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Durk v. Daum Trucking

October 22, 2008

ROBERT DURK, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF JANELLE DURK, DECEASED, AND SHERRY DURK, INDIVIDUALLY, PLAINTIFFS,
v.
DAUM TRUCKING, INC. AND ROBERT WHITNEY DEFENDANTS.



The opinion of the court was delivered by: Judge Robert W. Gettleman

Magistrate Judge Michael T. Mason

MEMORANDUM OPINION AND ORDER

Plaintiffs Robert Durk, individually and as Executor of the Estate of Janelle Durk, deceased, and Sherry Durk have brought the instant action against defendant Robert Whitney and his employer Daum Trucking, Inc. for wrongful death (Count I), survival (Count II), family expense (Count III), negligent infliction of emotional distress - willful and wanton conduct (Counts XI & XVII), negligent infliction of emotional distress - negligent entrustment - willful and wanton conduct (Count XII & XVIII), negligent infliction of emotional distress - negligent hiring - willful and wanton conduct (Count XIII & XIX), personal injury - willful and wanton conduct (Count XIV & XX), personal injury - negligent entrustment - willful and wanton conduct (Count XV & XXI), and personal injury - negligent hiring - willful and wanton conduct (Count XVI &XXII). Defendant Daum Trucking has moved to strike or dismiss Counts XI, XII, XIII, XVII, XVIII of Plaintiff's First Amended Complaint pursuant to Fed. R. Civ. P. 12(f) and Rule 12(b)(6). Defendant Whitney has moved to strike or dismiss Counts XI and XVII on the same grounds. He has also moved to strike or dismiss Counts XIV and XX for failure to claim specific allegations as against him as an individual. Additionally, defendant Whitney has moved to dismiss paragraph 5 of Count I. For the reasons that follow, defendants' motions are denied.

FACTS

The facts alleged in the complaint are taken as true for purposes of the instant motion, Bontkowski v. First National Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). Plaintiffs' claim arises out of a traffic accident that occurred on July 6, 2006, in the eastbound lanes of Interstate 70, at or near mile marker 141, in Auburn township, Clark County, Illinois. Defendant Robert Whitney was driving a tractor-trailer owned and operated by his employer, defendant Daum Trucking, Inc. Defendant Whitney was driving under the influence of alcohol and/or other drugs and had driven more than 19 hours without adequate rest, far exceeding federal rules for rest.*fn1 Whitney lost consciousness while driving, causing the tractor-trailer to veer off the road, strike a guard rail, and come to rest in the middle of the eastbound lanes, blocking all traffic.

Plaintiff Robert Durk was among those drivers forced to stop his car as it approached defendant Whitney's stalled tractor-trailer. Durk's wife, plaintiff Sherry Durk, was seated in the front passenger seat of the car, and Janelle, the Durks' daughter, and the Durks' niece were seated in the back. While plaintiff's car was idling, a tractor-trailer operated by McDaniel Transit failed to stop and rear-ended the plaintiffs' car, forcing it into a ditch. Janelle Durk sustained fatal injuries from the collision. Plaintiffs, who sustained serious injuries in the crash, attempted to rescue their daughter from the car. While trying to aid Janelle, fire, smoke and flames began to spread from the McDaniel Transit truck, and the Durks claim to have feared for their safety and the safety of their daughter and niece.

DISCUSSION

In the instant case, plaintiffs claim to have suffered negligent infliction of emotional distress because they feared for their safety and that of their daughter and niece when they saw the fire, smoke and flames from a nearby truck spreading towards their vehicle as they were attempting to rescue their injured daughter. Defendants argue that plaintiffs' separate claims for emotional distress and negligent infliction of emotional distress are redundant and the latter claims are not legally cognizable. Defendants further argue that their conduct, even if negligent, was not the proximate cause of the collision between plaintiffs' car and the McDaniel Transit truck because: (1) defendants' allegedly negligent acts were temporally removed from the crash; and (2) the McDaniel Transit truck driver's conduct was an intervening cause that severed defendants' liability. Finally, defendant Whitney argues that paragraph 5 of Count 1 of plaintiff's amended complaint fails to state a claim for relief, is prejudicial, and irrelevant.

Legal Standard

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to rule on its merits. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court accepts all well-pleaded allegations of the complaint as true and draws all reasonable inferences in the plaintiff's favor.

See McMillan v. Collection Prof'ls, Inc., 455 F.3d 754, 758 (7th Cir. 2006). The complaint must, nevertheless, plead sufficient facts to suggest plausibly that the plaintiff is entitled to relief. See Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1965 (2007).

The standard for a motion to strike under Rule 12(f) is the same as that for a motion to dismiss under Rule 12(b)(6), R.J. Corman Derailment Serv. Ltd. v. Int'l. Union of Operating Eng'rs, Local 150, 335 F.3d 643, 647 (7th Cir. 2003). Judgment is appropriate only if all of plaintiff's well-pled factual allegations are not sufficient to raise a right to relief above the speculative level. Bell Atlantic Corp., 127 S.Ct. at 1965.

Direct Victim versus Bystander Liability

In the instant case, plaintiffs have brought separate claims for emotional distress arising from negligence and negligent infliction of emotional distress. Defendants argue that the separate claims for negligent infliction of emotional distress must be stricken or dismissed because they are duplicative, provide ...


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