Fields et al v. Cavco Industries, Inc. et al

Filing 58

ORDER GRANTING Defendants Cavco Industries, Inc., Palm Harbor Homes, Inc., and Palm Harbor Villages, Inc.'s 41 Motion for Summary Judgment. Signed by Judge Robert Pitman. (lt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MICHAEL FIELDS, individually and as
representative of the Estate of Romny Alene Fields,
and as next friend of E.F. and O.F.,
Plaintiff,
v.
CAVCO INDUSTRIES, INC., et al.,
Defendants and Third-Party
Plaintiffs,
v.
NATHAN GLENN COX d/b/a
Glenn’s Mobile Home Service,
Third-Party Plaintiff and
Third-Party Defendant,
v.
TRAVELERS INSURANCE,
Third-Party Defendant.

§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§
§

1:16-CV-1249-RP

ORDER
Before the Court are Defendants Cavco Industries, Inc.; Palm Harbor Homes, Inc.; and
Palm Harbor Villages, Inc.’s (collectively, “Defendants”) Motion for Summary Judgment, (Dkt. 41),
and Plaintiff Michael Fields’ (“Fields”) response. Having considered the parties’ arguments, the
factual record, and the relevant law, the Court grants Defendants’ motion.
I. BACKGROUND
This case arises out of an automotive collision that resulted in a person’s death. Defendants
build and sell manufactured homes; Third-Party Defendant Glenn’s Mobile Home Service
(“Glenn’s”) is a transportation company that was hired by one of the Defendants—it is unclear

which one—to drive a manufactured home divided into two sections from Fort Worth to San
Antonio. (Mot. Summ. J., Dkt. 41, at 3). Daniel Brown (“Brown”) and Thomas Cox (“Cox”) are
drivers Glenn’s hired to tow the two sections. (Brown Dep., Dkt. 45-3, at 19:12–21:24). The two
drove in tandem, with Cox towing his half of the home in the lead and Brown towing the other half
behind Cox. (Id. at 19:16–25). Near Hutto, Texas, a wheel came loose from the trailer underneath
Cox’s half of the home and rolled into the road. (T. Cox Dep., Dkt. 45-2, at 44:18–45:1; Brown
Dep., Dkt. 45-3, at 31:10–16). Brown saw the wheel come loose, alerted Cox, and the two drivers
pulled over to the shoulder to collect and replace the tire. (T. Cox Dep., Dkt. 45-2, at 51:7–52:18;
Brown Dep., Dkt. 45-3, at 31:2–19). Brown did not pull far enough off the road, however, and he
left part of the home hanging out into a lane of traffic. (T. Cox Dep., Dkt. 45-2, at 37:6–17). An
oncoming driver, Fields’ wife, collided with the home and died as a result of injuries sustained in the
crash. (Id. at 62:10–63:14).
Fields filed state-court actions against Glenn’s, Cox, Brown, and Defendants for damages
arising out of his wife’s death. (Mot. Summ. J., Dkt. 41, at 3). Fields then settled with Glenn’s, Cox,
and Brown and brought this action against Defendants. (Id. at 3–4).
Fields’ action contains claims for negligence and gross negligence. (Compl., Dkt. 1, at 4–8).
Fields initially claimed that Defendants were negligent in eleven different ways, including by failing
to properly train employees, negligently entrusting the trailer to incompetent drivers, failing to safely
design the trailer with an appropriate bumper, and failing to “remedy the issue of their trailers losing
wheels once they became aware of the problem.” (Id. at 5–6). Fields also initially claimed that
Defendants’ failure to remedy the wheel-failure problem or install safe bumpers were grossly
negligent. (Id. at 6–8).
By the summary judgment stage of this action, Fields had abandoned all but two theories of
negligence: failure to remedy the known tire-failure problem and negligent entrustment. (Resp. Mot.
2

Summ. J., Dkt. 45, at 6–10). For the tire-failure theory, Fields offers evidence that it is not
uncommon for recycled tires to go flat or come loose from manufactured home trailers. Cox
testified at a deposition that he has had 17 trailer tires go flat or come loose on a single trip. (Cox.
Dep., Dkt. 45-2, at 55:7–20). He testified that he has had a trip where a tire failed “every 10 or 15
miles” and he and his other driver ran out of spares. (Id. at 56:3–21). Tire failures—typically, flats—
allegedly happen “more often than not,” and Cox testified that he would expect a tire failure on a
trip like the one at issue in this case. (Id. at 57:9–21). According to Pedro Rodriguez, a purported
expert in the manufactured-housing industry, Palm Harbor was aware that wheel failures were a
common problem. (Rodriguez Aff., Dkt. 45-5, at 3). Rodriguez states that recycled tires are known
failure risks, and that the tires used on the trailers involved in this case were recycled. (Id.).
As for Fields’ negligent-entrustment theory, Fields argues that the Glenn’s drivers were
incompetent because Glenn’s had no rules for responding to a wheel failure and that Defendants
knew that Glenn’s lacked rules but did nothing to make sure Glenn’s had appropriate rules. (Resp.
Mot. Summ. J., Dkt. 45, at 9–10). Cox admits that Glenn’s has no policy for how to deal with a
loose tire. (Cox. Dep., Dkt. 45-2, at 30:25–31:4). Rodriguez states that Palm Harbor “failed to
provide adequate training” to the Glenn’s drivers. (Rodriguez Aff., Dkt. 45-5, at 3).
Defendants, meanwhile, argue that Fields’ tire-failure negligence claim must fail because
Fields has no evidence that this particular tire failure was caused by the companies’ negligence. (Hr’g
Arg., Dkt. 57). As for the negligent-entrustment claim, Defendants argue that the Glenn’s drivers
were properly licensed and had competent driving records. (Mot. Summ. J., Dkt. 41, at 12–13).
The parties participated in a hearing regarding the summary judgment motion on January 30,
2018. (Minute Entry, Dkt. 57).

3

II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure
only “if the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine only if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “A fact issue is ‘material’ if its resolution could affect the
outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).
The party moving for summary judgment bears the initial burden of “informing the district
court of the basis for its motion, and identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of
evidence to support the nonmoving party’s case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544
(5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a
genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585–87
(1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). After the non-movant
has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for
the non-movant, summary judgment will be granted. Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 175 (5th Cir. 2000). The court must view the summary judgment evidence in the light most
favorable to the non-movant. Rosado v. Deters, 5 F.3d 119, 123 (5th Cir. 1993) (citation and quotation
marks omitted). That said, a party “may not rest upon mere allegations or denials in its pleadings,
but must set forth specific facts showing the existence of a genuine issue for trial.” Id. (citing
Anderson, 477 U.S. at 256–57).

4

III. DISCUSSION
Based on Fields’ response to Defendants’ motion, he maintains two separate theories to
support his claims for negligence and gross negligence: failure to remedy the known tire-failure
problem and negligent entrustment. (Pl.’s Resp. Mot. Summ. J., Dkt. 45, at 6–10). The Court will
address each theory in turn.
A. Tire Failure
Fields argues that Defendants “had a duty to use better wheels” and that they breached that
duty “when they used recycled tires and axles on this mobile home.” (Id. at 6–7). To be clear, Fields’
claim is not that Defendants had a duty not to use the particular tire that came loose because it was
defective; Fields has no evidence that it was. Neither Fields nor any witness in this case has
inspected the tire. Fields has not deposed any witness from Defendants who might have knowledge
of the tire’s condition. Other than Cox testifying at deposition that he had been “driving normal[ly]”
that day, there is no evidence that the tire failure was not caused by a condition on the road or driver
error.
Instead, Fields’ claim is that Defendants had a duty not to use recycled tires at all. Fields says
that recycled wheels and axles are “inherently dangerous” because repeated use wears down the
components. (Id. at 8). Indeed, the only evidence about the loose tire or the axle to which it was
connected is that both were recycled, which Rodriguez concluded after reviewing an invoice.
(Rodriguez Aff., Dkt. 45-5, at 3). But Rodriguez admits that he has not inspected the trailer, the tire,
or the axle at issue in this case, (id. at 1), and thus can only speculate that the tire and axle were
“more than likely . . . unsafe to use.” (Id. at 3).
Whether a duty exists under a given set of circumstances is a question of law for the court.
Vasquez v. S. Tire Mart, LLC, 393 S.W.3d 814, 818 (Tex. App.—El Paso 2012, no pet.). “In order to
determine state law, federal courts look to final decisions of the highest court of the state. When
5

there is no ruling by the state’s highest court, it is the duty of the federal court to determine[,] as best
it can, what the highest court of the state would decide.” Transcon. Gas Pipe Line Corp. v. Transportation
Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992). “In making an Erie guess in the absence of a ruling from
the state’s highest court, [a federal court] may look to the decisions of intermediate appellate state
courts for guidance.” Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000).
Although the Texas Supreme Court has never addressed whether a duty exists in a case such
as this, a Texas appellate court has concluded that a tire installer owed no duty in a case with similar
circumstances. Vasquez, 393 S.W.3d at 820. In Vasquez, a garbage truck tire blew out, causing an
accident in which the driver was injured. Id. at 816. The driver sued the tire installer, alleging that it
was negligent to install a retread tire because retread tires are not fit for ordinary use by a garbage
truck. Id. at 817. Specifically, the driver argued that the installer breached a duty to install new tires
instead of retread tires. Id. The court found no evidence that the tire was negligently installed or that
the tire was damaged or otherwise unsuitable for use. Id. at 820. Rather, the only evidence that might
have given rise to a duty was an instruction by a garbage company manager to the installer not to use
retread tires. Id. at 818. The court held that that evidence was insufficient to give rise to a general
duty not to install retread tires. Id. at 820.
This case presents similar facts. Fields’ only evidence is that Defendants installed a recycled
tire on the trailer and that recycled tires fail with some undefined but significant degree of frequency.
(Rodriguez Aff., Dkt. 45-5, at 1–3). But, as in Vasquez, that evidence is insufficient to give rise to a
duty to avoid recycled tires altogether. Fields’ own witness admits that federal regulations permit the
use of recycled tires. (Id. at 1). That witness’s affidavit fails to establish that recycled tires are so
hazardous to use that Defendants have a duty never to use them. Rodriguez claims that wheel
failures are a “well known issue” in the industry, but provides no evidence to suggest how
commonly recycled tires and axles fail by coming loose or going flat. (Id.). Moreover, Rodriguez
6

admits that driver error is a “common cause” of tire failure. (Id. at 2). Rodriguez’s affidavit—the sole
source of evidence that recycled tires might be inherently dangerous—establishes only that recycled
tires and axles might be more prone to failure. It does not establish that they are so overwhelmingly
prone to failure that even the installation of a lightly used and good-condition recycled tire or axle is
so dangerous as to generate a legal duty. In light of Vasquez, this evidence is not strong enough to
persuade the Court that Texas law recognizes a general duty not to install recycled tires or axles onto
manufactured home trailers. And because Defendants have not violated any duty to Fields, his tirefailure claim must fail as a matter of law. See Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014)
(holding that, in a negligence action, a defendant is entitled to judgment as a matter of law if the
defendant owes no duty to the plaintiff).
B. Negligent Entrustment
Fields’ second negligence theory is that Defendants are liable for negligent entrustment
“because they gave a known danger to an unskilled contractor.” (Resp. Mot. Summ. J., Dkt. 45, at 9).
Fields argues that Glenn’s had “no rules” about how drivers should respond to wheel failures and
that Defendants “did nothing to make sure they had such rules.” (Id. at 9–10). Defendants respond
that there is no evidence that the Glenn’s drivers were incompetent or reckless, (Mot. Summ. J.,
Dkt. 41, at 12–13), and the Court agrees.
To establish liability under this theory, Fields must show that: (1) Defendants entrusted the
vehicle to Glenn’s; (2) Glenn’s employed unlicensed, incompetent, or reckless drivers; (3) at the time
of the entrustment, Defendants knew or should have known that Glenn’s employed unlicensed,
incompetent, or reckless drivers; (4) a Glenn’s driver was negligent on the occasion in question; and
(5) the driver’s negligence proximately caused the accident. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 758 (Tex. 2007). Proving that Defendants should have known that a Glenn’s driver
would drive recklessly or incompetently requires more than proving that Defendants should have
7

known that a Glenn’s driver would drive negligently. See 4Front Engineered Sols., Inc. v. Rosales, 505
S.W.3d 905, 910 (Tex. 2016) (“In a sense, the name ‘negligent entrustment’ can be misleading,
because the claim requires a showing of more than just general negligence. . . . [A plaintiff] ha[s] to
prove that [the operator] was incompetent to operate the forklift or would operate it recklessly, and
that [the employer] knew or should have known of [the operator’s] incompetence or recklessness.”).
Fields’ negligent entrustment claim fails because the summary judgment evidence does not
establish that Defendants should have known that Cox or Brown were reckless or incompetent.1
According to Nathan Glenn Cox, the owner of Glenn’s, no Glenn’s driver had ever been involved
in a major accident. 2 (N. Cox. Dep., Dkt. 45-1, at 35:6–16). Brown testified that he was “very
experienced” in moving manufactured homes after doing so for “many, many years.” (Brown Dep.,
Dkt. 45-3, at 17:4–9). Thomas Cox testified that he is prepared to handle flat tires or axle failures; he
has spare tires and axles, tools to fix or replace them, and experience doing so. (T. Cox Dep., Dkt.
45-2, at 53:17–60:23). The lack of a formal policy on how to handle loose tires is not sufficient
evidence that the Glenn’s drivers were reckless or incompetent in light of their extensive experience
transporting manufactured homes and dealing with tire failures without incident. See 4Front, 505
S.W.3d at 911 (holding that a warehouse company should not have known that an unlicensed and
untrained forklift driver would operate the vehicle incompetently or recklessly when the driver had
“safely operated the forklift at [the company’s] facility before”). Because Fields’ evidence fails to
create a genuine issue of material fact as to whether Defendants should have known the Glenn’s
drivers would haul the manufactured home trailers incompetently or recklessly, Defendants are
entitled to summary judgment on this claim, as well.

The parties agree that Cox and Brown were properly licensed at the time of the collision. (Mot. Summ. J., Dkt. 41, at
12; Pl.’s Resp. Mot. Summ. J., Dkt. 45, at 10).

1

More specifically, Cox testified that he was the only Glenn’s driver ever to be involved in an accident, which consisted
of bumping the side of a car as he was rounding a corner. (N. Cox. Dep., Dkt. 45-1, at 35:11–16)
2

8

IV. CONCLUSION
For these reasons, Defendants are entitled to summary judgment on each of Fields’ claims.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment, (Dkt. 41), is
GRANTED. Fields’ claims are therefore DISMISSED WITHOUT PREJUDICE.
SIGNED on March 6, 2018.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

9