2020 WL 4353175

United States District Court, W.D. Texas, Waco Division.
Felix FRAZIER, Plaintiff,
v.
U.S. XPRESS, INC., U.S. Xpress Enterprises, Inc., and Kernel Lloyd Reid, Defendants.
CASE NO. 6-19-CV-00557-ADA-JCM
|
Signed 07/29/2020
Attorneys and Law Firms
Jamal K. Alsaffar, Tom Jacob, Whitehurst, Harkness, Brees, Cheng, Alsaffar & Higginbotham, Megan E. Lovelady, Pro Hac Vice, Lovelady Law Office, Steven R. Haspel, National Trial Law – Whbcah & J, PLLC, Austin, TX, for Plaintiff.
Paul Clark Aspy, Naman Howell Smith & Lee, Austin, TX, Jacqueline P. Altman, John P. Palmer, Naman Howell Smith & Lee, Waco, TX, for Defendants.

ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
*1 Before the Court is Defendant U.S. Xpress, Inc.’s (“U.S. Xpress”) Motion for Partial Summary Judgment (ECF No. 33), Plaintiff Felix Frazier’s Response (ECF No. 41), and U.S. Xpress’s Reply (ECF No. 45). After having reviewed the parties’ briefs, case file, and applicable law, the Court GRANTS Defendant’s Motion for Partial Summary Judgment.

I. BACKGROUND
This case concerns a motor-vehicle accident in Waco, Texas on Interstate Highway 35 between a passenger vehicle driven by Mr. Frazier and a tractor trailer driven by Mr. Reid. ECF No. 33 at 1. At the time of the incident, Mr. Reid was following another vehicle in the middle lane. ECF No. 1, ¶ 3.18. The other vehicle attempted to move to the right but returned to the middle lane after realizing that traffic had slowed in the right lane. ECF No. 33 at 1. Mr. Reid could not brake in time when the vehicle returned to the middle lane. ECF No. 1, ¶ 3.18. To avoid a collision, Mr. Reid moved to the left lane, causing a collision with Mr. Frazier’s vehicle. Id. At the time of the incident, Mr. Reid was performing driving services for U.S. Xpress as an independent contractor. ECF No. 26, ¶ 1.5. U.S. Xpress concedes that Mr. Reid was operating his vehicle within the course and scope of his contract at the time of the incident. Id.

Mr. Frazier filed suit in the Western District of Texas with claims of direct negligence against U.S. Xpress and Mr. Reid. ECF No. 1, ¶¶ 4.3, 4.5. Mr. Frazier also filed a claim of vicarious liability against U.S. Xpress through the doctrine of respondeat superior. Id., ¶ 4.5. U.S. Xpress denied the allegation in its amended answer that U.S. Xpress would be vicariously liable for the acts or omissions of Mr. Reid. ECF No. 26, ¶ 4. However, U.S Xpress stated in its reply that “in the event a jury finds negligence as to [Mr.] Reid, U.S. Xpress, Inc. is vicariously liable.” ECF No. 45 at 2. U.S. Xpress files this motion for Partial Summary Judgment as to the claims of direct negligence, negligent hiring, negligent training, negligent supervision, and negligent retention. ECF No. 33.

II. LEGAL STANDARD
Summary judgment is appropriate “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); Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). A material fact is one that is likely to reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is not genuine if the trier of fact could not, after an examination of the record, rationally find for the non-moving party. Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). As such, the burden of demonstrating that no genuine dispute of material fact exists lies with the party moving for summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once presented, a court must view the movant’s evidence and all factual inferences from such evidence in a light most favorable to the party opposing summary judgment. Impossible Elecs. Techniques v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). Accordingly, the simple fact that the court believes that the non-moving party will be unsuccessful at trial is insufficient reason to grant summary judgment in favor of the moving party. Jones v. Geophysical Co., 669 F.2d 280, 283 (5th Cir. 1982). However, “[w]hen opposing parties tell two different stories, but one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380–81 (2007).

*2 Once the court determines that the movant has presented sufficient evidence that no genuine dispute of material fact exists, the burden of production shifts to the party opposing summary judgment. Matsushita, 475 U.S. at 586. The non-moving party must demonstrate a genuinely disputed fact by citing to parts of materials in the record, such as affidavits, declarations, stipulations, admissions, interrogatory answers, or other materials; or by showing that the materials cited by the movant do not establish the absence of a genuine dispute. FED. R. CIV. P. 56(C)(1)(A)–(B). “Conclusory allegations unsupported by concrete and particular facts will not prevent an award of summary judgment.” Duffy v. Leading Edge Prods., 44 F.3d 308, 312 (5th Cir. 1995). Moreover, unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. See Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994). 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. See FED. R. CIV. P. 56; Matsushita, 475 U.S. at 586.

III. ANALYSIS
U.S. Xpress requests judgment in its favor because the direct liability claims against U.S. Xpress are improper. ECF No. 33 at 2. U.S. Xpress argues that the claims of direct liability would be duplicative with the vicarious liability claim that U.S. Xpress admitted would apply. Id. at 5. U.S. Xpress contends that any alleged breach of duty by U.S. Xpress would be included in a finding of negligence against Mr. Reid. Id. at 5–6. U.S. Xpress further argues that any evidence related to the hiring, qualification, training, supervision, and retention of Mr. Reid would be immaterial if the direct liability claims against U.S. Xpress are dismissed. Id. at 6 (citing Williams v. McCollister, 671 F. Supp. 2d 884, 891–92 (S.D. Tex. 2009)) (granting the partial summary judgment motion which dismissed the claims pertaining to negligent hiring, supervision, training, and retention because employer stipulated to course and scope and vicarious liability).

Mr. Frazier argues in his response that U.S. Xpress did not stipulate its vicarious liability for any potential finding of negligence for Mr. Reid. ECF No. 41 at 1. Mr. Frazier argues that a stipulation of vicarious liability by U.S. Xpress should include that (1) Mr. Reid was acting as an employee within the course and scope of his duties at the time of the accident, (2) Mr. Reid was an employee within the course and scope for any conduct leading up to the accident, and (3) Mr. Reid at all times was acting under the care, custody, and control of U.S. Xpress. Id. at 3. Mr. Frazier contends that the direct negligence claims against U.S. Xpress should not be dismissed until U.S. Xpress states that it would be vicariously liable for a potential finding of negligence against Mr. Reid. Id. at 6.

In its reply, U.S. Xpress stipulates that Mr. Reid “was an independent contractor performing driving services for U.S. Xpress, Inc. and operating his vehicle within the course and scope of his contract.” ECF No. 45 at 1. U.S. Xpress also states that “the tractor that [Mr.] Reid was operating at the time of the accident was under U.S. Xpress, Inc.’s possession, control, and use and U.S. Xpress, Inc. assumed responsibility for the operation of the tractor.” Id. U.S. Xpress also “admits that in the event a jury finds negligence as to [Mr.] Reid, U.S. Xpress, Inc. is vicariously liable.” Id. at 2. U.S Xpress argues that these express stipulations admit vicarious liability and allow for the dismissal of the direct negligence claims against U.S. Xpress. Id.

U.S. Xpress also argues that Mr. Reid’s employment classification as an independent contractor does not affect U.S. Xpress’s admission of vicarious liability. Id. (citing C.F.R. § 376.12(c)(4)). U.S. Xpress points to the Federal Motor Carrier Safety Regulations (“FMCSR”) which acknowledge the distinct nature of employees and independent contractors and provide that motor carriers such as U.S. Xpress may not use this classification to avoid liability. Id. (citing C.F.R. § 376.12(c)(4)). U.S. Xpress notes that courts deciding similar matters have not conditioned their holdings on employment status. Id. (citing Ochoa v. Mercer Transp. Co., Inc., 5:17-CV-1005-OLG, 2018 WL 7505640, at *3 (W.D. Tex. December 10, 2018); Fuller v. Werner Enters., No. 3:16-CV-2958-BK, 2018 WL 3548886, at *2 (N.D. Tex. July 24, 2018)).

*3 The Court applies Texas law to this diversity case. Learmonth v. Sears, Roebuck & Co., 710 F.3d 249, 258 (5th Cir. 2013). In the absence of law from the state’s highest court, this Court, will also look to the state’s appellate courts for guidance. See id. In Texas, a negligence cause of action requires a showing of a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by that breach. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). Under the doctrine of respondeat superior, an employer may be held vicariously liable for the negligence of its employee if the employee was acting within the course and scope of his employment. See Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 565 (Tex. 2016). Direct claims of negligence such as negligent hiring, supervision, training, and retention are based on the employer’s own negligent conduct in creating an unreasonable risk of harm to others. See generally Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App.—Fort Worth 2002, no pet.); Estate of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.—Tyler 1979, writ ref’d n.r.e.). As a general rule, in matters involving ordinary negligence, claims for vicarious liability and claims for direct negligence “are mutually exclusive modes of recovery.” See Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied); see also Ochoa, 2018 WL 7505640, at *3. If the plaintiff does not allege gross negligence and the employer admits vicarious liability, the direct negligence claims are irrelevant. Id.

In this case, Mr. Frazier has pleaded direct claims of negligence against Mr. Reid and U.S. Xpress as well as a claim of vicarious liability against U.S. Xpress. See ECF No. 1, ¶¶ 4.3, 4.5. The Court agrees that the vicarious liability of U.S. Xpress from a finding of negligence against Mr. Reid would subsume any finding of direct negligence against U.S Xpress. See Ochoa, 2018 WL 7505640, at *3. The Court acknowledges the concern shown by Mr. Frazier regarding U.S. Xpress’s equivocal statement in its answer regarding vicarious liability.1 See ECF No. 41 at 1. Nevertheless, the Court credits U.S. Xpress’s clear stipulations in its reply regarding its vicarious liability that resemble the admissions of vicarious liability seen in other cases. Compare ECF No. 45 at 1–2 with, ECF No. 41, Exs. A and B. The Court also recognizes that independent contractors and employees are generally treated differently under the doctrine of respondeat superior. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). However, the FMSCR defines employee to include an independent contractor in the course of operating a commercial motor vehicle. See C.F.R. § 390.5.2 As such, a motor carrier can be held vicariously liable for the negligence of an independent contractor. See Gonzalez v. Ramirez, 463 S.W.3d 499, 502 (Tex. 2015) (citing Morris, 78 S.W.3d at 37–38). Therefore, the Court finds that the claim of direct liability against U.S. Xpress is duplicative with the claim of vicarious liability and should be dismissed.

IV. CONCLUSION
For the reasons set forth above, it is accordingly ORDERED that U.S. Xpress’s Motion for Partial Summary Judgment with respect to Felix Frazier’s claim of direct negligence against U.S. Xpress is GRANTED.

All Citations
Slip Copy, 2020 WL 4353175

Footnotes

1
To be clear, the Court finds that U.S. Xpress has stipulated to vicarious liability if Mr. Reid is found to be negligent. The Court will not tolerate any gamesmanship by Defendants and to the extent Defendants are not being forthcoming with the Court, the Court will take appropriate actions. The Court does not mean to suggest in any way that Defendants have not acted in good faith.

2
The Texas Administrative Code has incorporated this section of the FMSCR, so both federal and state law statutorily define employee to include an independent contractor in this case. See 37 TAC § 4.11(a).

2020 WL 4533794

United States District Court, E.D. Missouri, Eastern Division.
Tabitha HOLT and Clyde Sutherland, Plaintiffs,
v.
QUALIFIED TRUCKING SERVICE, INC., Defendant.
Case No. 4:19 CV 102 RWS
|
Signed 08/06/2020
Attorneys and Law Firms
Tim E. Dollar, Joshua Daniel Becker, Dollar Burns LC, Kansas City, MO, for Plaintiffs.
Steven J. Hughes, Joseph Michael Hoffman, Hughes Lawyers LLC, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER
RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE
*1 Plaintiffs Tabitha Holt and Clyde Sutherland’s son was killed in a motor vehicle accident involving a commercial motor vehicle owned by Defendant Qualified Trucking Service Trucking, Inc. Plaintiffs brought this suit alleging negligence claims against Qualified. Qualified moved for summary judgment on the grounds that Plaintiffs have failed to present sufficient evidence to support a finding of proximate cause as to Qualified’s liability for the accident. Plaintiffs oppose the motion. Because Plaintiffs have presented sufficient evidence to support their negligence claims I will deny Qualified’s motion.

Background
On the evening of January 31, 2016, Qualified’s employee Lei Liu1 was operating Qualified’s tractor-trailer eastbound on Interstate 44 in Franklin County, Missouri. Liu pulled into a rest stop that exited and entered the highway from the left-hand passing lane. After approximately five minutes Liu exited the rest area using the merge ramp. That ramp was designed to have traffic leaving the rest stop merge onto the highway in the left-hand passing lane of Interstate 44. As he entered the ramp Liu turned on his right-hand turn signal. Liu checked his side mirror and saw a lot of cars in the left lane in which he was to merge and saw no clear opportunity to merge safely. In response Liu brought his tractor-trailer to a complete stop almost at the end of the merge ramp. Liu turned on his four-way emergency flashers and remained stopped in the at the end of the merge lane for approximately five seconds. Then Liu turned on his right-hand turn signal again which deactivated his four-way emergency flashers. When traffic in the left lane cleared Liu merged into the left lane. Once his tractor-trailer was completely in the left lane Liu reactivated his emergency flashers. Liu remained in the left lane for one or two seconds then turned on his right-hand turn signal to merge into the right lane. Liu looked in his right-hand mirror and saw that there were no other vehicles approaching his rear in that lane. Liu merged into the right-hand lane and straightened his truck out in the lane. Liu was travelling at approximately 20 miles per hour on the highway at the time he merged into the right lane. Liu proceeded eastbound with his four-way flashers activated. He traveled eastbound for approximately 30 seconds before he felt an impact in the rear of his vehicle. Liu’s vehicle had been struck from behind by 2009 Ford Focus driven by William Weekley. Plaintiffs’ son Brandon Sutherland was a passenger in Weekley’s vehicle. Tragically, both Weekley and Sutherland suffered fatal injuries in the crash. Liu’s tractor-trailer was travelling at approximately 30 miles per hour at the time of the collision. Weekley’s vehicle was allegedly traveling at highway speeds.

Plaintiffs filed this lawsuit in state court alleging claims for negligence, negligence per se, and wrongful death. Plaintiffs claim that the manner Liu entered the highway from the rest stop and his slow speed in the driving lanes of the highway was the proximate cause of the accident.2 Qualified removed the case to this Court. Qualified filed a motion for summary judgment asserting that Plaintiffs have failed to present sufficient evidence to support the proximate cause element of their negligence claims. Plaintiffs oppose the motion asserting that their evidence meets the proximate cause requirement entitling them to a jury trial.

Legal Standard
*2 Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lynn v. Deaconess Medical Center, 160 F.3d 484, 486 (8th Cir. 1998)(citing Fed. R. Civ. P. 56(c)). The party seeking summary judgment bears the initial responsibility of informing the court of the basis of its motion and identifying those portions of the affidavits, pleadings, depositions, answers to interrogatories, and admissions on file which it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When such a motion is made and supported by the movant, the nonmoving party may not rest on his pleadings but must produce sufficient evidence to support the existence of the essential elements of his case on which he bears the burden of proof. Id. at 324. In resisting a properly supported motion for summary judgment, the plaintiff has an affirmative burden to designate specific facts creating a triable controversy. Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1113 (8th Cir. 2004).

Discussion
Qualified’s summary judgment motion challenges the legal sufficiency of Plaintiffs’ evidence to establish Liu’s actions were the proximate cause of the accident. “In a negligence action, the plaintiff must demonstrate (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; and (3) the defendant’s breach was the cause-in-fact and proximate cause of the plaintiff’s injury.” Savage v. Dittrich, 589 S.W.3d 628, 632 (Mo. Ct. App. 2019). “Actionable negligence requires a ‘causal connection’ between the defendant’s conduct and the plaintiff’s injury. It is not enough that an injury merely follows negligence, as the plaintiff must show the negligence is the proximate cause of the injury.” Id. (cleaned up).

“To establish a claim of negligence per se, the plaintiff must plead the following four elements: (1) the defendant violated a statute or regulation; (2) the injured plaintiff was a member of the class of persons intended to be protected by the statute or regulation; (3) the injury complained of was of the kind the statute or regulation was designed to prevent; and (4) the violation of the statute or regulation was the proximate cause of the injury.” Dibrill v. Normandy Assocs., Inc., 383 S.W.3d 77, 84–85 (Mo. Ct. App. 2012).

Qualified challenges the proximate cause element of these negligence claims. “Whether proximate cause exists is usually a jury question; however, a court properly interposes its judgment in this determination when the evidence reveals the existence of an intervening cause that eclipses the role the defendant’s conduct played in the plaintiff’s injury.’ ” Rayman v. Abbott Ambulance, Inc., 546 S.W.3d 12, 18 (Mo. Ct. App. 2018) (quoting Heffernan v. Reinhold, 73 S.W.3d 659, 664 (Mo. Ct. App. 2002). See also Wilmes v. Consumers Oil Co. of Maryville, 473 S.W.3d 705, 724 (Mo. App. W.D. 2015)) (proximate cause a jury question). Morover, if the evidence connecting an injury to defendant’s negligence is only based on mere conjecture and speculation the question of proximate cause becomes a question of law for the trial court. Meyer v. City of Walnut Grove, 505 S.W.3d 331, 336 (Mo. Ct. App. 2016).

“The general test for proximate cause is whether the claimed injury is the natural and probable consequence of the defendant’s alleged negligence.” Nail v. Husch Blackwell Sanders, LLP, 436 S.W.3d 556, 563 (Mo. banc 2014). The proximate cause inquiry examines “the scope of foreseeable risk created by the defendant’s act or omission.” Id. “In this context, foreseeability refers to whether a defendant could have anticipated a particular chain of events that resulted in injury or the scope of the risk that the defendant should have foreseen.” Brown v. Davis, 813 F.3d 1130, 1138 (8th Cir. 2016) (internal quotations and citation omitted). The test for proximate cause “is not whether a reasonably prudent person would have foreseen the particular injury, but whether, after the occurrences, the injury appears to be the reasonable and probable consequence of the act or omission of the defendant. It is only necessary that the party charged knew or should have known there was an appreciable chance some injury would result.” Wilmes, 473 S.W.3d at 722 (cleaned up) (emphasis added).

*3 Qualified argues that Plaintiffs’ evidence fails to establish that Liu’s actions were the probable cause of the ensuing accident. In opposition to Qualified’s motion and in support of their claims Plaintiffs highlight several facts which are undisputed. The events leading up to the accident were initiated when Liu failed to use the on-ramp to get up to speed to enter the highway from the rest stop. Liu came to a complete stop at the end of the on-ramp which placed him in the precarious position of merging into the passing lane of the highway without any headway. After a brief period of travel in the left lane Liu moved over into the right lane traveling approximately 20 mile per hour. Approximately 30 seconds later Liu’s tractor-trailer was struck in the rear by Weekley’s vehicle. At that point Liu was traveling at approximately 30 miles per hour. The speed limit on the highway was 70 miles per hour with a minimum permitted speed of 40 miles per hour.

Plaintiffs’ liability expert Phillip Smith opined that Liu erred by stopping at the end of the on-ramp which would cause him to eventually merge into traffic lanes at a speed substantially slower than normal. Smith opined that Liu should have instead continued to accelerate using the highway’s left-hand shoulder if he thought the flow of traffic prevented him from merging into the left traffic lane. Smith also opines that when Liu merged into the right lane at 20 miles per hour he should have continued to the right until he was driving on the shoulder of the right lane in order to get up to at least the minimal highway speed before merging back into the right-hand lane of travel. Smith also referred to the elevated danger when Liu’s tractor-trailer entered the highway at such a slow speed at night [Doc. # 32, Ex. B at 81] and that the closing rate between a slow moving truck and a car approaching from the rear at highway speeds would be harder to gage for the driver of the car at night. [Doc. # 32, Ex. 1, Ex. A, Suppl. Rprt at 11] Smith stated that the decedents would have been much more likely to survive the accident if Liu’s vehicle had been going 40 miles per hour or faster. [Doc. # 32, Ex. B at 93] In addition, there is evidence in the record that some reflective tape on the back of the tractor-trailer was missing or painted over which would have reduced the visibility of the vehicle at night. [Doc. # 32, Ex. A at 141-144 and Doc. # 32 Ex. B at 116] Smith ultimately opined that Liu’s errors caused or contributed to the accident.

I find that this evidence is sufficient to establish the proximate cause element of Plaintiffs’ claims beyond mere conjecture or speculation. As a result, it is up to the jury to resolve whether the claimed injury was foreseeable and was the natural and probable consequence of the Liu’s actions leading up to the accident. Qualified also questions the assumptions of Plaintiffs’ expert and his conclusions but those contentions are issues to be resolved by the trier of fact.3

*4 Accordingly,

IT IS HEREBY ORDERED that Defendant Qualified Trucking Service’ Inc.’s motion for summary judgment [23] is DENIED.

All Citations
Slip Copy, 2020 WL 4533794

Footnotes

1
Liu’s name has also been spelled Lui in Defendant’s motion papers.

2
Plaintiffs also assert multiple allegations about Qualified’s trucking operations including the hiring of Liu as a driver. Those allegations are not at issue in the present motion.

3
Plaintiff’s expert Smith opined that Liu should have used the left or right shoulder of the road to accelerate up to the minimum highway speed before merging into the travel lanes. In its reply brief Qualified asserts that using the shoulder for that purpose would violate Missouri law. However, the law and cases cited by Qualified do not support such a strict proposition. Qualified itself acknowledges a common sense exception allows a driver to pull onto the shoulder of the road and stop for emergency situations. These vehicles could then resume their journey by accelerating down the shoulder to get up to a minimum speed before merging back into the driving lanes of the highway instead of merging into the driving lane immediately. A jury could determine that the circumstances encountered by Liu would permit him to use the shoulder of the road to avoid driving on the highway at night below the minimum highway speed limit.