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Garza v. Pullen

Court of Appeals of Texas, Fourth District, San Antonio

July 20, 2022, Delivered; July 20, 2022, Filed

No. 04-21-00201-CV

Reporter

2022 Tex. App. LEXIS 4958 *

Francisco Javier GARZA, Jr., Appellant v. Fred Andrew PULLEN and America Midwest Transportation LLC, Appellees

Prior History: [*1] From the 79th Judicial District Court, Brooks County, Texas. Trial Court No. 18-12-17880-CV. Honorable Richard C. Terrell, Judge Presiding.

Disposition: AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Core Terms

summary judgment, gross negligence, premises liability, warning device, summary judgment motion, no-evidence, no evidence, highway, shoulder, proximate, parked, cause of action, genuine issue of material fact, trial court, premises, scintilla of evidence, dangerous condition, nonmovant, flashers, injuries, commercial motor vehicle, degree of risk, omission, signal

Case Summary

Overview

HOLDINGS: [1]-Defendants were not entitled to a no-evidence summary judgment under Tex. R. Civ. P. 166a(i) on the element of proximate cause on plaintiff’s negligence claim because employer’s corporate representative testified that he was not sure if the accident would have occurred had defendant driver placed warning devices as soon as he pulled over on the side of the road; [2]-The trial court did not err when it granted defendants’ motion for summary judgment as to plaintiff’s gross negligence claim under Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)(A), (B) because there was no evidence that defendant driver had an actual, subjective awareness of an extreme risk but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

Outcome

Judgment affirmed in part; reversed and remanded.

LexisNexis® Headnotes

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

Civil Procedure > Judgments > Summary Judgment > Entitlement as Matter of Law

Civil Procedure > … > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof

Civil Procedure > … > Summary Judgment > Burdens of Proof > Scintilla Rule

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

HN1 Summary Judgment, Burdens of Proof

A court should determine the standard of proof on a summary judgment motion after considering the substance of the motion, rather than categorizing the motion strictly by its form or title. Summary judgment is proper under a traditional motion when the movant establishes there is no genuine issue of material fact and she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A no-evidence summary judgment is proper if the nonmovant fails to bring forward more than a scintilla of probative evidence that raises a genuine issue of material fact as to an essential element of the plaintiff’s cause of action for which the defendant contends no evidence exists. Tex. R. Civ. P. 166a(i).

Civil Procedure > Judgments > Summary Judgment > Burdens of Proof

Civil Procedure > … > Summary Judgment > Summary Judgment Review > Standards of Review

Civil Procedure > … > Summary Judgment > Burdens of Proof > Nonmovant Persuasion & Proof

Civil Procedure > … > Summary Judgment > Burdens of Proof > Scintilla Rule

Civil Procedure > … > Summary Judgment > Entitlement as Matter of Law > Genuine Disputes

HN2 Summary Judgment, Burdens of Proof

An appellate court reviews a trial court’s granting of a summary judgment de novo. A no-evidence summary judgment is essentially a directed verdict granted before trial, to which an appellate court applies a legal sufficiency standard of review. A no evidence motion for summary judgment must be granted if, after an adequate time for discovery, the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial and the nonmovant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue of material fact on those elements. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. When reviewing a no-evidence summary judgment, an appellate court examines the entire record in the light most favorable to the non-movant, indulging in every reasonable inference and resolving any doubts against the motion. To defeat a no-evidence motion for summary judgment, the nonmovant is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.

Torts > … > Elements > Causation > Causation in Fact

Torts > … > Causation > Proximate Cause > Foreseeability of Harm

Torts > … > Standards of Care > Reasonable Care > Reasonable Person

HN3 Causation, Causation in Fact

A negligence cause of action has three elements: (1) a legal duty, (2) breach of that duty, and (3) damages proximately caused by the breach. A person owes another the duty to act as a reasonably prudent person would act under the same or similar circumstances regarding a reasonably foreseeable risk. Proximate cause consists of two elements: cause in fact and foreseeability. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. Cause in fact is not established when the defendant’s negligence does no more than furnish a condition which makes the injuries possible. Any act of negligence that does no more than put a person in a particular place at a particular time is too remote to constitute legal cause. The second prong of causation, foreseeability, requires that a person of ordinary intelligence should have anticipated the danger created by a negligent act or omission. There can be more than one proximate cause of an injury, and all persons whose negligent conduct contributed to the injury are responsible for it.

Business & Corporate Compliance > … > Transportation Law > Commercial Vehicles > Maintenance & Safety

HN4 Commercial Drivers & Vehicles, Maintenance & Safety

In the context of the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 392.22(b), which references 49 C.F.R. § 393.95, generally requires reflective triangles, fusees, or flares as warning devices.

Torts > Negligence > Gross Negligence

HN5 Negligence, Gross Negligence

Gross negligence requires a showing that (1) viewed objectively from the actor’s standpoint, the act or omission complained of involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)(A), (B). Under the first, objective element, an extreme risk is not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff. Under the subjective element, actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care. Evidence of simple negligence is not enough to prove either the objective or subjective elements of gross negligence.

Torts > Negligence > Gross Negligence

HN6 Negligence, Gross Negligence

In the context of personal injury suit, gross negligence requires knowledge of the particular risk alleged.

Torts > … > Affirmative Duty to Act > Types of Special Relationships > Premise Owners

HN7 Types of Special Relationships, Premise Owners

Although premises liability is a form of negligence, negligence and premises liability claims are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor. The threshold question in a premises liability case, as with any cause of action based on negligence, is the existence of and violation of a duty. In a premises liability action, the duty owed by a premises owner is determined by the status of the complaining party at the time and place of injury.

Torts > Premises & Property Liability > General Premises Liability > Dangerous Conditions

HN8 General Premises Liability, Dangerous Conditions

To prevail on a premises liability claim, a plaintiff must prove that the defendant possessed, that is, owned, occupied, or controlled, the premises where injury occurred. A premises liability defendant may be held liable for a dangerous condition on the property if it assumed control over and responsibility for the premises, even if it did not own or physically occupy the property. The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it. Control over the dangerous condition, absent control of the property where the dangerous condition exists, will not suffice to establish that a claim sounds in premises liability rather than general negligence.

Counsel: For America Midwest Transportation, LLC, Fred Andrew Pullen, Appellees: Ricardo D. Villanueva, Vaughan E. Waters.

For Francisco Javier Garza, Jr., Appellant: Lucas Williams, Jason F. DeSouza, Paul Bowers.

Judges: Opinion by: Rebeca C. Martinez, Chief Justice. Sitting: Rebeca C. Martinez, Chief Justice, Luz Elena D. Chapa, Justice, Beth Watkins, Justice.

Opinion by: Rebeca C. Martinez

Opinion

MEMORANDUM OPINION

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Francisco Javier Garza, Jr. appeals an order granting summary judgment in favor of Fred Andrew Pullen and American Midwest Transportation LLC on Garza’s personal injury suit. We affirm in part and reverse and remand in part.

Background

This case arises out of an automobile accident that occurred on December 15, 2017 on US Highway 281. Garza alleges that Pullen, while in the course and scope of his employment with America Midwest Transportation, LLC (“American Midwest”), parked a company tractor-trailer on the outside shoulder of the southbound lane of the highway. Garza was traveling [*2] southbound on the outside lane, north of Pullen’s vehicle. Garza alleges that he lost control of his vehicle and struck Pullen’s parked trailer.

In December 2018, Garza filed negligence and gross negligence causes of action against Pullen and his employer, America Midwest. Garza alleged that Pullen’s negligence in parking the trailer on the side of the highway without any warning to ongoing traffic caused Garza to strike Pullen’s trailer and sustain serious injuries. Garza also alleged that Pullen was grossly negligent because his actions involved an extreme degree of risk which he had subjective awareness of and consciously disregarded. Garza asserted American Midwest was negligent and grossly negligent under the theory of respondeat superior.

In April 2020, Pullen and American Midwest (“appellees”) filed a motion for summary judgment, arguing they are entitled to summary judgment on Garza’s negligence claim because Garza provided no evidence that Pullen proximately caused the accident. They further argued they are entitled to summary judgment on Garza’s gross negligence claim because Garza is unable to prove each element required to establish gross negligence. Garza responded that [*3] appellees did not meet their summary judgment burden because they did not submit sufficient evidence to establish that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law on Garza’s claims. In August 2020, Garza filed a first amended petition, adding a premises liability cause of action and alleging that appellees created a dangerous condition and did not take any action to prevent the incident or give any warning to avoid the negligently parked vehicle. In September 2020, the trial court granted appellees’ motion for summary judgment on Garza’s negligence and gross negligence causes of action.

In February 2021, appellees filed a no-evidence motion for summary judgment on Garza’s premises liability claim, asserting that Garza provided no evidence to support any of the elements of his premises liability cause of action. Garza filed a response with supporting evidence, contending there was more than a scintilla of evidence to support every element of his premises liability claim. In April 2021, the trial court granted appellees’ no-evidence motion for summary judgment and entered a final judgment ordering that Garza take nothing from [*4] appellees. Garza appealed.

Negligence and Gross Negligence

As a preliminary matter, appellees’ motion for summary judgment on Garza’s negligence and gross negligence claims sets out the standard for obtaining a traditional summary judgment, but in substance, appellees argued there was no evidence of causation to support Garza’s negligence and gross negligence claims against them. We must determine whether appellees’ motion for traditional summary judgment is in substance a traditional or no-evidence motion so that we may review it under the proper standard. See Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—Dallas 2009, pet. denied).

HN1 A court should determine the standard of proof on a summary judgment motion after considering the substance of the motion, rather than categorizing the motion strictly by its form or title. Id. Summary judgment is proper under a traditional motion when the movant establishes there is no genuine issue of material fact and she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Tex. Integrated Conveyor Sys., Inc., 300 S.W.3d at 375. A no-evidence summary judgment is proper if the nonmovant fails to bring forward more than a scintilla of probative evidence that raises a genuine issue of material fact as to an essential element of the plaintiff’s cause of action for which the defendant contends [*5] no evidence exists. Tex. R. Civ. P. 166a(i).

In their motion for “traditional” summary judgment, appellees argue they should be granted summary judgment on Garza’s negligence claim because Garza “has provided no evidence that [Pullen] proximately caused the accident” and because Garza is “unable to prove each element required to establish gross negligence.” We conclude appellees’ motion for traditional summary judgment was, in substance, a motion for no-evidence summary judgment and will review the motion under the standards that apply to a no-evidence motion. See Tex. Integrated Conveyor Sys., Inc., 300 S.W.3d at 375.

A. Standard for Reviewing No-Evidence Summary Judgment

HN2 We review a trial court’s granting of a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A no-evidence summary judgment is essentially a directed verdict granted before trial, to which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). “A no evidence motion for summary judgment must be granted if, after an adequate time for discovery, the moving party asserts that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial and the nonmovant fails to produce more than a scintilla of summary judgment evidence raising a genuine issue [*6] of material fact on those elements.” Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex. App.-San Antonio 2008, pet. denied); see also Tex. R. Civ. P. 166a(i). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc., 118 S.W.3d at 751 (citation omitted). “More than a scintilla of evidence exists when the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'” Id. (citation omitted). When reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the non-movant, indulging in every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam). To defeat a no-evidence motion for summary judgment, the nonmovant is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements. Ramirez v. Colonial Freight Warehouse Co., 434 S.W.3d 244, 249 (Tex. App.—Houston [1st Dist.] 2014, pet. denied).

B. Negligence

Appellees’ motion focused on the proximate cause element of Garza’s negligence claim. In response, Garza attached evidence including: deposition testimony from himself, Pullen, the trooper who investigated the accident, and America Midwest’s corporative representative; the police report from the incident; pleadings; an affidavit from Garza’s counsel; and a medical [*7] record. Garza argued this evidence raised an issue of material fact on causation.

HN3 A negligence cause of action has three elements: (1) a legal duty, (2) breach of that duty, and (3) damages proximately caused by the breach. See Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998); Carrera v. Yañez, 491 S.W.3d 90, 94 (Tex. App.—San Antonio 2016, no pet.). A person owes another the duty to act as a reasonably prudent person would act under the same or similar circumstances regarding a reasonably foreseeable risk. Colvin v. Red Steel Co., 682 S.W.2d 243, 245 (Tex. 1984). Proximate cause consists of two elements: cause in fact and foreseeability. HMC Hotel Props. II Ltd. P’ship v. Keystone—Tex. Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014); Carrera, 491 S.W.3d at 94. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries, and without it, the harm would not have occurred. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2004). Cause in fact is not established when the defendant’s negligence does no more than furnish a condition which makes the injuries possible. Id. Any act of negligence that does no more than put a person in a particular place at a particular time is too remote to constitute legal cause. Roberts v. Healey, 991 S.W.2d 873, 878-79 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The second prong of causation—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 Dall., Inc., 907 S.W.2d 472, 478 (Tex. 1995); Carrera, 491 S.W.3d at 94. There can be more than one proximate cause of an injury, and all persons whose negligent conduct contributed [*8] to the injury are responsible for it. Boyattia v. Hinojosa, 18 S.W.3d 729, 735 (Tex. App.—Dallas 2000, pet. denied).

Under the Federal Motor Carrier Safety Regulations (FMCSR):

Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section.¹ The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.

49 C.F.R. § 392.22(a). In addition, “whenever a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place . . . warning devices required by § 393.95 of this subchapter” in a specific manner. Id. § 392.22(b).

In appellees’ motion, they contend that Garza caused the accident [*9] on his own and lost control over his vehicle because he was speeding and fell asleep prior to the accident. Garza disputed this contention in his response by attaching deposition testimony where he testified that he did not fall asleep prior to the accident and that was not what caused him to lose control of the vehicle. Garza also testified that he believed Pullen was at fault for the accident because he did not place any type of warning devices around his commercial vehicle, even though the vehicle was stopped on the shoulder of the highway. See id. Deposition testimony from both Garza and Pullen stated that Pullen did not have his vehicular hazard warning signal flashers on. See id. § 392.22(a). America Midwest’s corporate representative testified that he was not sure if the accident would have occurred had Pullen placed warning devices as soon as he pulled over on the side of the road. This is more than a scintilla of evidence that raises a fact issue on whether Pullen’s failure to turn on his flashers or place warning devices around his vehicle was a substantial factor in bringing about Garza’s injuries. See Boyattia, 18 S.W.3d at 735 (appellee not entitled to no-evidence summary judgment on the ground of lack of [*10] evidence of proximate cause because there was more than a scintilla of evidence to show that the manner in which appellee chose to park his car was a substantial factor in bringing about appellant’s injuries). Furthermore, we conclude appellees produced more than a scintilla of evidence to show that a person of ordinary intelligence should have anticipated the danger created by Pullen’s failure to turn on his flashers or place warning devices around his vehicle when parked on the shoulder of the highway. See id.

Viewing this evidence in the light most favorable to the nonmovant, reasonable and fair-minded people could differ in their conclusions about whether Pullen’s failure to turn on his flashers or place warning devices around his vehicle proximately caused Garza’s injuries. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005) (evidence is to be viewed in light most favorable to nonmovant); cf. Morales v. Craig, No. 03-99-00553-CV, 2001 Tex. App. LEXIS 3724, 2001 WL 617187, at *6 (Tex. App.—Austin June 7, 2001, no pet.) (not designated for publication) (holding appellee failed to negate proximate causation element even though he presented evidence to negate the element, because appellants presented controverting evidence as to the cause in fact of the collision).

On the summary judgment record before us, appellees are not entitled to a no-evidence summary [*11] judgment on the element of proximate cause.

C. Gross Negligence

Appellees also argue they are entitled to summary judgment on Garza’s gross negligence claim because Garza has presented no evidence that Pullen had actual, subjective awareness of an extreme degree of risk when he parked the vehicle on the shoulder of the highway.

HN5 Gross negligence requires a showing that (1) viewed objectively from the actor’s standpoint, the act or omission complained of involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(11)(A), (B); Boerjan v. Rodriguez, 436 S.W.3d 307, 311 (Tex. 2014) (per curiam). Under the first, objective element, an extreme risk is “not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998); accord Lerma v. Pipe Movers, Inc., No. 04-16-00739-CV, 2018 Tex. App. LEXIS 1996, 2018 WL 1402043, at *6 (Tex. App.—San Antonio Mar. 21, 2018, no pet.). Under the subjective element, “actual awareness means that the defendant knew about the peril, but its acts or omissions demonstrated that it did not care.” Mobil Oil Corp., 968 S.W.2d at 921. “Evidence of simple negligence is not enough to prove either the objective [*12] or subjective elements of gross negligence.” Id.

In his original petition, Garza contended Pullen was grossly negligent because his acts or omissions involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. In his response to appellees’ motion for summary judgment, Garza argues that Pullen’s failure to put out warning devices created an extreme risk of causing serious injury and harm to others. Garza attached deposition excerpts from Pullen where he testified that he did not put warning devices around his vehicle because he was not parked for long enough and he believed that he did not need to turn on any type of emergency signals unless he was parked on the shoulder for over ten minutes. When Pullen was asked whether it would have been safer if warning devices had been placed around his vehicle, he stated his response depended on the amount of time that he was going to be parked on the shoulder. Garza argues that Pullen’s inability to correctly remember the rule under the FMCSR constitutes some evidence of gross negligence. See 49 C.F.R. § 392.22.

On the record before us, there is no evidence that, viewed objectively from Pullen’s standpoint, his [*13] failure to put warning devices around his vehicle after pulling over on the side of the highway involved an extreme degree of risk of which Pullen possessed actual awareness but nevertheless proceeded to do so in conscious disregard to the rights, safety, and welfare of others. See Suarez v. City of Texas City, 465 S.W.3d 623, 637 (Tex. 2015) (discussing that HN6 gross negligence requires knowledge of the particular risk alleged). Even if Pullen failed to follow section 392.22 of the FMCSR by failing to put warning devices around his vehicle on the shoulder of the highway, Garza produced no evidence that Pullen was aware that he was required to do so. See id.; see also 49 C.F.R. § 392.22. Pullen testified that he believed he only had to put out warning devices if he was parked on the shoulder for more than ten minutes, and stated that the vehicle was not there for that long when Garza collided into it. See Manzano-Hernandez v. Jones Bros. Dirt & Paving Contrs., No. 11-18-00003-CV, 2019 Tex. App. LEXIS 6160, 2019 WL 3227913, at *6 (Tex. App.—Eastland July 18, 2019, pet. denied) (mem. op.) (summary judgment on gross negligence was properly granted when appellants produced no evidence that actor was aware of the Traffic Control Plan and chose to disregard it); see also Graham v. Adesa Tex., Inc., 145 S.W.3d 769, 774 (Tex. App.—Dallas 2004, pet. denied) (affirming trial court’s summary judgment in favor of defendants on gross negligence because there was no evidence to support an inference that defendants “made any conscious choices that demonstrate [*14] they did not care about the consequences of a risk of serious injury”). While Garza’s summary judgment evidence may have raised a fact issue as to Pullen’s ordinary negligence, Garza failed to produce some evidence of Pullen’s alleged gross negligence. See Manzano-Hernandez, 2019 Tex. App. LEXIS 6160, 2019 WL 3227913, at *6; see also Mobil Oil Corp., 968 S.W.2d at 921.

When we view the evidence in the light most favorable to Garza, there is no evidence that Pullen had an actual, subjective awareness of an extreme risk but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. Because Garza’s evidence does not raise a genuine issue of material fact concerning the mental state required to prove gross negligence, the trial court did not err when it granted appellees’ motion for summary judgment as to Garza’s gross negligence claim. See Manzano-Hernandez, 2019 Tex. App. LEXIS 6160, 2019 WL 3227913, at *6.²

Premises Liability

Separate from their motion for summary judgment on Garza’s negligence and gross negligence claims, appellees also filed a no-evidence motion for summary judgment on Garza’s premises liability claim, which the trial court granted. In his final issue on appeal, Garza argues the trial court erred in granting this motion for summary judgment.

HN7 Although premises liability is a form of negligence, [*15] “[n]egligence and premises liability claims . . . are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017). The threshold question in a premises liability case, as with any cause of action based on negligence, is the existence of and violation of a duty. Chappell v. Allen, 414 S.W.3d 316, 323 (Tex. App.—El Paso 2013, no pet.). In a premises liability action, the duty owed by a premises owner is determined by the status of the complaining party at the time and place of injury. Scott & White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010).

HN8 As a rule, to prevail on a premises liability claim, a plaintiff must prove that the defendant possessed—that is, owned, occupied, or controlled—the premises where injury occurred. Wilson v. Tex. Parks & Wildlife Dep’t, 8 S.W.3d 634, 635 (Tex. 1999) (per curiam). However, a premises liability defendant may be held liable for a dangerous condition on the property if it “assum[ed] control over and responsibility for the premises,” even if it did not own or physically occupy the property. Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (citation omitted). The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it. Id. Control over the dangerous condition, absent control [*16] of the property where the dangerous condition exists, will not suffice to establish that a claim sounds in premises liability rather than general negligence. See Arredondo v. Techserv Consulting & Training, Ltd., 567 S.W.3d 383, 393 (Tex. App.—San Antonio 2018), rev’d in part on other grounds sub nom. AEP Tex. Cent. Co. v. Arredondo, 612 S.W.3d 289 (Tex. 2020).

In appellees’ motion, they argue Garza did not present any evidence that either of them was an owner or occupier of US Highway 281, its improved shoulder, or the adjacent land where the accident occurred. Garza responded that Pullen was the possessor of the premises because he created a dangerous condition on the property by failing to put warning devices around the commercial vehicle and by failing to turn his vehicular hazard warning signal flashers on.

On appeal, Garza alleges that “[t]his failure to follow the law and well-known safety procedures created a dangerous condition on the premises.” However, in his response to appellees’ no-evidence motion for summary judgment, Garza presented no evidence that Pullen exercised control of the side of the highway when he pulled over. See Pride v. Collin Park Marina, Inc., No. 05-97-01410-CV, 2001 Tex. App. LEXIS 4557, 2001 WL 755907, at *6 (Tex. App.—Dallas July 6, 2001, pet. denied) (not designated for publication) (no premises liability when party had no control over the highway where the accident occurred). Garza only alleged that when “Pullen came to rest on the shoulder, he controlled [*17] and occupied the premises he and his commercial vehicle came to rest on” and that “Pullen had the right to exclude others from the premises,” but he failed to explain how this constituted “control” under a premises liability theory. See id. Therefore, Garza failed to raise a genuine issue of material fact on the ownership and control element of his premises liability cause of action. See Tex. Mut. Ins. Co. v. Clarence Dailey Elec., No. 04-12-00506-CV, 2013 Tex. App. LEXIS 11206, 2013 WL 4685040, at *6 (Tex. App.—San Antonio Aug. 30, 2013, no pet.) (mem. op.) (summary judgment properly granted on appellant’s premises liability claim because appellant’s response “failed to produce any summary judgment proof on the challenged elements of premises liability including ownership and control”).

Because Garza failed to produce summary judgment evidence that raised a genuine issue of material fact on one of the challenged essential elements of his premises liability claim, the trial court did not err when it granted appellees’ no-evidence motion for summary judgment on Garza’s premises liability claim. See id.

Conclusion

We affirm the trial court’s summary judgment in part, as to Garza’s gross negligence and premises liability claims. We reverse the trial court’s judgment as to Garza’s negligence claim and remand that claim to the trial court for further [*18] proceedings.

Rebeca C. Martinez, Chief Justice

End of Document

¹HN4 49 C.F.R. section 392.22(b), which references 49 C.F.R. section 393.95, generally requires reflective triangles, fusees, or flares as warning devices.

²Garza relies on Olin Corp. v. Dyson, 678 S.W.2d 650, 658 (Tex. App.—Houston [14th Dist.] 1984), rev’d, 692 S.W.2d 456 (Tex. 1985) and Poole v. Missouri P. R. Co., 638 S.W.2d 10, 11 (Tex. App.—Houston [1st Dist.] 1982, writ ref’d n.r.e.) to support his argument that Pullen’s failure to put warning devices around the vehicle constitutes some evidence of an extreme degree of risk to support his gross negligence claim. These cases, however, are inapposite because they both involve situations where the actor’s acts or omissions obstructed traffic. See Dyson, 678 S.W.2d at 658 (“Cherrypicker” obstructed traffic lane, requiring a car driving in the lane to cross into the opposing lane of traffic to safely pass the cherrypicker and “it was a practice of the appellant for several years to park the ‘cherrypickers’ so that they would obstruct traffic lanes”); Poole, 638 S.W.2d at 11 (cement tank constituted a definite obstruction to driver’s vision on the date the accident occurred). Here, Pullen’s vehicle was on the shoulder of the highway and not in the lane, and there is no evidence that the vehicle constituted an obstruction to Garza or any other driver’s vision.

Hanan v. Crete Carrier Corp.

United States Court of Appeals for the Fifth Circuit

June 17, 2022, Filed

No. 21-10831

Reporter

2022 U.S. App. LEXIS 16895 *; 2022 WL 2188527

SUSAN HANAN, Plaintiff—Appellant, versus CRETE CARRIER CORPORATION; DORN KNAPP, Defendants—Appellees.

Prior History: [*1] Appeal from the United States District Court for the Northern District of Texas. USDC No. 3:19-CV-149.

Hanan v. Crete Carrier Corp., 2021 U.S. Dist. LEXIS 137330, 2021 WL 3130081 (N.D. Tex., July 23, 2021)

Core Terms

district court, reopen, cumulative, motion for a new trial, abused, evidentiary, driving

Case Summary

Overview

HOLDINGS: [1]-In a negligence suit based on a collision that occurred when plaintiff, who was driving a car in the left lane of an interstate highway, attempted to merge when the left lane ended, and her vehicle collided with defendant’s truck, which was driving in the middle lane, exclusion of a warning notice that defendant’s employer issued after the accident, which required him to take additional training, was warranted under Fed. R. Evid. 407 because it was a subsequent remedial measure and under Fed. R. Evid. 403 as it was based on the employer’s assessment that the accident was preventable, which was a different standard than negligence; [2]-Admission of a transcript of phone calls made to emergency services while preventing plaintiff to use it to question a witness was harmless because plaintiff presented this information to the jury through the witness’ video deposition.

Outcome

Judgment affirmed.

LexisNexis® Headnotes

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion

Evidence > Admissibility > Procedural Matters > Rulings on Evidence

Civil Procedure > Judgments > Relief From Judgments > Motions for New Trials

HN1 Standards of Review, Abuse of Discretion

Appellate courts review a district court’s denial of a motion for a new trial for abuse of discretion. One basis for a new trial is an erroneous evidentiary ruling, and evidentiary rulings are likewise reviewed for abuse of discretion. Appellate courts review a district court’s denial of a motion to reopen evidence for abuse of discretion as well. Deference is the hallmark of the abuse-of-discretion review. A reviewing court applying that standard must not substitute its judgment for that of the district court. Rather, an appellate court must defer to the lower court’s sound judgment so long as its decision falls within its wide discretion and is not manifestly erroneous.

Evidence > Burdens of Proof > Allocation

Evidence > Admissibility > Procedural Matters > Rulings on Evidence

HN2 Burdens of Proof, Allocation

The harmless error doctrine applies to the review of evidentiary rulings. Fed. R. Civ. P. 61. The party asserting the error has the burden of proving that the error was prejudicial, and the appellate court will not reverse unless the error affected the substantial rights of the parties.

Evidence > Relevance > Exclusion of Relevant Evidence > Confusion, Prejudice & Waste of Time

Evidence > Admissibility > Conduct Evidence > Subsequent Remedial Measures

HN3 Exclusion of Relevant Evidence, Confusion, Prejudice & Waste of Time

Fed. R. Evid. 407 provides that evidence of subsequent remedial measures is inadmissible to prove culpable conduct; Fed. R. Evid. 403 allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

Civil Procedure > Appeals > Standards of Review > Prejudicial Errors

HN4 Standards of Review, Prejudicial Errors

The cumulative error doctrine provides that an aggregation of non-reversible errors, i.e., plain errors failing to necessitate reversal and harmless errors, can yield a denial of the constitutional right to a fair trial, which calls for reversal. The doctrine justifies reversal only in rare instances.

Counsel: For Susan Hanan, Plaintiff – Appellant: Andrew R. Gould Kurt B. Arnold, Attorney Adam D. Lewis Arnold & Itkin, L.L.P. Houston, TX.

For Crete Carrier Corporation, Dorn Knapp, Defendant – Appellees: Jordan Mayfield Jacqueline Altman, Naman, Howell, Smith & Lee, P.L.L.C., Waco, TX.

Judges: Before JONES, STEWART, and DUNCAN, Circuit Judges.

Opinion

Per Curiam:^*

This case arises out of an accident that occurred on Interstate 45 near Corsicana, Texas. Susan Hanan was driving a SUV in the left lane and Dorn Knapp was driving a Crete Carrier Corporation (“Crete”) truck in the middle lane. As the left lane ended and Hanan attempted to merge, the vehicles collided.

Hanan filed suit in Texas state court against Knapp and Crete (collectively, “Defendants”), asserting a variety of negligence claims and seeking more than $1,000,000 in damages. Defendants removed the suit to federal court. After a three-day trial, a jury rendered a verdict for Defendants, having determined that only Hanan’s negligence caused the accident.

On appeal, Hanan argues that the district court abused its discretion in denying Hanan’s motions for [*2] a new trial and to reopen evidence, and that the district court’s combined errors constitute reversible cumulative error. We disagree and AFFIRM.

I. Factual Background & Procedural History

On June 18, 2018, Hanan was driving her Chevrolet Tahoe to Houston, where one of her daughters lived. Knapp was driving a commercial truck for Crete, his employer. Hanan was in the left lane and Knapp was in the middle lane of a three-lane portion of I-45 when barriers began closing off the left lane and the instant accident took place. The parties have different accounts of the cause of this accident. According to Hanan, Knapp suddenly turned into her lane and made contact with her car. According to Knapp, Hanan came into his lane and made contact with his truck.

On November 20, 2018, Hanan filed a petition in Navarro County, Texas, against Knapp and Crete, raising claims of (1) negligence and gross negligence against Defendants; (2) negligence per se against Defendants; (3) negligent hiring against Crete; (4) negligent training against Crete; (5) negligent supervision, retention, and monitoring against Crete; (6) negligent entrustment against Crete; and (7) ratification against Crete.¹ Hanan alleged [*3] that she “was caused to suffer severe personal injuries, bodily injury, physical impairment, loss of household services, pain, suffering, and mental anguish,” and she sought recovery “in an amount in excess of $1,000,000.00[.]” On January 18, 2019, Defendants invoked diversity jurisdiction and removed to the Northern District of Texas. A jury trial was provisionally set for March 8, 2021.

On February 22, 2021, the parties filed several motions in limine that the district court ruled on before trial. Relevant to this appeal, Defendants successfully moved to exclude a document Crete created related to Knapp’s involvement in the accident (hereinafter, “the Warning Notice”), as well as evidence of a traffic citation that Knapp received at the time of the accident and to which he pled no contest. Although Hanan sought to reopen evidence related to this citation after Defendants allegedly mentioned it during closing arguments, the district court denied her request.

Meanwhile, before trial, Hanan successfully requested to admit into evidence over Defendants’ hearsay objections a transcript of 911 calls (hereinafter, “the 911 transcript”) made the day of the accident by herself, Knapp, and a [*4] third-party witness, Gregory Brown. The district court reconsidered the admission of Brown’s portion of the 911 transcript at trial once he did not appear as a witness, refusing to allow Hanan to use it to question Knapp, but the district court and the parties later acknowledged that the entire transcript had been admitted into evidence.

After a trial held between March 8 and March 10, 2021, a six-member jury rendered a verdict in favor of Defendants. The jury determined that the accident was caused by Hanan’s negligence, with no negligence attributable to Knapp. On March 11, 2021, the district court entered a final judgment for Defendants, granting Hanan no damages. On April 8, 2021, Hanan moved for a new trial under Federal Rule of Civil Procedure 59(a).² She alleged that evidentiary errors involving the Warning Notice and the 911 transcript independently and collectively “prevented [her] from fully presenting her case.” The district court denied Hanan’s motion for a new trial, concluding that it had not erred in its application of the Federal Rules of Evidence and that any potential error was harmless. Hanan timely appealed.

II. Standard Of Review

HN1 “We review a district court’s denial of a motion for a new trial for abuse [*5] of discretion.” United States v. Kieffer, 991 F.3d 630, 636 (5th Cir.), cert. denied, 142 S. Ct. 297, 211 L. Ed. 2d 138 (2021) (citing United States v. Hoffman, 901 F.3d 523, 552 (5th Cir. 2018), cert. denied, 139 S. Ct. 2615, 204 L. Ed. 2d 264 (2019)). One basis for a new trial is an erroneous evidentiary ruling, Jordan v. Maxfield & Oberton Holdings, L.L.C., 977 F.3d 412, 417 (5th Cir. 2020) (citation omitted), and evidentiary rulings are likewise reviewed for abuse of discretion. Koch v. United States, 857 F.3d 267, 277 (5th Cir. 2017) (citing Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995)). We review a district court’s denial of a motion to reopen evidence for abuse of discretion as well. Garcia v. Woman’s Hosp. of Tex., 97 F.3d 810, 814 (5th Cir. 1996).

“Deference is the ‘hallmark of [the] abuse-of-discretion review’ applicable to such decisions.” United States v. Tsarnaev, 142 S. Ct. 1024, 1040, 212 L. Ed. 2d 140 (2022) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997)). “A ‘reviewing court’ applying that standard ‘must not substitute its judgment for that of the district court.'” Id. (quoting Horne v. Flores, 557 U.S. 433, 493, 129 S. Ct. 2579, 174 L. Ed. 2d 406 (2009) (Breyer, J., dissenting)). “Rather, an appellate court must defer to the lower court’s sound judgment so long as its decision falls within its wide discretion and is not manifestly erroneous.” Id. (internal citations and quotation marks omitted); see also HTC Corp. v. Telefonaktiebolaget LM Ericsson, 12 F.4th 476, 489 (5th Cir. 2021) (“A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.”).

Meanwhile, HN2 “[t]he harmless error doctrine applies to the review of evidentiary rulings.” Heinsohn v. Carabin & Shaw, P.C., 832 F.3d 224, 233 (5th Cir. 2016) (citing Nunez v. Allstate Ins. Co., 604 F.3d 840, 844 (5th Cir. 2010); Fed. R. Civ. P. 61.)). “The party asserting the error has the burden of proving that the error was prejudicial,” Williams v. Monitowoc Cranes, L.L.C., 898 F.3d 607, 615 (5th Cir. 2018) (citation omitted), and this court “will [*6] not reverse unless the error affected the substantial rights of the parties,” Spectrum Ass’n Mgmt. of Tex., L.L.C. v. Lifetime HOA Mgmt. L.L.C., 5 F.4th 560, 564 (5th Cir. 2021) (citation omitted).

III. Discussion

On appeal, Hanan argues that the district court abused its discretion in denying her motion for a new trial when it wrongly excluded the Warning Notice and the 911 transcript. Hanan also avers that the district court abused its discretion in denying her motion to reopen evidence after the defendants “opened the door” to the excluded citation, and that the district court’s combined errors prevented her from presenting her case and constitute reversible cumulative error. We take up each argument in turn.

A. Motion for a New Trial

According to Hanan, the district court abused its discretion in denying Hanan’s motion for new trial based on two prejudicial evidentiary errors involving the Warning Notice and the 911 transcript, respectively.

i. The Warning Notice

Crete issued the Warning Notice to Knapp after the accident. It stated, inter alia, that Knapp “will attend a Defensive Driving Course provided by the company,” “is to re-seat and train on DriveCam immediately,” and “will be subject to monthly log audits.” The Warning Notice also specified that “[a]ny further preventable [*7] accidents . . . may result in disciplinary action[.]” The district court excluded this document based on HN3 Federal Rule of Evidence 407, which provides that evidence of subsequent remedial measures is inadmissible to prove culpable conduct; and Federal Rule of Evidence 403, which allows for the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice. On appeal, Hanan contends that the Warning Notice should have been admitted under both Rules. We disagree.

First, it was within the district court’s discretion to exclude the Warning Notice under Rule 407. After reviewing Crete’s motion in limine and Hanan’s response, hearing arguments on this issue at a pretrial hearing, requesting supplemental briefing, and holding a second pretrial hearing based on the filings, the district court reasonably determined that the Warning Notice was a subsequent remedial measure. As Crete’s own representative Matthew DiVito testified, this was a “written warning,” not an investigative report for which Rule 407 does not apply. See Brazos River Auth. v. GE Ionics, Inc., 469 F.3d 416, 430-31 (5th Cir. 2006). And exclusion under this Rule “rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.” Fed. R. Evid. 407 advisory committee’s notes. [*8] Here, Crete took a step in furtherance of added safety by issuing a written warning that required its driver to carry out additional training after an accident. We have long recognized that “by admitting such evidence defendants will be prompted to allow dangerous conditions to continue to exist rather than making corrections or repairs.” Bailey v. Kawasaki-Kisen, K. K., 455 F.2d 392, 396 (5th Cir. 1972).

Second, the exclusion of the Warning Notice was within the district court’s “broad discretion to weigh the relevance, probative value, and prejudice of the evidence in determining its admissibility under Rule 403.” United States v. Allard, 464 F.3d 529, 534 (5th Cir. 2006). Its issuance was based on Crete’s assessment that the accident was preventable as defined by the American Trucking Association (“ATA”), which differs from negligent as defined by Texas law. See Villalba v. Consolidated Freightways Corp., No. 98 C 5347, 2000 U.S. Dist. LEXIS 11773, 2000 WL 1154073, at *6 (N.D. Ill. Aug. 14, 2000). As DiVito explained, the ATA standard asks whether a driver did everything possible to avoid an accident, not whether a driver used ordinary care. Here, the district court reasonably observed “the risk [was] high that the jury would substitute Crete’s findings for its own judgment,” which is particularly worrisome when the preventability and negligence standards differ, and when Hanan sought to admit the Warning Notice as evidence of Crete’s “opinion” [*9] as to “fault.” Accordingly, the district court did not err in its exclusion of the Warning Notice.³

ii. The 911 Transcript

Turning to the 911 transcript, this was a transcript of phone calls made to emergency services by Hanan, Knapp, and Brown. The district court rejected Hanan’s allegation that it had erred in excluding the 911 transcript, observing that it did, in fact, admit the entirety into evidence. On appeal, Hanan reiterates that the 911 transcript was improperly excluded, emphasizing that this was a “functional exclusion” because the district court did not allow her to use Brown’s portion in her presentation of evidence and it was thus never presented to the jury. See Fed. R. Evid. 803(1)-(2).

The record reflects that the 911 transcript was ultimately admitted into evidence in its entirety and provided to the jury during deliberations.⁴ Although the district court reconsidered its admission of the 911 transcript, refusing to allow Hanan to use Brown’s portion to question Knapp, the record confirms that any associated error was harmless. Hanan contends that the jury was not able to hear that Brown identified Knapp as having caused the crash. But as the district court observed, Hanan presented the relevant [*10] information from Brown’s portion of the 911 transcript to the jury through his video deposition after he failed to appear as a witness: namely, that he “used [his] cell phone to call 911” after witnessing the accident, that he concluded “the Crete Driver ma[d]e an improper lane change and then cause[d] the accident,” and that Knapp refused to stop. Thus, there was no “functional exclusion” of evidence that affected Hanan’s substantial rights.⁵

In sum, we hold that the district court did not abuse its discretion in denying Hanan’s motion for a new trial.

B. Motion to Reopen Evidence

According to Hanan, the district court also abused its discretion in denying her motion to reopen evidence after Defendants “opened the door” to the excluded traffic citation. She argues she had adhered to a court order requiring her to exclude any mention of the fact that Knapp pled no contest to a citation for an improper lane change⁶ but should have been allowed to introduce this evidence once Defendants stated that “[she] ha[s] not brought forth any statute or violation of a statute.” [*11] Hanan asserts that the jury was thereby “left with the false impression that there was no evidence that Mr. Knapp had violated any provisions of the Texas Transportation Code” and that “the only way for [her] to remedy that misimpression was to reopen the evidence to introduce the citation.”

We disagree. For starters, Hanan was not prohibited from presenting evidence related to provisions or violations of the Texas Transportation Code or other relevant statutes; in fact, as noted by Defendants, she received explicit permission from the district court to refer to applicable statutes on the first day of trial with the first witness.⁷ Further, Defendants did not represent that Knapp had never pled no contest to a citation such that she needed to introduce it to correct the record. As the district court observed, “[a]ll [Defendants] said was that there’s no law that showed that [Knapp] violated the statute that’s at issue here,” not that there was “no[] citation.” In other words, “it’s apples and oranges.” We therefore hold that the district court did not abuse its discretion in denying Hanan’s motion to reopen evidence.

C. Cumulative Error

Lastly, according to Hanan, the combined prejudicial [*12] effect of the errors she alleged caused reversible cumulative error. She cites to our en banc court in United States v. Delgado, which explained, HN4 “[t]he cumulative error doctrine . . . provides that an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial, which calls for reversal.” 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc) (quoting United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998)). Hanan acknowledges that the doctrine justifies reversal “only in rare instances[.]” Id. at 344. However, she avers that this is one such instance and that collective errors prevented her from presenting a full and fair case.

Like the en banc court in Delgado, we conclude that “the cumulative error doctrine has no applicability to [this] trial.” Id. We have identified no errors that “so fatally infect the trial that they violated the trial’s fundamental fairness,” as required. Id. Accordingly, we hold that the district court did not err in deciding that the cumulative error doctrine was inapplicable.

IV. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court.

End of Document

^*Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

¹The district court granted Defendants’ motion for summary judgment on the negligence per se and ratification claims, and Hanan does not raise these claims on appeal.

²In the alternative, Hanan moved for relief from the judgment under Rule 60(b)(6). Her arguments hinged on Knapp’s allegedly misleading the jury into believing that he was significantly injured when he was not. The district court rejected these arguments, and Hanan did not raise them on appeal.

³Hanan also argues that the Warning Notice is admissible as impeachment evidence. However, the district court correctly ruled that this evidence did not in fact contradict DiVito’s testimony. Specifically, it explained, “Crete Carrier’s position at trial is that Knapp was not negligent, not that Knapp failed to prevent the accident according to the ATA Preventability Guidelines. As the Warning Notice states only that the accident was ‘preventable,’ this evidence would not show a prior inconsistent position on behalf of Crete Carrier.”

⁴The transcript reads, in pertinent part:

MR. LEWIS: Plaintiff’s 23 has been admitted into evidence, Your Honor.

THE COURT: You guys agree?

MS. ALTMAN: Yes, Your Honor.

⁵Hanan further contends that she was deprived “of a critical avenue from which to impeach Mr. Knapp’s credibility and to effectively cross-examine the [D]efendants’ expert witness.” However, “[t]he impeachment value of such hearsay evidence was slight because ‘the statement could not be used to prove the truth of its substance, but only to destroy the credibility of the witness.'” Reddin v. Robinson Prop. Grp. Ltd. P’ship, 239 F.3d 756, 760-61 (5th Cir. 2001) (quoting Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979)). And Defendants’ expert witness reviewed the 911 transcript in its entirety and could have relied on it as hearsay on cross had she sought to elicit testimony about it, but she did not. See United States v. Williams, 447 F.2d 1285, 1290 (5th Cir. 1971).

⁶The district court determined that neither the “receipt of the citation nor [Knapp’s] payment thereof establishes negligence as a matter of law,” and that the citation is inadmissible when there is no guilty plea. See Robert v. Maurice, No. CV 18-11632, 2020 U.S. Dist. LEXIS 125850, 2020 WL 4043097, at *6 n.88 (E.D. La. July 17, 2020) (collecting cases demonstrating that mere issuance or payment of a traffic citation is not admissible in a civil trial).

⁷When Hanan objected to Defendants’ request to admit federal motor carrier safety regulations because “the [c]ourt here provides the law, not the attorneys here,” the district court overruled her objection. She countered, “[i]t would be the same if I wanted to bring in traffic violation statutes with Mr. Knapp[,]” and the district court responded, “[y]ou can do it[.]”