Sierra v. Hodges, et al.

2011 DNH 045

• Court: District Court, D. New Hampshire
• Decided: March 23, 2011
• Docket: CV-10-325-PB
• Status: Published

Opinion

Sierra v . Hodges, et a l . CV-10-325-PB 3/23/11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patricia Sierra

v. Case N o . 10-cv-325-PB Opinion N o . 2011 DNH 045 Richard L . Hodges, Inc., et a l .

MEMORANDUM AND ORDER

Jason Gambon was killed in a head-on collision with a

tractor trailer operated by Jason Lydem. Lydem’s employer,

Richard L . Hodges, Inc., entrusted him with the tractor trailer

and Lydem was operating within the scope of his employment at

the time of the accident. Gambon’s administratrix has sued

Lydem and Hodges on a variety of legal theories. Defendants

have moved to dismiss. For the reasons stated in this

Memorandum and Order, I grant defendants’ motion.

I. STANDARD OF REVIEW

I apply the familiar standard of review that applies to

motions to dismiss based on Fed. R. Civ. P. 12(b)(6). See

Artuso v . Vertex Pharm., Inc., N o . 10-1798, 2011 WL 590006, at

*3 (1st Cir. Feb. 1 8 , 2011). II. ANALYSIS

Plaintiff asserts one count of negligence, six counts of

negligence per se, 1 and one count of wrongful death against each

defendant. I begin by analyzing plaintiff’s claims against

Lydem.

A. Claims Against Lydem

Plaintiff pleads the following facts against Lydem in her

complaint: (1) “Lydem was operating the tractor trailer without

a valid driver’s license insofar as his Maine driver’s license

had been suspended;” (2) “On the day of the accident, Lydem had

traveled 696 miles transporting approximately 45,600 pounds of

paper prior to colliding with Jason Gambon;” and (3) “Lydem has

an extensive history of driving infractions in connection with

poor driving.” P l . Opp’n. to Mot. to Dismiss Compl. at 1 3 .

Plaintiff does not provide a developed argument in her objection

to the motion to dismiss to support a claim that Lydem was

negligent either because he drove a heavy truck 696 miles in a

1 Plaintiff characterizes Counts II-V and Counts VIII-XI as negligence per se counts. Thus, I do not consider whether any of these counts could also be characterized as implied private rights of action.

2 single day or because he drove the truck after incurring an

extensive record of motor vehicle infractions. Thus, assuming

that plaintiff is claiming that Lydem was negligent because he

operated the truck with a suspended license, the viability of

her claims against Lydem depends upon whether plaintiff has

sufficiently alleged that Lydem’s operation of the tractor

trailer with a suspended driver’s license was a proximate cause

of the accident.

New Hampshire follows the majority rule in recognizing that

a defendant’s status as an unlicensed driver ordinarily is not a

proximate cause of a motor vehicle accident. Vassillion v .

Sullivan, 47 A.2d 115, 119 (N.H. 1946); see also Emery v . Booth,

325 A.2d 7 8 8 , 789 (N.H. 1974) (violation of statute forbidding

the loan of a vehicle using dealer plates is not a proximate

cause of accident); R.P. Davis, Lack of Proper Automobile

Registration or Operator’s License as Evidence of Operator’s

Negligence, 29 ALR 2d 963 at § 5 (describing majority rule).

Plaintiff has cited no unusual facts that would make this

principle inapplicable in this case. Accordingly, plaintiff’s

claims against Lydem must be dismissed.

3 B. Claims Against Hodges

Plaintiff bases her claims against Hodges on the company’s

own negligence in failing to discover that Lyden’s license had

been suspended, in allowing him to operate the tractor trailer

with a suspended driver’s license, and in failing to comply with

federal laws and regulations that would have led the company to

the discovery that Lydem’s license had been suspended. Claims

of this sort, however, cannot be maintained unless the evidence

establishes that the operator’s status as an unlicensed driver

was a proximate cause of the accident. The First Circuit

recognized the principle on which this conclusion is based in

Estate of Melucci Through Melucci v . Brown, 946 F.2d 1 4 4 , 146

(1st Cir. 1991). There, the plaintiff’s intestate was killed in

a collision with a tractor trailer driven by the defendant’s

employee. Verdicts were entered in favor of the defendants on

plaintiff’s negligence claim against the driver and his

negligent supervision claim against the employer. The only

remaining claim on appeal was plaintiff’s negligent entrustment

claim against the employer based on the employer’s entrustment

of the vehicle to the employee. Even though the employee had

4 not driven a commercial vehicle for several years, one of his

legs was partially disabled, and he had been involved in a prior

accident with a parked vehicle, the Court of Appeals affirmed

the lower court’s dismissal of the negligent entrustment claim.

The court reasoned that the employer was entitled to judgment

because there was no evidence that the reasons for the

employer’s negligent entrustment (i.e. the employee’s past

driving record, his “rustiness” behind the wheel, or his leg

impairment) were proximate causes of the accident. Id. at 145-

46.

In the present case, as I have explained, the fact that

Lydem was operating without a driver’s license was not a

proximate cause of the accident. Accordingly, Hodges’ alleged

negligence in either failing to detect the fact that Lydem’s

license had been suspended or allowing him to operate the

vehicle with a suspended license also cannot have been a

proximate cause of the accident. This is true regardless of

whether plaintiff characterizes her claims as negligence,

negligence per s e , or wrongful death.

5 Because plaintiff has failed to state viable claims against

either defendant, her complaint must be dismissed. Defendants’

motion to dismiss (Doc. N o . 4 ) is granted, and the clerk shall

enter judgment and close the case.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 2 3 , 2011

Cc: Leonardo J. Caruso, Esq. Andrew J. Fay, Esq. James W . Bell, Esq. Theodore M . Schaer, Esq. William E . Christie, Esq.