United States District Court, D. Kansas
MATTHEW KOBILAN and DIANA KOBILAN, individually, heir-at-law and administrator of the ESTATE OF ABRAHAM KOBILAN, Plaintiffs,
DEREK A. COLTER AND YRC, Inc., Defendants.
MEMORANDUM AND ORDER
F. MELGREN UNITED STATES DISTRICT JUDGE.
Matthew Kobilan and Diana Kobilan filed this action against
Defendants under theories of negligence and negligence per
se. The Koblians allege that Defendant Derek Colter injured
them while operating his semi-trailer truck under the
employment of Defendant YRC, Inc. (“YRC”).
Plaintiffs also make a claim for attorneys' fees pursuant
to K.S.A. § 66-176. Defendants move to dismiss
Plaintiffs' claims of negligent hiring, retention,
qualification, supervision, and training against YRC,
Plaintiffs' claims under 49 U.S.C. § 14704(a)(2) and
the Federal Motor Carrier Safety Regulations
(“FMCSR”), and Plaintiffs' claim for
attorneys' fees under K.S.A. § 66-176. For reasons
explained below, the Court grants Defendant YRC's Motion
to Dismiss (Doc. 5) and Defendant Derek A. Colter's
Motion to Dismiss (Doc. 11) and dismisses these claims.
Factual and Procedural Background
February 10, 2016, Plaintiffs were passengers traveling in a
vehicle headed westbound on East Mary St. in Garden City,
Kansas, attempting to turn north onto U.S. 400. Defendant
Colter was operating a semi-trailer truck in the course and
scope of his employment for Defendant YRC and was traveling
northbound on U.S. 400. Defendant Colter failed to obey the
traffic signal at the intersection at ¶ 400 and Mary St.
and caused a collision with the vehicle carrying Plaintiffs.
filed suit on March 30, 2017. While Plaintiffs fail to
specifically label any causes of action in the complaint,
Plaintiffs state claims for negligent hiring, retention,
qualification, and training against Defendant YRC and a claim
for common-law negligence against Defendant Colter.
Plaintiffs also appear to state a negligence per se claim
against Defendants YRC and Colter. Plaintiffs list multiple
regulations under the FMCSR relating to minimum duties and
standards of care, and claim that Defendants Colter and YRC
were negligent and negligent per se in violating them.
Plaintiffs also recite a portion of the Motor Carrier Act
(“MCA”) stating that carriers are liable for
damages sustained as a result of an act that violates the
MCA. Plaintiffs further allege that Defendant YRC is liable
under the doctrine of respondeat superior and
vicarious liability, and seek attorneys' fees against YRC
pursuant to K.S.A. § 66-176.
April 27, 2017, Defendant YRC filed a motion to dismiss
Plaintiffs' claims of negligent hiring, retention,
qualification, supervision, and training, Plaintiffs'
negligence per se claims under the FMCSR and MCA, and
Plaintiffs' claim for attorneys' fees. On May 15,
2017, Defendant Colter moved to dismiss Plaintiffs'
negligence per se claims under the FMCSR and the MCA, and
Plaintiffs' claim for attorneys' fees. Defendant Colter
did not challenge Plaintiffs' common-law negligence claim
against him, and Defendant YRC did not challenge
Plaintiffs' claim for negligence through respondeat
superior or vicarious liability, so these claims remain.
Rule 12(b)(6), a defendant may move to dismiss a claim for
which a plaintiff “fails to state a claim upon which
relief can be granted.” A complaint “must contain
sufficient factual matter, accepted as true, to ‘state
a claim of relief that is plausible on its face.'
” A claim is facially plausible if the Court
can reasonably infer the defendant is liable from the facts
pleaded.The plausibility standard reflects the Rule
8 requirement that pleadings must provide defendants with
fair notice of the claims, as well as the grounds upon which
the claims rest. The Court accepts all factual allegations
in the complaint as true and views them in a light most
favorable to the plaintiff. The Court, however, does not
apply the same standard to conclusory allegations or legal
Claims of Negligent Hiring, Retention, Qualification,
Supervision, and Training
YRC moves to dismiss Plaintiffs' claims of negligent
hiring, retention, qualification, supervision, and training.
The doctrine of negligent hiring and retention arises from an
employer's duty to use reasonable care in the selection
and retention of employees. An employer breaches that duty if
the employer knew or should have known that the employee was
incompetent or unfit for the position. To survive a
motion to dismiss a negligent hiring claim, Plaintiffs must
allege both the employee's incompetence or unfitness and
the employer's actual or constructive knowledge of such
incompetence or unfitness.
supervision and negligent training are distinct from
negligent hiring and retention in Kansas. An employer
may be liable for failure to supervise its employees if the
employer had “reason to believe that the employment of
the employee would result in an undue risk of harm to
others.” An employer may also be liable if the
harm caused by the employee could have been prevented with
more, or better, training.
complaint, Plaintiffs do not provide any factual basis for
their assertion that YRC was negligent in its hiring,
retention, supervision, qualification, or training of Colter.
Plaintiffs merely assert the legal conclusion that because
Colter was in a collision in which he failed to obey a
traffic signal, Colter was not a safe employee, and
therefore, YRC was negligent in hiring, retaining, training,
qualifying, and supervising him. Iqbal requires
“more than a sheer possibility” that the
defendant is liable for the misconduct alleged. Even assuming
that Colter was incompetent and unfit for his position,
Plaintiffs failed to allege that YRC knew, or had reason to
know, that Colter was unfit, that he presented an undue risk
of harm to others, or that additional training could have
prevented the collision. Without factual support,
Plaintiffs' claims of negligence in hiring, retention,
qualification, supervision, and training must be
Negligence per se claims under 49 U.S.C. § ...