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Charger v. Regester

United States District Court, W.D. Missouri, Central Division

November 9, 2016

KENNETH CHARGER, Plaintiff,
v.
STEPHEN REGESTER and J.B. HUNT TRANSPORT, INC., Defendants.

          ORDER

          NANETTE K.LAUGHREY United States District Judge.

         Defendant J.B. Hunt Transport, Inc. moves to dismiss for failure to state a claim Counts IV and VI, as well as Counts HI-VI as to punitive damages. [Doc. 7]. Defendant Stephen Regester moves to dismiss Count II, as well as Counts I and II as to punitive damages. [Doc. 26]. For the following reasons, Defendant J.B. Hunt's motion is granted, and Defendant Stephen Regester's motion is granted in part and denied in part.

         I. Background[1]

         On July 26, 2011, Defendant Stephen Regester backed his tractor-trailer into Plaintiff Kenneth Charger's parked tractor-trailer while Charger was inside. The impact shook Charger in his vehicle, causing him "to suffer physical injuries to his head, neck, ribs, right shoulder, and back, as well as severe emotional and psychological injuries, including depression, anxiety, and post-traumatic stress disorder." [Doc. 1, p. 2-3]. At the time of the collision, Defendant J.B. Hunt Transport, Inc. was the registered owner of the tractor-trailer, and Regester was J.B. Hunt's "employee, agent, servant, and/or independent contractor." [Doc. 1, p. 6].

         Charger alleges that Regester negligently failed to: keep a careful lookout; exercise the highest degree of care while operating his vehicle; ensure that the area behind his vehicle was clear of all obstructions before backing up; yield the right of way; not drive at an excessive speed; stop, swerve, slow his speed, or sound a warning after he knew or could have known that there was a reasonable likelihood of a collision; drive at a speed that made it possible for him to stop within the range of his visibility; and not operate his vehicle in a fatigued or impaired condition. In addition, J.B. Hunt negligently failed "to act reasonably in hiring training supervising and retaining . . . Regester and [failed] to promulgate and enforce rules, regulations, and policies to ensure its drivers, including . . . Regester, operated vehicles in a reasonably safe manner." [Doc. 1, p. 7].

         Finally, Charger pleads that at the time of the collision, Regester "likely violated the following federal regulations, and after a reasonable opportunity for further investigation or discovery, [his] actual violation of each of these regulations will likely have evidentiary support":

• to operate his tractor-trailer in accordance with the laws, ordinances, and regulations of the State of Missouri, as well as the regulations of the Federal Motor Carrier Safety Administration, as required by 49 C.F.R § 392.2;
• not to operate his tractor-trailer while his ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate his tractor-trailer, pursuant to § 392.3;
• to comply with the hours of service requirements specified by § 395; and
• to be qualified to drive a commercial vehicle as defined by § 391.11, and specifically, to have a currently valid commercial vehicle operator's license issued by only one State or jurisdiction pursuant to § 391.11(b)(5). [Doc. 1, p. 4].

         Similarly, Charger pleads that at the time of the collision, J.B. Hunt "likely violated-and encouraged Defendant Stephen Regester to violate-the following federal regulations, and after a reasonable opportunity for further investigation or discovery, Defendant's] . . . actual violation of each of these regulations will likely have evidentiary support":

• to require that each of its employed drivers observe and comply with all applicable regulations promulgated by the Federal Motor Carrier Safety Administration, as required by49C.F.R. §390.11;
• not to aid, abet, or encourage the drivers it employs to violate regulations promulgated by the FMCSA, as required by § 390.13;
• to enforce § 392.3 's requirement that each of the drivers it employs not operate a tractor-trailer while their ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it ...

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