United States District Court, W.D. New York.
STEPHANIE HUME, as Administratix of the Estate of TIMOTHY HUME a/k/a TIMOTHY JAMES HUME, Deceased, Plaintiff,
v.
FARR’S COACH LINES LIMITED, et al., Defendants.
FARR’S COACH LINES LIMITED and RENE BISSON, Third-Party Plaintiffs,
v.
MATRIX EXPEDITED SERVICE, LLC, Third-Party Defendant.
Case # 12-CV-6378-FPG
|
02/06/2018
Opinion
HON. FRANK P. GERACI, JR., Chief Judge, United States District Court

DECISION AND ORDER
INTRODUCTION
*1 On July 22, 2011, a bus operated by Defendant/Third-Party Plaintiff Rene Bisson was struck from the rear by a tractor-trailer operated by Timothy Hume (“Hume”); Hume was killed in the collision. Plaintiff Stephanie Hume (“Plaintiff”), acting in her capacity as the Administratrix of Hume’s estate, brought this action against Bisson, his employer, Farr’s Coach Lines Limited (“FCLL”), and FCLL’s insurer, London Life Insurance Company, alleging that Bisson operated the bus negligently and seeking to recover damages for Hume’s injuries. ECF No. 1. Bisson asserted a counterclaim against Plaintiff for the injuries he sustained in the accident, and also filed a third-party complaint against Third-Party Defendant Matrix Expedited Service, LLC, Hume’s employer (Plaintiff and Matrix are referred to collectively as the “Hume Parties”). ECF Nos. 18, 51, 54. Presently before the Court is Bisson’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. ECF No. 314. For the reasons that follow, Bisson’s Motion for Summary Judgment is DENIED.

BACKGROUND
I. Facts
On July 22, 2011, Bisson, an employee of FCLL, was operating a Setra motor coach (the “bus”) eastbound on State Route 90 (the “thruway”) in Junius, New York. ECF No. 317 at ¶ 2. Bisson testified at deposition that, shortly before the accident, he experienced mechanical issues with the bus and therefore he pulled over to the shoulder of the thruway. Id. at ¶ 3. Specifically, Bisson testified that a warning light related to the bus’s anti-pollution controls came on and that he pulled the bus over to manually reengage the system. ECF No. 314-9 at 50-54. The parties dispute whether it was necessary for Bisson to pull over to the shoulder to reengage the system, or whether he could have used an “engine override button” that would have permitted him to drive the bus to the next rest area. See ECF No. 321 at ¶ 3.

The parties further dispute the events immediately leading up to the accident. Bisson initially told the New York State Police that after he reengaged the anti-pollution controls, he engaged the bus’s transmission, safely re-entered the roadway with his four-way flashers engaged, and traveled for approximately two miles, reaching a speed of approximately 60 miles per hour, when Hume’s tractor-trailer rear-ended his bus. ECF No. 314-11 at 17. However, State Police interviewed Bisson a second time after they examined the scene. Id. at 19. Bisson became “visibly upset,” started to cry, and claimed that he was confused when he made his earlier statement. Id. Bisson then told the State Police that as the bus was reentering the thruway, he experienced a problem with the transmission. Id. Bisson also told the State Police that the bus traveled only “a couple of hundred feet” before the collision and that it was traveling only 20 to 25 miles per hour. Id. Bisson told the State Police that he was “trying to move the bus back onto the shoulder” when it was hit from behind. Id.

At his deposition, Bisson further described the moments leading up to the accident. He testified that a transmission light came on halfway through the process of manually reengaging the anti-pollution controls. ECF No. 314-9 at 59. Bisson also testified that the bus had not completely reentered the right driving lane when the collision occurred. Id. at 77.

*2 Robert Moss, a third-party eyewitness, was traveling eastbound on the thruway at the time of collision. Moss testified at deposition that he saw the bus on the shoulder of the thruway, and he moved his vehicle from the right lane into the left lane. ECF No. 314-10 at 43. According to Moss, the bus was completely on the shoulder when he first saw it and it had its four-way flashers engaged. Id. at 44. Moss also testified that he saw a white truck pull up beside him, and that he “eased back off” to make room for the truck to move into the left lane, but the truck continued traveling in the right lane. Id. at 45. Moss stated that “by then, the bus had come off the shoulder” and the truck ran into the back of it. Id. Moss testified that he was traveling approximately 60 miles per hour, that the collision occurred approximately 50 feet in front of him, and that the white truck could have pulled in front of him into the left lane of travel. Id. at 49. Contrary to Bisson’s testimony, Moss stated that the bus was completely in the right lane of travel when the collision occurred. Id. at 51. According to Moss, he witnessed the bus move from being completely in the shoulder to being completely in the driving lane. Id.

Bisson’s deposition testimony contradicted Moss’s testimony in some relevant regards. In particular, and contrary to Moss’s claim that there was room for Hume to move his tractor-trailer into the left lane in front of Moss, Bisson testified that Moss’s vehicle was parallel to or just passing the bus at the time of the impact. ECF No. 314-9 at 116. Moreover, and as noted above, Bisson testified that the bus was not fully in the right lane at the time of the collision. Id. at 77. Numerous passengers on the bus also testified that the bus was partially in the right lane and partially on the shoulder when the accident occurred. ECF No. 321 at ¶ 8.

The State Police issued a collision report after they investigated this accident. The State Police concluded that “[d]river inattention on the part of the operator of the tractor-trailer,” along with a failure of “the operator of the coach” to “yield[ ] to on-coming traffic before entering the roadway” were “[c]ontributing factors to the cause and severity of the collision.” ECF No. 314-11 at 132.

In connection with this action, the Hume Parties engaged an accident reconstruction expert, Michael DiTallo. In his expert report, DiTallo opines that when Bisson’s bus re-entered the thruway, Hume had as little as 2.3-3.3 seconds to react, where the average perception and response time is 2.7 seconds. ECF No. 321-1 at 1582-83. DiTallo further opines that the collision was unavoidable for Hume and that Bisson caused the collision by entering the right lane of travel at a slow speed while oncoming traffic was approaching from the rear. Id. at 1583.

II. Procedural History
On September 26, 2012, Bisson and his wife commenced an action in this Court (Case No. 12-CV-6518) (the “Bisson Action”) asserting claims against the Hume Parties, Setra of North America, Inc., Daimler Buses of North America, Inc., and Tarten Equipment Limited. On October 3, 2012, a related action (Case No. 12-CV-6538) (the “St. Paul Action”) was commenced by St. Paul Fire and Marine Insurance Company, as subrogee of FCLL, asserting claims against the Hume Parties. Plaintiff commenced this action on July 13, 2013, asserting claims against Bisson, FCLL, and London Life Insurance. ECF No. 1.

This action and the Bisson Action were consolidated for all purposes on January 10, 2013. See Case No. 12-CV-6518-FPG-JWF, ECF No. 50. This action and the St. Paul Action were consolidated solely for purposes of discovery on January 23, 2013. ECF No. 29. London Life Insurance was dismissed from the matter by stipulation on February 14, 2013. ECF Nos. 32, 33.

On July 19, 2013, with the Court’s permission, Plaintiff filed an amended complaint asserting claims against FCLL, Bisson, Setra, Daimler, Tarten, and ZF Friedrichschafen AG (“ZF”). ECF No. 37. On October 4, 2013, FCCL, Bisson, and Bisson’s wife filed a Third-Party Complaint against Matrix. ECF No. 54.

Several motions to dismiss for lack of jurisdiction were filed (see ECF Nos., 52, 72, 82, 93, 191, 116, 198), and on September 30, 2015, the Court denied the motions without prejudice and permitted limited jurisdictional discovery. ECF No. 235. The parties conducted such discovery and on November 3, 2016, the Court denied Daimler’s renewed motion to dismiss for lack of jurisdiction and granted Tarten’s renewed motion to dismiss for lack of personal jurisdiction as to all claims except the cross-claims asserted against Tarten by ZF. ECF No. 305. Setra, Daimler, and ZF were later dismissed from the action by stipulation (see ECF Nos. 306, 307), leaving the claims between FCCL, Bisson, Plaintiff, and Matrix as the only pending claims.

*3 On February 28, 2017, Bisson filed this motion for summary judgment, which asserts that he established liability as a matter of law with respect to his claims against the Hume Parties. ECF No. 314. On December 1, 2017, Matrix filed a motion for leave to file an amended answer and to file a summary judgment motion out of time. ECF No. 331. Matrix’s motion is currently pending before United States Magistrate Judge Jonathan W. Feldman, with oral argument scheduled for February 6, 2018. ECF Nos. 332, 334, 339.

DISCUSSION
I. Applicable Law and Legal Standards
A. Summary Judgment
Summary judgment is appropriate if “the pleadings, the discovery and disclosure material on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Sousa v. Roque, 578 F.3d 164, 169 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56). A “genuine issue” exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under governing law.” Id. The function of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court resolves all ambiguities and draws all factual inferences in favor of the nonmovant, but “only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56).

B. New York Law Regarding Rear-End Collisions
The Court’s jurisdiction in this matter is based on the parties’ diversity of citizenship and therefore New York substantive law applies. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 417 (2010) (“It is a long-recognized principle that federal courts sitting in diversity apply state substantive law and federal procedural law.”) (internal quotation omitted). “Under New York law, a rear-end collision establishes a prima facie case of liability against the rear vehicle and imposes a duty of explanation on the operator of that vehicle.” Krynski v. Chase, 707 F. Supp. 2d 318, 322 (E.D.N.Y. 2009) (internal quotation omitted). This presumption of liability “arises from both common law principles and New York’s Vehicle and Traffic Law, both of which establish that any driver approaching another automobile from the rear is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle.” Id. (internal quotation omitted). On a motion for summary judgment, the rear vehicle operator must rebut the presumption of negligence and, if he cannot do so, “the [operator of the forward vehicle] may properly be awarded judgment as a matter of law.” Id. (quoting Barile v. Lazzarini, 222 A.D.2d 635, 636 (2d Dep’t 1995)). “A defendant can overcome the presumption of negligence by providing a non-negligent explanation for the collision,” which may include “mechanical failure, unavoidable skidding on wet pavement, a sudden stop of the vehicle ahead, or any other reasonable cause.” Id. (internal quotation omitted); see also Kavulak v. Laimis Juodzevicius, A.V. Inc., 994 F. Supp. 2d 337, 348 (W.D.N.Y. 2014) (noting that “a prima facie case of negligence merely shifts the burden to the operator of the rearmost vehicle”).

II. Genuine Issues of Material Fact Preclude Granting Bisson Summary Judgment
*4 Bisson seeks summary judgment as to liability against the Hume Parties on the basis that the rebuttable presumption of negligence applies in this case and has not been rebutted. The Hume Parties contend that the rebuttable presumption does not apply under the facts of this case and that, in any event, they have proffered a non-negligent explanation for the collision.

The Court is not persuaded that the rebuttable presumption of negligence does not apply to this case. The Hume Parties contend that the circumstances of this case are unusual and that “[t]he subject accident is not a standard rear-end collision.” ECF No. 321-2 at 11. In particular, the Hume Parties point to evidence that (1) the bus was traveling between 20-25 miles per hour in a 65 mile per hour zone; (2) the bus was potentially straddling the right lane of travel and the shoulder; and (3) the collision did not occur in stop-and-go traffic or during daylight hours in support of their contention that this accident was “unique” and that the rebuttable presumption therefore does not apply. See id. at 11-12. However, the relevant case law does not suggest that any of these factors, alone or in combination, prevent application of the rebuttable presumption. To the contrary, the Krynski court expressly acknowledged that the rebuttable presumption applies both to vehicles moving at normal speed and to vehicles traveling slowly or in stop-and-go traffic. See Krynski, 707 F. Supp. 2d. at 323. While a lack of visibility or unpredictable action by the driver of the lead vehicle are certainly factors to consider in determining whether a prima facie case of negligence has been rebutted, they do not, by themselves, render the presumption inapplicable.

The Court finds, however, that the Hume Parties proffered a non-negligent explanation for the collision and that a reasonable jury could credit this explanation. Specifically, a reasonable jury could find that, immediately before the collision, Bisson suddenly and unexpectedly moved the bus from the shoulder of the thruway into the right lane, and that Hume, who had only seconds to respond, was blocked from moving his tractor-trailer into the left lane by Moss’s vehicle. The evidence supporting this view is recounted above and includes (1) Bisson’s testimony that Moss’s vehicle was parallel to or just passing the bus when the collision occurred; (2) Moss’s testimony that the bus was completely on the shoulder of the road when he first saw it and had moved into the right lane immediately before the collision; (3) the testimony of various bus passengers that the bus had not fully re-entered the right lane when the collision occurred, and (4) DiTallo’s expert report.

If a jury found that Hume was confronted with an emergency situation when the bus suddenly pulled into the right lane in front of him, it would be justified in finding that the presumption of negligence had been rebutted. “Under New York law, when an individual is confronted by a sudden emergency that he or she has not caused, that person is not held to the same accuracy of judgment or degree of care that would be required under ordinary circumstances.” Covey v. Simonton, 481 F. Supp. 2d 224, 233 (E.D.N.Y. 2007) (finding issues of fact precluding summary judgment where a driver rear-ended another vehicle after moving his vehicle to avoid a mattress in the road). An unexpected condition, including a sudden and unsafe lane change, is sufficient to rebut the presumption of negligence in a rear-end collision. See, e.g., Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 726 (2d Dep’t 2011) (“[E]vidence that a plaintiff’s vehicle made a sudden lane change directly in front of a defendant’s vehicle, forcing that defendant to stop suddenly, is sufficient to rebut the inference of negligence.”); Fajardo v. City of New York, 95 A.D.3d 820, 821 (2d Dep’t 2012) (“A nonnegligent explanation [for a rear-end collision] may include that a plaintiff made a sudden lane change in front of a defendant’s vehicle”); see also Martin v. Beight, No. 13-CV-855A, 2015 WL 1956506, at *6 (W.D.N.Y. Apr. 29, 2015) (noting that the presumption of negligence is rebutted in cases of “collisions resulting from lane changes”).

*5 Bisson takes issue with certain portions of DiTallo’s expert report, contending that his calculations are “self-serving” because they assume that Hume could not have seen the bus before it attempted to pull back onto the highway, and that he improperly failed to consider evidence that Hume could have taken other evasive measures to avoid the collision. ECF No. 323 at 5. It is well-established, however, that “[a]rguments about the assumptions and data underlying an expert’s testimony go to the weight, rather than the admissibility, of that testimony.” Arista Records LLC v. Lime Grp. LLC, No. 06 CV5936KMW, 2011 WL 1674796, at *7 (S.D.N.Y. May 2, 2011). On cross-examination, Bisson’s counsel can question DiTallo regarding the assumptions he made to reach his conclusions. Indeed, the Supreme Court has expressly noted that “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking” evidence that is based on questionable assumptions. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596 (1993). Ultimately, the weight to be given to DiTallo’s opinions is a question for the trier of fact and is not amenable to disposition on a summary judgment motion.

“Because every inference is construed in favor of the non-moving party, [the Hume Parties have] raised a genuine issue of material fact as to whether [Hume’s] actions were reasonable and prudent under the circumstances.” Altman v. Bayliss, No. 95-CV-0734E, 1999 WL 782338, at *2 (W.D.N.Y. Sept. 30, 1999) (denying summary judgment in a rear-end collision where the forward vehicle stopped in the roadway after it was hit by a vehicle driven by drunk driver who crossed the raised median). Accordingly, the Court finds that Bisson failed to establish his entitlement to summary judgment and that his motion must be denied.

CONCLUSION
Bisson’s Motion for Summary Judgment (ECF No. 314) is DENIED. IT IS SO ORDERED.

United States District Court, E.D. Missouri, Eastern Division.

Donald Edward HEJNAL, Plaintiff,

v.

U.S. XPRESS, INC., et al., Defendants.

No. 4:17–CV–2557 CAS

|

Signed 01/24/2018

Attorneys and Law Firms

James B. Wilmoth, Page Law LLC, Kirkwood, MO, for Plaintiff.

Angela M. Higgins, Baker and Sterchi, LLC, Kansas City, MO, for Defendants.

Opinion

 

MEMORANDUM AND ORDER

CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

*1 This diversity matter is before the Court on defendant U.S. Xpress, Inc.’s (“defendant” or “U.S. XPress”) motion for judgment on the pleadings under Rule 12(c), Federal Rules of Civil Procedure and, alternatively, to strike certain allegations pursuant to Rule 12(f). Plaintiff Donald Edward Hejnal (“plaintiff”) opposes the motion and it is fully briefed. For the following reasons, the motion will denied in all respects.

 

 

1. Background

This action for personal injuries asserts state law claims arising out of a motor vehicle accident. The First Amended Complaint (“complaint”) alleges that on February 15, 2014, defendant Janine Evelyn Williams was driving a tractor-trailer owned and/or operated by defendant U.S. Xpress, Inc., traveling westbound on Interstate 44 in Franklin County, Missouri. Complaint ¶¶ 23–25. Plaintiff alleges he was traveling westbound on Interstate 44 at the same time, and Williams changed lanes into the right lane without noticing plaintiff’s vehicle, causing the tractor-trailer and plaintiff’s vehicle to collide. Id. ¶¶ 26–27. Plaintiff alleges he suffered painful, permanent, and disabling injuries as a result. Id. ¶¶ 28, 30.

 

Plaintiff alleges that defendant is an interstate commercial motor carrier and at all times relevant to the case was acting individually and through its drivers, agents, servants, and/or employees, each of whom were acting within the course and scope of their employment with defendant. Id. ¶ 18. Plaintiff alleges that at the time of the crash, Williams was hired by defendant and was operating the tractor-trailer in the course and scope of her employment with defendant. Id. ¶¶ 19, 22. Plaintiff alleges that the negligence of defendant and its drivers, agents, servants, and employees caused or contributed to cause his injuries, which are both physical and emotional. Id. ¶¶ 29–30.

 

Count I of the complaint asserts a negligence claim against defendant Williams,1 and Count II asserts a vicarious liability/respondeat superior claim against U.S. XPress based on Williams’s acts of negligence committed within the course and scope of her agency and employment with defendant. Counts III, IV, and V assert claims against U.S. Xpress for negligent hiring/retention, negligent training, and negligent entrustment, respectively. Plaintiff seeks actual and punitive damages.

 

Defendant moves for judgment on the pleadings on Counts II through V on the grounds that the complaint consists of “boilerplate allegations lifted wholesale from other pleadings even though they are not appropriate to this action, and therefore fail to meet the pleadings standard of Rule 8,” and that plaintiff pleads no facts specific to it that are sufficient to state a claim under any of the theories pleaded. Defendant also asserts, “additionally or in the alternative,” that it is entitled to judgment on Counts III, IV, and V because plaintiff fails to plead any facts sufficient to state a claim against it.

 

*2 Finally, in the alternative, defendant moves to strike plaintiff’s allegations regarding alleged violations of the Federal Motor Carrier Safety Regulations (“FMCSR”) because (1) the FMCSR does not provide a private cause of action and therefore references to it do not establish plaintiff’s alleged causes of action and are unnecessary and immaterial, and/or (2) plaintiff has not pleaded facts in support of any alleged violation of the FMCSR.

 

 

1. Legal Standard

“A motion for judgment on the pleadings should be granted when, accepting all facts pled by the nonmoving party as true and drawing all reasonable inferences from the facts in favor of the nonmoving party, the movant has clearly established that no material issue of fact remains and that the movant is entitled to judgment as a matter of law.” Schnuck Markets, Inc. v. First Data Merchant Servs. Corp., 852 F.3d 732, 737 (8th Cir. 2017) (cited case omitted).

 

A motion under Rule 12(c) is determined by the same standards that are applied to a motion under Rule 12(b)(6). Ellis v. City of Minneapolis, 860 F.3d 1106, 1109 (8th Cir. 2017). To survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff “must include sufficient factual information to provide the ‘grounds’ on which the claim rests, and to raise a right to relief above a speculative level.” Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir. 2008) (citing Twombly, 550 U.S. at 555 & n.3). This obligation requires a plaintiff to plead “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

 

The Court accepts as true all of the factual allegations contained in the complaint, even if it appears that “actual proof of those facts is improbable,” id. at 556, and reviews the complaint to determine whether its allegations show that the pleader is entitled to relief. Twombly, 550 U.S. at 555–56; Fed. R. Civ. P. 8(a)(2). The principle that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions. Iqbal, 556 U.S. at 678.

 

In considering a Rule 12(c) motion, the Court may consider the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record. Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999). A motion for judgment on the pleadings pursuant to Rule 12(c) must be treated as a motion for summary judgment when matters outside the pleadings are presented and not excluded by the trial court. Rule 12(d), Fed. R. Civ. P. “Matters outside the pleadings” include any written evidence “in support of or in opposition to the pleading that provide[s] some substantiation for and does not merely reiterate what is said in the pleadings.” McAuley v. Federal Ins. Co., 500 F.3d 784, 787 (8th Cir. 2007) (quoted case omitted).

 

 

III. Discussion

1. “Boilerplate” Allegations, Counts II–V

Defendant moves for judgment on the pleadings on Counts II, III, IV, and V asserting that plaintiff’s claims lack facial plausibility because they do not rise above the speculative level, and plaintiff has not pleaded sufficient factual content to allow the Court to draw a reasonable inference that defendant is liable for the misconduct alleged, as required by the Iqbal standard. Defendant asserts this is because the allegations in the complaint are “merely boilerplate allegations that are word-for-word identical to allegations in other complaints against trucking companies filed by plaintiff’s counsel, are therefore speculative, and do not permit the Court to draw a reasonable inference that this defendant has engaged in the misconduct alleged.” Mem. Supp. Mot. J. Pleadings at 4. Defendant attempts to support its argument with matters outside the pleadings, specifically a copy of a complaint in another case, and portions of defendant Williams’s motor vehicle record and driver’s log, but the Court excludes and does not consider these exhibits.

 

*3 As stated above, the complaint alleges facts concerning a tractor-trailer owned and/or operated by defendant and its employee or agent that collided with plaintiff’s vehicle on February 15, 2014, and resulted in injury to plaintiff. The complaint asserts various causes of action based on the collision. Defendant admits in its Answer that the collision took place. Defendant cites no authority to support its argument that the complaint fails to state a claim, or is speculative, because the complaint’s allegations are virtually the same as those pleaded in a separate lawsuit against another trucking company, i.e., it is a form pleading. “It is a matter of common knowledge in the legal community that standard form pleadings are routinely used by cost-conscious attorneys in all types of litigation.” Powers v. Credit Mgmt. Servs., Inc., 776 F.3d 567, 570 (8th Cir. 2015).2 This aspect of defendant’s motion will be denied.

 

 

1. Counts III, IV, and V

Defendant also argues that plaintiff’s claims for negligent hiring/retention, negligent training, and negligent entrustment fail to state a claim against it. The Court examines defendant’s arguments as to each of these claims in turn.

 

 

1. Count III—Negligent Hiring/Retention

Defendant moves for judgment on Count III on two grounds: (1) plaintiff fails to plead any facts, as opposed to legal conclusions, in support of his claim for negligent hiring and/or retention; and (2) plaintiff’s allegation in the complaint that the driver was acting within the course and scope of her employment, which defendant has admitted, directly contradicts the requirements of a claim for negligent retention as a matter of law. The Court addresses these in turn.

 

 

1. Plaintiff Pleads Sufficient Facts to State a Claim

Plaintiff responds that the complaint states a claim for negligent hiring/retention because it alleges the following facts: Defendant Williams was unqualified to operate a commercial motor vehicle due to her driving history, inexperience, lack of skill, lack of training, lack of knowledge, and/or physical medical condition, complaint ¶ 56; defendant U.S. XPress knew or should have known through the use of ordinary care that Williams was unqualified to safely operate a commercial motor vehicle and that she had a history of serious traffic violations and FMCSR violations, id. ¶¶ 58–60; and Williams’s inexperience, lack of knowledge, and lack of training directly caused her to collide with plaintiff’s vehicle and injure plaintiff. Id. ¶ 63.

 

Defendant replies that plaintiff does not identify any facts pleaded in support of Count III, but instead pleads a formulaic recitation of conclusory allegations rather than case-specific facts. Defendant asserts that a plaintiff making a negligent hiring or retention claim must plead the prior acts of misconduct by the employee that puts the employer on notice of her dangerous proclivities, citing Lambert v. New Horizons Community Support Services, Inc., 2016 WL 1562963, at *4 (W.D. Mo. Apr. 18, 2016); and Clevenger v. Howard, 2015 WL 7738372, at *3–4 (W.D. Mo. Nov. 30, 2015).

 

Under Missouri law, “a plaintiff states a prima facie case of negligent hiring by pleading that ‘(1) the employer knew or should have known of the employee’s dangerous proclivities, and (2) the employer’s negligence was the proximate cause of the plaintiff’s injuries.’ ” Lambert, 2016 WL 1562963, at *4 (quoting Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo. 1997) (en banc)). “An employer’s knowledge of the employee’s dangerous proclivities is based upon ‘prior acts of misconduct.’ ” Id. (quoting Reed v. Kelly, 37 S.W.3d 274, 277 (Mo. Ct. App. 2000)). “[T]o maintain a negligent hiring claim, a plaintiff must allege that the employee demonstrated dangerous proclivities before committing the act that caused the injury at issue.” Id. (citing Moreland v. Farren–Davis, 995 S.W.2d 512, 517 (Mo. Ct. App. 1999)).

 

*4 The elements of a negligent retention claim are the same as for a negligent hiring claim. Reed, 37 S.W.3d at 278 (citing Gibson, 952 S.W.2d at 246). The negligent retention cause of action similarly requires “a dangerous proclivity of the employee and knowledge of that proclivity” by the employer, but is based on “the act of retaining an already hired employee rather than the initial act of hiring.” Braxton v. DKMZ Trucking, Inc., 2013 WL 6592771, at *2 (E.D. Mo. Dec. 16, 2013) (citing Reed, 37 S.W.3d at 277–78).

 

Here, plaintiff’s complaint alleges that U.S. XPress knew or should have known that Williams “had a history of serious traffic convictions and federal motor carrier safety regulation violations.” This is a factual allegation that adequately alleges defendant’s knowledge of prior misconduct by its employee. Plaintiff also alleges that defendant’s negligence was the proximate cause of his injury. Defendant’s motion to dismiss the negligent hiring/retention claim will be denied.

 

 

1. Negligent Retention Does Not Require that the Employee was Acting Outside the Course of Employment

Defendant’s second argument is that the negligent retention claim fails as a matter of law because plaintiff alleges Williams was acting within the course and scope of her employment at the time of the collision, and such an allegation directly contradicts the requirements of a claim for negligent retention, citing Clevenger, 2015 WL 7738372, at *4–5. The court in Clevenger quoted Dibrill v. Normandy Associates, Inc., 383 S.W.3d 77, 87 (Mo. Ct. App. 2012), for the proposition that a “cause of action for negligent hiring or negligent supervision requires ‘evidence that would cause the employer to foresee that the employee would create an unreasonable risk of harm outside the scope of his employment.’ ” Clevenger, 2015 WL 7738372, at *3. Clevenger states that an allegation an employee was acting within the course and scope of his employment “directly contradicts the requirements of a claim for negligent supervision/retention.” Id. at *5. The Court believes this statement incorrectly conflates the elements of two separate causes of action under Missouri law, negligent supervision and negligent retention.

 

Under Missouri law, it is beyond doubt that “a negligent supervision claim requires as a necessary and indispensable element that the employee be acting outside of the scope of her employment.” Nickel v. Stephens Coll., 480 S.W.3d 390, 402 (Mo. Ct. App. 2015). Negligent retention, however, does not include such an element. See Gibson, 952 S.W.2d at 246.

 

When a federal court sits in diversity, it must apply the governing precedent from the state’s highest court, and when there is no case directly on point, the federal court must predict how the state supreme court would rule if faced with the same question. Blankenship v. USA Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010). “[D]ecisions of the state’s highest court are to be accepted as definite state law unless the state court has later given clear and persuasive indication that its pronouncement will be modified, limited, or restricted.” S.B.L. ex rel. T.B. v. Evans, 80 F.3d 307, 310 (8th Cir. 1996) (citations and internal quotations omitted); see also St. Paul Fire & Marine Ins. Co. v. Schrum, 149 F.3d 878, 880 (8th Cir. 1998).

 

As stated above, the elements of the Missouri causes of action for negligent hiring and retention are the same, and were definitively articulated by the Missouri Supreme Court in Gibson, 952 S.W.2d at 246. The court held that “[t]o establish a claim for negligent hiring or retention, a plaintiff must show: (1) the employer knew or should have known of the employee’s dangerous proclivities, and (2) the employer’s negligence was the proximate cause of the plaintiff’s injuries.” The Missouri Supreme Court cited to, among other cases, Gaines v. Monsanto Co., 655 S.W.2d 568, 571 (Mo. Ct. App. 1983), in which the Missouri Court of Appeals stated, “We conclude that an employer may be directly liable for negligent hiring or negligent retention of an employee where the employer knew or should have known of the employee’s dangerous proclivities and the employer’s negligence was the proximate cause of the plaintiff’s injury.” The court added, “Negligent hiring or retention liability is independent of respondeat superior liability for negligent acts of an employee acting within the scope of his employment.” (emphasis added). Therefore, it is clear that the negligent retention cause of action does not require that an employee act outside the scope of his employment for the employer to be liable.3

 

*5 The Missouri Supreme Court has not addressed negligent hiring or retention since Gibson, and therefore has not given a clear and persuasive indication that its pronouncement therein will be modified, limited, or restricted. This Court’s review of the law indicates that Missouri Court of Appeals decisions, except for Dibrill, do not include as an element of the negligent retention cause of action that the employee must be acting outside the course and scope of employment. See, e.g., Storey v. RGIS Inventory Specialists, LLC, 466 S.W.3d 650, 657 (Mo. Ct. App. 2015) (“To establish a claim for negligent hiring or retention, a plaintiff must show: (1) the employer knew or should have known of the employee’s dangerous proclivities, and (2) the employer’s negligence was the proximate cause of the plaintiff’s injuries.” (citing Reed, 37 S.W.3d at 277); Gibson, 952 S.W.2d at 246). “To sustain a claim based on the theory of negligent hiring and retention, the plaintiff must plead and prove that an employer-employee relationship existed.” Id. (citing Moreland v. Farren–Davis, 995 S.W.2d 512, 517 (Mo. App. W.D. 1999)).

 

In the Dibrill case, the Missouri Court of Appeals cited Reed, 37 S.W.3d at 278, to support the proposition that a negligent retention claim requires an act by the employee outside the scope of his employment. Reed, however, states that the elements of negligent retention are the same as for negligent hiring, id. (citing Gibson, 952 S.W.2d at 246), and explains that “[a]n employer may be liable for negligent hiring if the employer knew or should have known of the employee’s dangerous proclivities and the employer’s negligence was the proximate cause of plaintiff’s injury.” Id. at 277. Reed then articulates the elements of a negligent supervision claim based on Restatement § 317, and comments that negligent supervision “also,” i.e., in contrast to a negligent hiring or retention claim, requires a showing that the employee was acting outside the course and scope of his employment. Id. at 278. Reed plainly does not hold that either negligent hiring or negligent retention requires a showing that the employee was acting outside the course and scope of his employment.

 

Thus, Dibrill adds a requirement to the negligent retention cause of action that was not established by the Missouri Supreme Court in Gibson, and is not supported by the case it cites for the proposition, Reed. The Court believes Dibrill is an incorrect articulation of Missouri law based on an apparent misreading of prior precedent, and as such is not the best evidence of Missouri law. The Court therefore declines to follow Dibrill and the federal cases that cite it.4 See Washington v. Countrywide Home Loans, Inc., 747 F.3d 955, 957–58 (8th Cir. 2014) (declining to following Missouri Court of Appeals decision that ignored controlling precedent by the Missouri Supreme Court); Harris v. Mortgage Professionals, Inc., 781 F.3d 946, 948–49 (8th Cir. 2015) (district court incorrectly relied on intermediate court decision that did not follow Missouri Supreme Court’s holdings).

 

The Court will therefore deny defendant’s motion to dismiss the negligent retention claim.

 

 

2. Count IV—Negligent Training

Defendant moves to dismiss plaintiff’s negligent training claim on the basis that plaintiff fails to plead facts to identify what training was provided to its employee Williams and how this lack of training contributed to his alleged injuries. Defendant argues that all of plaintiff’s allegations concerning training are conclusory and therefore fail to state a claim. Defendant asserts that where no facts are alleged about the training the driver received, the plaintiff has not stated a plausible ground for relief, citing Lambert, 2016 WL 1562963, at *5–6, and Clevenger, 2015 WL 7738372, at *5.

 

*6 Plaintiff responds that he alleges U.S. Xpress breached its duty to properly train its drivers on the safe operation of a tractor-trailer by “failing to properly instruct defendant Williams on the safe operation of a tractor trailer, failing to properly instruct [her] on the FMCSR; and failing to provide adequate continuing safety courses to [her].” Pl.’s Mem. Opp. at 9 (citing complaint ¶¶ 68, 73, 75, and 77).

 

“Negligent training under Missouri law is a variant of ordinary negligence.” Braxton, 2013 WL 6592771, at * 3 (citing Garrett v. Albright, 2008 WL 795621, at *5 (W.D. Mo. Mar. 21, 2008)); G.E.T. ex rel. T.T. v. Barron, 4 S.W.3d 622, 624 (Mo. Ct. App. 1999). To state a claim for negligent training, a plaintiff must plead: “(1) a legal duty on the part of the defendant to use ordinary care to protect the plaintiff against unreasonable risks of harm; (2) a breach of that duty; (3) a proximate cause between the breach and the resulting injury; and (4) actual damages to the plaintiff’s person or property.” Braxton, 2013 WL 6592771, at * 3 (quoting Hoover’s Dairy, Inc. v. Mid–America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. 1984) (en banc)).

 

Plaintiff’s allegation that defendant failed to properly instruct its employee Williams on the safe operation of a tractor-trailer is a legal conclusion, which the Court disregards. Cf. Clevenger, 2015 WL 7738372, at *5. However, plaintiff’s allegations that defendant failed to properly instruct Williams on specific Federal Motor Carrier Safety Regulations, and failed to provide her with adequate continuing safety courses, are factual allegations. (Complaint ¶¶ 71–73). The Court finds these factual allegations, accepted as true, are sufficient to state a claim to relief that is plausible on its face. Defendant’s motion to dismiss Count IV will be denied.

 

 

3. Count V—Negligent Entrustment

Defendant moves to dismiss plaintiff’s negligent entrustment claim on the basis that Count V is devoid of factual allegations specific to defendant Williams’s driving history, training, experience, or knowledge, and contains only legal conclusions that Williams had a poor driving history, lack of training, lack of experience, and lack of knowledge of the FMCSR.

 

Plaintiff responds that he states a claim for negligent entrustment because he has pleaded facts that Williams had a poor driving history, lack of training, lack of experience, and lack of knowledge, and when proved true will show that Williams was incompetent and should not have been entrusted with defendant’s tractor-trailer. Plaintiff also states that he alleges defendant knew or should have known of Williams’s incompetence, and that her inexperience as a truck driver caused her to collide with plaintiff’s vehicle, resulting in substantial injuries.

 

To establish a claim of negligent entrustment, a plaintiff must plead and prove that (1) the entrustee is incompetent by reason of age, inexperience, habitual recklessness, or otherwise, (2) the entrustor knew or had reason to know of the incompetence, (3) there was an entrustment of a chattel, and (4) the negligence of the entrustor concurred with the negligence of the entrustee as a proximate cause of the harm to the plaintiff. McHaffie ex rel. McHaffie v. Bunch, 891 S.W.2d 822, 825 (Mo. 1995) (en banc); Rebstock v. Evans Prod. Eng’g Co., Inc., 2009 WL 3401262, at *16 (E.D. Mo. Oct. 20, 2009) (citing Evans v. Allen Auto Rental & Truck Leasing Co., 555 S.W.2d 325, 326 (Mo. 1977)).

 

*7 The Court has found that plaintiff has pleaded facts to show that Williams “had a history of serious traffic convictions and federal motor carrier safety regulation violations,” and that defendant failed to properly instruct Williams on specific Federal Motor Carrier Safety Regulations and failed to provide her with adequate continuing safety courses. These factual allegations, taken as true and combined with plaintiff’s allegations that defendant knew of them and entrusted Williams with the tractor-trailer, and that they resulted in harm to plaintiff, are sufficient to establish a claim of negligent entrustment. Defendant’s motion to dismiss Count V will be denied.

 

 

1. Alternative Motion to Strike

Finally, defendant moves in the alternative to strike allegations in the complaint regarding alleged violations of the Federal Motor Carrier Safety Regulations (“FMSCR”) because they are redundant, immaterial, or impertinent. Specifically, defendant asserts these allegations should be struck because (1) the FMSCR does not provide a private cause of action for personal injuries and references thereto do not establish plaintiff’s alleged causes of action, and (2) plaintiff has not pleaded facts in support of any alleged violation of the FMSCR.

 

In response, plaintiff agrees that the FMSCR does not create a private cause of action and states that is why he has not alleged a caused of action thereunder. Plaintiff states that he brings common-law negligence theories and references the FMSCR as evidence of statutorily determined standards of care that were breached by defendant.

 

Under Federal Rule of Civil Procedure 12(f), a court may “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Rule 12(f), Fed. R. Civ. P. Motions to strike are not favored and are infrequently granted, because they propose a drastic remedy. Stanbury Law Firm, P.A. v. Internal Revenue Service, 221 F.3d 1059, 1063 (8th Cir. 2000). Nonetheless, resolution of such a motion lies within the broad discretion of the Court. Id. Matter will not be stricken unless it clearly has no possible bearing on the subject matter of the litigation and will prejudice the defendant. 2 James W. Moore, et al., Moore’s Federal Practice § 12.37[3] (3rd ed. 2016). The term redundant as used in Rule 12(f) refers to statements “wholly foreign to the issue or that are needlessly repetitive of immaterial allegations.” Resolution Trust Corp. v. Fiala, 870 F. Supp. 962, 977 (E.D. Mo. 1994) (citation omitted). “Immaterial claims are those lacking essential or important relationships to the claim for relief.” Id. (citation omitted). “Impertinent claims are those that do not pertain to the issues in question.” Id.

 

Contrary to defendant’s assertion, plaintiff’s complaint does not attempt to state a claim for relief under the FMSCR. Plaintiff does not allege a violation of a federal regulation as a cause of action in its own right. Rather, plaintiff’s complaint merely alleges possible violations of federal regulations as an element of state law causes of action. See, e.g., Soo Line Railroad Co. v. Werner Enters., 825 F.3d 413, 421–22 (8th Cir. 2016) (whether driver violated FMCSR by failing to disclose fatigue diagnosis was submitted to jury as part of negligence claim); Garrett, 2008 WL 795621, at *3 (discussing whether FMCSR was complied with in connection with negligence claims under Missouri law); see also Pierce v. Platte–Clay Elec. Coop., Inc., 769 S.W.2d 769, 772 (Mo. 1989) (en banc) (“Evidence of industry standards is generally admissible as proof of whether or not a duty of care was breached.”). Defendant has not cited any authority to establish that plaintiff’s references to the FMSCR in connection with his allegations of negligence are redundant, immaterial, or impertinent. The motion to strike will be denied.

 

 

1. Conclusion

*8 For the foregoing reasons, defendant U.S. XPress, Inc.’s Motion for Judgment on the Pleadings and its alternative Motion to Strike will be denied.

 

Accordingly,

 

IT IS HEREBY ORDERED that defendant U.S. XPress, Inc.’s Motion for Judgment on the Pleadings is DENIED. [Doc. 14]

 

IT IS FURTHER ORDERED that defendant U.S. XPress, Inc.’s alternative Motion to Strike is DENIED. [Doc. 14]

 

All Citations

Slip Copy, 2018 WL 534376

 

 

Footnotes

1

As of the date of this order, the record does not reflect that defendant Williams has been served with summons and complaint.

2

Of course, all pleadings, motions, and other papers must comply with Rule 11, Federal Rules of Civil Procedure, including that “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]” Rule 11(b)(3), Fed. R. Civ. P.

3

In contrast, the court in Gibson subsequently discussed negligent supervision, quoting Restatement (Second) of Torts § 317, which places a duty on the employer to exercise reasonable care so as to control an employee “while acting outside the scope of employment” under certain circumstances. Id. at 247.

4

The Court notes that this misstatement in Dibrill has been cited with approval in at least one other federal district court case in addition to Clevenger. See Harris v. Daviess–Dekalb Cnty. Reg’l Jail, 2016 WL 3645201, at *3 (W.D. Mo. June 30, 2016).