United States District Court, E.D. Arkansas, Eastern Division
AMENDED OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE
a negligence action arising out of a car accident. On the day
of the accident, Larry Ballard and Harlan Hunter were driving
south on Interstate 440, which bypasses northeastern Little
Rock, Arkansas. Julie Varosi was a passenger in Ballard's
vehicle. The complaint alleges that Hunter fell asleep, then
the front of his vehicle struck the rear of Ballard's
vehicle. Ballard's vehicle began to spin, eventually
rolling over and coming to a rest upside down. Ballard and
Varosi sustained permanent injuries. They have filed a motion
for leave to file an amended complaint pursuant to Federal
Rule of Civil Procedure 15(a)(2). Document #11-2. The amended
complaint alleges additional facts about the accident,
removes the claims for loss of earning capacity, and adds a
request for punitive damages. Id. Hunter objects to
any amendment based on the recovery of punitive damages,
arguing that such an amendment is improper on futility
grounds. Document #13. For the foregoing reasons, the motion
for leave to file an amended complaint is granted in part and
denied in part.
15(a)(2) provides that once the time for amending as a matter
of course has expired, “a party may amend its pleading
only with the opposing party's written consent or the
court's leave.” “The court should freely give
leave when justice so requires, ” but may deny leave if
there is a compelling reason, such as futility of the
amendment. Reuter v. Jax Ltd., Inc., 711 F.3d 918,
922 (8th Cir. 2013). “Denial of a motion for leave to
amend on the basis of futility ‘means the district
court has reached the legal conclusion that the amended
complaint could not withstand a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure.'”
Zutz v. Nelson, 605 F.3d 842, 850 (8th Cir. 2010)
(quoting Cornelia I. Crowell GST Trust v. Possis Med.,
Inc., 519 F.3d 778, 782 (8th Cir. 2008)). To survive a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), a complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). Although detailed
factual allegations are not required, the complaint must set
forth “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “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.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965.
amended complaint adds a request for punitive damages.
Document #11-2 at 8-9, ¶¶ 13-15. In Arkansas, the
recovery of punitive damages is governed by statute:
In order to recover punitive damages from a defendant, a
plaintiff has the burden of proving that the defendant is
liable for compensatory damages and that either or both of
the following aggravating factors were present and related to
the injury for which compensatory damages were awarded:
(1) The defendant knew or ought to have known, in light of
the surrounding circumstances, that his or her conduct would
naturally and probably result in injury or damage and that he
or she continued the conduct with malice or in reckless
disregard of the consequences, from which malice may be
(2) The defendant intentionally pursued a course of conduct
for the purpose of causing injury or damage.
Ark. Code Ann. § 16-55-206. “In other words,
punitive damages may be awarded when a tortfeasor has acted
with malice, intent to cause injury, or with conscious
indifference such that malice could be inferred.”
Yeakley v. Doss, 370122, 128, 257 S.W.3d 895, 899
(2007); Nat'l By-Prods., Inc. v. Searcy House Moving
Co., Inc., 292 Ark. 491, 494-95, 731 S.W.2d 194, 196-97
(1987). Negligence alone, even gross negligence, does not
justify punitive damages. Alpha Zeta Chapter of Pi
Kappa Alpha Fraternity by Damron v. Sullivan,
293 Ark. 576, 587, 740 S.W.2d 127, 132 (1987).
issue here is whether the facts alleged in the amended
complaint justify an award of punitive damages under
subsection one of the statute. Whether a motor vehicle has
been operated with conscious indifference from which malice
can be inferred must be determined by the facts of each
individual case but generally, the Arkansas Supreme Court has
limited punitive damages in cases arising out of motor
vehicle accidents to two situations: racing and drunk
driving. See Perry v. Stevens Transport,
Inc., No. 3:11CV0004-JLH, 2012 WL 2805026 at *4 (July 9,
2012) (citing Nat'l Bank of Commerce v. McNeil
Trucking Co., 309 Ark. 80, 88, 828 S.W.2d 584, 588
(1992)); Lawrence v. Meux, 282 Ark. 512, 514669
S.W.2d 464, 466 (1984); 1 Howard W. Brill & Christian H.
Brill, Ark. Law of Damages § 9.2 (6th ed. 2015). The
Arkansas Supreme Court has also affirmed an award of punitive
damages in a case arising out of a trucking accident; the
award was based on the trucking company's reckless
disregard of the dangerous condition of the truck involved
and expert testimony that the company had knowingly altered
the truck's brakes. D'Arbonne Constr. Co. v.
Foster, 354 Ark. 304, 311, 123 S.W.3d 894, 901 (2003);
see also Bizzell v. Transport Corp. of America, No.
4:16CV00376-JLH, 2017 WL 3381358 at *2-*4 (E.D. Ark. Aug. 4,
2017) (collecting trucking accident cases).
the plaintiffs' request for punitive damages is based on
allegations that Hunter decided to drive, even though he felt
fatigued, and that he subsequently fell asleep at the wheel.
Document #11-2 at 8, ¶ 14. It was after Hunter fell
asleep that his vehicle struck the plaintiffs' vehicle.
Id. at 7, ¶¶ 7-9. There is no Arkansas
case directly on point, but driving while sleepy and then
falling asleep at the wheel, though careless, does not
constitute the type of conduct from which malice can be
inferred absent other aggravating circumstances. See
Ancar v. Brown, No. 3:11-CV-595-DPJ-FKB, 2013 WL 5503682
at *2 (S.D.Miss. Oct. 2, 2013) (collecting cases supporting
the proposition that “[m]erely falling asleep at the
wheel is generally not sufficient to warrant punitive
damages”); Turner v. Werner Enters., Inc., 442
F.Supp.2d 384, 387 (E.D. Ken. 2006) (applying Kentucky law,
which employs a more lenient standard for the award of
punitive damages, and holding that falling asleep while
driving is not wanton or reckless); see also Woods v.
Mendez, 574 S.W.2d 263, 268-69 (Va. 2003) (holding that
driving while sleepy and then falling asleep shows a
conscious disregard for the safety of others when combined
with intoxication and continuing to drink beer while driving
in an intoxicated state); Briner v. Hyslop, 377
N.W.2d 858, 868 (Iowa 1983) (noting that “[t]he act of
falling asleep generally would not constitute conduct that
would allow punitive damages” but combined with driving
for an excessive length of time and use of stimulants, could
constitute a willful disregard for the safety of others).
Because the facts alleged in the amended complaint do not
support a claim for punitive damages under Arkansas law, the
amendment is futile.
foregoing reasons, the plaintiffs' motion for leave to
file an amended complaint is GRANTED IN PART and DENIED IN
PART. The request for leave to remove allegations concerning
loss of earning capacity and add factual allegations about
the accident is granted. The amended complaint must be filed
within seven days of the entry of this Amended ...