United States District Court for the Western District of Texas, San Antonio Division

June 14, 2022, Decided; June 14, 2022, Filed

SA-21-CV-00961-XR

Reporter

2022 U.S. Dist. LEXIS 106904 *

AMY MARR, Plaintiff -vs- HAROLD E CROXTON, AVAILABLE MOVERS & STORAGE, INC., RYDER TRUCK RENTAL, INC., Defendants

Core Terms

nonmovant, summary judgment, truck, leased, driver’s, carrier, turn signal, regulations, asserts, Rental, lessor

Counsel:  [*1] For Amy Marr, Plaintiff: Christopher Ryan Brasure, LEAD ATTORNEY, Brasure Law Firm, PLLC, Edinburg, TX.

For Harold E Croxton, Available Movers & Storage, Inc., Defendants: David Louis Ortega, LEAD ATTORNEY, Naman, Howell, Smith and Lee, San Antonio, TX; Erik L. Krudop, Naman Howell Smith & Lee, PLLC, San Antonio, TX.

Judges: XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE.

Opinion by: XAVIER RODRIGUEZ

Opinion

ORDER

On this date, the Court considered Defendant Ryder Truck Rental’s motion for summary judgment (ECF No. 16), Plaintiff’s response (ECF No. 40), and Defendant’s reply (ECF No. 43). After careful consideration, the Court issues the following order.

BACKGROUND

This case arises from a lane-change accident between Defendant Harold Croxton (“Croxton”) and Plaintiff Amy Marr (“Marr”) that occurred on July 27, 2020, in Leon Valley Texas. ECF No. 40-3 at 2-3. Croxton was driving a 2020 Freightliner box truck that his employer, Defendant Available Movers & Storage (“AMS”), leased from Defendant Ryder Truck Rental (“Ryder”). Id. at 2; ECF No. 40-1 at 1. Croxton was not an employee of Ryder at the time of the accident. ECF No. 16-1.

Marr and Croxton were driving eastbound on Huebner Road in Leon Valley, Texas when the accident [*2]  occurred. ECF No. 40-3 at 2-3. As Marr was passing Croxton on the right, Croxton’s vehicle struck Marr’s as he was making a lane change. Croxton Dep. 57:9-17. Croxton testified that, before making the lane change, he checked his mirror and signaled. Id. When Croxton began moving into the right lane, he “heard a thump,” and shifted back to the left lane. Id. Marr was looking straight ahead and did not see Croxton’s vehicle until it collided with hers. Marr Dep. 37:4-21. Both Marr and Croxton stopped and exited their respective vehicles. Croxton Dep. 57:22-58:1. Croxton called law enforcement, and after speaking with law enforcement, left the scene. Id.

Marr originally filed suit in the 57th Judicial District Court of Bexar County, Texas, bringing claims of negligence against Ryder. ECF No. 1-3 at 7-10. Marr asserts that Ryder is liable for its own negligence, as well as vicariously liable for Croxton’s conduct. Id. Defendants then removed the case to this Court on the basis of diversity jurisdiction. ECF No. 1. Shortly after, Ryder filed the instant motion for summary judgment, arguing that under the Graves Amendment, 49 U.S.C. § 30106, it cannot be held liable for Marr’s injuries. ECF No. 16.

DISCUSSION [*3] 

I. Legal Standard

The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56. To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the non-moving party’s claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant’s claim or defense. Little v. Liquid Air Corp., 952 F.2d 841, 847 (5th Cir. 1992), on reh’g en banc, 37 F.3d 1069 (5th Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). Any “[u]nsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment,” Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003), and neither will “only a scintilla of evidence” meet the nonmovant’s burden. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Rather, the nonmovant must “set forth specific facts showing the existence of a ‘genuine’ issue concerning every essential component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998). The Court will [*4]  not assume “in the absence of any proof . . . that the nonmoving party could or would prove the necessary facts” and will grant summary judgment “in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant.” Little, 37 F.3d at 1075.

For the Court to conclude that there are no genuine issues of material fact, the Court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). In making this determination, the Court should review all the evidence in the record, giving credence to the evidence favoring the nonmovant as well as the “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). The Court “may not make credibility determinations or weigh the evidence” in ruling on a motion for summary judgment, id. at 150, and must review all facts in the light most favorable to the nonmoving party, First Colony Life Ins. Co. v. Sanford, 555 F.3d 177, 181 (5th Cir. 2009).

II. Analysis

Ryder argues that it is exempt from liability under the Graves Amendment, [*5]  49 U.S.C. § 30106. The Graves Amendment provides that a lessor of a motor vehicle “shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease,” so long as the lessor is “engaged in the trade or business of renting or leasing motor vehicles; and there is no negligence or criminal wrongdoing on the part of the owner[.]” 49 U.S.C. § 30106. Marr argues that the Graves Amendment is not applicable, as Ryder itself was negligent by failing to maintain its vehicle and by allowing Croxton to drive the vehicle when AMS’s operating authority had lapsed and because Ryder acted as Croxton’s statutory employer under the Federal Motor Carrier Safety Regulations (“FMCSR”). ECF No. 40.

“To prevail on a common law negligence claim, a plaintiff must be able to prove three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damage proximately caused by the breach.” Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83, 88 (Tex. App.—El Paso 2012, no pet.). Because Marr has failed to present evidence that Ryder was negligent, the Court concludes [*6]  that Ryder is entitled to summary judgment.

A. There is no evidence that Ryder negligently maintained its vehicle.

First, Marr contends that there is a dispute of material fact as to whether Ryder negligently maintained its vehicle. Specifically, she argues that because Croxton testified that he engaged his turn signal and Marr states that she did not see the truck’s turn signal, the turn signal must have been defective. ECF No. 40 at 5-6. However, the evidence clearly shows that Marr did not see Croxton’s vehicle at all until it collided with hers. Marr testified that she was passing Croxton and was alongside him when their vehicles collided. Marr Dep. 37:4-21. Marr further stated that she “didn’t see [the truck] coming” because she was looking straight ahead.¹Id. Although there is a turn signal above the wheel well of Ryder’s vehicle that may have been visible to Marr as she looked straight ahead from alongside the truck, the photograph of the truck submitted to the Court shows that the turn signal above the right-side wheel well was functioning at the time of the accident. ECF No. 40-7. Additionally, Croxton avers that the vehicle was in “good working condition” when he received it [*7]  from Ryder. ECF No. 16-1. Because there is no evidence showing Ryder negligently maintained its vehicle and that the truck’s turn signal was “defective,” Ryder is entitled to summary judgment.

B. Ryder had no duty to determine whether AMS had authority to operate when it leased its vehicle to AMS.

Next, Marr contends that “Ryder is responsible for the actions of its truck engaged in unauthorized transportation.” ECF No. 40 at 7. Marr asserts that Ryder owes a duty to examine the bona fides of any company it leases its vehicles to, including ensuring that the lessee has complied with all applicable federal regulations. First, Marr asserts that 49 C.F.R. § 392.9a imposed a duty on Ryder to ensure that its vehicle was operating with the required operating authority. While regulations may impose a duty recognized in tort, see Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979), it is unclear that 49 C.F.R. § 392.9a applies to Ryder. 49 C.F.R. § 392.9a, by its language, is applicable to motor vehicles “requiring operating authority.” Parties requiring operating authority under the statute include motor carriers, freight forwarders, or transportation brokers. 49 U.S.C. § 13901. Ryder does not provide any of these services. See 49 U.S.C. § 13102 (defining “motor carrier,” “freight forwarder,” and “broker”). Further, a defendant, [*8]  such as a leasing company, who entrusts a vehicle to another has no duty to investigate a driver’s competency when a valid, unrestricted driver’s license is presented. Avalos v. Brown Auto. Ctr., Inc., 63 S.W.3d 42, 48-49 (Tex. App.—San Antonio 2001, no pet.). Imposing a duty on Ryder to investigate whether its customers have complied with federal regulations would go beyond the duty that the Avalos court rejected. Here, Croxton presented Ryder with a valid commercial driver’s license. ECF No. 16-1 at 1. Ryder did not have any further duty to investigate AMS’s compliance with federal regulations.

Even assuming such a duty existed, Marr has failed to show that Ryder’s alleged breach caused the accident. There can be no legal causation if “the defendant’s conduct or product does no more than furnish the condition that makes the plaintiff’s injury possible.” Allways Auto Grp., Ltd. v. Walters, 530 S.W.3d 147, 149 (Tex. 2017) (quoting Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)). As discussed, Ryder’s only role in this accident is that it leased the vehicle to its codefendants. As a matter of law, this conduct alone cannot support a negligence claim.

C. The FMCSR does not establish a cause of action against Ryder.

Finally, Marr contends that Ryder was Croxton’s statutory employer under the FMCSR, and thus, that Ryder is vicariously liable for the conduct of its statutory employee as a matter [*9]  of law. ECF No. 40 at 8; see also Empire Indem. Ins. Co. v. Carolina Cas. Ins. Co., 838 F.2d 1428, 1433 (5th Cir. 1988) (holding that when a leased driver operates under the permit of a licensed carrier, the carrier is vicariously liable for the leased driver’s acts under the FMCSR). Marr asserts that because AMS’s operating authority had been suspended at the time of the accident, Croxton was driving under Ryder’s operating authority, making Croxton Ryder’s statutory employee. ECF No. 40 at 8. However, the statutory-employee doctrine imposes “a functional employment relationship between a driver and a lessee carrier,” not between a driver and a lessor, much less a lessor who does not qualify as a carrier under the regulations. See Sentry Select Ins. Co. v. Drought Transp. LLC, No. 15-cv-890 (RCL), 2017 U.S. Dist. LEXIS 217370, 2017 WL 5382168, at *2 (W.D. Tex. May 3, 2017) (emphasis removed); Escalante v. Creekside Logistics, LLC, No. 5:18-CV-116-OLG, 2019 U.S. Dist. LEXIS 232037, 2019 WL 9135758, at *3 (W.D. Tex. Feb. 12, 2019) (‘”[I]n instances where the owner leases the vehicle along with all rights of control and maintenance to the employer of the entrusted employee[,]’ neither vicarious liability premised on the FMCSR statutory employment relationships nor direct negligent entrustment liability “pass[ ] . . . up the chain to the vehicle’s true owner[.]”) (alterations in original) (quoting McDorman v. Texas-Cola Leasing Co. LP, LLLP, 288 F. Supp. 2d 796, 801 (N.D. Tex. 2003)). Because Ryder was not negligent and cannot be held liable as a statutory employer under the FMCSR, the Court finds that Ryder, as the lessor of the [*10]  vehicle involved in the car accident at issue, is entitled to summary judgment. See 49 U.S.C. § 30106.

CONCLUSION

For the foregoing reasons, Defendant Ryder Truck Rental’s motion for summary judgment (ECF No. 16) is GRANTED. Plaintiff Amy Marr’s claims against Defendant Ryder Truck Rental are DISMISSED WITH PREJUDICE.

It is so ORDERED.

SIGNED this 14th day of June, 2022.

/s/ Xavier Rodriguez

XAVIER RODRIGUEZ

UNITED STATES DISTRICT JUDGE

End of Document

---

¹ Marr has submitted an affidavit claiming that she did in fact see Croxton’s vehicle before the accident and did not see his turn signal. ECF No. 40-9. However, the Court will not consider this affidavit as it is unclear that it comports with the requirements of 28 U.S.C. § 1746, which requires an unsworn declaration be signed by the declarant. Further, the affidavit is clearly a sham as it directly contradicts Marr’s prior statements. See Winzer v. Kaufman County, 916 F.3d 464, 472 (5th Cir. 2019).

User Name: Rocky Rogers

Date and Time: Saturday, June 25, 2022 2:01:00 PM EDT

Job Number: 173988661

Document (1)

1. Hamrick v. James, 2022 U.S. Dist. LEXIS 99887

Client/Matter: 00010.00104

   Neutral

As of: June 25, 2022 6:01 PM Z

Hamrick v. James

United States District Court for the Eastern District of Tennessee

April 22, 2022, Filed

Case No. 3:20-cv-417

Reporter

2022 U.S. Dist. LEXIS 99887 *; 2022 WL 1788266

GRANT HAMRICK, Plaintiff, v. REGINALD JAMES, NANDLEEN LLC, UNITED PARCEL SERVICES, INC., SPLASH TRANSPORT, INC., and AHMED ELMEHALAWY, Defendants.

Prior History: Hamrick v. Splash Transp., 2022 U.S. Dist. LEXIS 16881, 2022 WL 291894 (E.D. Tenn., Jan. 31, 2022)

Core Terms

rig, truck, summary judgment, tractor-trailer, shoulder, driving, parking, traffic, stationary, proximate, driver, proximate cause, emergency, nonmoving, trailer, hit, motor carrier, regulations, undisputed, started, travel, cases, hired, unfit

Counsel:  [*1] For Nandleen LLC, doing business as, Reginald Devon James, Nandleen LLC, Nandleen Logistics, Cross Claimants: Kenneth W Ward, LEAD ATTORNEY, Trammell Adkins & Ward PC, Knoxville, TN.

For Ahmed Elmehalawy, Splash Transport Inc., Counter Defendants: Ethan Daniel Lavelle, LEAD ATTORNEY, Ambrose Wilson Grimm & Durand LLP, Knoxville, TN.

For Grant Hamrick, Plaintiff: Matthew E Wright, The Law Firm for Truck Safety LLC, Franklin, TN.

For Ahmed Elmehalawy, Splash Transport Inc., Counter Defendants: Brad A Fraser, LEAD ATTORNEY, Leitner Williams Dooley & Napolitan PLLC (Knoxville), Knoxville, TN.

For Ahmed Elmehalawy, Splash Transport Inc., Cross Defendants: Brad A Fraser, LEAD ATTORNEY, Leitner Williams Dooley & Napolitan PLLC (Knoxville), Knoxville, TN.

For Ahmed Elmehalawy, Splash Transport Inc., Cross Defendants: Ethan Daniel Lavelle, LEAD ATTORNEY, Ambrose Wilson Grimm & Durand LLP, Knoxville, TN.

For Reginald Devon James, Nandleen LLC, Nandleen Logistics, Nandleen LLC, doing business as, Defendants: Kenneth W Ward, LEAD ATTORNEY, Trammell Adkins & Ward PC, Knoxville, TN.

For Splash Transport Inc., Cross Claimant: Ethan Daniel Lavelle, LEAD ATTORNEY, Ambrose Wilson Grimm & Durand LLP, Knoxville, [*2]  TN; Brad A Fraser, LEAD ATTORNEY, Leitner Williams Dooley & Napolitan PLLC (Knoxville), Knoxville, TN.

For Splash Transport Inc., Counter Claimant: Ethan Daniel Lavelle, LEAD ATTORNEY, Ambrose Wilson Grimm & Durand LLP, Knoxville, TN; Brad A Fraser, LEAD ATTORNEY, Leitner Williams Dooley & Napolitan PLLC (Knoxville), Knoxville, TN.

For Ahmed Elmehalawy, Splash Transport Inc., Defendants: Brad A Fraser, LEAD ATTORNEY, Leitner Williams Dooley & Napolitan PLLC (Knoxville), Knoxville, TN.

For Ahmed Elmehalawy, Splash Transport Inc., Defendants: Ethan Daniel Lavelle, LEAD ATTORNEY, Ambrose Wilson Grimm & Durand LLP, Knoxville, TN.

For United Parcel Service Inc., Defendant: David A. Chapman, LEAD ATTORNEY, Lewis Thomason King Krieg & Waldrop P.C. (Knox), Knoxville, TN.

Judges: TRAVIS R. MCDONOUGH, UNITED STATES DISTRICT JUDGE. Magistrate Judge Debra C. Poplin.

Opinion by: TRAVIS R. MCDONOUGH

Opinion

MEMORANDUM OPINION

Before the Court is Defendants Reginald James and Nandleen, LLC’s (“Nandleen”) motion for partial summary judgment (Doc. 116). For the reasons contained herein, the motion is GRANTED.

I. BACKGROUND

A. Reginald James

Reginald James is a truck driver who attended driving school in Georgia. (Doc. 116-1, at 5.) In driving [*3]  school, James learned about the Federal Motor Carrier Regulations. (Id. at 5-6.) After graduating from Georgia Driving Academy, James’s employer tested him on the regulations and required that he drive with a trainer for 250 hours. (Id. at 6-8.) James drove for a company called Stevens Transport before he joined Nandleen. (Id. at 2-3.)

B. Nandleen

Nandleen is a registered motor carrier with the Federal Motor Carrier Safety Administration and is run by Ailende Omozokpea. (Doc. 126-4, at 2.) To register with the Federal Motor Carrier Safety Administration, an agent of the company must certify that it “has in place a system and an individual responsible for ensuring the overall compliance with the Federal Motor Carrier Safety regulations.” (Id. at 6.) At Nandleen, Omozokpea attested to compliance with the above statement and was responsible for ensuring overall compliance with applicable regulations. (Id.)

Nandleen required its drivers to have at least two years’ driving experience and no atfault citations or accidents. (Doc. 116-1, at 9.) Nandleen’s insurance carrier ran a background check on James, which came back clean. (Doc. 126-4, at 10.) Omozokpea testified during his deposition that [*4]  Nandleen has a safety and orientation program, as well as a program for overseeing driver-qualification requirements. (Id. at 8.) When Omozokpea first started Nandleen, he “didn’t know a lot,” so he never considered having a written policy regarding parking on the side of the road, and James testified that the company did not have a policy.¹ (Id. at 9; Doc. 116-1, at 10.) However, when James started, Omozokpea told him that parking on the shoulder was only allowed in emergencies. (Doc. 131-1, at 3.)

C. The Accident

On July 27, 2020, James was hauling a load from Hayneedle, Ohio, to Miami, Florida, with a J.B. Hunt tractor-trailer. As he was driving through Knoxville, Tennessee, he began feeling sick—like he was “getting ready to vomit.” (Doc. 116-1, at 11; Doc. 125-1, at 2.) Because James believed vomiting in his truck to be more dangerous than pulling over onto the interstate shoulder, he decided to stop and park his vehicle. (Id. at 12.) He parked his truck entirely on the shoulder; no part of his vehicle was in the far-right lane where traffic was flowing. (Id. at 18; Doc. 116-3, at 4.) James testified that the first thing he did after pulling over was to turn his hazard lights on. [*5] ² (Doc. 116-1, at 14.) It is undisputed that James did not exit his vehicle and put out safety triangles.³ After two or three minutes, James still believed he might vomit, so he called Omozokpea to see if he could go home to Greensboro, North Carolina, instead of proceeding to Miami. (Doc. 126-3, at 14-15.)

James, however, would not make it to Greensboro or Miami that night. Just after 9:00 p.m., Ahmed Elmehalawy—an employee of Splash Transport, Inc. (“Splash”)—was driving his tractor-trailer in the far-right lane on I-75 South and preparing to take the next exit. (Doc. 116-2, at 4.) Elmehalawy saw James’s rig up ahead to his right. (Doc. 125-1, at 14.) Instead of staying in his lane, though, Elmehalawy drifted into the emergency lane. (Doc. 116-2, at 4.) When asked why he drifted, Elmehalawy testified that he believed that James’s truck was still moving and that the shoulder was an active lane of traffic. (Id. at 4-5.) By the time that Elmehalawy realized that James’s rig was stationary, it was too late. (Id.) Elmehalawy was able to move his tractor cab back into the far-right lane, but his trailer hit James’s, causing substantial damage. (Id.)

The damage to James’s trailer turned out [*6]  to be the least of Elmehalawy’s worries. Before the accident, Hamrick, who was driving a tractor-trailer for United Parcel Service, Inc. (“UPS”), noticed that James’s trailer was not moving and merged his truck into the middle lane of traffic to give James adequate space. (Doc. 116-3, at 2-3.) Hamrick, though, was struck by Elmehalawy as he tried to avoid the collision with James’s tractor-trailer, causing both Hamrick and Elmehalawy’s tractor-trailers to jackknife on I-75 South. (Doc. 116-2, at 15; Doc. 116-3, at 2-3, 7.) A few minutes after the accident, Elmehalawy texted the following to his supervisor:

Was traveling on I-75S Monday July 27th around 9pm was getting ready to get off exit (107) on this area the road is making curve to the right and there was truck setting [sic.] on the emergency lane (JB Hunt) I thought it was starting to move into traffic. Attempted to get over to the left lane to give him space started to look at my mirror there was corvette car next to me and ups truck is coming from the back while I was trying to leave my lane and because this part of the highway is curve my truck started to go towards this truck and as soon as I found out I make hard left to avoid [*7]  hitting that truck but me doing that causes my trailer hitting the back of his trailer and my tractor hitting the ups truck. I feel JB Hunt was very close to side of traffic.

(Doc. 126-5, at 14-15).

D. The Present Suit

Hamrick instituted the present suit against Elmehalawy, Splash, UPS, Nandleen, and James in September 2020. (Doc. 1.) In December 2021, James and Nandleen filed the present motion for partial summary judgment on Hamrick’s claims against them. (Doc. 116.) The motion is now ready for the Court’s review.

II. STANDARD OF LAW

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court views the evidence in the light most favorable to the nonmoving party and makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001).

The moving party bears the burden of demonstrating that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). The moving party may meet this burden either by affirmatively producing evidence establishing that there is no genuine issue of material fact or by pointing out the absence of support in the record for the nonmoving party’s case. [*8]  Celotex, 477 U.S. at 325. Once the movant has discharged this burden, the nonmoving party can no longer rest upon the allegations in the pleadings; rather, it must point to specific facts supported by evidence in the record demonstrating that there is a genuine issue for trial. Chao v. Hall Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002).

At summary judgment, the Court may not weigh the evidence; its role is limited to determining whether the record contains sufficient evidence from which a jury could reasonably find for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A mere scintilla of evidence is not enough; the Court must determine whether a fair-minded jury could return a verdict in favor of the non-movant based on the record. Id. at 251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If not, the Court must grant summary judgment. Celotex, 477 U.S. at 323.

III. ANALYSIS

A. Negligence Against James⁴

James contends that that he is entitled to summary judgment on Hamrick’s negligence claim because Hamrick cannot establish that James’s actions were the proximate cause of Hamrick’s injuries. (Doc. 117, at 6.) Hamrick argues that, because James’s conduct was a substantial factor in bringing about his injuries, summary judgment is inappropriate. (Doc. 126, at 14.)

In Tennessee, a plaintiff must establish five elements to succeed on a negligence claim: (1) “a duty [*9]  of care owed by the defendant to the plaintiff”; (2) “conduct falling below the applicable standard of care amounting to a breach of that duty”; (3) “an injury or loss”; (4) actual causation; and (5) “proximate, or legal, cause.” McClenahan v. Cooley, 806 S.W.2d 767, 774-75 (Tenn. 1991). The fifth factor, proximate causation, requires an additional three elements: (1) “the tortfeasor’s conduct must have been a “substantial factor” in bringing about the harm being complained of”; (2) “there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm”; and (3) “the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.” Id. (citing Smith v. Gore, 728 S.W.2d 738, 749-50 (Tenn. 1987)).

The Tennessee Supreme Court has adopted special rules of proximate causation in cases involving stationary vehicles. See, e.g., Carney v. Goodman, 38 Tenn. App. 55, 270 S.W.2d 572 (Tenn. 1954). In Carney, the Tennessee Supreme Court noted two lines of precedent dealing with standing vehicles. The first line of cases holds “that the negligence of one in obstructing the highway by standing vehicle [is] not superseded by the negligence of another in running into such vehicle.” Id. at 575. The second line of cases, however, holds that “the [*10]  negligence of one in obstructing the highway by a standing vehicle [is] superseded by another’s negligence in running into such vehicle, and that the latter’s negligence [is] the proximate cause of the accident.” Id. at 576. In reconciling the two cases, the Tennessee Supreme Court noted:

The test of whether a case falls within one line or the other of these cases seems to be this: Did the driver running into the standing vehicle see it in time to enable him, by use of due care, to avoid the collision? If he did not, his negligence is merely a contributory cause; if he did, his negligence is the proximate case.

Id. The question in this case is whether James’s parking on the side of the road constitutes a proximate cause of Hamrick’s accident, or whether Elmehalawy’s actions were the sole legal cause of Hamrick’s injury.

The Sixth Circuit applied Carney in Kellner v. Budget Car and Truck Rental, Inc., 359 F.3d 399 (6th Cir. 2004), a case that bears substantial similarity to this one. In Kellner, the defendant’s tractor-trailer suffered a mechanical emergency, and, as a result, the defendant moved it to the interstate shoulder. Id. at 401. No part of his rig was in the lanes of travel, and his truck was clearly visible and accompanied by warning triangles as required by Tennessee law. Id. Nonetheless, [*11]  a truck driven by plaintiffs left its lane of travel and struck defendant’s stationary tractor-trailer; two of the three passengers and the defendant were killed. Id. at 402.

The defendant’s estate moved for summary judgment, asserting that the tractor-trailer driver’s actions in moving his truck to the breakdown lane were not the proximate cause of the plaintiffs’ deaths. Id. The Sixth Circuit agreed with the defendant, rejecting the plaintiffs’ argument that because the defendant “could foresee the possibility that a car would leave its lane and strike his rig, [] his actions were the proximate cause of the accident.” Id. at 406. In closing, the Sixth Circuit stated: “the district court correctly determined that it was not foreseeable, within the meaning of Tennessee law, that [the plaintiff], with an extended unobstructed view of [the defendant’s] tractor-trailer, would leave three travel lanes and strike the rig that was parked completely within the emergency breakdown lane.” Id. at 407.

In this case, the undisputed evidence demonstrates that James parked his rig entirely on the shoulder, and no part of his rig obstructed traffic. (Doc. 116-1, at 18.) Elmehalawy saw James’s rig from a distance. (Doc. 116-2, at [*12]  7-8, 18.) He hit James’s rig not due to poor visibility, but rather flawed asserted perception that James’s tractor-trailer was moving in a separate lane of traffic. (Id. at 8, 18, 21.) Elmehalawy, had he realized that James’s rig was stationary, would not have attempted to merge rightward and the accident would not have occurred. (Id. at 23.) Hamrick testified that it was readily apparent that James’s rig was stationary. (Doc. 116-3, at 7.)

Nonetheless, both Hamrick and Elmehalawy insist that this case is distinguishable from Kellner. First, Hamrick and Elmehalawy point out that the accident in Kellner occurred in broad daylight and that the defendant had placed warning triangles behind his rig. (Doc. 125, at 5; Doc. 126, at 17.) Second, Elmehalawy notes that, unlike the Kellner defendant, whose truck suffered a mechanical problem, James pulled over due to nausea, which Elmehalawy presumably maintains was an insufficient reason for parking on the shoulder. (Doc. 125, at 5.)

These attempts at distinguishing Kellner, though, are unpersuasive. In that case, the Sixth Circuit focused not on the use of warning signals or the time of day, but rather on the visibility of the stationary vehicle. See 359 F.3d at 399. It is undisputed [*13]  that both Hamrick and Elmehalawy saw James’s rig. Elmehalawy simply made an error as to whether the tractor-trailer was moving. Nevertheless, he could have prevented the collision if he had correctly concluded that the vehicle was not moving. See Carney, 270 S.W.2d at 576. As a result, the Court concludes that Kellner controls. See also Humphrey v. Ybonta, No. 3:19-cv-00782, 2021 WL 780731, at *6 (M.D. Tenn. Mar. 1, 2021) (“Like Kellner, Defendants have shown the Court undisputed facts that the deceased could plainly see the rig (i.e., the rig was plainly visible to a driver approaching the rig) before impact and the deceased crossed multiple lanes of traffic, a safety zone, and an entrance ramp lane before colliding with the trailer on the shoulder.”); see also Underwood v. Fitzgerald, No. 3:04-0680, 2005 U.S. Dist. LEXIS 28294, 2005 WL 2837388, at *3 (M.D. Tenn. Oct. 27, 2005) (citing Carney and Kellner in a fatal stationary vehicle accident case and finding that a decedent parking on shoulder was not the proximate cause of the wreck).

Accordingly, the Court finds that James could not reasonably foresee that a driver would exit the travel lanes, cross a solid white line, hit his rig, and subsequently cause injury to another tractor-trailer‘s driver due to his temporary parking on the shoulder. Therefore, James and Nandleen’s motion for summary judgment will be granted as to Hamrick’s negligence [*14]  claim.

B. Negligence Per Se Against James⁵

James and Nandleen also seek summary judgment on Hamrick’s negligence-per-se claim. Hamrick and Elmehalawy contend that there is evidence that James did not comply with 49 C.F.R. § 392.22, governing emergency signaling for stopped commercial vehicles, Tennessee Code Annotated §§ 55-9-103, regarding disabled vehicles, and § 55-9-104, dealing with stopped vehicles.

“Liability under the negligence per se doctrine can arise when a party fails to perform a duty imposed by statute or ordinance.” Shaw v. Metro. Gov’t of Nashville & Davidson Cnty., 596 S.W.3d 726, 734 (Tenn. Ct. App. 2019). The doctrine requires a plaintiff to establish two elements: (1) that the defendant violated a statute or ordinance that “imposes a duty or prohibition for the benefit of a person or the public” and (2) that “the injured party [is] within the class of persons intended to benefit from or be protected by the statute.” Id. at 734 (quoting Harden v. Danek Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998)). Plaintiffs must still establish actual and proximate causation, as well as damages, to succeed on a negligence per se theory. Rains v. Bend of the River,  2003 Tenn. App. LEXIS 537, 124 S.W.3d 580, 590 (Tenn. Ct. App. 2003).

Even assuming the statutes and regulations cited by Hamrick give rise to a negligence per se claim, Hamrick’s claim fails because James’s behavior was not the proximate cause of Hamrick’s injuries. See Section III.A. As a result, an essential element [*15]  of negligence per se is missing, and the Court will grant summary judgment in favor of James and Nandleen on this claim.

C. Negligent Hiring Against Nandleen

Finally, Nandleen argues that it is entitled to summary judgment on Hamrick’s negligent-hiring claim because no reasonable jury could find that James was unfit to drive a tractor-trailer. (Doc. 117, at 14-15.) Hamrick, on the other hand, contends that Nandleen did not have necessary policies in place to ensure that James was fit for the job. (Doc. 126, at 17-18.)

“Tennessee courts recognize the negligence of an employer in the selection and retention of employees and independent contractors.” Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App. 2008). A plaintiff must demonstrate all the traditional elements of negligence, in addition to establishing that the employer had knowledge of the employee’s unfitness for the job. Gunter v. Estate of Armstrong, 600 S.W.3d 916, 928 (Tenn. Ct. App. 2019). To prove a negligent-hiring claim, a plaintiff must demonstrate: “(1) knowledge of unfitness for the particular job, (2) evidence that the applicant for employment, if hired, would pose an unreasonable risk to others, [and] (3) evidence that the prospective [employer] knew or should have known that the historical criminality of the applicant would likely be repetitive.” [*16]  Phipps v. Walker, No. 03A01-9508-00294, 1996 WL 155258, at *3 (Tenn. Ct. App. Apr. 4, 1996) (alterations in original).

In this case, no reasonable jury could find that James was unfit to drive a commercial vehicle. James graduated from trucking school, drove for more than 250 hours with an instructor, and had no previous citations or accidents. Elmehalawy and Hamrick point to no evidence in the record indicating that James was unfit for the job or that Nandleen had any reason to believe that he would pose an unreasonable risk to others. (Doc. 125, at 9.)

Hamrick attempts to argue that his claim should survive because Nandleen “did little or nothing to investigate the safety and fitness” of James (Doc. 126, at 19), but this does not change the Court’s analysis. Based on the undisputed evidence, no reasonable jury could find that James was unsuitable for the position for which he was hired, even if Nandleen’s screening protocols were insufficient. On the contrary, James had sufficient experience and a clean driving record—two prerequisites for his hiring at Nandleen.

Furthermore, the Court has already found that James’s actions in parking on the shoulder were not the proximate cause of Hamrick’s injuries. See Section III.A. As a result, the requirements for negligent hiring and [*17]  supervision are not met, and summary judgment is appropriate in favor of Nandleen.

IV. CONCLUSION

For the above reasons, Nandleen and James’s motion for partial summary judgment (Doc. 116) is GRANTED.

SO ORDERED.

/s/ Travis R. McDonough

TRAVIS R. MCDONOUGH

UNITED STATES DISTRICT JUDGE

End of Document

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¹ Omozokpea stated that “the policy at the time was for Nandleen to instruct its drivers that parking on the shoulder of highways and roads in tractor-trailers was not allowed unless it was an emergency.” (Doc. 131-1, at 4.)

² Elmehalawy and Hamrick testified that they did not see James’s hazard lights. (Doc. 116-3, at 6; Doc. 125-1, at 11-12.)

³ During his deposition, James testified that he understood the regulations to require “us[ing] your hazards,” and, furthermore, “if you’re going to be parked for more than 10 minutes, you have to pull out your triangles.” (Doc. 116-1, at 10.) He admitted that there was no reason he could not have put the triangles out. (Doc. 125-1, at 7.)

⁴ Hamrick asserts that Nandleen is liable for James’s negligence under a theory of respondeat superior. (Doc. 83, at 10.)

⁵ Again, Hamrick asserts that Nandleen is liable for James’s negligence under a theory of respondeat superior. (Doc. 83, at 10.)