United States District Court, W.D. Virginia, Big Stone Gap Division
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
P. JONES UNITED STATES DISTRICT JUDGE.
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
Complaints allege the following facts, which I must accept as
true for the purpose of deciding the present issues.
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.
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.
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,  and they now move to dismiss the claims
alleging gross negligence, negligence per se, and res ipsa
loquitur. The Motions to Dismiss are ripe for
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).
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).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).
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.
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