Wilson v. McEwen et al

Filing 30

MEMORANDUM OPINION. Signed by Judge Norman K. Moon on February 9, 2015. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION

STEVE D. WILSON,

CASE NO. 6:14-cv-00033
Plaintiff,

v.

BRIAN MCEWEN,
CHURCH TRANSPORTATION & LOGISTICS, INC.,

Memorandum Opinion
JUDGE NORMAN K. MOON

Defendants.
Plaintiff Steve Wilson (“Plaintiff”) filed this tort action on January 28, 2014. In his
complaint, he asserts a single claim of negligence against Defendant Brian D. McEwen and seeks
to hold McEwen’s employer, Defendant Church Transportation & Logistics, Inc., vicariously
liable for McEwen’s negligence.

This matter is before me on Defendant Church

Transportation’s (“Defendant”) motion for judgment on the pleadings (docket no. 17), in which
it argues Plaintiff’s claim is barred under the doctrine of contributory negligence. Because the
pleadings do not show, as a matter of law, that Plaintiff was guilty of contributory negligence
which was a proximate cause of his own injuries, I will deny Defendant’s motion.
I. STATEMENT OF ALLEGED FACTS
While driving a commercial tractor trailer up a hill in the right lane of Interstate 81,
Plaintiff’s tractor “overheated and became disabled in an area with no right or left shoulder.”
Pl.’s Compl. ¶ 5. He “immediately called for help and after completing these calls, [he] began
the process of setting up the warnings on the interstate highway.” Id. Before he could step out
of his vehicle to set up the warnings, he saw “a commercial tractor trailer approaching from the
rear at a high rate of speed.” Id. This tractor trailer, driven by Defendant Brian McEwen, then

1

crashed directly into the left rear of Plaintiff’s tractor trailer. The crash caused both tractor
trailers to burst into flames and resulted in the death of Brian McEwen and injuries to Plaintiff.
II. LEGAL STANDARD
A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure
12(c) is judged under the same standard that is applied when ruling on a motion to dismiss
pursuant to Rule 12(b)(6). Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 405–06
(4th Cir. 2002); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In considering
a motion to dismiss under Rule 12(b)(6) or Rule 12(c), the Court must assume that the
allegations in the non-moving party’s pleadings are true and construe all facts in the light most
favorable to the non-moving party. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th
Cir. 1992). Legal conclusions in the guise of factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950–51 (2009). Although a complaint
“does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a
cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and quotations omitted). Thus, “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Id. In sum, a plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570. Consequently, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Iqbal, 129 S. Ct. at 1950.
III. DISCUSSION
Defendant argues that Plaintiff’s decision to “call for help” rather than “immediately
plac[e] warning devices on the roadway to signal and warn approaching drivers” constitutes
contributory negligence as a matter of law and is a bar to recovery. Under Virginia law, a

2

plaintiff’s contributory negligence acts as a complete bar to recovery. Gravitt v. Ward, 518
S.E.2d 631, 634 (Va. 1999). To prevail on such a claim, the burden rests on the defendant to
show the plaintiff’s injuries were proximately caused by his own negligence. Id. Ordinarily, the
issues of contributory negligence and proximate cause are to be decided by a fact finder. Meeks
v. Hodges, 306 S.E.2d 879, 881 (Va. 1983). However, where reasonable minds “may draw but
one conclusion from the facts, they become questions of the law for the court.” Richmond
Greyhound Lines, Inc. v. Brown, 128 S.E.2d 267, 269 (Va. 1962) (citations omitted).
a. Plaintiff’s Negligence
Defendant’s motion first fails because Plaintiff’s pleadings do not demonstrate, as a
matter of law, that he acted in a negligent manner prior to the accident. Defendant argues that
Plaintiff was negligent when he allegedly violated the Federal Motor Carrier Safety Regulations
(“Regulations”). The relevant portion of this statute provides that “[w]henever a commercial
motor vehicle is stopped upon the traveled portion . . . of a highway . . . for any cause other than
necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes,
place [] warning devices” on the roadway in the manner prescribed by the Regulations. 49
C.F.R. § 392.22(b)(1). In Virginia, the violation of such a statute “is ample proof of negligence.”
Savage Truck Line v. Traylor, 69 S.E.2d 478, 482 (Va. 1952). Whether one has violated the
statute, however, can be determined only after examining the “the length of time, prior to an
accident, that a truck had been standing on a highway without the deployment of warning
devices.” Kimberlin v. PM Transport, Inc., 563 S.E.2d 665, 669 (Va. 2002); see also Savage, 69
S.E.2d at 482 (requiring action “as promptly as may be reasonably practicable”).
In Kimberlin, the Virginia Supreme Court squarely addressed the circumstances that
constitute a violation of the Regulations. The driver in Kimberlin “fled the accident scene” after

3

his truck became disabled on U.S. Route 220 in Alleghany County, Virginia. Id. at 667. The
Court nonetheless held that the evidence did not conclusively establish a violation of the
Regulations because “[t]he record . . . [did] not show how much time had elapsed after [the truck
driver’s] vehicle had become disabled and the [approaching vehicle] arrived on the scene.” Id. at
669; accord Roberts v. Mundy, 156 S.E.2d 593, 596-97 (Va. 1967), overruled in part by
Vanlandingham v. Vanlandingham, 188 S.E.2d 96 (Va. 1972) (deeming it a jury question as to
whether a truck driver violated Virginia’s highway safety regulations because there may have
been “insufficient time” for the driver to set up the requiring warnings).
Here, Defendant alleges Plaintiff violated the statute when he “placed multiple phone
calls” following the breakdown of his vehicle “[r]ather than carrying out his mandatory
obligation under the [Regulations] to place warning signals on the roadway ‘as soon as
possible[.]’ ” Def.’s Mem. 4 (citing 49 C.F.R. § 392.22(b)(1)). Plaintiff’s complaint, however,
says nothing about the length of time Plaintiff waited in his cab before Defendant collided with
his tractor trailer. 1 The pleadings thus do not establish “the length of time, prior to [the]
accident, that [Plaintiff’s truck] had been standing on a highway without the deployment of
warning devices,” and are therefore insufficient to establish that Plaintiff acted in a negligent
manner prior to the accident. Kimberlin, 563 S.E.2d at 669.

1

At the hearing on Defendant’s motion, Defendant requested that I take judicial notice of “the 911 records that . . .
indicat[e] the times of [Plaintiff’s] disability” as well as the police report which allegedly identifies the time of the
accident. Transcript of Hearing at 3, Wilson v. McEwen, No. 6:13-cv-00033 (W.D. Va. Feb. 5, 2015). Defendant
does so in an attempt to establish that Plaintiff waited in his cab for more than ten minutes before the collision. Id.
District courts may judicially notice “a fact that is not subject to reasonable dispute because it . . . can be accurately
and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2).
Applying this rule, I cannot take judicial notice of the content in the police report regarding the time of the accident.
The mere fact that a police report indicates that a collision occurred at a particular time is not strict proof thereof.
See Pina v. Henderson, 757 F. 2d 47, 50 (2d Cir. 1985) (holding that the existence and content of a police report are
not properly the subject of judicial notice because they are “not matters beyond dispute”). Accordingly, there is still
a question as to the amount of time that Plaintiff waited in his cab prior to the collision.

4

b. Proximate Cause
Even assuming the pleadings were sufficient to demonstrate negligence as a matter of
law, there is still an issue as to proximate cause. Under Virginia law, the failure to comply with
highway safety regulations is proof of negligence, and “[i]f it efficiently contributes to a collision
and resultant damage to the wrongdoer, he may not recover.” Savage Truck Line, 69 S.E.2d at
482. Ordinarily, the issue of proximate cause in this context is a jury question. See Kimberlin,
563 S.E.2d at 669; Roberts,156 S.E.2d at 596-97; Savage Truck Line, 69 S.E.2d at 482. For
example, in Savage Truck Line, the evidence showed that a tractor trailer “was struck from the
rear” after it became disabled on a Virginia highway. Id. at 479. The tractor trailer had been
standing for at least ten minutes prior to the collision and no “torches or flares had been placed
upon the highway” as required by Virginia’s regulations. Id. The evidence also showed that the
approaching driver “did nothing . . . to avoid striking [the disabled truck] . . . until he had
reached a place on the road dangerously close to that vehicle.” Id. at 481. Given the conflicting
evidence, the Court held that “it was a question for the jury as to whether or not [the truck
driver’s] negligence efficiently contributed to the collision.” Id. (citation omitted).
The pleadings are thus insufficient to show, as a matter of law, that Plaintiff’s injuries
were proximately caused by his own negligence. I will therefore deny Defendant’s motion.
IV. CONCLUSION
For the foregoing reasons, I will deny Defendant’s motion for judgment on the pleadings
(docket no. 17). An appropriate order accompanies this memorandum opinion.
9th
Entered this ________ day of February, 2015.

5