Parker v. Miller et al
OPINION and ORDER granting in part and denying in part 10 Defendants' Motion to Dismiss. Signed by Judge George C. Smith on 8/24/17. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
SHANICE J. PARKER,
Case No.: 2:16-cv-1143
Magistrate Judge Deavers
ERIC M. MILLER, et al.,
OPINION AND ORDER
This matter is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s Punitive
Damages Claims and Motion to Strike (Doc. 10). Plaintiff opposed Defendants’ Motion (Doc.
14) and Defendants replied in support (Doc. 16). This matter is now ripe for review. For the
following reasons, Defendants’ Motion is GRANTED in part and DENIED in part.
This lawsuit arises out of a car crash on Interstate 70 in Licking County, Ohio, when the
tractor trailer driven by Defendant Eric Miller struck a vehicle in which Plaintiff Shanice Parker
was sitting. Prior to Miller striking Plaintiff, Plaintiff had crashed her car into a wall and her car
was disabled in the right lane on I-70. (Doc. 8, Am. Compl. at ¶¶ 14–15). A highway patrolman
arrived on the scene and parked behind Plaintiff in the right lane of traffic. (Id. at ¶ 16). The
patrolman turned on his emergency lights and set flares in the roadway. (Id. at ¶ 17). While
investigating the initial crash, the patrolman asked Plaintiff to sit in the front seat of his patrol
car. (Id. at ¶ 18).
As Plaintiff was sitting in the patrol car, Miller crested a nearby hill in a tractor-trailer
going 70 miles per hour. (Id. at ¶¶ 20, 25). Miller was driving the tractor-trailer while working
on behalf of Defendant Dakotaland Transportation, Inc. (“Dakotaland”) and/or Defendant
Fowlds Brothers Trucking (“Fowlds”). (Id. at ¶ 6). Dakotaland and/or Fowlds owned the truck
Miller was driving. (Id. at ¶¶ 7–8). Plaintiff alleges that as Miller crested the hill, he had
sufficient time to see the patrol car blocking the right hand lane to stop or to change lanes. (Id. at
¶ 23). Miller applied the brakes two seconds before impact, but did not stop or change lanes and
crashed into the back of the patrol car, causing severe injuries to Plaintiff. (Id. at ¶¶ 26, 28).
Plaintiff brought this case against Miller, Fowlds, and Dakotaland alleging: (1) Miller
negligently operated his vehicle; (2) Miller violated numerous federal and state traffic
regulations; (3) that Dakotaland and Fowlds are vicariously liable for Miller’s actions; (4) that
Dakotaland and Fowlds are strictly liable for Miller’s acts; (5) that Dakotaland and Fowlds
negligently hired, trained, instructed, and supervised Miller; (6) that Dakotaland and Fowlds
violated certain Ohio and federal regulations; and (7) that Dakotaland and Fowlds negligently
entrusted the vehicle to Miller. Plaintiff also seeks punitive damages from all three defendants.
Defendants now move to dismiss the punitive damages claims against each Defendant and to
strike the police report attached to the Amended Complaint.
STANDARD OF REVIEW
Defendants bring this motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, alleging that Plaintiff failed to state a claim upon which relief can be granted. Under
the Federal Rules, any pleading that states a claim for relief must contain a “short and plain
statement of the claim” showing that the pleader is entitled to such relief. Fed. R. Civ. P. 8(a)(2).
To meet this standard, a party must allege sufficient facts to state a claim that is “plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim will be considered
“plausible on its face” when a plaintiff sets forth “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Rule 12(b)(6) allows parties to challenge the sufficiency of a complaint under the
foregoing standards. In considering whether a complaint fails to state a claim upon which relief
can be granted, the Court must “construe the complaint in the light most favorable to the
plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the
plaintiff.” Ohio Police & Fire Pension Fund v. Standard & Poor’s Fin. Servs. LLC, 700 F.3d
829, 835 (6th Cir. 2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)).
However, “the tenet that a court must accept a complaint’s allegations as true is inapplicable to
threadbare recitals of a cause of action’s elements, supported by mere conclusory statements.”
Iqbal, 556 U.S. at 663. Thus, while a court is to afford plaintiff every inference, the pleading
must still contain facts sufficient to “provide a plausible basis for the claims in the complaint”; a
recitation of facts intimating the “mere possibility of misconduct” will not suffice. Flex Homes,
Inc. v. Ritz-Craft Corp of Mich., Inc., 491 F. App’x 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at
Currently before the Court are two motions, Defendants’ Motion to Dismiss the punitive
damages claims and Defendants’ Motion to Strike. The Court will address each in turn.
Motions to Dismiss Punitive Damages Claims
Pursuant to the Ohio Revised Code punitive damages may be awarded after a plaintiff
establishes that “[t]he actions or omissions of that defendant demonstrate malice or aggravated or
egregious fraud, or that defendant as principal or master knowingly authorized, participated in, or
ratified actions or omissions of an agent or servant that so demonstrate.” Ohio Rev. Code
§ 2315.21(C)(1). Both Plaintiff and Defendants identified the correct standard courts have set
forth as defining actual malice:
Actual malice, necessary for an award of punitive damages, is (1) that state of
mind under which a person’s conduct is characterized by hatred, ill will or a spirit
of revenge, or (2) a conscious disregard for the rights and safety of other persons
that has a great probability of causing substantial harm.
Preston v. Murty, 32 Ohio St. 3d 334, 334, 512 N.E.2d 1174, 1174 (1987). “[A]ctual malice can
be inferred from conduct and surrounding circumstances which may be characterized as reckless,
wanton, willful or gross.” Villella v. Waikem Motors, Inc., 45 Ohio St. 3d 36, 37, 543 N.E.2d
464, 467 (1989) holding modified by Moskovitz v. Mt. Sinai Med. Ctr., 69 Ohio St. 3d 638, 635
N.E.2d 331 (1994).
But the actions of a defendant must rise above mere negligence or
recklessness to be considered actual malice. “The focus is on the actor’s conscious disregard of
an almost certain risk of substantial harm.
This distinguishes ‘malicious’ from ‘non-
malicious’ conduct.” Kuebler v. Gemini Transp., No. 3:12-CV-114, 2013 WL 6410608, at *5
(S.D. Ohio Dec. 9, 2013) (Rose, J.) (emphasis added). “The type of aggravated circumstances
sufficient to support an award of punitive damages in a motor vehicle accident case may include
intoxication and deliberate actions to flee the scene or evade responsibility.” MacNeill v. Wyatt,
917 F. Supp. 2d 726, 730 (S.D. Ohio 2013) (Litkovitz, M.J.) (citing Cabe v. Lunich, 70 Ohio St.
3d 598, 640 N.E.2d 159, 163 (1994)).
Punitive Damages against Miller
Plaintiff alleges that Miller’s actions fall into the second category, i.e. that he consciously
disregarded Plaintiff’s safety when he did not stop despite having ample time and visibility.
Miller argues that Plaintiff’s allegations amount to a simple negligence claim because there are
no facts which support an inference of malice. Plaintiff alleges that the patrol car was easily
visible, that Miller knew or should have known the risk and extent of the damage that would be
caused when a tractor-trailer strikes a parked car, and that Miller disregarded this risk when he
increased his speed and otherwise failed to avoid the crash. These facts could allow a factfinder
to infer that Miller knew of the near-certain probability of injury if he did not change lanes or
brake in time to stop. The facts allege that despite this knowledge, he neither changed lanes nor
stopped his vehicle. At this early stage in the proceedings, the Court agrees with Plaintiff that
there are sufficient facts alleged to possibly subject Miller to a claim for punitive damages.
Miller’s Motion to Dismiss Plaintiff’s punitive damages claim is DENIED.
Punitive Damages against the Dakotaland and Fowlds
As noted above, for punitive damages to be assessed against an employer, the employer
must have “knowingly authorized, participated in, or ratified actions or omissions” that constitute
malice. Ohio Rev. Code § 2315.21(C)(1). The Amended Complaint alleges the following
actions of Fowlds and/or Dakotaland:
36. Upon information and belief, due to Defendant Dakotaland and/or Defendant
Fowlds Brothers failure to provide Defendant Miller adequate and necessary
instruction, training, and/or supervision, he caused the harms and injuries to
37. Upon information and belief, due to Defendant Dakotaland and/or Defendant
Fowlds Brothers failure to reasonably hire and/or retain Defendant Miller, he
caused harms and injuries to Plaintiff.
38. Upon information and belief, due to Defendant Dakotaland and/or Defendant
Fowlds Brothers failure to develop, promulgate, and/or enforce policies,
procedures, and rules to ensure Defendant Miller was operating its commercial
motor vehicle in a safe and reasonable manner, he caused the harms and injuries
39. Upon information and belief, Defendant Dakotaland and/or Defendant
Fowlds Brothers violated numerous Federal Motor Carrier Safety Regulations.
40. Upon information and belief, Defendant Dakotaland and/or Defendant
Fowlds Brothers negligently entrusted the other by providing an incompetent
driver to operate the 2013 Kenworth tractor trailer.
41. Defendant Dakotaland and/or Defendant Fowlds Brothers numerous failures
demonstrate a conscious disregard for the rights and safety of Plaintiff and the
motoring public. Furthermore, Defendant Dakotaland and/or Defendant Fowlds
Brothers conduct was with reckless indifference to the consequences to others and
its conduct could cause substantial harm.
(Doc. 8, Am. Compl. at ¶¶ 36–41).
These allegations do not provide facts from which a
factfinder could infer malice. The statute is clear that the principal must knowingly authorize or
participate in the malicious actions of the principal. Even if all of the allegations are true, there
is no allegation that either Fowlds and/or Dakotaland knew that Miller would crash into the
patrol car with malice. While the allegations in the Amended Complaint may allege that Fowlds
and/or Dakotaland violated a duty to reasonably train, hire, or supervise Miller, the allegations
only rise to allegations of ordinary recklessness—insufficient to allege malice. In fact, Plaintiff
alleges that Miller is a professional truck driver who holds a valid commercial driver’s license
from South Dakota (Doc. 8, Am. Compl. at ¶¶ 32–33). Thus, even assuming that Plaintiff’s
allegations are true, Dakotaland and/or Fowlds alleged failures to train and or promulgate certain
policies could not have provided “an almost certain risk of substantial harm” as a claim of malice
requires. Kuebler, 2013 WL 6410608 at *5. The factual allegations currently in Plaintiff’s
Amended Complaint fall short of this high standard. Dakotaland and Fowlds’ Motion to Dismiss
Plaintiff’s claim for punitive damages against them is GRANTED.
Motion to Strike
Defendants next move the Court to strike the police report from Plaintiff’s Amended
Complaint. Defendants argue that the police report is ultimately inadmissible, that it is tediously
long, and that it violates Rule 8(a)(2) of the Federal Rules of Civil Procedure which requires a
short and plain statement of a claim. Last, the Defendants argue that the police report is
prejudicial “because the police report contains details relevant only to the criminal process that
cannot be rebutted by an Answer.” (Doc. 10, Defs.’ Mot. at 8). Plaintiff argues that there is no
undue prejudice to the Defendants and that the police report is clearly relevant to the claims
made in the Amended Complaint.
Rule 12(f) of the Federal Rules of Civil Procedure allows the Court to strike “any
redundant, immaterial, impertinent, or scandalous matter.”
“While motions to strike are
generally disfavored, and should be used sparingly, such motions are within the sound discretion
of the district court.” Ohio Democratic Party v. Blackwell, Case No. 2:04-CV-1055, 2005 U.S.
Dist. LEXIS 18126, at *11 (Aug. 26, 2005) (Marbley, J) (internal quotations omitted). A Rule
12(f) motion to strike is appropriate where it will “eliminate spurious issues before trial and
streamline the litigation.” Id. (citing Ameriwood Indus. Int’l Corp. v. Arthur Andersen & Co.,
961 F. Supp. 1078, 1083 (W.D. Mich. 1997)).
The Court finds that striking the police report would neither streamline the proceedings
nor eliminate spurious issues before trial. Defendants need not rebut the police report because
the report only serves as support for the allegations in the Complaint. It does not form the basis
of allegations on its own. Further, the police report is undoubtedly relevant to the accident
alleged in the Amended Complaint. Last, Defendants arguments regarding the admissibility of
the report are premature. When dealing with motions prior to trial, the Court is capable of
avoiding the “inference that the events described in the Amended Complaint occurred exactly as
the police report described.” (Doc. 16, Reply at 4). Defendants’ Motion to Strike is DENIED.
Based on the foregoing, Defendants’ Motion to Dismiss Plaintiff’s Claim for a punitive
damages is DENIED as to the claims against Miller and GRANTED as to the claims of
Defendants Fowlds and Dakotaland. Defendants’ Motion to Strike is DENIED. The Clerk shall
remove Document 10 from the Court’s pending motions list.
IT IS SO ORDERED.
__/s/ George C. Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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