2018 WL 4586924

United States District Court, N.D. Ohio, Western Division.
Brad Bonner, et al., Plaintiffs
v.
Reliable Transportation Specialists, Inc., et al., Defendants
Case No. 3:17-cv-00415
|
09/25/2018

Jeffrey J. Helmick, United States District Judge

MEMORANDUM OPINION

I. INTRODUCTION
*1 Defendants Reliable Transportation Specialist, Inc. (“Reliable”), Wollet Investments, LLC (“Wollet Investments”), and Shaun Wollet have filed a Rule 12(b)(6) motion for partial dismissal of the complaint filed by Plaintiffs Brad and Terri Bonner (“Bonner”) for failure to state a claim upon which relief may be granted. (Doc. No. 44). Bonner filed a brief in opposition. (Doc. No. 46). Defendants filed a brief in reply. (Doc. No. 49). For the reasons stated below, Defendants’ motion is granted.

II. STANDARD
A defendant may seek to dismiss a plaintiff’s complaint on the ground the complaint fails to state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss, a court construes the complaint in the light most favorable to the plaintiff and accepts as true well-pleaded factual allegations. Daily Servs., LLC v. Valentino, 756 F.3d 893, 896 (6th Cir. 2014) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Factual allegations must be sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678. Legal conclusions and unwarranted factual inferences are not entitled to a presumption of truth. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering a Rule 12(b)(6) motion, the court may consider the allegations in the complaint as well as any exhibits attached to the complaint, as long as the complaint refers to the exhibit and the exhibit is central to the claims set forth in the complaint. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).

III. BACKGROUND
On June 9, 2015, Brad Bonner was driving a private passenger vehicle southbound on I-75 in an active construction zone. (Doc. No. 43 at 8). Wollet, employed by Wollet Investments, LLC and Reliable Transportation Specialist, Inc., was operating a tractor-trailer behind Bonner. (Doc. No. 43 at 9). Wollet allegedly failed to maintain an assured clear distance and reasonable speed. (Id. at 9-10). The tractor-trailer operated by Wollet struck the rear of Bonner’s vehicle, causing Bonner to strike another vehicle and tractor-trailer. (Id. at 9). Bonner alleges that this collision resulted in serious and long-lasting injuries and damages. (Id. at 12).

IV. ANALYSIS
Bonner asserts various claims for negligence; federal and state statutory violations; punitive damages; vicarious liability; strict liability; and, spoliation of evidence. Defendants argue I should dismiss Bonner’s third, sixth, seventh, and eighth causes of action because they fail to state a plausible claim for relief.

A. PUNITIVE DAMAGES
Defendants argue Bonner fails to state a claim for punitive damages because he fails to allege facts to show a defendant’s actions demonstrated malice, or a defendant knowingly authorized, participated in, or ratified actions of an agent demonstrating malice. Punitive damages may be awarded only when there is actual malice. Cabe v. Lunich, 70 Ohio St. 3d 598, 601 (1994). Actual malice is present when the defendant displayed either (1) a state of mind characterized by hatred, ill will, or a spirit of revenge, or (2) a “conscious disregard for the rights and safety” of others and a great likelihood of causing significant harm. Preston v. Murty, 32 Ohio St. 3d 334, 335 (1987). More than mere negligence is required to establish actual malice. Id. at 335. See Parker v. Miller, No. 2:16-cv-1143, 2017 WL 3642372, at *2 (S.D. Ohio Aug. 24, 2017) (allegations defendant failed to stop before hitting a vehicle, despite having sufficient time and adequate visibility to do so, is sufficient to state a claim for actual malice); see Lyons v. Estes Express Lines, Inc., No. 1:15-cv-00254, 2015 WL 3796384 (N.D. Ohio June 18, 2015) (allegations of distracted driving alone do not support actual malice but failing to avoid an accident after numerous warnings may amount to actual malice).

*2 Bonner argues his first amended complaint “furnishes much detail…as is possible at this stage in the proceedings.” (Doc. No. 46 at 4). Bonner’s arguments for punitive damages can be summarized as follows: (1) Wollet failed to maintain an assured clear distance and operate his tractor-trailer in a safe manner; (2) Wollet was poorly trained, inexperienced, unqualified, and posed an unacceptable danger to other motorists; (3) Wollet had been out of work for over a year prior to the incident; (4) the instructions, training, and supervision Wollet received by Reliable was haphazard and substandard; (5) drivers, including Wollet, made and received cellphone calls and text messages while en route, including those from Reliable; (6) Wollet acted with a “conscious disregard” for the rights and safety of others; and (7) Wollet acted with a “conscious, reckless, and flagrant disregard” for others. (Doc. No. 43).

These assertions, however, do not rise to the level of well-pleaded allegations. Instead, the first amended complaint makes conclusory allegations without necessary elaboration. See Twombly, 550 U.S. at 555. The allegations that Wollet received haphazard and substandard training, and that Reliable and its drivers at times communicated by phone calls and text messages while the drivers were on the road, are not sufficient to show malice because Bonner does not allege how training or cellphone usage impacted the outcome of the incident in question. Bonner has alleged only that Wollet failed to stop in time, and has not alleged that Wollet was using his cell phone when the accident occurred or that the training he may or may not have received contributed to his failure to stop.

Nor has Bonner offered any allegations concerning Wollet’s mindset at the time of the accident. See, e.g., Terek v. Finkbiner, No. 3:14-cv-1391, 2015 WL 5542535, at *4 (N.D. Ohio, Sept. 18, 2015) (“In order for Plaintiff to prove malice, evidence must go to [the defendant’s] state of mind prior to the accident.”) Allegations that Wollet may have driven recklessly at other times are not sufficient to support the necessary inference that he did so this time.

Similarly, Bonner’s claim that Wollet’s one-year gap in employment means he was unqualified fails to provide sufficient support. See Pfund v. Ciesielczyk, 84 Ohio App. 3d 159 (the occurrence of an accident does not automatically establish the incompetence of the driver).

Bonner’s remaining allegations are legal conclusions rather than factual allegations. He restates the elements required for punitive damages, alleging Wollet acted with “conscious disregard” for the rights and safety of others without offering factual allegations in support. Legal conclusion “masquerading” as factual allegations are not sufficient. Twombly, 550 U.S. at 555. Defendants’ motion to dismiss Bonner’s punitive damage claims is granted.

B. NEGLIGENCE
Defendants argue Bonner fails to state a claim for negligence against Reliable because he fails to allege facts to show Wollet was incompetent, or that Reliable knew of the alleged incompetence. To establish a claim for negligent hiring, the plaintiff must show (1) an employment relationship; (2) the employee was incompetent; (3) the employer actually or constructively knew of the incompetence; (4) the employee’s act caused injury to the plaintiff; and (5) the employer’s negligent hiring or supervision of the employee was the proximate cause of the plaintiff’s injuries. Ford v. Brooks, 2012-Ohio-943 (Ohio Ct. App. 10th Dist.).

That Wollet was employed by Reliable at the time of the incident is undisputed. Reliable only argues that there are not well-pleaded factual allegations to support the implication that Wollet was incompetent and Reliable knew of Wollet’s alleged incompetence. Bonner argues Reliable provided “haphazard and substandard training” and allowed drivers to use their cellphones while en route. The only allegations contained in the complaint regarding Wollet’s competence are this particular incident and a gap of employment, neither of which lead to a conclusion that is “plausible on its face” that Wollet was incompetent.

*3 As I stated above, there is no allegation that the use of cellphones played any role in this incident. Further, a blanket statement regarding the inadequacy of training is not enough to allege a connection between training and this accident. Finally, the allegation that Wollet was out of work for a period of time before Reliable hired him does not support the conclusion that he therefore was not competent or that Reliable knew or should have known he was not competent.

Bonner does not allege Wollet in fact had not received any required training, relying instead on the unsupported implication that Wollet’s lack of training during a discrete time period equates to incompetence. Cf. Gordon v. Turner, 2016 WL 3636073, at *10 (E.D. Ky., June 29, 2016) (“While [it] is not conclusive evidence of due care, courts have generally been unwilling to find that there were genuine issues of material fact as to negligent hiring and retention, so long as the employer complied with the hiring practices prescribed by the Federal Motor Carrier Safety Administration.”). Bonner’s allegations fall short because those allegations offer only a conceivable claim of negligence, rather than a plausible one. Twombly, 550 U.S. at 570.

Bonner has failed to demonstrate required elements for a claim of negligent hiring. Defendants’ motion to dismiss Bonner’s negligent hiring claim is granted.

C. NEGLIGENCE PER SE
Reliable argues Bonner fails to state a claim for negligence per se based on statutory and regulatory violations in his seventh claim because he fails to plead factual allegations that support his legal conclusions. Bonner fails to provide any more than legal conclusions, which are not supported by any factual allegations. Bonner specifically claims:
Reliable violated state and federal statutes and regulations, including but not limited to 49 C.F.R. §§ 350-399 and O.A.C. 4901:2-5-02 through 4901:2-5-14. These enactments were promulgated to protect the safety of a class of people that includes Plaintiffs…Defendant Reliable is negligent per se based on these statutory and regulatory violations. Defendant Reliable’s statutory and regulatory violations directly and proximately caused Plaintiffs’ injuries, damages, harms and losses.
(Doc. No. 43 at 46-8). Bonner alleges that these violations constitute negligence per se.

Negligence per se is established when a legislative enactment enforces a “specific duty” for the welfare of others. Earley v. United Airlines, No. 2:05-cv-0835, 2006 WL 2794971, at *3 (S.D. Ohio Sept. 28, 2006). But not every violation of a law or ordinance constitutes negligence per se. Kooyman v. Staffco Constr., Inc., 189 Ohio App. 3d 48, 55 (2010). When a rule of conduct is set forth in general or abstract terms, the liability standard is one of due care and negligence per se is not applicable. Id. at 56.

Bonner failed to elaborate on any of the legislative enactments he cites in the First Amended Complaint, and does not offer any factual allegations connecting Reliable’s alleged violation of any or all of these statutes and regulations to the accident. Bonner’s assertion that Reliable violated all of these statutes and regulations – which, as Defendants note, total over 1,000 separate provisions – as well as others, is simply implausible. (See Doc. No. 43 at 11 (“Defendant Reliable violated state and federal statutes and regulations including but not limited to 49 C.F.R. §§ 350-399 and O.A.C. 4901:2-5-02 through 4901:2-5-14.”)). Bonner has failed to identify the specific duty required for negligence per se and has not demonstrated any connection between any of the alleged violations and the accident itself. Reliable’s motion to dismiss Bonner’s negligent hiring claim is granted.

V. CONCLUSION
*4 For the reasons stated above, Reliable’s motion to dismiss a portion of Bonner’s complaint pursuant to Rule 12(b)(6), (Doc. No. 44), is granted. Bonner’s third, sixth, seventh, and eighth causes of action are dismissed.

So Ordered.
s/ Jeffrey J. Helmick

United States District Judge
All Citations
Slip Copy, 2018 WL 4586924

2018 WL 4572669

United States District Court, W.D. Louisiana.
ROSHONA CROW
v.
ROOSEVELT L. TONEY, ET AL.
CIVIL ACTION NO. 17-1287
|
Filed 09/24/2018

MEMORANDUM RULING
ELIZABETH ERNY FOOTE UNITED STATES DISTRICT JUDGE
*1 Before the Court are motions for summary judgment filed by Defendants Jones Transportation, Inc. (“Jones”), Francis Hancock (“Hancock”), and Insurance Company of Pennsylvania (collectively, the “Jones Defendants”) [Record Document 61] and First Mercury Insurance Company (“First Mercury”) [Record Document 66]. For the reasons below, the motions are GRANTED, and Plaintiffs’ claims against First Mercury and the Jones Defendants are DISMISSED WITH PREJUDICE.

I. Background
This case arises out a seven-car collision on Interstate 20 in August 2016. [Record Document 63 at 2]. Unsurprisingly for such an accident, the facts are complex, and so this Court will recite only those relevant to the instant motion.1

Plaintiff Roshona Crow (“Crow”) was driving a Crown Victoria (Vehicle 7). [Record Documents 63 at 2 and 70 at 1]. Hancock was operating a tractor-trailer for his employer, Jones (Vehicle 6). [Record Document 63 at 2]. During the accident, a Toyota Highlander driven by Jocephus Melton (Vehicle 3) and a Mercedes GLA250 driven by Sara Cruz (“Cruz”) (Vehicle 4) collided with Hancock’s tractor-trailer. [Record Documents 68-6, 70 at 1, and 73-1 at 67]. The Toyota struck the Mercedes. [Record Documents 70 at 1 and 73 at 3]. The Mercedes struck Crow’s Crown Victoria. [Record Documents 61-4 at 5 and 70 at 1]. During the accident, Crow’s car was also rear-ended by a Ford F150 driven by Charlie Grice (Vehicle 5). [Record Document 61-4 at 4].

At the beginning of the accident all the vehicles except Hancock’s were in the left lane. After being struck from behind, Melton’s Toyota collided with Cruz’s Mercedes. [Record Documents 70 at 1 and 73 at 3]. At that point, the Toyota spun into the right lane, where it collided with Hancock’s truck; the Toyota never made direct contact with Crow’s Crown Victoria. [Record Document 73-1 at 79, 145]. Meanwhile, Cruz’s Mercedes collided with the Crown Victoria in the left lane before spinning into the right lane where it too collided with Hancock’s trailer before coming to rest on the right shoulder. [Record Documents 68-6 at 1 and 73-1 at 143]. Crow’s Crown Victoria ended the accident in the left lane. [Record Document 73-1 at 141].

At his deposition, Crow could not testify to personal knowledge of which vehicles struck his Crown Victoria. [Record Document 63 at 2-3]. Hancock as well as the state trooper who investigated the accident testified that Hancock’s tractor-trailer never struck Crow’s Crown Victoria. [Id. at 3]. On the basis of this lack of direct contact, the Jones Defendants moved for summary judgment. [Record Document 61 at 2]. First Mercury, Jones’s excess insurer, then adopted the Jones Defendants’ motion. [Record Document 66 at 1-2]. Crow filed a memorandum in opposition, arguing that there is a dispute of fact on the issue of causation because Hancock’s trailer struck Cruz’s Mercedes and the Mercedes struck Crow’s Crown Victoria. [Record Document 68]. First Mercury filed a late reply brief, arguing for the first time based on different evidence that Hancock was not the cause of Crow’s damage because Cruz’s Mercedes collided with Hancock’s truck only after Cruz’s Mercedes had collided with Crow’s Crown Victoria. [Record Document 73]. The Jones Defendants adopted the arguments in this brief. [Record Document 74]. In order to provide Crow with a fair opportunity to meet this new evidence, the Court granted Crow the right to file a sur-reply to rebut Defendants’ new evidence. [Record Document 75]. Crow has filed a sur-reply, asserting that he has no additional evidence or argument to present to the Court. [Record Document 76].

II. Standard on Summary Judgment
*2 Federal Rule of Civil Procedure 56(a) directs a court to “grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”2 Summary judgment is appropriate when the pleadings, answers to interrogatories, admissions, depositions, and affidavits on file indicate that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When the burden at trial will rest on the non-moving party, the moving party need not produce evidence to negate the elements of the non-moving party’s case; rather, it need only point out the absence of supporting evidence. at 322–23.

If the movant satisfies its initial burden of showing that there is no genuine dispute of material fact, the nonmovant must demonstrate that there is, in fact, a genuine issue for trial by going “beyond the pleadings” and “designat[ing] specific facts” for support. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citing Celotex, 477 U.S. at 325). “This burden is not satisfied with some metaphysical doubt as to the material facts,” by conclusory or unsubstantiated allegations, or by a mere “scintilla of evidence.” Id. (internal quotation marks and citations omitted). However, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158–59 (1970)). While not weighing the evidence or evaluating the credibility of witnesses, courts should grant summary judgment where the critical evidence in support of the nonmovant is so “weak or tenuous” that it could not support a judgment in the nonmovant’s favor. Armstrong v. City of Dall., 997 F.2d 62, 67 (5th Cir. 1993).

Additionally, Local Rule 56.1 requires the movant to file a statement of material facts as to which it “contends there is no genuine issue to be tried.” The opposing party must then set forth a “short and concise statement of the material facts as to which there exists a genuine issue to be tried.” W.D. La. R. 56.2. All material facts set forth in the movant’s statement “will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.” Id.

III. Analysis

A. Applicable State Law
This personal injury dispute arises under Louisiana law. Under Louisiana’s duty-risk analysis, a plaintiff asserting a negligence claim must establish:
(1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).
Boykin v. La. Transit Co., 96-1932, p. 8 (La. 3/4/98); 707 So. 2d 1225, 1230 (citing Fowler v. Roberts, 556 So. 2d 1, 4–5 (La. 1989), rev’d on reh’g on other grounds, 556 So. 2d 1; David W. Robertson et al., Cases and Materials on Torts 83-84 (1989)). Each of these elements must be satisfied in order to find a defendant liable. Mathieu v. Imperial Toy Co., 94-0952, p. 4 (La. 11/30/94); 646 So. 2d 318, 322. Courts should typically begin with the cause-in-fact element. See Boykin, 96-1923, p. 9; 707 So. 2d at 1230 (citing Pierre v. Allstate Ins. Co., 242 So. 2d 821 (La. 1970)). “Cause-in-fact usually is a ‘but for’ inquiry which tests whether the accident would or would not have happened but for the defendant’s substandard conduct.” Id. “When there are concurrent causes of an accident which nevertheless would have occurred in the absence of one of the causes, the proper inquiry is whether the conduct under consideration was a substantial factor in bringing about the accident.” Id. at p. 9 n.10; 707 So. 2d at 1230 n.10. Thus, in the present case, the question is whether Hancock’s actions were a substantial factor in bringing about the collision between Crow’s Crown Victoria and Cruz’s Mercedes.

B. Lack of Direct Contact Between Hancock’s Tractor-Trailer and Crow’s Car
*3 The Jones Defendants and First Mercury strenuously deny liability because Hancock’s tractor-trailer did not directly impact Crow’s vehicle. [Record Documents 61 at 2 and 66 at 1]. Although this fact is deemed admitted, this fact does not require the inference that Hancock’s conduct was entirely outside the chain of causation that ultimately resulted in Cruz’s vehicle striking Crow’s vehicle. It is a “fundamental property of natural phenomena” that the force of an impact between two objects may cause one of them to strike a third. Springer v. Gov’t Emp. Ins. Co., 311 So. 2d 36, 40 (La. Ct. App. 1975) (quoting Lord v. Auto Owners Ins. Co., 177 N.W.2d 653, 655 (Mich. Ct. App. 1970)). Thus, Defendants are not entitled to summary judgment on the theory that because there was no direct contact between the vehicles that Hancock was not the cause of any of Crow’s damage.

C. Order of the Collisions
In its reply brief, First Mercury advanced a new theory: that Cruz’s Mercedes collided with Hancock’s tractor-trailer only after the Mercedes had already collided with Crow’s Crown Victroria. [Record Document 73 at 4]. In support, First Mercury points to the testimony of the state trooper who responded to the accident. [Record Document 73 at 3–4]. If the collisions of the Cruz’s Mercedes and Melton’s Toyota with Hancock’s truck occurred after those vehicles had exited the left lane (i.e, the lane in which Crow’s Crown Victoria was located throughout the accident), this sequence of events would make it physically impossible for Hancock to have caused the damage suffered by Crow when Cruz’s Mercedes struck Crow’s Crown Victoria.

In response to the Court’s invitation to point to record evidence that would raise a question of material fact about this sequence of events, [Record Document 75], Crow filed a sur-reply stating that he “does not have any additional information to add [to] that which is already set out in his Opposition to Defendants’ Motion for Summary Judgment filed on August 28, 2018,” [Record Document 76 at 1]. In that opposition Crow asserted as an undisputed fact that Hancock’s trailer colliding with Melton’s Toyota caused the latter to collide with Cruz’s Mercedes, [Record Document 70 at 1], but Crow did not provide a citation to the record establishing this sequence of events.

Although the Court must draw all inferences on summary judgment in a plaintiff’s favor, the Court may only draw these inferences from facts in the record. Crow is correct that the record establishes that Hancock’s trailer collided with Cruz’s Mercedes and Melton’s Toyota and that the Mercedes collided with Crow’s Crown Victoria. If that were the only record evidence before the Court, there would be a dispute of fact regarding the sequence of collisions. However, First Mercury has pointed to record evidence that Cruz’s Mercedes and Melton’s Toyota struck Hancock’s trailer after the Mercedes struck the Crown Victoria. Crow has pointed to no record evidence that Hancock’s trailer struck Cruz’s Mercedes and Melton’s Toyota before the Mercedes struck Crow’s Crown Victoria. As a result, Crow has not carried his burden of production on summary judgment. First Mercury and the Jones Defendants are entitled to summary judgment.

IV. Conclusion
For the reasons given above, First Mercury’s and the Jones Defendants’ motions for summary judgment [Record Documents 61 and 66] are GRANTED.

IT IS ORDERED that Crow’s claims against First Mercury and the Jones Defendants are DISMISSED WITH PREJUDICE.

THUS DONE AND SIGNED in Shreveport, Louisiana, on this 24th day of SEPTEMBER, 2018.

All Citations
Slip Copy, 2018 WL 4572669

Footnotes

1
The clearest explanation of the sequence of events involved in the entire wreck is the report prepared by the state trooper who responded to the scene. Neither party filed this document into the record of this case, but it is located in the record of a related case concerning the liability of the driver who initiated the chain of collisions. [Record Document 1-2 in Docket No. 5:17-cv-243]. The Court points to this document for reference purposes only; it played no role in this ruling.

2
Rule 56 was amended effective December 1, 2010. Per the comments, the 2010 amendment was intended “to improve the procedures for presenting and deciding summary judgment motions and to make the procedures more consistent with those already used in many courts. The standard for granting summary judgment remains unchanged.” Therefore, the case law applicable to Rule 56 prior to its amendment remains authoritative, and this Court will rely on it accordingly.