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Nelson v. Shockley

United States District Court, W.D. Virginia, Big Stone Gap Division

June 5, 2019

GINA NELSON, ET AL., Plaintiffs,
v.
JACKIE A. SHOCKLEY, ET AL., Defendants.

          Richard D. Kennedy, Kennedy Law Office PLLC, Wise, Virginia, for Plaintiff Gina Nelson; Jeremy B. O'Quinn, The O'Quinn Law Office, PLLC, Wise, Virginia, for Plaintiff Rhonda J. Howell.

          Jeffrey P. Miller and Michael E. Harman, Harman, Claytor, Corrigan & Wellman, Richmond, Virginia, for Defendants.

          OPINION AND ORDER

          JAMES P. JONES UNITED STATES DISTRICT JUDGE.

         In separate consolidated lawsuits, plaintiffs Gina Nelson and Rhonda J. Howell bring claims based on negligence, gross negligence, negligence per se, and res ipsa loquitur arising out of a motor vehicle accident with defendant Jackie A. Shockley, who was driving a vehicle for his employer, defendant Paschall Truck Lines, Inc. The defendants have moved to dismiss the claims of gross negligence, negligence per se, and res ipsa loquitur. For the reasons that follow, I will grant the Motions to Dismiss in part, and deny them in part.

         I.

         The Complaints allege the following facts, which I must accept as true for the purpose of deciding the present issues.

         On or about September 6, 2016, plaintiff Rhonda J. Howell was driving a vehicle in which plaintiff Gina Nelson was a passenger. Defendant Jackie A. Shockley was driving a vehicle for his employer, defendant Paschall Truck Lines, Inc. (“Paschall”).

         Howell, who was traveling east on Route 695 in Wise County, Virginia, lawfully stopped her vehicle when she came to an intersection with Route 23. At that time, Shockley was traveling in the right lane of Route 23. While driving through the intersection at which Howell and Nelson were stopped, Shockley's vehicle struck the front bumper of their vehicle, injuring them both. Howell and Nelson allege that the collision occurred because Shockley failed to pay proper attention to the position of his vehicle in its lane, keep a proper lookout, maintain proper control of the vehicle, apply the vehicle's brakes in a proper manner, and give full time and attention to the operation of the vehicle. They also allege that he was operating the vehicle at an excessive rate of speed under the circumstances.

         Howell and Nelson filed separate Complaints in state court against Shockley and Paschall. In their Complaints, Howell and Nelson contend that Shockley was negligent, grossly negligent, and negligent per se in the operation of his vehicle. They also assert that they will rely on the doctrine of res ipsa loquitur. They bring the same claims against Paschall under the doctrine of respondeat superior, alleging that Shockley was driving the vehicle in the course and scope of his employment with Paschall. The defendants timely removed the cases to this court, [1] and they now move to dismiss the claims alleging gross negligence, negligence per se, and res ipsa loquitur.[2] The Motions to Dismiss are ripe for decision.[3]

         II.

         Federal pleading standards require that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In order to survive a motion to dismiss, the complaint must “state[] a plausible claim for relief” that “permit[s] the court to infer more than the mere possibility of misconduct” based upon its “judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In evaluating a pleading, the court accepts as true all well-pled facts and construes those facts in the light most favorable to the plaintiff. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). A complaint does not need detailed factual allegations to survive a motion to dismiss; however, it must have more than labels and conclusions or a recitation of the elements of the cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007).

         The defendants first move to dismiss the plaintiffs' claims based in negligence per se. For plaintiffs to state a claim of negligence per se in Virginia, they must show that (1) the defendant violated a statute that was enacted for public safety; (2) the plaintiff belongs to the class of persons for whose benefit the statute was enacted, and the harm that occurred was of the type against which the statute I will dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not significantly aid the decisional process. was designed to protect; and (3) the statutory violation was a proximate cause of the injury. Halterman v. Radisson Hotel Corp., 523 S.E.2d 823, 825 (Va. 2000).[4]Plaintiffs must identify an actual, rather than merely hypothetical, statute. William v. AES Corp., 28 F.Supp.3d 553, 571 (E.D. Va. 2014) (finding the allegation that the defendant's conduct violated “numerous Federal statutes” insufficient to state a claim of negligence per se).

         Here, Howell and Nelson contend that Shockley operated his vehicle “in a manner inconsistent with traffic laws, statutes, ordinances, regulations, markings, and/or warnings . . . which were designed to protect against the matter herein complained of.” Compl. ¶ 6(d), ECF No. 6. The defendants argue that these claims fail because they do not cite any specific statutes, laws, or ordinances. I agree with the defendants. Because the plaintiffs have not identified the particular statute they allege Shockley violated, they cannot show that they belong to the class of persons for whose benefit the statute was enacted or that the harm that occurred was of the type against which the statute was designed to protect, and thus their claims fail.

         The defendants next argue that the plaintiffs have failed to state a claim for gross negligence. “Gross negligence is that degree of negligence which shows an utter disregard of prudence, amounting to complete neglect of the safety of another; such heedless and reckless disregard of his rights as to be shocking to reasonable men.” Kennedy v. McElroy, 81 S.E.2d 436, 439 (Va. 1954). A number of negligent acts may combine to amount to gross negligence. Id. Ordinarily, whether conduct constitutes gross negligence is an issue for the jury. Id. It becomes ...


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