MARTIN REIDINGER, District Judge.
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. [
Plaintiffs allege Elyse negligently entered the intersection of Panther Creek Road and N.C. Highway 28, and in so doing, collided with Bostic. [
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Plaintiffs' First Claim asserts numerous theories of why Elyse was negligent in the operation of the Kia. [
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." [
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. [
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. [
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The Defendants filed an Answer [Doc. 8] to the Complaint [Doc. 1] responding to Plaintiffs' allegations and raised Bostic's contributory 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 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:
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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. [
Plaintiffs' Second Claim
[Id. 6].
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 before
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 whether Bostic's claims are barred by Defendants' affirmative defense of accord and satisfaction/compromise settlement. [
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." [
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." [
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. [
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.
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);
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."
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 did. Given, too, the admonition
A federal court sitting in diversity must apply the substantive law of the forum state as would the highest court of that state.
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
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.
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.
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:
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."
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 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. 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 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.
With regard to Johanna, Plaintiffs' allegations fare no better. Plaintiffs simply allege:
[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[.]"
Plaintiffs alleged a second theory, this one against Elyse only, in an effort to support their claim for punitive damages. The Plaintiffs state:
[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." [
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:
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.
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 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.
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."
[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."
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.
