The so-called “reptile theory” of plaintiff’s litigation, frequently aimed at trucking companies, attempts to put the company on trial rather than litigating the circumstances of a particular accident. In furtherance of a “reptile” approach to litigation, plaintiffs frequently make broad allegations of alleged company misconduct, and on the bases of these allegations attempt to conduct sweeping discovery into company practices. The foundation for these tactics is allegations in the complaint of negligent hiring, retention, qualification, supervision, and training (usually made without any factual support), as well as claims of violations of the Federal Motor Carrier Safety Act (“FMCSA”) and the Department of Transportation’s regulations implementing the act, the Federal Motor Carrier Safety Regulations (“FMCSR”) (which do not give rise to causes of private causes of action). Kansas trucking plaintiffs are also in the habit of alleging a right to recover attorneys’ fees under K.S.A. §66-176 for the company’s supposed violations of state laws for the regulation of common carriers.
A recent federal opinion dismissing a plaintiff’s hiring- and retention-based claims, striking allegations related to the FMCSA and FMCSR, and dismissing plaintiff’s claim for attorneys’ fees, may be of interest to practitioners fighting a “reptile” approach to litigating trucking cases. In Drake v. Old Dominion Freight Line, Inc., the U.S. District Court for the District of Kansas granted the defendant’s motion to dismiss and to strike broad claims and allegations aimed at the company, finding that the plaintiff failed the Twombly and Iqbal tests by not including sufficient factual allegations in support of negligent hiring/ retention/ qualification/ supervision theory, and failing to provide either a factual or legal basis for allegations made under the FMCSA and FMCSR and the claim for attorneys’ fees under K.S.A. §66-176.
In Drake, a Kansas district court applied Twombly and Iqbal to dismiss claims for negligent hiring, retention, supervision, qualification, and training. Under the now-familiar analysis, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” and thereby survive a motion to dismiss. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Drake court found that “[t]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Memorandum and Order at 2 (quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007); emphasis original). This is significant because the allegations in Drake took the form of a boilerplate complaint that was identical, virtually word-for-word, to complaints that we see regularly filed in trucking cases in this jurisdiction.
Kansas imposes tort liability for damages “caused by the negligent hiring and retention of an employee whom the employer knew or should have known to be unfit or incompetent.” Thomas v. Cnty. Comm’rs of Shawnee Cnty., 198 P.3d 182, 193 (Kan. Ct. App. 2008). In order for an employer to be liable for negligent hiring and retention, “the employer must, by virtue of knowledge of his employee’s particular quality or propensity, have reason to believe that undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable.” Hollinger v. Jane C. Stormont Hosp. & Training School for Nurses, 578 P.2d 1121, 1127 (Kan. Ct. App. 1978). Plaintiff in Drake, however, failed to plead any factual allegations supporting the legal conclusion that the defendant hired or retained an “unfit” or “incompetent” employee whom it “knew or should have known to be unfit or incompetent.” Thomas, 198 P.3d at 193. Plaintiff failed to plead any factual allegations setting forth that the defendant had a “reason to believe that undue risk of harm exist[ed] to others as a result of the continued employment” of the driver. See Hollinger, 578 P.2d at 1127.
Moreover, although Kansas law recognizes the theories of negligent supervision and negligent training, there were no sufficient allegations in support of these theories. “Negligent supervision liability requires that the employer had reason to believe that the employment of the employee would result in an undue risk of harm to others,” Wayman v. Accor N. Am., Inc., 251 P.3d 640, 650 (Kan. App. Ct. 2011), while “[a] claim based on negligent training depends upon establishing facts showing that more or better training would have prevented the harm.” Estate of Belden v. Brown Cnty., 261 P.3d 943, 968 (Kan. App. Ct. 2011). Plaintiff’s general allegations that the defendant failed to properly train and supervise the driver, by “failing to have adequate safety management controls in place that would require and provide that [driver] had the required skills required under this regulation” was found insufficient by the court. Plaintiff pled no facts showing that this driver in particular was “incompetent” or “unfit” for his job, or that the defendant trucking company knew that this driver was “incompetent” or “unfit” for his job. The allegations of conduct by the defendant were not only reproduced verbatim from other complaints in this jurisdiction, they were nothing more than generally pled legal conclusions couched as factual allegations.
The Drake court also recognized that the FMCSA and FMCSR do not create private causes of action for personal injuries. Id. at 5 (citing Stewart v. Mitchell Transp., 241 F. Supp. 2d 1216, 1221 (D. Kan. 2002), which holds that “Section 14704(a)(2) creates a private right of action for damages in commercial disputes involving violations of the Motor Carrier Act and its regulations, but not for personal injury actions . . . .”). The district court, on this basis, struck from the complaint all references to supposed violations of the FMCSA and FMSCR. Memorandum and Order at 8. This includes allegations that the trucking company failed to properly qualify the driver.
Finally, and critically for Kansas practitioners, the Drake court rejected a claim to recover attorneys’ fees. While noting that the issue has not been definitively determined by the Kansas Supreme Court, the federal court nevertheless found that supposed violations of the FMCSA and FMCSR would be insufficient to state a claim for recovery under K.S.A. §66-176, and that plaintiff failed to provide “any factual allegations” as to how the trucking company violated “provisions of law for the regulation of . . . common carriers”; “Plaintiff simply states legal conclusions.” Memorandum and Order at 10.
The Drake ruling is encouraging for trucking company defendants defending against the “reptile theory.” Hopefully, this ruling will help to narrow the scope of discovery and trial, returning focus to the particular circumstances of the trucking accident as opposed to sweeping attempts to indict the company for its general policies and practices.