Kennedy v. Riffle et al

Filing 19

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS COUNT TWO: It is ORDERED that Defendants' 15 Motion to Dismiss is hereby GRANTED and the Court DISMISSES Count Two of the Amended Complaint. Signed by District Judge Irene M. Keeley on 8/25/15. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CHARLES BLAKE KENNEDY,
Plaintiff,

v.

//

CIVIL ACTION NO. 1:15CV87
(Judge Keeley)

GREGORY RIFFLE; WERNER
ENTERPRISES, INC., a
corporation,
Defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT TWO [DKT. NO. 15]
On July 22, 2015, the defendants, Gregory Riffle (“Riffle”)
and Werner Enterprises, Inc. (“Werner”) filed a motion to dismiss
Count Two of the amended complaint filed by the plaintiff, Charles
Blake Kennedy (“Kennedy”).

For the reasons that follow, the Court

GRANTS the motion and DISMISSES Count Two of the amended complaint.
FACTUAL BACKGROUND
As it must, the Court accepts the factual allegations in
Kennedy’s amended complaint as true for purposes of the motion to
dismiss.

Zak v. Chelsea, 780 F.3d 597, 601 (4th Cir. 2015)(citing

Matrix Capital Mgmt. Fund, LP v. Bearing Point, Inc., 576 F.3d 172,
176 (4th Cir. 2009)).

On May 7, 2013, Kennedy pulled over on the

shoulder of Interstate 79 to repair a tire on his vehicle (Dkt. No.
14 at 2).

Riffle, an employee of Werner, was driving a tractor

KENNEDY V. RIFFLE

1:15CV87

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT TWO [DKT. NO. 15]
trailer northbound on Interstate 79 at a high rate of speed, when
he drifted onto the right shoulder and struck Kennedy. Id. at 2-3.
As a result of the collision, Kennedy suffered permanent trauma to
his left arm, depression and anxiety, severe emotional distress,
shock with injury and damage to the nerves and nervous system, and
other serious and permanent injuries.

Id. at 6.

On May 26, 2015, Kennedy filed a complaint in the Circuit
Court of Monongalia County, West Virginia, alleging one count of
negligence and one count of reckless and wanton conduct (Dkt. Nos.
5-2 at 1, 6).

On May 19, 2015, Riffle and Werner removed the case,

invoking this Court’s diversity jurisdiction (Dkt. No. 1 at 2).
Riffle and Werner had previously filed an almost identical motion
to dismiss Count Two (Dkt. No. 4), which the Court denied as moot
on July 2, 2015. That ruling followed a scheduling conference
during which the Court had given Kennedy an opportunity to amend
his complaint to cure the deficiencies in Count Two (Dkt. No. 13).
Kennedy filed his amended complaint on July 10, 2015, again
alleging one cause of action for negligence and one cause of action
for reckless and wanton conduct (Dkt. No. 14 at 7-8).

On July 22,

2015, Riffle and Werner moved to dismiss Count Two, alleging that
Kennedy had failed to plead sufficient facts to support his claim
2

KENNEDY V. RIFFLE

1:15CV87

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT TWO [DKT. NO. 15]
of reckless and wanton conduct (Dkt. No. 15 at 2).

Kennedy filed

a brief opposing the motion to dismiss on August 5, 2015 (Dkt. No.
17).

The

next

day,

August

6,

2015,

the

Court

adopted

the

stipulation of the parties and consolidated this case with Shulin
v.

Werner,

Case

No.

1:15CV95.

Because

this

motion

pre-dated

consolidation, however, the Court finds it appropriate to take it
up separately.
LEGAL STANDARD
In reviewing the sufficiency of a complaint pursuant to Fed.
R. Civ. P. 12(b)(6), a district court must accept the factual
allegations in the complaint as true.
a

complaint

does

not

need

Zak, 780 F.3d at 601.

detailed

factual

While

allegations,

a

plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell

Indeed, courts

“are not bound to accept as true a legal conclusion couched as a
factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

In considering whether the facts alleged are sufficient, “a
complaint must contain ‘enough facts to state a claim to relief
that is plausible on its face.’”

Anderson v. Sara Lee Corp., 508
3

KENNEDY V. RIFFLE

1:15CV87

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT TWO [DKT. NO. 15]
F.3d 181, 188 (4th Cir. 2007) (quoting Twombly, 550 U.S. at 547).
“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. 662, 678 (2009).

Ashcroft v.

This requires “more than a sheer

possibility that a defendant has acted unlawfully.”

Id.

ANALYSIS
Riffle and Werner argue that Kennedy has pleaded mere legal
conclusions in support of his claim of reckless and wanton conduct
(Dkt. No. 15 at 2). Count Two of the amended complaint alleges that
Riffle, who was not watching the road, “intentionally crossed the
solid white line on the right northbound lane of Interstate 79,”
drove onto the shoulder, and struck him (Dkt. No. 14 at 7).
Kennedy further asserts that, although Riffle became aware of his
presence on the shoulder of the road, he was driving at a high rate
of speed.

Id. at 8.

According to Kennedy, these facts suffice to

support a claim for reckless and wanton conduct (Dkt. No. 17-1 at
2).
In

West

Virginia,

a

plaintiff

may

recover

punitive

or

exemplary damages when the defendant acted with wanton and reckless
disregard of his rights.

Pendleton v. Norfolk & W. Ry. Co., 95
4

KENNEDY V. RIFFLE

1:15CV87

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT TWO [DKT. NO. 15]
S.E. 941, 944 (W. Va. 1918).
outrage

must

establish

the

A plaintiff alleging the tort of
following

elements:

(1)

that

the

defendant’s conduct was intentional or reckless; (2) that the
conduct was outrageous or intolerable, meaning that it offends
generally accepted standards of decency or morality; (3) a causal
connection between the defendant’s conduct and the plaintiff’s
emotional

distress;

distress was severe.

and,

(4)

that

the

plaintiff’s

emotional

Hosaflook v. Consolidation Coal Co., 497

S.E.2d 174, 185 (W. Va. 1997).
Courts have long distinguished between wanton or willful
conduct and mere negligence. Groves v. Groves, 158 S.E.2d 710, 713
(W. Va. 1968).

Negligence “conveys the idea of heedlessness,

inattention, inadvertence; wilfulness and wantonness convey the
idea of purpose or design, actual or constructive.”

Id. (quoting

Thomas v. Snow, 174 S.E. 837, 839 (W. Va. 1934)).

See Kelly v.

Checker White Cab, 50 S.E.2d 888, 893 (W. Va. 1948) (finding no
basis for punitive damages when the defendant drove a taxicab in
icy conditions, slipping and skidding, at a speed of about 50 to 56
miles per hour).
At the scheduling conference, the Court expressed its concern
that Kennedy had essentially pleaded a negligence claim, rather
5

KENNEDY V. RIFFLE

1:15CV87

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS COUNT TWO [DKT. NO. 15]
than facts supporting a claim of outrage. In his amended complaint,
filed to remedy the deficiencies of the original complaint, Kennedy
failed to allege any new facts, asserting only that the Court can
infer malice from Riffle’s inattentiveness to the roadway that
caused him to drift over the white line and strike Kennedy (Dkt.
No. 17-1 at 5).
In the Court’s view, Kennedy’s claim sounds in negligence; it
is absolutely devoid of any factual allegations that Riffle’s
conduct was outrageous or intolerable.
185.

Hosaflook, 497 S.E.2d at

It therefore GRANTS Riffle and Werner’s motion and DISMISSES

Count Two of the amended complaint.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: August 25, 2015.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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