United States District Court, S.D. Alabama, Southern Division
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
(11th Cir. 1993).
IV.
CONCL ...