United States District Court, W.D. Kentucky, Louisville Division
REESE MICHAEL JUDE TASSIN, SR. PLAINTIFF
BNK TRANSPORT INC. and DAVID TURKI-MATTI TOMENA DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., District Judge.
matter is before the Court on Defendants' Motion to
Dismiss. [DN 13]. Fully briefed, this matter is ripe for
decision. For the following reasons, the Defendants'
Motion is GRANTED.
to the Complaint and briefing on this Motion, Reese Michael
Jude Tassin resides in Louisiana but was operating a
tractor-trailer in Kentucky on July 26, 2017. [DN 1 ¶
1.1; DN 13-1 at 1]. Mr. Tassin alleges that while he was
resting for the evening in his vehicle at a Love's truck
stop parking lot in Horse Cave, Kentucky, David Turki-Matti
Tomena, driving a tractor-trailer, collided with Mr.
Tassin's vehicle. [DN 1 ¶¶ 4.14-4.17]. The
tractor-trailer driven by Mr. Tomena was owned by BNK
Transport Inc. (“BNK”) and was being operated on
its behalf. [Id. at ¶¶ 4.6-4.8].
Accordingly, Mr. Tassin alleges that BNK is vicariously
liable for any claims against the driver, Mr. Tomena.
Tassin alleges that he suffered substantial injury as a
result of the collision. Mr. Tassin filed the instant lawsuit
on January 25, 2019, alleging claims for negligence and
negligence per se against both Mr. Tomena and BNK.
[Id. at ¶¶ 5.1-5.9]. The Complaint seeks
damages from Mr. Tomena and BNK for Mr. Tassin's
permanent bodily injury, emotional distress, medical
expenses, lost wages, loss of earning power, and pain and
suffering. [Id. ¶ 5.2].
Tomena and BNK jointly filed the instant Motion to Dismiss,
arguing that Mr. Tassin's claims premised upon alleged
violations of the Federal Motor Carrier Safety Regulations
(“FMCSR”)-a private cause of action and a claim
for negligence per se-should be dismissed because neither are
viable claims. [DN 13 at 1]. Specifically, the Defendants
assert that the FMCSR does not support a private right of
action and that a violation of a federal statute cannot be
the basis for a negligence per se claim under Kentucky law.
[Id.]. Mr. Tassin responds that his negligence per
se claim is premised upon violations of a Kentucky
administrative regulation adopting the federal statutes cited
in his Complaint as well as violations of the federal
statutes themselves. [DN 17 at 4-9]. Mr. Tassin argues that
the latter claim, negligence per se based on violations of
federal statutes, is a viable claim in Kentucky.
[Id. at 8-9]. In their Reply, the Defendants contend
that Mr. Tassin failed to assert a negligence per se claim
based upon Kentucky's adoption of the federal statutes
and, as such, Mr. Tassin cannot now put forth such a claim.
[DN 18 at 1-2]. Further, the Defendants argue that Mr.
Tassin's reliance on case law as support for his argument
that a Kentucky negligence per se claim can be based on
violations of federal law is misplaced. [Id. at
Standard of Review
survive a motion to dismiss for failure to state a claim,
“a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[A] district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citations
omitted)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). The
complaint need not contain “detailed factual
allegations, ” yet must provide “more than an
accusation.” Id. (citing Twombly, 550
U.S. at 555).
Defendants move to dismiss Mr. Tassin's claims premised
upon violations of the FMCSR because they claim the FMCSR
“does not provide a private cause of action for alleged
violations of its provisions, and Kentucky law does not
provide a private cause of action due to violation of federal
statutes or regulations.” [DN 13 at 1]. The Court
addresses the federal right of action pursuant to the FMCSR
and the negligence per se claim separately.
the Defendants move to dismiss a stand-alone claim for
violation of the FMCSR. As has been established in the Sixth
Circuit, the FMCSR does not create a federal private right of
action. Fochtman v. Rhino Energy, LLC, No. 13-104,
2013 WL 5701468, at *2 (E.D. Ky. Oct. 17, 2013) (citing
Schramm v. Foster, 341 F.Supp.2d 536, 547 (D. Md.
2004) (collecting cases)); Steinberg v. Luedtke Trucking,
Inc., No. 4:17-CV-9, 2018 WL 3233341, at *4 (E.D. Tenn.
July 2, 2018). Without a private right of action, the
Defendants are correct, the FMCSR cannot act as a platform
for any claim by Mr. Tassin. However, the Court does not
interpret Mr. Tassin's Complaint as having alleged such a
stand-alone claim for violation of the FMCSR. Instead, the
Court interprets Mr. Tassin's Complaint as alleging a
claim for negligence per se premised upon the Defendants'
violation of the FMCSR. As such, the Defendants argument
concerning the absence of a private right under the FMCSR is
the Defendants move for summary judgment on Mr. Tassin's
claims for negligence per se-a doctrine under which a
defendant can be negligent as a matter of law, or per se, for
violating a statute that promotes safety. Kentucky's
negligence per se statute provides that “[a] person
injured by the violation of any statute may recover from the
offender such damages as he sustained by reason of the
violation, although a penalty or forfeiture is imposed for
such violation.” K.R.S. § 446.070.
Defendants maintain that Kentucky law does not provide for a
negligence per se action due to violations of a federal
statute or regulation. [DN 13-1 at 3]. The Defendants are
correct. “Kentucky courts have held that the ‘any
statute' language in KRS 446.070 is limited to Kentucky
statutes and does not extend to federal statutes and
regulations . . . .” Young v. Carran, 289
S.W.3d 586, 589 (Ky. Ct. App. 2008) (citing T&M
Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 530 (Ky. 2006)).
“The Kentucky General Assembly did not intend for KRS
446.070 to embrace the whole of federal laws and the laws of
other states and thereby confer a private civil remedy for
such a vast array of violations.” Hicks, 189
S.W.3d at 530. Accordingly, to the extent that Mr.
Tassin's negligence per se claim is based on alleged
violations of the FMCSR as it stands codified in federal law,
that claim must fail and is dismissed.
Court now considers the possibility of a negligence per se
claim premised upon violation of a Kentucky administrative
regulation. The Defendants take issue with any possibility of
a negligence per se claim premised upon violation of a
Kentucky regulation because, they argue, Mr. Tassin failed to
include such an allegation in his Complaint. [DN 18 1-2]. The
Defendants are correct that nowhere in Mr. Tassin's
Complaint does he cite to the Kentucky administrative
regulation adopting portions of the FMCSR, the relevant
enabling statute, or the Kentucky statute providing the claim
for negligence per se. [See generally DN 1]. Instead, the
first time Mr. Tassin raises such an allegation is in his
Response to the Motion to Dismiss. [DN17 4-7]. Because Mr.
Tassin failed to allege such a claim in his Complaint, the
Court need not address whether such a claim by Mr. Tassin