Carr v. Transam Trucking Inc

Filing 80

Memorandum Order granting in part and denying in part 59 Motion for Summary Judgment filed by Transam Trucking Inc. The motion is granted with respect to plaintiffs claim for negligence per se. In all other respects, the motion is denied. (see order) (Ordered by Magistrate Judge Jeff Kaplan on 03/23/09) (lmp)

IN THE I-INITEDSTATESDISTRICTCOURT N O R T H E R NDISTRICTOF TEXAS D A L L A SDIVISION RONNIE CARR
Plaintiff,

VS. T R A N S A MTRUCKING,INC.
Defendant.

N O . 3-07-CV-1944-BD

MEMORANDUM

ORDER

judgment D e f e n d a n tTransAm Trucking,Inc. ("TransAm") hasfiled a motion for summary Plaintiff Ronnie Carr, for i n this personalinjury action brought by one of its former employees, per grossnegligence, and negligence se under Texaslaw. The gravamenof plaintiffs negligence, him a Super l0 FreightlinerCentury truck equippedwith a l0c l a i m s is that defendantassigned knowing that plaintiff had beentrained on a truck with an automatic s p e e dmanual transmission, t r a n s m i s s i o nand was not competentto operatethe assignedrig. Due to his inexperienceand plaintiff allegesthat he was unableto negotiatea difficult right inadequate training by defendant, hand turn onto an interstate highway, causing the truck to overturn. Plaintiff sustainedserious p e r s o n a linjuries in the rollover accident. Defendantnow moves for summaryjudgment on the g r o u n d sthat thereis no evidencedefendant any duty of careowed to plaintiff or engaged breached i n any conduct that causedplaintiffs injuries, and that a violation of the Texas statutecited by per se. The issueshave been fully p l a i n t i f f doesnot give rise to a causeof action for negligence b r i e f e d by the partiesand the motion is ripe for determination.

Summaryjudgment properwhen "thepleadings, discoveryanddisclosure is the materialson file, and any affidavits show that there is no genuineissueasto any material fact and that the movant i s entitled to judgment as a matterof law." Fno. R. Cry. P. 56(c). The substantive law determines w h i c h factsare material.SeeAndersonv. Liberty Lobby,Inc., 477 U.S. 242,247, 106S.Ct.2505, judgmentwho doesnot havethe burden 2 5 0 9 - 1 0 ,91 L.Ed.2d202 ( 1986). A party seekingsummary of proof at trial need only point to the absenceof a genuine fact issue. SeeDuffy v. Leading Edge P r o d u c t s , Inc., 44 F.3d 308, 312 (sth Cir. 1995). Once the movant meets its initial burden,the b u r d e n shifts to the nonmoving party to produceevidenceor designate specific facts in the record of lnc.,463 F.3d 388, s h o w i n gthe existence a genuineissuefor trial. SeeFordoche,Inc. v. Texaco, 3 9 2 (5th Cir. 2006). All evidencemust be viewed in the light most favorableto the party opposing Fargo Bank of TexasN.A.,465 F.3d 2ll,2l4 t h e motion. SeeFoulston SieJkinLLP v. LYells Cir.2006). Judged against these standards,the court determinesthat genuine issuesof material fact claims. The summary p r e c l u d esummaryjudgment on plaintiffs negligence and grossnegligence j u d g m e n t recordcontainsampleevidence knew plaintiff was not qualifiedto operate that defendant a truck equippedwith a manualtransmission.Plaintiff testifiedat his depositionthat he was trained that o n a truck with an automatictransmission, he hadneverdriven or evenheardof a Superl0 truck rig and b e f o r ereceivinghis permanent assignment, that he told his trainerhe was not familiar with Def. MSJ App. at l5). If t h e Superl0 truck. (SeePlf. MSJ App. at2l,43-44,46,50, 136-37: defendantknew or should have known that plaintiff was not competentto operatethe truck, it had a duty to provide additional training or instruction before entrusting the vehicle to him. See,e.g. duty to instructapplies F a r l e y v. M M Cattle Co., 529 S.W.2d 751,754 (Tex. 1975)(an employer's v. [4.8. GraceManufacturingCo. Arp,31l S.W.2d278,281 (Tex. t o an inexperienced employee); (5th

Civ. App.--Dallas 1958,writ refd n,r.e.)("[I]n the caseof an employeewho is known by the e m p l o y e r to be inexperiencedin the type of work to which he is assigned,or in the use of a dangerousmachine, there is a duty on the part of the employer to instruct the employee."). That p l a i n t i f f held a ClassA CommercialLicenseand passed his severaldriving testsdoesnot establish as Industries,(nc.,699 S.W.2d 570, 574 (Tex. c o m p e t e n c e matter of law. See Williams v. Steves 1 9 8 5 ) (noting that "[s]ome incompetentdrivers are licensed,and some competentdrivers are u n l i c e n s e d " ) . Because there is at leastsomeevidencethat the accidentin questionwas causedby p l a i n t i f f s inexperience and lack of training, summaryjudgment is not proper. per T h e court reaches different conclusionwith respectto plaintiffs negligence se claim. a of " N e g l i g e n c eper se is a conceptwherebya legislativelyimposedstandard conductis adoptedby v. and t h e civil courtsas defining the conductof a reasonable prudentperson." All Freight Systems J e m e s I I 5 Fed.Appx. I 82, 184,2004 WL 1739485at *2 (5th Cfu.Aug. 4, 2004),citing Carter v. o violationof a & W i l l i a mSommerville Son,lnc.,584 S.W.2d274,278 (Tex. 1979). An unexcused s t a t u t econstitutesnegligenceper se if that statutewas designedto protect the classof personsto to w h i c h the injured party belongsand the injury is of a type the statutewas designed prevent. Id., the 2 0 0 4 W L 1739485at*3, citing Perry v. S.N.,973 S.W.2d301, 305 (Tex. 1998). In this case, s t a t u t ecited by plaintiff as establishingthe relevant standardof conduct, Tex. Lab. Code Ann. appliesonly to unlawful discriminationin the employmentcontext. See,e.g.Stewart $ 21.25S5(a),'

t

This statuteprovides: O n a finding that a respondentengagedin an unlawful intentionalemployment p r a c t i c eas allegedin a complaint,a court may, as provided by this section,award: (l) (2) compensatory damages; and punitive damages.

T E X .LAB. CoDEANN. $ 21.2585(a)(Vernon 2006).

v. SanminaTexasL.P.,156 S.W.3d 198, 208 (Tex. App.--Dallas2005, no pet.) ("One express p u r p o s eof chapter2l of the Labor Code is to provide for the executionof the policies of Title VII (internal quotationsomitted); o f the Civil Rights Act of 1964 and its subsequent amendments.") 2005,no pet.) Thomannv. LakesRegional MHMR Center,162 S.W.3d788,796(Tex.App.--Dallas ( s a m eas to ADA). Nothing in the statuteor legislativehistory suggests section21.2585(a) that was i n t e n d e dto protectemployees who are injured in motor vehicleaccidents by caused the negligence or gross negligence of their employer. Defendant is therefore entitled to summaryjudgment with r e s p e c t this claim. to CONCLUSION For these reasons,defendant'smotion for summaryjudgment [Doc. #59] is grantedin part per to a n d deniedin part. The motion is grantedwith respect plaintiffs claim for negligence se. In order. the a l l other respects, motion is denied. The court will set this casefor trial by separate

S O ORDERED. D A T E D : March23.2009.

JUDGH MAGISTRATE STATES