Neutral As of: August 24, 2018 1:17 PM Z
Childress v. Goodloe Marine, Inc.
United States District Court for the District of Maryland
August 9, 2018, Decided; August 9, 2018, Filed
CIVIL NO. JKB-16-2884

Reporter
2018 U.S. Dist. LEXIS 135050 *; 2018 WL 3818804
ROGER DALE CHILDRESS, II, Plaintiff v. GOODLOE MARINE, INC., et al., Defendants.
Prior History: Childress v. Goodloe Marine, Inc., 2018 U.S. Dist. LEXIS 120466 (D. Md., July 19, 2018)

MEMORANDUM
Plaintiff Roger Dale Childress, II, brought this diversity action against Defendants Goodloe Marine, Inc., and its employee Benton Goodloe Jr. (“Boomer”), asserting two counts of negligence in regard to an incident when Plaintiff was harmed by pipes that fell off his flatbed tractor trailer. Defendants have moved for summary judgment on both counts (ECF No. 75), and that motion is fully briefed and ripe, (ECF Nos. 78, 80). No hearing is necessary to resolve the matter. See Local Rule 105(6) (D. Md. 2016). Because Plaintiff was contributorily negligent, and because there is no genuine issue of material fact about that, summary judgment will be granted for Defendants on both counts. [*2] Defendants are entitled to judgment as a matter of law.

I. Background
Plaintiff was a truck driver and on Friday, September 5, 2014, he picked up a load of 16″ diameter plastic pipe in South Carolina. (Childress Dep. 232:20-233:8, 238:21, Opp’n Ex. A, ECF No. 78-3.) The load consisted of ten bundles of pipe, with three pipes in each bundle. (Id. 239:3-240:1.) Each bundle was banded together with “metal bands and . . . wood slats.” (Benton Goodloe, Jr. Dep. No. 2 at 15:6-7 (“Boomer Dep.”), Mot. Summ. J. Ex. 10, ECF No. 75-11.) They were loaded on Plaintiff’s flatbed trailer in the following manner: Two bundles were placed side-by-side to form a row. Each row was separated by a thin piece of wood. After two rows were laid down, Plaintiff secured them with straps. Then, after each additional row, Plaintiff would secure that row with straps, for a total of five rows secured by four sets of straps. (Childress Dep. at 243, 245:4-252:2; Boomer Dep. at 32:1-4.)
When Plaintiff picked up the load, he signed a document discussing safety issues related to loading and unloading this type of pipe (the “Safety Document”). (Childress Dep. at 263-64; Safety Document, Opp’n Ex. B, ECF No. 78-4.) The Safety [*3] Document stated “WARNING PIPE FALLING OFF THE TRUCK CAN KILL OR INJURE.” (Emphasis in original). It admonished the driver to “[r]ead and observe these UNLOADING GUIDELINES.” It warned, “NEVER GO TO THE OPPOSITE SIDE OF THE TRAILER WHEN UNLOADING EQUIPMENT IS MOVING NEAR THE TRUCK. Moving equipment could knock the load down on top of you. To avoid your own death or injury, tell the operator to stop moving and wait while you work on the other side of the load.” (Second emphasis added). It further warned, “IF A PERSON CANNOT BE SEEN, IMMEDIATELY STOP UNLOADING AND FIND THAT PERSON.” (Emphasis in original).1
Plaintiff delivered the load to Defendant Goodloe Marine in Ocean City, Maryland, on the morning of September 8, 2014. (Childress Dep. at 294:11-298:21.) Boomer, one of Goodloe Marine’s employees, was operating a John Deere Model 524K-II Loader with fork attachments—essentially a large fork lift. (Id. at 295-96.) While Boomer unloaded the pipes, the loader was on the passenger’s side of the trailer. (Id. at 305:21-306:1.)
The unloading process was as follows: Plaintiff removed the straps for the top layer by loosening them on the driver’s side, then walking to the passenger’s side and unhooking [*4] the straps, and finally by throwing the straps over to the driver’s side. (Childress Dep. at 301.) Plaintiff then stood 25 feet away from the end of the trailer, “where [he] could see [Boomer] and the loader.” (Id. 302:5-20.) Boomer then removed the top two bundles of pipe, i.e., the top row, starting with the passenger’s side bundle. (Id. 302:1-2.) They repeated this process for the top three layers, and unloaded the first six bundles of pipe without incident. Plaintiff then loosened the final straps (holding down the last two rows of pipes).
What happened next is in dispute. According to Plaintiff, he threw two of the three straps covering the final two rows over from the passenger’s side to the driver’s side, but when he threw the third strap, it did not clear the load and instead landed on top of the pipes. (Childress Dep. 308:3-7.) Plaintiff then walked around the back of the trailer to the driver’s side—the side opposite from the loader—to remove the strap that was on top of the load. (Id.) Plaintiff provides no evidence, and does not argue, that he told Boomer or anyone else at the unloading site before walking to the other side of the trailer. As he was standing next to the [*5] unsecured pipes on the driver’s side of the trailer, he heard Boomer blow his horn and the pipes fell on him. (Id. 308:7-8, 316:1-22.)
According to Defendants, Boomer blew his horn as he was approaching the trailer (according to Defendants, he had been blowing his horn each time he approached the trailer in order to warn Plaintiff (and others)). (See Mot. Summ. J. Mem. Supp. 13, ECF No. 75-1.) He then lifted the two unstrapped bundles on the passenger’s side of trailer, reversed the loader, and began to turn. (See Boomer Dep. at 98.) As he did so, he saw the two remaining bundles slide off the driver’s side of the trailer. (Id.) He then set the load down, turned off the loader, and went to investigate, thinking the pipe may have been damaged in the fall. (Id.) As he approached the trailer, he realized pipes had fallen on the Plaintiff. (Id.)
It is undisputed Plaintiff was injured by the pipes that fell on him. He brought this action against Goodloe Marine and Boomer seeking compensation for those injuries. Specifically he brought two claims of negligence: one count against Goodloe Marine for its own negligence as well as its liability for Boomer’s negligence under a theory of respondeat [*6] superior, and one count against Boomer individually. Before the Court is Defendants’ motion for summary judgment.
Before considering the substance of that motion, however, the Court would be remiss in failing to explain to the parties, particularly Defendants, what constitutes an “undisputed fact.” Undisputed facts are pieces of information, drawn from the evidence developed so far in the case, that are not disputed, i.e., that neither party contends is untrue. According to Defendants’ “Undisputed Statement of Facts,” the following are pieces of information both parties agree are true: it was a “cloudy, windy, and misty morning,” when Plaintiff dropped off the pipes at Goodloe Marine; “[a]t no time did Plaintiff give any of the paperwork he received from Georg Fischer/Independent Pipe to Boomer”; Plaintiff was “rolling up his straps” when he was injured. (Mot. Summ. J. Mem. Supp. at 1-15.) This is only a sample of various purported facts, characterized by Defendants as “undisputed,” that are clearly and explicitly disputed by Plaintiff. (See Childress Dep. 300:6-11 (“Q: [. . . .] What was the . . . weather like when you arrived . . . ? A: Beautiful weather. Clear, sunny.”); id. 303:5 [*7] (“A: I gave him the unloading instructions.”); id. at 308:5-7 (“I went around, back around the trailer to pull the strap, the hook off the top of the load.”). Incredibly, according to Defendants it is undisputed that “Mr. Childress was contributorily negligent.” (Mot. Summ. J. Mem. Supp. at 3.) Counsel should be aware: an averment that a fact is “undisputed” is a representation to the Court.2

II. Standard and applicable law
“The court shall 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.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party. Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008).
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332, because the parties are diverse and [*8] the amount in controversy is over $75,000. “In diversity actions, a district court applies the substantive law and choice of law rules of the state in which the court sits.” Chartis Prop. Cas. Co. v. Huguely, 243 F. Supp. 3d 615, 622 (D. Md. 2017). This Court sits in Maryland and Plaintiff was harmed in Maryland, and therefore the Court will apply the substantive tort law of Maryland in analyzing Plaintiff’s claims. See id; Hauch v. Connor, 295 Md. 120, 453 A.2d 1207, 1209 (Md. 1983) (noting that under Maryland law, “the substantive tort law of the state where the wrong occurs governs”).

III. Analysis
Defendants make several arguments as to why summary judgment should be granted in their favor. According to Defendants, the undisputed facts show they were not negligent. They argue Plaintiff assumed the risk, and even despoiled evidence (although they do not squarely raise a spoliation argument in their opening brief). Like much of Defendants’ briefing, these arguments are ultimately irrelevant. That is because Defendants also contend Plaintiff was contributorily negligent, the Court agrees as a matter of law on the instant record, and, “[i]n Maryland, contributory negligence is a complete bar to recovery.” Leakas v. Columbia Country Club, 831 F. Supp. 1231, 1235 (D. Md. 1993) (citing Hooper v. Mougin, 263 Md. 630, 284 A.2d 236, 238 (Md. 1971)).
“Contributory negligence is the failure to observe ordinary care for one’s own safety. ‘It is the doing [*9] of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.'” Kasten Constr. Co. v. Evans, 260 Md. 536, 273 A.2d 90, 92 (1971) (quoting Potts v. Armour & Co., 183 Md. 483, 39 A.2d 552, 556 (Md. 1944)). Whether a plaintiff was contributorily negligent is often a question for the jury. See Menish v. Polinger Co., 277 Md. 553, 356 A.2d 233, 241 (Md. 1976); Campbell v. Baltimore Gas and Elec. Co., 95 Md. App. 86, 619 A.2d 213, 216 (Md. Ct. Spec. App. 1993). “The trial court may, however, take the issue of contributory negligence from the jury . . . when the undisputed facts of the case support such a finding as a matter of law.” Campbell, 619 A.2d at 216.
Contributory negligence and primary negligence are not two “sides of the same coin.” See AT&T Mobility LLC v. Tiptons’ Inc., Civ. No. JKB-16-3107, 2017 U.S. Dist. LEXIS 154939, 2017 WL 4222624, at *7 (D. Md. Sept. 21, 2017) (quoting Menish, 356 A.2d at 235-36). The defense of contributory negligence is not a question of whether the plaintiff breached a duty to the defendant. See id. Rather, it is a question of whether the plaintiff failed “to take proper precautions for [his] own safety.” Menish, 356 A.2d at 236 (internal quotation marks omitted).
If a plaintiff knowingly comes into contact or close proximity with a thing he knows is dangerous, and is thereby harmed, “it will be assumed as a matter of law that his own negligence contributed to the accident.” Liscombe v. Potomac Edison Co., 303 Md. 619, 495 A.2d 838, 842 (1985) (quoting Potomac Edison Co. v. State, 168 Md. 156, 177 A. 163, 166 (Md. 1935)). For example, in Liscombe, a truck driver dumped materials at a site where he knew there were low hanging [*10] electrical wires. 495 A.2d at 839. In the process of unloading, the driver raised his (metal) trailer bed and woke up in the hospital. Id. at 840. After the trial court found that he was contributorily negligent, he argued on appeal he did not know about prior accidents similar to his own, and he was unable to see the wires at the time because of the sun. Id. at 840-41. The Maryland Court of Appeals, however, found these facts immaterial. See id. at 841-42. What mattered was the truck driver knew of a dangerous thing, and did not exercise reasonable care in regard to that thing. The court explained, quoting Potomac Edison Co. v. State, 177 A. at 166, “where such a person voluntarily comes in contact with, or approaches nearer than a reasonably prudent person would, a wire or other thing which he knew, or, as a person of ordinary knowledge and experience, has reason to believe, is sufficiently charged with electricity to be dangerous, and in consequence of such contact or proximity is shocked and injured, it will be assumed as a matter of law that his own negligence contributed to the accident.” Id. at 842.
As Liscombe suggests, and other cases show, a plaintiff’s independent duty to take precautions for his own safety is not diminished by factors beyond his control, such as another [*11] person’s actions. See Campbell, 619 A.2d at 218. In Campbell, another electric wire case, the plaintiff was doing some roofing work and was assured by his supervisor that the area was free of electrical wiring. Id. at 215-18. The plaintiff and a coworker extended a ladder near a fence on the property, without noticing a 7,600 volt electrical distribution line above them. Id. at 215. When the ladder came into contact with the wire, the plaintiff was severely injured. Id. The Maryland Court of Special Appeals held that even if the plaintiff’s supervisor assured him the site was safe, his own negligence still contributed to his misfortune. Although a person “may rely on assurances of safety . . . where an ordinarily prudent person would do so,” the court explained that “such assurances do not relieve a person from the duty of caring for his own safety, and a person cannot rely on another’s assurances where he is aware of the danger involved or where the danger is obvious enough that an ordinarily prudent person would not so rely.” Id. at 218 (quoting Erdman v. Johnson Bros., 260 Md. 190, 271 A.2d 744, 751 (Md. 1970)).
Before turning to the application of contributory negligence in the case at bar, there are two additional aspects of the doctrine worth highlighting. First, a court may properly consider whether [*12] the plaintiff had “reasonable alternative[s]” safer than the course of action he took. Craig v. Greenbelt Consumer Servs., Inc., 244 Md. 95, 222 A.2d 836, 837 (Md. 1966). In Craig, a plaintiff slipped on some sawdust at a grocery store. Id. She “testified that she saw the sawdust in the aisle and that she knew it to be slippery, yet she, without hesitating to plan her course, intentionally walked into the sawdust when she had a reasonable alternative of walking on the section of the aisle which was clear.” Id. The Maryland Court of Appeals affirmed the trial court’s finding that she was contributorily negligent. Id. at 838. Second, when considering whether a plaintiff was contributorily negligent, the Court may consider, as it would in an assessment of primary negligence, industry standards, warning signs and so forth; but the Court is not required to turn a blind eye to common sense. See Reid v. Washington Overheard Door, Inc., 122 F. Supp. 2d 590, 594 (D. Md. 2000). “The Maryland courts have not hesitated to find a plaintiff contributorily negligent as a matter of law where common experience reveals the foreseeable dangers of the plaintiff’s actions.” Id. (citing cases).
With these principles in mind, the Court finds Plaintiff was contributorily negligent as a matter of law. At the outset, it is important to highlight what does not bear on the issue [*13] of Plaintiff’s contributory negligence. Whether or not Boomer or any other employee of Goodloe Marine was negligent is irrelevant. Nor does it matter whether Boomer primarily caused the pipes to fall on Plaintiff, nor whether Plaintiff caused Boomer to act in a certain way that caused the pipes to fall. The issue of Plaintiff’s contributory negligence instead presents questions about Plaintiff’s regard for his own safety: did he do, or not do, some thing (or things) that a reasonably prudent person would, or would not have done; and did these actions place him in danger and result in him being harmed? The answer to both questions is yes.
Plaintiff unstrapped four bundles of piping and then, without telling anyone, walked to the opposite side of the trailer from the loader and stood directly next to the unsecured pipes. Perhaps Boomer should have immediately ceased unloading. Perhaps another Goodloe Marine employee should have waved for Boomer to stop. Perhaps Boomer and Goodloe Marine breached no duty and Plaintiff himself somehow caused the pipes to fall. None of this is of any moment because, considering Plaintiff’s own testimony and the safety documentation he was provided, Plaintiff [*14] voluntarily came into contact or close proximity with a thing he knew was dangerous and was thereby harmed. See Liscombe, 495 A.2d at 842. Thus, “it will be assumed as a matter of law that his own negligence contributed to the accident.” Id. (quoting Potomac Edison Co. v. State, 177 A. at 166).
Put differently, Plaintiff was made aware of the danger attendant to unloading these pipes, and his independent duty to take precautions in the face of that danger was not diminished by Boomer’s actions. Before delivering the load of pipes, Plaintiff signed (and, therefore, presumably read) a document that stated “WARNING PIPE FALLING OFF THE TRUCK CAN KILL OR INJURE,” and “NEVER GO TO THE OPPOSITE SIDE OF THE TRAILER WHEN UNLOADING EQUIPMENT IS MOVING NEAR THE TRUCK.” (Emphasis in original). According to his own testimony and argument, he then unstrapped bundles of pipe, walked to the opposite side of the trailer from the loader, and stood next to two unsecured bundles of pipe during the unloading process. It is undisputed he did not approach Boomer and explain why he was going to the other side of the trailer, or ask Boomer to stop unloading, even though the Safety Document admonished the Plaintiff to “tell the operator to stop moving and wait while you work [*15] on the other side of the load.” According to Plaintiff’s own testimony and argument, he did not do this because he assumed Boomer would not be foolish enough to continue unloading when Plaintiff was out of eyesight. But the actions of another, even their assurances of safety in a given situation “do not relieve a person from the duty of caring for his own safety, and a person cannot rely on another’s assurances when he is aware of the danger involved.” Campbell, 619 A.2d at 218 (quoting Erdman, 271 A.2d at 751). In ignoring explicit warnings and apparent danger in favor of the assumption that Boomer would act with due care, Plaintiff failed to exercise reasonable caution, and was harmed as a result.
Finally, the availability of reasonable alternative courses of action and some common sense reinforce the Court’s conclusion that Plaintiff was contributorily negligent. The parties exert too much energy disputing why Plaintiff went to the driver’s side of the trailer. According to Defendants, he was an overworked employee of a careless trucking company, trying to rush a job by wrapping up his straps before all the pipes were unloaded. Plaintiff tells a different story, in which he was simply doing his job and helping the process along [*16] by removing a stuck strap. But the parties’ significant focus on why ignores the more legally weighty discussion of how. Regardless of why Plaintiff went to the driver’s side of the trailer after unstrapping the final load, Plaintiff had at least one reasonable alternative course of action: he could have told Boomer what he was doing before trying to remove (or roll up) the strap. Not only could he have done this, it appears he was instructed to do this. (See Safety Document (warning Plaintiff to “tell the operator to stop moving and wait while you work on the other side of the load”).)
Moreover, the Court need not rely entirely on the Safety Document; common sense suggests that some communication with Boomer (or somebody) would have been prudent. Although not everyone has driven a tractor-trailer with a load of thirty 16″ diameter pipes, it is not altogether uncommon to use straps to secure items—perhaps a mattress, or a canoe—to a car or trailer. Even under those relatively low-stakes conditions, if, while unloading, you notice a strap is caught in some manner you would likely say something, or at least wave to the other person (or persons) helping you unload the mattress or canoe—so [*17] that the other person wouldn’t take some unexpected action that would cause the load to shift or fall on you. This is just common sense. Plaintiff was dealing with a load much heavier, more dangerous, and more unstable than such ordinary items, and he does not present evidence that he signaled to anyone at Goodloe Marine before walking to the opposite side of the trailer to “pull the strap . . . off the top of the load.” (Childress Dep. 308:6-7.) Plaintiff even suggests that the location of the strap may have prevented Boomer from unloading the pipe. (See Opp’n at 20 (“It should go without saying that a strapped load cannot be unloaded while still strapped.”).) If that were the case (and it is not entirely clear Plaintiff asks the Court to make such an inference), it only bolsters the Court’s finding that common sense dictates Plaintiff should have said something to Boomer. Whatever Boomer’s mistakes (if any), an ordinary prudent person in Plaintiff’s situation would not have bet his safety on the assumption that a person he previously had never met would exercise proper caution. Rather, such a person would have signaled in some manner that the strap was stuck (if it was). Plaintiff [*18] did not do so, and for this and the other reasons explained above he was contributorily negligent as a matter of law.

IV. Conclusion
The undisputed facts show that Plaintiff was contributorily negligent, and therefore, by accompanying order, summary judgment will be granted for Defendants on both Counts and the Clerk will be directed to close the case.
DATED this 9th day of August, 2018.
BY THE COURT:
/s/ James K. Bredar
Chief Judge

ORDER
In accordance with the foregoing memorandum, IT IS HEREBY ORDERD:
1. Defendants’ motion for summary judgment (ECF No. 75), pursuant to Federal Rule of Civil Procedure 56, is GRANTED.
2. Summary judgment IS GRANTED for Defendants on all counts.
3. The Clerk SHALL CLOSE the case.
DATED this 9th day of August, 2018.
BY THE COURT:
/s/ James K. Bredar
Chief Judge

Neutral As of: August 24, 2018 1:17 PM Z
Parker v. Miller
United States District Court for the Southern District of Ohio, Eastern Division
August 7, 2018, Filed
Case No. 2:16-cv-1143

Reporter
2018 U.S. Dist. LEXIS 132577 *
SHANICE J. PARKER, Plaintiff, v. ERIC M. MILLER, et al., Defendants.
Prior History: Parker v. Miller, 2017 U.S. Dist. LEXIS 135661 (S.D. Ohio, Aug. 24, 2017)

OPINION AND ORDER
This matter is before the Court upon the Partial Motions to Dismiss of Defendants Showplace Wood Products, Inc. (“Showplace”) (Doc. 72) and Fowlds Brothers Trucking, Inc. (“Fowlds Brothers”), Dakotaland Transportation, Inc. (“Dakotaland’), Bruce Fowlds (“Bruce”), and Jerald Fowlds (“Jerald”) (Doc. 73). The motion is fully briefed and ripe for disposition. For the following reasons, both motions are GRANTED IN PART and DENIED IN PART.

I. BACKGROUND
Plaintiff Shanice Parker was involved in a single-car [*2] accident on April 12, 2016, while traveling eastbound on I-70 in Licking County, Ohio due to a malfunctioning tie rod in her vehicle. (Doc. 45, 2d Am. Compl. ¶ 106). Parker’s vehicle was disabled in the right-most lane of eastbound travel on I-70. (Id. ¶ 107). Shortly after, Ohio State Highway Patrol Trooper Rodney Hart arrived in his patrol car and eventually parked it in the right-most lane directly behind Parker’s disabled vehicle. (Id. ¶ 116). Hart activated the emergency lights on his patrol car and placed road flares to indicate that oncoming traffic should move over into the middle or left-most lanes. (Id. ¶ 110). Hart also asked Parker to be seated in the front passenger seat of the patrol car so he could interview her regarding her single-car accident. (Id. ¶ 114). Within minutes, Parker was seriously injured when a tractor trailer driven by Defendant Eric Miller crashed into the parked patrol car in which Parker was seated. (Id. ¶¶ 118-31).
At the time of the accident, Miller was a truck driver whom Parker alleges was employed by “Defendant Dakotaland and/or Defendant Fowlds Brothers and/or Defendant Showplace” and was driving the truck as part of his job duties. (Id. ¶ 138). [*3] The truck involved in the accident was leased by Dakotaland from Fowlds Brothers. (Id. ¶¶ 11-12). At the time of the accident, the truck contained wood products manufactured by and being transported on behalf of Showplace. (Id. ¶¶ 23, 138).
Parker alleges that the three businesses (Dakotaland, Fowlds Brothers, and Showplace) are closely-related. Specifically, she alleges that Dakotaland and Fowlds Brothers operate as a single enterprise, with 75% of their business comprising the shipment of goods for Showplace. (Id. ¶ 31). Since 2000, Showplace has exclusively used Dakotaland and/or Fowlds Brothers as the motor carrier hauling its outbound loads. (Id. ¶ 29). Bruce and Jerald Fowlds are the eponymous Fowlds Brothers, and each owns 50% of both Dakotaland and Fowlds Brothers. (Id. ¶ 8). Miller, Dakotaland, Fowlds Brothers, Showplace, Bruce, and Jerald are all citizens of South Dakota, whereas Parker is a citizen of Ohio and/or Washington, D.C. (Id. ¶¶ 1, 3-7, 13).
In her Second Amended Complaint, Parker asserts claims for (1) negligent operation of a motor vehicle (against Miller); (2) statutory traffic violations establishing negligence per se (against Miller); (3) strict liability for [*4] Miller’s negligence (against Dakotaland);1 (4) negligent hiring, training, supervising, and retaining of Miller (against Dakotaland and Fowlds Brothers); (5) statutory violations establishing negligence per se in the hiring, training, supervising, and retaining of Miller (against Dakotaland, Fowlds Brothers, and Showplace); (6) negligent entrustment of the tractor trailer to Miller (against Dakotaland and Fowlds Brothers); (7) corporate veil piercing based on alter ego status (against Dakotaland, Bruce, and Jerald); (8) corporate veil piercing based on alter ego status (against Fowlds Brothers, Bruce, and Jerald); (9) corporate veil piercing based on a “single enterprise theory” (against Dakotaland and Fowlds Brothers); (10) vicarious liability for Miller’s negligence (against Dakotaland and Fowlds Brothers); (11) vicarious liability for Dakotaland’s and Fowlds Brothers’ negligence (against Showplace); (12) negligent retention of Dakotaland and Fowlds Brothers (against Showplace); and (13) non-delegable duty (against Showplace). (Id. ¶¶ 144-208).
Showplace, Fowlds Brothers, Dakotaland, Bruce, and Jerald now move for partial dismissal of Parker’s Second Amended Complaint. Bruce and Jerald [*5] seek dismissal of all claims against them because there are no grounds for piercing the corporate veils of either Dakotaland or Fowlds Brothers, and therefore this Court lacks personal jurisdiction over them as South Dakota citizens. Fowlds Brothers seeks dismissal of all claims against it on grounds that it is a separate entity from Dakotaland, and therefore it was not Miller’s employer and not responsible for his actions or for hiring or supervising him. Showplace seeks dismissal of Counts 5 and 13, as well as Parker’s request for punitive damages against it. Finally, Dakotaland seeks dismissal of Parker’s request for punitive damages against it.

II. STANDARDS OF REVIEW

A. Dismissal under Rule 12(b)(2)
Bruce and Jerald bring their motion pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, alleging that this Court lacks personal jurisdiction over them. When confronted with a Rule 12(b)(2) motion, “[t]he plaintiff bears the burden of establishing the existence of jurisdiction.” Estate of Thomson v. Toyota Motor Corp. Worldwide, 545 F.3d 357, 360 (6th Cir. 2008) (citing Brunner v. Hampson, 441 F.3d 457, 462 (6th Cir. 2006)). When the Court resolves a Rule 12(b)(2) motion based on “written submission and affidavits . . . rather than resolving the motion after an evidentiary hearing or limited discovery, the burden on the plaintiff is ‘relatively slight,’ . . . and ‘the plaintiff must make only a [*6] prima facie showing that personal jurisdiction exists in order to defeat dismissal.'” Air Prods. & Controls, Inc. v. Safetech Int’l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (quoting Am. Greetings Corp. v. Cohn, 839 F.2d 1164, 1169 (6th Cir. 1988); Theunissen v. Matthews, 935 F.2d 1454, 1458 (6th Cir. 1991)). Under such circumstances “the pleadings and affidavits submitted must be viewed in a light most favorable to the plaintiff, and the district court should not weigh ‘the controverting assertions of the party seeking dismissal.'” Id. (quoting Theunissen, 935 F.2d at 1459).
Although Plaintiff’s prima facie burden is relatively slight, the Court must still find that “‘[P]laintiff has set forth specific facts that support a finding of jurisdiction in order to deny the motion to dismiss.'” Palnik v. Westlake Entm’t, Inc., 344 F. App’x 249, 251 (6th Cir. 2009) (quoting Kroger Co. v. Malease Foods Corp., 437 F.3d 506, 510 (6th Cir. 2006)). Thus, “it remains the plaintiff’s burden and the complaint must have ‘established with reasonable particularity’ those specific facts that support jurisdiction.” Id. (quoting Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002)). Consequently, the rules are designed in part to protect potential defendants from a “plaintiff’s bald allegation of jurisdictional facts.” Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989).
“In diversity cases, federal courts apply the law of the forum state to determine whether personal jurisdiction exists.” Nationwide Mut. Ins. Co. v. Tryg Intern. Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir. 1996) (citations omitted). In order for personal jurisdiction to be proper, “both the state[‘s] long-arm statute and constitutional due process requirements” must be met. Calphalon Corp. v. Rowlette, 228 F.3d 718, 721 (6th Cir. 2000). As the United States Court [*7] of Appeals for the Sixth Circuit has noted, “Ohio’s long-arm statute is not coterminous with federal constitutional limits.” Estate of Thomson, 545 F.3d at 361 (citing Calphalon Corp., 228 F.3d at 721). Thus, for the Court to have personal jurisdiction, it must find that the requirements of both Ohio’s long-arm statute and constitutional due process are met. Id.

B. Dismissal under Rule 12(b)(6)
Fowlds Brothers, Showplace, and Dakotaland bring their motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, alleging that Plaintiff has failed to state a claim upon which relief can be granted.
Under the Federal Rules, any pleading that states a claim for relief must contain a “short and plain statement of the claim” showing that the pleader is entitled to such relief. Fed. R. Civ. P. 8(a)(2). To meet this standard, a party must allege sufficient facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). A claim will be considered “plausible on its face” when a plaintiff sets forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).
Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the foregoing standards. In considering whether a complaint fails to state a claim upon which relief can be granted, the Court must “construe [*8] the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.

III. DISCUSSION
The Court will discuss each claim sought to be dismissed in turn.

A. Claims against Bruce and Jerald

1. Veil piercing is not appropriate as to Bruce or Jerald.
Neither Bruce nor Jerald are alleged to have taken any relevant actions outside the capacity of owner or officer of the two corporations. Accordingly, to impose liability on either Bruce or Jerald, Parker must allege facts sufficient to pierce the corporate veils of Dakotaland or Fowlds Brothers. To determine whether a corporation’s veil can be pierced, Ohio courts apply a three-pronged test:
The corporate [*9] form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud, [an illegal act, or a similarly unlawful act] against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong.
Minno v. Pro-Fab, Inc., 121 Ohio St. 3d 464, 2009-Ohio-1247, 905 N.E.2d 613 (quoting Belvedere Condominium Unit Owners’ Ass’n v. R.E. Roark Cos., Inc., 67 Ohio St.3d 274, 1993- Ohio 119, 617 N.E.2d 1075 (1993), at paragraph three of the syllabus, as modified by Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, 895 N.E.2d 538).
Bruce and Jerald argue that, even assuming arguendo that Parker has sufficiently alleged that they exercise complete control over Dakotaland and Fowlds Brothers, she has not alleged that their control was exercised in such a manner as to commit fraud or an illegal act. (Doc. 74, Mot. at 15-16). Parker responds that her Second Amended Complaint alleges that Dakotaland “owns no real estate” and regularly transfers approximately 85% of its revenue to Fowlds Brothers as truck lease payments (Doc. 45, 2d Am. Compl. at ¶ 76). In her opposition brief, she asserts that this [*10] allegation is sufficient to establish purposeful undercapitalization to shield assets from Parker, which would be a fraudulent use of the corporate form. (Doc. 82, Resp. at 26).
However, the transfer of assets between Dakotaland to Fowlds Brothers implicates the concept of horizontal veil piercing between corporations, not the vertical veil piercing that Parker seeks to accomplish between Dakotaland and Bruce and Jerald (and between Fowlds Brothers and Bruce and Jerald) to reach shareholder assets. And importantly, Parker does not allege that Dakotaland has insufficient remaining assets to compensate her. Thus, even if, arguendo, the second prong were met, Parker has not alleged that Bruce and Jerald’s fraudulent exercise of control over the corporations harmed her in any way. There are therefore no grounds on which to pierce the corporate veils of Dakotaland or Fowlds Brothers to reach Bruce or Jerald’s assets.

2. Parker alleges no independent grounds for personal jurisdiction over Bruce or Jerald.
As Bruce and Jerald are citizens of South Dakota, Parker must allege that they engaged in activity that would satisfy both Ohio’s long-arm statute and due process constraints for the Court [*11] to exercise personal jurisdiction over them. While no party disputes this Court’s personal jurisdiction over Dakotaland or Fowlds Brothers, “[i]t is settled that jurisdiction over the individual officers of a corporation cannot be predicated merely upon jurisdiction over the corporation.” Weller v. Cromwell Oil Co., 504 F.2d 927, 929 (6th Cir. 1974). And Parker has not alleged that Bruce or Jerald took any relevant actions outside their capacity as owners and officers of the corporations that would qualify under Ohio’s long-arm statute.
In her opposition brief, Parker argues only that, in addition to the accident occurring in Ohio, “[t]he brothers are the equal owners of Defendant Dakotaland and Defendant Fowlds Brothers, businesses that regularly transact business in the state of Ohio, using Ohio infrastructure to deliver products and supplies to end-users across the eastern seaboard, including deliveries to people and companies in Ohio.” (Doc. 82, Resp. at 27). Parker asserts that these activities satisfy the first three subsections of Ohio’s long-arm statute, namely, “transacting any business in [Ohio],” “contracting to supply services or goods in [Ohio],” and “causing tortious injury by any act or omission in [Ohio].” Ohio Rev. Code § 2307.382(A).
But the Court has already [*12] determined supra that the corporate form should be respected as between each of Dakotaland and Fowlds Brothers on the one hand, and Bruce and Jerald on the other. As a result, Parker alleges no more than corporate activity, not activity by Bruce and Jerald individually. As Parker has not alleged facts that satisfy Ohio’s long-arm statute as to Bruce and Jerald, the Court will dismiss all claims against them for lack of personal jurisdiction.

B. Claims against Fowlds Brothers
Although Parker alleges that Miller was functionally employed by “Dakotaland and/or Fowlds Brothers and/or Showplace,” Parker does not dispute that Miller was at least nominally an employee of Dakotaland, the company that actually engages in the trucking business (as opposed to Fowlds Brothers, who, at least nominally, only owns the trucks and leases them to Dakotaland, and as opposed to Showplace, who, at least nominally, only uses Dakotaland as its independent contractor for its shipping needs).
The Second Amended Complaint reflects that Dakotaland (and not Fowlds Brothers) is registered as a “motor carrier” with the Department of Transportation, and Parker relies on violations of various regulations applicable [*13] only to “motor carriers” for her claim of negligent hiring and supervision in Count 5. (Doc. 45, 2d Am. Compl. ¶¶ 4, 169). Parker also alleges that the vehicle Miller was driving was leased by Dakotaland from Fowlds Brothers at the time of the accident, and thus only Dakotaland could have negligently entrusted the truck to Miller as alleged in Count 6. As a result, all of Parker’s claims against Fowlds Brothers hinge on Parker’s theory that Dakotaland and Fowlds Brothers are really a single enterprise—in other words, that the two corporations are alter egos of each other and that the assets of one should be available to satisfy the liabilities against the other.
As recognized by the Court’s previous order denying summary judgment for Fowlds Brothers (Doc. 38), Dakotaland and Fowlds Brothers are certainly related. Both have identical shareholders in identical proportions, and both share the same president and vice president. (Doc. 45, 2d Am. Compl. ¶¶ 6-8). Both have the same physical address. (Id. ¶ 28). In or around January 2016, the companies shifted some of Dakotaland’s employees to Fowlds Brothers in order for both companies to qualify as small employers under the Affordable Care Act. [*14] (Id. ¶ 69). Those same employees were immediately loaned back to Dakotaland, though their payroll is processed through Fowlds Brothers. (Id. ¶ 70). The majority of Fowlds Brothers’ truck leasing business comes from Dakotaland. (Id. ¶ 73). Parker aptly describes the two corporations as “engaging in symbiotic business enterprises that are financially dependent upon each other.” (Id. ¶ 77).
However, the Ohio Supreme Court has definitively held that horizontal veil piercing is not available for sister corporations like Dakotaland and Fowlds Brothers, even where they share the same owners. Minno v. Pro-Fab, Inc., 121 Ohio St. 3d 464, 2009-Ohio-1247, 905 N.E.2d 613 (2009). In Minno, an employee injured on the job sued his nominal employer (See-Ann) and its sister company (Pro-Fab), who the plaintiff argued were “fundamentally indistinguishable” from one another. Id. ¶ 5. Both See-Ann and Pro-Fab had “common individual shareholders and officers, are engaged in similar lines of work, and possess identical business addresses.” Id. ¶ 14.
Despite these commonalities, the Ohio Supreme Court emphasized that “the corporations are separately incorporated and neither corporation has an ownership interest in the other.” Id. Under these circumstances (as opposed to an individual [*15] shareholder alleged to be fundamentally indistinguishable from a corporation), “the common shareholder ownership of sister corporations does not provide one sister corporation with the inherent ability to exercise control over the other. Any wrongful act committed by one sister corporation might have been instigated by the corporation’s owners, but it could not have been instigated by the corporation’s sister.” Id. ¶ 13. The Minno court therefore held that “a plaintiff cannot pierce the corporate veil of one corporation to reach its sister corporation. A corporation’s veil may not be pierced in order to hold a second corporation liable for the corporate misdeeds of the first when the two corporations have common individual shareholders but neither corporation has any ownership interest in the other corporation.” Id.
The relationship between Dakotaland and Fowlds Brothers is functionally indistinguishable from that of the sister corporations in Minno. Therefore, Parker may not pierce Dakotaland’s corporate veil to reach Fowlds Brothers.
To avoid this result, Parker argues that she has not sought horizontal veil piercing at all, but has instead advanced a separate legal theory—that Dakotaland [*16] and Fowlds Brothers are a single enterprise. Parker contends that “Single Enterprise Theory is akin to the alter ego doctrine, wherein the economic fact pushes through the paper differentiations embodied in the corporate certificates and liabilities are dealt with in accord with the business, instead of the legal fact of corporate entity.” (Doc. 82, Resp. at 12). She claims that such a theory has long been recognized by Ohio courts, but cites in support only a single case from 1907 and a single law review article from 1947, neither of which go further than recognizing that the corporate form may be disregarded in the case of fraud. In re Rieger, 157 Fed. 609, 1907 U.S. Dist. LEXIS 437, 1 A.F.T.R (P-H) 155, 8 Ohio L. Rep. 498 (S.D. Ohio 1907); The Theory of Enterprise Entity, p. 345, Adolf A. Berle, Jr., Columbia Law Review, April 1947.
Parker also attempts to distinguish “horizontal veil piercing” and “single enterprise theory” by arguing that the former allows for vicarious liability of the affiliate, whereas the latter holds the affiliate directly liable. (Doc. 82, Resp. at 11). But this distinction is not supported by citation, nor is it a correct statement of the law. The justification for veil piercing is that the shareholder and the corporation are one and the same, such that the shareholder [*17] may fairly be held directly liable for the corporation’s liabilities. Belvedere, 67 Ohio St. 3d at 288. Thus, even as described by Parker, her “single enterprise theory” is no more than an attempt at the horizontal veil piercing foreclosed by the Ohio Supreme Court in Minno.
Finally, Parker argues that Fowlds Brothers is seeking a “third bite at the apple” on the single enterprise theory, referencing the Court’s earlier orders denying summary judgment for Fowlds Brothers (Doc. 38) and denying reconsideration of that order (Doc. 57). (Doc. 82, Resp. at 24). But in those earlier stages of the litigation, Parker had not yet fully articulated her single enterprise theory and the Court was without the benefit of the parties’ full briefing on the issue. It is clear at this stage that Minno is controlling and, accordingly, all claims against Fowlds Brothers are dismissed.

C. Claims against Showplace
Parker asserts several negligence-based claims against Showplace: statutory violations establishing negligence per se in the hiring, training, supervising, and retaining Miller (Count 5), vicarious liability for Dakotaland’s negligence (Count 11), negligent retention of Dakotaland (Count 12), and non-delegable duty to ensure Dakotaland [*18] operated in a non-negligent manner (Count 13). Showplace moves for dismissal of only Counts 5 and 13.

1. Count 5 (statutory violations establishing negligence per se)
Showplace argues Count 5 must be dismissed because the regulations it is alleged to have violated do not provide a private right of action. However, Parker has not asserted claims based solely on the violation of the regulations; she asserts only that Showplace’s violation of the regulations establishes negligence per se. (Doc. 45, 2d Am. Compl. ¶ 173). The distinction is important:
A plaintiff attempting to assert a private right of action under a statute is asserting that a violation of the particular statute, standing alone, entitles her to a remedy. Fawcett v. G.C. Murphy & Co., 46 Ohio St. 2d 245, 348 N.E.2d 144, 146 (Ohio 1976); Cort v. Ash, 422 U.S. 66, 77, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975). Negligence per se, on the other hand, merely satisfies the duty and breach elements of a negligence claim. Pond v. Leslein, 72 Ohio St. 3d 50, 1995-Ohio-193, 647 N.E.2d 477, 479 (Ohio 1995); Sikora [v. Wenzel], 88 Ohio St. 3d 493, 2000-Ohio-406, 727 N.E.2d [1277,] 1281 [(Ohio 2000)]. The plaintiff still must meet her proofs on proximate cause and damages. Pond, 647 N.E.2d at 479.
Thornton v. State Farm Mut. Auto Ins. Co., No. 1:06-CV-00018, 2006 U.S. Dist. LEXIS 83968, 2006 WL 3359448, at *14 (N.D. Ohio Nov. 17, 2006). Parker has simply asserted a basic common law negligence claim whose first two elements, she contends, may be satisfied by Showplace’s violation of various regulations. The availability of a private right of action [*19] under the regulations is therefore irrelevant.
The problem with Parker’s Count 5 is that the standards she identifies largely cannot form the basis for negligence per se. Parker relies primarily on the Federal Motor Carrier Safety Regulations (“FMCSRs”) at 49 C.F.R. §§ 350-99, as well as the motor carrier safety standards contained in Ohio Administrative Code §§ 4901:2-5-02 through 08. These are administrative rules and regulations adopted by the U.S. Department of Transportation and Ohio’s Public Utilities Commission, respectively; they are not legislatively-enacted statutes. Again, the distinction is important: “[T]he violation of an administrative rule does not constitute negligence per se.” Chambers v. St. Mary’s Sch., 82 Ohio St. 3d 563, 568, 1998-Ohio-184, 697 N.E.2d 198, 203.
In Chambers, the Ohio Supreme Court “distinguished between duties arising from statutes, which reflect public policy, and duties arising from administrative rules, which are created by administrative agency employees who act to implement the General Assembly’s public-policy decisions.” Lang v. Holly Hill Motel, Inc., 122 Ohio St. 3d 120, 2009-Ohio-2495, 909 N.E.2d 120, ¶ 18 (citing Chambers, 82 Ohio St.3d at 564, 566-567). “If we were to rule that a violation of the [Building Code] (an administrative rule) was negligence per se, we would in effect bestow upon administrative agencies the ability to propose and adopt rules which alter the proof requirements between litigants. Altering proof [*20] requirements is a public policy determination more properly determined by the General Assembly . . . .” Chambers, 82 Ohio St. 3d at 568. Accordingly, Ohio does not recognize negligence per se based on the violation of an administrative regulation.
The one legislative enactment listed in Count 5 that might be relevant to negligence per se is Ohio Revised Code § 4511.79(B), which provides:
No owner, as defined in section 4501.01 of the Revised Code, of a “commercial motor vehicle,” “commercial car,” or “commercial tractor,” or a person employing or otherwise directing the driver of such vehicle, shall require or knowingly permit a driver in any such condition described in division (A) of this section to drive such vehicle upon any street or highway.
However, this statute does not apply to Showplace in the context of Parker’s accident. The statute applies only to owners of commercial motor vehicles (defined in § 4501.01 has having title to the vehicle) or employers of drivers of such vehicles.
Parker’s Second Amended Complaint alleges that Fowlds Brothers, not Showplace, is the owner of the vehicle Miller was driving. (Doc. 45, 2d Am. Compl. ¶ 11). And Parker has not sufficiently alleged that Showplace “employed or otherwise direct[ed]” Miller as the driver of the vehicle. [*21] Her general allegation that “Defendant Miller was the agent, servant, and/or employee of Defendant Dakotaland and/or Defendant Fowlds Brothers and/or Defendant Showplace” are not plausible in light of the more specific allegations she makes as to the hiring and supervision of Miller. (Id. ¶ 16). To wit:
• Bruce Fowlds, Jon Otto and Dan Parker (all three of which Parker alleges to be officers or employees of Dakotaland and/or Fowlds Brothers, but not of Showplace) hire drivers for Dakotaland and/or Fowlds Brothers. Bruce Fowlds has the final decision-making power as to hiring, disciplining, and retaining drivers. (Id. ¶¶ 59, 61, 62, 65)
• Bruce Fowlds, Jon Otto, and Dan Parker comprise Dakotaland and/or Fowlds Brothers’ “Review Board,” whose purpose is to “address company safety concerns, including driver employment and retention decisions.” (Id. ¶ 67).
• Miller submitted his employment application to Dakotaland and/or Fowlds Brothers. The application was reviewed by Bruce Fowlds, Jon Otto, and Dan Parker, and Dan Parker reached out Miller’s past employers for references. “Defendant Bruce Fowlds, Jon Otto, and Dan Parker, through consensus on behalf of Defendant Dakotaland and/or Defendant [*22] Fowlds Brothers, hired Defendant Miller to operate a commercial motor vehicle in interstate commerce.” (Id. ¶¶ 83-84, 92).
• After Miller was involved in multiple accidents while “operating a commercial motor vehicle for Defendant Dakotaland and/or Defendant Fowlds Brothers,” “[t]he Review Board took no action against Defendant Miller.” (Id. ¶¶ 101-102).
• Miller was eventually “placed on probation for his accidents by Safety Director, Dan Parker.” (Id. ¶ 103).
According to Parker’s own allegations, Miller was hired, supervised, and retained by Dakotaland and/or Fowlds Brothers without Showplace’s involvement. Parker’s further suggestion that “Showplace has de facto control over Defendant Dakotaland’s daily operations as it provides seventy-five (75%) percent [sic] of the loads hauled by Defendant Dakotaland” does not hold water. (Id. ¶ 54). Although it may be true that “[i]f Defendant Showplace terminated, altered or otherwise reduced its relationship and/or reliance on Defendant Dakotaland to haul its products, then Defendant Dakotaland would suffer a financial hardship” (id.), this financial relationship is not sufficient to create de facto control over daily operations by one company [*23] over another. It certainly does not suffice to demonstrate that Showplace was Miller’s employer or was otherwise directing Miller as required by § 4511.79(B).
In sum, Parker has not identified any statutory violations which could form the basis of negligence per se on the part of Showplace. To the extent that Parker hopes to establish that Showplace violated a non-statutory duty, that negligence claim would be redundant with Counts 11 and 12 (asserting vicarious liability for Dakotaland’s negligence and direct liability for Showplace’s retention of Dakotaland, respectively). Accordingly, Parker’s claims against Showplace in Count 5 must be dismissed.

2. Count 13 (non-delegable duty)
Parker’s Count 13 asserts that “Showplace is a commercial trucking company and a registered motor carrier with the U.S. department of Transportation (U.S. DOT #867220) which is subject to the Federal Motor Carrier Safety Regulations as an interstate trucking company and has a non-delegable duty to the public at large and may not use outside motor carriers to shield itself from liability.” (Doc. 45, 2d Am. Compl. ¶ 205). She further states that “Showplace breached its non-delegable duty by selecting, hiring and/or retaining a Defendant [*24] Dakotaland and/or Defendant Fowlds Brothers when the independent contractor’s driver, Defendant Miller negligently operated a commercial motor vehicle in an unsafe manner . . . .” (Id. ¶ 208).
Parker’s appeal to the FMCSRs is unavailing as to Showplace. Although it may itself be a registered motor carrier, Showplace was not acting as a motor carrier in the context of Parker’s injuries. Instead, as reflected by Parker’s own allegations, it was acting as the manufacturer of wood products, which it then arranged to have transported by Dakotaland, a registered motor carrier. (Id. ¶¶ 23-27).
More importantly, to the extent Parker seeks to hold Showplace liable for the actions of Dakotaland and/or Fowlds Brothers, this claim is also redundant. The existence of any duty on the part of Showplace must be established as part of Parker’s basic negligence claims in Counts 11 and 12. Strother v. Hutchinson, 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981) (elements of negligence are (1) the existence of a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages). The ability to delegate that duty (or lack thereof) might be raised in defense to Counts 11 and 12, but it does not by itself create a separate cause of action. [*25] The cases cited by Parker do not hold otherwise. Accordingly, Count 13 must be dismissed.

D. Punitive damages
All moving Defendants (Dakotaland, Fowlds Brothers, Bruce, Jerald, and Showplace) moved to dismiss Parker’s requests for punitive damages. However, now that all claims against Fowlds Brothers, Bruce, and Jerald have been dismissed, the Court need only consider the viability of Parker’s prayers for punitive damages against Dakotaland and Showplace.
Punitive damages may be awarded if a plaintiff establishes that “[t]he actions or omissions of that defendant demonstrate malice or aggravated or egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or ratified actions or omissions of an agent or servant that so demonstrate.” Ohio Rev. Code § 2315.21(C)(1). Parker and Defendants both identified the correct standard for actual malice:
Actual malice, necessary for an award of punitive damages, is (1) that state of mind under which a person’s conduct is characterized by hatred, ill will or a spirit of revenge, or (2) a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm.
Preston v. Murty, 32 Ohio St. 3d 334, 334, 512 N.E.2d 1174, 1174 (1987). “[A]ctual malice can be inferred from [*26] conduct and surrounding circumstances which may be characterized as reckless, wanton, willful or gross.” Villella v. Waikem Motors, Inc., 45 Ohio St. 3d 36, 37, 543 N.E.2d 464, 467 (1989) holding modified by Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 1994 Ohio 324, 635 N.E.2d 331 (1994). But the actions of a defendant must rise above mere negligence to be considered actual malice. “The focus is on the actor’s conscious disregard of an almost certain risk of substantial harm. This distinguishes ‘malicious’ from ‘non-malicious’ conduct.” Kuebler v. Gemini Transp., No. 3:12-CV-114, 2013 U.S. Dist. LEXIS 172769, 2013 WL 6410608, at *5 (S.D. Ohio Dec. 9, 2013) (Rose, J.). “The type of aggravated circumstances sufficient to support an award of punitive damages in a motor vehicle accident case may include intoxication and deliberate actions to flee the scene or evade responsibility.” MacNeill v. Wyatt, 917 F. Supp. 2d 726, 730 (S.D. Ohio 2013) (Litkovitz, M.J.) (citing Cabe v. Lunich, 70 Ohio St. 3d 598, 1994-Ohio-4, 640 N.E.2d 159, 163 (1994)).
No defendant has argued that Parker’s allegations as to Miller are insufficient to support a claim for punitive damages against him. Parker’s Second Amended Complaint alleges that Miller had full visibility of the patrol car’s flashing lights with sufficient time and distance to change lanes or bring the truck to a stop, and yet he failed to apply his brakes until only a few seconds before the crash. (Doc. 45, 2d Am. Compl. ¶¶ 120-32). The Court previously denied Miller’s motion for summary judgment on the request [*27] for punitive damages in Parker’s First Amended Complaint (Doc. 38), and Miller has not re-moved to dismiss the request for punitive damages in Parker’s Second Amended Complaint.

1. Punitive damages against Dakotaland
In an earlier stage of this case, the Court granted Dakotaland’s motion to dismiss the request for punitive damages in Parker’s First Amended Complaint. (Doc. 26). In that order, the Court concluded that Parker’s First Amended Complaint did not sufficiently allege that Dakotaland “knowingly authorized, participated in, or ratified actions or omissions” of Miller as required by the second prong of R.C. § 2315.21(C)(1).
But in drafting her Second Amended Complaint, Parker had the benefit of significant discovery that was not available when drafting the earlier version. The Second Amended Complaint contains many more detailed factual assertions as to Dakotaland’s alleged malice. While it remains true that Parker has not alleged that Dakotaland authorized, participated in, or ratified Miller’s dangerous driving, Parker has now sufficiently alleged that Dakotaland’s own actions in hiring and retaining Miller demonstrate malice could satisfy the first prong of R.C. § 2315.21(C)(1). Specifically, Parker now [*28] alleges:
• Dakotaland received an incomplete employment application from Miller which disclosed a previous crash on October 22, 2013 and an issue with Miller’s commercial driver’s license. Despite concerns with the application, Dakotaland did not make further inquiries of Miller as to the previous crash or the license issue. (Doc. 45, 2d Am. Compl. ¶¶ 81, 83, 86). Nor did Dakotaland inquire with Miller as to inconsistencies between the application and various medical forms he submitted. (Id. ¶ 91).
• Dakotaland sought references from Miller’s previous employers, one of whom described Miller as “poor” in regard to compliance with safety regulations and logs and stated that he had been discharged for not having sufficient experience and being hard on equipment. (Id. ¶ 84).
• Despite its concerns, Dakotaland hired Miller on February 2, 2015. (Id. ¶ 92).
• Dakotaland did not make inquiries sufficient to discover that Miller had also been issued nine FMCSR violations while driving a commercial motor vehicle on August 26, 2014. (Id. ¶ 85). Dakotaland also failed to identify that Miller had less than 12 months of experience operating a commercial motor vehicle. (Id. ¶ 94). Having less than 12 [*29] months of experience meant Miller was an “entry-level driver” under 49 CFR 380.502.
• Miller was placed into service as a commercial motor vehicle driver for Dakotaland without entry-level driver training as required by 49 C.F.R. §§ 380.502-13. (Id. ¶ 95).
• Within his first year of employment with Dakotaland, Miller was involved in five crashes. Miller received no additional training or instruction after any of these crashes. (Id. ¶ 101).
• Dakotaland’s written policies provide that after the third driver incident in a year, the offending driver is to be terminated. Yet Dakotaland continued to employ Miller, even after he was involved in five crashes within his first year. (Id. ¶ 102).
• Dakotaland placed Miller on probation for his safety record during his annual review on February 2, 2016 (approximately two and a half months prior to the accident involving Parker). (Id. ¶ 103). During his probationary period, Miller received a written warning from Dakotaland for, inter alia, his repeated history of damaging the truck and trailer. The letter also indicates that one of these incidents occurred in early March 2016. (Id. ¶ 104). Yet Dakotaland continued to employ Miller without further training or discipline. (Id.).
• Less [*30] than a month after Miller received the written warning, he was involved in the accident that injured Parker. (Id. ¶ 105).
These facts, if true, could support a finding of malice on the part of Dakotaland in hiring and retaining Miller. Parker alleges that Dakotaland knew, or should have known, at the time it hired Miller that he had a poor safety record, but nevertheless employed him to operate commercial motor vehicles, a potentially dangerous activity. Moreover, during Miller’s employment, Dakotaland was faced with Miller’s numerous crashes that should have resulted in termination pursuant to Dakotaland’s own policies; yet Dakotaland continued to employ Miller without additional training or discipline. Thus, Parker has sufficiently alleged that Dakotaland, in hiring and continuing to employ Miller, exhibited a conscious disregard of an almost certain risk of substantial harm. Parker’s request for punitive damages against Dakotaland therefore stands.

2. Punitive damages against Showplace
Just as with Dakotaland, Parker has not alleged any facts to support an inference that Showplace authorized, participated in, or ratified Miller’s conduct. Nor has she alleged any facts that would support [*31] Showplace’s knowledge, and conscious disregard, of the safety threat posed by Miller prior to the crash. She does allege, however, that Showplace knew or should have known that Dakotaland as a whole had an unsafe driving record, even outside of Miller’s driving, and that it consciously disregarded that risk by continuing to retain Dakotaland as its exclusive motor carrier hauling outbound loads. Specifically, Parker alleges that:
• Since Dakotaland began transporting goods for Showplace in 2000, Showplace has received telephone calls, social media messages, and email complaints from the motoring public concerning unsafe driving by Dakotaland drivers. (Doc. 45, 2d Am. Compl. ¶ 33). Through these complaints or otherwise, Showplace has been on notice of incidents of dangerous driving by Dakotaland including incidents involving law enforcement, improper parking in the roadway, hard-braking causing cargo or pallets to skid 10-15 feet, cutting other vehicles off on the highway, almost causing crashes, tailgating, hit-skip, weaving through traffic, unsafe lane changes, passing on the right, speeding, and crashes. (Id. ¶ 34).
• Showplace was on notice of multiple crashes with other vehicles [*32] caused by or involving Dakotaland drivers, including three crashes in 2014. (Id. ¶ 35).
• At various times during the period between November 2010 through the time of Parker’s injuries, Dakotaland was listed in publicly available profiles as being on alert status with the Federal Motor Carrier Safety Administration. Namely, Dakotaland was on alert status in the following categories:
○ Unsafe Driving (28 months)
○ Fatigued Driving (4 months)
○ Hours of Service Compliance (14 months)
○ Crash Indicator (21 months)
○ Controlled Substance/Alcohol (1 month) (Id. ¶ 36).
• Showplace has never inquired as to Dakotaland’s safety record, data, or statistics available from the Department of Transportation. (Id. ¶ 40). Nor has Showplace discussed Dakotaland’s safety record with Dakotaland. (Id.¶ 42).
Showplace asserts that it cannot have known that Dakotaland posed a risk to the public because Dakotaland maintained a federal license as a motor carrier. (Doc. 86, Reply at 2-3). However, Showplace cites no authority for the proposition that a valid federal motor carrier license means that the motor carrier poses no risk to the public per se. And even if Showplace did not have actual knowledge of Dakotaland’s [*33] spotty safety record, Ohio courts may impose punitive damages based on constructive knowledge. E.g., Davis v. Sun Ref. & Mktg. Co., 109 Ohio App. 3d 42, 58, 671 N.E.2d 1049, 1060 (Ohio Ct. App. 1996); Stephens v. A-Able Rents Co., 101 Ohio App. 3d 20, 29, 654 N.E.2d 1315, 1320-21 (Ohio Ct. App. 1995). If, as Parker alleges, Dakotaland’s safety statistics with the Department of Transportation were easily available to the public, her allegations could support constructive knowledge on the part of Showplace that Dakotaland may have posed an almost certain risk of substantial harm. As a result, Parker’s request for punitive damages against Showplace stands.

IV. CONCLUSION
For the foregoing reasons, the Motions to Dismiss are GRANTED IN PART and DENIED IN PART. All claims against Fowlds Brothers Trucking, Inc., Bruce Fowlds, and Jerald Fowlds are DISMISSED. Further, Count 5 is DISMISSED as to Showplace only and Count 13 is DISMISSED in its entirety. All other claims remain pending.
The Clerk shall remove Documents 72 and 73 from the Court’s pending motions list.
IT IS SO ORDERED.
/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT