Tungate vs Johnson et al

Filing 18

ORDER granting 12 Motion to Dismiss, and the punitive damages claim Pltf asserts in Count Two of the Complaint are DISMISSED. Signed by Magistrate Judge Dennis Howell on 11/2/11. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv143
LARRY TUNGATE,
Plaintiff,
v.
DENISE OWENS JOHNSON, and
LEWIS ECKARD d/b/a DROWNING
CREEK FARMS,
Defendants.
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ORDER

Pending before the Court is Defendants’ Motion to Dismiss [# 12]. This
action arises out of an automobile accident involving Plaintiff and a vehicle driven
by Defendant Denise Johnson. Plaintiff, who is represented by counsel, asserts
claims for negligence and punitive damages. Defendants move to dismiss the
punitive damages claim pursuant to Rule 12(b)(6). Plaintiff did not respond to the
motion. The Court GRANTS the motion [# 12].
I.

Background

Defendant Lewis Eckard d/b/a Drowning Creek Farms (“Eckard”) is a
resident of North Carolina and the employer of Defendant Johnson. (Pl.’s Compl.
¶ 4.) Defendant Johnson is also a resident of North Carolina. (Id.) Plaintiff is a
resident of Kentucky. (Id. ¶ 3.)

On July 27, 2008, Defendant Johnson was driving a vehicle owned by
Defendant Eckard. (Id. ¶ 5.) While operating this vehicle in the course of her
employment, Defendant Johnson struck Plaintiff, who was standing outside of his
vehicle on private property. (Id.) Plaintiff sustained severe and permanent injuries
as a result of this accident. (Id. ¶ 6.)
Plaintiff contends that this accident was the result of the failure of Defendant
Eckard to exercise reasonable care in the hiring and training of his employees to
operate vehicles. (Id. ¶ 8.) In addition, Plaintiff contends that Defendant Johnson
failed to exercise reasonable and ordinary care in operating the vehicle. (Id. ¶ 9.)
Finally, Plaintiff contends that Defendants’ actions “were so grossly negligent as to
entitle [Plaintiff] to punitive damages . . . .” (Id. ¶ 12.)
II.

Legal Standard

The central issue for resolving a Rule 12(b)(6) motion is whether the
complaint states a plausible claim for relief. See Francis v. Giacomelli, 588 F.3d
186, 189 (4th Cir. 2009). In considering a defendant’s motion to dismiss, the
Court accepts the allegations in the complaint as true and construes them in the
light most favorable to plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 253 (4th Cir. 2009); Giacomelli, 588 F.3d at 190-92. Although
the Court accepts well-pled facts as true, it is not required to accept “legal
conclusions, elements of a cause of action, and bare assertions devoid of further

factual enhancement . . . .” Consumeraffairs.com, 591 F.3d at 255; see also
Giacomelli, 588 F.3d at 189.
The complaint need not contain “detailed factual allegations,” but must
contain sufficient factual allegations to suggest the required elements of a cause of
action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 196465 (2007); see also Consumeraffairs.com, 591 F.3d at 256. “[A] formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at
555, 127 S. Ct. at 1965. Nor will mere labels and legal conclusions suffice. Id.
Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned,
the defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.
____, 129 S. Ct. 1937, 1949 (2009).
The complaint is required to contain “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974;
see also Consumeraffairs.com, 591 F.3d at 255. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. ____, 129 S. Ct. at 1949; see also Consumeraffairs.com, 591 F.3d at 255.
The mere possibility that the defendants acted unlawfully is not sufficient for a
claim to survive a motion to dismiss. Consumeraffairs.com, 591 F.3d at 256;
Giacomelli, 588 F.3d at 193. Ultimately, the well-pled factual allegations must

move a plaintiff’s claims from possible to plausible. Twombly, 550 U.S. at 570,
127 S. Ct. at 1974; Consumeraffairs.com, 591 F.3d at 256.
III.

Analysis

Punitive damages are available under North Carolina law in order to punish
a defendant for egregious acts and to deter both the defendant and others from
committing similar acts in the future. N.C.G.S. § 1D-1; Harrell v. Bowen, 655
S.E.2d 350, 352 (N.C. 2008). A plaintiff, however, may only recover punitive
damages where he or she proves that the defendant is liable for compensatory
damages, and one of three aggravating factors is present and relates to the injury.
N.C.G.S. § 1D-15(a). These factors include fraud, malice, and willful or wanton
conduct. Id.; Strawbridge v. Sugar Mountain Resort, Inc., 320 F. Supp. 2d 425,
435-6 (W.D.N.C. 2004) (Thornburg, J.). In addition, punitive damages are not
available on the basis of vicarious liability. N.C.G.S. § 1D-15(c).
Punitive damages shall not be awarded against a person solely on the
basis of vicarious liability for the acts or omissions of another. Punitive
damages may be awarded against a person only if that person
participated in the conduct constituting the aggravating factor giving rise
to the punitive damages, or if, in the case of a corporation, the officers,
directors, or managers of the corporation participated in or condoned the
conduct constituting the aggravating factor giving rise to punitive
damages.
Id.
The Complaint contains no allegations that Defendants acted with fraud or
malice, or that either engaged in willful or wanton conduct. Instead, Plaintiff

alleges only that Defendants were “grossly negligent.” As the North Carolina
Court of Appeals has explained, however, willful or wanton conduct means more
than gross negligence. George v. Greyhound Lines, Inc., 708 S.E.2d 201, 205
(N.C. Ct. App. 2011). Because the Complaint is devoid of any factual allegations
supporting a claim that Defendants acted with fraud or malice or engaged in willful
or wanton conduct, Plaintiff’s punitive damages claim is subject to dismissal. See
Estrada v. Consol. Util. Servs., Inc., No. 5:10cv161, 2011 WL 2174467 (W.D.N.C.
Jun. 2, 2001) (Voorhees, J.) (dismissing punitive damages claim for failure to state
a claim). Accordingly, the Court GRANTS the Motion to Dismiss [# 12].
IV.

Conclusion

The Court GRANTS the Motion to Dismiss [# 12] and DISMISSES the
punitive damages claim Plaintiff asserts in Count Two of the Complaint.

Signed: November 2, 2011