United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
J. CAUTHRON United States District Judge.
filed this suit alleging negligence and negligence per se
after a motor vehicle operated by a United States Postal
Service employee struck Plaintiff while he was riding a
skateboard down a city street. Defendant answered and
asserted counterclaims of negligence and negligence per se.
Now before the Court is Plaintiff's Motion to Dismiss
Counterclaim. (Dkt. No. 9.) Defendant/Counterclaimant United
States of America (referred to as Defendant for clarity) has
responded and the Motion is now at issue.
standard for consideration of motions to dismiss brought
pursuant to Fed.R.Civ.P. 12(b)(6) is set forth in the Supreme
Court's decision in Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007), and the subsequent decision in
Ashcroft v. Iqbal, 556 U.S. 662 (2009). In those
cases, the Supreme Court made clear that to survive a motion
to dismiss, a complaint or counterclaim must contain enough
allegations of fact which, when taken as true, “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. Claimants must
“nudge their claims across the line from conceivable
to plausible” to survive a motion to dismiss.
Id. Thus, the starting point in resolving
Plaintiff's Motion is to examine the factual allegations
supporting each claim Plaintiff wishes the Court to dismiss.
counterclaims of negligence and negligence per se are based
on the motor vehicle/skateboarder collision that occurred on
December 14, 2015. Defendant claims Plaintiff was
“carrying, riding, pushing or propelling a skate board
southward on James Garner Avenue” towards an
intersection after sunset. (D.'s Answer and Countercl.,
Dkt. No. 8, p. 9.) Plaintiff was wearing dark clothing
without lighting devices or reflective material to alert
vehicles of his presence on the roadway. Defendant states
Plaintiff was at least 4.5 feet from the side of the road and
traveling slower than the normal speed of traffic.
establish the negligence claim, Defendant must prove the
following: “1) a duty of care owed by [Plaintiff] to
[Defendant], 2) [Plaintiff]'s breach of that duty, and 3)
injury to [Defendant] caused by [Plaintiff's] breach of
that duty.” Lowery v. Echostar Satellite
Corp., 2007 OK 38, ¶ 12, 160 P.3d 959, 964
(citations omitted). Plaintiff presents arguments related to
comparative negligence, superseding causes, and presumptions
rather than how Defendant failed to state a claim of
negligence. These arguments are better suited for summary
judgment or trial. Here, Defendant stated a plausible claim
for negligence; a reasonable jury could conclude that
Plaintiff breached the duty owed to Defendant when he rode
down the street at night, wearing dark clothing without
reflective gear, 4.5 feet from the curb, therefore causing a
foreseeable danger by not making his presence known to other
travelers on the road.
The second claim is negligence per se, and the Oklahoma
Supreme Court has defined its elements: “(1) the injury
must have been caused by the violation; (2) the injury must
be of a type intended to be prevented by the ordinance; and
(3) the injured party must be one of the class meant to be
protected by the ordinance.” Hampton ex rel.
Hampton v. Hammons, 1987 OK 77, ¶ 12, 743 P.2d
1053, 1056 (citation omitted). Taking the facts as true, if
Plaintiff were abiding by City of Norman Ordinance Sec.
and was closer to the sidewalk, he could have moved out of
harm's way or Defendant's vehicle could have passed
by safely within the lane.
claims the ordinances relied upon by Defendant are for the
protection of pedestrians rather than for drivers. However,
it is plausible the ordinances were enacted to protect a
broad class of motorists, pedestrians, and riders who
interact on the roads and sidewalks. Therefore, a rational
trier of fact could find Defendant is of the class intended
to be protected. Thus, Defendant has met the prima facie
elements and this claim will not be dismissed.
reasons stated, Plaintiffs Motion to Dismiss Counterclaim
(Dkt. No. 9) is DENIED.
ordinance states “[a]ny person operating a bicycle upon
a roadway at less than normal speed of traffic at the time
and place and under the conditions then existing shall ride
as close as practicable to the right-hand curb or edge of the
roadway . . . .” Norman, Okla., Mun. Code §
Plaintiff makes the argument this ordinance should not
apply, but the argument asserted relates to what duty a motor
vehicle operator owes to either a cyclist or pedestrian,
which is not at issue. Here, the question is what duty did
Plaintiff, the skateboarder, owe to Defendant, the motor
vehicle operator. The Court finds a skateboarder is more like
a cyclist than a pedestrian when he is traveling on the road
on a device with wheels, propelled by human power.
Compare Norman, Okla., Mun. Code § ...