Onofre et al v. C.R. England, Inc. et al
Filing
57
ORDER GRANTING IN PART AND DENYING IN PART 25 Motion for Partial Summary Judgment; DENYING 26 Motion for Summary Judgment. Signed by Judge David A. Ezra. (aej)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JACQUELINE ONOFRE,
Plaintiff,
vs.
C.R. ENGLAND, INC. and PAUL
JOHNSON,
Defendants.
§
§
§
§
§
§
§
§
§
NO. SA-15-CV-425-DAE
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT;
AND (2) MOOTING PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
On June 16, 2016, the Court heard oral argument on the Motion for
Partial Summary Judgment filed by Defendants C.R. England, Inc. (“C.R.
England”) and Paul Johnson (collectively, “Defendants”) (Dkt. # 25), as well as the
Motion for Partial Summary Judgment filed by Plaintiff Jacqueline Onofre,
individually and on behalf of her two minor children Hannah and Luke. 1 (Dkt.
# 26). Robert Paul Wilson, Esq., appeared on behalf of Plaintiff. Averie
Maldonado, Esq., appeared on behalf of Defendants. After careful consideration of
the memoranda in support of and in opposition to the motions, and in light of the
1
During the hearing, counsel for Plaintiff moved to dismiss Hannah and Luke as
parties; the Court orally granted this motion.
1
parties’ arguments at the hearing, the Court, for the reasons that follow, GRANTS
IN PART AND DENIES IN PART Defendants’ Motion for Partial Summary
Judgment (Dkt. # 25), and DENIES AS MOOT Plaintiff’s Motion for Partial
Summary Judgment (Dkt. # 26).
FACTS
Plaintiff alleges that on August 26, 2014, she and her two minor
children were occupants of a parked 2012 Jeep Liberty (“the vehicle”) that was
struck by a commercial tractor-trailer driven by Defendant Paul Johnson, who was
driving for C.R. England. (“Compl.,” Dkt. # 1-1 ¶ 8.)2 The parties agree that
when the accident occurred, Johnson was attempting to park his tractor-trailer in
the parking lot of a Love’s gas station, when the truck hit the open rear door of
Plaintiff’s parked vehicle in the parking lot. (“Am. Reply,” Dkt. # 33, Ex. A ¶ 8;
Dkt. # 25 at 1.)
According to Plaintiff, she and her two children were in the vehicle
when the tractor-trailer hit the rear door, and the vehicle’s back end was lifted
approximately four feet off the ground before coming loose, bouncing a few times,
2
While it is undisputed by the parties that the vehicle was parked, Plaintiff’s
complaint states that the accident occurred while she was “travelling . . . on
Interstate Highway 35 in Bexar County, Texas,” while all other documents before
the Court state that the accident occurred while Plaintiff was stopped at a Love’s
truck stop. (See Compl. ¶ 8, Dkt. # 25, Dkt. # 30.) The Court attributes the
statement in the Complaint to error of Plaintiff’s counsel.
2
and landing on the ground. (Dkt. # 30 at 1–2.) Plaintiff alleges that both the truck
Johnson was driving and the trailer he was towing were owned and operated by
C.R. England. (Dkt. # 30 at 2.)
Defendants state that when Johnson applied to work at C.R. England
on May 5, 2014, he disclosed that he had been involved in a minor accident in
February 2014, but that he had an otherwise clean record and had not been issued
any traffic citations in the prior five years. (Dkt. # 25 at 3; “Driver Qualification
File,” Dkt. # 30, Ex. C at 8, 58.) Johnson was issued a commercial driver’s license
permit on May 8, 2014, through Premier Truck Driving School’s professional truck
driving course. (Dkt. # 25 at 3; Driver Qualification File at 61–62.) He passed the
driving tests 3 and passed his drug and alcohol tests. (Dkt. # 25 at 3; Driver
Qualification File at 60–62.) Johnson was cleared by the medical examiner and
was issued an official license on May 17, 2014; he attended C.R. England’s safety
orientation on May 20, 2014. (Dkt. # 25 at 3; Driver Qualification File at 45, 51.)
It is undisputed that Johnson had a series of driving-related incidents
between the time he completed the safety orientation with C.R. England and the
August 26, 2014 accident at issue in this case. Defendants do not contest that the
3
Plaintiff argues that Johnson did not receive adequate scores during his final
evaluation on either turning or backing up, and that C.R. England should not have
allowed him to drive. (Dkt. # 30 at 4, id. Ex. C at 000131.) This is addressed in a
separate section.
3
following incidents are documented in Johnson’s driver qualification file:
(1) Johnson hit a stop sign while making a wide right-hand turn on July 14, 2014,
causing $750 of damage (Dkt. # 25 at 4; Driver Qualification File at 111, 113);
(2) Johnson caused $800 of damage to his truck when making a tight turn around
another truck on August 7, 2014 (Dkt. # 25 at 4; Driver Qualification File at 126–
27); (3) Johnson’s tractor-trailer had to be towed out of a ditch on August 23, 2014,
which caused no damage to the truck or other property and was not classified as an
accident (Dkt. # 25 at 4; id. Ex. A at 22–23); (4) Johnson “made contact with a
concrete block while backing into a dock” on August 25, 2014, causing $1,500 of
damage (Dkt. # 25 at 4; Driver Qualification File at 131). The accident at the heart
of this lawsuit occurred the day after the incident with the dock. After Johnson’s
first and second accidents, C.R. England provided Johnson with additional training
in the form of a road evaluation on effecting safe turns, a range evaluation, and
various safety videos; 4 however, no remedial activity had occurred with regard to
the August 23 and August 25 incidents. (Dkt. # 25 at 4; id. Ex. A at 14–16, 21.)
4
Specifically, after Johnson hit the stop sign, C.R. England “brought him in for an
evaluation, and within the evaluation, they road tested him to see whether or not
there was a deficiency in his capacity to operate the vehicle.” (“Thompson Dep.,”
Dkt. # 30, Ex. B. at 92:13–16.) Pursuant to the evaluation and road test, C.R.
England made the decision to “authorize[ ] further training” rather than terminate
Johnson, and “sent him back out” on the road. (id. at 92:21–23.)
4
Instead, Johnson was terminated on August 27, 2014. (Driver Qualification File at
135.)
On March 20, 2015, Plaintiff filed suit against Johnson and C.R.
England in the 57th Judicial District Court of Bexar County, Texas. (Dkt. # 1-1.)
On May 22, 2015, Defendants removed the case to this Court, pursuant to its
diversity jurisdiction under 28 U.S.C. §§ 1332 and 1441(a). (Dkt. # 1.) Plaintiff
alleges that Johnson is liable for negligence and negligence per se for violating the
Texas Transportation Code. (Compl. ¶ 10–11.) Plaintiff alleges C.R. England is
liable under the doctrine of respondeat superior, as well as for negligent hiring,
training, supervision, and retention of Johnson, 5 and negligent entrustment of a
vehicle to Johnson. (Compl. ¶ 13.) Plaintiff also alleges that Johnson and C.R.
England were grossly negligent. (Compl. ¶¶ 14–15.)
Plaintiff alleges that she suffered severe and permanent bodily injuries
to her head, neck, back, “and other parts of her body generally” as a result of the
accident, and seeks past and future medical expenses, damages for physical pain,
suffering, physical impairment, disability, mental anguish, and physical
disfigurement. (Compl. ¶¶ 17– 20.) At the hearing, Plaintiff’s counsel averred that
the minor children did not suffer any physical injuries in the accident, and moved
5
Plaintiff also alleges that C.R. England is liable for negligent failure to ensure
Johnson’s driving qualifications, but it appears that this is subsumed by the
negligent hiring, training, supervision, and retention claims. (Compl. ¶ 13.)
5
to remove the minor children as parties in the case. The complaint does not assert
a cause of action for intentional infliction of emotional distress; accordingly, no
claims exist on behalf of the minor children, and they are dismissed as parties.
Defendants filed their Motion for Partial Summary Judgment on
January 8, 2016. (Dkt. # 25.) Plaintiff responded on January 22, 2016. (Dkt.
# 30.) Defendant filed a reply on January 29, 2016. (Dkt. # 34.) Plaintiff also
filed a Motion for Partial Summary Judgment on January 8, 2016. (Dkt. # 26.) On
January 25, 2016, Defendants filed an amended answer to Plaintiff’s complaint,
addressing the issue in Plaintiff’s Motion. (Dkt. # 33.)
LEGAL STANDARD
“Summary judgment is appropriate when, viewing the evidence and
all justifiable inferences in the light most favorable to the non-moving party, there
is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law.” Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576 (5th Cir.
2003); Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986). The main purpose of summary judgment is to dispose of factually
unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323–24
(1986). The moving party bears the initial burden of demonstrating the absence of
any genuine issue of material fact. Id. at 323. If the moving party meets this
burden, the non-moving party must come forward with specific facts that establish
6
the existence of a genuine issue for trial. ACE Am. Ins. Co. v. Freeport Welding &
Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012). In deciding whether a fact
issue exists, the Court “may not make credibility determinations or weigh the
evidence.” Tibler v. Dlabal, 743 F.3d 1004, 1007 (5th Cir. 2014) (quoting Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). However,
“[u]nsubstantiated assertions, improbable inferences, and unsupported speculation
are not sufficient to defeat a motion for summary judgment.” Brown v. City of
Hous., 337 F.3d 539, 541 (5th Cir. 2003). “Where the record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no
‘genuine issue for trial.’” Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012)
(quoting Matsuhita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)).
ANALYSIS
I. Negligence Claims Against C.R. England
Plaintiff alleges that C.R. England is negligent under various theories:
(1) negligent hiring, training and supervision, and retention of Johnson; and (2)
negligent entrustment of a vehicle to Johnson. (Dkt. # 30 at 4–8.) Each is
addressed below.
7
A. Negligent hiring, training, and supervision claims
“Negligent hiring, retention, and supervision claims are all simple
negligence causes of action based on an employer’s direct negligence rather than
on vicarious liability.” Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex.
2002). Like any other cause of action involving negligence, a plaintiff must
demonstrate that the employer had a legal duty, that “a breach of that duty”
occurred, and that the plaintiff’s damages were “proximately caused by the
breach.” Id.; Castillo v. Gulf Coast Livestock Market, LLC, 392 S.W. 3d 299, 306
(Tex. App. 2012) (overturned on other grounds by Gonzalez v. Ramirez, 463 S.W.
3d 499 (Tex. 2015)). Such “claims focus on the employer’s own negligence, not
the negligence of the employee. An employer can be liable for negligence if its
failure to use due care in hiring, supervising, or retaining an employee creates an
unreasonable risk of harm to others.” Clark v. PFPP Ltd. P’ship, 455 S.W.3d 283,
287 (Tex. App. 2015).
1. Whether C.R. England is liable for negligent hiring
“An employer owes a duty to its other employees and to the general
public to ascertain the qualifications and competence of the employees it hires,
especially when the employees are engaged in occupations that require skill or
experience and that could be hazardous to the safety of others.” Morris, 78 S.W.3d
at 49. “Negligence in hiring requires that the employer’s ‘failure to investigate,
8
screen, or supervise its hires proximately caused the injuries the plaintiffs allege.’”
Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006) (quoting Doe v.
Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). Here, C.R.
England had a duty to hire drivers competent and fit to operate commercial
vehicles on public roads. Accordingly, C.R. England is liable for negligent hiring
where “it hires an incompetent or unfit employee whom it knows, or by the
exercise of reasonable care should have known, was incompetent or unfit, thereby
creating an unreasonable risk of harm to others.” Morris, 78 S.W.3d at 49. “An
employer is not negligent when there is nothing in the employee’s background that
would cause a reasonable employer not to hire . . . the employee.”
Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App. 2008)
Plaintiff alleges that C.R. England breached its duty to hire competent
and fit drivers in two ways: (1) it was aware that Johnson had had an accident in
the last five years prior to applying to work for C.R. England and hired him
anyway (Dkt. # 30 at 4); (2) Johnson allegedly received low scores in his final
driving evaluation, indicating that he was not adequately skilled in turning or
backing the truck. (Dkt. # 30 at 4–5; Driver Qualification File at 60.)
The C.R. England driver application asks applicants to list all
accidents they have been involved in for the past five years. Johnson listed only
one accident, which occurred on February 4, 2014. (“Driver Qualification File,”
9
Dkt. # 30, Ex. C, at 12.) According to the application, the accident occurred when
he was pulling into a side street to back up and turn around. (Id.; Dkt. # 25 at 3.)
Johnson was not issued a ticket for the incident, and reported he that no injuries or
fatalities occurred as a result. (Id.) The driver application also requires applicants
to list any tickets received in the past five years; Johnson did not report any tickets,
and did not report that his license had ever been suspended or revoked. (Id.)
There is neither evidence in the record, nor allegations in the pleadings to indicate
that this information is untrue. Plaintiff also submitted evidence that C.R. England
ran a Motor Vehicle Report on Johnson prior to extending him a full offer of
employment, and this record came back completely clear. (Id. at 58.)
Johnson’s final driver evaluation on May 15, 2014, prior to his final
offer of employment, indicates that he failed to execute a mid-turn traffic check
(Driver Qualification File at 60); according to Gary Thompson, the standards
manager for curriculum development at C.R. England, this means that Johnson did
not “look back in the opposite direction as he ma[de] his turn.” (“Thompson
Dep.,” Dkt. # 30, Ex. B at 84:1–11.) According to Thompson, Johnson’s failure to
execute a mid-turn traffic check was his only failure out of twenty evaluation
points when executing turns during the final evaluation. (Id. at 83:14–16.) This is
clear from the evaluation form itself, which indicates that Johnson was not docked
points for nineteen other evaluation points regarding turns. (Driver Qualification
10
File at 60.) Plaintiff also alleges that Johnson received a score of “negative five”
on the evaluation for his skills backing the truck. (Dkt. # 30 at 4; Driver
Qualification File at 60.) Rather, it appears that Johnson lost five points on
backing during his final evaluation. (Driver Qualification File at 60.) Nonetheless,
Johnson’s score on the road portion of his commercial trucking exam was a 90%, a
passing score. (Id.) Johnson also scored a 91.4% on the written portion of his
commercial driving exam. (Id. at 55.)
Additionally, the evidence before the Court, submitted largely by
Plaintiff, indicates that C.R. England thoroughly screened Johnson’s qualifications
prior to extending him an offer of employment. However, even if C.R. England
had further investigated Johnson before hiring him, there is no indication that they
would have found information that would cause a reasonable employer not to hire
him; the accident was not foreseeable based upon Johnson’s record at the time he
was hired. See Ramirez, 196 S.W.3d at 796–97. Plaintiff has failed to
demonstrate that C.R. England breached its duty to “ascertain the qualifications
and competence of the employees it hires,” and there is no evidence that C.R.
England was negligent when it hired Johnson as a driver. Morris, 78 S.W.3d at 49.
Accordingly, no genuine issue of material fact exists with regard to the negligent
hiring claim against C.R. England and its motion for summary judgment on this
issue is GRANTED.
11
2. Whether C.R. England is liable for negligent training and supervision
“In the context of negligent training [and supervision], the evidence
must establish that (1) the employer owed the plaintiff a legal duty to train
competent employees, (2) the employer breached that duty, and (3) the breach
proximately caused the plaintiff's injury.” McLaurin v. Waffle House, Inc., No.
CV H-14-0740, 2016 WL 1464623, at *19 (S.D. Tex. Apr. 13, 2016); Wal–Mart
Stores, Inc. v. Aguilera–Sanchez, No. 04–02–00458–CV, 2003 WL 21338174, at
*5 (Tex. App. 2003). Importantly, “[a] plaintiff must prove that a reasonably
prudent employer would have provided training beyond that which was given and
that failure to do so proximately caused his injuries. McLaurin, 2016 WL
1464623, at *19; Dangerfeld, 264 S.W.3d at 912. “[T]here is a broad consensus
among Texas courts that . . . a [negligent training or supervision] claim requires
that the plaintiff suffer some damages from the foreseeable misconduct of an
employee [trained] pursuant to the defendant's negligent practices.” Wansey v.
Hole, 379 S.W.3d 246, 247 (Tex. 2012).
Here, it is clear that C.R. England had a duty to train and supervise
Johnson on safe operation of commercial trucking vehicles. Plaintiff alleges that
C.R. England breached this duty because Johnson failed to execute a mid-turn
traffic check during his final evaluation, but was permitted to drive a commercial
vehicle without undergoing further training. (Dkt. # 30 at 6; Driver Qualification
12
File at 60.) Plaintiff also alleges that C.R. England breached its duty to train and
supervise Johnson after his accidents; Plaintiff alleges that although Johnson was
re-trained and passed evaluations after the first two accidents, the evaluations
indicate that Johnson still had difficulty turning, and that “the focus should not
have been on passing the evaluation, but on whether he could safely turn the 18wheeler.” (Dkt. # 30 at 7–8; Driver Qualification File at 117, 125.) Finally,
Plaintiff alleges that the fact that C.R. England placed Johnson on probation within
months of his date of hire is evidence of negligent supervision. (Dkt. # 30 at 6–7.)
It is undisputed that prior to being employed with C.R. England,
Johnson was required to successfully complete a commercial drivers licensing
program and new hire orientation, and pass a driving evaluation with road and
written components with a score of at least 80 percent. (Driver Qualification File
at 18, 34–36.) Plaintiff does not dispute that Johnson passed his final driving
evaluation, and do not argue that drivers are expected to receive a perfect score on
their evaluation. (Driver Qualification File at 60.) Prior to Johnson’s hire, C.R.
England provided him with safety training (id. at 68) and hazardous material and
brake inspection training (id. at 72), and required Johnson to familiarize himself
with both C.R. England’s Driver Employee Policy Manual and the Federal Motor
Carrier Safety Regulations, contained in a “Pocketbook” it provided (id. at 84).
Johnson was re-trained after each of his first two accidents; each time, he
13
completed a workbook, viewed safety videos, wrote a report on avoiding similar
accidents in the future, and completed a road evaluation. (Dkt. # 34 at 4; Driver
Qualification File at 114–17; 126–28.) Johnson received a passing score on each
driving evaluation after he completed additional training: he appears to have lost a
total of seven turning-related points on his first evaluation after retraining and his
overall evaluation score was 92%, within the passing range. (Driver Qualification
File at 117.) Johnson also passed his second evaluation after retraining; based
upon the evidence before the Court, it is unclear where, if anywhere, Johnson lost
points on this evaluation. (Id. at 125.) Still, Johnson was placed on probation after
his second accident, and was required to call the Operational Safety Manager once
a month for a year. (Id. at 126.)
Plaintiff argues that C.R. England should have determined Johnson’s
competency to drive a commercial truck by evaluating his turning skills in
isolation. (Dkt. # 30 at 8.) However, she presents no evidence to demonstrate that
C.R. England’s training or post-training evaluations were inadequate, or that a
reasonably prudent employer would have provided further training. 6
6
Plaintiff’s contention that Johnson’s probation is evidence of negligent training
and supervision is similarly meritless. While Johnson’s continued driving on
probation might support a claim of negligent entrustment, it is clear to this Court
that C.R. England placed Johnson on probation precisely because it was
supervising Johnson and tracking his incidents. Accordingly, the evidence does
not support a finding that C.R. England breached its duty to train Johnson. This
evidence will be addressed in the section discussing negligent entrustment.
14
Finally, even if Plaintiff was to present evidence that C.R. England
breached its duty to train and supervise Johnson, which she has not, she has
provided no evidence that this failure proximately caused Johnson’s accident.
Rather, it appears that Johnson had his accident despite the remedial training and
supervision he received from C.R. England. Accordingly, there is no genuine issue
of material fact as to whether C.R. England breached its duty to train and supervise
Johnson, and summary judgment is GRANTED as to this issue.
3. Whether C.R. England is liable for negligent retention
In the state of Texas, a plaintiff can recover “where an employer knew
or should have known through the exercise of reasonable care that an employee
was incompetent or unfit and that his . . . retention would thereby create an
unreasonable risk of harm to others.” Verhelst v. Michael D's Rest. San Antonio,
Inc., 154 F. Supp. 2d 959, 967 (W.D. Tex. 2001) (citing Kesler v. King, 29
F.Supp.2d 356, 376–77 (S.D. Tex. 1998)). Accordingly, C.R. England had a duty
against offering continued employment to any individual whose operation of a
commercial truck caused an unreasonable risk of harm to individuals on the road.
See id.
As stated above, Johnson had four accidents between July 14, 2014
and August 25, 2014. While these accidents were each rated a “1,” the lowest
severity level, by C.R. England, were allegedly not reportable to the Department of
15
Transportation, and were unquestionably minor—each occurred at a low rate of
speed, none involved physical harm to another person or a passenger vehicle, and
none caused property damages in excess of $1,500—their frequency could indicate
that Johnson’s retention as a truck driver created an unreasonable risk of harm to
other drivers on the road. 7 This is a question of fact for the jury. Further, the July
14, 2014, and August 7, 2014 accidents, both of which involved turning, and one
of which involved turning in a parking lot, were similar to the August 26, 2014
accident involving Plaintiff. Whether or not these two accidents, which did not
involve passenger vehicles or injuries to persons, could have made the instant
accident reasonably foreseeable to C.R. England—potentially making C.R.
England’s continued retention of Defendant the proximate cause of the accident—
is also a question of fact.
Accordingly, there is a genuine issue of material fact as to whether
C.R. England breached its duty by retaining Johnson as a driver. If a breach is
found, a second genuine issue of fact exists regarding whether this breach was the
proximate cause of the accident with Plaintiff. Summary judgment on Plaintiff’s
negligent retention claim is therefore DENIED.
7
As stated above, the a claim for negligent retention is a “simple negligence
cause[ ] of action based on an employer’s direct negligence rather than vicarious
liability.” Morris, 78 S.W.3d at 49. To prevail, a plaintiff must demonstrate that
the employer had a legal duty, that a breach occurred, and that the breach
proximately caused the plaintiff’s injuries. Id.
16
B. Negligent entrustment claim
To be liable for negligent entrustment, a Plaintiff must prove that C.R.
England (1) entrusted its vehicle; (2) “to an unlicensed, incompetent, or reckless
driver;” (3) whom C.R. England “knew or should have known was incompetent, or
reckless,” (4) that Johnson was “negligen[t] on the occasion in question; and
(5) Johnson’s negligence “proximately caused the accident.” Morris, 78 S.W.3d at
52; Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987).
Here, there is no dispute that C.R. England entrusted its tractor-trailer
to Johnson, nor is there a question that Johnson was licensed to operate a
commercial vehicle at the time the accident occurred. The parties dispute whether
Johnson was an incompetent or reckless driver, and whether C.R. England knew or
should have known Johnson was an incompetent or reckless driver. (Dkt. ## 25 at
8–9; 30 at 11–12; 34 at 7–8.) The parties do not address whether Johnson was
negligent, nor do they address whether Johnson’s negligence proximately caused
the accident.
C.R. England argues that it satisfied its duty to evaluate Johnson when
it verified that Johnson possessed a valid, unrestricted commercial driver’s license.
(Dkt. # 25 at 8.) In certain contexts, this “is evidence of a driver’s competency
absent any evidence to the contrary.” Avalos v. Brown Auto. Ctr., Inc., 63 S.W.
3d 42, 48 (Tex. App. 2001) (finding a mechanic adequately determined a driver
17
was not reckless or incompetent prior to loaning a car, because the driver held a
valid license); Bartley v. Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex.
App. 1996) (“The license evinced that [driver] possessed a minimum of
competence and skill as a driver, and it fixed the standard of conduct for
[company] in leasing its truck.”). However, those cases which state an entrustor
satisfies its duty by determining the driver possesses a valid license involve rental
car companies; Texas courts have not applied this standard in the case of a
commercial trucking company entrusting a commercial vehicle.
Whether a driver is reckless or incompetent, for purposes of liability
for negligent entrustment, is determined at “the time the entrustment was made,”
rather than at the time of the accident. Louis Thames Chevrolet Co. v. Hathaway,
712 S.W.2d 602, 604 (Tex. App. 1986). When determining whether a driver is
reckless or incompetent, “[r]eliance is generally placed upon evidence of previous
traffic violations, previous habits or intemperance.” Revisore v. West, 450 S.W.2d
361, 364 (Tex. App. 1970). Texas courts have not articulated a concrete standard
for recklessness or incompetence. Generally, a single traffic ticket “is not
sufficient to establish incompetency or recklessness.” Hathaway, 712 S.W.2d at
604. On the other hand, a driver is reckless for purposes of negligent entrustment
where “his driving presents a danger to others.” McGuire v. Wright, No. 96–
50931, 1998 WL 156342, at *3 (5th Cir. 1998) (internal emphasis omitted). With
18
the exception of extraordinarily clear cases such as intoxication at the time of
entrustment, a driver’s incompetence or recklessness is a question of fact for the
jury, and subsequent litigation deals with the sufficiency of the evidence
supporting a jury’s finding. See, e.g., Avalos, 63 S.W.3d at 49.
Plaintiff alleges that Johnson was a reckless or incompetent driver
because (1) he had a turning-related accident before he was hired; (2) he did not
receive a perfect score in turning or backing when taking his final road evaluation;
and (3) he had multiple accidents prior to the accident at issue. (Compl. ¶ 13(b);
Dkt. # 30 at 11–12.) Certainly, C.R. England was aware of this information on the
day of the accident, but argues that this does not establish Johnson’s recklessness
or incompetence, because “Johnson was never involved in any high speed, high
impact, major collisions, or collisions involving personal injury or more than
$1500 in property damage.” (Dkt. # 34 at 7–8.) Whether this conduct, of which
C.R. England was aware, rises to the level of incompetence or recklessness is a
question of fact for the jury.
Finally, “[o]n a negligent entrustment theory, a plaintiff must prove,
among other elements, that the driver was negligent on the occasion in question
and that the driver’s negligence proximately caused the accident.” Shupe v.
Lingafelter, 192 S.W.3d 577, 580 (Tex. 2006). Neither party has sought summary
judgment on the issue of Johnson’s negligence; even if there was no question of
19
fact regarding incompetence or recklessness, this Court cannot make a finding on
negligent entrustment until the issue of Johnson’s negligence is decided.
Because a genuine issue of material fact exists as to whether Johnson
was an incompetent or reckless driver on August 26, 2014 when C.R. England
entrusted the truck to him, and Johnson’s negligence has not been decided,
summary judgment on the issue of negligent entrustment is DENIED.
II. Negligence Per Se Claim against Johnson
Plaintiff’s Complaint alleges that Johnson is liable for negligence per
se for violating sections 545.351 and 545.401 of the Texas Transportation Code.
(Compl. ¶¶ 10–11.) Plaintiff’s counsel informed the Court during the hearing that
he does not intend to pursue the claims for negligence per se.8 Accordingly,
Plaintiff’s claim that Johnson is liable for negligence per se for violating sections
545.351 and 545.401 of the Texas Transportation Code are DISMISSED.
III. Gross Negligence
“The standard for proving gross negligence under Texas law is
considerably more stringent than the ‘reasonable person’ standard for ordinary
negligence.” Henderson v. Norfolk Southern Corp., 55 F.3d 1066, 1070 (5th Cir.
1995). The presence of gross negligence is established by meeting both prongs of
8
Importantly, the Court would otherwise have granted summary judgment on each
of these claims, as Plaintiff presented no evidence that Johnson violated either
section 545.351 or 545.401 of the Texas Transportation Code.
20
a two-part test. First, “viewed objectively from the actor’s standpoint, the act or
omission complained of must depart from the ordinary standard of care to such an
extent that it creates an extreme degree of risk of harming others.” Columbia Med.
Ctr. of Las Colinas, Inc., v. Hogue, 271 S.W.3d 243, 250 (Tex. 2008);
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994). Second, “the
actor must have actual, subjective awareness of the risk involved and choose to
proceed in conscious indifference to the rights, safety, or welfare of others.”
Hogue, 271 S.W.3d at 248; Moriel, 879 S.W.2d at 23; Tex. Civ. Prac. & Rem.
Code § 41.001(11). Plaintiff argues that C.R. England was grossly negligent
because it allowed Johnson to drive despite its awareness that Johnson had at least
three prior incidents involving turning or backing. (Dkt. # 30 at 16.)
A. Extreme Risk of Harm Analysis
A plaintiff seeking to recover on a theory of gross negligence must
demonstrate that the defendant was objectively aware that its act or omission
would create an extreme risk of harm for others. See Hogue, 271 S.W.3d at 250.
“‘[E]xtreme risk’ is not a remote possibility or even a high probability of minor
harm, but rather the likelihood of the plaintiff’s serious injury.” U-Haul Int’l, Inc.
v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). The risk must be “of serious harm,
‘such as death, grievous physical injury, or financial ruin.’” Henderson, 55 F.3d at
1070 (quoting Moriel, 879 F.2d at 24); see also Russell Equestrian Ctr. v. Miller,
21
406 S.W.3d 243, 251–52 (Tex. App. 2013). “An act or omission that is merely
ineffective, thoughtless, careless, or not inordinately risky is not grossly
negligent.” Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 797 (Tex. 2012).
Finally, this risk “must be examined prospectively from the perspective of the
actor, not in hindsight.” Hogue, 271 S.W.3d at 248.
Plaintiff does not present any evidence or otherwise argue that
Johnson’s demonstrated difficulty completing turns at a low rate of speed presents
an “extreme risk” of “death” or “grievous injury.” (See Dkt. # 30.) Johnson’s
prior turning-related accidents involved relatively minor property damage; even in
the instant claim, Plaintiff does not allege that her injuries are grievous.9 (See id.)
Plaintiff may successfully argue that Johnson’s actions should have notified C.R.
England of a probability that his continued truck operation would result in minor
harm, but there is no indication that the harm would rise to the level necessary to
support a finding of gross negligence. The outcome of this analysis might be
different if C.R. England permitted Johnson to drive, knowing he had difficulty
controlling his truck at high speeds, or if Johnson was a reckless driver on the
highway, or if he had been in an accident involving injury to a person. However,
Plaintiff does not argue—and the Court can find no case—to support the notion
9
While no evidence of injury has been submitted to the Court at this time, counsel
for Plaintiff stated during the hearing that Plaintiff has not undergone surgery to
correct any injuries sustained in the accident because she suffers from diabetes.
22
that continued operation of a tractor-trailer despite a demonstrated difficulty
executing tight turns presents an extreme risk of harm to others, where the driver
has not otherwise had significant difficulty operating the vehicle.
B. Subjective Awareness of the Risk Analysis
With regard to the second prong of the gross negligence test, “[i]t is
the plaintiff’s burden to show that the defendant knew about the peril but his acts
or omissions demonstrate that he did not care.” Sage v. Howard, 465 S.W.3d 398,
407 (Tex. App. 2015); also see Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d
245, 246–47 (Tex. 1999).
Plaintiff focuses exclusively on this prong of the test in her pleadings.
(Dkt. # 30 at 15–16.) The Court finds that she has adequately demonstrated that
C.R. England had subjective awareness of Johnson’s numerous turning-related
incidents. Nevertheless, Plaintiff has not met the first prong of the gross
negligence test. Plaintiff has not demonstrated that Johnson’s history of turningrelating incidents, which had previously resulted in property damage to a road sign
and the door of his truck, meant that his driving presented an extreme risk of harm
to others and that C.R. England was aware of the “peril” of continuing to allow
Johnson to operate the truck. Accordingly, Plaintiff has not demonstrated that
there is a genuine issue of material fact as to C.R. England’s liability for gross
23
negligence. Accordingly, Defendants’ motion for summary judgment on the issue
of gross negligence is GRANTED.
IV. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff’s motion sought partial summary judgment regarding
Defendants’ defense that Plaintiff was contributorily negligent in causing the
accident. (Dkt. # 26.) On January 25, 2016, Defendants filed an amended answer
eliminating the defense of contributory negligence. (Dkt. # 33.) Accordingly,
Plaintiff’s Motion for Partial Summary Judgment is DENIED AS MOOT (Dkt.
# 26.)
CONCLUSION
The negligence claims against Johnson and respondeat superior
claims 10 against C.R. England were not addressed in the instant motions for partial
summary judgment. Accordingly, these issues remain. The Court GRANTS IN
PART AND DENIES IN PART Defendants’ Motion for Partial Summary
Judgment (Dkt. # 25). The Motion is GRANTED on the issues of negligent
10
Importantly, if Plaintiff establishes that Johnson was acting in the scope of his
employment at the time of the accident, and establish that C.R. England is liable
for any potential negligence under the theory of respondeat superior, she may not
also pursue her claims for negligent retention and negligent entrustment. See
Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App. 2002)
(“Where only ordinary negligence is alleged, . . . negligent hiring or negligent
entrustment and respondeat superior are mutually exclusive modes of recovery.”);
CoTemp, Inc. v. Houston West Corp., 222 S.W.3d 487, 492 n.4 (Tex. App. 2007);
Arrington’s Estate v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App. 1979).
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hiring, negligent training, negligent supervision, and gross negligence, and these
issues are DISMISSED (Dkt. # 25). Pursuant to the parties’ agreement, the claims
for negligence per se are also DISMISSED. The Motion is DENIED on the issues
of negligent retention and negligent entrustment, and these claims remain (Dkt.
# 25). Finally, Plaintiff’s Motion for Partial Summary Judgment is DENIED AS
MOOT (Dkt. # 26).
IT IS SO ORDERED
DATED: San Antonio, Texas, June 17, 2016.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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