United States District Court, S.D. Mississippi, Northern Division
MEMORANDUM OPINION AND ORDER
TOM S. LEE, District Judge.
This cause is before the court on the motion of defendants Hirschbach Motor Lines, Inc. (Hirschbach) and Willie J. Brown, Jr. pursuant to Federal Rule of Civil Procedure 12(c) for judgment on the pleadings as to the claims of plaintiffs Judith Cain Bass and John Bass for punitive damages. Plaintiffs have responded in opposition to the motion, and the court, having considered the memoranda of authorities submitted by the parties, concludes that the motion should be denied as to Brown but granted as to Hirschbach.
This case arises out of an automobile accident in which a tractor-trailer rig operated by Brown in the course and scope of his employment as an employee of Hirschbach, struck the vehicle being operated by plaintiff Judith Bass. According to the complaint, at the time of the accident, both vehicles were traveling south on Interstate 55, the Hirschbach vehicle in the middle lane and the Bass vehicle in the right lane next to the front right of the Hirschbach trailer. Plaintiffs allege that the accident occurred when Brown suddenly moved into the lane of traffic occupied by Judith Bass, striking the rear quarter panel of her vehicle so violently as to knock out all the glass and thrust her vehicle in front of the tractor-trailer, which was traveling approximately 50 to 55 miles per hour. Plaintiffs allege that Brown "was so inattentive at the time of the collision that he not only failed to check for traffic in the outside lane before moving right, but after striking Mrs. Bass's vehicle he pushed it down the interstate an estimated distance of 1/4 mile... at an estimated speed of 50-55 miles an hour without ever realizing he had struck Mrs. Bass's car. " (Emphasis and bold in original).
In their complaint, plaintiffs alleged claims for negligence against Brown and also against Hirschbach on the basis of respondeat superior liability, asserting that Brown failed to keep a proper lookout, failed to maintain the appropriate speed of his vehicle, failed to maintain control of his vehicle, failed to take evasive action to avoid the collision, and was inattentive and drove in a careless and/or reckless manner. Plaintiffs also asserted claims against Hirchbach for direct liability based on its alleged negligent hiring, retention, supervision and control of Brown, alleging that at the time of hiring, it failed to adequately inquire into Brown's competence as a driver and that it thereafter failed to adequately train, supervise and monitor Brown, failed to adequately service and maintain the subject vehicle, and failed to require Brown to maintain logs and records. On the basis of their negligence allegations, Judith Bass seeks to recover compensatory damages for the injuries, physical and mental, she sustained as a result of the accident; her husband seeks to recover for loss of consortium. In addition to their claims for compensatory damages based on simple negligence, plaintiffs also included a demand for punitive damages based on allegations of gross negligence. The gross negligence count of the complaint states the following:
Plaintiffs re-allege and incorporate herein the foregoing allegations of this Complaint as if set forth herein in their entirety.
The actions of these Defendants when viewed objectively involved an extreme degree of risk, considering the probability and magnitude of the potential harm to Plaintiffs. Defendants had actual, subjective awareness of the risk, but nevertheless proceeded with conscious indifference to the rights, safety and welfare of Plaintiffs herein, and as such constitutes gross negligence (malice) as that term is defined under Mississippi law. As a result, Plaintiffs is entitled to the recovery of punitive damages.
These Defendants were grossly negligent inasmuch as it should have been on notice as to any previous negligent act(s) and/or omission(s) of its employee, agent, and/or servant Willie B. James, Jr. [sic] in the following particulars, among others:
(a) failing to keep proper lookout on previous occasions;
(b) failing to maintain the appropriate speed of his vehicle on previous occasions;
(c) inattentive while driving on previous occasions;
(d) failing to abide by the laws of any state on previous occasions;
(e) driving in a careless and reckless manner on previous occasions;
(f) failing to maintain control of his vehicle on previous occasions;
(g) failing to take evasive action to avoid striking another vehicle on ...