United States District Court, W.D. Virginia.

JESSIE LEE SHIFFLETT, Plaintiff,

v.

STEPHANE ROUTHIER, et al., Defendants.

Civil Action No. 5:23-cv-00046

|

Filed 11/26/2024

MEMORANDUM OPINION

Elizabeth K. Dillon Chief United States District Judge

*1 Plaintiff Jessie Lee Shifflett brings this action against defendants Stephane Routhier and Couture Expressway (Couture) seeking damages for a vehicle collision in which a tractor-trailer driven by Routhier and owned by Couture struck Shifflett’s vehicle. Pending before the court are two motions: (1) Shifflett’s motion for leave to amend his complaint (Dkt. No. 53), and (2) Shifflett’s motion to supplement the record to include additional information in support of Shifflett’s motion for leave to amend (Dkt. No. 71). The court will grant Shifflett’s motion to supplement the record and considers all related filings in its decision below. For the reasons that follow, the court will deny Shifflett’s motion for leave to file an amended complaint.

I. BACKGROUND

A. Procedural History

Shifflett filed his initial complaint with the court on July 20, 2023, alleging five claims against defendants after suffering injuries from an auto accident that occurred on June 27, 2022: (I) Negligence against Routhier, (II) Negligence Per Se against Routhier, (III) Respondeat Superior Liability against Couture, (IV) Corporate Negligence against Couture, and (V) Negligence Per Se against Couture. (Dkt. No. 1.) Defendants moved to dismiss counts II, IV, and V for failure to state a claim for which relief can be granted. (Dkt. No. 10.) After full briefing and a hearing on the matter, this court ruled from the bench on January 17, 2024, denying dismissal as to count II against Routhier, but granting the dismissal of counts IV and V against Couture, without prejudice. (Dkt. No. 28.)

On August 20, 2024, Shifflett filed a motion for leave to amend his complaint, “to add more detail to its factual allegations, and to replead its corporate negligence counts that this [c]ourt previously dismissed.” (Dkt. No. 53, at 1.) In addition to the three counts remaining after the court’s ruling on the motion to dismiss, Shifflett alleges two corporate negligence claims against Couture that are labeled as: Count (IV)(A) Negligence/Negligence Per Se, and Count (IV)(B) Negligent Retention.¹ (Am. Compl. at 16–22, Dkt. No. 53-1.) Defendants filed a response in opposition to Shifflett’s motion for leave to amend, arguing that even accepting the allegations in the amended complaint as true, the additional negligence claims are futile. (Dkt. No. 58.) Shifflett filed a reply brief addressing defendants’ arguments. (Dkt. No. 60) In addition, on October 21, 2024, Shifflett filed a motion to supplement the record to include additional information in support of his motion for leave to amend the complaint. (Dkt. No. 71.) Defendants responded in opposition (Dkt. No. 73), and Shifflett filed a reply addressing defendants’ arguments (Dkt. No. 74.) Both matters are fully briefed and ripe for resolution.

B. Shifflett’s Factual Allegations²

*2 On June 27, 2022, a tractor-trailer being driven by Routhier rear-ended a car being driven by Shifflett. Shifflett had been driving behind Routhier in the right westbound lane of Berryville Pike approaching the intersection of the I-81 off-ramp in Frederick County, Virginia. He then decided to pass in front of Routhier and did so without incident before coming to a complete stop in front of Routhier’s tractor-trailer. Routhier could see the rear tires of Shifflett’s car in front of him, but he moved his tractor-trailer closer to the back of Shifflett’s car, “recklessly creating a hazardous condition.” (Am. Compl. ¶¶ 13–19.) Routhier then attempted to move into the left lane but ended up rear-ending the back of Shifflett’s car. On October 17, 2023, Routhier pled guilty to Improper Driving in violation of Virginia Code Ann. § 46.2-869. (Id. ¶¶ 20–23.) Shifflett suffered a variety of injuries and still experiences pain, suffering, and impairment as a result of the collision. (Id. ¶¶ 28–34.)

Routhier was driving a tractor-trailer owned by Couture, and at all relevant times, he was acting within the scope of his employment with Couture. (Id. ¶¶ 7, 14.) Shifflett alleges that Couture knew that Routhier was an unsafe driver, ignored prior warnings about his unsafe driving, and never addressed Routhier’s unsafe driving habits with him. (Id. ¶¶ 24, 56–63.) “By intentionally ignoring Mr. Routhier’s unsafe driving habits, Couture allowed Mr. Routhier to risk the lives of others on the highways, which led to the collision with [Shifflett].” (Id. ¶ 66.) Shifflett alleges that Couture employed an electronic monitoring system for all its vehicles that had the ability to communicate alerts and warnings to both Couture and its drivers in real time. Couture configured its system to receive alerts when its drivers engaged in unsafe driving habits, such as excessive speeding. Couture decided not to send those alerts to its drivers, including Routhier. (Id. ¶¶ 46–53.) “By failing to implement alerts for its drivers, Couture eliminated a primary safety feature of its [driver monitoring] systems.” (Id. ¶ 54.) Furthermore, Couture’s safety director received so many alerts and notifications from its drivers that she had to ignore them to get any work done. (Id. ¶ 61.)

Shifflett alleges that the electronic monitoring system informed Couture of Routhier’s unsafe driving, specifically in relation to his excessive speeding, including multiple instances of driving 10 mph over the speed limit on the day of the collision. (Id. ¶¶ 56–57.) By ignoring these warnings and choosing not to notify Couture’s drivers, the company was negligent per se in violation of The Federal Motor Carrier Safety Administration Regulations (FMCSRs). (Id. ¶¶ 114–28.) Furthermore, Shifflett asserts that Routhier’s habitual speeding made it foreseeable to Couture that a crash was imminent. Despite this, they chose not to address the behavior and continued to employ him. (Id. ¶¶ 129–41.) It was not until a second collision, shortly after the one at issue, before Couture fired Routhier for his unsafe driving. (Id. ¶¶ 64, 137.)

While not alleged in the proposed amended complaint, the court takes notice of and considers the video evidence considered by the court by agreement of all parties at its hearing on the first motion to dismiss. (Dkt. Nos. 16 and 27.) The video establishes that Routhier was traveling at a low rate of speed at the time of this collision. Furthermore, Shifflett does not allege otherwise.

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) instructs courts to “freely give leave when justice so requires.” Id. “Despite this general rule liberally allowing amendments, … a district court may deny leave to amend if the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707 F.3d 451, 461 (4th Cir. 2013) (citing Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc)) (internal quotations omitted); see also Foman v. Davis, 371 U.S. 178, 182 (1962) (“In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the party by virtue of the allowance of the amendment, futility of amendment, etc.—the leave sought should, as the rules require, be ‘freely given.’ ”).

*3 Traditionally, an amendment is futile if it is “clearly insufficient or frivolous on its face.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986). And “district courts are free to deny leave to amend as futile if the complaint fails to withstand Rule 12(b)(6) scrutiny.” In re Triangle Cap. Corp. Sec. Litig., 988 F.3d 743, 750 (4th Cir. 2021). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff’s allegations must “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)). This standard “requires the plaintiff to articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief, i.e., the ‘plausibility of entitlement to relief.’ ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555). The plausibility standard requires more than “a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. “[A] formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

In determining whether the plaintiff has met this plausibility standard, the court must accept as true all well-pleaded facts in the complaint and any documents incorporated into or attached to it. Sec’y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Further, it must “draw[ ] all reasonable factual inferences from those facts in the plaintiff’s favor,” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it “need not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable conclusions, or arguments.’ ” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).

III. DISCUSSION

Shifflett has filed a motion for leave to amend his complaint to add more detail to the factual allegations and replead the corporate negligence claims that this court previously dismissed. (Dkt. No. 53, at 3.) In addition, Shifflett filed a motion to supplement the record to include additional information in support of his motion for leave to amend.³ (Dkt. No. 71.) There are two claims at issue in the pending motions: (A) Shifflett’s corporate negligence/negligence per se claim against Couture, and (B) Shifflett’s negligent retention claim against Couture. The court will deny Shifflett’s motion for leave to amend his complaint because both claims are futile. Each claim’s analysis is discussed in turn.

A. Shifflett’s Corporate Negligence/Negligence Per Se Claim Against Couture is Futile.

Shifflett contends that under 49 C.F.R. § 390.11 and 49 C.F.R. § 392.2, Couture has an affirmative duty to ensure that its drivers follow the FMCSRs. (Dkt. No. 53, at 4.) He alleges that Couture consciously ignored this duty, when it knew its truck driver, Routhier, routinely engaged in unsafe driving but took no action to address his behavior. (See generally Am. Compl.) Shifflett alleges that Couture knew of Routhier’s unsafe driving because it received excessive speeding notifications through its internal driver monitoring system (Isaac Instruments). Excessive speeding is a violation of the FMCSRs. As such, Shifflett alleges that Couture is negligent per se. (Id. ¶¶ 129–41.)

“There is widespread consensus among federal district courts that there is no federal private right of action allowing personal injury or wrongful death plaintiffs to hold defendants liable for violations of the FMCSR[s].” Dippel v. BestDrive, LLC, No. 3:19-cv-01135, 2020 WL 813971, *8–9 (S.D. Ill. Feb. 19, 2020) (internal citations omitted). As the court discusses below, however, the fact that the FMCSRs do not contain a private cause of action does not preclude a plaintiff from using a particular section of the FMCSRs to plead a negligence per se claim, if that section otherwise can support such a claim. Under Virginia law, “the requirements for proving a claim of negligence per se are well established.” Halterman v. Radisson Hotel Corp., 523 S.E.2d 823, 825 (Va. 2000). A plaintiff must prove: (1) that the defendant violated a statute that was enacted for public safety; (2) that the plaintiff belongs to the class of persons for whose benefit the statute was designed to protect; (3) that the harm that occurred was the type the statute was designed to protect; and (4) that the statutory violation was a proximate cause of his injury. Id.

*4 With respect to the first prong, “the violation of a statute does not, by that very fact alone, constitute actionable negligence or make the guilty party negligent per se.” Parker v. Carilion Clinic, 819 S.E.2d 809, 824 (Va. 2018) (citing Williamson v. Old Brogue, Inc., 350 S.E.2d 621, 264 (Va. 1986)). “[A] statute may define the standard of care to be exercised where there is an underlying common-law duty, but the doctrine of negligence per se does not create a cause of action where none otherwise exists.” Id. (citing Williamson, 350 S.E.2d at 624). “The absence of an underlying common-law duty renders the presence of a statutory standard of care irrelevant.” Id.

Shifflett’s negligence per se claim fails on two grounds. First, the FMCSRs upon which Shifflett relies do not support a negligence per se claim, so his claim against Couture fails as a matter of law. Second, even if the FMCSRs mentioned did support a negligence per se claim against Couture, Shifflett fails to adequately allege the causation element required for any negligence claim.⁴

1. FMCSRs § 390.11 and § 392.2 Do Not Support a Negligence Per Se Claim.

Shifflett alleges that Couture was negligent per se by violating its duties under § 390.11 of the FMCSRs. As relevant here, that regulation states:

Whenever in part 325 of subchapter A or in this subchapter a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition. If the motor carrier is a driver, the driver shall likewise be bound.

49 C.F.R. § 390.11.

Shifflett attempts to rely on McKeown v. Rahim, 446 F. Supp. 3d 69 (W.D. Va. 2020) to add § 390.11 of the FMCSRs to the list of regulations satisfying the first prong of a negligence per se action, but his reliance is misplaced.⁵ In McKeown, this court noted the FMCSA regulations are “the type [ ] that may form the basis of a negligence per se claim in Virginia.” Id. at 76. However, although the court found that the plaintiffs plausibly alleged a negligence per se action in relation to a violation of § 396.3, it failed to plausibly allege another negligence per se action under § 390.13. Id. at 76–77. The court noted that § 396.3 imposed “[a] requirement that motor carriers keep their vehicles in safe working order, specifically emphasizing the maintenance of parts that affect the safety of operation, suggests that this regulation was intended to protect members of the driving public, including the [plaintiffs], from unsafe commercial vehicles like [defendants].” Id. at 76. But the court found that § 390.18, “which addresses only aiding and abetting violations of the FMCSRs, was [not] enacted for public safety.” Id. at 77. Rather, it was “intended only to promote compliance with the regulatory scheme.” Id. Similarly, the court finds that § 390.11 only promotes compliance.

*5 “[C]ertain aspects of the FMCSR are not aimed at protecting the driving public, and courts have considered on a case-by-case basis whether the specific regulation can support a negligence per se claim.” Conway v. Lone Star Transp., LLC, No. 19-cv-0658, 2020 WL 609750, at *4 (N.D. Okla., Feb. 7, 2020). The court cannot say that § 390.11, which is located directly before § 390.13 within Subpart B—General Requirements and Information of the FMCSRs—was enacted for public safety. Rather, this specific regulation, like § 390.13 in McKeown, is intended to promote compliance with the regulatory scheme. McKeown, 446 F. Supp. 3d at 77; see also Ellis v. Klawonn, No. 4:21-cv-00977, 2023 WL 3993043, at *5 (E.D. Tex. June 8, 2023) (“At most, FMCSR § 390.11 imposes a duty on both the driver and carrier, but it does not impose any particular standard of care; because a statute must impose a standard of care higher than ordinary negligence, § 390.11’s command as to who has a duty rather than the standard for breach of that duty means Plaintiffs’ negligence per se claim fails as a matter of law.”). As such, Shifflett’s negligence per se claim alleged under § 390.11 fails as a matter of law.

Shifflett also alleges that Couture was negligent per se by violating its duties under § 392.2 of the FMCSRs. As relevant here, that regulation states:

Every commercial motor vehicle must be operated in accordance with the laws, ordinances, and regulations of the jurisdiction in which it is being operated. However, if a regulation of the Federal Motor Carrier Safety Administration imposes a higher standard of care than that law, ordinance or regulation, the Federal Motor Carrier Safety Administration regulation must be complied with.

49 C.F.R. § 392.2. Federal district courts across the country have held that § 392.2 does not establish an independent duty. See Conway, 2020 WL 609750, at *5 (granting defendant’s motion to dismiss negligence per se claim because “49 C.F.R. 392.2 is too vague to meet the positive objective standard test under Oklahoma and Texas law”); Estate of James v. Weigele, No. 1:14-cv-4027, 2015 WL 12683822, at *4 n.6 (N.D. Ga. Aug. 13, 2015) (“[§ 392.2] does not impose a specific duty and does not provide any indication of the class of persons to be protected or the harms to be prevented. Rather, the regulation states that all operators of motor vehicles must comply with the laws of the jurisdiction in which the motor vehicle is being operated. Because of its overly broad terms, the plaintiffs cannot rely on this regulation to set out a case for negligence per se.”). Here, the court holds the same. Thus, Shifflett’s negligence per se claim alleged under § 392.2 fails as a matter of law.

2. Shifflett Fails to Sufficiently Allege Causation.

Even if FMCSRs § 390.11 and/or § 392.2 could support a negligence per se claim, Shifflett’s claim would fail because he has not sufficiently alleged that the statutory violation was the proximate cause of his injury. See Halterman, 523 S.E.2d at 825; see also Talley v. Danek Med., Inc., 179 F.3d 154, 158–59 (4th Cir. 1999) (“Virginia law makes clear that a plaintiff who has established breach by relying on negligence per se must also establish the other elements of a negligence claim in order to prevail…. The plaintiff must also show that the breach of duty was a proximate cause of the plaintiff’s injury.” (citing Bentley v. Felts, 445 S.E.2d 131, 133 (Va. 1994))).

Shifflett alleges that “[t]hrough its Isaac Instruments systems, Defendant Couture Expressway knew that defendant Routhier routinely was engaged in unsafe driving behaviors, including at least regularly speeding on the highways each day of his employment with Couture.” (Am. Compl. ¶ 99.) Furthermore, Couture had the ability to communicate that unsafe behavior to Routhier, through the monitoring system and voluntarily chose not to. (Id. ¶¶ 101–28.) Shifflett alleges a series of incidents where Routhier was traveling at excess speeds, including “numerous occasions” of traveling over 10 mph on the day of the collision. (Id. ¶¶ 56–59, 99, 112, 118, 125, 127, 130, 137.) He claims that these instances should have warned Couture that Routhier was an unsafe driver and that it was foreseeable that Routhier was going to be involved in a traffic accident. (Id. ¶ 136.) However, according to the allegations in the amended complaint and the video, this accident did not involve speeding. In fact, the amended complaint states that Routhier “engaged in an improper lane change” and was cited for “Improper Driving.”⁶ (Id. ¶¶ 21, 23.) At bottom, speeding is not alleged to be the proximate cause of Shifflett’s injury. Furthermore, general allegations of “unsafe driving” do not amount to a sufficient pleading of causation in a negligence per se claim. Even accepting all well-pleaded factual allegations in Shifflett’s amended complaint as true, and drawing all factual inferences in his favor, the court finds that he has not sufficiently alleged the causation element of his negligence per se claim against Couture. The court will deny Shifflett’s motion for leave to amend, as it pertains to this claim, because the amendment would be futile.

B. Shifflett’s Negligent Retention Claim Against Couture is Futile.

*6 Shifflett argues that the allegations of speeding on the day of the collision and other days, as evidenced in Couture’s telemetry data, put the company on notice of Routhier’s unsafe driving behavior and made it foreseeable “that injury was near certainty.” (Reply Mem. Supp. Mot. Dismiss 12, Dkt. No. 60.) He cites to a 2014 government report that “determined speeding and not wearing a seatbelt were behavioral characteristics most closely related to truck drivers being involved in a crash.” (Am. Compl. ¶ 119.) The amended complaint alleges that Couture’s safety director ignored Routhier’s excessive speeding alerts and failed to take any action to address his “constant[ ] unsafe driving.” (Id. ¶¶ 137–39.) Furthermore, it was foreseeable to Couture that Routhier’s driving behaviors would result in a crash. (Id. ¶ 136.) As such, Shifflett alleges Couture negligently retained Routhier as its employee. (Id. ¶¶ 129–41.)

“A claim for negligent retention exists ‘for harm resulting from the employer’s negligence in retaining a dangerous employee who the employer knew or should have known was dangerous and likely to harm [others].’ ” Doe ex rel. Doe v. Baker, 857 S.E.2d 573, 582 (Va. 2021) (citing Southeast Apartments Mgmt. v. Jackman, 513 S.E.2d 395, 397 (Va. 1999)). “The negligent retention tort requires a showing that the risk of future harm was so grave that discharging the dangerous employee would have been the only reasonable response.” Id. (citing A.H. v. Church of God in Christ, Inc., 831 S.E.2d 460, 474 (Va. 2019)). “[A] prima facie case of negligent retention requires an amplified showing that both the nature and gravity of the risk render unreasonable any mitigating response short of termination.” A.H., 831 S.E.2d at 474.

Shifflett fails to sufficiently allege a negligent retention claim against Couture for two reasons: (1) there is no causation, and (2) even if there was, there is no showing that the risk of future harm was so grave that discharging Routhier would have been the only reasonable response. First, Shifflett fails to sufficiently allege causation for the same reasons discussed in Section III.A.2 supra. The Fourth Circuit has made clear, “[t]he harm suffered by the plaintiff must be a foreseeable result of the negligent retention.” Alford v. Martin & Gass, Inc., 391 F. App’x 296, 305 (4th Cir. 2010) (internal citation omitted) (affirming dismissal of negligent retention claim based on the employee’s prior physical altercation when the suit was about a racially-motivated offense); see also Harrison v. Edison Bros. Apparel Stores, Inc., 814 F. Supp. 457, 463–64 (M.D.N.C. 1993) (“[T]o succeed on a negligent retention claim, as on any negligence claim, an injured plaintiff must prove a causal connection between his or her injury and the tortious conduct of the defendant.”). Completely lacking in this case is a causal relationship between the factual allegations of unsafe driving—primarily excessive speeding—and the rear-end collision at issue.

Second, even if the allegations of unsafe driving mentioned in the amended complaint were sufficient to allege causation, the factual allegations do not support a finding that “the risk of future harm was so grave that discharging the dangerous employee would have been the only reasonable response.” Doe, 857 S.E.2d at 582. The amended complete contains vague allegations of unsafe driving, with only one specific mention of just how fast over the speed limit Routhier was going. (Am. Compl. ¶ 57 (“On the day of the collision, Defendant Routhier was speeding more than 10 miles per hour above the applicable speed limit on numerous occasions.”).) Shifflett extensively mentions the driver monitoring system that Couture implemented and how it ignored notifications of Routhier’s unsafe driving. However, most all mentions of excessive speed are vague allegations that do not mention how fast over the speed limit Routhier was going—if he was going over the speed limit at all. Shifflett cites to several cases to support his negligent retention claim against Couture, but all involve very different facts than the ones alleged in his amended complaint. The court need not extensively address all those cases in detail but notes key differences in the present case. Notably, there is no allegation that Routhier ever received a traffic citation of any kind before the day of the incident. Furthermore, there is no allegation of any unfavorable ratings issued by FMCSA against Routhier or Couture. Finally, Shifflett mentions no case law that supports the conclusion that the factual allegations in his amended complaint sufficiently pleading a negligent retention claim against Couture. His argument rests solely on an internal monitoring system that Couture had no obligation to have, let alone operate in any specific way. Even accepting that Routhier routinely engaged in excessive speeding and exhibited other unsafe driving behaviors, the court finds insufficient allegations to plausibly conclude that the behaviors amounted to a “risk of future harm [ ] so grave that discharging [him] would have been the only reasonable response.” Doe, 857 S.E.2d at 582. As such, even accepting all well-pleaded factual allegations in Shifflett’s amended complaint as true, and drawing all factual inferences in his favor, the court finds that Shifflett fails to plausibly state a negligent retention claim against Couture.

IV. CONCLUSION

*7 Shifflett’s motion to supplement the record in support of his motion for leave to file his first amended complaint will be granted. Because Shifflett’s additional claims against Couture—Negligence/Negligence Per Se and Negligent Retention—would fail to survive a motion to dismiss, granting him leave to amend would be futile. Therefore, Shifflett’s motion for leave to file a first amended complaint will be denied.

An appropriate order will issue.

All Citations

Slip Copy, 2024 WL 4894866

Footnotes
1	The court notes that Couture is not challenging the sufficiency of Shifflett’s “Respondeat Superior Liability” claim against it in Count III. Furthermore, Couture “throughout has admitted that it employed Mr. Routhier and that Mr. Routhier was acting within the scope of his employment when the incident occurred.” (Dkt. No. 58, at 1–2.) The Fourth Circuit recognizes that a plaintiff “may not receive a double recovery under different legal theories for the same injury.” Ward v. AutoZoners, LLC, 958 F.3d 254, 271 (4th Cir. 2020) (citing Gordon v. Pete’s Auto Serv. of Denbigh, Inc., 637 F.3d 454, 460 (4th Cir. 2011)).
2	The factual allegations in this section are taken from Shifflett’s proposed amended complaint because those are the operative allegations to consider regarding these motions. (Am. Compl., Dkt. No. 53-1.)
3	The court will grant this motion (Dkt. No. 71) and has considered all related filings in its analysis below.
4	It is unclear if Shifflett is bringing a separate “Negligence” claim against Couture. In the amended complaint, Shifflett labels Count IV as “Corporate Negligence” with two subclaims – (A) Negligence/Negligence Per Se, and (B) Negligent Retention. (See Am. Compl.) Defendants were also confused as to exactly what Shifflett was alleging in his amended complaint. (See Dkt. No. 58.) In his reply to defendant’s response in opposition, Shifflett indicates that he is pleading “both general negligence and negligence per se” against defendant Couture. (Dkt. No. 60, at 2.) Although the court only addresses the negligence per se claim in this section, any “general negligence” claim against Couture also fails because Shifflett has failed to sufficiently allege causation. (See discussion infra Section III.A.2.)
5	Shifflett also cites to two additional cases, but they are not particularly relevant to the circumstances of this case. First, he mentions Sentry Select Ins. Co. v. Drought Transp., LLC, 2017 WL 5382168, at *2 (W.D. Tex. May 3, 2017), noting, “a motor carrier has a duty under 49 C.F.R. § 390.11 to require its drivers to observe duties or prohibitions prescribed to a driver under 49 C.F.R. Subchapter B. Accordingly, if a motor carrier fails to enforce those duties, it may be liable for its own negligence in failure to follow the FMCSR.” However, that case did not involve a negligence per se claim, and furthermore, the plaintiff was not alleging a claim under § 390.11. Second, Shifflett attempts to rely on Paul v. Western Express, Inc., No. 6:20-cv-00051, No. 6:20-cv-00052, 2021 WL 1259446, *1 (W.D. Va. April 6, 2021). In Paul, the court found that the motor carrier had a “general duty to exercise due care to avoid injuring members of the public sharing the roadways with its trucks.” Id. at *3 (internal citation omitted). It then noted that, “FMCSR § 390.11 defines that standard of care by making it the ‘duty of the motor carrier to require’ its drivers to observe the duties or prohibitions that the FMCSRs impose on them.” Id. However, Paul did not involve a negligence per se action but “direct negligence claims.” Id. at 3–4. The court is unwilling to extend Paul to negligence per se claims.
6	The amended complaint specifically mentioned that “Routhier pled guilty to Improper Driving in violation of Virginia Code § 46.2-869.” (Am. Compl. ¶ 23.) That code reads: “Notwithstanding the foregoing provisions of this article, upon the trial of any person charged with reckless driving where the degree of culpability is slight, the court in its discretion may find the accused not guilty of reckless driving but guilty of improper driving. However, an attorney for the Commonwealth may reduce a charge of reckless driving to improper driving at any time prior to the court’s decision and shall notify the court of such change. Improper driving shall be punishable as a traffic infraction punishable by a fine of not more than $500.” Va. Code Ann. § 46.2-869. (emphasis added.)

End of Document

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

David L. DRAKE, et al., Plaintiffs,

v.

OLD DOMINION FREIGHT LINE, INC., et al., Defendants.

Case No. 1:22-CV-21-ACL

|

Signed November 5, 2024

Attorneys and Law Firms

Ernest Samuel Ueligger, Pro Hac Vice, Jones and Ueligger Law, Columbia, MO, Debbie S. Champion, Victor H. Essen, Rynearson Suess LLC, St. Louis, MO, for Plaintiffs.

John Terry Brooks, Joseph R. Swift, Baker Sterchi LLC, St. Louis, MO, for Defendants.

MEMORANDUM AND ORDER

ABBIE CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE

*1 This matter is before the Court on the Complaint of Plaintiffs David L. Drake and Rebecca Ann Drake against Defendants Old Dominion Freight Line, Inc. (“Old Dominion”) and its employee Toreano Barnes, following an accident involving a semi-truck operated by Barnes. (Doc. 1.) Presently pending before the Court is Defendants’ Motion for Summary Judgment. (Doc. 80.) Plaintiffs oppose the Motion. (Doc. 88.) This matter is fully briefed and ready for disposition.

I. Background

Plaintiffs filed this action based on diversity of citizenship under 28 U.S.C. § 1332(a)(1). The Complaint alleges two counts arising from the accident between Plaintiff David Drake and Defendant Barnes that occurred on May 4, 2017. In Count I, David Drake asserts a negligence claim against Defendants Old Dominion and Barnes. In Count II, Plaintiff Rebecca A. Drake alleges a loss of consortium claim against Defendants Old Dominion and Barnes. Plaintiffs’ claims against Old Dominion are based on the doctrine of respondeat superior. As relief, Plaintiffs request compensatory damages and punitive damages for each claim, as well as post-judgment interest, costs, and attorney fees.

Plaintiffs allege that Barnes negligently operated his semi-truck by failing to keep a careful lookout, driving in a reckless manner without due care, failing to yield to oncoming traffic, failing to yield the right of way to Drake, colliding with Drake’s vehicle, and failing to use appropriate evasive procedures to avoid the collision. They contend that Defendants’ actions and conduct as alleged were “willful and wanton in that Defendants showed an utter indifference to, or conscious disregard for, Plaintiff David L. Drake’s safety and the safety of others …” (Doc. 1 at 4.)

Defendants previously filed a Motion to Dismiss, in which they argued that Plaintiffs’ claims for punitive damages should be dismissed because Plaintiffs “allege garden variety negligence.” (Doc. 12 at 2.) The Court construed Defendants’ Motion as a Motion to Strike under Rule 12(f) and denied the Motion, finding Defendants had not shown that there was a statutory or other bar to punitive damages sufficient to warrant the extreme measure of striking Plaintiffs’ request for punitive damages. (Doc. 24.)

In the instant Motion for Summary Judgment, Defendants request that the Court enter partial summary judgment in their favor on Plaintiffs’ claims for punitive damages, because Defendants’ alleged actions do not exhibit a complete indifference to, or conscious disregard for, the safety of others. They next argue that they are entitled to summary judgment on Plaintiffs’ claims for negligence against both Defendants because the undisputed facts show that Drake caused the underlying collision.

Plaintiffs respond that there is a fact dispute between Barnes’ claim “that he could not see Drake before he made the left turn that caused the crash, and Drake’s testimony that establishes that Barnes could see Drake before Barnes made his left turn and crossed in front of Drake.” (Doc. 88 at 1-2.) Plaintiffs argue that Defendants are therefore not entitled to summary judgment on the punitive damages claim or the negligence claim.

II. Summary Judgment Standard

*2 Summary judgment is appropriate if, viewing all facts in the light most favorable to the nonmoving party, there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). Material facts are those facts “that might affect the outcome of the suit under the governing law,” and a genuine dispute over material facts is one “such that a reasonable jury could return a verdict for the nonmoving part[ies].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the burden of showing a lack of a genuine dispute as to any material fact, Celotex Corp., 477 U.S. at 323, and the Court views the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588–89 (1986). To survive a motion for summary judgment, the nonmoving party must substantiate her allegations with “sufficient probative evidence that would permit a finding in her favor based on more than mere speculation, conjecture, or fantasy.” Mann v. Yarnell, 497 F.3d 822, 825 (8th Cir. 2007) (quotation omitted).

III. Facts¹

Defendant Barnes was operating a semi-truck for his employer, Old Dominion, on May 4, 2017, when he crossed Highway U.S. 60 in Shannon County, Missouri, and collided with a vehicle driven by Drake. Drake was operating a 1994 Ford Escort, and was driving eastbound on Highway 60. Highway 60 is a two-lane highway with a divided median. Barnes was traveling westbound on Highway 60 and turned left across eastbound Highway 60 onto southbound Missouri 99, which intersected Highway 60. Barnes’ tractor-trailer consisted of a truck-tractor, two trailers, and a dolly. Drake collided with the rearmost trailer connected to Barnes’ truck-tractor.

Drake denies that mechanical failures caused or contributed to cause the accident. He testified that his speed approaching the intersection was less than 55 miles an hour. Drake testified that he had a clear view of Barnes and his vehicle as Barnes was crossing the road. Barnes testified that he perceived no oncoming traffic. Drake began to decelerate when Barnes crossed the median, and was traveling at a speed of 35 to 40 miles per hour at the time of impact. He applied his brakes but his brakes locked up. Drake was talking on his cellular phone—with the phone located either on a pillow close to him or in his pocket using the speaker function—at the time of the collision. Barnes testified that he did not see Drake before going through the intersection.

IV. Discussion

As previously stated, Defendants argue they are entitled to judgment as a matter of law on Plaintiffs’ claim for punitive damages and on their negligence claim. The Court will address these claims in turn.

A. Punitive Damages

Defendants argue that they are entitled to partial summary judgment on Plaintiffs’ claims for punitive damages because Plaintiffs have not presented evidence establishing the requisite evil motive or reckless indifference.

“Ordinarily [punitive] damages are not recoverable in actions for negligence, because negligence, a mere omission of the duty to exercise care, is the antithesis of willful or intentional conduct.” Hoover’s Dairy, Inc. v. Mid–Am. Dairymen, Inc./Special Prods. Inc., 700 S.W.2d 426, 435 (Mo. 1985) (en banc) (citations omitted); see also Scott v. Dyno Nobel, Inc., 108 F.4th 615, 632 (8th Cir. 2024) (applying Missouri law). Nevertheless, “when the defendant knew or had reason to know that there was a high degree of probability that the action would result in injury,” punitive damages may be appropriate in a negligence action. Hoover’s Dairy, 700 S.W.2d at 436 (collecting cases). “The defendant’s conduct must be tantamount to intentional wrongdoing where the natural and probable consequence of the conduct is injury. With such a showing, a plaintiff can recover for aggravating circumstances based upon the defendant’s complete indifference to or conscious disregard for the safety of others.” Lopez v. Three Rivers Elec. Co-op, Inc., 26 S.W.3d 151, 160 (Mo. 2000) (citations omitted). The standard of proof of a defendant’s required culpable mental state is clear and convincing evidence. May v. Nationstar Mortgage, LLC, 852 F.3d 806, 814 (8th Cir. 2017).

*3 Under Missouri law, evidence of failure to follow motor carrier regulations and industry standards is permitted to support an award of punitive damages against commercial motor carriers. In Lopez, the Missouri Supreme Court ruled that a “knowing violat[ion of] a statute, regulation, or clear industry standard designed to prevent the type of injury occurred” is a factor to be considered when submitting a jury instruction on punitive damages. 26 S.W.3d at 160. See also Coon v. Am. Compressed Steel, Inc., 207 S.W.3d 629, 638 (Mo. Ct. App. 2006) (sustaining award of punitive damages because the motor carrier had shown a conscious disregard for public safety in failing to comply with federal and state motor carrier regulations and industry standards); Trotter v. B & W Cartage Co., 2006 WL 1004882 (S.D. Ill. April 13, 2006) (applying Missouri law) (“The evidence of record also suggests that the conduct of B & W employees like the managers of the company’s terminals in Clayton, Ohio and Gary, Indiana, was such as to send a message to drivers that hours of service violations were acceptable conduct.”).

Here, Plaintiffs argue that Drake’s testimony shows that Barnes acted with a complete indifference to or conscious disregard for the safety of others when he failed to look for oncoming traffic before entering the U.S. Highway 60 eastbound lanes. Plaintiffs cite to Missouri Revised Statute § 304.351, which provides that vehicles intending to turn left shall yield the right-of-way “to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard.” Mo. Rev. Stat. § 304.351.3. Plaintiffs argue that Drake could “clearly see Barnes as Barnes crossed the median without hesitation and began to cross the eastbound lanes of U.S. Highway 60 in front of Mr. Drake.” (Doc. 88 at 5.) They contend that Drake’s vehicle was so close to Barnes that Drake was “able to see Barnes’ head and noted that Barnes never looked toward him.” Id. Because Drake could clearly see Barnes, Plaintiffs contend that Barnes necessarily could see Drake’s vehicle approaching him “had he conducted a proper visual search before executing his left turn in front of Drake.” Id. at 6. Plaintiffs argue that Barnes either knowingly did not look for oncoming traffic, consistent with Drake’s testimony, which he knew would lead to injury; or he did look and saw Drake but proceeded anyway, which constitutes clear reckless indifference.

Plaintiffs further argue that Barnes and Old Dominion consciously failed to adhere to industry regulations and standards. In support of this claim, Plaintiffs cite the testimony of their retained trucking expert, Linda Day,² that Barnes failed to yield the right-of-way by passing in front of Drake. They also note that Ms. Day expressed the opinion that Barnes failed to adhere to the following industry standards: the responsibility to maintain a proper visual search and to recognize hazards and potential conflicts; safely manage his speed and space around his vehicle; adhere to industry standards and safe driving practices as it relates to left-hand turns with double trailers; and operate with due caution as it relates to accident avoidance.

Although Plaintiffs rely upon Ms. Day’s testimony, Ms. Day testified that she agreed that Barnes did not violate the Federal Motor Vehicle Carrier Safety Regulations (“FMCSRs”). (Doc. 77-1 at 26.) She explained that the FMCSRs “do not encompass a left turn.” Id. Ms. Day testified that, based on the police report that indicates Barnes failed to yield, she believes Barnes violated state law requiring yielding the right-of-way. Id. She stated that she had no evidence that Barnes violated the “Smith System”—a defensive driving standard in the industry—other than the fact a collision occurred. Id. at 36, 39. She further testified that Barnes did not violate FMCSRs pertaining to hours-of-service limitations on May 4, 2017, as documented in his electronic driver’s logs. Id. at 11. Plaintiffs argue that Barnes failed to adhere to sections of the Missouri Commercial Driver’s License (“CDL”) manual, but Ms. Day admitted that the CDL manual does not specifically address making left turns when pulling two and three trailers. Id. at 30.

*4 The Eighth Circuit recently elucidated the standard of proof as to conduct underlying punitive damage awards in Scott. There, the husband and wife plaintiffs brought an action against a nitric acid plant operator alleging the husband suffered serious injuries when he was exposed to a cloud of toxic gas negligently emitted from the defendant’s plant. 108 F.4th at 622. The jury found in favor of plaintiffs and awarded the plaintiff $30 million in punitive damages on his negligence claim. Id. at 623. The Eighth Circuit reversed the award of punitive damages, holding the plaintiffs submitted insufficient evidence that defendant acted with the requisite mental state. Id. The Court acknowledged that the plaintiff’s expert testified that the defendant did not follow risk management procedures required by a “well-recognized industry safety standard,” which was “evidence at least suggesting conscious disregard for the safety of others.” Id. at 633. Although the plaintiffs had submitted sufficient evidence to prove the elements of their negligence claim,

what is missing is evidence Dyno acted with “such reckless indifference to the rights of others that the law will imply that an injury resulting from it was intentionally inflicted.” Alack, 923 S.W.2d at 339. Nor was there evidence Dyno “knew or had reason to know that there was a high degree of probability that [its startup] action would result in injury.” Hoover’s Dairy, 700 S.W.2d at 436 (emphasis in original). Without proof of the mental state that has long been required for the recovery of punitive damages under Missouri law, the award of punitive damages in this case must be reversed.

Id. at 633-34 (emphasis in original).

Here, even with all factual inferences drawn in their favor, Plaintiffs have not presented any evidence upon which the Court can conclude that clear and convincing evidence would support a finding that Barnes acted with reckless disregard for the safety of others under the circumstances. Assuming Drake’s account of the accident is true, Barnes merely did not see Drake’s vehicle when Barnes was crossing the intersection. Plaintiffs do not allege any facts suggesting Barnes engaged in any reckless conduct that resulted in his failure to see Drake. For example, Drake does not claim that Barnes was distracted by any activity inside his cab at the time of the accident. Cf. Mason v. C.R. Eng., Inc., No. 4:18-CV-00651 JCH, 2019 WL 5394565, at *3–4 (E.D. Mo. Oct. 22, 2019) (finding jury question existed as to whether defendant’s conduct was “reckless enough to impose punitive damages” when defendant truck driver testified he looked down due to “commotion inside the cab” and “did not know how far he traveled while looking down.”).

Drake’s alleged conduct of failing to maintain a proper visual search prior to making a left turn is tantamount to negligence. In fact, Plaintiffs acknowledge this in their own statement of facts: “When a commercial vehicle operator either fails to look or decides to proceed through an intersection despite oncoming traffic it is a negligent or intentional violation of basic safety rules …” (Doc. 89, p. 21, at ¶ 44) (emphasis added). Further, there is no evidence before the Court demonstrating that Barnes violated FMCSRs or a specific industry standard.

For these reasons, the Court concludes there is no genuine issue of material fact based upon which Plaintiffs could show a submissible claim for punitive damages. Thus, Defendants are entitled to judgment as a matter of law on the issue of punitive damages.

B. Negligence

Defendants also contend they are entitled to summary judgment on Plaintiffs’ negligence claim, because Plaintiffs cannot establish that Defendants breached a duty of care. They contend that the undisputed material facts establish that Drake—not Barnes—caused the accident.

Plaintiffs respond that they have presented sufficient evidence to support their claim that Barnes failed to keep a careful look out and failed to yield the right of way. They argue that there is a fundamental fact dispute regarding whether Barnes saw or could have seen Drake to avoid the collision, which precludes summary judgment. The undersigned agrees.

*5 Under Missouri law, a plaintiff must prove three elements to prevail on a negligence claim: (1) that the defendant owed a duty of care to the plaintiff; (2) that the defendant breached that duty; and (3) that the defendant’s breach proximately caused the plaintiff’s injury. Principal Nat’l Life Ins. Co. v. Rothenberg, 70 F.4th 1046, 1056 (8th Cir. 2023) (quoting Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 848 (Mo. 2018) (en banc)).

Defendants argue Plaintiffs cannot establish that Defendants breached a duty of care to Plaintiffs. Under Missouri law “[e]very motorist entering an intersection has a duty to exercise the highest degree of care to maintain a careful lookout both ahead and laterally.” Rill v. Trautman, 950 F. Supp. 268, 272 (E.D. Mo. 1996) (citing Witt v. Peterson, 310 S.W.2d 857, 860 (Mo. 1958)). “To fulfill this duty, [a] defendant ‘[is] required to look in such an observant manner as to enable him to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances.’ ” Id. (quoting Joffe v. Beatrice Foods Co., 341 S.W.2d 880, 884 (Mo. Ct. App. 1960)). The court further explained in Hudson v. Whiteside, 34 S.W.3d 420, 427 (Mo. Ct. App. 2000):

“This duty is not fulfilled by ‘obeying a traffic signal and then proceeding into the intersection without making careful observations to determine whether there is no cross traffic in or so near to the intersection as to constitute an immediate danger.’ ” Riscaldante v. Melton, 927 S.W.2d 899, 902 (Mo. App. 1996). To make a submissible case for failure to keep a careful lookout, the plaintiff must establish “that the [driver] saw or could have seen [the plaintiff] in time to have avoided the collision.” Id. In determining what the defendant saw or could have seen, the defendant is “held to have seen what looking would reveal.” Witt v. Peterson, 310 S.W.2d 857, 860 (Mo. 1958).

With regard to Drake’s alleged negligence, the Missouri Supreme Court in Gustafson v. Benda, 661 S.W.2d 11, 15 (Mo. 1983) (en banc), adopted the principle of pure comparative fault in accordance with the Uniform Comparative Fault Act, §§ 1-6. As explained by the court in Rill, under the pure comparative fault doctrine:

[T]he injured party’s own negligence is compared to that of the negligence of defendant to determine whether any damages awarded should be diminished in proportion to the amount of negligence attributable to that plaintiff. Cornell v. Texaco, Inc., 712 S.W.2d 680, 682 (Mo. 1986) (en banc). Comparative fault is an affirmative defense in which the defendant must prove that the actions or omissions of the plaintiff contributed to the plaintiff’s loss to negate or reduce the defendant’s legal responsibility. Business Men’s Assurance Co. v. Graham, 891 S.W.2d 438, 447 (Mo. Ct. App. 1994). The parties in a negligence case have the right to have their case submitted to a jury under comparative fault principles if there exists substantial evidence, not mere speculation or conjecture, that plaintiff’s conduct was a contributing cause of her damages. Hughes v. Palermo, 911 S.W.2d 673, 674 (Mo. Ct. App. 1995).

950 F. Supp. at 271.

Drake testified that he could clearly see Barnes as Barnes exited the median without hesitation and began to cross the eastbound lanes of Highway 60 in front of Drake. (Doc. 89-5 at pp. 33, 42.) He stated that Barnes, “didn’t even look my way and he never hesitated when he—when he pulled through. He didn’t stop at the stop sign. He never hesitated.” Id. at 33. Drake testified that he began to decelerate as he saw Barnes cross the median, and applied his brakes, but there was not much distance between the two vehicles. Id. at 43. He testified that he did everything he could to avoid the accident, and it would not have mattered if he swerved because Barnes tractor-trailer was taking up the entire roadway. Id. at 56.

*6 Defendants argue that the undisputed material facts establish that Drake caused the accident. They state that Drake admitted that he had a good visual of Barnes, but he did not apply his brakes until after Barnes’ tractor-trailers had entered the intersection. Defendants, relying on the testimony of their expert Fred Semke, contend that if Drake was traveling at 40 miles per hour before the collision, his vehicle would have been approximately 860 feet from the collision area. (Doc. 81-6 at 14-15.) Traveling at 40 miles per hour, Drake had approximately 13.6 seconds to apply his brakes or change lanes but failed to do so. Id. Defendants contend that Plaintiffs have not established that Barnes could have known there was a reasonable likelihood of collision in time to take evasive measure because he could not have anticipated that Drake would fail to exercise due care in operating his vehicle. They therefore argue that Defendants did not breach a duty of care owed to Plaintiffs.

As Plaintiffs point out, Mr. Semke’s opinion is based on the testimony of Barnes that Drake’s vehicle was far enough away that it was not visible to Barnes and that Barnes looked properly before starting his turn. (Doc. 89-7 at 32-33, 36-37.) Plaintiffs further point out that Mr. Semke assumed Drake was traveling at a consistent speed of 40 miles per hour, which is inconsistent with his testimony that he was traveling between 35 and 40 miles per hour and decelerated after seeing Barnes in the median. Specifically, Drake testified that he “wasn’t going faster than 55,” and was traveling at a speed of “probably 35 to 40” miles per hour. (Doc. 89-5 at 33.)

Viewing the evidence in the light most favorable to Plaintiffs, the Court finds that genuine issues of material fact exist precluding summary judgment on the issue of Barnes’ negligence. There is a genuine factual dispute as to whether Barnes could see Drake’s vehicle at the time he made his turn. The speed at which Drake was traveling is also disputed, which impacts the calculation of the distance between the two vehicles and the amount of time Drake had to react to avoid the collision. As such, factual issues exist as to whether Barnes breached his duty to Drake by failing to keep a careful look out and failing to yield the right of way. A jury will resolve these factual issues in determining whether Barnes is liable for the accident or, as Defendants allege, Drake’s alleged negligence was the sole cause of the collision. Thus, Defendants’ Motion for Summary Judgment on Plaintiffs’ negligence claim will be denied.

Conclusion

The Court finds for the reasons set forth above that summary judgment should be granted in Defendants’ favor on the issue of punitive damages. The Court further finds that issues of material fact exist precluding summary judgment on the issue of Defendants’ negligence. Thus, the Court will grant Defendants’ Motion for Summary Judgment in part.

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (Doc. 80) is granted in part and denied in part, as discussed above. A separate Partial Judgment in favor of Defendants will accompany this Memorandum and Order.

All Citations

Slip Copy, 2024 WL 4679068

Footnotes
1	The Court’s recitation of the relevant facts is taken from the Complaint, the parties’ statements of uncontroverted facts, their responses thereto, and the exhibits filed by the parties.
2	Ms. Day’s testimony is the subject of a Daubert motion presently pending before the Court. (Doc.) Ms. Day’s testimony does not affect the outcome of the instant Motion for Summary Judgment.

End of Document

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