United States District Court for the Western District of Oklahoma
January 27, 2022, Decided; January 27, 2022, Filed
Case No. CIV-19-379-R

Reporter
2022 U.S. Dist. LEXIS 14813 *; 2022 WL 264551
JANE NJUGUNA, Individually and as Surviving Spouse of GIDEON GACHOHI, Deceased, and as heir to and Personal Representative of the Estate of Gideon Gachohi, and as Next Friend And Mother of D.N. and N.N., Minor children of Gideon Gachohi, Deceased, Plaintiffs, v. C.R. ENGLAND, INC., a Utah Corporation, EDUARDO HAMRICO, an individual, et al., Defendants,C.R. ENGLAND, INC., a Utah Corporation, EDUARDO HAMRICO, an individual, Third-Party Plaintiffs, v. MOHAMMAD HAJI MOHAMUD, an individual, FAF, INC., a Tennessee corporation, SHAHID AFZAL, an individual, TRANS EMERGE TRANSPORT, INC., a Canadian Corporation, SURINDER PAL SINGH, an individual, and MORINDA TRANSPORT, INC., a California Corporation, Third-Party Defendants.
Prior History: Njuguna v. C.R. Eng., Inc., 2020 U.S. Dist. LEXIS 195059, 2020 WL 6151567 (W.D. Okla., Oct. 20, 2020)
Core Terms

indemnification, Third-Party, tortfeasors, summary judgment motion, summary judgment, indemnity, legal relationship, pro rata share, truck, parties, matter of law, apportion
Counsel: [1] For Jane Njuguna, As Personal Representative of the Estate of Gideon Gachohi, Plaintiff: Elizabeth A Richards, LEAD ATTORNEY, Oklahoma City, OK; Thomas D Bowers, Thomas D Bowers Esq, Irving, TX. For CR England Inc, a Utah Corporation, Eduardo Hamrico, an Individual, Defendants: Paul M Kolker, LEAD ATTORNEY, Timothy J Prentice, Roberson Kolker Cooper & Goeres PC, Robinson Renaissance Bldg, Oklahoma City, OK; Lauren N Watson, Roberson Kolker Cooper & Goeres PC, Edmond, OK. For Shubh Transport, a California Corporation, Gursewak Singh, an Individual, Charanjit Singh, an Individual, Defendants: Joseph R Farris, Feldman Franden Woodard & Farris, Tulsa, OK; Nathaniel G Parrilli, Franden Farris Quillin & Goodnight & Roberts, Tulsa, OK. For Allstate Freight Systems Inc, a Canadian Corporation, Ranjit Grewal, an Individual, Defendants: Allison J Maynard, Wilson Elder Moskowitz Edelman & Dicker-DALLAS, Dallas, TX. For Shahid Afzal, an individual, Trans Emerge Transport, Inc,, Trans Emerge Transport, Inc,, Shahid Afzal, an individual, Third Party Defendants: Benjamin D Reed, Manuel M Pallarez, Best & Sharp, Tulsa, OK. For Eduardo Hamrico, an Individual, CR England Inc, a Utah Corporation, Third Party [2] Plaintiffs: Paul M Kolker, LEAD ATTORNEY, Timothy J Prentice, Roberson Kolker Cooper & Goeres PC, Robinson Renaissance Bldg, Oklahoma City, OK; Lauren N Watson, Roberson Kolker Cooper & Goeres PC, Edmond, OK.
For FAF, Inc., a Tennessee corporation, Third Party Defendant: Christopher B Moore, Daniel K Jones, Mills & Jones PLLC, Norman, OK; Mehry Taremi.
For Morinda Transport, Inc., a California Corporation, Third Party Defendant: Derrick T DeWitt, DeWitt Paruolo Meek PLLC, Oklahoma City, OK; Kyle R Prince, Nelson Terry Morton DeWitt & Paruolo, Edmond, OK.
For Trans Emerge Transport, Inc,, Shahid Afzal, an individual, Third Party Plaintiffs: Benjamin D Reed, Best & Sharp, Tulsa, OK.
Judges: DAVID L. RUSSELL, UNITED STATES DISTRICT JUDGE.
Opinion by: DAVID L. RUSSELL
Opinion

ORDER
Before the Court is third-party defendant FAF, Inc.’s (“FAF”) Motion for Summary Judgment (Doc. No. 83). Third-party plaintiffs C.R. England, Inc. and Eduardo Hamrico (collectively, “Third-Party Plaintiffs” or “C.R. England”) have failed to file a responsive brief. The matter is therefore ripe for decision. For the reasons set out below, the Court GRANTS FAF’s motion.
This matter originates from a series of accidents between tractor-trailer trucks [3] on Interstate 40 East near Weatherford, Oklahoma, after a winter storm in the early morning hours of January 14, 2017. Doc. No. 83 at 2. The first accident occurred at approximately 2:23 a.m. near mile marker 80 when a truck, operated by Surinder Singh and owned by Morinda Transport Inc., struck a semi-trailer operated by Shadid Afzal and owned by Trans Emerge Transport, Inc. Id. Mr. Afzal’s vehicle rolled off the highway, and Mr. Surinder Singh’s tractor-trailer jackknifed to a stop off the shoulder of I-40. Doc. No. 83-1 at 4. In a separate accident, at approximately 3:25 a.m., roughly two miles away near mile marker 78, Eduardo Hamrico, driving a truck owned by C.R. England, collided with a semi-trailer operated by Gursewalk Singh and owned by Shubh Transport, Inc. Doc. No. 83 at 2. This accident left both vehicles jackknifed and blocking most of Eastbound I-40. Doc. No. 83-2 at 4. A third accident occurred roughly at 3:43 a.m. when Plaintiff Gideon Njuguna Gachohi attempted to navigate his truck through the wreck of Mr. Hamrico and Mr. Gursewalk Singh’s accident. Doc. No. 83 at 3. He was unsuccessful and hit both men’s trucks before coming to a rest on the shoulder of I-40. Id. A [4] truck following Mr. Gachohi’s vehicle, operated by Ranjit Grewal and owned by Allstate Freight Systems, Inc., similarly was unable to navigate between the wreckage and hit Plaintiff’s cab. Id. The cab separated from the rest of the tractor-trailer, and Mr. Gachohi was pronounced dead at the scene. Id.
At approximately the same time, Mohamed Haji Mohamud lost control of his truck, owned by FAF, and he jackknifed to a stop without hitting any other vehicles. Doc. No. 83-4 at 4. This accident took place west of the other incidents described above. Doc. No. 83 at 3. Because FAF was not involved in Plaintiff’s fatal accident, FAF now moves this Court to grant summary judgment and find the Third-Party Plaintiffs have no claim for contribution or indemnity.
The Court should grant summary judgment when the moving party 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). “Under the summary judgment standard, a mere factual dispute will not preclude summary judgment; instead, there must be a genuine issue of material fact.” Cooperman v. David, 214 F.3d 1162, 1164 (10th Cir. 2000). The party seeking summary judgment bears the burden of demonstrating the basis for its motion, and [5] identifying those portions of “‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'” that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)). A fact is material if it affects the disposition of the substantive claim. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When considering a summary judgment motion, the Court must view the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1225 (10th Cir. 2000). If a party does not support its own asserted facts or address the moving party’s asserted facts, a court may “consider the fact undisputed for purposes of the motion[,] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it[,] or issue any other appropriate order.” Fed. R. Civ. P. 56(e). C.R. England’s failure to respond to FAF’s Motion for Summary Judgment slightly alters the Court’s consideration of the motion. According to the Tenth Circuit, “a party’s failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Rather, courts must still consider whether summary judgment [6] is appropriate under Rule 56. However,
[b]y failing to file a response within the time specified by the local rule, the nonmoving party waives the right to respond or to controvert the facts asserted in the summary judgment motion. The court should accept as true all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment.
Id. Therefore, the Court must, in this instance, accept all asserted and properly supported facts asserted by FAF as true, and then consider whether FAF is entitled to summary judgment.
FAF argues that Oklahoma law allows only several liability. Doc. No. 83 at 9 (citing 23 O.S. § 15(A)). Therefore, it could only be liable to the Third-Party Plaintiffs if those parties paid more than their pro rata share of the damages award. Id. FAF contends that there are no facts that demonstrate C.R. England has been forced to pay more than its pro rata share, or that it is likely to do so should the Court grants FAF’s summary judgment motion. Id. at 10. Additionally, FAF contends that its presence in this case is not necessary for a jury to properly apportion [7] liability. Id. (citing Myers v. Missouri Pacific R. Co., 2002 OK 60, 52 P.3d 1014, 1030 (Okla. 2002). Accordingly, FAF concludes that C.R. England has no claim for contribution from FAF and that the Third-Party Plaintiffs’ claim should be dismissed as a matter of law. Id. at 11. Next, FAF argues that C.R. England’s indemnification claim fails as a matter of law. It contends indemnity generally occurs in Oklahoma law where one party has a primary liability or a duty that requires that party bear the whole burden of a tort action. Id. at 11 (citing Thomas v. E-Z Mart Stores Inc., 2004 OK 82, 102 P.3d 133, 139 (Okla. 2004). Such a duty may arise out of a contractual duty or implied vicarious liability, which FAF argues the evidence does not support. Id. (citing Nat’l Union Fire Ins. Co. v. A.A.R. W. Skyways, Inc., 1989 OK 157, 784 P.2d 52, 54 (Okla. 1989). In short, FAF argues that there needed to be some sort of legal relationship in existence before the accidents at issue between itself and the Third-Party Plaintiffs for them to be entitled to indemnity. Id. at 12. It further contends that the evidence does not support the existence of such a legal relationship. Id. FAF concludes that it is accordingly not subject to an indemnity claim pursuant to Oklahoma law. Id. at 13. Contribution allocates loss among joint tortfeasors, W. Prosser, The Law of Torts § 50 (4th ed. 1971), and its application is governed in Oklahoma by statute. [8] 12 O.S. § 832(A) creates a right of contribution among “two or more persons [who] become jointly or severally liable in tort for the same injury to person or property.” But as § 832(B) explains, contribution is only appropriate where a defendant has paid more than its apportioned share of liability:
The right of contribution exists only in favor of a tort-feasor who has paid more than their pro rata share of the common liability, and the total recovery is limited to the amount paid by the tort-feasor in excess of their pro rata share. No tort-feasor is compelled to make contribution beyond their pro rata share of the entire liability.
When the statute speaks of a “pro rata share,” it simply means “proportionate, as based on one’s degree of fault.” Nat’l Union Fire Ins. Co. v. A.A.R. Western Skyways, Inc., 1989 OK 157, 784 P.2d 52, 57 (Okla. 1989). In short, contribution is appropriate only when a joint or concurrent tortfeasor is forced to pay for more than his proportional share of liability.
As an initial matter, even if C.R. England could demonstrate FAF was partially at fault for Plaintiff’s death, it has provided no evidence that it has paid, or will be likely to pay, more than its fair share of damages if its claims against FAF are dismissed. 23 O.S. § 15 abolished this possibility when it adopted several liability [9] as the only appropriate way to apportion damages pursuant to Oklahoma law.1 Furthermore, the Oklahoma Supreme Court has made it clear that “the negligence of tortfeasors not parties to the lawsuit should be considered by the trial jury in order to properly apportion the negligence of those tortfeasors who are parties.” Myers v. Missouri Pacific R. Co., 2002 OK 60, 52 P.3d 1014, 1030 (Okla. 2002) (quotation marks and citation omitted). This rule specifically exists to protect parties, like Third-Party Plaintiffs, from being liable for a “ghost tortfeasor[‘s]” negligence. Id. See also Thomas, 102 P.3d at 139. Therefore, dismissing C.R. England’s contribution claim will not increase its liability. Consequently, the Court GRANTS FAF’s Motion for Summary Judgment regarding C.R. England’s contribution claim. Third-Party Plaintiff’s indemnification claims also falters as a matter of law. While contribution apportions pro rata shares among joint or concurrent tortfeasors, indemnification shifts the entire loss. W. Prosser, The Law of Torts § 51 (4th ed. 1971). In short, there is no piecemeal indemnification. Instead, “[t]he general rule of indemnity is that one without fault, who is forced to pay on behalf of another, is entitled to indemnification.” Nat’l Union Fire, 784 P.2d at 54. This right to indemnification may arise [10] in two ways: “out of an express (contractual) or implied (vicarious) liability.” Id. Furthermore, “Oklahoma case law has always premised this right of indemnity on the understanding that a legal relationship exists between the parties.” Id.; see also Sinclair Oil Corp. v. Texaco, Inc., 94 F. App’x 760, 768 (10th Cir. 2004) (rejecting the contention that Oklahoma indemnification law does not require a legal relationship between the parties).
Here, it is clear there was no express indemnity agreement between FAF and C.R. England. Accordingly, Third-Party Plaintiffs’ claim is only valid if it arises from common law. However, there is simply no case law that establishes some sort of legal relationship requiring indemnity between two separate carriers involved in two separate accidents during a winter storm. As this Court has previously held, “‘a claim for indemnification cannot form the legal relationship upon which a claim for indemnification must be based. The legal relationship must have existed before the potential indemnification claim arose.'” Loos v. Saint-Gobain Abrasives, Inc., No. CIV-15-411-R, 2016 U.S. Dist. LEXIS 127179, 2016 WL 5017335 at *6 (W.D. Okla. Sept. 19, 2016) (quoting White Elec. Servs. v. Franke Food Serv. Sys., 2010 U.S. Dist. LEXIS 37362, 2010 WL 1542575, *2 (N.D. Okla. Apr. 15, 2010). In sum, as found by the Oklahoma Supreme Court, in the case of allegedly joint or concurrent tortfeasors with no preexisting legal relationship and the same duties owed to the injured party, “no right [*11] of indemnity exists on behalf of either against the other.” National Union Fire, 784 P.2d at 55. Such is the claim here, and therefore, the Court GRANTS FAF’s Motion for Summary Judgment.
IT IS SO ORDERED this 27th day of January 2022.
/s/ David L. Russell
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE

United States District Court for the Southern District of Texas, Houston Division
January 10, 2022, Decided; January 10, 2022, Filed, Entered
CIVIL ACTION NO. 4:19-cv-4968

Reporter
2022 U.S. Dist. LEXIS 14110 *
QUADRA WALTON, Plaintiff, v. JAMES LOVELESS MONCEAUX, ET AL., Defendants.
Subsequent History: Adopted by, Dismissed by, Partial summary judgment granted by, in part Walton v. Monceaux, 2022 U.S. Dist. LEXIS 13499 (S.D. Tex., Jan. 25, 2022)
Core Terms

gross negligence, summary judgment, mirrors, truck, negligence claim, extreme risk, tractor-trailer, indifference, RECOMMENDS, driver, entitled to summary judgment, blind spot, deposition, training, driving, genuine, hiring
Counsel: [*1] For Quadra Walton, Plaintiff: Cedrick Davion Forrest, Cedrick D Forrest Law PLLC, Houston, TX.
For Fast Trac Transportation, LLC, James Loveless Monceaux, Defendants: David Patrick Helmey, Nicholas Samuel Van Cleve, The Fuentes Firm PC, Spring, TX.
Judges: Christina A. Bryan, United States Magistrate Judge.
Opinion by: Christina A. Bryan
Opinion

MEMORANDUM & RECOMMENDATION
This matter is before the Court on Defendants’ Motion for Summary Judgment on Plaintiff’s Direct Negligence Claims Against Fast Trac and Gross Negligence Claims Against Both Defendants (ECF No. 26).1 Plaintiff filed a response (ECF No. 44)2, Defendants filed a reply (ECF No. 45), and Plaintiff filed a surreply (ECF No. 52). On January 5, 2022, the Court held a hearing on this motion. Having considered the briefing, arguments made at the hearing, and the applicable law, the Court RECOMMENDS that the motion (ECF No. 26) be GRANTED.

I. Background
On May 22, 2019, Plaintiff was injured when she was struck by a tractor-trailer truck operated by Defendant James Loveless Monceaux, who was acting in the course and scope of his employment with Defendant Fast Trac Transportation, LLC. ECF No. 26 ¶¶ 4, 25; ECF No. 44 ¶ 1. Plaintiff alleges that her resulting injuries [*2] and damages were caused by the negligence of both Defendants. ECF No. 1-4 ¶ 7. Specifically, Plaintiff contends Monceaux’s conduct constitutes negligence, negligence per se, and gross negligence. ECF No. 1-4 ¶ 9. Plaintiff’s Complaint further contends that Fast Trac is liable for negligent hiring and retention, negligent entrustment, negligent training and safety implementation, and gross negligence. ECF No. 1-4 ¶¶ 8-9.
Defendants filed a motion for partial summary judgment with respect to Plaintiff’s direct negligence claims against Fast Trac and her gross negligence claims against Monceaux and Fast Trac. ECF No. 26. Plaintiff filed an initial response to Defendants’ Motion for Summary Judgment in which she conceded that her direct negligence claims against Fast Trac are moot in light of Fast Trac’s stipulation that Monceaux was acting in the course and scope of his employment at the time of the accident and that Monceaux’s ordinary negligence caused the accident. ECF No. 44 at 3.

II. Summary Judgment Standards
Summary judgment is appropriate if the movant shows 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(c). The party [3] moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.2d 984, 991 (5th Cir. 2001). Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find for the nonmoving party. Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016). “An issue is material if its resolution could affect the outcome of the action.” Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission, 290 F.3d 303, 310 (5th Cir. 2002). If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and present evidence such as affidavits, depositions, answers to interrogatories, and admissions on file to show “specific facts showing there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The Court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party’s favor. R.L. Inv. Prop., LLC v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013). In ruling on a motion for summary judgment, the Court does not “weigh evidence, assess credibility, or determine the most reasonable inference to be drawn from the evidence.” Honore v. Douglas, 833 F.2d 565, 567 (5th Cir. 1987). However, “[c]onclus[ory] allegations and denials, speculations, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (quoting Celotex, 477 U.S. at 325). When a heightened proof standard will apply [4] at trial, that standard controls at the summary judgment stage. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (“[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.”).

III. Discussion

A. Plaintiff concedes that her direct negligence claims against Fast Trac should be dismissed.
Under Texas law,3 where a defendant employer has already admitted to vicarious liability for its employee’s actions, evidence supporting alternative direct negligence theories such as negligent hiring, negligent training, or negligent entrustment is inadmissible. Simmons v. Bisland, No. 03-08-00141-CV, 2009 WL 961522, at 4 (Tex App.—Austin Apr. 9, 2009, no pet.). “[I]f vicarious liability is not contested, the employee’s competence and the employer’s own negligence in hiring, failing to properly train, or negligent supervising become irrelevant.” Williams v. McCollister, 671 F. Supp. 2d 884, 888 (S.D. Tex. 2009). Plaintiff failed to respond to Fast Trac’s motion for partial summary judgment on the direct negligence claims and conceded during the January 5, 2022 hearing that her direct negligence claims against Fast Trac should be dismissed. Because Fast Trac has stipulated to vicarious liability for Monceaux’s ordinary negligence, and because Plaintiff does not oppose dismissal of the direct negligence claims against Fast Trac, [5] the Court recommends those claims, i.e. the claims for negligent hiring and retention, negligent training and supervision, and negligent entrustment, be dismissed with prejudice.

B. Defendants are entitled to summary judgment on Plaintiff’s gross negligence claims.
Under Texas law, proof of gross negligence consists of both an objective and a subjective element. U-Haul Int’l Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012). To prove gross negligence, a plaintiff must prove that: “1) when viewed objectively from the defendant’s standpoint at the time of the event, the act or omission involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and 2) the defendant had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.” Id. (citing TEX. CIV. PRAC. & REM. CODE § 41.001(11)). “Under the objective component, ‘extreme risk’ is not a remote possibility of severe harm or a high probability of minor harm, but the likelihood of the plaintiff’s serious injury.” Id. The subjective component, meanwhile, requires that the defendant was aware of the extreme risk and demonstrated an indifference to the consequences of his act or omission. Id. at 138. The subjective [*6] prong requires “an examination of the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994), superseded by statute on other grounds.
In addition, Texas law requires Plaintiff to prove her gross negligence claim under the heightened standard of clear and convincing evidence. Petri v. Kestrel Oil & Gas Props., L.P., 878 F. Supp. 2d 744, 766 (S.D. Tex. 2012). The clear and convincing evidence standard requires Plaintiff to produce evidence that is “sufficient to make the existence of the facts highly probable,” or in other words, “sufficient to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegation sought to be established.” Foley v. Parlier, 68 S.W.3d 870, 880 (Tex. App.—Fort Worth 2002, rehearing overruled (Mar. 14, 2002)).

1. Monceaux is entitled to summary judgment on the gross negligence claims.
   Although Defendants concede Monceaux was negligent in failing to see Plaintiff’s vehicle before changing lanes, “Texas courts have repeatedly made clear that . . . ordinary negligence, such as a party’s failure to obey traffic laws, will not support a finding of gross negligence.” Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 656 (S.D. Tex. 2016). “Only if the defendant’s act or omission is unjustifiable and likely to cause serious harm can it be grossly negligent.” Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 797 (Tex. 2012) (internal [7] quotation omitted). Plaintiff argues “Defendant Monceaux was grossly negligent by failing to properly check for vehicles in the lane he attempted to occupy and by operating the tractor-trailer without hood mirrors.” ECF No. 44 at 5-6 (capitalization omitted). Plaintiff contends that Monceaux admitted in his deposition that he failed to visually check for vehicles before changing lanes. ECF No. 44 at 6 ¶ 7. However, Plaintiff failed to include the alleged testimony with her summary judgment response filed on November 11, 2021. Prior to the hearing on Defendant’s motion for partial summary judgment, the Court ordered Plaintiff to supplement the summary judgment record with the deposition excerpts cited in her response. ECF No. 50. Having reviewed the cited deposition excerpts, the Court rejects Plaintiff’s argument that Monceaux testified he failed to visually check for vehicles in the lane next to him and merely relied on flashing lights from other motorists to determine the lane was safe to enter. Compare ECF No. 44 at 6 ¶ 7 with ECF No. 51-1 at 15:16-16:25; 14:1-10; 39:17-25.4 Contrary to Plaintiff’s representations, Monceaux testified that he checked his side mirrors several times [8] for vehicles and simply did not see Plaintiff’s car because she was in his blind spot:
   I mean, I was behind the wheel and I was checking all my surroundings and looked in my mirror three times to the right side, and everybody gave me the indication that the lane was clear and I could move over. So I was trying to do that as the traffic was moving forward.

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According to what I was seeing, it was clear. It wasn’t clear enough for me to be able to let out my clutch and take off rolling because, number one, I was in a traffic jam; number two, I was in construction. And from what I could understand and see from where I was sitting, because an 18-wheeler is pretty large and you got, you know, a lot of space there, you got to look over, to be able to see right beside your truck because there is a blind spot there, and I never seen when she got there. … You know, so I didn’t think there was anything there by checking my mirrors and people giving me their flashing lights that the lane was clear for me to move over.

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I raised up to look that I was clear all the way around the vehicle, and I looked in the mirrors. And people from behind me was flashing their lights that I had a clear spot [*9] to come over. While looking all around, all around me to make sure before I would move I was cleared to move. And where she come from, I didn’t see that or that she had even gotten beside me after I done checked all around me.
ECF No. 51-1 at 15-16; 17; 39. Simply put, the summary judgment evidence demonstrates only that Monceaux checked his mirrors before changing lanes, but failed to see Plaintiff’s car.
Monceaux’s negligent failure to see Plaintiff in his blind spot cannot support a finding of gross negligence under Texas law. Texas appellate courts have routinely held that a driver’s carelessness in not keeping a proper lookout for other vehicles on the road, without additional aggravating factors, does not rise to the level of gross negligence. See, e.g., Williams v. Crawford, No. 03-16-00696-CV, 2018 WL 1124306, at *15 (Tex. App.—Austin Mar. 2, 2018, no pet.) (reversing a jury’s finding of gross negligence where driver of an armored car took his eyes off the road as he approached an intersection and rear-ended plaintiff’s vehicle because there was no evidence in the record that the driver was “driving at an unsafe distance, aggressively, or erratically before looking down”); N. Am. Van Lines v. Emmons, 50 S.W.3d 103, 128 (Tex. App.—Beaumont 2001, pet denied) (holding that a driver of a moving van who rear-ended plaintiff was [*10] not grossly negligent where the driver “was not driving appreciably faster than other vehicles on the highway and a witness noticed nothing erratic or unusual about his driving before the collision.”). For example, in Rollins v. Calderon, No. 17-cv-244, 2019 WL 4581439 (S.D. Tex. May 20, 2019), the court, applying Texas law, held that a defendant could not be held liable for gross negligence after he collided with a car while reversing his tractor-trailer onto a road. Id. at *8. The court explained that while the defendant may have been careless in not keeping a proper lookout for other vehicles on the road while reversing the tractor-trailer, “careless behavior does not rise to the level of gross negligence.” Id. In this case, Plaintiff has presented no evidence of the type of additional aggravating factors that could convert Monceaux’s negligent conduct into grossly negligent conduct.
Furthermore, Plaintiff has failed to present any summary judgment evidence to support the subjective element of a gross negligence claim. Plaintiff contends she has satisfied the subjective element of her gross negligence claim with Monceaux’s deposition testimony that he failed to have hood mirrors installed on the truck even though he was aware hood mirrors would have increased his [*11] ability to see or eliminated his blind spot. ECF No. 44 at 6 ¶ 8. However, Monceaux’s opinion that the addition of hood mirrors on his truck would have made the truck safer, or even allowed him to avoid the accident, does not constitute evidence that he was indifferent to the consequences of extreme risk. Indeed, a defendant’s “failure to pursue the safest course available” does not rise to the level of gross indifference. Ochoa v. P.A.M. Cartage Carriers, LLC, No. 5:17-cv-787, 2019 U.S. Dist. LEXIS 13809, 2019 WL 360528, at *4 (W.D. Tex. Jan. 29, 2019) (quoting Agrium, U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, no pet.)).
Plaintiff has produced no evidence or case law to support her argument that driving without hood mirrors constitutes an extreme risk or that Monceaux was recklessly indifferent to an extreme risk. At the hearing Plaintiff could not point to any regulation or ordinance requiring tractor-trailers to have hood mirrors. Federal regulations do not require the use of hood-mounted mirrors for tractor-trailers, but instead provide that “[e]very bus, truck, and truck trailer shall be equipped with two rear-vision mirrors, one at each side attached to the outside of the motor vehicle, and so located as to reflect to the driver a view of the highway to the rear, along both sides of the vehicle.” 49 C.F.R. § 393.80(a). Monceaux’s [*12] admission that hood mirrors would have increased safety and eliminated the blind spot Plaintiff’s car was in when he hit her does not raise a fact issue as to whether driving a truck without hood mirrors poses an extreme risk or that Monceaux was indifferent to the consequences of an extreme risk.
Plaintiff has failed to present any summary judgment evidence, much less clear and convincing evidence, which raises a fact issue on the objective and subjective elements of her gross negligence claim against Monceaux. Therefore, Monceaux is entitled to summary judgment with respect to the gross negligence claims brought against him.

2. Fast Trac is entitled to summary judgment on the gross negligence claims.
   Plaintiff argues that Fast Trac should be held liable for gross negligence because it ratified Monceaux’s conduct by failing to reprimand or discipline Monceaux for causing the collision with Plaintiff. ECF No. 44 at 7 ¶¶ 10-12; ECF No. 51 ¶¶ 4-14. Because the Court has concluded as a matter of law that Monceaux was not grossly negligent, Fast Trac cannot be found to have ratified any gross negligence. See Sheppard v. R&S Transp., LLC, No. 5:16-cv-141, 2018 WL 2292818, at 13 (E.D. Tex. Apr. 25, 2018), adopted by No. 5:16-cv-141, 2018 WL 2287611 (May 18, 2018) (explaining an employer [13] could not be held liable under theory of ratification of its employee’s gross negligence where the court had concluded the employee was not grossly negligent). Accordingly, Defendants are also entitled to summary judgment on Plaintiff’s gross negligence claims against Fast Trac.

IV. Conclusion
For the reasons stated above, the Court RECOMMENDS that Plaintiff’s claims for negligent hiring and retention; negligent entrustment; and negligent training and safety implementation against Fast Trac be DISMISSED with prejudice. The Court also RECOMMENDS that Defendants’ Motion for Partial Summary Judgment (ECF No. 26) be GRANTED as to Plaintiff’s claims for gross negligence and that claims for gross negligence against Monceaux and Fast Trac be DISMISSED with prejudice.
The Clerk of the Court shall send copies of the memorandum and recommendation to the respective parties, who will then have fourteen days to file written objections, pursuant to 28 U.S.C. § 636(b)(1)(c). Failure to file written objections within the time period provided will bar an aggrieved party from attacking the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds.
Signed on January 10, 2022 at Houston, [*14] Texas.
/s/ Christina A. Bryan
Christina A. Bryan
United States Magistrate Judge