A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
Negligence: Negligent retention claim is rejected
By Virginia Lawyers Weekly – 12/9/2024
Where a man injured in an auto accident asserted the driver’s employer was negligent in retaining him, because allegations of speeding on the day of the collision and other days put the company on notice of his unsafe driving behavior, but speeding was not the cause of the accident, and there was no showing that the risk of future harm was so grave that discharging the employee would have been the only reasonable response, the negligent retention claim failed as a matter of law.
Background
Jessie Lee Shifflett brings this action against Stephane Routhier and Couture Expressway seeking damages for a vehicle collision in which a tractor-trailer driven by Routhier and owned by Couture struck Shifflett’s vehicle. Pending before the court are: (1) Shifflett’s motion for leave to amend his complaint and (2) Shifflett’s motion to supplement the record to include additional information in support of Shifflett’s motion for leave to amend. There are two claims at issue in the pending motions: (A) Shifflett’s corporate negligence/negligence per se claim against Couture and (B) Shifflett’s negligent retention claim against Couture.
Negligence per se
Shifflett contends that under 49 C.F.R. § 390.11 and 49 C.F.R. § 392.2, Couture has an affirmative duty to ensure that its drivers follow the Federal Motor Carrier Safety Administration Regulations, or FMCSRs. He alleges that Couture consciously ignored this duty, when it knew its truck driver, Routhier, routinely engaged in unsafe driving but took no action to address his behavior.
Shifflett’s negligence per se claim fails on two grounds. First, the FMCSRs upon which Shifflett relies do not support a negligence per se claim, so his claim against Couture fails as a matter of law. The court cannot say that § 390.11 was enacted for public safety. Rather, this specific regulation is intended to promote compliance with the regulatory scheme. And federal district courts across the country have held that § 392.2 does not establish an independent duty.
Second, even if the FMCSRs mentioned did support a negligence per se claim against Couture, Shifflett fails to adequately allege the causation element required for any negligence claim. Shifflett alleges a series of incidents where Routhier was traveling at excess speeds, including “numerous occasions” of traveling over 10 mph on the day of the collision.
However, according to the allegations in the amended complaint and the video, this accident did not involve speeding. The court will deny Shifflett’s motion for leave to amend, as it pertains to this claim, because the amendment would be futile.
Negligent retention
Shifflett argues that the allegations of speeding on the day of the collision and other days, as evidenced in Couture’s telemetry data, put the company on notice of Routhier’s unsafe driving behavior and made it foreseeable “that personal injury was near certainty.” Shifflett fails to sufficiently allege a negligent retention claim against Couture because there is no causation. And even if there was, there is no showing that the risk of future harm was so grave that discharging Routhier would have been the only reasonable response.
Plaintiff’s motion to supplement the record in support of his motion for leave to file his first amended complaint granted. Plaintiff’s motion for leave to file a first amended complaint denied.
Shifflett v. Routhier, Case No. 5:23-cv-00046, Nov. 26, 2024. WDVA at Harrisonburg (Dillon). VLW 024-3-632. 9 pp.
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