Braxton et al v. DKMZ Trucking, Inc. et al.

Filing 38

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Motion to Dismiss Count II is DENIED. IT IS FURTHER ORDERED that Defendants Motion to Dismiss Count III is GRANTED, and Count III of Plaintiffs First Amended Complaint is DISMISSED. IT IS FINALLY ORDERED that Defendants Motion to Dismiss Count IV is GRANTED, and Count IV of Plaintiffs First Amended Complaint is DISMISSED. 19 22 24 Signed by District Judge Jean C. Hamilton on 12/16/13. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HATTIE BRAXTON and TONY BRAXTON,
Plaintiffs,
v.
DKMZ TRUCKING , INC.,
FEDEX GROUND PACKAGE SYSTEM, INC,
and KENT BIVENS
Defendants.

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Cause No. 4:13-cv-1335-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendants‟ Joint Motion to Dismiss Count II of Plaintiffs‟
First Amended Complaint, Joint Motion to Dismiss Count III of Plaintiffs‟ First Amended Complaint, and
Joint Motion to Dismiss Count IV of Plaintiffs‟ First Amended Complaint (collectively, the “Motions to
Dismiss”). The Motions to Dismiss request dismissal of portions of Plaintiffs‟ First Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). The motions have been fully briefed and are ready
for disposition.
BACKGROUND1
“On or about January 11, 2013, Defendant [Kent] Bivens was driving a 2012 Volvo tractor-trailer
[the “Truck”] eastbound on Interstate-70 near its intersection with First Capitol Drive, in St. Charles,
Missouri.” (First Amended Complaint, (“First Amd. Compl.”) ¶ 16). The Truck “was carrying two trailer
units and weighed in excess of 26,000 pounds.” (Id. at ¶ 17). Bivens was allegedly driving the Truck in
the course and scope of his employment with Defendant DKMZ Trucking, Inc. (Id. at ¶¶ 6). The Truck
was owned by DKMZ and “was registered and identified as a commercial motor vehicle in the name of
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For purposes of ruling on these Motions to Dismiss, this Court takes the factual allegations in Plaintiffs‟ First
Amended Complaint as true. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Defendant FedEx.” (Id. at ¶¶ 31, 22). FedEx had “contracted for the interstate motor carrier services of
Defendant DKMZ and Defendant Bivens.” (Id. at ¶ 21).
At the time that Defendant Bivens was driving on Interstate-70 at the First Capitol Drive Intersection,
Plaintiff Hattie Braxton was driving a 2006 Cadillac CTS in front of him. (Id. at ¶¶ 15, 23, 24). Bivens
was following too closely behind Ms. Braxton‟s car. (Id. at ¶ 23). He was also driving too fast, and he
allegedly failed to pay close enough attention to what was happening on the road. (Id. at ¶ 34). Bivens
rear-ended Ms. Braxton‟s car. (Id. at ¶ 24). Ms. Braxton was seriously injured and taken to St. Joseph
Health Center in St. Charles. (Id. at ¶ 26). Her car also sustained serious damage. (Id. at ¶ 25).
Plaintiffs Hattie Braxton and Tony Braxton filed their initial Complaint in this matter on July 12,
2013, asserting federal subject-matter jurisdiction pursuant to 28 U.S.C. § 1332. (ECF No.1) They then
filed their First Amended Complaint on July 18, 2013. (ECF No. 5). Defendants filed separate answers to
the First Amended Complaint on August 23, 2013. (ECF Nos. 16-18). That same day, Defendants filed
the instant Motions to Dismiss together with memoranda in support of those motions. (ECF Nos. 19-24).
Briefing on the Motions to Dismiss was completed on September 16, 2013, when Defendants filed their
replies to Plaintiffs‟ memoranda in opposition to the Motions to Dismiss. (ECF Nos. 26-28, 32-34).
MOTION TO DISMISS STANDARD
In ruling on a motion to dismiss, the Court must view the allegations in the Complaint in the light
most favorable to Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Additionally, the Court “must
accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). A motion to
dismiss must be granted if the Complaint does not contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (abrogating the “no
set of facts” standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

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Stated differently, to survive a motion to dismiss, the Complaint‟s factual allegations “must be enough to
raise a right to relief above the speculative level.” Id. at 1965 (citations omitted).
DISCUSSION
I.

Count II

Count II of Plaintiffs‟ First Amended Complaint claims negligence per se against Defendants DKMZ,
FedEx, and Bivens. (First Amd. Compl. Count II). Under Missouri law, “[n]egligence per se „is a form of
ordinary negligence that results from the violation of a statute.‟” Lowdermilk v. Vescovo Building and
Realty Co., 91 S.W.3d 617, 628 (Mo. Ct. App. 2002) (quoting 57A Am. Jur. 2d Negligence § 727 (1989)).
There are four requirements for negligence per se claim in Missouri:
1) a violation of a statute or ordinance; 2) the injured party must be within the class
of persons intended to be protected by the statute or ordinance; 3) the injury
complained of must be of the nature that the statute or ordinance was designed to
prevent; and 4) the violation of the statute or ordinance must be the proximate
cause of the injury.”
Business Men’s Assurance Co. of America v. Graham, 891 S.W.2d 438 (Mo. Ct. App. 1994). The statute
itself must specifically prohibit some action such that it rises above the level of “a general hypothesis of
negligence.” McIntyre v. Whited, 440 S.W.2d 449 (Mo. 1969).
Plaintiffs present a facially plausible claim for negligence per se. Plaintiffs point to at least two
sections of the Missouri Revised Statutes in support of their negligence per se claim. Section 304.010 sets
a speed limit of sixty miles per hour on urban expressways, and section 304.044 states that drivers must
maintain at least 300 feet between themselves and any car in front of them. (First Amd. Compl. ¶ 45;
Memorandum in Opposition to Motion to Dismiss Count II at 3-4). These sections are sufficiently
specific for a statutory duty of care in Missouri. To support their negligence per se theory, Plaintiffs make
the factual allegations that Defendant Bivens “failed to maintain a safe distance” and “operated the
vehicle at an excessive rate of speed under the circumstances.” (First Amd. Compl. ¶ 34). These factual

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allegations, combined with the remainder of the factual allegations related to the accident, are sufficient to
raise Plaintiffs‟ negligence per se claim into the realm of plausibility.
II.

Count III

Count III contains several theories of relief against Defendant DKMZ, each of which must be
examined separately in order to determine whether the Count can survive this Motion to Dismiss.
A. Negligent Hiring and Retention
Plaintiffs allege in Count III that Defendant DKMZ was negligent in its hiring and retention of
Defendant Bivens. (First Amd. Compl. ¶ 55). A negligent hiring claim in Missouri “turns on whether
there are facts from which the employer knew or should have known of a particular dangerous proclivity
of an employee followed by employee misconduct consistent with such dangerous proclivity by the
employee.” McHaffie By and Through McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995). The negligent
retention claim is basically the same but relates to the act of retaining an already hired employee rather
than the initial act of hiring. Reed v. Kelly, 37 S.W.3d 274, 277-78 (Mo. Ct. App. 2000). Absent some
dangerous proclivity of the employee and knowledge of that proclivity on the part of the employer, then, a
plaintiff cannot maintain a negligent hiring or retention claim.
Plaintiffs here make no factual allegations that would support a negligent hiring or retention claim.
The only facts alleged relate to the events of January 11, 2013. (First Amd. Compl. ¶¶ 15-34). There is no
suggestion that Defendant Bivens has or had any dangerous proclivities, and there is therefore nothing to
support a claim that Defendant DKMZ knew of such a proclivity. Indeed, Plaintiffs do not even attempt a
“formulaic recitation of the elements” of their cause of action. Cf. Twombly, 550 U.S. at 555 (“a formulaic
recitation of the elements of a cause of action will not do”). They simply state that “Defendant DKMZ
was negligent in its hiring of Defendant Bivens [, and] Defendant DKMZ was negligent in its retention of
Defendant Bivens.” (First Amd. Compl. ¶ 55). These one-line legal conclusions, unsupported by relevant

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factual allegations, do not state a facially plausible claim that Defendant DKMZ was negligent in hiring
or retaining Defendant Bivens.
B. Negligent Supervision
Plaintiffs next claim in Count III that Defendant DKMZ negligently supervised Defendant
Bivens. (First Amd. Compl. ¶ 55). Missouri defines negligent supervision, in part, as the duty of a master
to exercise reasonable care so to control his servant while acting outside the scope
of his employment as to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily harm to them if (a)
the servant . . . (ii) is using chattel of the master, and (b) the master (i) knows or
has reason to know that he has the ability to control his servant, and (ii) knows or
should know of the necessity and opportunity for exercising such control.
Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997) (en banc) (quoting Restatement (Second) of Torts § 317
(1965)) (emphasis added).
Plaintiffs have alleged that Defendant Bivens was acting within the scope of his employment with
DKMZ, and Defendants DKMZ and FedEx, the only parties who would benefit from a denial of that
allegation, have both admitted it to be true. (First Amd. Compl ¶ 6; Defendant DKMZ Answer ¶ 6;
Defendant FedEx Answer ¶ 6). There is thus no contention here that Bivens was acting outside the scope
of his employment, and a negligent supervision claim is consequently inappropriate.
C. Negligent Training
Plaintiffs next bring a claim against Defendant DKMZ that it was negligent in its training of
Defendant Bivens. (First Amd. Compl. ¶ 55). Negligent training under Missouri law is a variant of
ordinary negligence. Garrett v. Albright, 2008 WL 795621, at *5 (W.D. Mo. 2008) (March 21, 2008).
Plaintiffs must therefore show:
(1) a legal duty on the part of the defendant to use ordinary care to protect the
plaintiff against unreasonable risks of harm; (2) a breach of that duty; (3) a
proximate cause between the breach and the resulting injury; (4) actual damages to
the plaintiff‟s person or property.
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Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. 1984) (en
banc). The Court again notes that the only factual allegations made relate to the accident that
occurred on January 11, 2013. (First Amd. Compl. ¶¶ 15-34). There is not a single fact related
to Defendant DKMZ‟s training of Defendant Bivens. The negligent training claim is therefore
not facially plausible.
D. Negligent Maintenance of Tractor-Trailer
Plaintiffs‟ final claim against Defendant DKMZ in Count III is that DKMZ was negligent in its
maintenance of the tractor-trailer involved in the accident. (First Amd. Compl.¶ 55). Missouri courts
analyzing negligent maintenance claims seem to approach them as a variation of ordinary negligence. See,
e.g., Edwards v. Shelter Mutual Insurance Co., 280 S.W.3d 159, 163-64 (Mo. Ct. App. 2009). As with the
other claims listed under Count III, Plaintiffs put forward no factual allegations that would support a
negligent maintenance claim.
III.

Count IV
A. Negligent Hiring, Retention, and Maintenance
In Count IV, Plaintiffs bring against Defendant FedEx claims that FedEx negligently hired and

retained Defendants DKMZ and Bivens, negligently supervised Defendants Bivens and DKMZ, and
negligently maintained the tractor-trailer involved in the accident. (First Amd. Compl. ¶ 63). These claims
contain the same flaws contained in the parallel Count III claims against Defendant DKMZ. There are
simply no factual allegations to support the claims, and they therefore are not facially plausible.
B. Negligent Contracting
The final claim brought against Defendant FedEx is that FedEx was negligent in contracting with
Defendants DKMZ and Bivens. (First Amd. Compl. ¶ 63). Missouri cases do not recognize or set forth
the elements of a claim for “negligent contracting,” nor does the Restatement of Torts contain such a
cause of action. Plaintiffs make no attempt explain their asserted cause of action, (First Amd.Compl. ¶ 63;

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Memorandum in Opposition to Motion to Dismiss Count IV), and the Court finds that the facts alleged
fail to support a negligence claim related to FedEx‟s act of contracting.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants‟ Motion to Dismiss Count II is DENIED.
IT IS FURTHER ORDERED that Defendants‟ Motion to Dismiss Count III is GRANTED,
and Count III of Plaintiffs‟ First Amended Complaint is DISMISSED.
IT IS FINALLY ORDERED that Defendants‟ Motion to Dismiss Count IV is GRANTED, and
Count IV of Plaintiffs‟ First Amended Complaint is DISMISSED.

Dated this 16th Day of December,2013

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE

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