Pugh v. Junqing et al
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that Defendants Junqing and Ying Lan Trucking Express's Motion to Dismiss (ECF No. 5 ) is DENIED.. Signed by District Judge Ronnie L. White on 4/12/2017. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
No. 4:16-CV-1881 RLW
FANG JUNQING and YING LAN
MEMORANDUM AND ORDER
This matter is before the court on Defendants Junqing and Ying Lan Trucking Express's
Motion to Dismiss (ECF No. 5). This matter is fully briefed and ready for disposition.
On November 12, 2015, a Ying Lan Trucking Express ("Trucking Express") tractor
trailer, operated by Fang Junqing ("Junqing"), rear-ended Plaintiff Tiffany Pugh ("Pugh") on
Interstate 44. (Petition, ECF No. 3,
Pugh claims that Junqing was negligent by driving at an
improper speed, following too close, failing to keep his vehicle under proper control, and failing
to maintain a proper lookout. (Petition,
Pugh further alleges that Trucking Express was
negligent in failing to adequately train and supervise Junqing, in maintaining and repairing its
vehicle, and equipping the vehicle with proper safety features. (Petition,
claims she was injured. (Petition,
As a result, Pugh
13, 18). Pugh filed a Petition in St. Louis County Circuit
Court, alleging claims for Negligence of Junqing (Count I), Negligence of Ying Lan Trucking
Express (Count II), and Vicarious Liability of Ying Lan Trucking Express (Count III).
Standard of Review
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 ."' Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting Bell Atlantic Corp., v.
Twombly, 550 U.S 544, 570 (2007).
A "formulaic recitation of the elements of a cause of
action" will not suffice. Twombly, 550 U.S. at 555. "The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted
unlawfully. " Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).
A. Count I
Defendants claim that Count I is defective because it improperly combines a claim of
simple negligence and claims of negligence per se against Junqing in violation of Federal Rule of
Civil Procedure lO(b). (ECF No. 5, ~9 (citing Fed. R. Civ. P. lO(b) ("If doing so would promote
clarity, each claim founded on a separate transaction or occurrence-and each defense other than
a denial-must be stated in a separate count or defense. "). Defendants assert that Count I is
devoid of any facts upon which Pugh bases her negligence per se claims and "thus improperly
combines such claims with the simple negligence claims." (ECF No. 5,
that Pugh fails to allege which specific construction zone regulations and Federal Motor Carrier
Safety Regulations Junqing violated. (ECF No. 5, ~11) .
Defendants further assert that Count I is defective because it is devoid of facts to support
a negligence per se claim. (ECF No. 5,
Defendants claim that Pugh has not alleged that
she was within a class of people intended to be protected by the cited statutes and regulations or
that Pugh's injury was of the nature and that the statutes were designed to protect. (ECF No. 5,
In response, Pugh states that her pleading properly combines different theories of
recovery in a single count because they are based on the same facts. (ECF No. 7 at 2). Pugh
asserts that her negligent per se claim alleges a violation of specific, applicable statutory rules of
conduct and that Junqing' s driving was "undoubtedly" negligently violated statutory rules of the
road. (ECF No. No. 7 at 2). Pugh states that Petition provides "fair notice" as to what is being
claimed. (ECF No. 7 at 2-3).
Under Missouri law, " [a] claimant may proceed on a negligence per se claim 'if the
following four elements are met: (1) There was, in fact, a violation of the statute; (2) The injured
plaintiff was a member of the class of persons intended to be protected by the statute; (3) The
injury complained of was of the kind the statute was designed to prevent; and (4) The violation
of the statute was the proximate cause of the injury. "' Sill v. Burlington N R.R. , 87 S.W.3d 386,
392 (Mo. Ct. App. 2002) (quoting King v. Morgan, 873 S.W.2d 272, 275 (Mo. Ct. App. 1994)).
Similarly, under Missouri law, " [t]he elements of negligence are: 1) the existence of a duty; 2)
breach of that duty; 3) injury proximately caused by breach of that duty; and 4) actual damages."
In re Complaint of Jessup for Exoneration from, or Limitation of, Liab., 196 F. Supp. 2d 914,
918 (E.D. Mo. 2002) (citing Hoover's Dairy, Inc. v. Mid- America Dairymen, Inc./Special
Products, Inc. , 700 S. W.2d 426, 431 (Mo.1985)).
Although Pugh' s pleadings could have been clearer as to her allegations, the Court holds
that she has sufficiently alleged claims for negligence per se and for negligence against Junqing.
The mere fact that Pugh seems to have included both claims in one count does not "require
dismissal." Mattingly v. Medtronic, Inc., 466 F. Supp. 2d 1170, 1173 (E.D . Mo. 2006). With
respect to the negligence per se claim, Pugh has identified several statutes that she claims
Junqing violated, which resulted in her injury. See Petition, ECF No. 3,
(f), (g). With
respect to the negligence claim, Pugh has alleged several deficiencies in Junqing's driving which
resulted in her injury, including driving too close and at an improper speed. See Petition, ~7(a),
(b), (c), (d). The Court denies the motion to dismiss Count I of the Petition because the Court
holds that Pugh properly states a claim for negligence and negligence per se against Junqing.
B. Count II
In Count II, Pugh attempts to allege a negligence claim against Trucking Express.
Plaintiff generally alleges that Trucking Express was negligent in failing to adequately train and
supervise Junqing, failing to maintain and repair its vehicle, and failing to equip the vehicle with
proper safety features " including adequate warnings and sensors."
(ECF No. 5,
Petition, ~12) . Pugh also alleged that Trucking Express negligently hired and retained Defendant
Junqing and negligently entrusted him with the operation of its vehicle. (ECF No. 5,
Defendants assert that Pugh fails to state a claim for negligence against Trucking Express
because Pugh did not allege facts to establish that Trucking Express owed a duty to Pugh or that
Trucking Express's breach of that duty was a proximate cause of Pugh's injury. (ECF No. 5,
Defendants also maintain that Pugh's Petition contains no facts regarding the nature of the
relationship between Trucking Express and Junqing. (ECF No. 5, ~17) . Likewise, Defendants
state that Count II is devoid of any facts to support her claims negligent entrustment and
negligent hiring and retention . (ECF No. 5, ~~18-20). Defendants aver that Pugh failed to allege
any facts to establish that Defendant Junqing was incompetent or that Trucking Express knew or
had reason to know of such alleged incompetence. In addition, Defendants maintain that Pugh
has failed to allege that Junqing had "dangerous proclivities" or that Trucking Express was aware
of such "dangerous proclivities." Defendants assert that Pugh' s allegation that Trucking Express
failed "to discharge or further investigate [Junqing] upon discovery of his dangerous propensity"
is a mere legal conclusion, which is not supported by facts.
In response, Pugh cites to the "applicable simplified-notice-pleading standard." (ECF
No. 7 at 3). Pugh claims that her pleading is "full of facts supporting the claims of direct
negligence, including that Defendant Trucking Express: was negligent in hiring and retaining
Junqing; negligently trained and entrusted Junqing; and, failed to provide a safe vehicle." (ECF
No. 7 at 3). Pugh maintains that these allegations provide "fair notice" of the negligence claim
Initially, the Supreme Court has noted that it does "not require heightened fact pleading
of specifics, but only enough facts to state a claim to relief that is plausible on its face ."
Twombly, 550 U.S. at 570. At this early stage of the litigation, the Court holds that Pugh has
sufficiently alleged facts to support a negligence claim against Trucking Express. Pugh alleges
that Trucking Express failed to adequately train Junqing and that Trucking Express did not
properly maintain and repair its vehicle, among other deficiencies. Pugh also alleged that these
negligent acts were the cause of her injuries. The Court holds that these allegations sufficiently
allege a cause of action for negligence against Trucking Express.
C. Count III
In Count III, Pugh alleges a claim for respondeat superior against Trucking Express.
Pugh alleges that Trucking Express maintained control over Junqing' s work and that Junqing' s
negligence was in the course and scope of his employment, in furtherance of Trucking Express ' s
business, and foreseeable to Trucking Express. (Petition, Count III,
17). '"'Under the
doctrine of respondeat superior an employer is liable for those negligent acts or omissions of his
employee which are committed within the scope of his employment."' Studebaker v. Nettie's
Fackrell v. Marshall, 490 F.3d 997, 1000 (8th Cir. 2007) (quoting Flower Garden, Inc. , 842
S.W.2d 227, 229 (Mo. Ct. App. 1992)). "[I] tis hornbook law that liability under respondeat
superior theory is vicarious, and not direct, liability." Knowles v. United States, 91 F.3d 1147,
1153 (8th Cir. 1996).
Defendants seek dismissal of Count III because Pugh alleged no facts regarding the
nature of the relationship between Trucking Express and Junqing.
(ECF No. 5,
Defendants aver that the Petition contains the bald conclusion that Trucking Express maintained
control over the work of Junqing as its agent, employee, and servant, and Trucking Express had a
"special relationship" with Junqing.
(Petition, Count II,
Defendants claim that this
allegation amounts to mere conclusions and is insufficient to state a claim for respondeat
superior. (ECF No. 5, ~23).
Pugh, however, argues that she has alleged that Junqing's negligence was "in the course
and scope of his agency for Trucking Express and was incidental thereto .. .. " (ECF No. 7 (citing
ECF No. 3 at 5)). Pugh claims she has alleged the requisite "control" for a finding of vicarious
liability. (ECF No. 7 at 3).
The Court holds that Pugh has alleged a relationship sufficient for vicarious liability.
Pugh has alleged that Junqing was acting in the course and scope of his employment. The Court
holds such an allegation is sufficient for a vicarious liability claim.
D. Punitive Damages Claims in Counts I & II
In her Petition, Pugh alleged that Defendants' conduct showed complete indifference to
or conscious disregard for the safety of others. (Petition, Count I,
Petition, Count II,
Defendants allege that Pugh' s conclusion that Defendants' conduct showed complete indifferent
to or conscious disregard for the safety of others is insufficient to allege a claim for punitive
damages. (ECF No. 5, if27).
"For an award of punitive damages in a negligence action, 'plaintiff must show (1)
defendant knew or should have known, based on the surrounding circumstances that its conduct
created a high degree of probability of injury, and (2) defendant showed complete indifference
to, or conscious or reckless disregard for, the safety of others. " ' Harris v. Decker Truck Line,
Inc., No. 4:12 CV 1598 DDN, 2013 WL 1769095, at *3 (E.D. Mo. Apr. 24, 2013) (quoting
Litchfield By & Through Litchfield v. May Dep't Stores Co. , 845 S.W.2d 596, 599 (Mo. Ct. App.
At this early stage of the litigation, the Court holds that Pugh' s allegation that
Defendants' negligent actions "showed complete indifference to, or conscious disregard for, the
safety of others warranting exemplary and punitive damages" (Petition, if9) was sufficient to
allege a claim of punitive damages. The Court denies the motion to dismiss on this basis.
IT IS HEREBY ORDERED that Defendants Junqing and Ying Lan Trucking Express ' s
Motion to Dismiss (ECF No. 5) is DENIED.
Dated this 12th day of April, 2017.
RONNIE L. WHITE
UNITED ST ATES DISTRICT JUDGE
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