Trujillo v. Moore Bros.

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ELIZABETH TRUJILLO and HAROLD RAMIREZ, Plaintiffs, v. MOORE BROTHERS, INC., FALCON EXPRESS, LLC, GEORGE A. MYERS, NUCOR CORPORATION, NUCOR-YAMATO STEEL COMPANY, NUCOR-VULCRAFT NORFOLK, and NUCOR LOGISTICS CENTER, INC., Defendants.

Civil Action No. 1:23-cv-00802-RM-SBP

United States District Court, D. Colorado

March 1, 2024

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Susan Prose, United States Magistrate Judge

This matter is before the court on the motion (ECF No. 28) of Defendants Moore Brothers, Inc., (“Moore Brothers”) and Falcon Express, LLC (“Falcon Express,” collectively, the “Movants”) to dismiss Counts III and IV of Plaintiffs Elizabeth Trujillo's and Harold Ramirez's second amended complaint (the “SAC,” ECF No. 76).^[1] Respectively Counts III and IV are claims for negligent hiring, retention training, monitoring, supervising, and entrustment; and for negligent selection of an independent contractor. For the following reasons, this court recommends that the Motion be granted in part and denied in part.

BACKGROUND

This lawsuit stems from a motor vehicle accident that occurred on August 10, 2022, in Greeley, Colorado. In relevant part Plaintiffs assert that Defendant George A. Myers was driving a semi-truck that struck Plaintiff Elizabeth Trujillo's car. SAC ¶¶ 78-97. Mr. Myers is alleged to be an employee or independent contractor of Falcon Express, which owned the semitruck, and/or Moore Brothers, which owned and maintained the flatbed trailer attached to the semi-truck. Id. ¶¶ 50-52. Plaintiffs also sue Defendants Nucor Corporation, Nucor-Yamato Steel Company, Nucor-Vulcraft Norfolk, and Nucor Logistics Center, Inc. (collectively, the “Nucor Defendants”). The Nucor Defendants are not involved in the present motion.

More specifically, the SAC alleges in relevant part that prior to the accident, the Nucor Defendants entered into an agreement with Moore Brothers, in which the latter would be its agent in transporting Nucor's products to its customers. Id. ¶ 21. Plaintiffs allege Moore Brothers was an “incompetent and unqualified motor carrier,” id. ¶ 33, “with a history of significant maintenance issues and violations for illegal equipment that is unroadworthy,” id. ¶ 39, based on, among other things, information publicly available from the Department of Transportation (“DOT”) concerning Moore Brothers' history of DOT violations. Id. ¶¶ 41-44.

Plaintiffs allege, meanwhile, that prior to the accident, Moore Brothers hired or contracted with Falcon Express for Mr. Myers to drive for Moore Brothers, using the semi-truck that Falcon Express owned and under Moore Brothers' DOT motor carrier authority. Id. ¶¶ 49, 53. They allege in relevant part that “[a]t all relevant times, Defendant Myers was an incompetent and unqualified commercial driver.” Id. ¶ 34. Plaintiffs further allege that Moore Brothers and Falcon Express had duties under DOT regulations concerning the drivers they employed (or with whom they contracted), including Mr. Myers. Id. ¶¶ 55-57. Specifically, those duties include: “ensur[ing] driver regulations are adhered to” (id. ¶ 58, citing Section 390.11 of the Federal Motor Carrier Safety Regulations) and “mandatory qualifications . . . [that] Defendants Moore Brothers, Inc. and Flacon Express must undertake before employing drivers, including George A. Myers.” Id. ¶ 59 (citing Section 391, et seq., of the same regulations). Plaintiffs further allege concerning duty:

Defendant Moore Bros., Inc. therefore had an affirmative duty to ensure that Falcon Express, LLC and George Myers were qualified to safely and competently operate on its behalf.

This includes ensuring a driver's past driving record was acceptable, they were competent to operate the equipment [in compliance with all safety regulations], they were medically fit to operate, and confirming their safety performance history.

Id. ¶¶ 60-61 (emphasis added).

Plaintiffs also allege that as the driver, Mr. Myers had “a duty pursuant to Section 396.13 of the Federal Motor Carrier Safety Regulations to inspect the tractor and trailer prior to operating them on the date of the crash and ensure they were in safe operating condition.” Id. ¶ 67. Plaintiffs allege that at the time of the accident, “[t]he condition of the 2013 Great Dane flatbed trailer's brakes, and their disrepair, were apparent to the naked eye and would have been observed upon even a cursory inspection.” Id. ¶ 68.

69. Upon information and belief Defendant Myers failed to perform the necessary pre-and-post trip inspections of the tractor and trailer.

70. Defendant Myers would log these inspections in 2-5 minutes despite knowing such inspections require, at minimum, 15-20 minutes to complete.

71. Upon information and belief Defendant Moore Brothers had specific knowledge of and authorized Myers behavior as the daily logs were transmitted to, reviewed, and kept by Defendant Moore Brothers.

SAC ¶¶ 69-71 (emphasis added).

In all, Plaintiffs bring ten claims, all sounding in negligence, against the various Defendants. Id. at 17-37. In the motion at issue, Moore Brothers and Falcon Express move to dismiss two of those claims: Count III, a negligent hiring, retention, supervision, training and entrustment claim (Id. ¶¶ 144-86), and Count IV, a claim for “negligent selection of independent contractor.” Id. ¶¶ 187-98.

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 12(b)(6), Defendants can move to dismiss for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nevertheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To 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.” Id. (internal quotation marks omitted). That is, the complaint must include well-pleaded facts that, taken as true, “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

The Twombly/Iqbal pleading standard first requires the court to identify which allegations “are not entitled to the assumption of truth” because, for example, they state legal conclusions or merely recite the elements of a claim. Id. at 679. It next requires the court to assume the truth of the well-pleaded factual allegations “and then determine whether they plausibly give rise to an entitlement to relief.” Id. In this analysis, courts “disregard conclusory statements and look only to whether the remaining factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.

ANALYSIS

I. Claim III: Negligent Hiring, Supervision, Retention, Training, and Entrustment

Count III alleges that Movants had several duties with respect to Mr. Myers as their employee, namely, duties “to ensure that Defendant Myers was qualified to safely operate a commercial motor vehicle, specifically the 2016 Kenworth tractor and the 2013 Great Dane trailer on their behalf,” “to use reasonable care in ensuring that the commercial vehicle would not be used in a manner which would involve an unreasonable risk of physical harm to others,” “to properly train and supervise Defendant Myers,” “to monitor and supervise the performance of Defendant Myers,” “to exercise reasonable care in hiring, retaining, training, and supervising its drivers and other employees, including Defendant George Myers,” “to exercise reasonable care in entrusting its vehicles and equipment-and any and all vehicles and equipment under its control-to responsible, competent and qualified drivers.” SAC ¶¶ 151-56. Plaintiffs allege that Movants breached those duties. Id. ¶¶ 157-82.

Claim III thus raises several theories or types of direct negligence. The court addresses those theories separately to the extent they appear to involve separate facts or law.^[2]

A. Negligent Hiring

Under Colorado law, “[n]egligent hiring cases are complex because they involve the employer's responsibility for the dangerous propensities of the employee, which were known or should have been known by the employer at the time of hiring, gauged in relation to the duties of the job for which the employer hires the employee.” Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011 1016 (Colo. 2006) (emphasis added). This claim requires well-pleaded facts plausibly demonstrating that the employer owed a duty of care to persons who the employee later injured. Id. “[E]mployers of commercial drivers have a duty to investigate an applicant's driving record, in addition to what he or she provides in response to application questions or an employment...