Metzloff v. Royal Trucking Co.
United States District Court for the Eastern District of Texas, Beaumont Division
July 20, 2020, Decided; July 20, 2020, Filed
CIVIL ACTION NO. 1:20-CV-00184

Reporter
2020 U.S. Dist. LEXIS 127988 *

VALERIE METZLOFF, Plaintiff, v. ROYAL TRUCKING COMPANY, ANTHONY BROWN, BEAUMONT TRACTOR COMPANY, INC., Defendants.

OPINION AND ORDER
Before the Court is Defendant Beaumont Trucking Company (“BTC”)’s Motion to Dismiss under Rule 12(b)(6) (“MTD”) [Dkt. 5] and Plaintiff Valerie Metzloff’s Motion to Remand [Dkt. 9]. The central issue in both motions is whether Plaintiff has established a cause of action against BTC; and thus, the Court will rule on both motions jointly.
The Plaintiff timely1 filed a Second Amended Complaint2 (hereinafter the “Complaint”) [Dkt. 11]. Both motions will be viewed in light of the Complaint because some of the defects raised in the MTD remain in the new pleading. See Rountree v. Dyson, 892 F.3d 681, 683-84 (5th Cir. 2018) (stating that if the defects in the original pleading remain in the new pleading, “[the court] may consider the motion as being addressed to the amended pleading”).
After a careful review of the motions and [*2] responses, the Court is of the opinion that Plaintiff has failed to establish a cause of action against BTC. By consequence, BTC is dismissed from this action and the Court retains subject matter jurisdiction.

I. BACKGROUND
Plaintiff brought suit against Royal Trucking Company (“Royal”), Anthony Brown (“Brown”), and BTC for several negligence claims that allegedly caused an automobile wreck on Highway 90 in Beaumont, Texas. [Dkt. 11]. The Complaint states that Plaintiff was traveling west in the outside or “slow” lane. Id. at ¶3.01, 3.03. Brown was also traveling west but in the middle lane of the road and attempted to make a right turn into BTC’s driveway, for which he had to cross Plaintiff’s lane. Id. at ¶3.08-.11. Plaintiff states that Brown’s negligent turn from the middle lane of the road and crossing her lane, was the proximate cause of the collision. See id. at ¶3.10-.11.
The Complaint states that Brown caused the collision while working in the course of his employment for Royal, and thus Royal is vicariously liable. See id. at ¶3.03, 4.05. Additionally, it states that Royal is liable for the negligent hiring, retention, training, and supervision of Brown. Id. at ¶4.02. As to [*3] BTC, Plaintiff states that BTC’s driveway did not meet Texas Department of Transportation (“TxDOT”) standards, that it was not properly permitted by TxDOT, and that BTC’s negligence in repairing and maintaining the driveway caused the collision. Id. at ¶3.19-.20, 3.25-.28, 3.31-.32.

II. LEGAL STANDARD

1) Motion to Remand.
“Federal courts are courts of limited jurisdiction.” Gunn v. Minton, 568 U.S. 251, 256 (2013). Only cases that “could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). This Court must presume “that a suit lies outside its limited jurisdiction.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
The removing party “bears the burden of showing that federal jurisdiction exists and that removal was proper.” Maguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). To remove a case to a federal district court based on diversity, the defendant must demonstrate that all the prerequisites of diversity jurisdiction outlined in 28 U.S.C. § 1332 are satisfied. Smallwood v. Ill. Cent. R.R. Co., 385 F.3d 568, 572 (5th Cir. 2004) (en banc). Under 28 U.S.C. § 1332, there must be complete diversity of citizenship and the amount in controversy must exceed $75,000, exclusive of interests and costs. Allen v. Walmart Stores, L.L.C., 907 F.3d 170, 183 (5th Cir. 2018).

2) Motion to Dismiss Under Rule 12(b)(6).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter which, when taken as true, states ‘a claim to relief that is plausible on its face.'” [*4] Innova Hosp. San Antonio, Ltd. P’ship v. Blue Cross & Blue Shield of Ga., Inc., 892 F.3d 719, 726 (5th Cir. 2018) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint “does not need detailed factual allegations,” but the facts alleged “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Furthermore, ‘dismissal is proper if the complaint lacks an allegation regarding a required element necessary to obtain relief.'” Caleb v. Grier, 598 F. App’x 227, 232 (5th Cir. 2015) (citing Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995)).

III. DISCUSSION
Plaintiff’s claims against BTC revolve around its driveway. Plaintiff alleges that BTC’s negligence in maintaining its driveway caused the collision, and that BTC owes a duty to motorists driving on the adjacent road. Royal and Brown disagree with Plaintiff’s contentions and removed this case to federal court with the argument that Plaintiff improperly joined BTC (the only non-diverse party). BTC filed the MTD requesting the Court to dismiss it from the lawsuit. Subsequently, Plaintiff filed a motion to remand requesting the Court to remand the case to state court because she did state a claim against BTC.
The Fifth Circuit has stated that when assessing an issue of improper joinder, [*5] one of two methods must be present: “(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.” Smallwood, 385 F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir. 2003)). The Court may use a “Rule 12(b)(6)-type analysis” to assess if plaintiff is unable to establish a cause of action. Id. Ordinarily, if a claim can survive a Rule 12(b)(6) motion, there would be no improper joinder. Id.
The MTD and the motion to remand share a common characteristic; they both hinge on whether the plaintiff can establish a cause of action. If the Plaintiff fails to establish a cause of action against BTC, then the motion to remand must be denied, and the MTD must be granted.

1) Plaintiff Failed to Establish a Claim Because BTC Does Not Owe a Common-Law Duty to Plaintiff.
To establish a claim of negligence under Texas law, three elements must be present: (1) a duty of care must exist; (2) that duty of care must be breached; and (3) damages must be shown that were proximately caused by the breach. Western Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). As a general rule, a person is not under a duty to control the acts of another person. See Restatement (Second) of Torts § 315 (1965). However, under certain circumstances, a person or entity may have a duty to control the [*6] acts of another when a special relationship exists or when they have a superior knowledge of risk. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 405, 410 (Tex. 2009).
In determining the existence of a duty of care, Texas courts apply a risk-utility balancing test. Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.). Courts must weigh “the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.” Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017). The “foremost and dominant consideration” in determining whether a duty exists is the foreseeability of the risk. Midwest Emp’rs Cas. Co., 293 S.W.3d at 779. “Foreseeability … requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission.” Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). Without foreseeability, there is no duty. NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 955 (Tex. 1996). When a duty has not been recognized in particular circumstances, courts should examine whether a duty should be imposed upon a defined class of cases, not whether the facts of the case at hand show a breach. Pagayon, 536 S.W.3d at 504.
Under Texas law an owner or occupier of a premises abutting a highway has a duty to exercise reasonable care to avoid endangering motorists on the highway near his property, but such a duty “has been limited to cases where an owner negligently [*7] releases upon the highway an agency that becomes dangerous by its very nature once upon the highway.” Ranolls v. Dewling, No. 1:15-CV-111, 2016 WL 7743498, at *2 (E.D. Tex. Oct. 26, 2016) (citing Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 763 (Tex. App—Houston [1st Dist.] 1994, no writ). Property owners owe a duty to motorists on an adjacent highway to properly maintain the grass and weeds so that they do not impair the motorists’ view. Hamric v. Kan. City S. Ry. Co., 718 S.W.2d 916, 919 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.).
“[A]n owner or occupier of property is not an insurer of safety of travelers on an adjacent highway and is not required to provide against the acts of third persons.” Dixon, 874 S.W.2d at 762-63. “A landowner’s duty to exercise reasonable care not to endanger the safety of persons on an abutting highway does not create an obligation to guard passing motorists against the possible negligence of an independent contractor over whom the landowner exercises no control and whose competence to perform his duties the landowner has no reason to doubt.” Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 191-92 (Tex. App.—San Antonio 1988, pet. denied).
In Naumann, a Texas Court of Appeals found that a property owner did not owe a duty to motorists even when it knew that truck drivers blocked both lanes of a highway when exiting its property. See id. at 192. The Court held that the property owner “is not an insurer of the safety of travelers on an adjacent highway and is not required to provide against the acts of third persons.” [*8] Id. The property owner was not responsible for the independent contractor, the length of the trailer, or the fact that the highway was too narrow. See id.
Plaintiff pleads that BTC’s driveway was not adequately built or maintained. She also claims that BTC violated a duty of reasonable care to motorists on the adjacent highway by not properly building or maintaining the driveway up to codes, regulations, and manuals by TxDOT. Plaintiff alleges that BTC was required to procure a permit from TxDOT for repairs to the driveway but failed to do so. She claims that as a result, the defective driveway featured irregular and unmatching grades and a curb whose curvature did not match the level of the pavement of the highway.
The Plaintiff failed to demonstrate how BTC owes a duty to maintain its driveway in favor of motorists driving on the road adjacent — no object was released on the road, and Plaintiff’s visibility was not hindered. Plaintiff relies on Hamric, but that case is not applicable because it discussed obstruction of the view of motorists due to a dangerous condition on the property, which is not the case here. See Hamric, 718 S.W.2d at 919. Additionally, Plaintiff did not state that BTC exerted control [*9] over the road, so the Court need not consider it.
Like in Naumann, this case involves an adjacent property owner sued for the actions of an independent contractor. Plaintiff makes no pleading stating BTC controls Brown in his role as an independent contractor, nor does she plead that BTC had reason to believe Brown would act negligently in that role. BTC does not bear a duty of care over the actions of an independent contractor over which it has no control. Like the defendant in Naumann, BTC had every reason to believe Brown would act safely in the scope of his work and could not have expected Brown to turn negligently out of the middle lane.
Plaintiff attempts to distinguish Naumann from the present case through Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176, 185-87 (Tex. App.—Amarillo 1992, pet. denied). However, Plaintiff’s reliance on Carter to allege a duty of care that envelops situations beyond release of a dangerous agency is misguided. Carter did not find that a such a duty existed — in a plurality opinion, two of the three Carter justices found that no duty existed due to the unforeseeable actions of the independent contractor. Carter, 835 S.W.2d at 185-87.
Furthermore, taking the pleaded facts as true, the Plaintiff failed to demostrate how the “irregular and unmatching grades and radius of curvature [*10] of [BTC’s] curb(s), which was also of a different level than both the driveway and the highway pavement” [Dkt. 11, ¶3.22] makes a person foresee that an independent contractor would block incoming traffic while entering the driveway. The Court rejects imposing a duty because the general danger caused by a negligent independent contractor could not have been reasonably anticipated in this case.

2) Plaintiff Failed to Establish A Negligence Per Se Claim Because It Is Not Appropriate to Impose Tort Liability for Violations of The Texas Administrative Code’s Provision.
Under Texas Law, “[t]he threshold questions in every negligence per se case are whether the plaintiff belongs to the class that the statute was intended to protect and whether the plaintiff’s injury is of a type that the statute was designed to prevent.” Perry v. S.N., 973 S.W.2d 301, 305 (Tex. 1998). Negligence per se applies to “statutes adopted by state legislatures, but equally applies to regulations adopted by state administrative bodies…” Restatement (Third) of Torts, § 14 cmt. a (2010). But even if the threshold question is met, courts “must still determine whether it is appropriate to impose tort liability for violations of the statute.” Perry, 973 S.W.2d at 305.The statute under which [*11] a negligence per se claim is brought need not expressly impose private liability in the event of a statutory violation. Restatement (Third) of Torts, § 14 cmt. b-c (2010); see Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). In appropriate cases, Courts may infer a direct cause of action for damages against the violator. Id. Whether a particular statute will support a claim for negligence per se, however, is a matter of judicial discretion. Perry, 973 S.W.2d at 305 n.4.
The Supreme Court of Texas has established some factors to determine whether it is appropriate to impose tort liability for violations of a statute:
(1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common law duty; (2) whether the statute puts the public on notice by clearly defining the required conduct; (3) whether the statute would impose liability without fault; (4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers; and (5) whether the plaintiff’s injury is a direct or indirect result of the violation of the statute.
See Perry, 973 S.W.2d at 309 (clarifying [*12] that these factors are more like considerations to be used “as guides to assist a court in answering the ultimate question of whether imposing tort liability for violations of a criminal statute is fair, workable, and wise.”); Reeder v. Daniel, 61 S.W.3d 359, 367 (Tex. 2001) (Phillips, C.J., concurring).
In the present case, Plaintiff alleges that BTC is liable for Plaintiff’s injuries because BTC’s driveway did not meet TxDOT’s standards which caused the negligent truck driver to attempt an unsafe turn. The Complaint states that TxDOT’s codes and manuals allow BTC to construct and repair a driveway only with a permit and in compliance with such standards, but it alleges that BTC’s driveway violated those codes by having: (1) irregular and unmatching grades; (2) an irregular radius of curvature of the curb(s); and (3) curb(s) with a different level than both the driveway and the highway pavement.3 See [Dkt. 11, ¶3.22].
Plaintiff relies on Title 43, Part 1, Chapter 11, Subchapter C of the Texas Administrative Code (code that addresses access connections to state highways) to argue that BTC had a statutory duty. The relevant part of the Code states that a permit is required before constructing an access connection4 or before materially [*13] changing that access connection. 43 Tex. Admin. Code § 11.52 (a)(1). Such permits are issued in accordance with the “access management standards”5 and the design for the construction of an access connection is the responsibility of the permittee. Id. at § 11.52 (b)(2), (d)(1). The Code then directs all the technical specifications on how access connections should be built to Chapter 2 of the Access Management Manual promulgated by TxDOT. Id. at § 11.51 (2), § 11.52 (c) (noting that the manual is “available online at the Texas Department of Transportation web site.”).
Chapter 2 of the Access Management Manual6 does not mention that driveways have to be built with regular and matching grades, nor that the curb(s) have to be of the same level than both the driveway and the highway pavement — thus Plaintiff fails to establish that BTC’s driveway was not up to code as to those two alleged facts because the code does not require that. But, Chapter 2 of the Access Management Manual does regulate the radius of the curvature by stating that “the radius of curvature connecting the driveway to highway pavement may vary in size depending on traffic and location and should be selected in accordance with Appendix C of the Roadway Design Manual” — thus Plaintiff’s alleged fact [*14] as to the radius of the curvature is still subject to analysis because that could be something regulated by Appendix C of the Roadway Design Manual.
Section 3 of Appendix C of the Roadway Design Manual7 states that:
Each driveway radius should accommodate the appropriate design vehicle. This will generally be the passenger car (AASHTO P design vehicle) unless the driveway will routinely be expected to handle more than four larger vehicles per hour. Examples of facilities for which a larger design vehicle would normally be appropriate include truck terminals, bus terminals, and connections that serve the loading docks of shopping centers…
The manual also provides the following “standard design criteria for two-way commercial driveways”:

Table C-2. Designs for Two-Way Commercial Driveways
Go to table1
Assuming arguendo that the Texas Administrative Code does require BTC to have a driveway with a radius of the curvature compliant with the above table, the Court needs to determine whether imposing tort liability for violations to the Code is fair, workable, and wise. The Court will now apply the five factors set out in Perry.
First, the Court considers whether the Texas Administrative Code is the sole source of any tort duty from BTC to the Plaintiff or merely supplies a standard of conduct for an existing common law duty. “[R]ecognizing a new, purely statutory duty can have an extreme effect upon the common law of negligence when it allows a cause of action where the common law would not.” Perry, 973 S.W.2d at 306. “[T]he absence of a relevant common law duty should be considered in deciding whether to apply negligence per se to the [statute’s] provision.” Id. at 307. In this case, BTC does not owe a common law duty (as previously discussed), and the Plaintiff failed to provide any other source [*16] that requires BTC’s driveway to have a certain curvature radius, thus by extrapolating the statute into a tort duty the Court would be recognizing a new duty that will have an significant effect upon the common law of negligence. The Court declines to recognize a new duty, so it finds that this factor weights against imposing tort liability for violations to the Code.
Second, the Court considers whether the Texas Administrative Code puts the public on notice by clearly defining the required conduct. Clearly defined statutes allow courts to easily analyze the statute, determine the class of persons it seeks to protect, define the protected interest of that class, and isolate the particular hazards covered by the statute. See Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278-79 (Tex. 1979) (comparing a “too far removed” statute with other more clearly defined statutes). Here, the specifications as to what should be the radius of the curvature of a driveway are not directly stated in the Code, rather, the Code refers to a TxDOT manual which in turn refers to an appendix of another TxDOT manual. Also, these manuals do not point to a clear rule, instead they use language like: “the radius of curvature…may vary in size depending on traffic and location…” [*17] 8 and “[e]ach driveway radius should accommodate the appropriate design vehicle. This will generally be the passenger car (AASHTO P design vehicle) unless the driveway will routinely be expected to handle more than four larger vehicles per hour.”9 For these reasons the Court finds that the Code’s required conduct is not clearly defined, and thus finds that this factor weights against imposing tort liability for violations to the Code.
Third, the Court considers whether the Texas Administrative Code would impose liability without fault. Plaintiff alleges that the radius of the curvature caused the negligent truck driver to be unable to safely turn his vehicle. Since the Court must take pleaded facts as true at this stage of the litigation, then the Code would not impose liability without fault — weighing in favor of imposing tort liability for violations to the Code.
Fourth, the Court considers whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers. The Court finds that violating the Texas Administrative Code’s provision does not warrant, [*18] and would be disproportionate with, Plaintiff’s damages in this case because, as decided above, the negligence of the independent contractor could not have been reasonably anticipated by BTC — weighing against imposing tort liability for violations to the Code.
Fifth, the Court considers whether the plaintiff’s injury is a direct or indirect result of the violation of the statute. Since Plaintiff pleads that the violation of the statute was a direct result of the accident, then this factor weighs in favor of imposing tort liability for violations to the Code.
Although not a numbered factor, the Supreme Court of Texas in Perry considered that an ill-defined standard would impose immense potential liability on a broad class of individuals whose relationship to the abuse was extremely indirect. Perry, 973 S.W.2d at 309. That could also happen here because plaintiffs could start suing landowners with property adjacent to a state highway by simply alleging that the radius of the cuvature of driveway was not up to code. Likewise, as in this case, plaintiffs could start using a negligence per se cause of action against landowners to avoid diversity jurisdiction.
Taking these factors as guides to assist the Court in [*19] answering the ultimate question of whether imposing tort liability for violations of the Code, the Court finds that it would not be fair, workable, nor wise to impose tort liability on BTC for its alleged construction or repair of its driveway without a permit and not compliant with the required curvature radius. See Perry, 973 S.W.2d at 309. Because Plaintiff has failed to establish a cause of action against BTC, then BTC is dismissed from this action and this Court has diversity jurisdiction.

3) BTC’s Consent to Removal is Not Necessary Because BTC Was Improperly Joined.
Plaintiff also claims in her motion to remand that BTC did not provide timely written consent to removal, which warrants remand.
“[A] removing party need not obtain the consent of a co-defendant that the removing party contends is improperly joined.” Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007) (citing Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993). But, the removing party must show “that there is no possibility that the plaintiff would be able to establish a cause of action against the in-state defendant in state court.” Jernigan, 989 F.2d at 815.
Here, Defendants Royal and Brown’s notice of removal stated that BTC was improperly joined, and since the Court found that BTC was indeed improperly joined, then BTC’s consent to removal was not necessary.

IV. [*20] CONCLUSION
IT IS THEREFORE ORDERED that Plaintiffs’ Motion to Remand [Dkt. 9] is hereby DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Dismiss Under Rule 12(b)(6) [Dkt. 5] is hereby GRANTED.
IT IS FURTHER ORDERED that the case against Defendant Beaumont Tractor Company is dismissed without prejudice.
SIGNED this 20th day of July, 2020.
/s/ Michael J. Truncale
Michael J. Truncale
United States District Judge
Table1 (Return to related document text)
US Customary Units Metric Units
Condition Radius Throat Radius Throat
(R) Width (R) Width
(ft) (W) (m) (W)
(Min. ) (ft) (Min . ) (m)
One entry lane and one exit lane, 25 28 7.5 8.4
fewer than 4 large vehicles per
hour (see Fig. C-3)
One entry lane and one exit lane, 30 30 9.0 9.0
4 or more SU vehicles per day
(see Fig. C-3)
One entry lane and two exit lanes, 25 40 7.5 12.0
without divider (see Fig. C-4)
One entry lane and two exit lanes, 25 44(1)-55(2) [*15] 7.5 13.2(1)
with divider (see Fig. C-5) -15.0(2)
Two entry lanes and two exit 25 56(1)-67(2) 7.5 16.8(1)
lanes, with divider (see Fig. C-6) -18.9(2)
(1) See Table C-3 for minimum divider widths
(2) See Table C-3 for maximum divider widths
Table1 (Return to related document text)