Nestor v. Everlast Roofing, et al.

Filing 77

ENTRY AND ORDER OVERRULIING DEFENDANTS' OBJECTION TO PLAINTIFFS' DIRECT CLAIM FOR NEGLIGENCE AGAINST EVERLAST ROOFING: Plaintiffs are permitted to present their direct negligence claim against Everlast. Their Complaints allege a direct negligence claim against Everlast sufficient to meet the notice pleadings standards under Ohio law. Signed by Judge Thomas M. Rose on 10/12/18. (ep)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SCOTT NESTOR, Administrator for
the Deceased on behalf of Katlynn Nestor,
and
HEATHER HINES, Administrator for
the Deceased on behalf of Hudson Nestor,
Plaintiffs,
- vs EVERLAST ROOFING, INC., and
JAMES DUNKEL,
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:
:
:

Case No. 3:17-cv-93
Judge Thomas M. Rose

ENTRY AND ORDER OVERRULIING DEFENDANTS’ OBJECTION TO
PLAINTIFFS’ DIRECT CLAIM FOR NEGLIGENCE AGAINST
EVERLAST ROOFING
This is a negligence action under Ohio law, which proceeded to trial on October 9, 2018.
Prior to the commencement of trial, Defendants objected to Plaintiffs’ assertion of a claim that
Defendant Everlast Roofing, Inc. (“Everlast”) “was negligent in allowing an unsafe vehicle on the
roadway, a vehicle that did not meet the minimum safety standards with respect to the required
reflective tape on a vehicle.” (Doc. 47, Plaintiffs’ Proposed Inst. No. 6.) After a brief hearing
during which the parties presented oral argument on the issue, the Court overruled Defendants’
objection. This Entry and Order memorializes the reasons for the Court’s ruling.
Defendants argued that neither Plaintiff asserted a direct negligence claim against Everlast
in their Complaint.

Defendants acknowledged, however, that Plaintiffs alleged claims for

negligent entrustment and vicarious liability based on Defendant James Dunkel’s operation of the
tractor-trailer involved in the car accident. Defendants therefore argued they did not have proper
notice of the direct negligence claim and it would be unfair to permit Plaintiffs to assert it at trial.
Plaintiffs countered that their Complaints’ allegations placed Defendants on notice of a

direct negligence claim, even if such a claim was not expressly articulated. Plaintiffs filed their
Complaints in Ohio state court, where only notice pleading is required. Plaintiffs further argued
that they have litigated this case based on their assertion of direct negligence claims against both
Dunkel and Everlast. They argue that Defendants’ notice of the claim against Everlast is
demonstrated by the parties’ Joint Pretrial Statement (Doc. 33), filed July 16, 2018, in which
Plaintiffs expressly stated that they were alleging a negligence claim against Dunkel and Everlast
for having an unsafe vehicle on the roadway. Finally, Plaintiffs argued that, in any event, they
would be permitted under the rules to amend their Complaints to conform to the evidence, which
supports a direct negligence claim against Everlast.
As the Court ruled from the bench, Plaintiffs are permitted to present their direct negligence
claim against Everlast. Their Complaints allege a direct negligence claim against Everlast
sufficient to meet the notice pleadings standards under Ohio law. Cincinnati v. Beretta U.S.A.
Corp., 2002-Ohio-2480, ¶ 29, 95 Ohio St. 3d 416, 423, 768 N.E.2d 1136, 1146 (“Ohio law does
not ordinarily require a plaintiff to plead operative facts with particularity.”). For example, the
Estate of Katlynn Nestor’s Complaint contains the allegation that “[a]t the time of the collision
described herein, the semi-tractor trailer operated by the Defendants was knowingly being operated
in violation of the Federal National Traffic and Motor Vehicle Safety Act.” (K. Nestor Complaint
at ¶7.) The reference to Defendants in this allegation includes both Dunkel and Everlast.
Defendants took issue with an incorrect allegation in Katlynn Nestor’s Complaint that Everlast
owned the tractor-trailer. (Id. at ¶6.) This allegation, even if incorrect, should not have changed
Everlast’s awareness that Katlynn Nestor’s Estate sought to hold it accountable for the tractortrailer’s alleged violations of the motor vehicle safety laws.
The Complaint for Hudson Nestor’s Estate alleges that Dunkel was “driving a semi-tractor
trailer owned by Defendant, Everlast Roofing, Inc.” (H. Nestor Complaint at ¶6.) The Complaint
expressly alleges only claims for vicarious liability and that Everlast “negligently entrusted the
vehicle to Defendant, James Dunkel, an inexperienced and incompetent driver.” (Id. at ¶8.)
Even though Hudson’s Nestor’s Complaint does not explicitly allege a direct negligence
2

claim against Everlast, Plaintiffs are correct that they could obtain leave to amend. Federal Rule
of Civil Procedure15(b)(1) provides that “[i]f, at trial, a party objects that evidence is not within
the issues raised in the pleadings, the court may permit the pleadings to be amended.” It continues:
“The court should freely permit an amendment when doing so will aid in presenting the merits and
the objecting party fails to satisfy the court that the evidence would prejudice that party’s action
or defense on the merits.” Fed. R. Civ. P. 15(b)(1). In this case, permitting Hudson Nestor to
amend is warranted because Plaintiffs pursued discovery supporting their direct negligence claim
against Everlast and Everlast has been aware of Plaintiffs’ intention to pursue it.
Plaintiffs originally filed separate lawsuits in state court. Those actions were removed
pursuant to this Court’s diversity jurisdiction and consolidated into one action. Thus, Defendants
were aware that a trial in this action might include a direct negligence claim by Katlynn Nestor
against Everlast. Consistent with their duties under the Ohio Rules of Professional Conduct,
Defendants’ counsel would have prepared their defense based on the expectation that Plaintiffs
would pursue such a claim at trial. Preparation of their defense would have been the same
regardless of whether one Estate or both Estates asserted the claim. Discovery put Everlast on
notice that Plaintiffs alleged negligent operation and maintenance of the tractor-trailer. That
Everlast was in fact on notice of the claim is demonstrated by the parties’ Joint Pretrial Statement.
In that document, Plaintiffs state that their claims include that Dunkel and Everlast were negligent
for having an unsafe vehicle on the roadway. As a Joint Pretrial Statement, counsel for each of
the parties were signatories.
For all these reasons and to facilitate the trial of this action on the merits, the Court found
that Plaintiffs are permitted to proceed on their direct negligence claim against Everlast.
Defendants’ objection was therefore overruled.
DONE and ORDERED in Dayton, Ohio, this Friday, October 12, 2018.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
3