Velasquez v. EAN Holdings LLC et al
Filing
26
Memorandum Opinion and Order re: 18 Defendants' Traditional and No Evidence Motion for Summary Judgment. Defendants' motion for summary judgment is GRANTED. By separate judgment, Plaintiff's negligence, negligence per se, and gross negligence claims against Defendants will be DISMISSED WITH PREJUDICE. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 11/13/2018) (mcrd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JAVIER VELASQUEZ,
§
§
Plaintiff,
§
§
v.
§
§
EAN HOLDINGS, LLC, and ENTERPRISE §
TRUCK RENTAL, IN ITS ASSUMED OR §
COMMON NAME,
§
§
Defendants.
§
Civil Action No. 3:17-CV-1656-BH
Consent Case
MEMORANDUM OPINION AND ORDER
By consent of the parties and order of transfer dated September 1, 2017 (doc. 11), this matter
has been transferred for the conduct of all further proceedings and the entry of judgment. Before
the Court is Defendants’ Traditional and No Evidence Motion for Summary Judgment, filed July 30,
2018 (doc. 18). Based on the relevant filings, evidence, and applicable law, the motion is
GRANTED.
I. BACKGROUND
On July 31, 2015, Javier Velasquez (Plaintiff) rented a 26-foot box truck from Enterprise
Truck Rental in Dallas, Texas. (docs. 1-1 at 8-9; 21 at 5-7.)1 The following day, he loaded up the
truck with audio and lighting equipment for a concert in Amarillo, Texas. (doc. 21 at 5-6.) As he
was driving down a highway near Clarendon, Texas, one of the tires exploded, causing the truck to
roll over into a ditch. (docs. 1-1 at 9; 21 at 7.) He sustained unspecified personal injuries. (Id.)
Plaintiff initially filed suit against EAN Holdings, LLC and Enterprise Truck Rental, in its
1
Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.
assumed or common name (Defendants), on May 19, 2017, in the 193rd Judicial District Court,
Dallas County, Texas, Cause No. DC-17-06021, and sought monetary damages exceeding $100,000.
(doc. 1-1 at 9-11.) He alleged that Defendants were negligent, negligent per se, and grossly
negligent for (1) failing to properly maintain and inspect the truck prior to its rental; (2) renting the
truck with an improperly inflated tire; (3) failing to implement and operate a proper tire maintenance
program; (4) failing to implement proper training, safety, maintenance and education procedures for
its employees regarding tires; (5) failing to correct the unreasonable dangerous condition posed by
the left rear tire of the truck; and (6) failing to keep proper logs and records of operation and
maintenance of the truck. (doc. 1-1 at 9.) Defendants removed the case to this court on the basis of
diversity jurisdiction on June 22, 2017. (doc. 1 at 2.)
On July 30, 2018, Defendants moved for summary judgment on all claims against them.
(doc. 18.) Plaintiff filed his response on August 20, 2018 (doc. 20), and Defendants filed their reply
on August 31, 2018. (doc. 23.) This motion is now ripe for consideration.
II. EVIDENTIARY OBJECTIONS
Both parties assert objections to the summary judgment evidence in their responsive
pleadings to the summary judgment motion. (docs. 21 at 4, fn. 4; 23 at 3.)
A.
Plaintiff’s Objections
Plaintiff generally objects to Defendants’ exhibits and briefing as well as to the admissibility
of their expert report.
1.
Defendants’ Motion and Exhibits
Plaintiff appears to object to Defendants’ summary judgment motion, brief, and exhibits on
the grounds that they failed to comply with the Local Rules. (doc. 21 at 2, fn. 2.) He notes
2
Defendants’ failure to file an appendix, as well as their failure to file their motion separately from
their brief. (See doc. 21 at 2, fn. 2.)
Local Rule 7.1 addresses motion practice, including the requirements for an appendix, while
Local Rule 7.2 creates the standard for briefs. See L.R. 7.1, 7.2. Local Rules 56.3, 56.5, and 56.6
address the content for a motion for summary judgment, and its briefing and appendix requirements.
See L.R. 56.4-56.6. Courts have discretion to decline to strike filings, even when they violate the
Local Rules. See, e.g., Green v. JPMorgan Chase Bank, N.A., No. 3:11-CV-1498-N, 2013 WL
11609925, at *2 (N.D. Tex. Aug. 16, 2013) (“The Court in its discretion declines to strike the
appendix in this instance, but it advises [the defendant] and its counsel to abide by the Local Rules
in future filings.”); Graham v. Dallas Indep. Sch. Dist., No. 3: 04-CV-2461-B, 2006 WL 2468715,
at *4 (N.D. Tex. Aug. 24, 2006) (“Under ordinary circumstances, the court might overlook these
untimely filings and consider plaintiff’s summary judgment response and evidence in the interests
of justice.”).
Plaintiff’s objection is OVERRULED. Defendants’ exhibits will be considered only where
they have provided specific citations to indicate the portions of the documents relied upon. See City
of Clinton v. Pilgrim’s Pride Corp., 654 F. Supp. 2d 536, 541 (N.D. Tex. Sept. 14, 2009) (declining
to strike a party’s appendix for violations of the Local Rules, but limiting consideration of its
appendix).
2.
Defendants’ Expert Report
Plaintiff objects to Defendants’ expert report on grounds that “it lacks foundation and/or is
not reliable or relevant in violation of Fed. R. Civ. P. 702.” (doc. 21 at 4, fn. 4.)
In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court acknowledged that Federal
3
Rule of Evidence 702 serves as the proper standard for determining the admissibility of expert
testimony. 509 U.S. 579, 597-98 (1993). In fact, Rule 702 was amended to incorporate the
principles first articulated by the Supreme Court in Daubert, as well as those enunciated in
subsequent cases applying Daubert. See FED. R. EVID. 702 Advisory Committee Notes. Rule 702
now provides that:
A witness who is qualified as an expert by knowledge, skill, experience, training, or
education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based upon sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
FED. R. EVID. 702. Under this rule, the main issue is whether a particular expert has “sufficient
specialized knowledge to assist the jurors in deciding the particular issues in this case.” Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 156 (1999) (citations omitted). A court has discretion to keep an
expert witness from testifying if it finds that the witness is not qualified to testify in a particular field
or on a given subject. Wilson v. Woods, 163 F.3d 935, 937 (5th Cir. 1999).
The key factors in evaluating expert testimony are relevance and reliability. Daubert, 509
U.S. at 589. The burden is on the proponent of the expert testimony to establish its admissibility by
a preponderance of the evidence. Id. at 592 n.10; see FED. R. EVID. 104(a). The proponent does not
have to demonstrate that the testimony is correct, only that the expert is qualified and that the
testimony is relevant and reliable. Moore v. Ashland Chem.,Inc., 151 F.3d 269, 276 (5th Cir. 1998).
The court’s inquiry is flexible in that “[t]he relevance and reliability of expert testimony turns upon
its nature and the purpose for which its proponent offers it.” United States v. Valencia, 600 F.3d 389,
424 (5th Cir. 2010) (citation omitted). “As a general rule, questions relating to the bases and sources
4
of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility and
should be left for the [trier of fact’s] consideration.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 422
(5th Cir. 1987).
“Daubert standards apply not merely at trial, but also on summary judgment.” Gen. Star
Indem. Co. v. Sherry Brooke Revocable Trust, 2001 WL 34063890, at *9 (W.D. Tex. Mar. 16,
2001); see also Kumho Tire Co., 526 U.S. at 146 (affirming district court decision granting motion
for summary judgment in light of its decision to exclude expert testimony pursuant to Daubert). To
be considered on summary judgment, “an expert affidavit must include materials on which the
expert based his opinion, as well as an indication of the reasoning process underlying the opinion.”
Michaels v. Avitech, Inc., 202 F.3d 746, 754 (5th Cir., 2000), cert. denied, 531 U.S. 926 (Oct. 10,
2000) (quoting Boyd v. State Farm Ins. Companies, 158 F.3d 326, 331 (5th Cir. 1998). “Without
more than credentials and a subjective opinion, an expert’s testimony that ‘it is so’ is not
admissible.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987).
Defendants submit the affidavit and expert report of their tire expert, Joseph Grant, who
examined the tires and opined that the tires were appropriately maintained, and the tire blowout
resulted because the truck was overloaded. (doc. 18-2 at 1, 3.)2 He made the following conclusions:
(1)
The right rear inner and outer dual drive tires experienced tread and steel belt
detachments and subsequent air loss. Based upon the remains of both tires,
the outside dual failed first followed by failure of the inner dual tire. The
failure of both tires was the result of a significant overload condition placed
on the tires.
(2)
The left rear outside rear dual drive tire had not failed at the time of the
accident but had an obvious bulged distorted appearance on the tread as a
2
Mr. Grant has a Bachelor of Science Degree in Mechanical Engineering, was employed as a tire engineer
at a tire manufacturer for more than 34 years, and has been consulted on for tire failure analysis for over 15 years.
(doc. 18-2 at 2.) Plaintiff does not object to Mr. Grant’s qualifications as an expert.
5
result of an internal separation. This tire was close to failing in a similar
manner to the right side tires.
(3)
The conditions on the right and left dual drive tires overall are consistent
with an overloading condition placed on the drive axle tires. The physical
evidence on the tires does not indicate a chronic overloading but rather a
short term overloading that was occurring at the time of the tire failures.
(4)
The worn appearance and overall condition of all of the tires on the
Enterprise rental truck indicated that the overall maintenance of the tires had
been appropriate.
(Id. at 3.) He states that his conclusions were based upon “a reasonable degree of engineering
certainty.” (Id.)
Plaintiff contends that Mr. Grant’s theory that the tire blowout was the result of “short term
overloading” is flawed because “Defendants (and their expert) do not even attempt to establish how
much weight was actually loaded in the vehicle at the time Plaintiff was driving it and when the tires
exploded.” (doc. 21 at 2.)
Mr. Grant does not explain how he reached his conclusions after examining the tires, but
only that he did observe the tires and that he did reach those conclusions. His affidavit does not
establish the actual weight on the truck at the time of the accident, the minimal weight the tires could
tolerate, or the actual source of the weight that caused the tires to explode (i.e. the payload’s weight
versus the truck’s weight). It does not identify the methodology he used, nor provide any
explanation of the reasoning process utilized in reaching his conclusions. Mr. Grant appears to be
relying primarily, if not exclusively, on experience to form his conclusion that the cause of the tire
blowout was an overloading condition, but fails to articulate how his experience led to his
conclusions, why his experience is a sufficient basis for the conclusions reached, and how his
experience is reliably applied to the facts of the case. See Kumho, 526 U.S. at 152 (stressing that
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the Daubert factors may be relevant to the reliability of experience-based testimony and that the
same level of intellectual rigor that characterizes the practice of an expert in the relevant field is
employed whether basing testimony upon professional studies or personal experience).
Expert opinions that fail to set forth a discernable methodology are conclusory and lack the
requisite evidentiary reliability mandated by Rule 702. To be competent summary judgment
evidence, an expert’s report must contain some “indication of the reasoning process underlying the
opinion.” Boyd v. State Farm Ins. Cos., 158 F.3d 326, 331 (5th Cir. 1998); see Michaels, 202 F.3d
at 754 (finding that an expert’s statement, without justification, that a repair to an aircraft’s vacuum
pump should take longer than 3.2 hours could not defeat summary judgment). Neither Daubert nor
the Federal Rules of Evidence “requires a district court to admit opinion evidence which is
connected to existing data only by the ipse dixit of the expert.” General Electric Co. v. Joiner, 522
U.S. at 136, 146 (1997). Mr. Grant’s affidavit and expert report offers a subjective opinion devoid
of an underlying factual basis or explanation that the accident was caused by an acute overloading
of the truck. As Mr. Grant’s opinions are unsupported by any analysis of the facts of this litigation,
and are silent on the methodology or reasoning process utilized, the conclusions of this report cannot
be used as summary judgment evidence on the element of causation.
Plaintiff’s motion to exclude and strike Defendant’s expert testimony is GRANTED.
B.
Defendants’ Objections
Defendants argue that the court should strike any opinions contained in Plaintiff’s affidavit
because he was not properly designated as an expert and lacks the qualifications to make such
opinions. (doc. 22 at 2.)
A party seeking summary judgment may rely on any form of evidence listed in Rule 56(c).
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See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). While the form of the summary judgment
evidence need not be admissible, the content of the evidence must meet evidentiary requirements.
Goodwin v. Johnson, 132 F.3d 162, 186 (5th Cir. 1997); Salas v. Carpenter, 980 F.2d 299, 305 (5th
Cir. 1992) (quoting Broadway v. City of Montgomery, 530 F.2d 657, 661 (5th Cir. 1976) (“Evidence
inadmissible at trial cannot be used to avoid summary judgment.”)); see also Anderson v. Dallas
Cty., No. 3:05-CV-1248-G, 2007 WL 1148994, at *3 (N.D. Tex. Apr. 18, 2007) (noting “for
example, while an affidavit has limited admissibility at trial, it is sufficient evidence to support or
defeat a motion for summary judgment even though inadmissible statements in the affidavit, such
as hearsay statements, may not be considered by the court”). Federal Rule of Evidence 103(a)(1)
requires an objecting party to make specific objections detailing the specific evidence it wishes to
strike and stating the specific grounds for striking it. Tucker v. SAS Inst., Inc., 462 F. Supp. 2d 715,
722 (N.D. Tex. 2006) (citing United States v. Avants, 367 F.3d 433, 445 (5th Cir. 2004)). “[A] trial
court judge must be fully apprised of the grounds of an objection.” Tucker, 462 F. Supp. 2d at 722.
Objections lacking specificity do not satisfy the requirements of Rule 103, and a loosely formulated
and imprecise objection does not preserve error. Id. (citing United States v. Polasek, 162 F.3d 878,
883 (5th Cir. 1998).
Plaintiff’s affidavit provides his first-hand account of the accident and the events leading up
to the accident. (doc. 22-1.) It states that he personally oversaw the loading of equipment on the
truck and determined that the total payload of the truck at the time of the accident was less than
4,500 pounds. (doc. 21-1 at 4.) He also includes a copy of a page from Defendants’ website, which
specified that the payload capacity for the same truck model is 10,000 pounds. (Id.; doc. 21-2.)
Defendants generally object to “any opinions contained within the Plaintiff’s affidavit, and
8
move[] this Court to STRIKE said opinions from consideration.” (doc. 23 at 3.) Defendants do not,
however, identify the specific statements or opinions they seek to strike. (See id.) As noted, Rule
103(a)(1) requires an objection that details the specific evidence to be stricken and the specific
grounds therefor. See Tucker, 462 F. Supp. 2d at 722 (noting that “[t]he court is not required to
review large quanta of evidence to ferret out inadmissible statements”); Shepherd v. Dallas County,
2008 WL 656889, at *6 (N.D. Tex. Mar. 6, 2008) (overruling objections because the movant failed
to point to inadmissible components). To the extent that Plaintiff’s affidavit contains statements that
constitute expert testimony, those statements will not be considered. Salas, 980 F.2d at 304 (holding
that a court should not strike an entire affidavit when portions are inadmissible); see also Williamson
v. U.S. Dep’t of Agric., 815 F.2d 368, 383 (5th Cir. 1987) (holding that a court should disregard the
inadmissible portions of a challenged affidavit).
Because Defendants’ general objection to “any opinions” contained in the affidavit does not
meet the specificity requirements of Rule 103(1)(a), it is OVERRULED, and their motion to strike
is DENIED. See, e.g., Hannon v. Kiwi Servs., No. 3:10-CV-1382-K-BH, 2011 WL 7052795, at *2
(N.D. Tex. Dec. 30, 2011), adopted as modified, 2012 WL 234650 (N.D. Tex. Jan. 24, 2012)
(denying a motion to strike for lack of specificity); Highpoint Risk Servs. LLC v. Companion Prop.
& Cas. Ins. Co., No. 3:14-CV-3398-L(BH), 2016 WL 4479511, at *8 (N.D. Tex. Aug. 25, 2016)
(same).
III. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the pleadings and evidence on file show that no
genuine issue exists as to any material fact and that the moving party is entitled to judgment as a
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matter of law. FED. R. CIV. P. 56(a).3 “[T]he substantive law will identify which facts are material.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id.
The movant makes a showing that there is no genuine issue of material fact by informing the
court of the basis of its motion and by identifying the portions of the record that reveal there are no
genuine material fact issues. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If it “bears the
burden of proof on an issue, either because [it] is the plaintiff or as a defendant [it] is asserting an
affirmative defense, [it] must establish beyond peradventure all of the essential elements of the claim
or defense to warrant judgment in [its] favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
Cir. 1986) (emphasis in original). The moving party can also meet its summary judgment burden by
“pointing out to the district court [] that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp., 477 U.S. at 325 (internal quotation omitted). There is “no genuine
issue as to any material fact [where] a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.
Once the movant meets its summary judgment burden, the non-movant must then direct the
court’s attention to evidence in the record sufficient to establish that there is a genuine issue of
material fact for trial. Celotex Corp., 477 U.S. at 324. It must go beyond its pleadings and designate
3
Defendants move for traditional summary judgment under Tex. R. Civ. P. 166a(c) and for “no evidence”
summary judgment under Fed. R. Civ. P. 56(b). Federal courts sitting in diversity jurisdiction apply federal, rather than
state, procedural law, however. Exxon Corp. v. Burglin, 42 F.3d 948, 950 (5th Cir. 1995); see also Galindo v. Precision
Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (“Texas substantive law, of course, governs this diversity suit. Rule 56,
Fed. R. Civ. P., however, governs the propriety of summary judgment.”) (citation omitted). A “no evidence” motion
for summary judgment, while conceptually correct, “neither accurately describes federal law nor has any particular
import in the vernacular of federal summary judgment procedure.” Royal Surplus Lines Ins. Co. v. Brownsville Indep.
Sch. Dist., 404 F. Supp. 2d 942, 948 (S.D. Tex. 2005); see also Gandara v. Wal-Mart Its Assumed Name or Common
Name Including Wal-Mart Stores Texas L.P., No. 3:16-CV-0818-D, 2017 WL 1021307, at *2 (N.D. Tex. Mar. 16, 2017)
(citing TEX. R. CIV. P. 166a(i)) (“[T]he term ‘no-evidence’ summary judgment motion is used in Texas state procedure,
not federal procedure.”). Defendants’ motion will be considered under Rule 56.
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specific facts to show there is a genuine issue for trial. Id.; Anderson, 477 U.S. at 249.4 While all
of the evidence must be viewed in a light most favorable to the motion’s opponent, Anderson, 477
U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)), neither conclusory
allegations nor unsubstantiated assertions satisfy the non-movant’s summary judgment burden. Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); Topalian v. Ehrman, 954 F.2d
1125, 1131 (5th Cir. 1992). Moreover, Rule 56 imposes no obligation for a court “to sift through
the record in search of evidence to support a party’s opposition to summary judgment.” Adams v.
Travelers Indem. Co., 465 F.3d 156, 164 (5th Cir. 2006) (quoting Ragas v. Tenn. Gas Pipeline Co.,
136 F.3d 455, 458 (5th Cir. 1998)).
Summary judgment in favor of the movant is proper if, after adequate time for discovery, the
motion’s opponent fails to establish the existence of an element essential to its case and as to which
it will bear the burden of proof at trial. Celotex, 477 U.S. at 322–23.
IV. ANALYSIS
Defendants move for summary judgment and seek the dismissal of all claims being asserted
against them by Plaintiff. (doc. 18.)
A.
Negligence
Defendants argue that summary judgment is proper because there is no genuine issue of
material fact to support the essential elements of Plaintiff’s negligence claims. (doc. 18 at 3.)
The elements of a negligence cause of action in Texas are: (1) the existence of a legal duty;
(2) a breach of that duty; and (3) damages proximately caused by that breach. Boudreaux v.
4
“The parties may satisfy their respective burdens by ‘citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials.’” Rooters v. State Farm Lloyds, 428 F. App’x 441, 445 (5th
Cir. 2011) (citing FED. R. CIV. P. 56(c)(1)).
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Swift Transp. Co., Inc., 402 F.3d 536, 540-41 (5th Cir. 2005) (citing IHS Cedars Treatment Ctr. of
Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)).
1.
Legal Duty
Defendants contend that there is no evidence that they had the duty to load the truck, to
inspect the truck after loading, or to ensure proper weight limits. (doc. 18 at 4.) Plaintiff never
alleged that Defendants had those duties, however. (doc. 1-1 at 4.) He claims they had the duty to
inspect the tires, maintain the tires, maintain proper inspection procedures, and tproperly train their
employees. (Id.) Because Defendants do not address the duties actually alleged by Plaintiff, they
fail to meet their initial summary judgment burden on the first element of his negligence claim.
2.
Breach of Duty
Defendants also argue that there is no evidence that they breached any of the duties alleged
by Plaintiff. (doc. 18 at 4.) They have met their initial burden of showing that no genuine issue of
material fact exists with respect to the second element of Plaintiff’s negligence claim. The burden
now shifts to Plaintiff to identify record evidence demonstrating the existence of a genuine issue of
material fact on the duties alleged breached by Defendants.
“The plaintiff must establish both the existence and the violation of a duty owed to the
plaintiff by the defendant to establish liability in tort.” Greater Hous. Transp. Co. v. Phillips, 801
S.W.2d 523, 525 (Tex. 1990). Plaintiff contends that Defendants are using their expert report “to
argue against breach by trying to establish an ‘acute overload and/or overweight situation’ at the
time of the incident.” (doc. 21 at 8.) Because Plaintiff’s affidavit provides “uncontroverted
evidence” that the truck’s payload was less than 4,500 pounds, he argues, a genuine issue of material
fact exists on whether Defendants breached a duty. (Id.) This argument conflates breach of duty
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with proximate causation. “Breach of [a legal duty] and causation are separate inquiries, however,
and an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the
other.” Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119 (Tex. 2004). The weight of payload
on the truck is relevant to the issue of causation, not breach.
Even though Defendants failed to provide summary judgment evidence proving that the
cause of the accident was an overloading of the truck, Texas law is clear that an accident alone is
no evidence of a breach. See Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 48 (Tex. App.–San
Antonio 2005, no pet.) (“[T]he occurrence of an accident is not of itself evidence of negligence.”).
To prevail, Plaintiff must prove each and every element of his negligence claim, including breach.
See Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 776 (Tex. App.—San
Antonio 2009, no pet.) (listing breach as an essential element of a negligence cause of action).
Regardless of the duty owed by Defendants, Plaintiff must still come forth with competent summary
judgment evidence to prove that they breached a duty. Nabors Drilling, U.S.A., Inc. v. Escoto, 288
S.W.3d 401, 404 (Tex. 2009). Other than his pleadings, Plaintiff has not designated any facts
demonstrating that Defendants breached a legal duty.5
As the non-movant, Plaintiff is “required to identify specific evidence in the record, and to
articulate the ‘precise manner’ in which that evidence supported [his] claim.” ContiCommodity
Servs. Inc., v. Ragan, 63 F.3d 438, 441 (5th Cir. 1995). By failing to counter with specific facts to
5
In a footnote, Plaintiff points out that he did not receive the maintenance records of the truck as part of his
discovery requests, even though Defendants agreed to provide them. (doc. 21 at 5, fn. 6.) When a party believes it needs
more time to obtain discovery to respond satisfactorily to a motion for summary judgment, Rule 56(f) is the proper
remedy. Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1266 (5th Cir. 1991). A party must show: (1) why he needs
additional discovery; and (2) how that discovery would likely create a fact issue that would defeat summary judgment.
See Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 535 (5th Cir. 1999). Plaintiff does not assert Rule 56(f),
argue that summary judgment must be denied without those maintenance records, or show why those records are needed
or how they would create a fact issue to defeat summary judgment. Notably, the discovery deadline has passed.
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show a genuine dispute exists on a breach of duty, Plaintiff has not met his burden to avoid summary
judgment on his negligence claim.
Because breach is an essential element of negligence, Defendants are entitled to summary
judgment on Plaintiff’s negligence cause of action.
3.
Proximate Cause
Defendants also move for summary judgment on the ground that there is no genuine issue
of material fact regarding the element of proximate cause. They first contend that summary
judgment is proper because their summary judgment evidence disproves Plaintiff’s proximate cause
allegations. (doc. 18 at 3.) In the alternative, they argue that Plaintiff will be unable to provide the
evidence necessary to prove proximate cause. (Id. at 4).
The defendant’s breach is the “proximate cause” of the plaintiff’s harm when it is a “cause
in fact” of the harm and “a reasonable prudent person should have known of the anticipated danger
created by [breach].” Allison v. J.P. Morgan Chase Bank, N.A., No. 1:11-CV-342, 2012 WL
4633177, at *13 (E.D. Tex. Oct. 2, 2012); Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774-75
(Tex. 2010). Mere conjecture, guess, or speculation cannot establish proximate cause; the plaintiff
must prove proximate cause with evidence of probative force. Doe v. Boys Clubs of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995). “The test for cause in fact is whether the negligent act or
omission was a substantial factor in bringing about the injury, without which the harm would not
have occurred.” Id. (internal citations omitted). But it is not enough to show cause in fact if the
defendant did nothing more “than furnish a condition which made the injury possible.” Id. “Instead,
the evidence must show that the negligence was the proximate, not the remote, cause of the injuries
and justify the conclusion that the injury was the natural probable result.” Katy Springs & Mfg. v.
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Favalora, 476 S.W.3d 579, 590 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing
Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 266 (Tex. App.—Houston [14th Dist.]
2000, pet. denied).
a.
Insufficient Evidence to Refute Proximate Cause
Defendants first argue that there is no genuine issue of material fact on the issue of causation
because their expert report provides uncontroverted evidence that the tire failed because of an acute
overload, and not due to any of the reasons alleged by Plaintiff. (doc. 18 at 3.) Plaintiff responded
with his affidavit, as well as copies of the pictures and vehicle information on the same truck model
as published on Defendants’ website. (docs. 21 at 3; 22-1; 22-2.) It states that he personally
inspected the payload on the truck and was familiar with the weight of each item, and that the total
payload in the vehicle, including the weight of the equipment, passenger, and driver, was less than
4,500 pounds. (doc. 22-1 at 3, 4.) Plaintiff noted that Defendants’ website indicated that the payload
capacity for the same truck model is 10,000 pounds. (Id.; doc. 22-2.) He argues that his affidavit
contradicts Defendants’ expert report and demonstrates the existence of a disputed material fact on
the element of causation. (doc. 21 at 5.)
Because Defendants’ expert evidence has been found inadmissible, there is no summary
judgment evidence to support their theory on causation. Defendants have not presented evidence
to disprove the proximate cause element, and the burden does not shift to Plaintiff to identify
evidence in the record raising a genuine issue of material fact as to their theory.
b.
No Evidence of Proximate Cause
Defendants alternatively argue that they are entitled to summary judgment because there is
no evidence of proximate causation. (doc. 18 at 4.) They contend that because Plaintiff did not
15
designate an expert witness, and the deadline for such designations has run,6 there is no evidence
of proximate cause. (Id.)
Expert testimony is generally required to establish causation when the nature of the
negligence is not within the experience of a layperson. Guevara v. Ferrer, 247 S.W.3d 662, 665
(Tex. 2007); see also Goodyear Tire & Rubber Co. v. Rios, 143 S.W.3d 107, 118 (Tex. App.–San
Antonio 2004, pet. denied) ( explaining that when “a lay person’s general experience and common
sense will not enable that person to determine the issue, expert testimony is required.”); Mack
Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (explaining that expert testimony is
necessary when an issue involves matters beyond the jurors’ common understanding); Roark v.
Allen, 633 S.W.2d 804, 809 (Tex. 1982) (holding that the testimony of an expert is required when
the alleged negligence is not within the experience of the layperson); Romo v. Ford Motor Co., 798
F. Supp. 2d 798, 807-10 (S.D. Tex. 2011) (determining whether a tire blowout caused a vehicle to
rollover is not within the general understanding and common knowledge of lay jurors).
Consequently, when the issue of causation in a negligence case involve subject-matter outside the
common knowledge and experience of a layperson, a plaintiff ordinarily cannot meet his burden of
proof without testimony from a qualified expert. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d
84, 89-90 (Tex. 2004); see, e.g., Driskill v. Ford Motor Co., 269 S.W.3d 199, 204-05 (Tex.
App.–Texarkana 2008, no pet.) (“There is no expert testimony bridging the analytical gap between
6
Under Federal Rule of Civil Procedure 26(a)(2), each party must disclose the identities of any expert
witnesses it intends to use to present evidence at trial. FED. R. CIV. P. 26(a)(2)(A). Furthermore, a written report of any
witnesses “retained or specifically employed to provide expert testimony” must accompany the disclosure. FED. R. CIV.
P. 26(a)(2)(B). A party who fails to comply with these rules is generally precluded from using the witness “to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” FED. R. CIV.
P. 37(c)(1); Primrose Operating Co. v. Nat’l Ins. Co., 382 F.3d 546, 563 (5th Cir. 2004). Plaintiff does not dispute
Defendants’ claim that he did not timely designate an expert witness. (See generally doc. 21.) Nor does he contend that
he should now be allowed to submit expert testimony.
16
the origin of the fire in the left rear area of an engine compartment and the conclusion that the [speed
control deactivation switch] in the areas was the cause-in-fact of the fire,” but only “a strong
suspicion,” thus requiring expert evidence from the plaintiff to avoid summary dismissal).
To meet their initial summary judgment burden, Defendants point to the absence of expert
testimony opining that the proximate cause of the accident was the condition of the tires when the
truck was rented to Plaintiff. (doc. 18 at 4.) They argue that expert testimony is required because
determining the cause in fact of a tire blowout involves matters beyond the realm of layperson
understanding. (Id. at 5.) Because Plaintiff failed to designate any expert witnesses, Defendants
maintain that he will be unable to present any evidence to establish all the requisite elements of his
negligence claim including proximate causation. (Id.) In other words, they argue that summary
judgment is appropriate here because there will be no probative evidence for the jury to consider
when determining the actual cause of the tire blowout. (Id. at 4.) A defendant can meet its summary
judgment obligation by pointing the court to the absence of evidence to support a required element
of a plaintiff’s case. See Keeley v. Cisco Sys., 2003 WL 21919771, *3 (N.D. Tex. Aug. 8, 2003)
(noting that although the defendant did not explicitly argue that plaintiff had failed to establish a
prima facie case, the defendant had satisfied its summary judgment burden by pointing to the
absence of evidence to support one prong of the prima facie case) (citing Celotex, 477 U.S. at 325).
In pointing out the need for, and lack of evidence of this necessary element, Defendants have met
their summary judgment burden. See Celotex, 477 U.S. at 325. Accordingly, the burden shifts to
Plaintiff to identify evidence in the record that raises a genuine issue of material fact. Id. at 322-24;
Little, 37 F.3d at 1075.
Plaintiff does not address Defendants’ expert testimony argument; nor does he dispute the
17
claim that he did not timely designate an expert witness. (See generally doc. 21.) He responds with
an affidavit setting out his first-hand account of renting and driving the truck, as well as of the
accident itself. (Id. at 5; doc. 21-1.) It states that he “felt and heard at least one of the tires on the
[truck] blow out,” and at the scene of the accident he “saw that at least one of the tires . . . had
exploded.” (doc. 22-1 at 5.) It also states that the tire blowout was not caused by any overloading
of the truck because it was carrying less than 4,500 pounds, which was much less than the 10,000pound payload capacity for that truck model. (Id. at 4.) Plaintiff argues that because his affidavit
is based on personal knowledge, it is sufficient evidence of a genuine issue of material fact on
whether Defendants’ negligence caused the accident and his resulting injuries. (doc. 21 at 5.)
Plaintiff claims that the condition of the tires when the truck was rented to him was the
ultimate cause of the accident. In a similar negligence case against one of the defendants in this
case, the plaintiff alleged that it leased her a vehicle with a defective front axle, frame, and front
right tire, which caused an accident and her resulting injuries. See Madere v. Enterprise Holdings,
Inc., No. 5:15-CV-954-XR, 2016 WL 7235829 (W.D.Tex., Dec. 14, 2016). Because she was
alleging that her injuries were caused by a defect in the vehicle, the court looked to products liability
case law to determine whether expert testimony was required. Id. at *2. In products liability cases,
Texas courts have “consistently required competent expert testimony and objective proof” of a
defect. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004). Determining the
actual cause of a tire blowout necessarily “involves the use of specialized equipment and techniques
unfamiliar to the ordinary person.” Id.; see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W. 3d
797, 806 (Tex. 2006) (“Tire chemistry and design and the adhesion properties of tire components
is a highly specialized field.”); Romo, 798 F. Supp. 2d at 810 (“[W]hether the tire contained a defect
18
and whether that defect caused the accident involves complex questions of chemistry, engineering
and physics beyond the general understanding and common knowledge of laypersons.”). Given that
Plaintiff’s negligence claim involves a tire failure, the Court agrees with Madere that expert
testimony is required. See also Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex.
2015); Cooper Tire, 204 S.W.3d at 806.
Without expert testimony, Plaintiff has provided no evidence supporting his claim that the
alleged condition of the tire, as caused or allowed by the acts or omissions of Defendants,
proximately caused his injury. See, e.g., Kallassy v. Cirrus Design Corp., No. CIV.A.
3:04-CV-0727N, 2006 WL 1489248, at *8 (N.D. Tex. May 30, 2006), aff’d, 265 F. App’x 165 (5th
Cir. 2008) (granting summary judgment on the negligence claim where plaintiff could not prove
causation due to insufficiency of expert evidence); Mack Trucks, 206 S.W.3d at 572 (upholding
summary judgment of a negligence claim against a manufacturer because, without expert testimony
on the cause of a fire after a tanker truck overturned, the plaintiff did not have any evidence of
causation); Renfro v. Hartford Underwriters Ins. Co., 2007 WL 2446281, at *2 (N.D. Tex. Aug. 29,
2007) (dismissing the plaintiff’s claims on summary judgment where expert testimony was required
to prove causation and the plaintiff failed to designate an expert witness in accordance with the
court’s scheduling order).
Plaintiff’s affidavit does not constitute probative evidence of causation on subject-matter
beyond the familiarity of the ordinary person. It is not a substitute for expert testimony. “Proof
other than expert testimony will constitute some evidence of causation only when a layperson’s
general experience and common understanding would enable the layperson to determine from the
evidence, with reasonable probability, the causal relationship between the event and the condition.”
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Mack Trucks, 206 S.W.3d at 583. Further, a plaintiff’s “best guess” of the cause of an accident is
too speculative to establish cause in fact. Loeser v. Sans One, Inc., 187 S.W.3d 685, 686 (Tex.
App.–Houston [14th Dist] 2006, pet. denied). “Evidence that is so slight as to make any inference
a guess is in legal effect no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.
2004). Plaintiff’s general observations from the accident is evidence that a tire blowout occurred;
his suspicion that the tire failed because it was not properly maintained or inflated, is just that suspicion. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (citing Johnson v. Brewer
& Pritchard, P.C., 73 S.W.3d 193, 210 (Tex. 2002) (citations omitted) (explaining that “some
suspicion linked to other suspicion produces only more suspicion, which is not the same as some
evidence”). Other than the existence of the accident itself, Plaintiff has not presented any evidence
that Defendants breached a duty owed to him, or that such breach proximately caused his injuries.
Trejo, 185 S.W.3d at 48; See Ford Motor, 135 S.W.3d at 602 (“The inference of defect may not be
drawn . . . from the mere fact of a product-related accident.”).
Because Plaintiff tenders no competent evidence that identifies a specific defect or condition
in the tires, and fails to rule out other possible causes of the accident, his negligence claim fails as
a matter of law. See Madere, 2016 WL 7235829, at *2 (granting summary judgment when the
plaintiff merely relies upon her subjective belief, conclusory statements, and hearsay that the vehicle
leased to her had a defective front axle, frame, and front tire in opposition to the motion).
Defendants are thus entitled to summary judgment on Plaintiff’s negligence claim as a matter of law.
B.
Negligence Per Se
Plaintiff also asserts a claim for negligence per se. (doc. 1-1 at 4.)
“Negligence per se applies when the courts have determined that the violation of a particular
20
statute is negligence as a matter of law.” Allison, 2012 WL 4633177, at *13 (citation omitted); Smith
v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). To state a claim for negligence per se, a plaintiff must
show that the defendant violated a qualifying statute and that its violation was the proximate cause
of his damages. Ward v. ACS State & Local Sols., Inc., 328 S.W.3d 648, 652 (Tex. App.–Dallas
2010, no pet.) (citing Moughon v. Wolf, 576 S.W.2d 603, 604 n. 2 (Tex. 1978)). Plaintiff, however,
does not identify the violation of a specific statute, much less state how courts have considered any
statute to establish negligence per se in this case. “Without a citation to a statutory provision, the
Court is unable to determine whether the facts alleged state a violation of any statute.” Del Castillo
v. PMI Holdings N. Am. Inc., No. 4:14-cv-03435, 2016 WL 3745953, at *5 (S.D. Tex. July 13,
2016); see also In re Oil Spill by the Oil Rig DEEPWATER HORIZON, 835 F. Supp. 2d 175, 182
(E.D. La. 2011), aff'd sub nom. In re DEEPWATER HORIZON, 745 F.3d 157 (5th Cir. 2014) (“[T]he
complaints fail to plead any specific statutes on which the negligence per se claims are based;
therefore, those claims are dismissed.”); Estrada v. Indus. Transit, Inc., No. 4:16-CV-013-DAE,
2016 WL 10967300, at *3 (W.D. Tex. Aug. 8, 2016) (“Plaintiff has failed to state a claim for
negligence per se because he failed to plead the statute [Defendant] allegedly violated.”). By not
identifying a law or statute in support of his negligence per se claim, Plaintiff has failed to state a
negligence per se claim for which relief can be granted. Further, Plaintiff’s negligence per se claim
also fails for the same reasons as his negligence claim.
Because Plaintiff has failed to demonstrate the existence of a genuine issue of material fact
on all of the essential elements for a negligence cause of action, Defendants are also entitled to
summary judgment on the negligence per se claim.
21
C.
Gross Negligence
Plaintiff maintains that the acts or omissions of Defendants, which underlie his negligence
cause of action, “constituted gross negligence, which proximately caused [the accident] and
Plaintiff’s injuries and damages.” (doc. 1-1 at 5.)
In Texas, “gross negligence is not a separate cause of action apart from negligence.” RLI Ins.
Co. v. Union Pac. R. Co., 463 F. Supp. 2d 646, 649-50 (S.D. Tex. 2006) (citing Prati v. New Prime,
Inc., 949 S.W.2d 552, 557 (Tex. App.–Amarillo 1997, writ denied)). “Rather, the degree of
negligence characterized as gross negligence is relevant only to a recovery of exemplary damages.”
Id. (citing Riley v. Champion Int’l Corp., 973 F. Supp. 634, 641 (E.D. Tex. 1997)). “[A] plaintiff
cannot recover exemplary damages,” however, “until he or she proves an entitlement to actual
damages.” Newman v. Tropical Visions, Inc., 891 S.W.2d 713, 721-22 (Tex. App.–San Antonio
1994, writ denied) (citing cases); see also Riley, 973 F. Supp. 634, 648 (E.D. Tex. 1997) (“Recovery
of actual damages in tort is necessary to pursue a gross negligence claim.”). In other words, a
defendant “cannot be grossly negligent without being negligent.” Driskill, 269 S.W.3d at 206.
Accordingly, Plaintiff’s gross negligence claim fails for the same reasons as his negligence claim.
Because there is no evidence of causation, Defendants are also entitled to summary judgment
on the gross negligence claim.
V. CONCLUSION
Defendants’ motion for summary judgment is GRANTED.
By separate judgment,
Plaintiff’s negligence, negligence per se, and gross negligence claims against Defendants will be
DISMISSED WITH PREJUDICE.
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SO ORDERED on this 13th day of November, 2018.
___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
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