduct.” 2018 U.S. Dist. LEXIS 54285, [WL] at *3 (citation and quotations omitted).

Here, the Plaintiff’s forecast of evidence fails to show that Defendant Scott’s actions were in “conscious and intentional disregard of and indifference to the rights and safety of others.” N.C. Gen. Stat. § 1D-5(7). Nothing in the record demonstrates that Defendant Scott’s driving five miles per hour above the speed limit in a construction zone or talking on the phone while driving was done with any disregard for the safety of the Plaintiff or other drivers. Because Defendant Scott’s alleged actions are insufficient evidence from which a jury could reasonably find willful or wanton conduct, the Defendants’ motion for summary judgment on the Plaintiff’s claim for punitive damages will be granted.

ORDER

IT IS, THEREFORE, ORDERED that the Defendants’ Motion for Partial Summary Judgment [Doc. 71] [*11]  is GRANTED, and the Plaintiffs’ claims for gross negligence and punitive damages are hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

Signed: September 18, 2023

/s/ Martin Reidinger

Martin Reidinger

Chief United States District Judge

End of Document

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¹ The parties dispute whether the Defendant Scott was still on the phone at the time of the accident or whether the phone call had ended at that point in time. [Doc. 73 at 14]. For the purposes of the present motion, the Court accepts the facts as most favorable to the non-moving party—here, the Plaintiff—and finds this disputed fact immaterial.

United States District Court for the Southern District of West Virginia, Charleston Division

September 26, 2023, Decided; September 26, 2023, Filed

CIVIL ACTION NO. 2:22-cv-00499

Reporter

2023 U.S. Dist. LEXIS 171631 *

PATRICIA ROGERS, Plaintiff, v. CRAIG A. TARBOX, et al., Defendants.

Core Terms

punitive damages, summary judgment, tractor–trailer, egregious, drivers, speed, driving, Route

Counsel:  [*1] For Patricia Rogers, Plaintiff: Jennifer D. Roush, Robert A. Campbell, Stephen B. Farmer, LEAD ATTORNEYS, FARMER CLINE & CAMPBELL, Charleston, WV.

For Craig A. Tarbox, Riverside Transportation, Inc., Riverside Transport, Inc., and, Defendants: Julie Brennan, LEAD ATTORNEY, PION NERONE GIRMAN WINSLOW & SMITH, Pittsburgh, PA; Timothy R. Smith, LEAD ATTORNEY, PION JOHNSTON NERONE GIRMAN GLEMENTS & SMITH, Pittsburgh, PA.

Judges: THOMAS E. JOHNSTON, CHIEF UNITED STATES DISTRICT JUDGE.

Opinion by: THOMAS E. JOHNSTON

Opinion

MEMORANDUM OPINION AND ORDER

Pending before the Court is Defendants Craig A. Tarbox, Riverside Transportation, Inc., and Riverside Transport, Inc.’s (“Defendants”) Motion for Partial Summary Judgment. (ECF No. 42.) For the reasons more fully explained below, the motion is GRANTED.

I. BACKGROUND

On October 23, 2020, Defendant Craig A. Tarbox (“Defendant Tarbox”) left a T.J. Maxx distribution center in Evansville, Indiana. (ECF No. 44-3 at 24:15-20.) He was bound for Beckley, West Virginia, hauling a load of merchandise in his tractor–trailer. (Id. at 26:4-6.) He drove mostly interstate—that is, until he approached the West Virginia Turnpike. (See id at 25:12-19, 28:6-15.) His employer, Defendant Riverside [*2]  Transportation, Inc., prohibited its drivers from taking toll roads. (Id. at 28:16-23.) So, before reaching the first toll booth, Defendant Tarbox departed Interstate-64, opting to take Route 61 the rest of the way. (Id. at 28:13-20.)

Route 61 differs from the interstate. It’s two-lane. (Id. at 29:12-14.) The speed limit varies.¹ (ECF No. 44-2 at 21:16-18.) It’s chock-full of “switchbacks” and “hairpin curves.” (ECF No. 44-1 at 31:8-12; ECF No. 44-2 at 7:16-19.) Tractor–trailers get stuck on it with some frequency. (ECF No. 44-6 at 20:3-19.) Unsurprisingly, there are at least two large signs along Route 61 warning drivers that the road is “NOT SUITABLE FOR LARGE TRUCKS.”² (ECF No. 44-1 at 48:4-16; ECF No. 44-7.)

Shortly after turning on Route 61, Defendant Tarbox approached a tight, 90-degree lefthand turn. (ECF No. 44-2 at 9:16-20; ECF No. 44-3 at 29:21-30:2.) He slowed as he entered the turn, although the parties dispute exactly how much. Defendant Tarbox claims that he decelerated to five miles per hour, if not a complete stop. (ECF No. 44-3 at 39:20-24.) Jimmy Canterbury, who was riding in Plaintiff’s SUV, says that Defendant Tarbox was still traveling upwards of 25 miles per hour. [*3]  (ECF No. 44-2 at 22:1-4.) Either way, trouble ensued. The turn was too tight for Defendant Tarbox’s tractor–trailer, and he crossed the median. (ECF No. 44-2 at 10:24-11:7.)

Plaintiff was traveling in the opposite lane and watched this scene unfold. On her telling, she “stopped dead in the road” and intended “to put it in ‘Reverse’ [to] let [Defendant Tarbox] get by, but he just kept coming.” (ECF No. 44-1 at 31:18-22.) Defendant Tarbox’s trailer and its tires then struck Plaintiff’s SUV, sideswiping the entire driver’s side. (ECF No. 44-2 at 11:11-21.) The impact sent Plaintiff’s SUV to the road’s edge, inches from the ditch. (ECF No. 44-1 at 42:6-16; ECF No. 44-8.) Defendant Tarbox came to a stop a short distance up the road. (ECF No. 44-2 at 12:23-13:4.)

Emergency personnel arrived about half an hour later, (ECF No. 44-2 at 15:15-22), and Detective Brian Fernandez (“Detective Fernandez”) of the Fayette County Sherriff’s Department soon began investigating, (ECF No. 44-6 at 7:2-7). He completed a West Virginia Uniform Traffic Crash Report and recorded both parties’ statements. (ECF No. 44-5.) He also determined that Defendant Tarbox (1) had a valid commercial driver’s license and (2) [*4]  was not intoxicated, impaired, or distracted at the time of the wreck. (ECF No. 44-6 at 23:6-22.) In the end, though, Detective Fernandez concluded that Defendant Tarbox “[f]ailed to [k]eep in [the] [p]roper [l]ane” and was entirely at fault. (ECF No. 44-5.) However, despite finding Defendant Tarbox at fault, Detective Fernandez did not issue him a citation or warning. (ECF No. 44-6 at 16:4-8.) As for medical attention, paramedics were on-scene but, according to Detective Fernandez’s report, nobody received medical treatment. (Id. at 24:4-19.)

Plaintiff filed this civil action in the Circuit Court of Fayette County, West Virginia, on September 22, 2022. (ECF No. 1-1.) She sued Defendants Tarbox, Riverside Transportation, Inc., Riverside Transport, Inc., and John Doe Company. (Id.) Her complaint alleges Defendant Tarbox acted negligently and, alternatively, recklessly, and that his employer is vicariously liable for his actions. (Id.) Her complaint further alleges that she has suffered personal injuries and property damage because of the wreck. (Id.) She therefore seeks compensatory and punitive damages, interest thereon, and attorneys’ fees. (Id. at 7-8.)

Defendants removed the case [*5]  to this Court on October 28, 2022, properly invoking diversity jurisdiction pursuant to 28 U.S.C. § 1332. (ECF No. 1.) Defendants then filed a partial motion to dismiss and strike on November 4, 2022. (ECF No. 4.) This Court, by Memorandum Opinion and Order dated April 7, 2023, denied that motion in its entirety. (ECF No. 17.) Then, on August 17, 2023, Defendants filed a motion for partial summary judgment, asking this Court to dismiss the request for punitive damages only. (ECF No. 42.) Plaintiff responded on August 31, 2023, (ECF No. 44) and Defendants replied on September 7, 2023, (ECF No. 45). As such, the matter is now ripe for adjudication.

II. LEGAL STANDARD

Rule 56 of the Federal Rules of Civil Procedure governs motions for summary judgment. In pertinent part, this rule states that a court should grant summary judgment if “there is no genuine issue as to any material fact.” Summary judgment should not be granted, however, if there are factual issues that reasonably may be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Facts are ‘material’ when they might affect the outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). When evaluating these factual issues, [*6]  the Court must view the evidence “in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

“The burden is on the nonmoving party to show that there is a genuine issue of material fact for trial . . . by offering ‘sufficient proof in the form of admissible evidence’ . . . .” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). “This burden may be met by use of the depositions and other discovery materials.” Barwick v. Celotex Corp., 736 F.2d 946, 958 (4th Cir. 1984). Once the moving party meets its burden, the burden shifts to the non-moving party to “make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Should a party fail to make a sufficient showing on one element of that party’s case, the failure of proof “necessarily renders all other facts immaterial.” Id. at 323.

“[A] party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 256. “The mere existence of a scintilla of evidence” in support of the nonmoving party is not enough to withstand summary judgment; the judge must ask whether “the jury could reasonably find for the plaintiff.” Id. at 252.

III. DISCUSSION [*7] 

In West Virginia,

[a]n award of punitive damages may only occur in a civil action against a defendant if [the] plaintiff establishes by clear and convincing evidence that the damages suffered were the result of the conduct that was carried out by the defendant with actual malice toward the plaintiff or a conscious, reckless and outrageous indifference to the health, safety and welfare of others.

W. Va. Code § 55-7-29(a). “This is no easy standard to meet.” Davis v. Milton Police Dep’t, No. 3:20-cv-00036, 2020 WL 2341238, at *8 (S.D. W. Va. May 11, 2020). Indeed, punitive damages awards are “the exception, not the rule.” Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d 815, 909-10 (W. Va. 2010) (Workman, J., concurring in part and dissenting in part). “[T]he level of bad conduct on the part of a defendant must be very high in order to meet the punitive standard.” Id. at 910. Simple negligence does not cut it. Surber v. Greyhound Lines, Inc., No. 2:06-cv-00273, 2006 WL 3761372, at *4 (S.D. W. Va. Dec. 21, 2006). The defendant’s conduct must instead be “extreme and egregious.” Perrine, 694 S.E.2d at 909.

In automobile accident cases, courts tend to reserve punitive damages for the most egregious of facts.³ These cases typically feature defendant-drivers that are drunk, speeding, passing when they should not be, or some combination of the three, and oftentimes end up convicted of non-trivial traffic offenses. In Perry v. Melton, for example, the defendant, who had a blood alcohol content of .19, tried using the emergency [*8]  parking lane to pass another vehicle, but instead clipped a tractor–trailer parked on the shoulder, went airborne, and struck another car. 299 S.E.2d 8, 10 (W. Va. 1982). Both drivers died. Id. Likewise in Smith v. Perry, the defendant, who had also been drinking, was running between 20 to 30 miles an hour over the speed limit— and in a no-passing zone—when he crossed the double-yellow line and hit the plaintiff head-on. 359 S.E.2d 624, 625 (W. Va. 1987) (per curiam). He later pled guilty to reckless driving. Id. So too in Kenney v. Liston, where the defendant had a blood alcohol content over four times the legal limit and slammed into a stopped car without so much as tapping the brakes. 760 S.E.2d 434, 437 (W. Va. 2014). The defendant pled no contest to driving under the influence. Id. Finally, in Wilburn v. McCoy, despite having his license revoked for a prior DUI, the defendant nevertheless drove under the influence of several narcotics, hit a car head-on, and then fled the scene. No. 14-0054, 2014 WL 5712761, at *1 (W. Va. Nov. 3, 2014) (memorandum decision).

These cases stand in stark contrast to the garden-variety truck-wreck cases unworthy of punitive damages because, despite causing serious wrecks, the defendant-drivers did not exhibit extreme and egregious conduct. For instance, in White v. Swift Transportation Company of Arizona, [*9]  LLC, the tractor–trailer driver-defendant was driving below the speed limit, yet still too fast for the snowy conditions, and rear-ended the car ahead of him. No. 1:12-cv-00020, 2013 WL 12108650, at *1 (N.D. W. Va. Mar. 15, 2013). The defendant tested negative for alcohol and controlled substances following the crash. See id. Judge Keeley thus dismissed the punitive damages claim because the defendant’s “behavior [did not] ris[e] to the required degree of egregiousness.” Id. at *2. In Hurley v. Averitt Express, Inc., the tractor–trailer driver-defendant went to switch lanes but instead wound up dragging a Saturn sedan 750 feet down the interstate. No. 2:11-cv-00624, 2012 WL 4742274, at *1 (S.D. W. Va. Oct. 3, 2012). The plaintiff presented no evidence that the defendant was impaired, distracted, or acted with malice. See id. Judge Copenhaver dismissed the punitive damages claim because, even when viewing the facts in the light most favorable to the plaintiff, they “reveal[ed] no conduct that could satisfy the punitive damage standard.” Id. at *4.

The same goes here. For starters, Defendant Tarbox, unlike the drivers in Melton, Smith, Kenney, and Wilburn, was not intoxicated or impaired when he caused the wreck. Nor was he speeding. Although the parties dispute his exact speed, viewing the facts in the light most favorable to Plaintiff, [*10]  Defendant Tarbox was still traveling no faster than 25 miles per hour. Also, Defendant Tarbox did not hit Plaintiff while trying to pass in the wrong place; he simply misjudged the necessary angle to complete a 90-degree turn. Small surprise, then, that Defendant Tarbox was not ticketed, despite Detective Fernandez finding him at fault. Further, in contrast to Wilburn, Defendant Tarbox had valid driving credentials and did not try to flee the scene. He instead waited for Detective Fernandez to arrive and fully cooperated with his investigation. In the end, this case is no different than White and Hurley because it too lacks “the required degree of egregiousness” to “satisfy the punitive damage standard.” White, 2013 WL 12108650, at *2; Hurley, 2012 WL 4742274, at *4.

Plaintiff sees things differently. In her view, punitive damages are warranted here because Defendant Tarbox (1) drove his tractor–trailer on a rural route unsuitable for large trucks to save a few dollars on toll fees, and (2) continued driving over the center line despite seeing Plaintiff in the opposite lane. (ECF No. 44 at 6-12.)

Neither fact warrants punitive damages. Taking things in reverse order, the Court disagrees that Defendant Tarbox’s crossing the center line is sufficiently egregious [*11]  to satisfy § 55-7-29(a). The undisputed facts show that Defendant Tarbox did not hit Plaintiff head-on, or even with the cab of his rig. Only his trailer and its tires made contact with Plaintiff’s SUV. Even then, the vehicles only sideswiped one another—that was it. Moving on to Plaintiff’s remaining contention, she cites no case where any court has ever awarded punitive damages because a tractor–trailer drove on the wrong road. This Court will not be the first.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion for partial summary judgment on the issue of punitive damages is GRANTED.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any unrepresented party.

ENTER: September 26, 2023

/s/ Thomas E. Johnston

THOMAS E. JOHNSTON, CHIEF JUDGE

End of Document

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¹ The record contains conflicting evidence as to the posted limit where the wreck occurred. According to Plaintiff’s deposition testimony, the posted speed limit is 55 miles per hour where the accident occurred. (ECF No. 44-1 at 31:5-7.) Jimmy Canterbury, meanwhile, testified that he believed the speed limit was 25 miles per hour in the area. (ECF No. 44-2 at 21:16-24.)

² Defendant Tarbox does not recall seeing either sign. (ECF No. 44-3 at 42:21-43:3.) However, one such sign is located near Montgomery, West Virginia, through which his toll-free route took him. (ECF No. 44-6 at 18:8-11.) Because Plaintiff is the non-moving party, the Court will infer, as it must, that Defendant Tarbox drove past the sign and thus had reason to know his truck was not suitable for Route 61.

³ The Court recognizes that West Virginia Code § 55-7-29(a) altered the punitive damages threshold slightly, Jordan v. Jenkins, 859 S.E.2d 700, 723 (W. Va. 2021), but nevertheless finds that pre-2015 punitive damages cases still “provide[] guidance as to when punitive damages are available to a plaintiff.” Billings v. Lowe’s Home Ctrs., LLC, No. 2:18-cv-00039, 2019 WL 1869936, at *5 (S.D. W. Va. Apr. 24, 2019).