United States District Court, E.D. Missouri, Eastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants CRST Malone, Inc.
and Andrew Atkinson's Motion to Dismiss Counts II and IV,
[Doc. No. 5]. The Motion is unopposed, as Plaintiffs have not
filed a reply and the time to do so has expired. For the
reasons set forth below, the Motion is granted.
action arises from a traffic collision between a
tractor-trailer driven by Defendant Atkinson and the vehicle
in which Plaintiffs were travelling. In their Complaint,
Plaintiffs allege negligence (Count I) and negligence per se
(Count II) against Defendant Atkinson, and vicarious
liability for Atkinson's negligence (Count III) and
negligence per se (Count IV) against Defendant CRST Malone,
Inc. For their negligence per se claims, Plaintiffs
claim a statutory violation of RSMo. § 304.012.
move to dismiss Counts II and IV on the basis that negligence
per se actions are improper as to RSMo. §
304.012, and therefore, Counts II and IV fail to state causes
purpose of a Rule 12(b)(6) motion to dismiss for failure to
state a claim is to test the legal sufficiency of a complaint
so as to eliminate those actions “which are fatally
flawed in their legal premises and deigned to fail, thereby
sparing the litigants the burden of unnecessary pretrial and
trial activity.” Young v. City of St. Charles,
244 F.3d 623, 627 (8th Cir. 2001). To survive a Rule 12(b)(6)
motion to dismiss, a complaint must contain “enough
facts to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678,
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
per se arises where the legislature pronounces in a
statute what the conduct of a reasonable person must be,
whether or not the common law would require similar conduct,
and the court then adopts the statutory standard of care to
define the standard of conduct of reasonable
person.” Lowdermilk v. Vescovo Building
and Realty Co., Inc., 91 S.W.3d 617, 628 (Mo. App. E.D.
2002) (internal citation omitted). Because negligence per
se results from the violation of a statute, the jury is
instructed on the statutory standard of care rather than that
of a reasonable person. Id.
assert their negligence per se claims are based upon
Defendant Atkinson's violations of RSMo. § 304.012.
Generally, proof of a statutory traffic violation is
sufficient to submit a claim of negligence per se.
Myers v. Morrison, 822 S.W.2d 906, 911 (Mo. App.
E.D. 1991) (Gaertner, C.J., concurring) (citing Cowell v.
Thompson, 713 S.W.2d 52 (Mo. App. E.D. 1986);
Bentley v. Crews, 630 S.W.2d 99 (Mo. App. E.D.
1981)). However, § 304.012 does not set out a statutory
standard of care; rather, it provides that “[e]very
person operating a motor vehicle on the roads and highways of
this state shall drive the vehicle in a careful and prudent
manner and at a rate of speed so as not to endanger the
property of another or the life or limb of any person and
shall exercise the highest degree of care.” Missouri
Courts have defined the highest degree of care “as that
degree of care that a very careful person would use under the
same or similar circumstances.” Crane v.
Drake, 961 S.W.2d 897, 901 (Mo. App. W.D. 1998)
(quotation omitted). Section 304.012 does not indicate
specific conduct that constitutes a violation, and does not
set out a statutory standard of care. Cisco v.
Mullikin, No. 4:11-CV-295 RWS, 2012 WL 549504, at *2
(E.D. Mo. Feb. 21, 2012). Plaintiff's negligence per
se claims are fatally flawed and must be dismissed.
upon the foregoing analysis, the Motion to Dismiss Counts II
and IV, [Doc. No. 5], is well taken.
IT IS HEREBY ORDERED that Defendants'
Motion to Dismiss Counts II and IV is
IS FURTHER ORDERED that Counts II and ...