United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT WISE
SERVICES, INC.'S MOTION TO DISMISS PLAINTIFF'S
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
plaintiff, Charles Dennis Poling (“Poling”),
filed an amended complaint against Wise Services, Inc.
(“Wise”) and Rhys Wade Williams
(“Williams”). ECF No. 29. In his amended
complaint, plaintiff Poling alleges that defendant Williams
was an employee of defendant Wise, and was working for
defendant Wise when he rear-ended a vehicle in which
plaintiff Poling was a guest passenger. Id. at 2.
Plaintiff Poling alleges that defendant Williams futilely
attempted to separate the two vehicles after the accident and
subsequently left the scene of the accident in violation of
West Virginia law. Id. at 3. Plaintiff Poling
further asserts that defendant Wise has a habit of allowing
employees to use company vehicles for personal use and that
defendant Williams believed he had permission to use the
vehicle involved in the accident. Id. Plaintiff
Poling asserts that both defendants Wise and Williams were
negligent and states that as a direct and proximate result of
the defendants' negligence, he sustained serious bodily
Wise filed a motion to dismiss plaintiff Poling's amended
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (ECF No. 30) and a memorandum in support of the
motion (ECF No. 30-1). In support of the motion to dismiss,
defendant Wise first asserts that defendant Williams stole
defendant Wise's vehicle, attaching a criminal complaint,
docket and journal entry, and Ohio Uniform Incident Report.
Id. at 5; ECF No. 30-2. Second, defendant Wise
asserts that plaintiff Poling's complaint does not
provide sufficient facts that would support a right to
recover based on general negligence or negligent supervision.
Id. at 6-7. Specifically, defendant Wise states that
plaintiff Poling has not pleaded sufficient facts that would
demonstrate that it should have known about defendant
Williams' “propensity” to steal its vehicle,
which is a necessary element to either a claim for negligence
or negligent supervision. Id. at 7-8. Third,
defendant Wise contends that West Virginia Code §
17C-14-1 does not give rise to a cause of action because: (1)
that code section was repealed in 2018 (citing Curran v.
Owens, 15 W.Va. 208 (1879)); and (2) even if the code
section is applicable, there is no affirmative duty set forth
in the code section that requires doors to be locked or an
affirmative duty related to access to a vehicle. Id.
at 9-10. Fourth, defendant Wise asserts that plaintiff
Poling's claim for negligent entrustment fails as a
matter of law since defendant Williams' criminal plea
demonstrates that defendant Wise did not entrust a vehicle to
defendant Williams. Id. at 10. Fifth, defendant Wise
contends that defendant Williams' criminal and negligent
acts are intervening acts which break the chain of causation
and relieve defendant Wise of liability. Id. at 10.
Specifically, defendant Wise cites West Virginia v.
Fidelity & Casualty Co., 263 F.Supp. 88 (S.D. W.Va.
1967), for support that stealing a car, regardless of whether
the ignition is unlocked and/or the keys are in the switch,
relieves the owner of liability since the theft is an
intervening cause. Id. at 12. The defendant also
cites Yourtree v. Hubbard, 196 W.Va. 683, 474 S.E.2d
613 (1996), for support that a willful, malicious, or
criminal act breaks the chain of causation. Id.
Poling filed a response in opposition to defendant Wise's
motion to dismiss. ECF No. 31. In his response, plaintiff
Poling first states that while defendant Williams has pleaded
guilty, he may have had legitimate affirmative defenses to
the charges. Id. at 4. Specifically, plaintiff
Poling asserts that “[i]t is a well established
unwritten rule in the criminal defense bar that a client
should almost always take a misdemeanor plea when his or her
client is facing a felony which could incarcerate their
client for substantial amount of time, especially when the
prosecution is offering a deal that does not involve jail
time and a minimum fine.” Id. Plaintiff Poling
seeks formal discovery in order to determine how defendant
Williams came into possession of defendant Wise's
vehicle. Id. Second, plaintiff Poling states that
defendant Williams' guilty plea is irrelevant to the
issue of whether defendant Wise was negligent. Id.
at 4. Third, plaintiff Poling asserts that defendant Wise
violated West Virginia Code § 17C-14-1 since defendant
Wise allegedly has a “careless and negligent habit of
allowing truck keys to be easily accessed by
employees.” Id. at 5. Plaintiff Poling states
that discovery must be conducted in order to determine how
defendant Williams came into possession of the truck keys or
how he was able to drive the truck off of defendant
Wise's property. Id. Fourth, plaintiff Poling
asserts that Curran v. Owens was superseded by West
Virginia Code § 2-2-8, and that West Virginia Code
§ 17C-14-1 was in effect at the time that defendant
Williams used defendant Wise's vehicle. Id. at
6. Fifth, plaintiff Poling maintains that defendant Wise
negligently entrusted the vehicle to defendant Williams and
that defendant Williams' negligence was foreseeable.
Id. at 7. Plaintiff Poling then distinguishes
Fidelity, stating that the court in
Fidelity specifically noted that two separate acts
occurred (i.e. a theft and a high speed chase) to alleviate
the defendant from liability, and that the facts here do not
indicate that defendant Williams was being pursued by the
police, but that he failed to see the vehicle in which the
plaintiff was a passenger. Id. at 8-9. Moreover,
plaintiff Poling distinguishes Yourtree, stating
that in that case, the plaintiff was one of the people
responsible for the theft of the vehicle and, that here, the
plaintiff was not responsible for the theft of defendant
Wise's vehicle. Id. at 9.
Wise then filed a reply. ECF No. 32. In its reply, defendant
Wise first states that defendant Williams' criminal plea
is relevant to this matter since it establishes, as a matter
of law, that he stole the company vehicle. Id. at
2-3. Second, defendant Wise asserts that plaintiff
Poling's claim for negligent entrustment fails as a
matter of law given defendant Williams' plea.
Id. at 3. Third, defendant Wise states that
plaintiff Poling's claims for negligence and negligent
supervision fail as a matter of law since the plaintiff has
not provided sufficient facts to address the necessary
elements of the causes of action. Id. at 3.
Specifically, defendant Wise states that there are no facts
that would demonstrate that it should have known about
defendant Williams' propensity to steal its vehicle.
Id. at 3-4. Fourth, defendant Wise contends that
West Virginia Code § 17C-14-1 does not give rise to a
cause of action based upon the allegations in the complaint
because: (1) that code section was repealed in 2018; (2)
Curren v. Owens is good law and West Virginia Code
§ 2-2-8 is a savings statute applicable to only criminal
laws; and (3) even if the statute applied in this case,
plaintiff Poling has failed to plead any facts that establish
that defendant Wise violated any of the statute's
requirements. Id. at 4-6. Fifth, defendant Wise
states that defendant Williams' criminal act breaks the
chain of causation. Id. at 6-7.
reasons stated below, this Court grants defendant Wise's
motion to dismiss the plaintiff's amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No.
assessing a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a court must accept all well-pled facts
contained in the complaint as true. Nemet Chevrolet, Ltd
v. Consumeraffairs.com, Inc, 591 F.3d 250, 255 (4th Cir.
2009). However, “legal conclusions, elements of a cause
of action, and bare assertions devoid of further factual
enhancement fail to constitute well-pled facts for Rule
12(b)(6) purposes.” Id. (citing Ashcroft
v. Iqbal, 556 U.S. 662, 677 (2009)). This Court also
declines to consider “unwarranted inferences,
unreasonable conclusions, or arguments.” Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26
(4th Cir. 2009).
purpose of a motion under Rule 12(b)(6) is to test the formal
sufficiency of the statement of the claim for relief; it is
not a procedure for resolving a contest about the facts or
the merits of the case. 5B Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure §
1356 (3d ed. 1998). The Rule 12(b)(6) motion also must be
distinguished from a motion for summary judgment under
Federal Rule of Civil Procedure 56, which goes to the merits
of the claim and is designed to test whether there is a
genuine issue of material fact. Id. For purposes of
the motion to dismiss, the complaint is construed in the
light most favorable to the party making the claim and
essentially the court's inquiry is directed to whether
the allegations constitute a statement of a claim under
Federal Rule of Civil Procedure 8(a). Id. §
complaint should be dismissed “if it does not allege
‘enough facts to state a claim to relief that is
plausible on its face.'” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Facial plausibility is established once the
factual content of a complaint ‘allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Nemet
Chevrolet, 591 F.3d at 256 (quoting Iqbal, 556
U.S. at 677). Detailed factual allegations are not required,
but the facts alleged must be sufficient “to raise a
right to relief above the speculative level.”
Twombly, 550 U.S. at 555.
This Court Takes Judicial Notice of the Certified Copies
of the Criminal Complaint, the Docket and Journal Entry
Pertaining to That Criminal Action and the Ohio
Uniform Incident Report. However, Such Materials Are Not
Conclusive Evidence of Defendant Williams' Guilt.
Rule of Evidence 201 states that a “court may
judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b)(2). “The court .
. . must take judicial notice if a party requests it and the
court is supplied with the necessary information.”
Id. at 201(c)(2). Matters of public record may be
judicially noticed. See Papasan v. Allain, 478 U.S.