GILLMAN et al v. RAKOUSKAS et al
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 1/26/2017. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
GEORGE GILLMAN and FLORENCE
HONORABLE JEROME B. SIMANDLE
No. 16-4619 (JBS/KMW)
MICHAEL RAKOUSKAS and ELAINE
SIMANDLE, Chief Judge:
In this diversity case, Plaintiffs George and Florence
Gillman (hereinafter, “Plaintiffs”) bring claims of gross
negligence and loss of consortium against Defendants Michael and
Elaine Rakouskas (hereinafter, “Defendants”) arising from an
automobile accident on the New Jersey Turnpike.
Court is an unopposed motion to dismiss brought by Defendants on
the grounds that Plaintiffs fail to allege sufficient facts
under Fed. R. Civ. P. 12(b)(6) to support their prayer for
For the following reasons, the Court will
grant Defendants’ motion without prejudice.
Factual and Procedural History.
that while Mr. Gillman and a business associate were driving on
the New Jersey Turnpike in the afternoon of June 4, 2014,
Defendants’ vehicle “[s]uddenly and without warning”
struck the right shoulder “and ricochet[ed] in the opposite
direction towards [Mr. Gillman’s] vehicle causing both vehicles
to collide.” (Compl. at ¶¶ 12-14.)
Mr. Gillman’s vehicle “began
to spin uncontrollably and then flip[ped] over so that [he] was
left on the highway upside down.” (Id. at ¶ 15.)
As a result,
Mr. Gillman “sustained multiple injuries” and “had to be removed
from the vehicle and taken from the scene to the hospital by
ambulance.” (Id. at ¶ 16.)
Mr. Gillman “suffered and continues
to suffer severe personal injuries, pain and suffering, and loss
of life’s pleasures.” (Id. at ¶ 19.)
This has included a disc
herniation in his neck, a concussion, severe and consistent
migraines resulting in nausea in his extremities, contusions,
and cervical spondylosis. (Id. at ¶ 26.)
Plaintiffs filed their Complaint in the Superior Court
of New Jersey, Burlington County on May 27, 2016, and Defendants
properly removed the matter to this Court on July 29, 2016
pursuant to 28 U.S.C. § 1441(a) and (b). [Docket Item 1.]
Plaintiffs allege gross negligence against Defendant Elaine
Rakouskas in Count I of their Complaint and gross negligence
against both defendants in Count II.1
Plaintiffs allege that
Plaintiff Florence Gillman brings a separate loss of consortium
in Count III. She alleges that as the wife of Mr. Gillman, she
“has in the past and will in the future be required to expend
large sums of money for medical, hospital and nursing care for
the alleviation of the suffering of Plaintiff and has in the
Defendants “were reckless in that they consciously and
intentionally operated their vehicle in such a manner that they
knew injury to another was probable and/or operated their motor
vehicle with wanton and reckless disregard for the safety of
others and in reckless disregard of the consequences of their
acts.” (Compl. at ¶ 31.)
Specifically, Plaintiffs allege that
Defendants were reckless, careless, and negligent because they
(1) failed to ensure their vehicle was fit to operate on the
road, (2) failed to observe due care and precaution and failed
to yield to an oncoming vehicle, (3) failed to properly signal
and intent to turn, (4) failed to avoid distracting the operator
of the vehicle, (5) failed to observe due care and precaution
and to maintain proper and adequate control of the motor
vehicle, (6) failed to keep a proper lookout for other vehicles
lawfully on the roadway, (7) operating [their] vehicle into
Plaintiff’s lane of travel, (8) operating said vehicle would
regard for the rights or safety of Plaintiff or others, (9)
disregarding traffic lanes, patterns, and other devices, (10)
failing to operate said vehicle in compliance with the
applicable laws and ordinances of the State of New Jersey
pertaining to the operation and control of motor vehicles, (11)
being inattentive to [their] duties as an operator of a motor
past and will in the future be deprived of the services of
Plaintiff. (Compl. at ¶ 33.)
vehicle, (12) failing to be highly vigilant and maintain
sufficient control of said vehicle and bring it to a stop on the
shortest possible notice, and (13) in other respects not now
known to the Plaintiff but which may become known prior to or at
the time of trial. (Id. at ¶ 33.)
compensatory and punitive damages in all three counts against
Defendants filed the instant motion to dismiss the
punitive damages claims, which was not opposed. [Docket Item 7].
The Court will decide this motion without holding oral argument
pursuant to Rule 78, Fed. R. Civ. P.
Standard of Review.
Pursuant to Rule 8(a)(2), Fed. R.
Civ. P., a complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled to
Specific facts are not required, and “the statement
need only ‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
complaint is not required to contain detailed factual
allegations, the plaintiff must provide the “grounds” of his
“entitle[ment] to relief”, which requires more than mere labels
and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
A motion to dismiss under Rule 12(b)(6), Fed. R. Civ.
P., may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court concludes that
the plaintiff failed to set forth fair notice of what the claim
is and the grounds upon which it rests. Id.
A complaint will
survive a motion to dismiss if it contains sufficient factual
matter to “state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).
court must accept as true all factual allegations in a
complaint, that tenet is “inapplicable to legal conclusions,”
and “[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do.” Id. at 678.
“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, will
not suffice.” Id.
Defendants do not argue that the
Complaint as a whole fails to state a claim upon which relief
can be granted, but instead take issue with the nature of the
damages Plaintiffs request, specifically punitive damages.
Punitive damages are available under New Jersey law only if the
plaintiff demonstrates that the defendant acted with the level
of culpability required by the New Jersey Punitive Damages Act
(“PDA”), N.J.S.A. 2A:15–5.09, et seq., see also Vibra-Tech
Engineers, Inc. v. Kavalek, 849 F. Supp. 2d 462, 499–500 (D.N.J.
Under the PDA, to recover punitive damages, the
plaintiff must demonstrate “by clear and convincing evidence,
that the harm suffered was the result of the defendant's acts or
omissions, and such acts or omissions were actuated by actual
malice or accompanied by a wanton and willful disregard of
persons who foreseeably might be harmed by those acts or
This burden of proof may not be satisfied by proof
of any degree of negligence including gross negligence.”
N.J.S.A. 2A:15–5.12(a). “‘Actual malice’ means an intentional
wrongdoing in the sense of an evil-minded act.” Id. “‘Wanton and
willful disregard’ means a deliberate act or omission with
knowledge of a high degree of probability of harm to another and
reckless indifference to the consequences of such act or
As a result, circumstances of aggravation and
outrage, beyond the simple commission of a tort, are required
for an award of punitive damages. Dong v. Alape, 361 N.J. Super.
106, 117 (App. Div. 2003) (holding that plaintiff established
prima facie case for punitive damages because driver of motor
vehicle exhibited wanton and willful disregard for others).
Defendants argue that Plaintiffs plead no facts indicating
“Punitive damages” are defined as those awarded “because of
aggravating circumstances in order to penalize and to provide
additional deterrence against a defendant to discourage similar
conduct in the future.” N.J.S.A. 2A:15-5.10.
adherence to either the actual malice or the wanton or willful
The Court agrees.
Plaintiffs’ Complaint, as currently plead, only states
a claim for gross negligence as none of the facts outlined supra
suggest any actual malice or intentional acts or omissions by
Statements such as Defendants “failed to observe
due care and precaution,” “failed to keep a proper lookout,”
“failed to be highly vigilant”, and that Defendants were
“inattentive to [their] duties” do not suggest any evil-minded
act or a deliberate act or omission, and are therefore
insufficient to state a claim for punitive damages. (Compl. at
¶¶ 25, 33).
The PDA is clear that Plaintiffs cannot obtain
punitive damages “by proof of any degree of negligence including
gross negligence.” N.J.S.A. 2A:15–5.12(a)(emphasis added).
Huzinec v. Six Flags Great Adventure, LLC, No. 16-2754, 2017 WL
44850, at *8 (D.N.J. Jan. 3, 2017)(dismissing Plaintiff’s
The New Jersey Supreme Court has recently clarified the
distinctions within the “continuum” between gross negligence,
recklessness, and willful misconduct. Steinberg, Sahara Sam’s
Oasis, LLC, 142 A.2d 742, 755 (N.J. 2016). Gross negligence
refers to a person’s conduct “where an act or failure to act
creates an unreasonable risk of harm to another because of the
person’s failure to exercise slight care or diligence.” Id. at
754. On the other hand, reckless conduct is a degree of
culpability “greater than gross negligence” and is “the
conscious disregard . . . to a known or obvious risk of harm to
another.” Id. at 755 (citations and internal quotation marks
omitted). Willful misconduct “implies an intentional deviation
from a clear duty owed to another.” Id.
request for punitive damages under the PDA because it alleged
gross negligence); Smith v. Whitaker, 734 A.2d 243, 254 (N.J.
1999) (“Mere negligence, no matter how gross, will not suffice
as a basis for punitive damages.”).
While Plaintiffs’ Complaint
does state that Defendants “consciously and intentionally
operated their vehicle in such a manner that they knew injury to
another was probable and/or operated their motor vehicle with
wanton and reckless disregard for the safety of others and in
reckless disregard of the consequences of their acts,” this is a
legal conclusion that the Court can ignore because Plaintiffs
provide no factual support in their Complaint for this
allegation. (Id. at ¶ 31.)4
Plaintiffs’ Complaint is completely
devoid of any facts that would allow the Court to reasonably
infer that Defendants acted in a manner that could be classified
as “actual malice” or a “wanton or reckless disregard” for
Accordingly, Defendants’ motion to dismiss Plaintiffs’
prayer for punitive damages is granted.5
The prayer for punitive
damages will be dismissed.
The PDA does not appear to prevent recovery of punitive damages
based on recklessness or any other higher level in the continuum
described in Steinberg, supra n. 3.
5 The Court understands that an assessment of whether Defendants’
actions were wantonly reckless or malicious “is a fact-specific
inquiry requiring examination of [a] Defendant’s intent and
knowledge.” Daloisio v. Liberty Mut. Fire Ins. Co., 754 F. Supp.
2d 707, 710 (D.N.J. 2010). But without facts pled in the
Complaint suggesting grounds for punitive damages, the Court
cannot “draw the reasonable inference that [defendants are]
As it is not clear to the Court that amendment of the
Complaint as to punitive damages would necessarily be futile,
see Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir.
2002), Plaintiffs may move for leave to file an Amended
Complaint under Rule 15, Fed. R. Civ. P. articulating specific
facts supporting a prayer for punitive damages, within the time
set in this case for amending pleadings, correcting the
deficiencies noted above if they can do so.
An accompanying Order will be entered.
January 26, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678
(citations omitted); namely, the Complaint presents no grounds
from which it is plausible that the Defendants in this
unfortunate accident acted through exceptional circumstances of
aggravation or outrage, such as spite or malice or a fraudulent
or evil motive arising to conscious wrongdoing as required by
New Jersey law.
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