Judge dismisses as a defendant a towing agency named in property damage civil suit

Jon Campisi Nov. 18, 2011, 11:11am

A federal judge has dismissed as a defendant a towing company that was named in a lawsuit by a dump truck operator who alleges claims of property damage and lost earnings due to an incident that occurred last summer.

In October, New Jersey resident Paul J. Fekete had filed a complaint with Philadelphia’s Court of Common Pleas, one which was subsequently removed to federal court in Philadelphia.

The subject of Fekete’s civil action was alleged damage done to his dump truck as a result of Amtrak, to which the plaintiff was making a delivery of gravel, telling Fekete to proceed down an allegedly unstable access road on its property, causing the truck to sink into the ground and tip over.

Rob’s Towing & Hauling Inc. was contacted to try and remove the dump truck, but it was unable to do so, its efforts allegedly causing more damage to the truck, which remained on the access road for two days.

The fact that the truck remained stuck meant Fekete would inevitably experience wage loss, he argued in his complaint.

Rob’s Towing & Hauling subsequently filed a motion to dismiss for failure to state a claim. That motion was granted in Wednesday’s ruling by Judge Berle M. Schiller of the U.S. District Court for the Eastern District of Pennsylvania.

In the ruling, Schiller wrote that in his claim, Fekete fails to “sufficiently allege facts that would raise a right to relief above the speculative level as to the four elements required for a negligence claim,” under Pennsylvania law.

The ruling states that Fekete failed to adequately plead the second and third elements required for negligence claims, specifically the element that states a breach of duty and the one that deals with a causal connection between the defendant’s breach of duty and the plaintiff’s injury.

“Instead, he [Fekete] uses conclusory statements, alleging that the accident was ‘due to the negligence of … Rob’s Towing,’” the ruling states. “The Court will not credit such conslusory statements in deciding a motion to dismiss.”

The ruling says that while Fekete states that the towing agency’s conduct caused further damage to the dump truck and led to wage losses to Fekete, the plaintiff fails to allege any specific conduct by Rob’s Towing, leading the court to not be able to determine if the plaintiff has satisfied the pleading requirement of the third element needed in negligence claims.

“Accepting all allegations in the complaint as true and drawing all reasonable inferences in favor of Fekete, Plaintiff fails to sufficiently plead a negligence claim against Defendant Rob’s Towing,” the ruling states. “The Court will therefore grant Rob’s Towing’s motion to dismiss. However, the Court will afford Plaintiff an opportunity to file an amended complaint to state a claim against Rob’s Towing.”

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