Woodard v. Transport Magog Express, Inc.

          REPORT AND RECOMMENDATION

          P. BRADLEY MURRAY UNITED STATES MAGISTRATE JUDGE

         On September 20, 2018, Defendants Transport Magog Express, Inc. and Patrick Robert Ring filed a partial Motion to Dismiss Plaintiff's Claims for Wantonness, Negligence Per Se, Negligent Failure to Train, Negligence Per Se: Failure to Train, Negligent Failure to Inspect and Maintain, and Negligence Per Se: Negligent Failure to Inspect and Maintain. (Doc. 18). Plaintiff filed his response in opposition to Defendants' motion on October 4, 2018, Defendants filed a reply brief in support of their motion on October 11, 2018, and Plaintiff filed a surreply in opposition to the motion on October 16, 2018. (Docs. 22, 23, and 26). This motion has been referred to the undersigned Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and S.D. Ala. Gen. LR 72. Having reviewed and considered the relevant pleadings and briefs and the relevant law, the undersigned Magistrate Judge RECOMMENDS that Defendants' motion to dismiss Plaintiff's claims for wantonness, negligence per se, negligent failure to train, negligence per se: failure to train, negligent failure to inspect and maintain, and negligence per se: negligent failure to inspect and maintain, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, be GRANTED, in part, and DENIED, in part, for the reasons set forth below.

         I. SUMMARY OF PROCEEDINGS

         On September 6, 2018, Plaintiff Vanquez Woodard filed an amended complaint against Defendants Transport Magog Express, Inc. (“Transport”) and Patrick Robert Ring arising from injuries he suffered as a result of a motor vehicle accident involving a commercial tractor trailer driven by Transport's employee, Ring. (Doc. 16). Defendants filed the instant partial motion to dismiss Plaintiff's claims for wantonness, negligence per se, negligent failure to train, negligence per se: failure to train, negligent failure to inspect and maintain, and negligence per se: negligent failure to inspect and maintain, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 18). Plaintiff filed a responsive brief in opposition to the motion to dismiss (Doc. 22), Defendants filed a reply brief in response to Plaintiff's opposition (Doc. 23), and Plaintiff filed a surreply brief (Doc. 26). The motion to dismiss the above enumerated claims is now ripe for decision.

         II. SUMMARY OF ALLEGATIONS^[1]

         For purposes of this motion, the relevant allegations of Plaintiff's amended complaint are as follows:

         On February 23, 2016, Ring, who was acting within the line and scope of his employment as an employee of Transport, was operating a tractor-trailer rig southbound on Highway 43 in Mobile County, Alabama. (Doc. 16 at p. 2). He turned from Highway 43 onto the southbound Interstate 65 entrance ramp. (Id.). As the tractor-trailer rig was traveling down this ramp, Ring failed to yield the right-of-way when merging onto the entrance ramp from northbound Highway 43 and crossed over to the right lane in front of Plaintiff, leaving Plaintiff no place to go. (Id.). Plaintiff's vehicle ran under the back of the trailer, was crushed and pinned underneath the trailer, and was drug approximately 75-100 feet before coming to a stop on the shoulder of the ramp. (Id. at pp. 2-3).

         Plaintiff alleges that Ring negligently operated his tractor-trailer rig thereby causing the accident. (Id. at p. 3). Plaintiff specifically alleges that Ring violated §§ 32-5A-61 (driver not to proceed where traffic obstructed), 32-5A-111 (vehicle turning left), 32-5A-112 (vehicle entering stop or yield intersection), and 32-5A-133 (turning movements and required signals) of the Alabama Code and that these violations constitute prima facie evidence of negligence. (Id.). Plaintiff also alleges that Ring wantonly operated his tractor-trailer rig thereby causing the collision with his vehicle. (Id. at p. 4).

         Plaintiff alleges that Ring also violated one or more of the provisions of the Federal Motor Carrier Safety Regulations (“FMCSR”), specifically, 49 C.F.R. § 392.3 (driving while fatigued), 49 C.F.R. § 383.111(a)(7) (visual search methods and evaluating surrounding conditions), 49 C.F.R. § 383.111(a)(9) (speed management consistent with stopping distance and visibility), 49 C.F.R. § 383.111(a)(10) (space management to allow a cushion between the driver and others), 49 C.F.R. § 383.111(a)(13) (hazard perceptions and anticipating the actions of other motorists), 49 C.F.R. § 391.1 (driver qualifications), 49 C.F.R. § 391.41(a) (a driver is prohibited from operating a commercial motor vehicle unless physically qualified to do so), 49 C.F.R. §§ 392.7, 392.8, and 392.9 (the driver has a duty to inspect and ensure that the commercial motor vehicle's equipment is in good working order, that required emergency equipment is in place, and that the load is secured), and 49 C.F.R. §§ 395.3 and 395.8 (driver hours of service and logbook violations). (Id. at pp. 4-5). Plaintiff alleges that Ring's conduct during the collision sequence was consistent with the violation of one or more of these regulations and that past experience indicates that one or more of the regulations was likely violated during this scenario.^[2] In his amended complaint, Plaintiff states that these regulations were enacted to protect persons in his position, that he sustained the type of injury the regulations were intended to prevent, and that his injuries were proximately caused by Ring's violations of these regulations, and therefore, Ring is guilty of negligence per se. (Id. at p. 5).

         As to Transport, Plaintiff alleges that it negligently trained Ring in that it did not adequately instruct him on how to operate his vehicle in the situation which resulted in this collision. (Id. at p. 6). Plaintiff further alleges that Transport violated one or more of the following provisions of the FMCSR: 49 C.F.R. § 390.3(a)(1), (b), and (e)(1)&(2) (the regulations are applicable to all employers, who shall comply with them, and every driver shall be instructed regarding the regulations) and 49 C.F.R. § 383 (setting out the commercial driver's license standards and requirements) and that Transport is, therefore, guilty of negligence per se because these regulations were enacted to protect persons in his position, he sustained the type of injury the regulations were intended to prevent, and his injuries were proximately caused by Transport's violation of the regulations. (Id. at pp. 6-7). Plaintiff also alleges that Transport negligently inspected and maintained the tractor-trailer rig operated by Ring, specifically by failing to detect and remedy deficiencies in the vehicle's braking system. Plaintiff alleges that this failure was in violation of the following provisions of the FMCSR: 49 C.F.R. § 396.3 (motor carriers are required to systematically inspect, repair, and maintain all motor vehicles subject to their control, which includes braking systems) and 49 C.F.R. § 396.17 (periodic inspection of motor vehicles by motor carriers is required, which includes inspection of braking systems), and therefore, constitutes negligence per se. (Id. at pp. 8-9).

         III. STANDARD OF REVIEW

         As set forth above, Defendant seeks dismissal of Plaintiff's claims for wantonness, negligence per se, negligent failure to train, negligence per se: failure to train, negligent failure to inspect and maintain, and negligence per se: negligent failure to inspect and maintain, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” (citation omitted)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.... [This standard] asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” and must be a “‘plain statement' possess[ing] enough heft to ‘sho[w] that the pleader is entitled to relief.'” Twombly, 550 U.S. at 555, 557 (second brackets in original). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. In determining whether a claim is stated, the factual allegations are accepted as true, except for conclusory assertions or a recitation of a cause of action's elements, and the allegations must be considered in the light most favorable to the plaintiff. See id.; Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).

         In addition, “[a] complaint is subject to dismissal for failure to state a claim ‘when its allegations, on their face, show that an affirmative defense bars recovery on the claim, '” Douglas v. Yates, 535 F.3d 1316, 1321 (11th Cir. 2008) (quoting Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003)), or “when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action, ” Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11^th Cir. 1993).

         IV. CONCL ...