Clevenger v. Howard

• Decision Date: 30 November 2015
• Docket Number: Case No. 15-6110-CV-SJ-REL
• Parties: JOHN A. CLEVENGER, Plaintiff, v. AMBER D. HOWARD d/b/a HOWARD LOGISTICS, Defendant.
• Court: U.S. District Court — Western District of Missouri

JOHN A. CLEVENGER, Plaintiff, v. AMBER D. HOWARD d/b/a HOWARD LOGISTICS, Defendant.

Case No. 15-6110-CV-SJ-REL

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI ST. JOSEPH DIVISION

November 30, 2015

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

This case involves a suit against the owner of a tractor-trailer that rear-ended plaintiff's vehicle. Currently before the court is a motion to dismiss the portions of count two alleging negligent training, negligent hiring, negligent supervision and negligent retention on the grounds that (1) those allegations are in direct conflict with and contradictory to what is necessary under Missouri law to state these claims, (2) plaintiff has failed to plead any facts demonstrating any purported dangerous proclivity of the employee truck driver that existed prior to the accident and of which defendant Howard had either actual or constructive knowledge, and (3) plaintiff does not plead any allegations pertaining to any purported negligent training. Based on the following, defendant's motion to dismiss will be granted.

I. BACKGROUND

According to the facts alleged in the petition, which are assumed to be true for purposes of this motion, on February 4, 2014, plaintiff was driving a Silverado on Interstate 29 in St. Joseph, Missouri, when a tractor-trailer, operated by James Hotsinpiller and owned by defendant, rear-ended plaintiff's vehicle. This impact pushed plaintiff's vehicle into the rear of another vehicle. On July 16, 2015, plaintiff sued defendant in the Circuit Court of Buchanan County. Count one of the petition alleges negligence against the truck driver, James Hotsinpiller.¹ Count two of the petition alleges that defendant Howard was negligent in the following manner:

a. By failing to properly train its employees and drivers² on how to safely operate a tractor-trailer;

b. By failing to properly educate its employees and drivers on how to safely operate a tractor-trailer during inclement weather;

c. By failing to properly supervisor [sic] its employees and drivers;

d. By failing to implement adequate hiring procedures and driver qualifications that would prevent drivers, such as Defendant Hotsinpiller, from operating a tractor-trailer;

e. By failing to inspect or examine its vehicles to ensure its vehicles are free from defects and safe for the road;

f. By failing to make repairs to the tractor and/or trailer involved in the incident;

g. By allowing its employee, Defendant Hotsinpiller, to operate its vehicle in a careless, negligent, and reckless manner;

h. By otherwise breaching duties, common law or statutory, relating to the operation of commercial motor vehicles and the US Department of Transportation; and

i. By failing to use that degree of care that an ordinary person would use under the same or similar circumstance.

(paragraph 19 of petition).

On August 19, 2015, defendant removed the case to federal district court. The following day, the instant motion to dismiss was filed. On October 27, 2015, plaintiff filed a motion to dismiss Hotsinpiller as a defendant, and that motion was granted.

II. MOTION TO DISMISS

A motion to dismiss for failure to state a claim should be granted only if it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Ritchie Capital Management, L.L.C. v. Jeffries, 653 F.3d 755, 764 (8th Cir. 2011); Craig Outdoor Advertising, Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1023-24 (8th Cir. 2008), cert. denied, 555 U.S. 1136 (2009). In ruling a motion to dismiss, the court is required to view all facts in the complaint as true. CN v. Willmar Public Schools, 591 F.3d 624, 629 (8th Cir. 2010); Owen v. General Motors Corp., 533 F.3d 913, 918 (8th Cir. 2008). Although a complaint need not include detailed factual allegations, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations and alteration omitted). Instead, the complaint must set forth "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "The essential function of a complaint under the Federal Rules of Civil Procedure is to give the opposing party 'fair notice ofthe nature and basis or grounds for a claim, and a general indication of the type of litigation involved.'" Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir. 2014) (quoting Hopkins v. Saunders, 199 F.3d 968, 973 (8th Cir. 1999) (quoting Redland Ins. Co. v. Shelter Gen. Ins. Cos., 121 F.3d 443, 446 (8th Cir. 1997))). "The well-pleaded facts alleged in the complaint, not the legal theories of recovery or legal conclusions identified therein, must be viewed to determine whether the pleading party provided the necessary notice and thereby stated a claim in the manner contemplated by the federal rules." Topchian v. JPMorgan Chase Bank, N.A., 760 F.3d at 848 (quoting Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1057-1058 (8th Cir. 2002)).

A. VICARIOUS LIABILITY VERSUS NEGLIGENCE BY EMPLOYER

Defendant argues that plaintiff has improperly pled both vicarious liability (i.e., that defendant is liable for the negligence of her employer, James Hotsinpiller, because he was acting within the course and scope of his employment at the time of the collision) and independent negligence (i.e., that defendant is liable for the negligent hiring, retention, training and supervision of Hotsinpiller because while acting outside the course and scope of his employment he caused damage to plaintiff).

Plaintiff argues that because defendant has not admitted vicarious liability, pleading both forms of liability is proper. Plaintiff cites McHaffie By and Through McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995), in support of his position. In that case, the Missouri Supreme Court stated as follows:

The majority view is that once an employer has admitted respondeat superior liability for a driver's negligence, it is improper to allow a plaintiff to proceed against the employer on any other theory of imputed liability. Elrod v. G & R Construction Co., 275 Ark. 151, 628 S.W.2d 17, 19 (1982); Armenta v. Churchill, 42 Cal.2d 448, 267 P.2d 303, 308-09 (bank 1954); Clooney v. Geeting, 352So.2d 1216, 1220 (Fla. App. 1977); Willis v. Hill, 116 Ga. App. 848, 159 S.E.2d 145, 157 (1967), rev'd on other grounds, 224 Ga. 263, 161 S.E.2d 281 (1968); Wise v. Fiberglass Systems, Inc., 110 Idaho 740, 718 P.2d 1178, 1181 (1986); Houlihan v. McCall, 197 Md. 130, 78 A.2d 661, 664-65 (1951); see also 7A Am.Jur.2d, Automobiles and Highway Traffic § 643 (1980), and Debra E. Wax, Annotation, Propriety of Allowing Persons Injured in Motor Vehicle Accident to Proceed Against Vehicle Owner Under Theory of Negligent Entrustment Where Owner Admits Liability Under Another Theory of Recovery, 30 A.L.R. 4th 838 (1984). This appears to be the better reasoned view.

The reason given for holding that it is improper for a plaintiff to proceed against an owner of a vehicle on the independent theory of imputed negligence where respondeat superior is admitted has to do with the nature of the claim. Vicarious liability or imputed negligence has been recognized under varying theories, including agency, negligent entrustment of a chattel to an incompetent, conspiracy, the family purpose doctrine, joint enterprise, and ownership liability statutes. If all of the theories for attaching liability to one person for the negligence of another were recognized and all pleaded in one case where the imputation of negligence is admitted, the evidence laboriously submitted to establish other theories serves no real purpose. The energy and time of courts and litigants is unnecessarily expended. In addition, potentially inflammatory evidence comes into the record which is irrelevant to any contested issue in the case. Wise v. Fiberglass Systems, Inc., 718 P.2d at 1181-82, and Willis v. Hill, 159 S.E.2d at 158. Once vicarious liability for negligence is admitted under respondeat superior, the person to whom negligence is imputed becomes strictly liable to the third party for damages attributable to the conduct of the person from whom negligence is imputed. The liability of the employer is fixed by the amount of liability of the employee. Helm v. Wismar, 820 S.W.2d 495, 497 (Mo. banc 1991).

McHaffie By and Through McHaffie v. Bunch, 891 S.W.2d 822, 877 (Mo. banc 1995).

First I note that defendant, in her reply, admits that she is vicariously liable for any negligence committed by Hotsinpiller during this collision. "Plaintiff's focus on the this [sic] issue is particularly misplaced because Defendant Howard has admitted that Defendant Hotsinpiller was driving the vehicle at issue during the course of his employment." (defendant's reply, page 2) (emphasis in the original). Second, the issue of whether the defendant was vicariously liable in McHaffie was a different issue. In McHaffie the tractor-trailer involved in the collision was owned by Bruce Transport andLeasing, but was leased by Rumble Transport; both were named as defendants in the case. The court noted that "Bruce [Transport and Leasing] and Rumble [Transport] both admitted that [the truck driver] was their agent and employee working within the scope of his employment at the time of the accident. Therefore, agency was not a contested issue in the...