Bostic, et al v. Mader, et al

Filing 44

ORDER granting 29 Motion for Reconsideration. The Courts Order 24 granting Defendants' Renewed Motion to Dismiss Plaintiffs Claims for Punitive Damages and Plaintiffs' Claims against Defendant Johanna Mader in the First Amended Complaint is AFFIRMED. Signed by District Judge Martin Reidinger on 08/12/2013. (thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:12cv87

ELIZABETH BOSTIC , and
J.B., a minor Child, by and through
JENNY BOSTIC, his parent and legal
guardian,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
ELYSE MADER and JOHANNA MADER
)
)
Defendants.
)
__________________________________________)
)
NATIONWIDE PROPERTY & CASUALTY
)
INSURANCE CO.,
)
)
Intevenor Defendant/Counter Claimant,
)
)
vs.
)
)
ELIZABETH BOSTIC , and
)
J.B., a minor Child, by and through
)
JENNY BOSTIC, his parent and legal
)
guardian,
)
)
Counter Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on the Plaintiffs’ Motion to
Reconsider Order Granting Defendants’ Motion to Dismiss. [Doc. 29].

Plaintiffs assert this Court can reconsider, and upon reconsideration,
should reverse its Order [Doc. 24] dismissing Plaintiffs’ claims for punitive
damages and dismissing Defendant Johanna Mader from this case. The
Court will reconsider its prior Order, and upon such reconsideration, and for
the reasons stated herein, will reaffirm that Order.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiffs began this action by a Complaint filed November 21,
2012. [Doc. 1]. The Complaint states in its factual recitation that Plaintiff
Elizabeth Bostic (“Bostic”) was driving a Kawasaki motorcycle on June 5,
2012, on North Carolina Highway 28 near Panther Creek Road in the
Western District of North Carolina. [Id. at 2]. At this same time and place,
minor Plaintiff J.B. (“J.B.”) was a passenger on a Honda motorcycle
traveling with and near Bostic’s motorcycle. [Id.]. Defendant Elyse Mader
(“Elyse”), on June 5, 2012, was driving a Kia Sorrento sport utility vehicle
on Panther Creek Road in the direction of N.C. Highway 28. [Id.].
Plaintiffs allege Elyse negligently entered the intersection of Panther
Creek Road and N.C. Highway 28, and in so doing, collided with Bostic.
[Id. at 2-3]. Plaintiffs further allege that as a result of this collision, Bostic
was thrown from her motorcycle, seriously injured, and incurred substantial

2

medical expenses. [Id. at 3]. Relevant to the issues addressed herein,
Plaintiffs assert in their Complaint:
15. Defendant Elyse Mader advised the responding law
enforcement officer that she attempted to stop her vehicle but
that her brakes were not working.
16. Plaintiff J.B. witnessed and observed the collision and the
conduct of Defendant Elyse Mader when she struck Elizabeth
Bostic, and witnessed the Defendant operating a cellular phone
immediately before the collision.
[Id.].
Plaintiffs’ First Claim asserts numerous theories of why Elyse was
negligent in the operation of the Kia. [Id. at 4]. The First Claim further
alleges generally that Defendant Johanna Mader (“Johanna”) and Elyse
both were negligent in failing to maintain the safety features of the vehicle
including the braking system. [Id.].

Plaintiffs allege that, due to the

Defendants’ negligence, Defendants proximately caused injury to Bostic
and damage to the Kawasaki motorcycle. [Id.].
Plaintiffs’ Second Claim seeks punitive damages in favor of Bostic
only and against Elyse only, asserting that Elyse’s conduct in operating the
Kia “was willful, wanton, gross, reckless, and in complete disregard for the
safety and rights of others, particularly Plaintiff Elizabeth Bostic.” [Id. at 5].
Elyse’s grossly negligent conduct, it is alleged, was the product of her
3

decision to operate the Kia while using a cell phone and/or while driving the
Kia with faulty brakes. [Id.].
Plaintiffs’ Third Claim asserts Elyse was negligent per se in the
operation of the Kia by driving recklessly in violation of N.C. Gen. Stat. §
20-140. [Id. at 5]. Plaintiffs allege that, due to Elyse’s negligence per se,
she proximately caused injury to Bostic. [Id.].
Plaintiffs’ Fourth Claim asserts that J.B. and Bostic are siblings and
that J.B. witnessed the Kia driven by Elyse collide with the motorcycle
driven by Bostic. [Id. at 6]. Further it is generally alleged, due to Elyse’s
negligence in operating the Kia, and due to Johanna and Elyse both
negligently failing to maintain the safety features of the vehicle, and finally
due to Johanna’s negligent entrustment of the Kia to Elyse in its then
condition, Defendants thereby negligently inflicted emotional distress upon
J.B. [Id.]. With regard to J.B.’s injury, the Complaint asserts:
33. Plaintiff J.B. has suffered, continues to suffer and is likely to
continue to suffer severe emotional distress as a result of
seeing his sister injured by Defendants’ negligence, which
distress arises from the relationship and concern for the
wellbeing had between the Plaintiffs.
[Id.].
The Defendants filed an Answer [Doc. 8] to the Complaint [Doc. 1]
responding to Plaintiffs’ allegations and raised Bostic’s contributory
4

negligence as an affirmative defense.

Also, Defendants included two

motions to dismiss in their Answer that are pertinent to this discussion.
[Doc. 8 at 1-2]. Defendants’ First Motion to Dismiss had three sub-parts
and was made pursuant to Federal Rule of Civil Procedure 12(b)(6)
contending: (1) Bostic’s claim for punitive damages (Second Claim) did not
allege any basis for an award of punitive damages supported by North
Carolina law; (2) J.B.’s claim for negligent infliction of emotional distress
(Fourth Claim) did not allege facts that would support such a claim; and, (3)
the Complaint did not allege any “action, inaction, or conduct at all on the
part of Johanna Mader which could be negligence on her part.” [Doc. 8 at
1-2]. Defendants’ Second Motion to Dismiss had two sub-parts and was
made pursuant to principles of standing: (1) Plaintiffs never alleged their
ownership of the Kawasaki motorcycle in the Complaint and thus have no
standing to seek damages for that vehicle; and, (2) to the extent the
Complaint seeks damages for J.B’s medical bills, only his parents have
standing to assert such claims due to J.B.’s minority. [Doc. 8 at 2].
Some of the Defendants’ motions to dismiss set forth in the Answer
were later memorialized in a formal Motion [Doc. 9] and Memorandum
[Doc. 10] filed by the Defendants with the Court on January 21, 2013. In

5

response to Defendants’ formal dismissal Motion, the Plaintiffs filed their
First Amended Complaint [Doc. 14] as of right on February 11, 2013.
Like the original Complaint, the First Amended Complaint set forth a
factual recitation of the alleged events occurring June 5, 2012, leading to
the collision of the Kia SUV driven by Elyse with the Kawasaki motorcycle
driven by Bostic. Plaintiffs then included a new allegation in paragraph 12
of the First Amended Complaint that Elyse was operating the Kia SUV “with
the permission of Defendant Johanna Mader[.]”

[Doc. 14 at 2].

Additionally, Plaintiffs added a new paragraph and modified the allegations
contained in another paragraph:
16. Defendant Elyse Mader advised the responding law
enforcement officer that she attempted to stop her vehicle but
that her brakes were not working.
17. Upon information and belief, Johanna Mader, as owner of
the vehicle, knew or had reason to know of the failure of the
brakes but continued to utilize and permit the use of the vehicle
regardless of this knowledge.
18. Plaintiff J.B., riding along with his sister, was in the
immediate zone of the incident: He witnessed and observed the
collision and the conduct of Defendant Elyse Mader when she
struck Elizabeth Bostic, and witnessed Defendant Elyse Mader
operating a cellular phone immediately before the collision.
[Id. at 3].

6

Plaintiffs’ First Claim in the First Amended Complaint asserts Elyse
was negligent, on numerous grounds, in operating the Kia SUV, and that
Johanna was negligent in failing to inspect and maintain the safety features
of the vehicle including the braking system. [Id. at 3-4]. Plaintiffs allege
that, due to the Defendants’ negligence, Defendants proximately caused
injuries to Bostic, the injuries to Bostic were brought about by the
Defendants’ willful, wanton, gross, and reckless conduct, and, as a result of
the injuries to Bostic caused by Defendants, she is entitled to actual,
general, and punitive damages. [Id. 3-6].
Plaintiffs’ Second Claim1 in their First Amended Complaint reasserts
with more factual detail Plaintiff J.B.’s injuries he contends resulted from
Defendants’ negligent infliction of emotional distress.
31. Plaintiff J.B. has suffered, continues to suffer and is likely to
continue to suffer severe emotional distress, manifesting in
crying, anxiety, sadness, worry, and sleeplessness, extreme as
a result of seeing his sister injured by Defendants’ negligence,
which distress arises from the relationship and concern for the
wellbeing had between the Plaintiffs.

[Id. 6].

1

Plaintiffs combined the allegations from their First, Second, and Third Claims set forth
in the original Complaint into their First Claim alleged in their First Amended Complaint.
As a result, Plaintiffs’ Fourth Claim of the original Complaint is realleged as the Second
Claim in their First Amended Complaint.
7

On February 14, 2013, Defendants filed their Answer [Doc. 17] to
Plaintiff’s First Amended Complaint [Doc. 14] responding to Plaintiffs’
allegations and raising Bostic’s contributory negligence as an affirmative
defense.

Also, Defendants raised the same two pertinent motions to

dismiss in their second Answer that they had raised in their first Answer.
[Doc. 17 at 1-2]. Defendants’ First Motion to Dismiss had the same three
sub-parts as before and was made pursuant to Rule 12(b)(6) contending:
(1) Plaintiffs’ claim for punitive damages did not allege any basis for such
an award under North Carolina law; (2) J.B.’s claim for negligent infliction of
emotional distress failed to allege facts that would support such a claim;
and, (3) the Complaint failed to allege any facts that would support a claim
against Johanna for which relief could be granted. [Doc. 17 at 1].
Defendants’ Second Motion to Dismiss, like before2, was made
pursuant to principles of standing.

To the extent the Complaint seeks

damages for J.B’s medical bills, the Defendants contend only J.B.’s parents
have standing to assert such claims due to J.B.’s minority. [Doc. 17 at 2].

2

Plaintiffs originally sought compensation for damage to the Kawasaki motorcycle driven
by Bostic at the time of the collision. However, Plaintiffs abandon any such claim in their
First Amended Complaint. Defendants’ Second Motion to Dismiss contained in the
Answer to Amended Complaint, therefore, contains only one sub-part.
8

Some of the Defendants’ motions to dismiss set forth in the Answer to
Amended Complaint were later memorialized in a formal Motion [Doc. 18]
and Memorandum [Doc. 19] filed by the Defendants with the Court on
February 14, 2013.

The formal Motion to Dismiss [Doc. 18], however,

included only two of the three bases alleged under Rule 12(b)(6) and thus
sought an order “dismissing the following claims[ ] with prejudice: (1) the
claims of the Plaintiffs for punitive damages and (2) all claims against the
Defendant, Johanna Mader.”

[Doc. 18 at 1].

Defendants neither

mentioned nor briefed their contention that J.B.’s claim for negligent
infliction of emotional distress failed to allege facts that would support such
a claim, nor their defense that J.B., as a minor, was without standing to
seek damages for out of pocket medical expenses associated therewith.
On March 7, 2013, Defendants filed as of right their Amended Answer
to Amended Complaint. [Doc. 20]. The Defendants’ Amended Answer to
Amended Complaint [Doc. 20], in all material respects, is the same as the
Defendants’ Answer to Amended Complaint [Doc. 17], with two exceptions.
First, Defendants’ Amended Answer added the affirmative defense of
accord and satisfaction/compromise settlement [Doc. 20 at 3]. Second,
Defendants’ Amended Answer added a severance motion under Rule 42(b)
requesting the Court convene a separate jury to try the single issue of
9

whether Bostic’s claims are barred by Defendants’ affirmative defense of
accord and satisfaction/compromise settlement. [Id.].
On March 12, 2013, Defendants filed a document entitled “Notice of
Default on Renewed Motion to Dismiss.” [Doc. 23]. Defendants filed this
document “to alert the court that the Plaintiffs have not filed any Response
in opposition to their Renewed Motion to Dismiss portions of the Amended
Complaint.” [Id.]. On March 14, 2013, the Court entered an Order [Doc.
24] dismissing Plaintiffs’ punitive damages claims and dismissing
Defendant Johanna Mader from the this action. [Id. at 2]. Within minutes
of the entry of this Court’s dismissal Order [Doc. 24], Plaintiffs filed their
Response [Doc. 26] to Defendant’s Renewed Motion to Dismiss [Doc. 18].3
On March 15, 2013, Plaintiffs filed their “Motion to Reconsider Order
Granting Defendant’s [sic] Motion to Dismiss.” [Doc. 29].

In their

reconsideration motion, Plaintiffs acknowledged their Response filed the
previous day was not timely and candidly stated that the only explanation
for their failure in this regard was that they “overlooked the deadline set
forth in the ECF notice of February 14, 2103.” [Id. at 1].

On March 25,

2013, Defendants filed their Response in Opposition to Motion for

3

The Court’s electronic filing system reflects that the Plaintiffs submitted their Response
eight minutes after the Order had been entered. [Doc. 24].
10

Reconsideration. [Doc. 31]. On April 9, 2013, new counsel entered an
appearance on behalf of the Plaintiffs. [Doc. 33]. Plaintiffs’ original counsel
thereafter moved [Doc. 34] to withdraw from further representation of the
Plaintiffs, which the Court allowed by Order filed April 17, 2013 [Doc. 36].
While Plaintiffs’ Reconsideration Motion was pending, Nationwide
Property & Casualty Insurance (“Nationwide”), on April 22, 2013, filed a
Motion to Intervene [Doc. 37], supportive Memorandum of Law [Doc. 38],
and proposed Answer [Doc. 39] as intervenor-defendant setting forth its
claims and defenses. On May 23, 2013, the Court permitted Nationwide to
intervene by Order [Doc. 41] entered that day. The Court’s Order also
permitted Nationwide fifteen days within which to file a response to
Plaintiffs’ Motion for Reconsideration. [Id.]. Nationwide filed its Response
[Doc. 42] on June 7, 2013. Nationwide’s Response, consistent with the
Defendants’ Response, asserted that the Court’s Order dismissing
Plaintiffs’ punitive damages claims, and dismissing Defendant Johanna
Mader, was legally correct and Plaintiffs’ Motion for Reconsideration should
be denied. [Id.].
Now that all of the parties have responded and have addressed
Plaintiffs’ Motion for Reconsideration, the issues raised therein are ripe for
the Court’s consideration.
11

STANDARD OF REVIEW
Interlocutory orders that resolve fewer than all claims, or the rights
and liabilities of fewer than all parties, are "subject to revision at any time
before the entry of [final] judgment[.]"

F.R.Civ.P. 54(b); Fayetteville

Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir.
1991).

This power to revisit an interlocutory order is committed to the

discretion of the district court. Moses H. Cone Mem. Hosp. v. Mercury
Const. Corp., 460 U.S. 1, 12 (1983) (every order short of a final decree is
subject to reopening at the discretion of the district judge).
To survive a motion to dismiss made pursuant to Rule 12(b)(6), a
party’s allegations, treated as true, are required to contain “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (emphasis added). On the one hand,
the claim need not contain overly “detailed factual allegations[.]” Id. at 555.
On the other hand, however, “a formulaic recitation of the elements of a
cause of action will not do[,]” nor will mere labels and legal conclusions
suffice. Id. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
12

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The mere possibility that the defendants acted unlawfully
is not sufficient for a claim to survive a motion to dismiss. Twombly, 550
U.S. at 570. The touchstone, therefore, is plausibility and not possibility.
ANALYSIS
In their Motion for Reconsideration, the Plaintiffs are quite candid in
admitting that their failure to timely respond to Defendants’ motion [Doc. 18]
was due to inadvertent oversight. [Doc. 29 at 1].

The Defendants and

Nationwide, on the other hand, urge the Court to refrain from reconsidering
its dismissal Order lest this be seen as condoning if not rewarding Plaintiffs’
behavior. Defendants further argue the Order is legally correct, as well as
appropriately point out to the Court its very own words that Defendants’
dismissal motion was “well taken and should be granted.” [Doc. 24 at 1].
Had the Court, in the first instance, entered a dismissal order, robust
in its analysis, cogently resolving the issues raised by the parties, the Court
would be very reluctant to replow furrowed ground. But such is not the
present state of affairs in this litigation and the parties deserve a clear
understanding of why this Court (or any court) reached the decision that it

13

did. Given, too, the admonition4 that dismissal orders entered pursuant to
Rule 12(b)(6) should not be rendered by default, the Court will exercise its
discretion, expand on its previous spartan order, and endeavor to provide
the parties a sound basis for its decision.
1. Plaintiffs’ Claim for Punitive Damages.
A federal court sitting in diversity must apply the substantive law of
the forum state as would the highest court of that state. Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938); Castillo v. Emergency Med. Assocs. P.A.,
372 F.3d 643, 646 (4th Cir. 2004).

Defendants’ Renewed Motion to

Dismiss [Doc. 18] asserts that Plaintiffs’ First Amended Complaint, in
seeking punitive damages, fails to allege any facts that would support such
an award. [Id. at 1]. Ultimately, Defendants are correct as a matter of law.
To be fair, however, North Carolina negligence terminology, especially
since the advent of the State’s statutorily defined punitive damages
remedy, can appear less than precise in demarcating between the type of
conduct that falls within the parameters of a negligence cause of action,

See, 2 James Wm. Moore, et al., Moore’s Federal Practice § 12.34(1)(a) (3d ed. 2013)
(“A court may not grant a [rule 12(b)(6)] motion to dismiss on a ‘default’ basis merely
because the opposing party has failed to submit a memorandum in opposition to the
motion.”); see also, Issa v. Comp USA, 354 F.3d 1174, 1177-1178 (10th Cir. 2003)
(district court erred by dismissing complaint under rule 12(b)(6) merely because plaintiff
failed to file response to motion to dismiss that was required by local rule).
14
4

and the kind of conduct that will support an award for punitive damages in a
negligence action.
In North Carolina, the terms, “slight negligence,” “negligence,” and
“gross negligence,” can be traced at least as far back to the State’s
Supreme Court bailment decision handed down nearly 100 years ago in
Haynes v. Shapiro & Smith, 168 N.C. 24, 84 S.E. 33 (1915). While the
Haynes case reached the court on a breach of warranty claim following the
sale, and subsequent improper repair, of a piece of furniture, the court
quickly observed that the matter was in law a case of negligence by the
bailee/seller to whom the furniture was returned for repair.

The court

began by noting that “[t]he rights and liabilities of the parties to a bailment,
as we have said, depend primarily upon which party the bailment is
intended to benefit.” Id., 84 S.E. at 35. The court explained that bailments
may be divided into three categories, bailments that benefit: (1) the bailor,
(2) the bailee, or (3) both parties mutually. With these distinctions in place,
the court first stated the corresponding historical duties of care owed by a
particular bailee but ultimately recognized that a single duty of care obtains
in cases of negligence:
In bailments for the sole benefit of the bailor, the bailee will be
liable only for gross negligence; in bailments for the mutual
benefit of both parties, he will be liable for ordinary negligence;
15

in bailments for the exclusive benefit of the bailee, he will be
liable even for slight negligence. This distinction, and the
consequent distinction into three degrees of negligence, has
been perpetuated in text-books and decisions, until it has
become so interwoven with the law of bailments that it is
impossible to discard it, though it has been frequently, severely,
and perhaps, in some respects, justly, criticized. It certainly may
be misleading, if not properly considered. “Negligence” may be
defined generally as the breach of a duty to exercise
commensurate care, and, to be actionable, it must proximately
result in damage.
******
Nevertheless, the terms “slight negligence,” “gross negligence,”
and “ordinary negligence” are convenient terms to indicate the
degree of care required; but, in the last analysis, the care
required by the law is that of the man of ordinary prudence.
This is the safest and best rule, and rids us of the technical and
useless distinctions in regard to the subject; ordinary care being
that kind of care which should be used in the particular
circumstances and is the correct standard in all cases. It may
be high or low in degree, according to circumstances, but is, at
least, that which is adapted to the situation.

Id., 84 S.E. at 35-36 (citations omitted).
Pursuant to North Carolina law, if Defendants were merely negligent,
their negligence could be overcome by a showing of any contributory
negligence on the part of Plaintiffs, which would bar any recovery by
Plaintiffs. Tyson v. Ford, 288 N.C. 778, 782, 47 S.E.2d 251, 254 (1948). If,
however, Defendants’ acts and omissions constitute gross negligence,
such gross negligence would overcome any contributory negligence by
16

Plaintiffs, and Plaintiffs could proceed forward on their negligence claims.
Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971).
Prior to 1996 when the parameters of punitive damages were
controlled by North Carolina common law, a plaintiff’s proof of “gross
negligence” could suffice to support an award of punitive damages.
Horton v. Carolina Coach Co., 216 N.C. 567, 5 S.E.2d 828, 830 (1939) (if
the tort is the result of simple negligence damages will be compensatory,
but if it was willful, or committed with such circumstances as show gross
negligence, punitive damages may be given). Thereafter, North Carolina
courts began expanding the concept of “gross negligence” to include
elements of “willfulness” and “wantonness,” especially in the context of
punitive damages. Marsh v. Trotman, 96 N.C. App. 578, 580, 386 S.E.2d
447, 448 (1986).
On January 1, 1996, North Carolina adopted a punitive damages
statute, N.C. Gen. Stat. § 1D-1 to 1D-50. This legislation now dictates
when, and to what extent, a plaintiff may recover punitive damages. In
particular:
Punitive damages may be awarded only if the claimant proves
that the defendant is liable for compensatory damages and that
one of the following aggravating factors was present and was
related to the injury for which compensatory damages were
awarded:
17

(1) Fraud.
(2) Malice.
(3) Willful or wanton conduct.

N.C. Gen. Stat. § 1D–15(a). The existence of any aggravating factor must
be proven by clear and convincing evidence. N.C. Gen.Stat. § 1D–15(b).
In the present matter, if Defendants’ conduct and omissions rose to the
level of willful or wanton behavior, Plaintiffs could be entitled to an award of
punitive damages. N.C. Gen. Stat. § 1D–5(7) defines “[w]illful or wanton
conduct” as “the conscious and intentional disregard of and indifference to
the rights and safety of others, which the defendant knows or should know
is reasonably likely to result in injury, damage, or other harm. ‘Willful or
wanton conduct’ means more than gross negligence.”5

Id. (emphasis

added).
Plaintiffs have asserted, as the sole statutory aggravating factor at
issue, the Defendants’ alleged willful or wanton conduct. [Doc. 14 at ¶¶ 22,
24, 26]. As it pertains to Elyse, Plaintiffs allege she should be subject to
punitive damages because her behavior at the time of the collision with
5

To add to the nebulous nature of the conduct interchangeably described as gross
negligence and willful and wanton behavior, even after 1996, a plaintiff’s proof of “gross
negligence,” strictly speaking, will defeat a defendant’s claim of contributory negligence
though, statutorily, is no longer sufficient to support an award of punitive damages.
Yancey v. Lea, 354 N.C. 48, 550 S.E.2d 155 (2001).
18

Bostic was willful and wanton in two respects: (1) “she attempted to stop
her vehicle but that her brakes were not working[,]” and “she knew or had
reason to know her brakes were not properly working.” [Doc. 14 at ¶¶ 16,
21(g)]; and, (2) “[s]he operated her vehicle while utilizing a cellular phone in
which [sic] was careless, willful, and/or wanton conduct in violation NCGS
20-137.4A.” [Doc. 14 at ¶ 21(f)].
Turning to Plaintiffs’ claims against Johanna, since vicarious liability
is an impermissible ground to sustain an award of punitive damages, N.C.
Gen. Stat. § 1D-15(c), Plaintiffs have alleged Johanna’s behavior was
willful and wanton because, “[u]pon information and belief, Johanna Mader,
as owner of the vehicle, knew or had reason to know of the failure of the
brakes but continued to utilize and permit the use of the vehicle regardless
of this knowledge.” [Doc. 14 at ¶¶ 17, 22].

Purely from the standpoint of

setting forth allegations in the Complaint that match the requirements of the
North Carolina punitive damages statute, Plaintiffs have employed the
“magic words” that restate the elements. The inquiry, however, does not
end at this point.
In the Complaint, the bulk of Plaintiffs’ punitive damages allegations
involve the Defendants’ alleged knowledge of the braking system of the Kia
owned by Johanna and driven by Elyse that collided with Bostic.
19

The

nature of the “willful and wanton” conduct, Plaintiffs would contend, runs
like this: The Kia’s brakes were not working properly on the day of the
collision; that they had not been working properly for some period of time
prior to the day of the collision; that they had not been working properly for
a long enough period of time prior to the day of the collision to put both
Defendants on notice of their faulty state; and, that Defendants knowing (or
having reason to know) the then-dangerous condition of the Kia’s brakes,
Defendants engaged in behavior constituting a conscious and intentional
disregard of and indifference to the rights and safety of others by driving (or
permitting another to drive) the Kia under the circumstances. Plaintiffs,
however, have pleaded no facts to substantiate this claim.
As Defendants and Nationwide point out [Doc. 19 at 4], Plaintiffs’
reliance on Elyse’s allegations that she told the investigating officer at the
scene that “she attempted to stop but the brakes were not working[,]” [Doc.
14 at ¶ 16], is factually insufficient. Elyse’s statement is a present sense
impression and gives no hint that Elyse knew, prior to the collision, that the
Kia’s brakes were faulty.

Plaintiffs attempt to elaborate on Elyse’s

statement by alleging “Defendant Elyse Mader admitted to the police that
her mother’s vehicle has ‘kind of bad brakes so I slid a little out into the
road.’” [Doc. 26 at 2]. The Plaintiffs, however, do not make this allegation
20

in their Amended Complaint; this allegation comes in “Plaintiff’s [sic]
Response to Defendants’ Renewed Motion to Dismiss” [Doc. 26], which is
not a pleading under Rule 7(a). As such, the Court must disregard it since
a Rule 12(b)(6) motion challenges the sufficiency of the pleadings only.
See Davis v. Cole, 999 F.Supp 809, 813 (E.D. Va. 1998) (holding court
cannot consider plaintiff’s additional allegations contained in response to
motion to dismiss filed under Rule 12(b)(6) because such memoranda do
not constitute pleadings under Rule 7(a)).
With regard to Johanna, Plaintiffs’ allegations fare no better. Plaintiffs
simply allege:
17. Upon information and belief, Johanna Mader, as owner of
the vehicle, knew or had reason to know of the failure of the
brakes but continued to utilize and permit the use of the vehicle
regardless of this knowledge.
[Doc. 14 at 3]. Nowhere in the Amended Complaint do Plaintiffs state how
Johanna “knew or had reason to know of the failure of the brakes,” nor
when Johanna knew this information. This Court is “not bound to accept as
true a legal conclusion couched as a factual allegation[.]” Iqbal, 556 U.S. at
678. Put another way, while it is possible that Johanna, as the owner of the
Kia, knew or should have known the condition of the Kia’s brakes, Plaintiffs
have stated no factual basis to indicate why it is plausible for a trier of fact
21

to believe so.
premised

upon

The dismissal of Plaintiffs’ punitive damages claims
the

Kia’s

alleged

faulty

braking

system,

upon

reconsideration, will therefore not be disturbed.
Plaintiffs alleged a second theory, this one against Elyse only, in an
effort to support their claim for punitive damages. The Plaintiffs state:
18. Plaintiff J.B., riding along with his sister, was in the
immediate zone of the incident: He witnessed and observed the
collision and the conduct of Defendant Elyse Mader when she
struck Elizabeth Bostic, and witnessed Defendant Elyse Mader
operating a cellular phone immediately before the collision.
[Doc. 14 at 3]. In support of their punitive damages claim based on this
allegation, Plaintiffs assert Elyse “operated her vehicle while utilizing a
cellular phone in which [sic] was careless, willful, and/or wanton conduct in
violation NCGS 20-137.4A.” [Id. at 4]. Plaintiffs’ damages theory on this
basis is precluded for two reasons.

First, Plaintiffs state Elyse was

“operating a cellular phone immediately before the collision.” Under the
North Carolina law cited by the Plaintiffs, N.C. Gen. Stat. § 2-137.4A, a
motor vehicle operator is prohibited from using a cellular phone to read
email or to send and receive electronic messages — activity commonly
known as “texting” — while driving the vehicle. Exempted from coverage
under this statute, however, is a driver’s privilege to retrieve any name or
telephone number stored in the cellular phone and to permit the driver to
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place a call while driving. N.C. Gen. Stat. § 2-137.4A(a)(2). Here again,
Plaintiffs have alleged in their Amended Complaint a legal conclusion but
no facts that support a violation of this statute. Plaintiffs employ the vague
phrases “operating a cellular phone” and “utilizing a cellular phone” which
connote no definitive activity. [Doc. 14 at ¶¶ 18, 21(f)]. While it is possible,
immediately prior to her collision with Bostic, that Elyse was unlawfully
texting with another person and not searching her phone for the name or
telephone number of a person to call, it is equally plausible, without any
additional factual information, that she could have been doing the latter.
Given the competing plausibilities, the claim must fail for want of factual
sufficiency.
Second, assuming the Court could bridge the factual gap between
the possibility of Elyse texting and the plausibility of her doing so at the time
of the collision, which it cannot do, the statute cited by the Plaintiffs
preempts their claim. In enacting N.C. Gen. Stat. § 2-137.4A, the North
Carolina legislature saw fit to exempt the activity of “texting” from the
general rule that laws passed for the safety of the public automatically
impose a duty of care, the violation of which is negligence in and of itself.
The pertinent part of the anti-texting statute provides:

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Failure to comply with the provisions of this section shall not
constitute negligence per se or contributory negligence per se
by the operator in an action for the recovery of damages arising
out of the operation, ownership, or maintenance of a vehicle.

N.C. Gen. Stat. § 2-137.4A(c), ¶2.

Ordinarily, a standard of conduct

established by a safety statute must be followed. Where the safety statute
at issue provides to the contrary as it pertains to civil liability, however,
violation of the statute, without more, does not constitute negligence at all.
Hinnant v. Holland, 92 N.C. App. 142, 147, 374 S.E.2d 152, 155 (1988),
appeal denied, 324 N.C. 335, 378 S.E.2d 792 (1989). Consequently,
assuming Plaintiffs had properly pled, and could persuasively prove, that
Elyse was “texting” in violation of N.C. Gen. Stat. § 2-137.4A at the time of
her collision with Bostic, such evidence standing alone would be insufficient
as a matter of law to sustain a negligence verdict in favor of Plaintiffs on
this theory.

Likewise, it could not support a finding if willful or wanton

conduct and therefore will not support a claim for punitive damages.
Looking to the remaining allegations of Plaintiffs’ Amended Complaint
in an effort to discern any basis for punitive damages, the Court determines
none exist. Plaintiffs contend that the collision forming the basis of this
action and Plaintiffs' resulting injuries were the result of Defendants'
negligence. The Amended Complaint contains a laundry list of potential
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negligent acts allegedly done by Defendants but, other than the acts
previously discussed, none sound the alarm of willful and wanton conduct.
Accordingly, all bases of Plaintiffs’ claims for punitive damages are
insufficient mechanisms to afford relief, and upon reconsideration of
Defendants’ motion in this regard, will therefore be dismissed.
2. Plaintiffs’ Claim Against Defendant Johanna Mader.
Under North Carolina law, an owner of a motor vehicle is liable for
damages caused by the failure of her brakes if a claimant can allege and
prove that she “knew or in the exercise of reasonable care should have
known that the brakes were defective.” Mann v. Knight, 83 N.C. App. 331,
333, 350 S.E.2d 122, 124 (1986). While N.C. Gen. Stat. § 20-124 requires
motorists to maintain brakes in good working order, and the failure to do so
is negligence per se, Plaintiffs have alleged only that Elyse was negligent in
operating the vehicle on the day of collision with faulty brakes. Plaintiffs’
theory of Johanna’s liability rises or falls based upon her fund of knowledge
concerning the history of the Kia’s braking system prior to the wreck.
Plaintiffs allege that:
17. Upon information and belief, Johanna Mader, as owner of
the vehicle, knew or had reason to know of the failure of the
brakes but continued to utilize and permit the use of the vehicle
regardless of this knowledge.
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[Doc. 14 at 3]. This conclusory allegation is factually insufficient to state a
claim. Simply being the purported owner of a vehicle, without any factual
assertion that would place a reasonable and prudent person on notice that
a vehicle’s brakes were inoperable, will not carry the day. “[T]he mere fact
that one's brakes failed is not enough to establish a breach of the duty of
due care. Where a brake failure is sudden and unexpected and could not
have been discovered even with reasonable inspection, the motorist will not
be held liable.” Mann, 83 N.C. App. at 333, 350 S.E.2d at 124.
In this matter, Plaintiffs have not alleged that the Kia’s brake failure
was anything but sudden and unexpected.

[Doc. 14 at 3] (“Defendant

Elyse Mader advised the responding law enforcement officer that she
attempted to stop her vehicle but that her brakes were not working.”).
Because Plaintiffs have not alleged any facts that, deemed true, would lead
one plausibly to believe that the Kia’s brakes were faulty prior to the
collision and that Johanna knew or should have known of their deficient
condition, Plaintiffs have not alleged any actionable negligence by Johanna
Mader. Since this is the only claim asserted against Defendant Johanna
Mader, and it fails as a matter of law, she should be dismissed as a party
Defendant in his action.

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ORDER
IT

IS,

THEREFORE,

ORDERED,

that

Plaintiffs’

Motion

for

Reconsideration [Doc. 29] is GRANTED, and upon reconsideration, the
Court’s Order [Doc. 24] granting Defendants’ Renewed Motion to Dismiss
Plaintiffs’ Claims for Punitive Damages and Plaintiffs’ Claims against
Defendant Johanna Mader in the First Amended Complaint [Doc. 18] is
hereby AFFIRMED.

Both the Plaintiffs’ claims for punitive damages

against the Defendants, and the Plaintiffs’ claims against Defendant
Johanna Mader, are DISMISSED.
Signed: August 12, 2013

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