Auto - Central Analysis Bureau

Paul v. Western Express, Inc.

United States District Court, W.D. Virginia,

Lynchburg Division.

Judy M. PAUL, et al., Plaintiffs,

WESTERN EXPRESS, INC. et al., Defendants.

Case No. 6:20-cv-51

Signed March 23, 2023

Attorneys and Law Firms

Gregory Lee Lyons, Joanna Marie Meyer, John Eric Lichtenstein, Lichtenstein Law Group, PLC, Roanoke, VA, Paul Rice Thomson, III, Thomson Law Firm, PLLC, Roanoke, VA, Stephen Christopher Huff, Crandall & Katt, Roanoke, VA, for Plaintiffs.

Ashley Walker Winsky, Jeffrey Paul Miller, Hailey Ann Wilkes, John Patrick Brown, Gentry Locke, Richmond, VA, for Defendants Western Express, Inc., Ervin Joseph Worthy.

MEMORANDUM OPINION & ORDER

NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

*1 Plaintiffs Paul and Le Doux sue Defendants Western Express, Inc. and Worthy to collect damages for the injuries they sustained during a multi-vehicle accident on Interstate 81. Worthy and Le Doux have filed cross motions for summary judgment on Plaintiffs’ punitive damages claim based on Worthy’s alleged willful and wanton negligence. Defendants have also moved for summary judgment, claiming that Le Doux was contributorily negligent for the accident. For the following reasons, the Court will deny all the motions.

Background

On August 11, 2018, Paul, Le Doux, Roger Hiatt,¹ and Worthy were driving their respective vehicles on southbound Interstate 81 in Rockbridge County, Virginia when they were involved in a multi-vehicle accident. Paul was operating a 2012 Kia Soul and Le Doux was operating a Ford van with Kenneth Murphy riding as a passenger in his van. Dkt. 190-2 at 2; Dkt. 190 at 2. Roger Hiatt was operating a Honda Odyssey minivan. Dkt. 190-3 at 3. The son of Plaintiff Le Doux, Forrest Le Doux, was also driving his respective vehicle on southbound Interstate 81 with Eric Bernocco-Donahue riding in the front passenger seat of his vehicle. Dkt. 190-1 at 4. Forrest Le Doux was not involved in the accident.

Prior to the accident, the weather conditions shifted from a light rain to a heavy downpour. Dkt. 190-2 at 3; Dkt. 190-3 at 4. Either due to traffic or the weather, some motorists came to stop on the roadway. Dkt. 190-1 at 2–3. Paul, Le Doux, and Hiatt were then involved in a car accident. See Dkt. 190-3 at 5–6. Defendants claim that Le Doux’s Ford first struck Paul’s Kia and then Hiatt’s Honda struck Le Doux’s Ford. Dkt. 190 ¶¶ 19–22. Le Doux disagrees and contends that Hiatt’s Honda hit the rear of Le Doux’s van, which caused his van to hit Paul’s Kia.² Dkt. 229 at 6. Following the car accident, Hiatt’s Honda spun off to the left side of the interstate and onto the median. Dkt. 190-3 at 6. Paul drove her Kia off the roadway into the grassy median while Le Doux’s Ford came to a stop on the roadway. Dkt. 223, Ex. G; Dkt. 190-8 at 10.

Worthy, operating Western Express’s tractor–trailer, was using cruise control, and driving at 65 mph in the right lane of the interstate. See Dkt. 223, Ex. G; Dkt. 233 ¶ 12. The posted speed limit was 70 mph. Dkt. 223-6 at 4. Upon seeing Le Doux’s stopped vehicle as well as other stopped motorists in front of him on the interstate, Worthy stepped on his brakes and swerved into the left lane, resulting in his vehicle hitting the back of Le Doux’s Ford. Dkt. 190-2 at 5; Dkt. 190-8 at 39; see Dkt. 223, Ex. G. After hitting Le Doux’s Ford, Worthy’s tractor–trailer continued onto the grassy median and hit the back of Paul’s Kia. Dkt. 223, Ex. G. According to Murphy, Worthy’s collisions with Le Doux and Paul occurred approximately two to three seconds after Le Doux’s collisions with Hiatt and Paul. See Dkt. 190-2 at 5.

*2 Le Doux and Paul have filed amended complaints, which are virtually identical to one another. Dkt. 98; Le Doux, No. 6:20-cv-52, Dkt. 46. They allege negligence and willful and wanton negligence against Worthy. Id. They also claim that Western Express is vicariously liable through respondeat superior for Worthy’s negligence because he was acting in the course and scope of his employment. Dkt. 98 ¶¶ 24–27; Le Doux v. Western Express, Inc., No. 6:20-cv-52, Dkt. 46 ¶¶ 24–27. They seek $10 million in compensatory damages against Worthy and Western Express and $350,000 in punitive damages for Worthy’s alleged willful and wanton negligence. Id.

Standard of Review

Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if a reasonable [fact finder] could return a verdict for the nonmoving party,” and “[a] fact is material if it might affect the outcome of the suit under the governing law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018).

The moving party bears the burden of establishing that summary judgment is warranted. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). If the moving party meets this burden, the nonmoving party must set forth specific, admissible facts to demonstrate a genuine issue of fact for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-movant may not rest on allegations in the pleadings; rather, he must present sufficient evidence such that a reasonable fact finder could find by a preponderance of the evidence for the non-movant. See Celotex Corp., 477 U.S. at 322–24; Sylvia Dev. Corp. v. Calvert Cnty, Md., 48 F.3d 810, 818 (4th Cir. 1995). The district court must “view the evidence in the light most favorable to the nonmoving party” and “refrain from weighing the evidence or making credibility determinations.” Variety Stores, Inc., 888 F.3d at 659.

When cross-motions for summary judgment are before a court, a court must “consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Defs. of Wildlife v. N.C. DOT, 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir. 2007) (internal quotation marks omitted)).

Discussion

A. Defendants’ Summary Judgment Motion on Plaintiff Le Doux’s Purported Contributory Negligence

Defendants move for summary judgment based on Le Doux’s purported contributory negligence. Dkt. 189.

A driver of a motor vehicle has a duty to exercise ordinary care in maintaining a proper lookout and keeping their vehicle under proper control, meaning that the “driver is required to use ordinary care to observe other vehicles on the highway, to see what a reasonable person would have seen, and to react as a reasonable person would have reacted under the circumstances to avoid a collision.” Litchford v. Hancock, 352 S.E.2d 335, 336–37 (Va. 1987). Virginia applies the contributory negligence doctrine—meaning a plaintiff’s negligence will bar recovery if it “is a proximate cause of the accident.” Id. Generally, “contributory negligence and proximate cause are factual issues for resolution by a jury.” Id. Such issues become legal questions for a court to resolve “only when reasonable minds cannot differ about the result.” Karim v. Grover, 369 S.E.2d 185, 186 (Va. 1988).

In their summary judgment motion, Defendants argue Le Doux was negligent (1) by continuing to drive on Interstate 81 despite having limited visibility due to the heavy rain, (2) for following too closely to Paul’s Kia prior to his collision with Hiatt’s Honda, and (3) by failing to use hazard lights when he reduced his speed and stopped his Ford on Interstate 81 prior to being hit by Worthy. See Dkt. 190.

*3 The record reflects a genuine dispute of material fact regarding Le Doux’s alleged negligence. Defendants, as the moving parties, fail to offer undisputed evidence to support their claims that Le Doux had limited visibility when he continued to drive on Interstate 81 during the heavy rain or that Le Doux was following too closely to Paul’s Kia.³ Additionally, the evidence in the record indicates that Le Doux was slowing the speed of his van prior to the accident, which raises a genuine dispute as to whether he was exercising reasonable care while driving in the heavy rain. See, e.g., Dkt. 190-2 at 1840 (Murphy, the passenger in Le Doux’s van at the time of the accident, testified that Le Doux’s Ford was “slowing down, about to stop because everyone was stopping” before Hiatt’s Honda hit the rear of Le Doux’s Ford.). Moreover, it is a jury issue whether Le Doux had enough time to move his van after he collided with Hiatt and Paul before Worthy hit his van.

Defendants, in the alternative, assert that “either nobody was to blame[,] or everyone was negligent to some degree” for the multi-vehicle accident. Dkt. 190 at 11. They claim that the sudden wall of rain either caused the multi-vehicle accident or negated Le Doux’s, Worthy’s, and the other drivers’ negligence for continuing to drive in the rain since they were all equally negligent. Id. at 10. However, the Court is unpersuaded by such an argument. Le Doux and Worthy both had a duty to operate his respective motor vehicle as a reasonable person would under the same or similar circumstances. Putting aside the disputed issue of whether Le Doux and Worthy were operating under the same weather conditions at all times—a separate and material factual issue on which there is conflicting evidence requiring resolution by the jury—Worthy’s tractor–trailer needed more distance to stop than Le Doux’s Ford traveling at the same speed. Because of this key difference, the Court is of the opinion that Le Doux and Worthy were not operating their vehicles under the same circumstances, and thus, the issue of whether the weather conditions may have equally negated the alleged negligence of Le Doux and Worthy is also a question of fact for the jury.

Accordingly, at this stage of the litigation, the Court does not find as a matter of law that Le Doux acted negligently while driving his van. See Variety Stores, Inc., 888 F.3d at 659. Thus, Defendants’ summary judgment motion on Le Doux’s contributory negligence will be denied.

B. Defendant Worthy’s Summary Judgment Motion on Plaintiffs’ Punitive Damages Claim

Worthy moves for summary judgment on Plaintiffs’ punitive damages claim, which would result in the dismissal of Plaintiffs’ willful and wanton negligence claim against Worthy. Dkt. 165.

Virginia allows punitive damages “only in limited circumstances and require[s] truly egregious conduct in order to qualify.” Lester v. SMC Transp., LLC, No. 7:15-cv-00665, 2016 WL 7439424, at *2 (W.D. Va. Dec. 22, 2016); see Bowers v. Westvaco Corp., 419 S.E.2d 661, 668 (Va. 1992). A plaintiff may recover punitive damages upon a showing of willful and wanton negligence. See Booth v. Robertson, 374 S.E.2d 1, 3 (Va. 1988). Willful and wanton negligence means “acting consciously in disregard of another person’s rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another.” Harris v. Harman, 486 S.E.2d 99, 101 (Va. 1997) (internal quotation marks and citation omitted). It is the type of conduct that goes “beyond that which shocks fair-minded people.” Id. Unlike gross or ordinary negligence, willful and wanton negligence “requires an actual or constructive consciousness that injury will result from the act done or omitted.” Alfonso v. Robinson, 514 S.E.2d 615, 618 (Va. 1999). Whether a defendant’s conduct amounts to willful and wanton negligence “must be determined on its own set of facts.” Huffman v. Love, 427 S.E.2d 357, 360 (Va. 1993). However, the Supreme Court of Virginia has provided that the “intentional violation of a traffic law, without more, will not support a finding of willful and wanton negligence.” Alfonso, 514 S.E.2d at 618.

*4 In his opposition to Worthy’s summary judgment motion, Le Doux claims that Worthy, as a professional truck driver, received specialized training and education instructing him how to operate his tractor–trailer in hazardous conditions. Dkt. 231 at 10–11 (citing Dkt. 233-1 at 33–35, 52). Worthy also received specialized training from Western Express on how to use the Bendix Adaptive Cruise Control, including being instructed by the Bendix Wingman Fusion Operator’s Manual that cruise control “must never be used on roads where you can not [sic] drive safely at a steady speed, including … poor road conditions (such as gravel or dirt), ice or wet surfaces (wet surfaces may increase the risk of hydroplaning) …” Dkt. 231-2 at 4. Le Doux further claims that Worthy received specialized training from Western Express on the appropriate following distance while operating a tractor–trailer. Id. Despite this training, Le Doux claims that Worthy used cruise control in the rain and operated his vehicle at 65 mph with 15 to 20 feet of impaired visibility⁴ prior to his collisions with Le Doux’s and Paul’s vehicles. Dkt. 231 at 11–12. Le Doux further claims that Worthy’s forward vision was limited by his personal computer tablet being mounted on the windshield of the tractor–trailer. Id. at 3, 13.

The record reflects a genuine dispute of material fact concerning Worthy’s conduct before the accident. During his deposition, Worthy testified that his visibility was impaired “15, 20 feet ahead” of him, that he didn’t recall how long it rained on the day of the accident, and that he adjusted his speed right before he “got into” “the heavy rain.” Dkt. 223-1 at 4, 6; Dkt. 233-1 at 69. The Court cannot find as a matter of law how long Worthy was using cruise control and driving at 65 mph with 15 to 20 feet of impaired visibility. To make such a determination, the Court would need to weigh his deposition against other evidence in the record, and would require the Court to make credibility determinations, neither of which is permitted at the summary judgment stage. See Variety Stores, Inc., 888 F.3d at 659. In addition, Le Doux recently filed a motion for sanctions, claiming Worthy intentionally destroyed the data on his computer tablet. Dkt. 283. His motion for sanctions is not yet ripe for decision, and as such, the Court does not know at this time what type of sanction, if any, could be imposed regarding the loss of data on Worthy’s computer tablet. That decision could impact a finding as to Worthy’s degree of negligence.

Ultimately, reasonable persons might differ regarding whether Worthy’s conduct, as alleged by Le Doux, amounted to willful and wanton negligence. And because the record reflects a genuine dispute on Worthy’s conduct before the accident, the Court will deny Worthy’s summary judgment motion on Plaintiffs’ punitive damages claim.

C. Plaintiff Le Doux’s Summary Judgment Motion on Plaintiffs’ Willful & Wanton Negligence Claim

Le Doux moves for summary judgment on Plaintiffs’ willful and wanton negligence claim against Worthy. Dkt. 232. As stated above, reasonable persons might differ regarding whether Worthy’s conduct amounted to willful and wanton negligence, and therefore, the Court will deny Le Doux’s summary judgment motion.

Conclusion

For the above reasons, the Court will deny Defendants’ motion for summary judgment on Le Doux’s purported contributory negligence, Dkt. 189, and the parties’ cross motions for summary judgment on Plaintiffs’ punitive damages claim based on Worthy’s alleged willful and wanton negligence, Dkts. 165, 232.

It is so ORDERED.

All Citations

Footnotes

Hiatt settled Plaintiffs’ claim against him and is not a party to this action. See Dkt. 190 at 2.
The record reflects a material dispute on the sequence of the collisions. Kenneth Murphy, the passenger in Le Doux’s Ford at the time of the accident, testified that he saw Hiatt’s Honda push Le Doux’s Ford into Paul’s Kia. Dkt. 190-2 at 4–5. Hiatt, however, testified that he has “no memory of where the Kia was,” and that he did not see Le Doux’s Ford hit Paul’s Kia. Dkt. 190-3 at 4–5. Defendants claim that Bernocco-Donahue’s testimony supports an inference that Hiatt’s Honda struck Le Doux’s Ford after Le Doux’s Ford hit Paul’s Kia. Dkt. 190 ¶ 22 (citing Dkt. 190-8).
In their brief, Defendants assert that “undisputed material evidence in the record establishes that Le Doux was following too closely to Paul’s Kia.” Dkt. 190 at 12. To support this claim, they reference photographs showing that the bumper of Paul’s Kia was attached to the front bumper of Le Doux’s Ford after the collision and that both parties’ experts concurred that Le Doux’s Ford hit Paul’s Kia. Id. at 12–13. They also cite testimony by Bernocco-Donahue, which they claim supports an inference that Le Doux’s Ford hit Paul’s Kia prior to Hiatt’s Honda hitting Le Doux’s Ford. Id. However, this evidence only supports that Le Doux’s Ford hit Paul’s Kia; it does not establish as a matter of law that Le Doux was following too closely to Paul’s Kia.
Defendants contend that Worthy’s testimony supports “that his visibility was reduced to 15 to 20 feet only after he had entered the heavy rain and had already reduced his tractor–trailer’s speed by actively applying the brakes and disengaging cruise control.” Dkt. 223 at 6.

End of Document

Perez v. Roman

United States District Court, S.D. Texas, Brownsville Division.

Leonor PEREZ & Felipe Varela, Jr. Plaintiffs,

Dora Alicia Gallegos ROMAN d/b/a Transportes Bega & Jose Samuel Gonzales, Defendants.

Civil Action No. 1:21-cv-187

Signed February 2, 2023

Attorneys and Law Firms

Jason Harold Casell, Richard A. Hinojosa, Justin David Burrow, Hinojosa Law PLLC, Houston, TX, for Plaintiffs.

Chaz Daniel Klaes, Donato Minx Brown Pool, Houston, TX, Raul M. Calderon, Daniela Ivette Saybe Guillen, Donato, Brown, Pool, & Moehlmann, Houston, TX, for Defendants.

REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

Ronald G. Morgan, United States Magistrate Judge

*1 Plaintiffs Leonor Perez and Felipe Varela, Jr., have sued Defendants Dora Alicia Gallegos Roman, doing business as Transportes Bega, and Jose Samuel Gonzales for a vehicular accident which occurred on October 2, 2019. On December 13, 2022, Gallegos Roman and Gonzales filed a partial motion for summary judgment. Dkt. No. 24. Perez and Varela did not file a response.¹

After reviewing the record and the relevant caselaw, it is recommended that the partial motion for summary judgment be granted. There is no genuine dispute of material fact as to whether Gallegos Roman was negligent in hiring or supervising Gonzales.

I. Background

A. Factual Background

In 2015, Transportes Bega hired Gonzales as a driver. Dkt. No. 24-3, p. 10. In 2013, Gonzales graduated from a trucking school “known as the Canales Transportes school” in Mexico. Id., p. 7. He has a Mexican commercial driver’s license. Id. Prior to working for Transportes Bega, he worked for three other Mexican trucking companies. Id., pp. 8-10. Gonzales had never been involved in a motor vehicle crash prior to the incident at the heart of this case. Id., p. 8.

Gonzales testified at his deposition that Transportes Bega provided him training videos, which were courses about how to safely drive in America. Dkt. No. 24-3, pp. 12-13. He also testified that Transportes Bega outfitted his truck with GPS trackers to check whether he drove safely, such as obeying speed limits. Id., p. 14.

On October 2, 2019, Perez and Varela were traveling in San Benito, Texas, and were stopped at a traffic light. Dkt. No. 24-9, p. 5. Gonzales’s tractor-trailer struck their vehicle from behind. Id., p. 6. Varela testified that he had no way of knowing how fast the truck was traveling when it struck his vehicle. Id. Photographs of the Plaintiffs’ vehicle show minor damage to the rear bumper. Dkt. No. 24-1.

B. Procedural Background

On October 4, 2021, Perez and Varela filed suit against Gallegos Roman and Gonzales in the 107th District Court in Cameron County, Texas. Dkt. No. 1-1, p. 4. As to Gonzales, the Plaintiffs asserted that he operated his vehicle negligently, causing the accident. Id., pp. 7-8. As to Gallegos Roman, the Plaintiffs asserted claims of respondeat superior and negligent entrustment. Id., pp. 9-10.

On November 3, 2021, the Defendants were served. Dkt. No. 1-1, p. 2. On November 29, 2021, the Defendants timely removed the case to this Court on the basis of diversity jurisdiction. Dkt. No. 1.

*2 On May 13, 2022, the parties stipulated that Gonzales was acting within the scope of his employment when the accident occurred. Dkt. No. 13.

On December 13, 2022, Gallegos Roman filed a partial motion for summary judgment, seeking summary judgment as to the claim of negligent entrustment. Dkt. No. 24. The Defendants did not seek summary judgment as to the negligence claim against Gonzales or the respondeat superior claim against Gallegos Roman.

On January 6, 2023, the Plaintiffs sought an extension of time to respond to the partial motion for summary judgment. Dkt. No. 30. On January 9, 2023, the Court granted the motion for an extension of time, giving the Plaintiffs until January 31, 2023, to file their response. Dkt. No. 31.

The Plaintiffs did not file a response to the motion for summary judgment.

II. Applicable Law

A. Summary Judgment

Summary judgment is appropriate when the moving party has established that the pleadings, depositions, answers to interrogatories, admissions, and affidavits – if any – demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A “genuine issue of material fact exists where evidence is such that a reasonable jury could return a verdict for the non-movant.” Piazza’s Seafood World, L.L.C. v. Odom, 448 F.3d 744, 752 (5th Cir. 2006). The movant “can show there’s no material dispute if he demonstrates that the [non-movant] could not prevail even if each factual question were resolved in their favor.” Freedom From Religion Found., Inc. v. Mack, 49 F.4th 941, 950 (5th Cir. 2022).

If the non-movant would bear the burden of proof at trial, the moving party may satisfy its summary judgment burden “by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party’s claim.” Ortega Garcia v. U.S., 986 F.3d 513, 533 (5th Cir. 2021). The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Id.

“All facts must be viewed in the light most favorable to the nonmovant and all justifiable inferences must be drawn in his favor.” Crane v. City of Arlington, Texas, 50 F.4th 453, 461 (5th Cir. 2022). Thus, factual controversies are resolved in favor of the non-movant, “but only where there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts.” Lexon Ins. Co., Inc. v. Fed. Deposit Ins. Corp., 7 F.4th 315, 321 (5th Cir. 2021). In the “absence of any proof,” the Court cannot and will not assume that the non-moving party could or would prove the necessary facts. McCarty v. Hillstone Rest. Grp., Inc., 864 F.3d 354, 358 (5th Cir. 2017). Finally, “a court should not make credibility determinations or weigh the evidence in ruling on a motion for summary judgment.” Chacon v. Copeland, 577 Fed. App’x. 355, 360 (5th Cir. 2014) (unpubl.) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)) (internal quotations omitted).

III. Analysis

The motion for partial summary judgment should be granted. As a matter of law, the Plaintiffs cannot maintain claims of respondeat superior and negligent entrustment against Gallegos Roman. Furthermore, there is no genuine issue of material fact as to negligent entrustment.

A. Mutually Exclusive

*3 The Plaintiffs have made claims of respondeat superior and negligent entrustment against Gallegos Roman. These claims are mutually exclusive.

“Texas courts have repeatedly held that, where only simple negligence is alleged, negligent entrustment and respondeat superior are mutually exclusive modes of recovery.” Ferrell Gas, Inc. v. Reese, 2022 WL 17843996, at *4 (Tex. App. Dec. 21, 2022) (unpubl.) (citing Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied) & Patterson v. E. Tex. Motor Freight Lines, 349 S.W.2d 634, 636 (Tex. Civ. App.—Beaumont 1961, writ ref’d n.r.e.). This is because under either theory, the employer is liable for the employee’s negligence, so the claims are repetitive of each other. Id. The parties have already stipulated that Gonzales was acting within the scope and course of his employment when the accident occurred, which is sufficient to establish respondeat superior. See Univ. of Texas M.D. v. Baker, 401 S.W.3d 246, 261 (Tex. App. 2012) (respondeat superior requires a showing “that the employee be acting in the course and scope of employment when the negligence occurs”).

The only instance where the claims are not mutually exclusive is when there is a simple negligence claim against the driver, but a gross negligence claim against the employee for entrusting a vehicle to “an incompetent or reckless” driver. Ferrell Gas, Inc., 2022 WL 17843996, at *4. The complaint does not raise any claims of gross negligence against Gallegos Roman. Dkt. No. 1-1, pp. 9-10. As such, the availability of the respondeat superior claim makes the negligent entrustment claim untenable. Summary judgment is appropriate on this basis.

B. Negligent Entrustment

Even if the negligent entrustment claim was not barred as a matter of law, there is no genuine dispute of material fact as to this claim.

“Proof of negligent entrustment requires: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3) that the owner knew or should have known to be unlicensed, incompetent, or reckless; (4) the driver’s negligence on the occasion in question; (5) proximately caused the accident.” Rosell, 89 S.W.3d at 655.

There is no evidence in the record that Gonzales was “unlicensed, incompetent, or reckless.” Gonzales has a Mexican commercial drivers license, which is valid within the United States.² He had no prior motor vehicle accidents prior to the one at issue in this case. Because there is no evidence of his unfitness to be a driver, there is no evidence in the record that Gallegos Roman knew or should have known that he was unfit to drive for her. As such, there is no genuine dispute of material fact as to the negligent entrustment claim.

IV. Recommendation

It is recommended that the partial motion for summary judgment filed by Gallegos Roman and Gonzales be granted. Dkt. No. 24. Summary judgment should be entered as to any claims of negligent entrustment.

*4 The parties have fourteen (14) days from the date of being served with a copy of this Report and Recommendation in which to file written objections, if any, with the United States District Judge. 28 U.S.C. § 636(b)(1). A party filing objections must specifically identify the factual or legal findings to which objections are being made. The District Judge is not required to consider frivolous, conclusive, or general objections. Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

If any party fails to timely object to any factual or legal findings in this Report and Recommendation, the District Judge is not required to conduct a de novo review of the record before adopting these findings. If the District Judge chooses to adopt such findings without conducting a de novo review of the record, the parties may not attack those findings on appeal, except on the grounds of plain error. Alexander v. Verizon Wireless Servs., L.L.C., 875 F.3d 243, 248 (5th Cir. 2017).

DONE at Brownsville, Texas on February 2, 2023.

All Citations

Footnotes

Typically, if a party fails to respond to a motion, it is considered unopposed. Local Rule 7.4. The Court, however, may not simply grant a dispositive motion as unopposed; it must consider the merits of the motion. Webb v. Morella, 457 F. App’x 448, 452 (5th Cir. 2012) (citing John v. State of La. (Bd. of Trustees for State Colleges & Universities), 757 F.2d 698, 709 (5th Cir. 1985)). The Court, however, is not required “to survey the entire record in search of evidence to support a non-movant’s opposition.” Jones v. Sheehan, Young & Culp, P.C., 82 F.3d 1334, 1338 (5th Cir. 1996).
The United States and Mexico have a reciprocal agreement to recognize the commercial drivers license issued by the other country. https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/international-programs/79541/2017cdlmousignedenglish_0.pdf.

End of Document