Coffey et al v. McClure et al

Filing 126

ORDER, granting in part 50 MOTION to Strike 35 Amended Complaint Defendant Jeffco Leasing Co. Inc and Phillip Carter's Motion to Strike and Dismiss certain allegations from plaintiffs' second amended complaint filed by Phi llip L. Carter, Jeffco Leasing Co., Inc., 52 MOTION to Strike and Dismiss with Prejudice filed by Pioneer Coach, Inc., Rodney D. McClure. Plaintiffs shall file their third amended complaint as to their claims for negligent supervision, inspection, and oversight on or before March 19, 2015. Signed by Judge David R. Herndon on 3/5/2015. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

LELDON COFFEY and
CARRIE COFFEY,
Plaintiffs,
v.
RODNEY D. MCCLURE et al.,
Defendants.

No. 13-cv-819-DRH-PMF

MEMORANDUM & ORDER

HERNDON, District Judge:

I.

Introduction and Background

This matter is before the Court on defendants’ motions to strike and dismiss
with prejudice certain allegations from plaintiffs’ second amended complaint
(Docs. 50, & 52, respectively). Specifically, defendants Jeffco Leasing Co. and
Phillip Carter’s move for dismissal of paragraph 49(h) of Count II of plaintiffs’
second amended complaint (Doc. 50) and defendants Pioneer Coach, Inc. and
Rodney McClure move for dismiss of paragraph 28(h) of Count I of plaintiffs’
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second amended complaint (Doc. 52) pursuant to Rule 12(b)(6) and 12(f) of the
FEDERAL RULES

OF

CIVIL PROCEDURE. Plaintiffs oppose the motion, unless Jeffco

Leasing Co. and Pioneer Coach, Inc. unequivocally admit liability for the conduct
of Carter and McClure under the theory of respondeat superior for the vehicular
collision that occurred in August 2011 (Docs. 59, & 60). For the reasons stated
below, defendants’ motions are GRANTED in part. 1
The claims at issue assert liability against Jeffco Leasing and Pioneer Coach
for the negligent inspection, supervision, and oversight of employees Phillip Carter
and Rodney McClure. On August 8, 2013, plaintiffs Leldon and Carrie Coffey, filed
a three-count complaint for injuries arising out of a vehicular collision, which
occurred on or about August 11, 2011, between a coach bus and overturned
tractor and semi-trailer on Interstate 70 near Mile Post 72 in Fayette County,
Illinois (Doc. 2). Plaintiffs filed a second amended complaint on January 6, 2014,
alleging three counts of negligence resulting from the accident against Phillip
Carter, individually and as an agent or employee of Jeffco Leasing, Rodney
McClure, individually and as an agent or employee of Pioneer Coach, and Four
Seasons Coach Leasing, Inc. (Doc. 35).
The parties agree that on August 11, 2011, Phillip Carter, in the course and
scope of his employment with Jeffco Leasing, was operating a tractor-trailer on
Interstate 70 when it overturned in the westbound lane and was later impacted by
This motion to dismiss differs from that previously granted in the related case of Cosgrove v.
McClure (13-cv-580-DRH-PMF). In that case the parties agreed to the dismissal of cross-claims for

1

negligent entrustment based on the Illinois case law also referenced by defendants in this case. In
this case, however, the claims at issue allege negligent inspection, supervision, and oversight, not
negligent entrustment.

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a bus operated by Rodney McClure (Doc. 35). At that time, McClure was acting in
the course and scope of his employment with Pioneer Coach and operating the
bus with the company’s permission (Doc. 35). The second amended complaint
goes on to allege three specific counts of negligence against the defendants. Count
I alleges negligence against Rodney McClure and Pioneer Coach; Count II alleges
negligence against Phillip Carter and Jeffco Leasing; Count III alleges negligence
against Rodney McClure and Four Seasons Coach Leasing, Inc. Each count also
includes a claim for negligent inspection, supervision and oversight of its agent. In
its answers, Pioneer Coach and Jeffco Leasing admitted that McClure and Carter
were at all relevant times, their respective agents/employees acting within the
scope of that employment. As a result of these agency/employment relationships,
the motions at issue seek dismissal of those portions of the complaint claiming
negligent inspection, supervision and oversight directly against Pioneer Coach and
Jeffco Leasing.
II.

Motion to Dismiss

A Rule 12(b)(6) motion challenges the sufficiency of the complaint to state a
claim upon which relief can be granted. Hallinan v. Fraternal Order of Police

Chicago Lodge 7, 570 F.3d 811, 820 (7th Cir. 2009). The Supreme Court
explained in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007), that Rule
12(b)(6) dismissal is warranted if the complaint fails to set forth “enough facts to
state a claim to relief that is plausible on its face.”

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In making this assessment, the district court accepts as true all well-pled
factual allegations and draws all reasonable inferences in the plaintiff's favor. See

Rujawitz v. Martin, 561 F.3d 685, 688 (7th Cir. 2009); St. John's United Church
of Christ v. City of Chicago, 502 F.3d 616, 625 (7th Cir. 2007).
Even though Twombly (and Ashcroft v. Iqbal, 556 U.S. 662 (2009)) retooled
federal pleading standards, notice pleading remains all that is required in a
complaint. “A plaintiff still must provide only enough detail to give the defendant
fair notice of what the claim is and the grounds upon which it rests and, through
his allegations, show that it is plausible, rather than merely speculative, that he is
entitled to relief.” Tamayo v. Blagojevich, 526 F.3d 1074, 1083 (7th Cir. 2008)
(citations and quotations omitted).
III.

Analysis

Under current Illinois law, which has been adopted by the Federal Courts in
Illinois, a negligent entrustment claim is duplicative where an employer has
admitted

liability

for

the

actions

of

the

employee

in

a respondeat

superior claim. Gant v. L.U. Transp., Inc., 770 N.E.2d 1155, 1159 (Ill. App.
2002); Campa v. Gordon Food Services, Inc., 2002 WL 1879262 (N.D. Ill. 2002).
Because of the potential admission of inflammatory evidence irrelevant to the
negligence action, Illinois courts have reasoned that a negligent entrustment claim
must be dismissed where the employer admits that their employee was acting
within the scope of his employment. Gant, 770 N.E.2d at 1160. Defendants argue
,
this same rationale is applicable to plaintiffs’ negligent inspection, supervision,
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and oversight claims against Pioneer Coach and Jeffco Leasing in this case. They
contend that where liability arises from the alleged negligence of McClure and
Carter, in the scope of their employment, when Pioneer Coach and Jeffco Leasing
admitted the actions took place within the scope of employment, the claims for
direct liability against the companies should be dismissed as duplicative. Neff v.

Davenport Packing Co., 268 N.E.2d 574, 575 (Ill. App. Ct. 1971). However,
plaintiffs argue that this use of Neff is inapplicable to the plead theories of
negligence at issue in this case (Doc. 59).
Generally, where liability is dependent on the negligence of an employee acting
within the scope of employment, thereby rendering an employer vicariously liable
for damages caused by that employee's negligence, no direct liability claim shall be
brought against the employer. See e.g. Gant, 770 N.E.2d at 1159; Campa, 2002
,
WL 1879262; Gibson v. City of Chicago, No. 13-CV- 03273, 2013 WL 6698164, at
*3 (N.D. Ill. 2013). In the case of an employee acting within the scope of his
employment, the admission of an agency relationship, grounds liability of the
employer/principal on the negligence of the employee/agent. This rationale treats
the employer's liability as a derivative claim established upon a finding of
negligence on the part of the employee.
In this case, both Pioneer Coach and Jeffco Leasing admitted that McClure
and Carter were acting within the scope of their employment at the time of
accident, thus accepting the potential for respondeat superior liability as a result
of their respective employee’s actions. Although Pioneer Coach and Jeffco Leasing

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deny the negligence alleged against McClure and Carter, neither dispute that their
employees’ negligence, to the extent such negligence is found, may be imputed to
them under the theory of respondeat superior. In its answer, Pioneer Coach
admitted that, “at all times relevant herein, the Defendant, Rodney D. McClure
was an agent and/or employee of the Defendant Pioneer Coach Inc., and was at all
times acting within the course and scope of his agency and/or employment.” (Doc.
53, ¶ 11). Similarly, Jeffco Leasing admitted, “at all times relevant herein, the
Defendant, Phillip L. Carter was an agent and/or employee of the Defendant Jeffco
Leasing Co., Inc., and was at all times acting within the course and scope of his
agency and/or employment.” (Doc. 51, ¶ 31). By admitting that McClure and
Carter were acting within the scope of employment at the time of the vehicular
collision, responsibility under the theory of respondeat superior assigns all fault
attributed to the negligent employee to his employer. Gant, 770 N.E.2d at 1158,
59.
However, Illinois recognizes a cause of action for negligent supervision, which
may be applicable in circumstances, where an employer's negligence rises to such
a degree that it supports an employer’s liability, in addition to its vicarious
liability for the employee's negligent actions as discussed above. In instances such
as those, to succeed on a claim of negligent supervision under Illinois law, a
“plaintiff must plead and prove that the employer knew or should have known
that its employee had a particular unfitness for his position so as to create a
danger of harm to third persons and that the employer's failure to safeguard the

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plaintiff against this particular unfitness proximately caused the plaintiff's injury.”

Platson v. NSM, Am., Inc., 748 N.E.2d 1278, 1284 (Ill. App. Ct. 2001); see also
Helfers–Beitz v. Degelman, 939 N.E.2d 1087 (Ill. App. Ct. 2010); Doe v.
Brouillette, 906 N.E.2d 105, 116 (Ill. App. Ct. 2009); De David v. Alaron Trading
Corp., 796 F.Supp.2d 915, 923 (N.D. Ill. 2010); Hasbun v. United States, No. 12CV-2543, 2013 WL 183780, at *3 (N.D. Ill. 2013).
Plaintiffs failed to sufficiently allege the facts necessary to maintain a direct
cause of action against defendants Pioneer Coach and Jeffco Leasing. They fail to
allege facts that plausibly suggest Pioneer Coach and Jeffco Leasing knew or
should have known of any particular risk that McClure or Carter presented as
drivers. Accordingly, paragraph 28(h) of Count I and paragraph 49(h) of Count II
of plaintiffs’ second amended complaint are dismissed.
IV.

Conclusion

For the reasons stated above, defendants’ motions to strike and dismiss
certain allegations from plaintiffs’ second amended complaint (Docs. 50, & 52)
are GRANTED in part. Paragraph 28(h) of Count I and paragraph 49(h) of Count
II of plaintiffs’ second amended complaint are DISMISSED without prejudice.
The Court grants plaintiffs leave to amend their negligent supervision, inspection,
and oversight claim accordingly.
Should plaintiffs wish to proceed on their claims for negligent supervision,
inspection, and oversight, the Court GRANTS plaintiff leave to file an amended
complaint as to Count I. Plaintiff shall file her second amended complaint, within
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fourteen (14) days of the entry of this order (on or before March 19, 2015).
Failure to file an amended complaint will result in of dismissal of paragraph 28(h)
of Count I and paragraph 49(h) of Count II of plaintiffs’ second amended
complaint with prejudice and without further notice.
IT IS SO ORDERED.
Signed this 5th day of March, 2015.

Digitally signed
by David R.
Herndon
Date: 2015.03.05
14:10:47 -06'00'
United States District Judge

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