Supreme Court of South Carolina

September 13, 2022, Heard; June 21, 2023, Filed

Opinion No. 28163

Lucinda Ruh, Plaintiff, v. Metal Recycling Services, LLC, Defendant.

Notice: THIS DECISION IS NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.

Prior History:  [*1] ON CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. Appellate Case No. 2022-000094.

Ruh v. Metal Recycling Servs., 2022 U.S. App. LEXIS 2077, 2022 WL 203744 (4th Cir., Jan. 24, 2022)

Disposition: CERTIFIED QUESTION ANSWERED.

Core Terms

contractor, independent contractor, selecting, Trucking, reasonable care, hiring, competence, cases, proximate cause, physical harm, Metal, hauling, driver

Case Summary

Overview

HOLDINGS: [1]-The Supreme Court answered “yes” to the following certified question: Under South Carolina law, can an employer be subject to liability for harm caused by the negligent selection of an independent contractor? The principal in an independent contractor relationship may be subject to liability for physical harm proximately caused by the principal’s own negligence in selecting the independent contractor. The potential liability the Supreme Court recognized is consistent with fundamental principles of tort law. It is based solely on a principal’s own negligence in hiring or selecting an independent contractor. It is not a form of vicarious liability nor is it an exception to the general rule that a principal is not liable for the negligence of an independent contractor.

Outcome

Certified question answered.

LexisNexis® Headnotes

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

HN1  Employment Relationships, Independent Contractors

The principal in an independent contractor relationship may be subject to liability for physical harm proximately caused by the principal’s own negligence in selecting the independent contractor.

Business & Corporate Law > Agency Relationships > Types > Employees & Employers

HN2  Types, Employees & Employers

The term “employer” suggests an employer-employee relationship. In such a relationship, the employer — even if not itself negligent —may be vicariously liable for the negligence of its employee.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

HN3  Employment Relationships, Independent Contractors

The general rule is that a principal is not vicariously liable for the negligent acts of an independent contractor.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

HN4  Employment Relationships, Independent Contractors

The South Carolina Supreme Court briefly explores four key features of Restatement (Second) of Torts § 411 (1965). First — as in any negligence action — the plaintiff must prove the defendant principal did not exercise reasonable care in selecting an independent contractor. Second, the standard for reasonable care will vary depending on the degree to which the work involves a risk of physical harm unless done skillfully and carefully. Third, the question of reasonable care relates only to selecting a competent and careful contractor. Finally, the plaintiff must establish the negligence of the principal was a proximate cause of the physical harm. Each of these features should be analyzed in future cases to develop a standard that allows an injured plaintiff to recover from an at-fault principal when such a recovery is warranted by the facts and the law, while avoiding unwarranted liability for principals who act reasonably in hiring independent contractors.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

Torts > … > Duty > Standards of Care > Reasonable Care

HN5  Employment Relationships, Independent Contractors

The standard for the liability of the principal in selecting an independent contractor is reasonable care, or, that care which a reasonable principal would exercise under the circumstances.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > … > Elements > Duty > Foreseeability of Harm

Torts > Vicarious Liability > Independent Contractors > Peculiar Risk Doctrine

HN6  Employment Relationships, Independent Contractors

Restatement (Second) of Torts § 411(a) (1965) contemplates liability of the principal only when the work of the contractor involves a risk of physical harm unless it is skillfully and carefully done. Thus, the principal should make reasonable inquiry into the extent to which the work the contractor is being hired to complete involves danger  — a foreseeable risk of physical harm — to third parties. Restatement (Second) of Torts § 411 cmt. c. If the work is such as will be highly dangerous unless properly done and is of a sort which requires peculiar competence and skill for its successful accomplishment, the principal may well be required to go to considerable pains to investigate the reputation of the contractor and ascertain the contractor’s actual competence. Thus, a more risky job generally requires a higher level of competence and care.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Licensing & Registration

Torts > Vicarious Liability > Independent Contractors

Labor & Employment Law > Employment Relationships > Independent Contractors

HN7  Commercial Drivers & Vehicles, Licensing & Registration

A contractor hauling toxic chemicals on public highway needs expertise and equipment, and must act with a level of care, that would not be required for a contractor hauling paper products. On the other hand, if the work is of a character that is within the competence of an average person — not requiring special skill and training — there will be a lower standard of care. Competence for hauling paper products may be nothing more than a commercial driver’s license and a commercially sound vehicle, and carefulness may be indicated simply by not having a reputation for careless driving. Thus, hiring a trucking company to haul paper products may require no more than a surface level assessment of competence.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

HN8  Employment Relationships, Independent Contractors

Restatement (Second) of Torts § 411(a) (1965) requires a principal to exercise reasonable care in selecting a competent and careful contractor. Whether a particular contractor is sufficiently competent and careful to perform the work safely will depend on the difficulty and danger associated with the particular work. The words “competent and careful contractor” denote a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable principal would realize that a contractor must have in order to do the work without creating unreasonable risk of injury to others, and who also possesses the personal characteristics which are equally necessary.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

HN9  Employment Relationships, Independent Contractors

A principal’s actual knowledge that an independent contractor has demonstrated —or failed to demonstrate — competence and carefulness in prior work will always be relevant to whether the principal breached the standard of care in selecting the contractor.

Labor & Employment Law > Employment Relationships > Independent Contractors

Torts > Vicarious Liability > Independent Contractors

HN10  Employment Relationships, Independent Contractors

The potential liability the South Carolina Supreme Court recognizes with regard to selection of an independent contractor is consistent with fundamental principles of tort law. It is based solely on a principal’s own negligence in hiring or selecting an independent contractor. It is not a form of vicarious liability nor is it an exception to the general rule that a principal is not liable for the negligence of an independent contractor.

Counsel: James David George Jr., Graham L. Newman, and Mark D. Chappell, of Chappell, Smith & Arden, of Columbia, for Plaintiff.

Christopher A. Ogiba of Moore & Van Allen PLLC, of Charleston, and Scott M. Tyler of Moore & Van Allen PLLC, of Charlotte, NC, both for Defendant.

Robert Daniel Moseley Jr. and Robert Charles Rogers of Mosely Marcinak Law Group LLP, of Taylors, for Amici Curiae South Carolina Chamber of Commerce and the South Carolina Trucking Association, Inc.

Whitney B. Harrison, of McGowan, Hood, Felder, & Phillips, LLC, of Columbia, for Amicus Curiae South Carolina Association for Justice.

Judges: JUSTICE FEW. BEATTY, C.J., KITTREDGE, JAMES, JJ., and Acting Justice Kaye G. Hearn, concur.

Opinion by: FEW

Opinion

CERTIFIED QUESTION

JUSTICE FEW: The United States Court of Appeals for the Fourth Circuit certified the following question to this Court pursuant to Rule 244 of the South Carolina Appellate Court Rules:

Under South Carolina law, can an employer be subject to liability for harm caused by the negligent selection of an independent contractor?

We answer the certified question:

HN1 Yes, the principal¹ in an independent contractor relationship [*2]  may be subject to liability for physical harm proximately caused by the principal’s own negligence in selecting the independent contractor.

I. Background

Metal Recycling Services, LLC, hired an independent contractor—Norris Trucking1, LLC—to transport scrap metal. A truck driver employed by Norris Trucking hit the car Lucinda Ruh was driving and injured her. Ruh sued Metal Recycling Services and its parent company, Nucor Corporation, in state court. The defendants removed the case to the United States District Court for the District of South Carolina. The district court granted the defendants’ motion to dismiss, finding Ruh did not allege an employer-employee relationship between the defendants and Norris Trucking or its driver, nor did she otherwise allege any basis on which the defendants could be liable for the negligence of their independent contractor. Ruh v. Metal Recycling Servs., LLC, 436 F. Supp. 3d 844, 852 (D.S.C. 2020). The district court delayed entry of judgment to allow Ruh to seek leave to amend her complaint. Id. Ruh then filed a motion to amend her complaint to add a claim that Metal Recycling Services itself was negligent in selecting Norris Trucking to transport the scrap metal. The district court denied the motion to amend and dismissed [*3]  the complaint. Ruh v. Metal Recycling Servs., LLC, No. 0:19-CV-03229-CMC, 2020 U.S. Dist. LEXIS 47769, 2020 WL 1303136, at *2-3 (D.S.C. Mar. 19, 2020). Ruh appealed to the United States Court of Appeals for the Fourth Circuit, which certified the question to this Court.

II. Analysis

HN3 We begin by affirming the “general rule” that a principal “is not vicariously liable for the negligent acts of an independent contractor.” Rock Hill Tel. Co. v. Globe Commc’ns, Inc., 363 S.C. 385, 390, 611 S.E.2d 235, 238 (2005); see also Duane v. Presley Const. Co., 270 S.C. 682, 683, 244 S.E.2d 509, 510 (1978) (stating “an employer is not liable for the torts of an independent contractor committed in the performance of contracted work” (citing Conlin v. City Council of Charleston, 49 S.C.L. (15 Rich.) 201, 211 (1868))); Caldwell v. Carroll, 139 S.C. 163, 187, 137 S.E. 444, 452 (1927) (Cothran, J., dissenting from dismissal of petition for rehearing) (“In every clime, under every judicial sky, it has been the settled law that the proprietor of any kind of property to be constructed or improved is not liable in damages for the negligent act of an independent contractor . . . .”). Ruh’s claim in her proposed Amended Complaint, however, is not based on the allegation that Norris Trucking—the contractor—was negligent. Rather, her claim is based on the allegation that Metal Recycling Services—the principal—was negligent in selecting Norris Trucking to perform the work. Thus, nothing we say in this opinion affects the general rule that a principal is not liable for the negligence of its independent contractor.

On this issue—the negligence [*4]  of the independent contractor—there is one point we must make clear. In most of these cases, the plaintiff contends the independent contractor has committed a negligent act, and thus, will also be a defendant. In this case, for example, Ruh brought a separate claim against Norris Trucking and its driver for the driver’s negligence in causing her injuries. In most cases in which the plaintiff sues the contractor and the principal—this case included—the plaintiff’s theory is the contractor’s negligence was one proximate cause of the injury, but also, the principal’s negligent failure to select a competent and careful contractor was another proximate cause of the injury. See generally J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 369, 635 S.E.2d 97, 101 (2006) (recognizing there may be more than one proximate cause of any injury); Culbertson v. Johnson Motor Lines, Inc., 226 S.C. 13, 23, 83 S.E.2d 338, 342-43 (1954) (same). To be clear, however, proving the negligence of the independent contractor will not result in the liability of the principal. Under our decision today, there can be no recovery against the principal unless the plaintiff separately proves the negligence of the principal in selecting that particular independent contractor and that the principal’s negligence was a proximate cause of the alleged injuries.

The question of whether [*5]  the principal in an independent-contractor relationship can be held liable for its own negligence in selecting a particular contractor has never been squarely before this Court. We view our “yes” answer to the question, however, as a straightforward application of the defining principles of tort law in this State, and we believe our answer should come as no surprise to even a casual student of the law. See Fitzer v. Greater Greenville S.C. Young Men’s Christian Ass’n, 277 S.C. 1, 3, 282 S.E.2d 230, 231 (1981) (“lay[ing] this anachronism [of charitable immunity] to rest” and stating, “There is no tenet more fundamental in our law than liability follows the tortious wrongdoer.”), superseded in part by statute, Act. No. 461, 1994 S.C. Acts 4963.² In fact, our predecessor Court—the Court of Appeals for the Courts of Law and Equity³—anticipated today’s ruling over 150 years ago. See Conlin, 49 S.C.L. at 211 (predicting that “under suitable allegations the owner might be made responsible for the misconduct or negligence of a contractor known to be unworthy of trust”).⁴ As the Fourth Circuit noted in its certification order to this Court, “every other state in the Fourth Circuit has . . . recognized a duty to hire a competent independent contractor.” Ruh v. Metal Recycling Servs. LLC, No. 20-1440, 2022 U.S. App. LEXIS 2077, 2022 WL 203744, at *2 (4th Cir. Jan. 24, 2022) (citing cases). As Ruh points out in her brief, “thirty-seven states have [held a principal] owes a [*6]  duty [of reasonable care] in the selection of an independent contractor.”⁵ As our own research reveals, no state has held that a principal is insulated from the consequences of its own negligence simply because its contractor was also negligent in causing the injury.

Nevertheless, Metal Recycling Services argues that to answer the question “yes” would “open the floodgates,” and “expand . . . the scope of liability . . . to any [principal] who does not turn every stone to investigate and analyze the independent contractor’s background, resources, and qualifications.” Similarly, friends of the Court—South Carolina Chamber of Commerce and The South Carolina Trucking Association, Inc.—argue answering “yes” will create “unlimited liability upon any shipper who transports goods to or through the State of South Carolina” and “has the potential to drastically, and detrimentally, impact the business environment within the State of South Carolina.” Because we are obligated to take these arguments seriously, we address how [*7]  we anticipate our decision will play out in this and future cases, explain the limited impact we believe our decision will have, and hopefully assure those potentially affected by our decision that, in fact, the sky is not falling.

We turn, therefore, to section 411 of the Restatement (Second) of Torts, which provides:

An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor

(a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.

Restatement (Second) of Torts § 411 (Am. L. Inst. 1965).

Ruh asks us to adopt section 411. While we find the text of and comments to subsection 411(a) will be useful in future cases as our circuit and appellate courts determine the parameters of this theory of liability, we deem it unnecessary to go so far as to “adopt” section 411. HN4 We will briefly explore four key features of subsection 411(a).⁶ First—as in any negligence action—the plaintiff must prove the defendant—in these cases the principal—did not exercise reasonable care. Second, the standard for reasonable care will vary depending on the degree to which the work involves a risk of physical harm unless done “skillfully and [*8]  carefully.” Third, the question of reasonable care relates only to selecting a “competent and careful contractor.” Finally, the plaintiff must establish the negligence of the principal was a proximate cause of the physical harm. Each of these features—and others not anticipated here—should be analyzed in future cases to develop a standard that allows an injured plaintiff to recover from an at-fault principal when such a recovery is warranted by the facts and the law, while avoiding unwarranted liability for principals who act reasonably in hiring independent contractors.

a. Reasonable Care

HN5 The standard for the liability of the principal is reasonable care, or, “that [care] which a reasonable [principal] would exercise under the circumstances.” Restatement (Second) of Torts § 411 cmt. c. During oral argument, we explored what the reasonable care standard may require of principals. Following up here on that discussion, first, reasonable care under subsection 411(a) is a matter of proof. The plaintiff must establish by proof a standard of care for selecting a contractor for the particular work and that the principal breached that standard. Second, most participants in the modern economy already act reasonably in selecting contractors. See Restatement (Second) of Torts § 411 cmt. c [*9]  (recognizing “one who employs” a contractor to perform relatively simple and safe work within the contractor’s field “is entitled to assume that [a contractor] of good reputation is competent to do such work safely”); id. (explaining the sophistication of the principal “is to be taken into account” in determining the standard of care, using an example of hiring a contractor to build a house); Sievers v. McClure, 746 P.2d 885, 891 (Alaska 1987) (“[Section 411] is not unduly burdensome, as in most cases it requires no additional effort from an employer who must act reasonably in the selection process . . . .” (emphasis added)). We do not foresee that our decision today will place any significant additional burden on the vast majority of principals to investigate a potential independent contractor.

b. Risk of Harm

HN6 Subsection 411(a) contemplates liability of the principal only when the work of the contractor involves a “risk of physical harm unless it is skillfully and carefully done.” Thus, the principal should make reasonable inquiry into the extent to which the work the contractor is being hired to complete involves danger—a foreseeable risk of physical harm—to third parties. See Restatement (Second) of Torts § 411 cmt. c (reciting “the general principle that the amount of care which should be used is proportionate to the danger involved in failing to use it”). The American Law Institute explains that “if the work is such as will be highly dangerous unless properly done and is of a sort which requires peculiar competence and skill for [*10]  its successful accomplishment,” the principal “may well be required to go to considerable pains to investigate the reputation of the contractor . . . and ascertain the contractor’s actual competence.” Id. Thus, a more risky job generally requires a higher level of competence and care. HN7 A contractor hauling toxic chemicals on public highways, for example, needs expertise and equipment, and must act with a level of care, that would not be required for a contractor hauling paper products.

On the other hand, the American Law Institute explains, if the work is of a character that is within the competence of an average person—not requiring special skill and training—there will be a lower standard of care. See Restatement (Second) of Torts § 411 cmt. c (stating “whether the work lies within the competence of the average [contractor] or is work which can be properly done only by persons possessing special skill and training” is an “important” factor in “determining [the] amount of care required” (emphasis added)). Continuing with the trucking example, competence for hauling paper products may be nothing more than a commercial driver’s license and a commercially sound vehicle, and carefulness may be indicated simply by not having a reputation [*11]  for careless driving. Thus, hiring a trucking company to haul paper products may require no more than a surface level assessment of competence. See, e.g., Lutz v. Cybularz, 414 Pa. Super. 579, 607 A.2d 1089, 1093 (Pa. Super. Ct. 1992) (holding section 411 required “only a minimal degree of care” from the principal in that case, and stating, “First, the foreseeable danger resulting from improperly delivered newspapers is significantly less than, for example, that of an improperly constructed building or machinery. The risk associated with delivering newspapers is unlikely to result in serious physical harm or property damage.”).

c. Competent and Careful

HN8 Subsection 411(a) requires a principal to exercise reasonable care in selecting “a competent and careful” contractor. Whether a particular contractor is sufficiently competent and careful to perform the work safely will depend on the difficulty and danger associated with the particular work. “The words ‘competent and careful contractor’ denote a contractor who possesses the knowledge, skill, experience, and available equipment which a reasonable [principal] would realize that a contractor must have in order to do the work . . . without creating unreasonable risk of injury to others, and who also possesses the personal characteristics which [*12]  are equally necessary.” Restatement (Second) of Torts § 411 cmt. a. The American Law Institute explains, as an example of what is not meant by competent and careful, “The rule stated in this Section . . . has no application where the contractor, although competent and careful, is financially irresponsible.” Restatement (Second) of Torts § 411 cmt. g. As stated above, the standard for the competence and carefulness required for particular work is a matter of proof. HN9 Of course, a principal’s actual knowledge that a contractor has demonstrated—or failed to demonstrate—competence and carefulness in prior work will always be relevant to whether the principal breached the standard of care.

d. Proximate Cause

As with any other theory of liability, the plaintiff must establish proximate cause. The American Law Institute addressed proximate cause in comment b to section 411, stating “it is . . . necessary that harm shall result from some quality in the contractor which made it negligent for the employer to entrust the work to him.” Restatement (Second) of Torts § 411 cmt. b. Sticking with the trucking example to illustrate the point, if a principal hires a contractor unqualified to handle emergencies that may arise while hauling toxic chemicals, the principal is negligent in hiring the contractor. But if the contractor causes an [*13]  accident by negligently failing to yield the right of way, and the dangerous quality of his cargo plays no part in the accident or injury, then the plaintiff will be unable to establish cause-in-fact and thus unable to establish proximate cause. See Wickersham v. Ford Motor Co., 432 S.C. 384, 390, 853 S.E.2d 329, 332 (2020) (“Proximate cause requires proof of cause-in-fact and legal cause.”). In this example, the principal may be liable for his negligence in selecting the contractor only when the contractor’s lack of qualifications to handle an emergency involving toxic chemicals is the cause-in-fact of the plaintiff’s injury. See, e.g., Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1010 (7th Cir. 1982) (explaining that even if the defendant/principal was negligent in hiring a contractor “because he had no experience with this particular type of job,” the accident resulted from a completely different error: the contractor’s “unaccountable failure to read or pay attention to the warnings on the can of glue,” and thus the plaintiff could not establish probable cause because the “accident was no more probable because [the contractor] was inexperienced”).

III. Conclusion

We answer the certified question “yes.” HN10 The potential liability we recognize today is consistent with fundamental principles of tort law. It is based solely [*14]  on a principal’s own negligence in hiring or selecting an independent contractor. It is not a form of vicarious liability nor is it an exception to the general rule that a principal is not liable for the negligence of an independent contractor.

CERTIFIED QUESTION ANSWERED.

BEATTY, C.J., KITTREDGE, JAMES, JJ., and Acting Justice Kaye G. Hearn, concur.

End of Document

---

¹ HN2 The term “employer” suggests an employer-employee relationship. In such a relationship, the employer—even if not itself negligent—may be vicariously liable for the negligence of its employee. James v. Kelly Trucking Co., 377 S.C. 628, 631, 661 S.E.2d 329, 330 (2008) (citing Sams v. Arthur, 135 S.C. 123, 128-131, 133 S.E. 205, 207-08 (1926)). As we explain, one who retains an independent contractor is not vicariously liable for the contractor’s negligence. This Court in previous opinions, the Fourth Circuit in the certified question, and the American Law Institute in Section 411 of the Restatement (Second) of Torts have all used the term “employer” to describe one who hires an independent contractor. To avoid any confusion between these different relationships and whether they give rise to vicarious liability, we believe the better term for an “employer” in an independent contractor relationship is “principal.”

² See also Langley v. Boyter, 284 S.C. 162, 183, 325 S.E.2d 550, 562 (Ct. App. 1984) (discussing “the basic premise of our fault system” is that a defendant “who is at fault in causing an accident” should not be allowed “to escape bearing any of its cost”), opinion quashed, 286 S.C. 85, 332 S.E.2d 100 (1985), reasoning later adopted in, Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991); Ralph C. McCullough II & Gerald M. Finkel, A Guide to South Carolina Torts IV 2 (1st ed. 1995) (“The central theme underlying the whole of tort law is the idea that the tortfeasor . . . is usually held responsible . . . because he has departed from a reasonable standard of care.”).

³ The Supreme Court of South Carolina was not created until the adoption of the 1868 Constitution. See S.C. Const. of 1868 art. IV, §§ 1-5. From 1859 to 1868, appeals from trial courts were heard by the Court of Appeals for the Courts of Law and Equity, created by statute. See Act No. 4438, 12 Statutes of S.C. 647 (1859) (“Be it enacted by the Senate and House of Representatives, now met and sitting in General Assembly, . . . That a Court of Appeals for the Courts of Law and Equity shall be, and the same is hereby, established.”). Conlin—decided in January 1868—was one of the last decisions the court of appeals made before the new Justices of the Supreme Court were elected in July. See Barry Edmond Hambright, The South Carolina Supreme Court 37-50 (1981) (Ph.D. dissertation, University of South Carolina) (on file with the Supreme Court of South Carolina Library) (discussing the creation of the 1859 Court of Appeals and the 1868 Supreme Court).

⁴ See also Caldwell, 139 S.C. at 172, 137 S.E. at 446 (majority allowing negligence action against principal to proceed); 139 S.C. at 184-85, 137 S.E. at 451 (Cothran, J., dissenting) (stating in response to majority, “Where the relation of an independent

Juris § 1530, 1324 and citing Conlin, 49 S.C.L. at 211); Shockley v. Hoechst Celanese Corp., 793 F. Supp. 670, 674-75 (D.S.C. 1992) (imposing liability on the principal for its own negligence in using a contractor to dispose of hazardous waste), aff’d on this ground, rev’d in part on other grounds, 996 F.2d 1212 (4th Cir. 1993) (unpublished table decision).

⁵ Metal Recycling Services concedes “it is true that a majority of states have recognized such claims,” but contends the majority comprises thirty-four states, not thirty-seven.

⁶ This case involves potential liability only as set forth in subsection 411(a). We do not address liability under subsection 411(b). Cf. Mentzer v. Ognibene, 408 Pa. Super. 578, 597 A.2d 604, 609 (Pa. Super. Ct. 1991) (“We agree that the scope of section 411 is properly limited to claims by third persons other than employees of the negligent independent contractor itself.”); Chapman v. Black, 49 Wn. App. 94, 741 P.2d 998, 1005 (Wash. App. 1987) (“[T]he liability extends not to the employee of the independent contractor, but to innocent passersby.”).

United States District Court for the Eastern District of Texas, Sherman Division

June 8, 2023, Decided; June 8, 2023, Filed

Core Terms

summary judgment, negligence per se, regulations, negligence per se claim, gross negligence, driver, speed, entrustment, Deposition, traveling, entrance, highway, ramp, matter of law, genuine, prudent, hiring, negligence claim, drive, respondeat superior, proper lookout, material fact, recommends, violations, omissions, proximate, Training, report and recommendation, magistrate judge, burden of proof

Counsel:  [*1] For Romero Ellis, Joshlen Clay, Plaintiffs: David Michel Patin , Jr, LEAD ATTORNEY, Gm, Addison, TX USA.

For Mark G Klawonn, Defendant: David Lynn Sargent, LEAD ATTORNEY, Martha Marie Posey, Sargent Law, PC -Dallas, Dallas, TX USA.

For Swift Transportation Company of Arizona LLC, Defendant: Martha Marie Posey, David Lynn Sargent, Sargent Law, PC -Dallas, Dallas, TX USA.

For Mark G Klawonn, Defendant: Martha Marie Posey, Sargent Law, PC -Dallas.

Judges: Christine A. Nowak, UNITED STATES MAGISTRATE JUDGE.

Opinion by: Christine A. Nowak

Opinion

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendants Mark G. Klawonn and Swift Transportation Company of Arizona, LLC’s Motion for Summary Judgment [Dkt. 18]. Having considered Defendants’ Motion for Summary Judgment, Plaintiffs’ Response [Dkt. 19], Defendants’ Reply [Dkt. 21], and all other relevant filings, the Court recommends the Motion for Summary Judgment [Dkt. 18] be GRANTED, as set forth herein.

RELEVANT BACKGROUND

Plaintiffs Romero Ellis and Joshlen Clay’s (“Plaintiffs”) suit arises out of a motor vehicle accident [Dkt. 5]. Plaintiffs allege that around 5:45 a.m. on October 15, 2020, they were traveling southbound on US-Highway [*2]  75 in Grayson County, Texas, when Defendant Mark G. Klawonn (“Klawonn”) struck Plaintiffs’ vehicle [Dkt. 5 at 2]. On November 23, 2021, Plaintiffs filed their original petition in the 59th District Court of Grayson County, Texas, Cause No. CV-21-1498, against Defendants Klawonn and Swift Transportation Company of Arizona, LLC (“Swift,” and together, “Defendants”) [Dkt. 1]. On December 16, 2021, Defendants removed Plaintiffs’ suit to the Eastern District of Texas based on diversity jurisdiction [Dkt. 1]. Plaintiffs’ original petition filed in state court remains the live pleading [Dkt. 5].

Plaintiff’s Claims — the Live Pleading

Plaintiffs assert claims for negligence per se, negligence, and gross negligence. More specifically, Plaintiffs’ negligence per se cause of action against both Defendants alleges violations of Texas Transportation Code §§ 542.206, 545.062, and 545.351, violations of Federal Motor Carrier Safety Regulations (“FMCSR”) §§ 390.11, 391.11, 391.13, and 392.6, and “other safety standards and regulations,” and that such rules and regulations are intended to protect Plaintiffs from the type of harm caused by the accident [Dkt. 5 at 3-4]. Plaintiffs’ negligence claims against Klawonn incorporate the negligence per se allegations and go on to assert numerous additional violations based on the following [*3]  acts or omissions:

a) failing to keep a proper lookout for Plaintiffs safety that would have been maintained by a person of ordinary prudence under the same or similar circumstances;

b) failing to yield as a person of prudent care would have done;

c) operating his motor vehicle at a rate of speed which was greater than that would have been operated by a person of ordinary prudence under the same or similar circumstances;

d) failing to apply the brakes to his motor vehicle in a timely and prudent manner;

e) failing to control his speed and driving at an unsafe speed in violation of § 545.351 of the Texas Transportation Code;

f) failing to take reasonable care in controlling his vehicle;

g) operating his vehicle without due regard for the rights of others;

h) driver inattention;

i) failure to control his vehicle;

j) violating § 545.351 of the Texas Transportation Code;

k) failing to comply with the Federal Motor Carrier Safety Regulations; and

l) such additional acts of negligence, which will be established as the case progresses.

[Dkt. 5 at 4-5]. Plaintiffs separately plead negligence claims against Swift, again incorporating their negligence per se allegations, in addition to the following: entrusting the vehicle to Klawonn when Swift knew or should have known Klawonn was “an [*4]  incompetent driver, unqualified to drive a commercial motor vehicle, inadequately trained, and/or reckless”; failing to properly train Klawonn in operating the vehicle; hiring and entrusting an “incompetent drive” like Klawonn; failing to “do what a reasonably prudent motor carrier would do under the same and similar circumstance”; and other acts of negligence “which will be established as the case progresses” [Dkt. 5 at 5-6]. Plaintiffs also assert Swift is liable under a theory of respondeat superior by alleging Klawonn was acting in the course and scope of his employment at the time of the accident, and therefore Swift is liable for any acts or omissions of Klawonn individually [Dkt. 5 at 3, 5]. Finally, Plaintiffs’ gross negligence cause of action alleges the acts and omissions of Defendants involved an “extreme degree of risk” and that they had “actual, subjective awareness of the risks” but “nevertheless proceeded with conscious indifference” to the rights and safety of Plaintiffs [Dkt. 5 at 6]. As to Swift only, Plaintiffs allege it was grossly negligent in the hiring and entrustment of the vehicle to Klawonn [Dkt. 5 at 6]. The complaint generally pleads that each of these acts [*5]  and/or omissions proximately caused Plaintiffs’ injuries. For relief, Plaintiffs seek damages for reasonable medical care and expenses incurred in the past or in the future, past and future pain and suffering, past and future physical impairment, past and future mental anguish, past and future loss of earnings and/or earning capacity, past and future disfigurement, and the cost of medical monitoring [Dkt. 5 at 7-8]. In addition, Plaintiffs seek exemplary damages, pre-and post-judgment interest, costs of court, and any other relief to which they may be entitled [Dkt. 5 at 9].

Motion for Summary Judgment

On September 22, 2022, Defendants filed the instant Motion for Summary Judgment [Dkt. 18]. On October 13, 2022, Plaintiffs filed their response [Dkt. 19], and on October 19, 2022, Defendants filed their reply [Dkt. 21]. The Motion is ripe for disposition.

SUMMARY JUDGMENT STANDARD

The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses to help “secure the just, speedy and inexpensive determination of every action.” Nat’l Cas. Co. v. Kiva Const. & Eng’g, Inc., 496 F. App’x 446, 449 (5th Cir. 2012) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show [*6]  “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine dispute of material fact exists ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Certain Underwriters at Lloyd’s London v. Axon Pressure Prods. Inc., 951 F.3d 248, 255 (5th Cir. 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). “The substantive law will identify which facts are material. This means only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Gibson v. Collier, 920 F.3d 212, 219 (5th Cir. 2019) (citing Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369, 378 (5th Cir. 2019)) (cleaned up).

The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Bucklew v. Precythe, 139 S. Ct. 1112, 1131, 203 L. Ed. 2d 521 (2019). When the movant does not bear the burden of proof at trial, the movant is entitled to summary judgment if “the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Gonzales v. ConocoPhillips Co., 806 F. App’x 289, 291 (5th Cir. 2020) (citing Celotex, 477 U.S. at 323). Once the movant has carried its burden, the nonmovant “must go beyond the pleadings and identify specific evidence in the record showing that there is a genuine issue for trial.” Powers v. Northside Indep. Sch. Dist., 951 F.3d 298, 307 (5th Cir. 2020). “If the evidence is merely colorable, or is not significantly probative, [*7]  summary judgment may be granted.” Malbrough v. Stelly, 814 F. App’x 798, 802 (5th Cir. 2020) (citing Anderson, 477 U.S. at 249-50). The Court need only consider the record materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quotations omitted).

SUMMARY JUDGMENT EVIDENCE

Defendants submit the following evidence in support of their Motion for Summary Judgment:

Exhibit A [Dkt. 18-1]: Certified Copy of the Texas Peace Officer’s Crash Report;

Exhibit B [Dkt. 18-2]: Affidavit of Kelly Anderson, Custodian of Record for Defendant Swift;

Exhibit B-1: Portions of Mark Klawonn’s Driver Qualification File;

Exhibit B-2: Portions of Mark Klawonn’s Driver Training File;

Exhibit B-3: Mark Klawonn’s Driving Records & Certificates of Violations;

Exhibit C [Dkt. 18-3]: Deposition Excerpts from the Deposition of Mark Klawonn.

Plaintiffs submit the following evidence in response to the Motion for Summary Judgment:

Exhibit A [Dkt. 19-1]: Certified Copy Crash Report;

Exhibit B [Dkt. 19-2]: Deposition Excerpts from the Deposition of Romero Ellis;

Exhibit C [Dkt. 19-3]: Deposition Excerpts from the Deposition of Joshlen Clay;

Exhibit D [Dkt. 19-4]: Deposition Excerpts from [*8]  the Deposition of Mark Klawonn.

No objections have been made to the Court’s consideration of the summary judgment evidence.¹

Undisputed Facts²

The motor vehicle accident giving rise to Plaintiffs’ [*9]  claims occurred on October 15, 2020, at or near the Farm to Market 691 entrance ramp to southbound U.S. Highway 75 in Grayson County, Texas [Dkt. 18 at 3]. The accident was investigated by Officer Tyrek Hancock of the Sherman Police Department (“Officer Hancock”), who created the Texas Peace Officer’s Crash Report TxDOT/Crash ID: 17912164.1 / 2020408797 (“Police Report”) [Dkt. 18 at 4]. Officer Hancock completed the section entitled “Narrative Opinion of What Happened” in the Police Report, where “Unit” and “Unit 1” refer to Plaintiffs and “Unit 2” and “Unit 3” refer to the truck and trailer driven by Defendant Klawonn:

Unit was traveling from 691 onto the on-ramp heading southbound to Highway 75. Unit 2 was towing Unit 3 which is a flat bed trailer. Unit 2 and Unit 3 were traveling southbound on 75 in the outside lane. Unit 2 stated he tried to get over onto the inside lane, but due to another truck trailer he could not get over. Unit 1 was attempting to get on to the highway and hit the side of Unit 3. Unit 1 spun out onto the side of the highway and caught on fire. Witness-Snowden Lagail Ruthie 972-273-0375. Said this happened the way I stated it up above.

[Dkt. 18 at 4; 18-2 at 3]. [*10]  Defendants contend, and Plaintiffs do not dispute, the Police Report lists only Plaintiffs (Unit 1) as possible “contributing factors” to the accident [Dkt. 18 at 5] (citing Defs. Ex. A at 2-3). Klawonn (Units 2 and 3) is not identified as a contributing factor in the Police Report [Dkt. 18 at 5]. As noted in the narrative summary of the report, an eyewitness gave Officer Hancock a description of the accident consistent with the description in the report that Plaintiffs hit Klawonn while entering the highway [Dkt. 18 at 5].

ANALYSIS

Claims Withdrawn by Plaintiffs — Negligent and Grossly Negligent Hiring, Training, and Entrustment as to Swift

In Response to Defendants’ Motion for Summary Judgment, Plaintiffs withdraw their negligent hiring, training, and entrustment claim, and as well, their claim for gross negligence in hiring and entrusting against Defendant Swift [Dkt. 19 at 2]. Because Plaintiffs withdraw (or otherwise abandon) these claims, summary judgment on them is proper. See Newton v. State Farm Lloyds, No. 4:21-CV-00322-SDJ-CAN, 2022 U.S. Dist. LEXIS 108536, 2022 WL 2195464, at *2 (E.D. Tex. May 17, 2022) (citing Rasco v. Potter, No. H-05-0034, 2007 U.S. Dist. LEXIS 106216, 2007 WL 9758165, at *2 (S.D. Tex. Jan. 4, 2007)), report and recommendation adopted, No. 4:21-CV-322, 2022 U.S. Dist. LEXIS 108498, 2022 WL 2195019 (E.D. Tex. June 17, 2022). Therefore, the undersigned recommends dismissal of Plaintiffs’ claims for negligent hiring, training, and entrustment and for gross negligence in hiring and [*11]  entrusting, both brought against Defendant Swift only. Remaining are Plaintiffs’ claims for negligence per se (asserted as to both Defendants), negligence (asserted against Klawonn directly and against Swift on a theory of respondeat superior), and gross negligence (asserted as to both Defendants).

Negligence Per Se — Klawonn and Swift

The Court begins with Plaintiffs’ claims for negligence per se, which notably Plaintiffs did not defend in their response to the Motion. Indeed, as Defendants correctly note in their reply, Plaintiffs wholly fail to address their claims for negligence per se or contest in any manner Defendants’ arguments presented in support of summary judgment on each of the statutes and rules/regulations cited in the complaint [See Dkt. 21 at 1-2]. The Court agrees that summary judgment should be granted for Defendants on any claims for negligence per se.

Negligence per se is actionable where “the violation of a particular statute is negligence as a matter of law.” Allison v. J.P. Morgan Chase Bank, N.A., No. 1:11-CV-342, 2012 U.S. Dist. LEXIS 142522, 2012 WL 4633177, at *13 (E.D. Tex. Oct. 2, 2012). “In these situations, the standard of care is defined by the statute itself rather than by the reasonably prudent person standard that applies in general negligence actions.” Id. (citing Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997)). “When a statute [*12]  includes an ordinary-prudent-person standard, the negligence per se doctrine cannot apply to the case because the statute implicates the same standard of conduct as the common-law standard of ordinary care.” Hanson v. Werner Enterprises, Inc., No. 2:21-CV-00245-RSP, 2022 WL 17823981, at *6 (E.D. Tex. Dec. 20, 2022) (citing Supreme Beef Packers, Inc. v. Maddox, 67 S.W.3d 453, 456 (Tex. App.—Texarkana 2002, pet. denied)). “Summary judgment is thus appropriate as a matter of law when a party brings a negligence per se claim under a penal statute that merely incorporates the reasonably prudent person standard.” Ordonez v. Ausby, No. EP-21-CV-00077-DCG, 2023 U.S. Dist. LEXIS 8338, 2023 WL 310442, at *6 (W.D. Tex. Jan. 18, 2023). “To decide whether a penal statute incorporates the reasonably prudent person standard, courts ask whether the statute ‘imposes a conditional duty’ rather than ‘an absolute duty.'” Id. (citing Miranda-Lara v. Rebert, No. 09-18-00325-CV, 2020 Tex. App. LEXIS 7001, 2020 WL 5099968, at *4-5 (Tex. App.—Beaumont Aug. 31, 2020, no pet.)). “In the specific context of a statute that regulates drivers’ conduct, courts ask whether the statute ‘leave[s] any room for the driver to make a discretionary call.'” Id. (quoting Miranda-Lara, 2020 WL 5099968, at *4).

Defendants urge that all three Texas Transportation Code sections cited by Plaintiffs in the complaint incorporate a reasonably prudent person standard—TEX. TRANSP. CODE §§ 542.206, 545.351, and 545.062—and as well, one of the FMCSR regulations, specifically § 390.11 [Dkt. 18 at 10-13]. They further argue that the remaining FMCSR regulations cited may give rise to a negligence per se claim—FMCSR §§ 391.11, 391.13, and 392.6—but here, Plaintiffs’ claims fail because they have not [*13]  alleged facts showing Defendants’ conduct violated these regulations [Dkt. 18 at 12-14]. Again, to reiterate, Plaintiffs did not respond to any of these contentions.

The Court finds summary judgment should be granted for Defendants as to each statute or regulation cited in Plaintiffs’ negligence per se cause of action.³ It is well established that Texas Transportation Code Sections 542.206, 545.351, and 545.062 incorporate an ordinary negligence standard and thus cannot be actionable under a negligence per se theory. See, e.g., Sanchez v. Swift Transp. Co. of Arizona, LLC, No. 4:15CV15-LG, 2017 WL 5654909, at *3 (W.D. Tex. May 30, 2017) (“Swift is also entitled to dismissal of the negligence per se claims based on sections 545.062 and 545.351 as a matter of law, in light of Texas precedent holding that a violation of those sections does not constitute negligence per se.”); Gould v. Wood, No. 3:18-CV-786-K-BN, 2019 WL 1930053, at *6 (N.D. Tex. Apr. 4, 2019) (noting the relevance of Section 542.206 is unclear in the context of a negligence per se claim, given that the plain text of the statute addresses the plaintiff’s burden in the context of an ordinary negligence claim) (“Section 542.206 states that ‘declaring a maximum or minimum speed limit does not relieve the plaintiff in a civil action from the burden of proving negligence of the defendant as the proximate cause of the accident.'”), report and recommendation adopted, No. 3:18-CV-786-K-BN, 2019 U.S. Dist. LEXIS 72119, 2019 WL 1924820 (N.D. Tex. Apr. 29, 2019).⁴

Defendants argue that FMCSR § 390.11, which states that [*14]  any duty imposed on a driver under the regulations is also imposed on the carried, “does not impose a duty that can be violated” such that it cannot form the basis of a negligence per se claim either [Dkt. 18 at 11].⁵ At most, FMCSR § 390.11 imposes a duty on both the driver and carrier, but it does not impose any particular standard of care; because a statute must impose a standard of care higher than ordinary negligence, § 390.11‘s command as to who has a duty rather than the standard for breach of that duty means Plaintiffs’ negligence per se claim fails as a matter of law. See, e.g, Almanzar v. Eaglestar, No. EP-20-CV-117-KC, 2021 U.S. Dist. LEXIS 254678, 2021 WL 7184209, at *5 (W.D. Tex. Dec. 21, 2021) (“The Court doubts that a provision requiring actors to comply with the FMCSR can be a freestanding source of negligence per se liability because it does not describe a special standard of conduct”); Claybrook v. Time Definite Servs. Transp., LLC, No. 4:15-CV-763-A, 2016 U.S. Dist. LEXIS 95308, 2016 WL 3963025, at *2-3 (N.D. Tex. July 21, 2016) (granting summary judgment for defendant on a negligence per se claim based on FMCSR § 390.11) (“[Plaintiff] does not dispute that negligence per se does not apply to the other sections mentioned in her amended complaint”).

As well, summary judgment should be granted as to the remaining regulations cited in Plaintiffs’ complaint, specifically FMCSR §§ 391.11,⁶ 391.13,⁷ and 392.6,⁸ because the summary judgment evidence establishes either Defendants’ compliance with such [*15]  regulations or reflects the absence of any evidence of a violation [Dkt. 18 at 12-14]. Defendants’ Motion addresses each regulation in turn, pointing to record evidence affirmatively demonstrating compliance or showing the lack of evidence of any violation.⁹ Having fully reviewed the summary judgment record, the Court agrees that Plaintiffs have not carried their burden as to any of the three remaining FMCSR regulations. See Hanan v. Crete Carrier Corp., No. 3:19-CV-0149-B, 2020 U.S. Dist. LEXIS 671, 2020 WL 42269, at *4 (N.D. Tex. Jan. 3, 2020) (“nowhere else in her response does Hanan discuss the negligence per se claim, or how there is a genuine dispute of material fact as to this claim. Defendants are thus entitled to summary judgment on the negligence per se claim”); see also Almanzar, 2021 WL 7184209, at *7 (“even if Plaintiff’s lack of specificity was not fatal to her claims, she has not offered any evidence of breach or causation. The Court therefore grants summary judgment for Defendants on Plaintiff’s remaining negligence per se claims.”); Claybrook, 2016 WL 3963025, at *3 (granting summary judgment on FMCSR negligence per se claims where “Plaintiff has not pointed to any evidence to the contrary, much less argued that defendant failed to comply with the regulations.”). Summary judgment should be granted as to all negligence per se claims.

Negligence [*16]  — Klawonn

To state a viable negligence claim under Texas law, Plaintiff must establish the following elements: “(1) a legal duty; (2) a breach of that duty; and (3) damages proximately resulting from the breach.” Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 144 (Tex. 2022). “The threshold inquiry in a negligence case is duty.” Id. (quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). The nonexistence of a duty ends the inquiry into whether negligence liability may be imposed because “[i]f the defendant owed no duty, it cannot be found liable for negligence.” Robison v. Cont’l Cas. Co., No. 1:17-CV-508, 2022 WL 336901, at *7 (E.D. Tex. Jan. 6, 2022) (citing Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 180 (5th Cir. 2018)). “The initial burden of proof for each element of a negligence cause of action is on the plaintiff.” JPMorgan Chase Bank, N.A. v. Borquez, 481 S.W.3d 255, 267-68 (Tex. App.—Dallas 2015, pet. denied) (collecting cases).

Defendants argue Plaintiffs have no evidence as to the breach of any duty or that any such breach was the proximate cause of Plaintiffs’ injuries [Dkt. 18 at 15-18]. Plaintiffs rejoin that Defendants “conceded that the Plaintiffs can establish the duty of care” owed to them, that Klawonn breached that duty by operating the vehicle “in a negligent manner such that it struck Plaintiffs,” and that Plaintiffs sought medical treatment following the crash [Dkt. 19 at 3-4].

Regarding existence of a duty of care, Defendants concede only that “all drivers on a public roadway owe the duty of a reasonable person [*17]  to operate their vehicle in a safe and prudent” manner [Dkt. 18 at 16]. Defendants contest that Klawonn had a duty to yield to Plaintiffs, citing Texas Transportation Code § 545.061, which states that the driver entering the highway, here Plaintiffs, is charged with the duty to yield [Dkt. 18 at 16]. Plaintiffs did not respond to the contention that Plaintiffs, not Klawonn, had the duty to yield. Summary judgment should be granted as to the failure to yield claim asserted against Klawonn.

The remaining negligence claims against Klawonn include failing to keep a proper lookout; operating at speed greater than reasonable/failing to control his speed; failing to apply his brakes; failing to control his speed/vehicle; operating without due regard; driver inattention; and general violations of FMCSR.¹⁰ As to these remaining claims, Defendants contend that Plaintiffs have adduced no competent summary judgment evidence supporting breach. The Court agrees. “Texas law is clear that an accident alone does not constitute evidence of a breach.” Gould, 2019 WL 1930053, at *4 (citing Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 48 (Tex. App.—San Antonio 2005, no pet.)). Defendants cite record evidence negating each of Plaintiffs’ allegations of breach, specifically showing that Defendant Klawonn was traveling in the outside lane, was paying attention, [*18]  keeping a proper lookout for oncoming traffic, traveling below the posted speed limit, and at no time lost control of his vehicle. Regarding the alleged failure to keep a proper lookout, Defendants point to Klawonn’s deposition testimony that he saw “a vehicle passing me on the lefthand side. And I came to the entrance ramp and, of course, you have to be observant of everything. I saw no vehicle on the entrance ramp. I passed the entrance ramp” [Dkt. 18 at 17] (citing Def. Ex. C at 37:11-15). Regarding the claim Klawonn was operating at a speed greater than reasonable, Defendants point to Klawonn’s testimony that he was traveling around 65 miles per hour (“I would have been traveling approximately 65 miles an hour, 65, 66, 67”), even though the posted speed limit was 75 miles per hour [Dkt. 18 at 15, 17]. Regarding the allegations that Klawonn failed to apply his brakes, failed to control his vehicle, and operated without due regard or while inattentive, again, Klawonn’s testimony directly refutes these allegations. Klawonn stated that, immediately prior to the collision, he noticed a vehicle approaching in the lane to his left, did not see a vehicle on the entrance ramp in front of [*19]  him, and proceeded to remain in the right-hand lane:

Q. Can you describe for me in your own words how this accident happened?

A. I was traveling — I had left the rest area where I had just performed my ten-hour break and traveling south. Final destination was going to be Laredo, Texas, the terminal. Traffic was light.

I know that — I’m very familiar with that highway. I remember passing the QuikTrip. There was, at that point, a vehicle passing me on the left-hand side. And I came to the entrance ramp and, of course, you have to be observant of everything. I saw no vehicle on the entrance ramp. I passed the entrance ramp, and I — I can only describe it as I thought I blew a tire on the trailer; of course, you feel that. So I began looking for a safe place to pull the vehicle over to inspect damage.

And when the tire blew — that’s initially what I thought it was. But I heard — I heard the vehicle — I heard a vehicle behind me. I heard it spin out, or whatever it did. I did not see it because I did not see anyone coming in on the entrance ramp. There were no lights. It was dark, and I saw nothing to indicate on that entrance ramp that there was a vehicle coming.

And so as soon as [*20]  the flat tire and then, of course the accident when I heard the vehicle, I pulled over at the top of the hill and I ran from the top of the hill back to the accident area.

[Dkt. 18-3 at 7-8] (Def. Ex. C at 37:2-38:5). The only portion of Plaintiff Ellis’s deposition testimony cited in response to the Motion for Summary Judgment does not controvert these facts:

Q. Okay. So first time you saw the diesel you were in the right lane on Highway 75 and the diesel was in the left lane, but completely in front of you?

A. Yes. He was getting — he was — he was already on the left lane going straight. And I don’t know. Something caused him to switch lanes, to go to the right, ’cause the right lane is the — the normal lane — I guess they call it — where — it’s the lane where you jump into where you you normally just drive the speed limit, and the left is only for passing cars. You’re not supposed to stay in the left lane too long. It’s that lane. So he abruptly something caused him to try to switch to the right.

. . . .

Q. Okay. So when you say you heard him slam on his brakes, what did you hear?

A. All I heard was just (indicates) and then I couldn’t hear anything else because the car was spinning, [*21]  ’cause when it happened, it clipped us, and we started spinning and spinning. And after that we were just literally holding onto the wheel, and that’s all we remember from that.

[Dkt. 19-2 at 36] (Plf. Ex B at 36:3-15, 38:15-22). Plaintiffs’ testimony does not create a fact issue regarding whether Klawonn was keeping a proper lookout, was traveling at an unreasonable speed, failed to break or to control the vehicle, or was inattentive or failed to give due regard. And the Police Report (thus both the investigating officer and third-party witness) from the incident is consistent with Defendant Klawonn’s testimony and confirms Plaintiffs were attempting to enter the highway and struck Defendant Klawonn.

In sum, Plaintiffs’ allegations of breach are wholly unsupported by any summary judgment evidence in the record.¹¹ See Gomez v. Adame, 940 S.W.2d 249, 252 (Tex. App.—San Antonio 1997, no writ) (“Admittedly, Adame did not see Gomez’s van prior to impact. Contrary to Gomez’s suggestion, the fact that Adame did not see Gomez’s van coupled with the fact that her field of vision was not obstructed does not establish as a matter of law that Adame failed to maintain a proper lookout. As noted, Adame testified that she stopped at Chalmers and entered into the intersection [*22]  which she believed to be clear.”). Plaintiffs have failed to raise a genuine fact issue that Klawonn acted negligently by breaching any of the duties of care owed by a driver, and the mere fact that an accident occurred is not enough to survive summary judgment. See Morris v. Santillan, No. EP-11-CA-414-FM, 2012 WL 13136338, at *3 (W.D. Tex. Sept. 26, 2012) (footnote omitted) (noting that “speculative assertions” do not raise a fact issue regarding breach of the duty of ordinary car) (“Evidence that a car accident occurred does not—standing alone—establish negligence as a matter of law. Rather ‘[i]t is the plaintiff’s burden to prove specific acts of negligence on the part of the driver and that such negligence was a proximate cause of the accident.'”); Flores v. Marshall, No. 11-06-00229-CV, 2008 Tex. App. LEXIS 2203, 2008 WL 802993, at *1 (Tex. App.—Eastland Mar. 27, 2008, no pet.) (citations omitted) (“The occurrence of an automobile accident does not establish negligence as a matter of law. The plaintiff has the burden of proving specific acts of negligence on the part of the defendant and of proving that such negligence was a proximate cause of the accident.”).

Negligence — Swift

Having withdrawn their claims based on negligent hiring and entrustment, only Plaintiffs’ negligence claims against Swift based on respondeat superior remain.¹² “Under the theory of respondeat superior, ‘an employer may [*23]  be vicariously liable for the negligent acts of its employee if the employee’s actions are within the course and scope of his employment.'” Gould, 2019 WL 1930053, at *7 (quoting Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)). However, to hold an employer liable, the plaintiff must first establish the employee’s negligence. “[A]n employer cannot be vicariously liable under respondeat superior for a plaintiff’s negligence claims when the plaintiff has not met the prima facie case on such claims.” Id. at *8. Here, because Plaintiffs have failed to raise a genuine issue of fact that Klawonn was negligent, their claim against Swift for negligence must also fail. See id. (“Because Defendants are entitled to summary judgment on Gould’s claims of negligence, negligence per se, gross negligence, and negligent entrustment, Defendants are also entitled to summary judgment on Plaintiff’s claims under the theory of respondeat superior.”).

Gross Negligence — Klawonn and Swift

Under Texas law, gross negligence means an act or omission:

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective [*24]  awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Tex. Civ. Prac. & Rem. Code § 41.001(11). Defendants argue that Plaintiffs’ failure to survive summary judgment on any of their negligence or negligence per se claims means that their gross negligence claims must also fail [Dkt. 18 at 18]. They further urge that there are no aggravating factors that suggest any recklessness by Klawonn—for example, he was not speeding, using a cell phone, driving while intoxicated, was not ticketed for the collision, nor was he even cited in the Police Report as having contributed to the accident [Dkt. 18 at 18]. Plaintiffs urge that the accident itself creates a genuine issue of material fact for the jury to decide, noting that the weight of Klawonn’s vehicle was 80,000 pounds and was 53 feet long [Dkt. 19 at 6]. There is no explanation as to why the weight or length of the vehicle is a material fact. Because Plaintiffs offer no summary judgment evidence or legal authority that the mere occurance of an accident is evidence of gross negligence, summary judgment should be granted for Defendants. See Dansby v. Heaslet Equip. & Trucking, No. 219CV00110JRGRSP, 2020 WL 3160182, at *2 (E.D. Tex. May 21, 2020) (“Defendants did not breach a duty to Plaintiff. This summary [*25]  judgment evidence establishes that there was no negligent act or omission by Defendants. Townsend was merely driving west bound on I-20 when Dansby merged into his established lane of traffic. The mere act of operating a vehicle on a highway does not create an extreme degree of risk. This summary judgment evidence establishes that there was no gross negligence by Defendants.”), report and recommendation adopted, No. 219CV00110JRGRSP, 2020 WL 3130097 (E.D. Tex. June 12, 2020).

CONCLUSION AND RECOMMENDATION

For the foregoing reasons, the Court recommends that Defendants Mark G. Klawonn and Swift Transportation Company of Arizona, LLC’s Motion for Summary Judgment [Dkt. 18] be GRANTED and Plaintiffs’ claims be DISMISSED WITH PREJUDICE.

Within fourteen (14) days after service of the magistrate judge’s report, any party must serve and file specific written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge’s report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers [*26]  to the briefing before the magistrate judge is not specific.

Failure to file specific, written objections will bar the party from appealing the unobjected-to factual findings and legal conclusions of the magistrate judge that are accepted by the district court, except upon grounds of plain error, provided that the party has been served with notice that such consequences will result from a failure to object. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections from ten to fourteen days).

SIGNED this 8th day of June, 2023.

/s/ Christine A. Nowak

Christine A. Nowak

UNITED STATES MAGISTRATE JUDGE

End of Document

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¹ Defendants’ pending Motion to Strike Plaintiff’s Notice of Filing Business Records Affidavits only seeks to exclude presentation of such affidavits at trial [Dkt. 27]; it does not seek relief related to the summary judgment evidence submitted here.

² Only Defendants’ Motion includes a statement of facts [Dkt. 18 at 3-5]. Plaintiffs did not provide a separate statement of undisputed facts [Dkt. 19]. The Local Rules of the Eastern District of Texas state, in relevant part:

Response. Any response to a motion for summary judgment must include: (1) a response to the statement of issues; and (2) a response to the “Statement of Undisputed Material Facts.” The responsive brief should be supported by appropriate citations to proper summary judgment evidence as set forth [in this rule].

Eastern District of Texas Local Rule CV-56(b). Plaintiffs do not controvert the facts set out by Defendants, and they also submit the Police Report as summary judgment evidence; therefore, the Court presumes these facts are uncontroverted, as further provided by Local Rule CV-56(c), which states:

Ruling. In resolving the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the responsive brief filed in opposition to the motion, as supported by proper summary judgment evidence. The court will not scour the record in an attempt to unearth an undesignated genuine issue of material fact.

Local Rule CV-56(c).

³ To the extent Plaintiffs’ complaint also references “other safety standards and regulations designed to protect against the type of harm” alleged here, these claims fail as a matter of law because no specific statute or regulation is specified. See Ordonez, 2023 WL 310442, at *11 (citation omitted) (“Because a negligence per se claim requires a plaintiff to identify a specific penal statute, Ordonez’s failure to state a claim that has a corresponding statute is alone sufficient to grant Ausby’s motion for summary judgment”).

⁴ See also Trinh v. Hunter, No. SA-20-CV-00725-JKP, 2022 U.S. Dist. LEXIS 185248, 2022 WL 6813293, at *6 (W.D. Tex. Oct. 11, 2022) (collecting cases) (“In cases factually similar to this one, with identical assertions, courts consistently determine Sections 545.351(a) and 545.060 incorporate the common law’s ordinary standard of care and, therefore, a negligence per se cause of action based upon this statute is not cognizable.”); Ordonez, 2023 WL 310442, at *10 (“Section 545.062 plainly incorporates the reasonably prudent person standard. . . Ausby is thus entitled to summary judgment on Ordonez’s negligence per se claim under Texas Transportation Code § 545.062.”).

⁵ Section 390.11 provides that, within FMCSR regulations, where “a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition.” 49 C.F.R. § 390.11.

⁶ Section 391.11 sets general requirements for the qualifications of drivers, specifying seven requirements that drivers be over the age of 21, can read and speak English, is physically qualified to driver, and has a valid commercial driver’s license, among others. See 49 C.F.R. § 391.11.

⁷ Section 391.13 provides that “a motor carrier cannot require or permit a driver to operate a commercial motor vehicle unless the driver has the experience, training, or both, to determine whether the cargo being transported has been properly located, distributed, and secured.” Heard v. Loughney, No. CV 16-487 JP/SCY, 2016 U.S. Dist. LEXIS 195725, 2016 WL 10179246, at *3 (D.N.M. July 14, 2016) (citing 49 C.F.R. § 391.13).

⁸ Section 392.6 states: “No motor carrier shall schedule a run nor permit nor require the operation of any commercial motor vehicle between points in such period of time as would necessitate the commercial motor vehicle being operated at speeds greater than those prescribed by the jurisdictions in or through which the commercial motor vehicle is being operated.” 49 C.F.R. § 392.6

⁹ Defendants point to multiple pieces of evidence that show Klawonn met the general qualifications of a driver under § 391.11 [See Dkt. 18 at 12 n.13]; that no evidence shows Klawonn lacked the experience, training, or familiarity with securing cargo in violation of § 391.13, and in fact, at his deposition, he explained in detail the steps he took to secure the cargo on the day of the accident [See Dkt. 18 at 13]; and, regarding § 392.6, that no competent evidence shows Klawonn was driving between two points on a schedule that would require he drive in violation of set speed limits [Dkt. 18 at 13-14].

¹⁰ Plaintiffs did not address or present any evidence of violations of FMCSR regulations in their response to the instant Motion, which the Court discussed supra in connection with the negligence per se cause of action.

¹¹ Plaintiffs also cite to Ellis’s deposition testimony that he sought medical treatment after the accident [Dkt. 19 at 4], but there is no explanation as to why this raises a fact issue as to any of the specific allegations of breach. Even if Plaintiffs’ testimony established facts relevant to the alleged acts and omissions by Klawonn, Defendants urge Plaintiffs did not designate an expert witness on issues of breach that would not be “evident to the common juror” [Dkt. 18 at 17]. See Escalante v. Creekside Logistics LLC, No. 5:18-CV-116-OLG, 2019 U.S. Dist. LEXIS 232037, 2019 WL 9135758, at *8 (W.D. Tex. Feb. 12, 2019) (explaining that narrative evidence regarding vehicle collisions would not be of value to a jury) (“Dorrity offers an opinion that Bryant ‘failed to make a proper lookout down the roadway[,]’ but does not connect that opinion to any applied methodology, and to the extent that Dorrity’s opinion regarding the adequacy of Bryant’s lookout is based on a synthesis of evidence regarding Bryant’s activities immediately before the collision, or synthesis of the instructions found in the CDL manual he refers to, this factual synthesis does not represent the application of any expert methodology and would not assist the trier of fact”).

¹² The Court does not again address Plaintiffs’ alleged violations of the Texas Transportation Code and FMCSR regulations, having already found Plaintiffs have not proffered any summary judgment evidence of any such violations.