Jones et al v. Duane Livingston Trucking, Inc.
MEMORANDUM OPINION. Signed by Honorable Susan O. Hickey on June 27, 2017. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
JONATHAN JONES and
Case No. 4:16-cv-4042
DUANE LIVINGSTON TRUCKING, INC.
Before the Court is a Motion for Summary Judgment filed by Defendant. ECF No. 16.
Plaintiffs have responded. ECF. No. 23. The Court finds that this matter is ripe for the Court’s
Plaintiffs were part of a group of hunters who were hunting wild hogs at approximately
1:00 a.m. as part of a hog hunting competition. As the hunt was coming to an end, the hunters
attempted to round up their hunting dogs near a two-lane road and load them into their crates.
The hunters were yelling at the dogs to come to them. Plaintiff Jonathan Jones was the owner of
a dog named Tyrone, and Plaintiff Christopher Maxwell was the owner of a dog named Venom.
The dogs were on the opposite side of the road when the hunters realized that a tractor-trailer
was traveling on the road. The driver of the tractor-trailer, Billy Young, was an employee of
Defendant Duane Livingston Trucking, Inc., and he had just departed an animal food
The hunters first spotted the tractor-trailer when it was approximately a half mile away.
As the tractor-trailer approached, the hunters flashed their coon lights and spotlights in an
attempt to get the tractor-trailer to stop because the dogs were near the road. Plaintiff Maxwell
testified that “[the dogs] were all over and everything.” ECF No. 16-1, p. 8, line 13. He further
testified that “[w]e were hollering and dogs were coming back to us, and were trying to get ’em
caught and flash [the driver] and everything at the same time.” ECF No. 16-1, p. 8, lines 13-16.
Two dogs crossed the road, followed by Tyrone and Venom. Both Tyrone and Venom were
struck by the tractor-trailer as they crossed the road.
The speed limit on the road is 55 miles per hour. The parties disagree as to exactly how
fast the tractor-trailer was traveling when it hit the dogs. Billy Young testified that he was
traveling approximately 45 miles per hour; however, Plaintiffs theorize that Young was traveling
at an “excessive rate of speed”
ECF No. 23-2, p. 19, lines 10-17. There were no streetlights
near the road and it was dark at the time of the incident. Plaintiff Jones testified that it was
drizzling or sprinkling rain at the time of the incident. ECF No. 16-2, p. 4, line 8. Young
testified that he saw something black in the road approximately twelve to fifteen feet before he
hit the dogs. Young further testified that he “saw lights later on after [he] got down the road . . .
saw somebody come out in the road with a light bar on.” ECF No. 23-3, p. 4, lines 7-8. Young
thought this could have been hunters that were drinking and had guns, so he did not stop. ECF
No. 23-3, p. 4, lines 9-10; ECF No. 23-3, p. 5, lines 10-15.
Some minutes later, a second truck approached the scene and stopped upon being flagged
down by the hunters. The driver of the second truck was Ray Squires. Squires testified that he
saw lights in the road and thought some people were having vehicle problems. ECF No. 23-4, p.
2, lines 21-22. After he stopped, Plaintiff Jones climbed on the side of Squires’ truck and
demanded that Squires get on his radio and call the driver of the first truck. Squires, however,
had no way of contacting Young. Squires testified that he could see two dead animals in the
road, and that he accidentally stopped his truck on one of them.
After the encounter with Squires, Plaintiffs dragged what was left of the dogs to the ditch,
left them there, slept for a couple of hours, and then returned to hunting with other dogs.
Plaintiff Maxwell testified that he has trouble sleeping and has lost weight as a result of the
incident. Plaintiff Jones testified that he cannot get the scene of the incident out of his mind.
Under a theory of vicarious liability, Plaintiffs allege claims of negligence, destruction of
property, 1 and outrage. Plaintiffs also seek punitive damages against Defendant. Plaintiffs
jointly pray for judgment against Defendant in the amount of $3,015,000.00. Defendant asserts
that it is entitled to summary judgment on all Plaintiffs' claims.
The Federal Rules of Civil Procedure provide that when a party moves for summary
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.
Fed. R. Civ. P. 56(a); Krenik v. Cnty. of LeSueur, 47 F.3d 953 (8th Cir. 1995). The Supreme
Court has issued the following guidelines for trial courts to determine whether this standard has
The inquiry performed is the threshold inquiry of determining whether there is a
need for trial—whether, in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party.
The complaint sets out Count II as “Destruction of Property.” Count II consists of one sentence, which states that
“[e]ach dog had a value of $7,500, which were wrongfully killed by Defendant’s driver-employ, thereby damaging
each dog in that amount, in addition to other damages set forth herein.” It appears to the Court that Count II is
simply a statement of damages and not a separate tort claim.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Agristor Leasing v. Farrow,
826 F.2d 732 (8th Cir. 1987); Niagara of Wis. Paper Corp. v. Paper Indus. Union-Mgmt.
Pension Fund, 800 F.2d 742, 746 (8th Cir. 1986). A fact is material only when its resolution
affects the outcome of the case. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence
is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252.
The Court must view the evidence and the inferences that may be reasonably drawn from
the evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The moving party bears the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. The
nonmoving party must then demonstrate the existence of specific facts in the record that create a
genuine issue for trial. Krenik, 47 F.3d at 957. A party opposing a properly supported motion
for summary judgment may not rest upon mere allegations or denials, but must set forth specific
facts showing that there is a genuine issue for trial. Anderson, 477 U.S. at 256.
First, Defendant argues that it is entitled to summary judgment on Plaintiffs’ negligence
claim. “Under Arkansas law, in order to prevail on a claim of negligence, the plaintiff must
prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and
that the breach was the proximate cause of the plaintiff’s injuries.” Robinson Nursing and
Rehabilitation Center, LLC v. Phillips, 2017 Ark 162, at 15, ___ S.W.3d___ (2017) (citing
Branscumb v. Freeman, 306 Ark. 171, 200 S.W.3d 411 (2004)). Negligence is never presumed
as Plaintiff has the burden of proving negligence. Id. “Negligence may be established by direct
or circumstantial evidence, but a plaintiff may not rely on inferences based on conjecture or
In the present case, Plaintiffs rely on inferences based solely on conjecture to establish
their negligence claim. Plaintiffs offer speculative testimony that Billy Young was driving at an
“excessive rate of speed” but offer no proof of his actual speed. Plaintiffs also offer nothing
more than speculation regarding how far ahead Young could see and exactly what he could or
could not see on the road. Plaintiffs speculate that, because the second truck driver stopped
when he saw the hunters, Young could have stopped his truck before hitting the dogs. Based on
this speculation, Plaintiffs argue that Young should have seen the dogs sooner or stopped his
truck when he saw the lights of the hunters.
The fact that the second truck driver stopped when he saw the hunters does not prove that
Young was negligent when he hit the dogs that ran in front of his truck. In fact, the second truck
driver testified that, when he stopped to see what was going on, he unintentionally stopped on
top of one of the dogs. Plaintiffs’ argument that the actions of the second driver support their
negligence claim against Young lacks any legal authority and is based on nothing more than
speculation and the fact that an accident occurred.
“Conjecture and speculation, however,
plausible, cannot be permitted to supply the place of proof.” Mangrum v. Pigue, 359 Ark. 373,
386, 198 S.W.3d 496, 503 (2004). The Court finds that there is no evidence in this case that
could cause a reasonable jury to return a verdict in favor of Plaintiffs. Thus, Defendant is
entitled to summary judgment on Plaintiff's negligence claim.
Next, Defendant argues that it is entitled to summary judgment on Plaintiffs” outrage
claim. To establish a claim for outrage, a plaintiff must establish the following elements:
(1) the actor intended to inflict emotional distress or knew or should have known
that emotional distress was the likely result of his conduct; (2) the conduct was
“extreme and outrageous,” was “beyond all possible bounds of decency,” and was
“utterly intolerable in a civilized community;” (3) the actions of the defendant
were the cause of the plaintiff's distress; and (4) the emotional distress sustained
by the plaintiff was so severe that no reasonable person could be expected to
Kiersey v. Jeffrey, 369 Ark. 220, 222, 253 S.W.3d 438, 441 (2007) (quoting Crockett v. Essex,
341 Ark. 558, 19 S.W.3d 585 (2000)). The Arkansas Supreme Court “gives a narrow view to the
tort of outrage, and requires clear-cut proof to establish the elements in outrage cases.” Id.
“Merely describing the conduct as outrageous does not make it so.” Id.
In the present case, there is no evidence that the emotional distress sustained by Plaintiffs
was so severe that no reasonable person could be expected to endure it. Immediately after the
incident at issue, Plaintiffs disposed of the dogs’ remains in the ditch, went back to where they
were staying, went to sleep for a few hours, and resumed hunting with other dogs later. Neither
Plaintiff has ever seen a mental health provider or counselor. Plaintiff Maxwell testified that he
has trouble sleeping and has lost twenty pounds because of the accident. While seeing his family
physician for another medical issue, he told the physician that he had trouble sleeping. The
physician prescribed Maxwell sleep medicine, but Maxwell did not fill the prescription. Plaintiff
Jones testified that he also has trouble sleeping because of the accident and replays the accident
in his mind.
Plaintiffs’ vague claims of having trouble sleeping, losing weight, and replaying the
incident simply do not “satisfy the type of distress encompassed by the tort of outrage.” Schmidt
v. Stearman, 98 Ark. App. 167, 179, 253 S.W.3d 35, 45 (2007) (quoting FMC v. Corp. v. Helton,
360 Ark 465, 486, 202 S.W.3d 490, 205 (2005)) (finding that the plaintiff’s recurrence of
depression and his fear of staying on the farm after finding his dogs shot dead do not satisfy the
requirements for outrage). Further, the Court cannot find that Young’s behavior was “extreme
and outrageous” and “beyond all possible bounds of decency.” Accordingly, the Court finds that
Defendant is entitled to summary judgment regarding Plaintiffs' outrage claim.
For the reasons stated above, the Court finds that Defendant’s Motion for Summary
Judgment (ECF No. 16) should be and hereby is GRANTED.
Plaintiffs’ claims are
DISMISSED WITH PREJUDICE. A Judgment of even date consistent with this opinion shall
IT IS SO ORDERED, on this 27th day of June, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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