United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the court on Defendants Junqing and Ying Lan
Trucking Express's Motion to Dismiss (ECF No. 5). This
matter is fully briefed and ready for disposition.
November 12, 2015, a Ying Lan Trucking Express
("Trucking Express") tractor trailer, operated by
Fang Junqing ("Junqing"), rear-ended Plaintiff
Tiffany Pugh ("Pugh") on Interstate 44. (Petition,
ECF No. 3, ¶l). Pugh claims that Junqing was negligent
by driving at an improper speed, following too close, failing
to keep his vehicle under proper control, and failing to
maintain a proper lookout. (Petition, ¶7). Pugh further
alleges that Trucking Express was negligent in failing to
adequately train and supervise Junqing, in maintaining and
repairing its vehicle, and equipping the vehicle with proper
safety features. (Petition, ¶\2). As a result,
Pugh claims she was injured. (Petition, ¶¶8, 13,
18). Pugh filed a Petition in St. Louis County Circuit Court,
alleging claims for Negligence of Junqing (Count I),
Negligence of Ying Lan Trucking Express (Count II), and
Vicarious Liability of Ying Lan Trucking Express (Count III).
Standard of Review
survive a motion to dismiss, a complaint "must contain
sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face."'
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic
Corp., v. Twombly, 550 U.S 544, 570 (2007). A
"formulaic recitation of the elements of a cause of
action" will not suffice. Twombly, 550 U.S. at
555. "The plausibility standard is not akin to a
'probability requirement, ' but it asks for more than
a sheer possibility that a defendant has acted
unlawfully." Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556).
claim that Count I is defective because it improperly
combines a claim of simple negligence and claims of
negligence per se against Junqing in violation of Federal
Rule of Civil Procedure 10(b). (ECF No. 5, ¶9 (citing
Fed.R.Civ.P. 10(b) ("If doing so would promote clarity,
each claim founded on a separate transaction or
occurrence-and each defense other than a denial-must be
stated in a separate count or defense."). Defendants
assert that Count I is devoid of any facts upon which Pugh
bases her negligence per se claims and "thus improperly
combines such claims with the simple negligence claims."
(ECF No. 5, ¶11). Defendants note that Pugh fails to
allege which specific construction zone regulations and
Federal Motor Carrier Safety Regulations Junqing violated.
(ECF No. 5, ¶11).
further assert that Count I is defective because it is devoid
of facts to support a negligence per se claim. (ECF No. 5,
¶12). Defendants claim that Pugh has not alleged that
she was within a class of people intended to be protected by
the cited statutes and regulations or that Pugh's injury
was of the nature and that the statutes were designed to
protect. (ECF No. 5, ¶13).
response, Pugh states that her pleading properly combines
different theories of recovery in a single count because they
are based on the same facts. (ECF No. 7 at 2). Pugh asserts
that her negligent per se claim alleges a violation of
specific, applicable statutory rules of conduct and that
Junqing's driving was "undoubtedly" negligently
violated statutory rules of the road. (ECF No. No. 7 at 2).
Pugh states that Petition provides "fair notice" as
to what is being claimed. (ECF No. 7 at 2-3).
Missouri law, "[a] claimant may proceed on a negligence
per se claim 'if the following four elements are met: (1)
There was, in fact, a violation of the statute; (2) The
injured plaintiff was a member of the class of persons
intended to be protected by the statute; (3) The injury
complained of was of the kind the statute was designed to
prevent; and (4) The violation of the statute was the
proximate cause of the injury.'" Sill v.
Burlington N. R.R., 87 S.W.3d 386, 392 (Mo.Ct.App. 2002)
(quoting King v. Morgan, 873 S.W.2d 272, 275
(Mo.Ct.App. 1994)). Similarly, under Missouri law,
"[t]he elements of negligence are: 1) the existence of a
duty; 2) breach of that duty; 3) injury proximately caused by
breach of that duty; and 4) actual damages." In re
Complaint of Jessup for Exoneration from, or Limitation of,
Liab., 196 F.Supp.2d 914, 918 (E.D. Mo. 2002) (citing
Hoover's Dairy, Inc. v. Mid-America Dairymen,
Inc./Special Products, Inc., 700 S.W.2d 426, 431 (Mo.
Pugh's pleadings could have been clearer as to her
allegations, the Court holds that she has sufficiently
alleged claims for negligence per se and for negligence
against Junqing. The mere fact that Pugh seems to have
included both claims in one count does not "require
dismissal." Mattingly v. Medtronic, Inc., 466
F.Supp.2d 1170, 1173 (E.D. Mo. 2006). With respect to the
negligence per se claim, Pugh has identified several statutes
that she claims Junqing violated, which resulted in her
injury. See Petition, ECF No. 3, ¶7(e), (f),
(g). With respect to the negligence claim, Pugh has alleged
several deficiencies in Junqing's driving which resulted
in her injury, including driving too close and at an improper
speed. See Petition, ...