Hoggard v. Page et al
ORDER granting in part and denying in part 35 Motion to Dismiss for Failure to State a Claim. Plaintiffs' claims of aggravated assault and for punitive damages are dismissed. The claims of negligence as to all Defendants remain. The Court o rders the cases of Hoggard v. Arabi, 3:15CV00323-JM and Williams v. Arabi, 3:16CV00075 JM to be consolidated because the cases involve common questions of law and fact. Hoggard v. Arabi, 3:15CV00323 will be designated as the lead case. All future pleadings by the parties should be filed only in the lead case. Signed by Judge James M. Moody Jr. on 4/22/2016. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NATHAN HOGGARD and JERRY WILLIAMS
ARABI CATTLE COMPANY, Limited Liability
Company; ROGER PAGE, Individually and as
Registered Agent and as Member and Owner of ARABI
CATTLE COMPANY, Limited Liability Company; and
JIM FRANKLIN, Individually and as Employee of
ARABI CATTLE COMPANY, Limited Liability Company
Pursuant to Rule 42(a), the Court orders the cases of Hoggard v. Arabi, 3:15CV00323-JM
and Williams v. Arabi, 3:16CV00075 JM to be consolidated because the cases involve common
questions of law and fact.1 The Court will revisit the issue of consolidation for purposes of trial if
requested to do so by motion of either party.
Plaintiffs Jerry Williams and Nathan Hoggard were injured when a bale of hay weighing
more than 1000 pounds fell on them from the transport vehicle owned by Defendant Roger Page
and driven by Defendant Jim Franklin, an employee of Defendant Arabi Cattle Company (AArabi@)
and Page. Williams and Hoggard, separately, filed suit against Page, Franklin, and Arabi for
negligence seeking damages for injuries, including past, present and future injuries and medical
expenses. Plaintiffs also include claims for aggravated assault and punitive damages against the
Defendants contend that Plaintiffs= Complaints should be dismissed because 1) no
Hoggard v. Arabi, 3:15CV00323 will be designated as the lead case. All future
pleadings by the parties should be filed only in the lead case.
plausible claim has been pled against Defendant Page individually; 2) there are no allegations that
the loading of the hay onto the trailer was complete or that the tractor was in motion at the time of
Plaintiff=s injury which forecloses certain claims; 3) the claims of aggravated assault are
deficiently pled; and 4) based on the allegations, Plaintiffs are not entitled to punitive damages.
To survive a motion to dismiss under Rule 12(b)(6), Aa complaint must contain sufficient
factual matter, accepted as true, to >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)).
The plausibility standard requires a plaintiff to show at the pleading stage that success on the
merits is more than a Asheer possibility.@ Id. It is not, however, a Aprobability requirement.@ Id.
Thus, Aa well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
the facts alleged is improbable, and >that a recovery is very remote and unlikely.=@ Twombly, 550
U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, (1974)).
Defendants’ first argument is that Plaintiffs have failed to plead any facts which state a
claim against Defendant Page. Defendants argue Page was not present at the time of the accident
and is not liable merely because he is a member or owner of Arabi. However, it is a Asignificant
principle of corporate law that officers and directors of corporations are personally liable to the
extent that their tortious acts result in harm to a third party.@ In re Speers, 244 B.R. 142, 145
(Bankr. E.D. Ark. 2000). Further, Plaintiffs contend that Page and Arabi are Franklin=s employer.
AUnder the doctrine of respondeat superior, an employer may be held vicariously liable for the
tortious conduct of an agent if the evidence shows that such conduct was committed within the
scope of the agent's employment.@ St. Joseph's Reg'l Health Ctr. v. Munos, 326 Ark. 605, 612, 934
S.W.2d 192, 195 (1996) (citing National Bank of Commerce v. HCA Health Servs. of Midwest,
Inc., 304 Ark. 55, 58, 800 S.W.2d 694 (1990)). Assuming that all of Plaintiffs= allegations are true,
the Court cannot say that Plaintiffs have failed to allege any facts which give rise to liability
Defendants also argue that Plaintiffs= claims of statutory and regulatory violations are
implausible because there are no allegations in the Complaint that the loading of hay onto the
trailer was complete or that the tractor trailer was in motion. Plaintiffs’ claims in this case are for
negligence. AA negligent act arises from a situation where an ordinarily prudent person in the same
situation would foresee such an appreciable risk of harm to others that he would not act or at least
would act in a more careful manner.@ City of Little Rock v. Cameron, 320 Ark. 444, 447, 897
S.W.2d 562, 564 (1995) (quoting White River Rural Water Dist. v. Moon, 310 Ark. 624, 839
S.W.2d 211 (1992)). As stated in the Complaints, A[e]vidence of statutory and regulatory
violations by the Defendants should be considered as evidence of Defendants= negligence,@ not as
causes of action. The argument that Defendants may not have violated some of the statutes cited
by Plaintiffs does not preclude Plaintiffs= negligence claims. Defendants’ motions to dismiss are
denied as to the negligence claims.
Plaintiffs allege claims of aggravated assault against Defendants. In Arkansas, assault is
defined as an >intentional attempt by a person, by force or violence, to do an injury to the person of
another, or as any attempt to commit a battery, or any threatening gesture showing in itself or by
words accompanying it an immediate intention, coupled with a present ability, to commit a
battery.=@ Costner v. Adams, 82 Ark.App. 148, 156, 121 S.W.3d 164, 170 (2003).
There are no facts contained in the Complaints which state a claim against Defendants for assault.
Therefore, Plaintiffs= claims for aggravated assault are dismissed.
The Court also finds that the facts alleged by Plaintiffs do not warrant punitive damages.
AMere negligence, indifference, or careless disregard of the rights of others is not sufficient upon
which to base a recovery for exemplary damages. The acts must be such as to evince malice. It is
true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a
wrongful act greatly injurious to another.@ Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181,
185-86, 485 S.W.2d 192, 195 (1972) (quoting Ray Dodge, Inc. v. Moore, 479 S.W.2d 518 (Ark.
In conclusion, Defendants= motions to dismiss (ECF No. 4 in Williams v. Arabi,
3:16CV00075) and (ECF No. 35 in Hoggard v. Arabi, 3:16CV00075 JM) are GRANTED in part
and DENIED in part. Plaintiffs’ claims of aggravated assault and for punitive damages are
dismissed. The claims of negligence as to all Defendants remain.
IT IS SO ORDERED this 22nd day of April, 2016.
James M. Moody Jr.
United States District Judge
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